Allahabad High Court
Ved Ram And Ors. vs State Of U.P. on 25 March, 2004
Equivalent citations: 2004CRILJ3573
Author: M.C. Jain
Bench: M.C. Jain, Ghanshyam Dass
JUDGMENT M.C. Jain, J.
1. Nine persons were put to trial in Sessions Trial No. 422 of 1979 before the Additional Sessions Judge, Bareilly. They were Ved Ram, Kishan Lal, Tundi, Siya Ram, Niranjan, Chhatrapal, Dal Chand, Rampal and Dharampal. The last two Rampal and Dharampal are real brothers being the sons of Punni. The appellants were tried for the double murder of Chet Ram and his brother Raghu Nath. The trial Court found them guilty of the offence under Section 302 read with Section 149, I.P.C. and sentenced each of them to life imprisonment. Chhatrapal, Dalchand, Rampal and Dharampal were also convicted under Section 147, I.P.C. and sentenced to rigorous imprisonment for one year. The remaining five, namely, Ved Ram, Kishan Lal, Tundi Siva Ram and Niranjan were convicted for the offence of rioting under Section 148, I.P.C. and each sentenced to 11/2 years rigorous imprisonment. All the sentences were ordered to run concurrently by the judgment dated 27th Feb. 1981 which is impugned in this appeal.
2. The occurrence had taken place on 19-7-1979 between 8 a.m. and 9.30 a.m. in village Shivpuri, Police Station Sirauli, District Bareilly and the F.I.R. was lodged the same day at 3.15 pm. by Jhamman Lal (brother of deceased) PW 1, an eyewitness. The distance of the Police Station from the place of occurrence was about 6 Kms. The occurrence occurred in two parts. In the first part, Chetram was murdered and the murder of Raghunath took place in the second part of the incident. The two murders were committed in the chain of the same transaction.
3. The broad essentials of the prosecution case as per the F.I.R. and the evidence adduced in the Court may be noted. Ved Ram, Kishan Lal and Tundi were allegedly armed with Gandasa, Siya Ram and Niranjan each was armed with spear and the rest had lathis, Sukhdei mother of the appellant Ved Ram was living with the deceased Chetram for the last 15-16 years as his wife. Jhamman Lal PW 1 filed a case against the accused Dal Chand, Siya Ram Nathoo and others for their having encroached upon his agricultural land. Mihi Lal father of the accused Dal Chand had filed a case against Jhamman Lal P.W. 1 and his deceased brothers Chet Ram and Raghunath as also one Mangali in connection with the fracture of wrist. 21-7-1979 was the date fixed for the hearing of that case. The accused Kishan Lal had filed a complaint against Jhamman Lal P.W. 1 and Raghunath for committing mischief by arson but the same resulted in acquittal. For the said reasons, the accused harboured enmity against Jhamman Lal P.W. 1 and his brothers.
4. On the fateful day at about 8 a.m. the deceased Chet Ram was returning to his house after purchasing Gur from the shop of Akhtar Maulana D.W. 1 Jhamman Lal P.W. 1 and his relatives Nanki and Ram Bharose were going to the Chakki of Kishore Nandan. Reaching near the Baithak, of Sukkhi they saw that the accused persons, variously, armed as stated above, started assaulting Chet Ram when he reached in front of the house of Punni. On the shrieks of Chet Ram and others, Naval Kishore P.W. 3, Makkhan, Prem Shankar P.W. 4 and Sunder also reached there and raised shouts. However, the accused persons ran away after killing Chet Ram.
5. Jhamman Lal P.W. 1 planning to arrange a bullockcart when at about 9 a.m. Bhikam P.W. 2 arrived there and informed him that his brother Raghunath had also been killed b the accused persons in his field Jhamman Lal P.W. 1 left some villagers by the side of the dead body of the Chet Ram. He Ram Bharosey, Nanki and others reached the place where Raghunath had been assaulted. They found him badly injured but alive. He put Raghunath in a bullockcart belonging to Bihari to take him, for medical treatment. When the bullockcart reached the field of Sukkhi, Raghunath also died of the injuries caused to him. Chhiddan Chaukidar also reached there. Jhamman Lal P.W. 1 got the report scribed by Baisakhi Lal and sent Chiddan to lodged the report at the Police Station. A case was registered. Investigation was taken up by S.I. S. N. Pandey P. W. 8. He reached the place of occurrence with the Chauildar Chhiddan and prepared the inquest reports of the two deads. He also took in possession the plain and blood stained earth from the spots where Chet Ram and Raghunath had been assaulted and did other activities related to the investigation. The two dead bodies were sealed and sent for post mortem examination.
6. Autopsy on the dead bodies of Raghunath and Chet Ram was conducted by Dr. P.K. Bass P.W. 5 on 20-7-1979 at 4.45 p.m. and 5.15 p.m. respectively. Raghunath was aged about 30 years and about 11/2 days had passed since he died. The following ante-mortem injuries were found on his person :
1. Lacerated wound 4 cm x 1 cm x scalp on left side head, 6 cm above left ear.
2. Lacerated wound 6 cm x 3 cm x muscle deep on the outer aspect of left arm.
3. Punctured wound 1.5 cm x 5 cm x muscle deep on lateral aspect and left upper arm, 1 cm above injury No. 2.
4. Contusions 10 cm x 8 cm on left shoulder top and back aspect.
5. Punctured wound 1.5 cm x 1 cm on back of left forearm, 6 cm below elbow.
6. Punctured wound 2 cm x 1 cm x bone deep on back and outer aspect of left forearm, with fracture of radius lower end.
7. Abraded contusions 10 cm x 6 cm on outer aspect of right forearm 6 cm above wrist with fracture of both bones underneath.
8. Abraded contusion 4 cm x 3 cm on outer aspect of right arm in middle.
9. Punctured wound 2 cm x 1 cm x muscle deep on outer aspect of right upper arm, 3 cm above elbow joint.
10. Abraded contusions 10 cm. x 6 cm on back and top of right shoulder.
11. Contusion 8 cm x 6 cm on the left side back 6 cm below scapular region.
7. As per the Doctor, the death of Raghunath could have occurred on 19-7-1979 between 8.30 a.m. and 9.30 a.m. and the ante-mortem injuries sustained by him were sufficient to cause death in ordinary course of nature. The punctured wound sustained by him could be caused by spear and other injuries by lathis or by Gandasa used from blunt side.
8. Chet Ram was aged about 40 years and 11/2 days had passed since his death. The following ante-mortem injuries were found on his person :
1. Lacerated wound 2 cm x 1 cm x scalp on right side head 10 cm above right ear.
2. Contusions 6 cm x 4 cm on outer aspect of right forearm, 2 cm above wrist joint.
3. Contused abrasion in an area of 8 cm x 4 cm on right side back, 10 cm above sacrum.
4. Abraded contusion 4 cm x 2 cm on left buttock upper part.
5. Contusions 15 cm x 8 cm on left up-per arm middle part with fracture of underlying bone.
6. Multiple abraided contusions in an area of 10 cm x 6 cm on the back of left elbow joint.
7. Incised wound 2 cm x 1 cm x muscle deep in front of right knee.
8. Incised wound irregular 14 cm x 4 cm bone deep all around right legs, lower part.
9. Incised wound 6 cm. x 2 cm x bone deep on inner aspect of front leg 3 cm above injury No. 8.
10. Incised wound 7 cm x 2 cm x bone deep on left knee inner side patella cut.
11. Incised wound 2.5 cm x 1 cm x muscle deep on front and left leg 8 cm below knee joint.
12. Incised wound 8 cm x 1 cm x muscle deep, 3 cm below injury No. 11.
13. Three parallel incised wounds in an area of 9 cm x 6 cm on lateral aspect of left leg 7 cm below injury No. 12, average size 4 cm x 2 cm and 2 cm x muscle deep.
14. Contusion 10 cm x 6 cm over joint of chest and middle.
9. For him also, the opinion of the Doctor was that ante-mortem injuries sustained by him were sufficient in ordinary course of nature to cause death. His death could also have occurred between 8.30 a.m. and 9.30 am. on 19-7-1979. The incised wounds sustained by him could be caused by Gandasa and the remaining injuries by lathi or spear used from the blunt side.
10. The defence was of denial and of false implication.
11. The prosecution relied upon the testimony of eyewitnesses Jhamman Lal P.W. 1, Bhikam P.W. 2, Naval Kishore P.W. 3 and Prem Shankar P.W. 4 son of Chet Ram deceased together with medical evidence and of other formal nature the including that which related to investigation.
12. Three witnesses, namely, Akhtar Maula D.W. 1, Sunder Lal D.W. 2 and Ram Charan Lal D.W. 3 were examined in defence also. The first one came to say that he did not deal in Gur. Obviously , he was produced to refute the prosecution case that Chet Ram at the relevant time had gone to purchase Gur from the shop of this witness. Sunder Lal D.W. 2 came to say that he had seen the two bodies at 6 a.m. The purpose of his production was an attempt to make dent in the prosecution case that the two murders occurred between the 8 a.m. and 9.30 a.m. Ram Charan Lal DW 3 stated that he saw the two dead bodies at about 9 a.m. He gave negative evidence that the murder of Chet Ram did not take place at the site alleged by the prosecution.
13. Since the evidence of the prosecution found favour with the trial Judge, he recorded the impugned judgment.
14. We have heard Sri A.B.L. Gaur learned counsel for the appellants and Sri A.K. Dwivedi, learned A.G.A. from the side of the State in opposition. The record of the case has been summoned before us which we have carefully perused. The impugned judgment is assailed from the side of the appellants through several arguments which we intend to deal with in the succeeding discussion. On the other hand, the learned A.G.A. supports the same on the lines of reasoning adopted by the trial Judge.
15. It should be stated before proceeding further that the appellants Siya Ram and Tundi died during the pendency of the appeal. The same accordingly abated in respect of the former under order dated 17-9-2003 and in respect of the latter under order dated 19-2-2004. This appellant Court is, therefore, presently concerned with the remaining seven appellants.
16. As stated earlier, the incident occurred in two parts and in the first part, Chet Ram was murdered and in the second one, his brother Raghunath was murdered at some distance at his plot where he was engaged in agricultural operations in the form of digging the field. For proper appreciation , the gist of the testimony of eye witnesses of the two murders may bet set forth. For the murder of Chet Ram taking place in the first part of the incident, the prosecution relied on the testimony of Chet Ram's brother Jhamman Lal P.W. 1 informant, Naval Kishore P.W. 3 and Chet Ram's son Prem Shanker P.W. 4 aged about 9-10 years. Bhikam P.W. 2 is the sole witness of the murder of Raghunath, taking place in the second part of the incident. Apart from speaking about the background of earlier enmity with some of the accused appellants related earlier, Jhamman Lal P.W. 1 stated that on the fateful day at about 8 a.m. the deceased Chet Ram had gone to purchase Gur from the shop of Akhtar Maulana. He himself along with Nanki and Ram Bharosey was going to the Chakki of Kishore Nandan and when he reached in front of the Baithak of Sukkhi, he saw his brother Chet Ram returning from the shop of Akhtar Maulana. Naming all the nine accused with their weapons (as mentioned in the earlier part of the judgment), he deposed that they started assaulting Chet Ram with their weapons. On his shouts and those of Naval Kishore, Makkhan, Prem Shankar, Sunder and others rushing to the spot, the accused persons ran away after killing Chet Ram. The accused Kishan Lal was also allegedly exhorting others that Chet Ram should not be left alive. When he reached near Chet Ram, he found him dead. He was making preparation to arrange for a bullockcart when Bhikam P.W. 2 arrived at about 9 a.m. and informed him that his brother Raghunath had also been killed by the accused persons. The witness also stated that his deceased brother Raghunath had gone to work at the field at about 7 a.m. He Ram Bharose, Nanki and others went to the field where Raghunath was lying. He was found injured but alive. When he was taking Raghunath in the bullockcart of Bihari, he also expired in the field of Sukkhi. Then his dead body was put on a cot. Chhiddan Chaukidar also happened to come there. He got the report scribed by Baisakhi and made it over to Chaukidar to take it to the Police Station.
17. Naval Kishore P.W. 3 and Prem Shankar P.W. 4 are also named in the F.I.R. as eye witnesses of the murder of Chet Ram. The house of Naval Kishore was situated, at a distance of 200-250 paces from the place of the murder of Chet Ram, 7-8 houses intervening in between. He stated that at about 8 a.m. that day he was going to the market of Hardaspur for selling millet. Hardaspur was at a distance of 5-6 Kms. from his village. He heard shrieks emanating from the side of the Chaupal of Sukkhi. He rushed to that side and found Jhamman Lal, Nanki and one more present there raising hue and cry. He also saw that Ram Pal, Niranjan, Dharam Pal, Chhatrapal, Tundi, Kishan Lal, Siya Ram, Ved Ram and one more person (whose name he did not remember) were assaulting Chet Ram in front of the door of Punni (father of accused Rani, Pal and Dharam Pal). It would be noted that he did not name Dal Chand accused. It is further to be noted that he named Ram Pal as being armed with Gandasa, who according to Jhamman Lal P.W. 1 was armed with lathi. Then he stated that three of the assailants were armed with Gandasa, four had lathis and two had spears. After assaulting Chet Ram, the assailants ran away.
18. About this incident taking place on 19-7-1979, Prem Shankar P.W. 4 son of Chet Ram was examined in Court on 10-12-1980. The trial Judge recorded his age as 9-10 years. According to him, at about 8 a.m. on the fateful day, he was grazing his buffaloes in the field of Sukkhi when he heard the shrieks of this uncle Jhamman Lal P.W. 1, Ram Bharose and Nanki from in front of the Baithak of Sukkhi. He rushed to that side and found his father Chet Ram being assaulted by Ved Ram, Kishan Lal and Tundi by Gandasa, by Siya Ram and Niranjan by spears and by Ram Pal, Dharam Pal, Chand and Chhatrapal by lathis. According to him, Kishan Lal was also saying that Chet Ram should not be left alive.
19. Bhikam P.W. 2 -- witness of the murder of Raghunath taking place in the second part of the incident, stated that at about 9 a.m. on the fateful day, he was ploughing the land belonging to Jhamman Lal whereof he was the Bataidar (a person cultivating the field of other on oral contract of taking half of the agricultural produce). He saw that Ved Ram, Kishan Lal, Tundi and Ram Pal armed with Gandasa, Niranjan and Siya Ram armed with spears. He also deposed that Ram Pal, Dal Chand, Chhatrapal and Dharam Pal armed with lathis reached there and assaulted Raghunath who was working on his field. When he raised shouts, the accused persons also rushed up to assault him and then ran away towards northern side. Raghunath was alive by then. He went to call Jhamman Lal and learnt that Chet Ram had also been murdered. He informed Jhamman Lal about the assault by the accused persons on Raghunath in the field in his presence. Jhamman Lal P.W. 1, Ram Bharose, Nanki and other villagers accompanied him to the field where Raghunath was assaulted. Raghunath was put in the bullock cart of Bihari, but while being so earned he died near the field of Sukkhi.
20. On appraisal of oral testimony of the eye-witnesses, we find that the ocular version is not consistent with regard to the accused appellants Ved Ram, Dal Chand and Ram Pal. As to Ved Ram, Naval Kishore P.W. 3 did not say that he was armed with Gandasa, Dal Chand was not named by him at all. About Ram Pal his statement was that he was armed with Gandasa. Bhikam P.W. 2 (witness of the murder of Raghunath) stated that Ved Ram, Kishan Lal, Tundi and Ram Pal were armed with Gandasa. Then he contradicted himself by saying that Ram Pal was also armed with lathi. It does not stand to reason that one person would have been armed with both such weapons. The point of the matter is that an element of doubt is created as to the participation of these three accused appellants, namely, Ved Ram, Dal Chand and Ram Pal because of the inconsistency as regards them, surfacing from the judicial scrutiny of the testimony of the eye witnesses. It is common knowledge that at times there is tendency on the part of the prosecution to exaggerate the guilt of other side and also to implicate persons thought to be sympathizers belonging to the party of real assailants. As to the participation of these three accused appellants, actual and substantial doubt arises from the testimony of eye witnesses. It is a fair doubt based upon reason and common sense growing out of the evidence itself adduced by the prosecution. Therefore, the benefit of doubt shall accrue to them.
21. So far as Prem Shankar P.W. 4 son of Chet Ram deceased is concerned, he must have been aged only about 8 years at the time of the incident. It cannot be accepted with certainty that such an infant would have been grazing buffaloes at the time of the incident at about 8 a.m. He contradicted himself in his cross-examination by saying that he reached the place of occurrence and then to this house and found Jhamman Lal to be present there. According to him, he started weeping. When the defence counsel asked him whether Jhamman Lal inquired from him as to why he was weeping the witness kept quiet. He did not answer the questions properly put to him in his cross-examination. His statement was confusing and incapable of inspiring judicial confidence. In our opinion, the trial Judge rightly rejected and ignored his testimony and judged the case independently sans his testimony. Anything stated by him which is simply a confused statement cannot be interpreted either for or against the prosecution.
22. It has been argued by the learned counsel for the appellants that the scribe of the F.I.R. was Baisakhi Lal -- Bahnoi of Jhamman Lal P.W. 1 , who was resident of another village Parota situated at a distance of about 5 Kms., and it has not been explained as to how he happened to be in the village of incident. In our opinion, it is wholly irrelevant for two reasons. Firstly, Jhamman Lal P.W. 1 was not questioned in his cross examination as to how Baisakhi was there in his village at that time. There is nothing surprising if he happened to be present in his Sasural on the fateful day. Secondly Baisakhi is not an eye-witness and there is no requirement of law that the F.I.R. has to be scribed by a particular person. We, therefore, reject this argument.
23. It has next been argued that Akhtar Maulana DW 1 denied that he used to vend Gur and he also stated that on that day, Chet Ram did not come to him to make any purchases. According to him, at about 9 a. m. He saw the dead bodies being taken away. It has also been urged that no piece of Gur was found nearby the dead body of Chet Ram. The submission of the learned counsel for the appellants is that it belied the prosecution story that he was returning after purchasing Gur from the shop of Akhtar Maulana. We have not the slightest doubt that Akhtar Maulana made a false statement at the behest of the accused appellants to help them and it is clear by his own showing. The report itself having been lodged at 3.15 p. m. there could hardly be any question of dead bodies of two murdered persons being carried away at about 9 a. m. that day. Moreover, he sated that he used to vend only Biri, cigarette, turmeric etc. We cannot appreciate that though selling turmeric, he did hot vend Gur a commodity of common use in villages. He had a Parchun (Provisional Store) shop and cannot be believed to be not dealing in Gur and other articles of daily use. Chet Ram is not alive to say as to how much Gur he had purchased. After the incident, Gur could have fallen about, losing its identity for recovery by the Investigating Officer when he visited the spot. Naturally, a number of villagers must have thronged the place where the murder had taken place and the dead body was lying. Another possibility, is that he could have consumed the same just after purchasing it.
24. The next argument is that the F.I.R. is delayed one. It would be recalled that the F.I.R. was lodged at the Police Station on the day of incident at 3.15 p.m. the two murders having taken place on the fateful day between 8 a.m. and 9.30. The distance of Police Station from the scene of village was about 6 Kms. Our attention has been drawn to the testimony of Jhamman Lal P.W. 1. After placing the dead body of Raghunath on a cot in the field of Sukkhi, he got the report scribed by Baisakhi and made it over to Chaukidar to fetch it to the Police Station. It has been reasoned that he must have done so as little after 9.30 a. m. and as such, the lodging of the F.I.R. at 3.15 p. m. is delayed one. The argument does not carry conviction. In our opinion, the F.I.R. is not at all delayed. Being grief stricken, neither he nor any other members of his family had accompanied the Chaukidar to the Police Station. The clear statement of Jhamman Lal P.W. 1 is, that the report had been taken by the Chaukidar to the Police Station on foot. He could not be expected to run to the Police Station to lodged the F.I.R. at storm speed. Actually, there is no delay in the lodging of the F.I.R.
25. It has next been criticized that Jhamman Lal P.W. 1 was an interested witness whereas Naval Kishore P.W. 3 was no better than a chance witness. True, Jhamman Lal P.W. 1 is the own brother of the two deceased, but that does not justify throwing away of his testimony over board. Naval Kishore P.W. 3 can also not be termed to be a chance witness. He well explained his presence at the spot that he had heard shrieks emanating from the side of Chaupal of Sukkhi and he rushed towards that side, reaching the scene of occurrence and witnessing the incident. The resident of the same village residing nearby the scene of incident cannot be termed to be a chance witness. He had no animus either to depose falsely against the accused appellants. Jhamman Lal P.W. 1 and Naval Kishore P.W. 3 withstood the test of cross examination firmly and their testimony against the accused appellants is firm having the ring of truth excepting to the extent that the deposition of Naval Kishore P.W. 3 is not consistent with that of Jhamman Lal P.W. 1 with regard to Ved Ram, Dal Chand and Ram Pal. We have already recorded above that the concerned accused appellants would be afforded the benefit of doubt.
26. Another argument of the learned counsel for the appellants is that Bhikam. P.W. 2 -- the witness of murder of Raghunath was also an interested witness being Bataidar of Jhamman Lal. In our view, this factum alone does not justify jumping to the conclusion that he deposed falsely in favour of the prosecution. It has to be placed on record that he has no animus with the accused appellants. Yet another submission of the learned counsel for the appellants is that he did not show to the Investigating Officer the place wherefrom he saw the incident of murderous assault on Raghunath. True, the Investigating Officer did not show in the site plan the place from where this witness witnessed the incident but because of this lapse or mischief on the part of the Investigating-Officer, his presence there cannot be doubted. His emphatic statement is that at the relevant time he was ploughing the field of Jhamman which he had taken on Batai. It was adjacent to the field which was being dug by Raghunath. Jhamman Lal P.W. 1 also spoke about his field being adjacent to that of Raghunath. Existence of the plot of Jhamman Lal adjacent to that of Raghunath was not even challenged either in the cross examination of Jhamman Lal P.W. 1 or Bhikam P.W. 2.
27. It has also been argued by the learned counsel for the appellants that no blood was found on the Larhia (bullock-cart) on which Raghunath was allegedly being taken from the field of incident before being placed on a cot in the field of Sukkhi, having expired. We do not think that it is of any importance. The body of Raghunath having been wrapped in a bedspread (Kathari) and placed on the bullock-cart, it was not surprising if the blood was absorbed by Kathari and did not percolate on the Larhia.
28. Yet another argument is that it has been admitted by Jhamman Lal P.W. 1 that Chet Ram was an accused in the murder of Durjan Pradhan and he might have been killed by his other enemies. The argument is built on imagination and cannot overshadow overwhelming ocular evidence produced in the case which we find to be perfectly believable in respect of accused appellants other than Ved Ram, Dal Chand and Ram Pal.
29. Learned counsel for the appellants then argued that though Siya Ram and Niranjan were allegedly armed with spears, but Chet Ram did not receive any puncture wound. Despite three of the assailants being allegedly armed with Gandasas, Raghunath did not sustain any incised wound. According to him, it belied the prosecution version. It has to be kept in mind that Chet Ram had received in all 14 injuries and Raghunath had received 11 injuries. As per the prosecution, there were nine assailants but giving margin for three to whom we are inclined to afford benefit of doubt because of inconsistency in evidence, there were six assailants. Out of them two were armed with Gandasas, two had Bhalas and remaining three had lathis. Out of them, Tundi who had Gandasa and Siya Ram who had Bhala died. Taken cumulatively, the two deceased received injuries of all such weapons i.e., Gandasa, spear and lathi. When a number of persons variously armed attack a victim, it is not possible or necessary for all of them to give individual blow to the target. Some of them assume the role of preventing the escape of the victim while others render blows. It has to be kept in mind that several persons (accused) had targeted a single victim at a time. Moreover, in such an attack when assailants are several persons and the victim, is one, it is not possible to use the weapons in a defined fashion so as to make their natural use only. It is there in the evidence of Dr. P.K. Bass P.W. 5 that Raghunath could have sustained injuries as a result of strike of blunt side of Gandasa and Chet Ram could also have received injuries as a result of strike from blunt side of spear on his body. Therefore, no point is gained by the accused appellants on the above count.
30. Last argument from the side of the accused appellants is built on the stomach contents of the deceased. Partially digested food was found in the stomach of Chet Ram and Raghunath at the time of their post mortem examination and the statement of Doctor4s that they must have taken food 2-3 hours before their death. It has been contended that they would not have taken food at about 4 or 5 a.m. and their stomach contents indicated that the incident took place sometime in the night. Suffice it to say in this regard that stomach contents are not sure sign to probabilise the time of death. Further, both the deceased were villagers and it is not uncommon amongst them to take chapatis cooked the previous night in the early hours before going to work. Raghunath was murdered at about 9 or 9.30 a.m. while Chet Ram was murdered at about 8 or 8.30 a.m. It was the month of July, Villagers or labourers doing hard physical work usually take stale food in the early hours of the day before going out to work. Their routine is unlike the elite segment of the urban society.
31. Negative evidence of Sunder Lal D.W. 2 was of no avail that he did not see the appellants assaulting Chet Ram. His falsehoodness was apparent from this version that at about 9 or 9.30 a.m. Daroga was carrying both the dead bodies on cart on the day when he had allegedly seen the two dead bodies in the field of Durjan at about 6 a.m. The F.I.R. itself having been lodged at 3.15 p.m. there could be no question of the dead bodies being carried by Daroga between 9 and 9.30 a.m. The negative evidence of Ram Charan Lal DW-3 was equally meaningless.
32. Both the victims died as a result of application of violence to them through various weapons wielded by the accused appellants, as discussed hereinabove. It is perfectly borne out from the postmortem reports. The Investigating Officer had found sufficient blood at the point where the dead body of Chet Ram was lying outside the door of Punni. He had also found blood at point 'A' in the field where Raghunath was assaulted. Thus, there was physical evidence also as to the site of two murders, corroborating the ocular testimony.
33. Though the places of the two incidents were divided by half a mile, but the two murders were part of the same transaction.
34. In conclusion, on threadbare analysis and judicial appraisal of the evidence adduced at the trial, we are in judgment that the benefit of doubt is to be afforded to the accused-appellants Ved Ram, Dal Chand and Ram Pal as the evidence against them is not firm and consistent. In respect of the remaining six (out of whom Tundi and Siya Ram have died), the evidence is firm, clinching and conclusive that they formed an unlawful assembly, variously armed, to murder the two brothers and committed such murders in prosecution of the common object of unlawful assembly. Their conviction with sentence of life imprisonment under Section 302 read with Section 149, IPC is to be upheld. Further, the conviction of Kishan Lal and Niranjan under Section 148, I.P.C. with sentence of 11/2 years rigorous imprisonment, and that of the remaining two namely, Chhatrapal and Dharam Pal under Section 147, I.P.C. with imprisonment of one year rigorous imprisonment is also to be sustained.
35. Accordingly, we partly allow this appeal. We set aside the conviction and sentence passed against the accused-appellants Ved Ram, Dal Chand and Ram Pal.
36. The appeal stands abated in respect of appellants Tundi and Siya Ram.
37. We uphold the conviction and sentences passed against the accused-appellants Kishan Lal, Niranjan, Chhatrapal and Dharampal. The appeal in respect of them is dismissed. They are on bail. Chief Judicial Magistrate, Bareilly shall cause them to be arrested and lodged in jail to serve out the sentences passed against them.
38. The judgment be certified to the lower Court and compliance be reported to this Court within two months from the date of receipt of a copy of this order along with the record which shall be sent to the Court below forthwith.