Allahabad High Court
Ram Subhag Yadav & Another vs State Of U.P. on 5 October, 2018
Bench: Pradeep Kumar Singh Baghel, Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Case :- CRIMINAL APPEAL No. - 652 of 1997 Appellants :- Ram Subhag Yadav & others Respondent :- State Of U.P. Counsel for Appellant :- V.K.Dwivedi, D.R. Singh, D.V. Singh, Jafar Abbas, K.D. Tiwari, K.N.Shukla, M.P. Singh, N.D.Shukla, P.C.Srivastava, P.P. Srivastava, S P Pandey, Sheetala Prasad Pandey. Counsel for Respondent :- A.G.A., R.K.Pandey Hon'ble Pradeep Kumar Singh Baghel,J.
Hon'ble Rajiv Gupta,J.
(Delivered by Hon'ble Pradeep Kumar Singh Baghel, J.) In this appeal the appellants-- Ram Subhag Yadav, Banarasi Yadav (both real brothers), Ram Narain Yadav and Shiv Nath Yadav assail the judgment and order of the IIIrd Additional District & Sessions Judge, Basti1 dated 14th February, 1997 passed in Session Trial No. 89 of 1994, State v. Ram Subhag Yadav and others, arising out of Case Crime No. 81 of 1994, under Section 302 I.P.C., Police Station Khalilabad, District Basti. By the impugned judgment and order the appellants have been convicted and sentenced to undergo life imprisonment with a fine of Rs.10,000/- each for the offence under Section 302 read with Section 34 I.P.C.. In case of failure to pay the amount of fine, six months' additional rigorous imprisonment has been awarded to the appellants. All the appellants stood the trial under Section 302/34 I.P.C.
The facts of the case, insofar as material for this appeal, are that P.W.-1 Smt. Gujrati, an eighty years' old widow, submitted a written report (tehrir) to the Inspector, Kotwali Khalilabad, District Basti on 28th January, 1994, on the basis of which a first information report2 was registered on the same day i.e. 28th January, 1994 at 08.45 A.M. as Case Crime No. 81 of 1994, under Section 302 I.P.C.. In her tehrir she has stated that on the same day i.e. 28th January, 1994 in the morning at about 07.00 A.M. her two sons Ram Singh and Ram Sewak Singh were going to attend a court case at Gorakhpur and she (the informant) and her granddaughter Km. Anita, P.W.-2, who was aged about ten years, were accompanying them to see them off at the main road, from where they were to take bus for Gorakhpur. The pathway, which connects the village to the road, passes through a grove land. At about 07.00 A.M. in the morning when they reached in the said grove, they saw that Ram Subhag Yadav, appellant no. 1, armed with Kulhari (axe), Banarasi, appellant no. 2, armed with Talwar (sword), Ram Narain and Shiv Nath, appellant nos. 3 and 4 respectively, armed with Katta (country made pistol) were hidden behind the trees and when they reached near them, Ram Subhag exhorted other accused persons to kill her sons Ram Singh and Ram Sewak Singh and attacked on them. The FIR gives the details regarding the use of different weapons by the accused persons. It says that Ram Subhag and Banarasi assaulted them with axe and sword and Ram Narain and Shiv Nath fired at them from a close range. In the said incident her both the sons received grievous injuries and died on the spot. It is further mentioned in the tehrir that when the assailants surrounded her sons and started assaulting them, she along with her granddaughter Km. Anita sounded alarm loudly for help. Hearing their alarm, several persons, who were attending the call of nature near a river, which passes nearby the grove, rushed to the spot to save her sons. Names of such persons are mentioned in the FIR. Some of them are Yadhunath Pandey and Vijay Singh, who have witnessed the incident and also deposed in the trial as P.W.-3 and P.W.-4 respectively.
Accordingly, the FIR was registered at 08.45 A.M. and a chik FIR was prepared. The investigation was entrusted to P.W.-5 Sri Chauthi Ram, Inspector. The police reached the spot at about 09.30 A.M., recorded the statement of P.W.-1, the first informant, conducted inquest on the dead bodies of late Ram Singh and Ram Sewak Singh and the dead bodies were sent for autopsy. Inquest reports are Exhibits Ka-2 and Ka-3. The police also collected the bloodstained earth where the bodies of the deceased persons were found. The assailants had thrown their Kattas near the incident spot, which were also recovered. The police has sent the bloodstained earth and other articles of the deceased persons and the firearms to forensic laboratory.
On the same day statements under Section 161 Cr.P.C. of Km. Anita, P.W.-2, Vijay Singh, P.W.-4, and some other persons were also recorded. On the next day the statements of Yadunath Pandey, P.W.-3, Vansh Bihari Tiwari and the witnesses of the inquest were also recorded.
Dr. Vijay Kumar Srivastava, P.W.-6, had conducted autopsy on the same day of the incident i.e. 28th January, 1994 at 4.15 P.M. on the dead body of Ram Singh and thereafter on Ram Sewak Singh. In the opinion of the Doctor, death of both the deceased persons was caused due to shock and haemorrhage as a result of ante-mortem injuries.
In the post-mortem report of deceased Ram Singh the Doctor has found 12 incised wounds. On the body of late Ram Sewak Singh the Doctor has found 4 firearm wounds, 7 incised wounds and contusions also. The details of the injuries found on the body of the deceased persons read as under:
Ante-mortem injuries found on the dead body of Ram Singh:
"(1) I.W. 18 cm. x 1.5 cm. x cavity deep on (L) side head, 1 cm. above (L) ear horizontally placed & underlying bones are fractured. Brain matter coming out from wound. (2) I.W. 16 cm. x 1.5 cm. x cavity deep, horizontally placed, just above injury no. (1) and joining the injury No. (1) on lateral posterior. Brain matter is coming out from wound. (3) I.W. 7 cm. x 1 cm. x bone deep on (L) side head & forehead, obliquely placed, just above (L) eyebrow. Underlying bone fractured. (4) I.W. 3 cm. x 0.5 cm. x muscle deep on lateral part of (L) eyebrow.
(5) I.W. 4 cm. x 0.5 cm. x muscle deep on top of head, 10 cm. above (R) ear, obliquely placed.
(6) I.W. 2 cm. x 0.3 cm. x muscle deep on lateral part of (R) upper eyelid.
(7) Multiple I.W. on dorsum of (R) hand with varying size from 3 cm. to 0.5 cm. and 2 cm. x 0.5 cm. x muscle deep. Underlying metacarpals are fractured. (8) I.W. 2 cm. x 0.5 cm. x muscle deep on dorsum of (R) wrist obliquely placed.
(9) I.W. 2 cm. x 0.5 cm. x muscle deep on outer lateral surface of lower part of (R) forearm, 3 cm. above wrist obliquely placed. (10) I.W. 1 cm. x 0.5 cm. x muscle deep obliquely placed on posterior surface of (R) forearm 4 cm. above injury No. (9). (11) I.W. 1 cm. x 0.3 cm. x muscle deep on latral surface of (L) index finger.
(12) Multiple abraded contusion on post. surface of (L) hand, forearm & elbow with varying size from 1 cm. x 0.5 cm. to 3 cm. x 1 cm."
Ante-mortem injuries found on the dead body of Ram Sewak Singh:
"(1) Fire-arm wound of entry 0.5 cm. x 0.5 cm. x through and through on (L) side lower lip, margins irregular & inverted with blackening, corresponding tooth (lower (L) canine) is broken.
(2) Firearm wound of exit 1.5 cm. x 1 cm. x through & through on (R) side of upper lip, margin irregular & everted.
(3) Firearm wound of entry 1 cm. x 1 cm. just below & posterior to (L) ear with blackening & tatooing around the wound with inverted margins. Hairs on post aural region are burn. This wound is communicating to wound of exit on (L) side face.
(4) Firearm wound of exit communicating from injury no. (3) on (L) side face. 2 cm. x 1.5 cm. size with everted margins, 2 cm. below (L) eye-zygomatic bone (L) side inside wound tract is broken.
(5) I.W. 22 cm. x 1 cm. x cavity deep on (R) side head just above (R) ear, horizontally placed extending from occipital region to (R) temporal region. Brain matter is coming out through wound.
(6) Multiple I.W. on forehead of varying size from 0.5 cm. x 0.2 cm. to 1 cm. x 0.3 cm. x muscle deep.
(7) Multiple I.W. of varying size from 0.5 cm. x 0.2 cm. to 1 cm. x 0.5 cm. on head. All are muscle deep.
(8) I.W. 3 cm. x 1 cm. x muscle deep on anteo-medial surface (R) wrist joint.
(9) I.W. 2 cm. x 0.5 cm. x muscle deep obliquely placed on back of (R) elbow.
(10) I.W. 0.5 cm. x all around except 0.2 cm. on anterior surface. on distal part of (L) little finger. DP of (L) little finger is fractured.
(11) Contusion 1 cm. x all around on proximal part of (L) index finger, underlying phaly(sic) is fractured.
(12) I.W. 3 cm. x 0.5 cm. x cartilage deep on anterior surface of (R) ear pinnae. Cartilage is cut."
The police had arrested the accused persons and after completion of investigation a charge-sheet was submitted in the Court of the Magistrate against all the accused persons. The Magistrate has committed the matter to the Court of Session for trial in accordance with law.
The prosecution in support of its case has examined the first informant--Smt. Gujarati, the mother of deceased Ram Singh and Ram Sewak Singh, as P.W.-1; Km. Anita, granddaughter of Smt. Gujarati and daughter of one of the deceased Ram Sewak Singh, as P.W.-2; Sri Yadunath Pandey, who claims to be an eye witness, as P.W.-3; Sri Vijay Singh, who also claims that he rushed to the spot after hearing the screams and alarm sounded by P.W.-1 and her deceased sons while they were being assaulted, as P.W.-4; Sri Chauthi Ram, the Investigating Officer, as P.W.-5; and, Dr. Vijay Kumar Srivastava, Medical Officer, District Hospital, Basti, who had conducted autopsy on the dead bodies of both the deceased Ram Singh and Ram Sewak Singh, as P.W.-6.
The incriminating questions were put to the accused persons under Section 313 Cr.P.C.. All of them pleaded not guilty and were ready to face the trial.
The trial Court found that the prosecution has established the charges against all the accused persons and convicted them for murder of deceased Ram Singh and Ram Sewak Singh under Section 302 read with Section 34 I.P.C. and they were sentenced for life imprisonment and fine of Rs.10,000/- has also been imposed on each appellants to be paid to the family members of the deceased persons and in case of failure to deposit fine, six months' further rigorous imprisonment has been directed.
We have heard Sri S.P. Pandey, learned counsel for the appellants, and Sri Narendra Kumar Singh Yadav, learned A.G.A.
Sri S.P. Pandey, learned counsel for the appellants, submitted that P.W.-1 Smt. Gujarati is a 80 years' old lady and her presence on the spot at the time of occurrence of the offence is highly doubtful for the reason, amongst others, that she was 80 years old lady and was unable to walk a long distance from her house to the place of occurrence, which, according to the learned counsel for the appellants, was about 10 Kms.. He has further submitted that ocular evidence of the eye witnesses is not supported by the medical evidence. He further submitted that presence of digested pasty matter in the stomach of one of the deceased Ram Singh and the presence of faecal matter in the large intestine show that he was not going to court. A false story has been cooked up by the prosecution. He has further pointed out from the evidence that no money was found on the person of both the deceased persons. This fact also indicates that they were not going to court as claimed by the prosecution. It is also submitted that from the FIR as well as the evidence of PW-1 it is evident that there was long animosity between the parties regarding a land dispute which led to the false implication of the appellants.
Learned A.G.A. has submitted that the findings recorded by the trial Court are based on correct appreciation of the facts. He has submitted that the version of the eye witnesses are natural and the discrepancies pointed out by learned counsel for the appellants are minor in nature and on the basis of those discrepancies or inconsistencies the entire evidence of the witnesses cannot be discarded. He has submitted that a perusal of statement of PW-1, mother of the deceased Ram Singh and Ram Sewak Singh, shows that it is trustworthy and in the long cross-examination the defence could not elicit any fact, which can cast doubt on her testimony. He has submitted that the evidences of PW-1 and the child Km. Anita, PW-2, are enough to convict the appellants.
We have considered the rival submissions of both the sides and perused the record carefully.
It is admitted fact that there was a long standing enmity between the parties. There was a litigation between the appellant Ram Subhag and the deceased. From the record it appears that in a criminal case, in which Ram Subhag was a complainant, both the deceased Ram Singh and Ram Sewak Singh were accused and they were convicted. Thus, the enmity between the parties is established by the evidence of both the sides. It is a trite that enmity is a double-edged sword in a criminal trial. Bearing in the mind that both the parties have alleged that their relationship was strained due to animosity, we have to examine the evidence on the record in the light of the said facts.
PW-1 Smt. Gujarati is mother of deceased Ram Singh and Ram Sewak Singh. In the Court she had recognised Ram Subhag, Banarasi, Ram Narain and Shiv Nath, who are residents of the same village. Ram Subhag and Banarasi, appellant nos. 1 and 2 respectively, are real brothers. Appellant no. 3--Ram Narain, is son of Banarasi. Shiv Nath and Ram Narain are brothers. Thus, all the appellants are related to each other. She has deposed that she had four sons; her two sons Ram Sewak and Ram Singh have been murdered in the incident in question and other two sons are Komal and Narsingh, who are living elsewhere and are in employment in Meerut and Azamgarh respectively. Her son Ram Singh was a student and was living with Narsingh in Azamgarh and he had come to home a day before the incident. His another deceased son Ram Sewak lived at home and was looking after agricultural activities of the family. PW-1's khalihan is situated within a distance of one bigha from the house of appellants. Ram Subhag had tried to encroach upon her khalihan, which illegal attempt of Ram Subhag was foiled and unsuccessful due to resistance of her deceased son Ram Sewak. For the said reason, a scuffle took place between the appellants and her sons, and on account of said incident her sons stood trial, in which Ram Singh was convicted. Against the order of conviction they had preferred an appeal before the Session Court, which was pending and on the fateful day her both the sons were going to attend the criminal case at Gorakhpur.
She has further deposed that on the date of the incident she got up in the early morning and had prepared breakfast for her sons. Before leaving for Gorakhpur her sons had taken bread and curd in their breakfast. After taking breakfast when they left for Gorakhpur, she and Anita, daughter of Ram Sewak, accompanied them to send-off at the place where they had to board the bus for their journey to Gorakhpur. The way to the bus stand passes through a mango grove of one Mithilesh situated in village Rasoolabad. The owner of the grove was Pradhan of the village also. It is deposed that as soon as they reached in the said grove, she saw that Ram Subhag and Banarasi were sitting under a tree. Ram Subhag was having a tangi and his brother Banarasi was armed with sword and two other persons, namely, Ram Narain and Shiv Nath, who were also sitting there, were armed with country made pistol (katta). When they reached in the mango grove, Ram Subhag exhorted to catch hold and kill them. Ram Sewak was surrounded and caught hold by them. Ram Narain and Shiv Nath fired with Katta pointing Ram Sewak, who fell on the ground after receiving the bullet injury. When he fell down, Ram Subhag started assaulting Ram Sewak by tangi and Ram Singh was also assaulted by Banarasi with his sword and Ram Subhag by his tangi. PW-1 and Anita, PW-2, who were present there along with the deceased persons, started crying. Ram Narain uttered filthy language to them and chased them away from the spot. She has deposed that her both the sons Ram Sewak and Ram Singh succumbed to their injuries on the spot itself. It is stated that Banarasi had also assaulted Ram Sewak by his sword.
It was further deposed by PW-1 that upon hearing the alarm raised by PW-1 and PW-2, one Yadunath Pandey, PW-3, came on the spot. Similarly, some other persons including Ram Vriksha also came on the spot who had come near the scene of incident to answer the call of nature. She has stated that Ram Narain and Shiv Nath had thrown their country made pistol on the spot but Ram Subhag and Banarasi had taken along with them their tangi and sword. It is stated that Ram Narain had also left his towel and shoes on the spot. She has also deposed that she used to accompany her both the sons to see them off at the bus station whenever they went to Gorakhpur to attend the criminal case. She further deposed that at the time of incident Anita was student of Class-VII. One Vijay Singh had brought the papers from her house and on her dictation the written report was transcribed at the place of occurrence itself. After completion of the dictation, Vijay Singh had read over the report to her and she had put her thumb impression.
This witness was subjected to long cross-examination by the defence. She had denied the suggestion that she did not accompany her sons on the date of the incident. She had also denied the suggestion that her sons had bad criminal antecedent and were murdered by unknown assailants and the appellants were falsely implicated. She has stated that her sons were not carrying any paper as in the previous evening they had gone to Gorakhpur and had submitted papers. She had no knowledge about the money being carried by them. She had also stated that only Ram Singh was convicted and Ram Sewak also used to accompany Ram Singh to the Court. According to her, the I.O. had taken her statement on the same day. She has graphically described the topography of mango grove and the way which goes from village to the bus station through the mango grove. In between her village and grove there is a river known as Aami river, its course is from east to west, and there is a temporary wooden bridge to cross over the river.
This witness, PW-1, was recalled for further re-examination on 05th January, 1996. She has reiterated her earlier statement. She was asked to describe the nature of weapons, to which she had stated that the assailants had used an iron tangi and a sword which was about 2-hand long. She has stated that the assailants had fired from Katta on Ram Sewak. After receiving bullet injury he fell on the ground and both the bullets hit him at his neck. After firing the assailants had thrown their kattas on the spot. She has reiterated that the assailants had left behind their towel and shoes. She has stated that the fire was made from a very close distance of about 4 feet.
PW-2 Km. Anita is granddaughter of PW-1 and daughter of deceased Ram Sewak. She was a student of Class-VII at the time of incident and was aged about 13 years when she had made deposition in the Court. She has stated that before the incident Ram Singh was involved in a quarrel with the accused persons and he was convicted and sentenced to imprisonment for four years. He had filed an appeal in the Session Court at Gorakhpur and to attend the Court case her father Ram Sewak and uncle Ram Singh were going to Gorakhpur. She and her grandmother PW-1 had accompanied them to main road, from where they had to board the bus. In the past also, she and her grandmother used to send-off her father and uncle for their security. On the date of occurrence of the incident, in the morning at 07.00 A.M. when they crossed the river and reached in the grove of Mithilesh Yadav, all the accused persons, who were armed with their weapons and hidden in the grove, came out with their arms seeing her father and uncle. She has recalled that Ram Subhag was armed with tangi, Banarasi had sword and Ram Narain and Shiv Nath had katta in their hands. On the exhortation of Ram Subhag, Ram Narain and Shiv Nath fired with their Katta on Ram Sewak and Ram Singh. Ram Subhag and Banarasi assaulted them with their weapons. PW-2 and her grandmother raised the alarm. Upon hearing their alarm, several persons reached at the spot and scolded the assailants then they fled away from the scene leaving their kattas on the spot. She has further stated that her grandmother had dictated the report on the spot which was written by Vijay Singh.
In her cross-examination she has stated that she had accompanied her father and uncle and after return from there, she used to go to school. The I.O. had recorded her statement on the spot on the same day. On the date of the incident there was no fog and visibility was clear. She had seen the assailants from a distance of 4-5 paces. When Ram Subhag exhorted, they were surprised and confused. His father and uncle could not run away before the assailants shot them. When the accused Shiv Nath and Ram Narain had fired, at that point of time her uncle and father were moving ahead of them. She has also stated that the fire was issued from a very close distance about 3-4 paces. Her father and uncle were moving closely to each other. She had clearly seen when they were fired at by the assailants. She has also described the sword and stated that she had seen the sword with which her father and uncle were assaulted. She has also given the size of tangi that it was about 5-6 inches in length. She could not count how many assaults were made on her father by tangi.
PW-3 Yadunath Pandey had deposed that on the date of the incident he along with Ram Vriksha Singh, Vijayi Singh, Vansh Bahadur Tiwari, Radhey Shyam and Hanumant Singh had gone near the river to ease. When they heard the alarm raised by Ram Sewak, Ram Singh, their mother and daughter, they rushed to the spot. Upon reaching there, he saw that Ram Subhag was armed with tangi, Banarasi with sword, Ram Narain and Shiv Nath were having Katta and they were assaulting Ram Sewak and Ram Singh. Ram Narain and Shiv Nath had shot fire from their country made pistol and Ram Subhag and Banarasi had assaulted them by tangi and sword. This witness and other persons named above, who were accompanying PW-3, scolded the accused persons and also raised alarm, then the accused persons fled away from the spot. Two assailants, namely, Ram Narain and Shiv Nath had thrown their country made pistols near the spot. Ram Narain had also left his shoe and towel on the spot. Both the injured persons Ram Sewak and Ram Singh died on the spot.
In his cross-examination this witness has denied the situation that he was priest of deceased Ram Sewak or his family. He had also denied the suggestion that he had some enmity with Ram Subhag with respect to boundary dispute of their field. He stated that deceased Ram Singh was studying at Azamgarh and his other brother deceased Ram Sewak was living at his home. He further stated that he had heard commotion and the alarm raised by PW-1 that she was asking to save her son. He had also heard the voice of Ram Sewak and Ram Singh. All the witnesses reached the spot simultaneously, at that time a large number of people of the village were present near the river who had come to answer the call of nature. He had further stated that first they had fired from katta and then assaulted with axe and sword.
PW-4 is one Vijay Singh, who had also reached the spot hearing the alarm raised by Gujarati, PW-1, and Anita, PW-2. He has also described the same incident as by PW-1, PW-2 and PW-3. This witness also reached on the spot and saw that the assailants were assaulting the deceased. He had found that Ram Singh was seriously injured and live. The witness had tied cloth around the neck of the injured, but the injured died within 2-3 minutes. His cloth and hands were stained with blood. He had shown the blood to the IO.
PW-5 Chauthi Ram was the I.O. in the case, who had conducted the investigation. He deposed that in his presence Gujarati, PW-1, had come to the police station and the FIR was recorded at 08.45 A.M. Head Moharrir Chandra Bhan Mishra had prepared the chik FIR and the necessary entries were made in the G.D.. Statement of PW-1 was recorded in the police station and after recording her statement he proceeded to the spot along with some other police personnel. He prepared inquest report and the dead bodies of deceased Ram Sewak and Ram Singh were sealed in presence of the Panch witnesses and he completed other necessary formalities. He had also collected bloodstained soil and normal soil from the spot. He found two country made pistols near the scene of occurrence and also prepared fard of one shoe and bag, in which cotton towel was found. The fard was prepared and on the same day statements of Km. Anita, PW-3, Ram Vriksha Singh and Vijayi Singh were recorded under Section 161 Cr.P.C.. The statements of other witnesses were recorded on 29th January, 1996. He sent the dead bodies for autopsy and the articles recovered from the scene of occurrence were also sent for examination to the forensic laboratory. He submitted a charge-sheet on 08th March, 1994 (Exh.Ka-25).
To a suggestion he has stated that PW-1 did not tell him about the shoe and towel of one of the assailants Ram Narain, which are said to be left by him on the spot. He stated that when inquest was prepared, the In-charge of Maghar Chowki and Constables Ram Ashish and Kamlesh Singh were also present and their presence has been recorded in the inquest form. They were posted at Maghar Chowki, from where they had come to the spot. He could not record statement of any person of Village Rasoolabad as no one was ready to give the statement. He has denied the suggestion that all the witnesses are residents of village of the deceased. He has further stated that two country made pistols, which were found on the spot, were lying at some distance which he has not mentioned in his site plan. Since the country made pistols were not found near the corpus, in their inquest reports same was not recorded. In one of the country made pistols a live cartridge was found in its barrel. Both were sent for forensic examination. He has denied the suggestion that the FIR was prepared after consultation.
PW-6 Dr. Vijay Kumar Srivastava, Medical Officer, District Hospital, Basti had conducted autopsy on the dead bodies of both the deceased persons. He stated that he had conducted post-mortem on the body of deceased Ram Singh on 28th January, 1994 at 4.15 P.M. The deceased was aged about 22 years. He had found as many as 12 incised wound. Most of the wounds were on the head, neck and face. He had found about 50 grams semi-digested food in his stomach. In his opinion, the cause of death was the incised wounds, shock and hemorrhage. No injury due to the gunshot was found on his body On the same day i.e. 28th January, 1994 he had also conducted post-mortem on the dead body of deceased Ram Sewak Singh. He had found about 12 injuries on his person. Injury Nos. 1, 2, 3 and 4 were gunshot injuries and rest of the injuries were incised wounds on the face and head. In his stomach 60 grams of undigested food was found. According to his opinion, Injury Nos. 1 and 3 were caused by country made pistol and rest of the injuries were caused by a sharp-edged weapon. He stated that it was possible that the said injuries were caused by the sword. He had deposed that Injury Nos. 1 and 3 on the body of Ram Sewak were caused due to gunshot from a close range. It is also stated that some of the injuries might have been caused by sharp-edged weapon (spade or Gandasa).
After completion of evidence of the prosecution, the statements of the accused persons were recorded under Section 313 Cr.P.C. and they had denied the charges levelled against them.
Learned counsel for the appellants has vehemently submitted that the trial Court has illegally relied upon the statements of PW-1 and PW-2, who were not present on the spot. PW-1 was a 80 years' old lady and she was not in a position to move from her house and cover a long distance upto grove, where the incident occurred, after crossing the river. It is also submitted that PW-2 Km. Anita is a child witness and she was tutored, hence her statement ought to have been discarded. Moreover, both the witnesses are interested witnesses as they are close relatives or family members of the deceased persons.
The prosecution story is that both the deceased persons were on their way to attend a criminal case at Gorakhpur. There is a documentary evidence on the record as Exh.41-Kha, which indicates that Ram Singh had filed an appeal, being Criminal Appeal No. 7 of 1993, Ram Singh v. State, which was pending before the Sessions Judge, Gorakhpur and 28th January, 1994 was the date fixed in the said case. Ram Singh was convicted in a criminal case in respect of a dispute with Ram Subhag. It was his case that Ram Subhag wanted to take forcible possession of his khalihan (barn) which was resisted by Ram Singh ensuing a Marpeet, in which he was convicted by the trial Court. A documentary evidence is on the record as Exh. Ka-26 in respect of the said dispute. According to PW-1 and PW-2, Km. Anita, both, previously whenever PW-1's sons had went to Gorakhpur to attend the said criminal case, both PW-1 and PW-2 had accompanied them with a view to provide them company and a sense of security. It was quite natural for a mother to provide security to her sons, against whom one of the appellants was nurturing a grievance. From the evidence it appears that from their village to Gorakhpur Sahjanwa road, from where they had to board the bus, a rasta (pathway) goes through a grove of one Mithilesh Yadav. At the end of their village Keshwakhor towards south, Aami river flows from east to west. There existed a make-shift wooden bridge on the said river to cross it. At about 100 meters towards south of the river there is a big 11 bigha bagh (grove). From their village the rasta goes through this grove upto Gorakhpur Sahjanwa road, from where they get the bus.
On the fateful day, as stated by PW-1, she got up in the early morning and prepared breakfast by making some roti (chapaties/breads). Her both the sons ate two roti/chapati each with curd. As usual, she and Anita, PW-2, accompanied her both the sons. After crossing the wooden bridge when they were in the midst of grove, suddenly they saw that all the accused persons, who were armed with deadly weapons, were sitting under a mango tree, where they had hidden themselves. PW-1 and PW-2 have stated that they had first seen Ram Subhag and Banarasi, Ram Subhag was armed with a tangi and Banarasi was armed with a sword (talwar). Near them, Ram Narain and Shiv Nath were also sitting and both of them were carrying country made pistol. On exhortation of Ram Subhag, they surrounded Ram Sewak, and Ram Narain and Shiv Nath fired on Ram Sewak from their country made pistol.
PW-1 is, no doubt, an old woman but she was fit enough to carry out her household chorus. One of her sons was unmarried and was studying at Azamgarh. From the evidence on record it appears that she performed her household chorus as she used to cook food in her house and on the fateful day she had prepared breakfast. In her statement she has stated that she had prepared the breakfast (roti), which her both the sons had taken with curd before leaving for Gorakhpur. She has stated that deceased Ram Singh and Ram Sewak had taken 2-chapati (breads) each. In their stomach about same quantity of 50-60 grams of undigested foods have been found. She was subjected to long cross-examination but on reading her entire statement it appears that her statement is natural and coherent. The statement also indicates that she stood a tough cross-examination and nothing material contradiction has been pointed out by learned counsel for the appellants. She has given the detail of the incident. From the evidence it is evident that she was hardly few paces behind her sons when the accused-appellants, who had concealed themselves at place-A in the site plan, suddenly emerged with deadly weapons in their hands. She has stated that the first fire was shot by Ram Narain and Shiv Nath, who were armed with country made pistols, and Ram Narain and Shiv Nath shot at Ram Sewak from a close range. In her cross-examination she has stated that the accused persons had fired only on Ram Sewak and both the shots were fired at his neck. The post-mortem reports reveal that only Ram Sewak was injured with firearm. PW-6 Dr. Vijay Kumar Srivastava, who had conducted autopsy, had deposed that blackening was found near the entry point injury. In her cross-examination PW-1 has clearly stated that distance from where firing was made was hardly 4-1/2 feet. From the post mortem report and evidence of the Doctor it is evident that medical report corroborates the statement of PW-1 in all respect except a minor discrepancy that PW-1 had stated that both the shots were received by the deceased Ram Sewak on his neck, whereas the medical evidence shows that one gunshot injury was on his neck and the other was at his face near the upper lips. In our view, this discrepancy is minor and does not affect the credibility of her statement. An old lady, whose son has been shot at a few feet away from her, cannot be expected to give the graphic details of the injuries. Her statement regarding the other accused persons who were armed with sword and tangi also gets support from the post-mortem report. The accused persons did not fire on Ram Singh. As per her statement, Ram Sewak when fell down after receiving the bullet injury, Ram Subhag assaulted him with the tangi. Ram Singh, her another son, was assaulted by Banarasi with his sword and Ram Subhag by tangi. Banarasi had also assaulted Ram Sewak with his sword. She had narrated the incident to one Vijay Singh, who had jotted it down on the spot itself and thereafter she lodged it at the police station without any delay.
In our view, the statement of this witness (PW-1) inspires confidence. We do not find any material contradiction in her statement though she was recalled for examination, but a careful reading of her evidence shows that she stood to her ground and the prosecution has failed to elicit any minor contradiction much less material contradiction. Her statement also finds corroboration from the statements of Km. Anita, PW-2, and two independent witnesses, namely, Yadunath Pandey, PW-3, and Vijay Singh, PW-4, who had also reached on the spot along with Ram Vriksha and Vansh Bahadur. From the evidence on the record it is established that the incident had taken place in the grove. No suggestion was made by the defence counsel to the witnesses about the place of the incident. Hence, it is established by the prosecution that when in regard to the place of incident there is no doubt, then both the deceased persons Ram Singh and Ram Sewak were done to death at the places 'P' & 'C' shown in the site plan in the grove of Pradhan. The I.O. had also taken the bloodstained soil and normal soil from the spot.
The statement of PW-1 has been corroborated by her granddaughter Km. Anita, PW-2, who was aged about 10 years at the time of incident. A careful reading of statement of Km. Anita would show that her statement is natural and inspires confidence.
It is a trite law that statement of a child witness must find corroboration before it is relied upon. Reference may be made to the judgments of the Supreme Court in Prakash and another v. State of Madhya Pradesh3, Baby Kandayanathil v. State of Kerala4, Raja Ram Yadav and others v. State of Bihar5, Dattu Ramarao Sakhare and others v. State of Maharashtra6, and State of U.P. v. Ashok Dixit and another7.
The Supreme Court in the case of Yogesh Singh v. Mahabeer Singh and others8 has held regarding evidence of a child witness in the following terms:
"23. However, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. (Vide Panchhi v. State of U.P.9)"
In the light of the aforesaid law, we have considered the statement of PW-2 Km. Anita. She is daughter of deceased Ram Sewak. At the time when her statement was recorded she was 13 years old. Her father was murdered in her presence. She has recalled the incident remarkably. She has stated that she had accompanied her father, uncle and grandmother as usual in the past. On 28th January, 1994 at 07.00 A.M. in the morning when they crossed river and reached in the grove of Mithilesh Yadav, recognising the accused persons who were present in the Court she stated, they were sitting in the grove and when they reached near them, Ram Subhag exhorted to kill her father and uncle Ram Singh. On his exhortation Ram Narain and Shiv Nath fired on Ram Sewak and Ram Singh and thereafter they started assaulting them. When they raised alarm, Yadunath Pandey, Ram Vriksha, Vijay Singh, Radhey Shyam, Hanuman, and others rushed to the spot. The accused persons had left behind their kattas, which were lying at the spot, and one of the accused persons had also left his towel and shoes. The prosecution in her long cross-examination could not elicit any material contradiction. She has stated that Katta was fired on her father from a very close range of 3-4 paces. Her statement also gets corroboration from the medical evidence as the blackening was found on the gunshot injury.
Learned counsel for the appellants has failed to point out any material contradiction in the statement of PW-2. There was no material inconsistency or discrepancy in her statement recorded by the police under Section 161 Cr.P.C. and her evidence in the Court. In fact, her statement gets corroboration from the statements of PW-1 and PW-3 Yadunath Pandey, who had also reached the spot along with PW-4 Vijay Singh. From the statements of the eye witnesses there is no doubt about the presence of PW-1 and PW-2 on the spot. They had described the way the accused persons had assaulted both the deceased persons. The medical evidence completely supports the eye witnesses.
The nature of the injuries found on the body of Ram Singh clearly indicate that all the incised wounds have been caused by sword and tangi. PW-6 Dr. Vijay Kumar Srivastava has also deposed that the injuries on the body of Ram Singh were caused by sharp-edged weapon and according to his opinion, injuries were caused by sharp-edged weapon possibly by sword and spade. PW-6 had stated that Injury Nos. 1, 2, 3 and 7 on the body of Ram Singh were possibly caused by tangi or a sharp-edged weapon, and except Injury No. 12 other rest injuries were caused by a sharp-edged weapon like sword. Injury No. 12 might have come due to falling. The possible time of death has been stated to be 07.00 A.M. in the morning of 28th January, 1994. In respect of injuries of Ram Sewak PW-6 has opined that Injury Nos. 1 and 3 have been caused by firearm, Katta, which has been fired from a close range, and rest of the injuries have been caused by sharp-edged weapons like sword. The deposition of PW-6 and the post-mortem reports support the statements of PW-1 and PW-2, who were eye witnesses of the incident.
Learned counsel for the appellants has submitted that the evidence of PW-4 cannot be relied upon as he was a Purohit of family of the deceased. The said suggestion has been denied by the witnesses and there is no other evidence to show that this witness is an interested witness. He was present near the grove. From the evidence of the prosecution witnesses it is evident that several residents of Village Keshavakhor used to come near the river in the morning to ease themselves. From the statement of PW-3 we have no doubt regarding his presence near the place of the incident and upon hearing the commotion and alarm raised by PW-1 and PW-2, he immediately rushed towards the scene of occurrence. He has narrated the same fact, which the other eye witnesses PW-1, PW-2 and PW-4 have stated regarding occurrence of the incident. We do not find any material contradiction in the statements of the eye witnesses who have seen the incident, and we also do not find any reason to disbelieve their statements. Accordingly, we affirm the finding of the trial Court regarding occurrence of the incident in question, in which all the accused persons have actively participated. The medical report and forensic laboratory report have clearly established the use of firearm and sword as well as tangi.
As regards the submission of learned counsel for the appellants that there was no motive on the part of the accused persons to kill Ram Sewak and Ram Singh when Ram Singh was already stood convicted, we do not find force in the said submission in view of the fact that the issue of motive becomes irrelevant when the incident is established by the oral evidence of the eye witnesses. In Yogesh Singh (supra) the Supreme Court has held that motive loses its significance if there is evidence of eye witness about the incident. The relevant part of the judgment is quoted below:
"46. ...Therefore, in case there is direct trustworthy evidence of the witnesses as to commission of an offence, motive loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance..."
In Inder Singh and others v. State of Rajasthan10 the Supreme Court has held as under:
"19. ...Some argument was advanced on there being lack of any clear motive but that is not at all necessary or material when the offences have been proved by clear and cogent evidence including eyewitnesses."
Insofar as the submission of learned counsel for the appellants that PW-3 and PW-4 are chance witnesses and their presence is very much doubtful, we are not impressed with the said submission. Both the witnesses have given detail about the distance between river and grove which is about 100 meters. PW-1 has also stated that distance between river and grove is about 1 bigha (roughly about 100 meters). It is a common practice in the villages that the people in the morning go near source of water like pond, river, canal, water channel to defecate. In the present case, PW-3 and PW-4 have stated that they along with some other villagers were defecating near the river. Even from the north side of river a person can clearly see the incident which takes place in the grove as the distance between river and grove is hardly 100 meters. The value of evidence of the chance witness has been considered by the Supreme Court in the case of Rana Pratap and others v. State of Haryana11. The Supreme Court has held that the expression 'chance witness' is borrowed from other countries. It has to be understood in Indian context. The Court observed in the following terms:
"3. There were three eye-witnesses. One was the brother of the deceased and the other two were a milk vendor of a neighbouring village, who was carrying milk to the dairy and a vegetable and fruit hawker, who was pushing his laden cart along the road. The learned Sessions Judge and the learned counsel described both the independent witnesses as 'chance witnesses' implying thereby that their evidence was suspicious and their presence at the scene doubtful. We do not understand the expression 'chance witnesses'. Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed on a street, only passersby will be witness. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witnesses' is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are 'chance witnesses', even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence."
Learned counsel for the appellants has vehemently submitted that PW-1 and PW-2 are interested witnesses as PW-1 is mother of deceased and PW-2 is daughter of one of the deceased Ram Sewak and PW-3 and PW-4 are the chance witnesses, hence the trial Court has erred in recording conviction of the accused persons on the basis of their statements. We do not find any force in the said submission. The Supreme Court in a long line of decisions has considered the issue when a family member's statement can be relied upon. The Supreme Court has held that a statement of family member cannot be discarded on the ground that he is closely related to the deceased because family member will never spare the real victim. In the case of S. Sudershan Reddy and others v. State of A.P.12 the Supreme Court quoted with approval the observation of Justice Vivian Bose in Dalip Singh v. State of Punjab13 in the following terms:
"15. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh case in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed : (SCR pp. 151-52) "We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan14. We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel."
Even if the statements of PW-3 and PW-4 are discarded, we find that statements of PW-1 and PW-2 inspire complete confidence and they are trustworthy. Their statements are natural. As regards some minor contradictions pointed out by learned counsel for the appellants in respect of the inconsistency and omission regarding towel and shoes, which were found on the spot, and regarding the recovery of katta, which was lying on the spot, we do not find that the said inconsistency or discrepancy has any significance. The minor inconsistency has to be ignored when substantive part of the statement is found to be trustworthy.
Moreover, PW-1 is a 80 years' old illiterate lady and comes from the rural background. PW-2 is a child witness. While appreciating the evidence of a witness, who comes from rural background, the principle laid down by the Supreme Court in the case of Shivaji Sahabrao Bobade and another v. State of Maharashtra15 has to be kept in the mind. Justice V.R. Krishna Iyer (as he then was) in the aforesaid case speaking for Bench has lucidly laid down the law in the following terms:
"8. Now to the facts. The scene of murder is rural, the witnesses to the case are rustics and so their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered..."
Bearing the aforesaid principle in the mind, we find that the statements of PW-1 and PW-2 alone are sufficient to prove the guilt of the accused persons even if we discard the evidence of PW-3 and PW-4, although we are not satisfied with the submission of learned counsel for the appellants to discard their evidence for the reasons mentioned above.
For the reasons recorded above, we find that the trial Court has considered all the evidences on the record in proper perspective. Learned counsel for the appellants except pointing out some minor inconsistencies in the statements of the eye witnesses could not assail successfully the findings recorded by the trial Court. We have carefully gone through the findings of the trial Court and are satisfied that the trial Court has appreciated all the evidences on the record correctly and its findings do not suffer from any error which warrants interference in this appeal. Accordingly, we affirm the findings of the trial Court and are of the view that the prosecution has established its case for the commission of the offence by all the accused persons punishable under Section 302 IPC read with Section 34 IPC. Hence, we affirm conviction of the appellant nos. 2 and 4, namely, Banarasi Yadav and Shiv Nath Yadav respectively. Accordingly, the appeal in respect of appellant nos. 2 and 4 being devoid of merit is liable to be dismissed and is hereby dismissed.
Insofar as appellant nos. 1 and 3, namely, Ram Subhag Yadav and Ram Narain Yadav are concerned, they have died and the appeal in their respect has already been abated by this Court vide order dated 14th September, 2007 and 08th February, 2017 respectively.
The surviving appellant nos. 2 and 4, who are on bail, shall be taken into custody forthwith and be sent to jail for serving out remaining part of sentence. Their bail bonds stand cancelled and sureties are discharged.
Let a copy of this order be sent to the trial Court concerned for intimation and necessary follow up action.
Order Date :- 05th October, 2018 SKT/-