Allahabad High Court
State Of U.P. vs Bashisht Rai Son Of Deonath Rai And Ors. on 17 August, 2005
Author: M.C. Jain
Bench: M.C. Jain, M. Chaudhary
JUDGMENT M.C. Jain, J.
1. Eight persons were tried before the II Additional Sessions Judge, Ghazipur in Sessions Trial No.215 of 1979. They were (1) Bashisht Rai, (2) Jai Prakash Rai, (3) Ashok Rai, (4) Awadh Narain Rai, (5) Hirdaya Narain Rai, (6) Umesh Chandra Rai alias Jangali Rai, (7) Loknath Rai and (8) Ramnath Rai. The charges against the accused Bashisht Rai were under Sections 148, 302 and 449 I.P.C. Accused Umesh Chandra Rai alias Jangali Rai and Ashok Rai were charged under Sections 148, 449 and 302 read with Section 149 I.P.C. The remaining five accused were charged under Sections 147 and 302 read with Section 149 I.P.C. Accused Umesh Chandra Rai alia.-. Jangali Rai and Ashok Rai were also alternatively charged under Section 302 I.P.C. read with Section 34 I.P.C.
2. Only accused Umesh Chandra Rai alias Jangali Rai was convicted under Section 302 I.P.C. read with Sections 34 I.P.C. and 449 I.P.C. He was sentenced to undergo life imprisonment on both the counts and sentences were directed to run concurrently. The remaining accused were acquitted. Aggrieved, the State has filed the instant appeal against acquittal in which Umesh Chandra Rai alias Jangali Rai has also wrongly been impleaded as respondent no.6, though he was convicted as stated earlier. In fact, he filed Criminal Appeal No.832 of 1981 against his conviction. However, he died during the pendency of the appeal and the same abated on 5.7.2005. Therefore, presently the court is concerned with the remaining seven accused who were acquitted by the trial court.
3. The incident took place in between the night of 26/27.6.1979 at about 1 or 2 O' clock in village Tarwa, P.S. Muhamdabad, District Ghazipur. The distance of the place of incident from the police station was about one mile. The report was lodged on the same night at about 2.45 A.M. by Kamla Rai brother of the deceased Kailash Rai. All the accused were named in the F.I.R.
4. The broad features of the prosecution case as coming to surface from the F.I.R. and evidence adduced in the court may be noted. The accused, deceased Kailash Rai, the informant Kamla Rai and the witnesses of the incident were living in village Tarwa. All the accused, excepting Umesh Chandra Rai alias Jangali Rai, belonged to one family being descendants of a common ancestor Deepan Rai. Accused Umesh Chandra Rai alias Jangali Rai in this connection whreby the deceased and Kamla Rai informant P.W 1). The deceased Kailash Rai and other members of his family lived jointly while Babu Lal and his son Jangali Rai had separated 7-8 months before the occurrence by means of an oral partition. The land of village Dhondhapur was allotted to Babu Lal and his son while the remaining members of the family got the land of village Tarwa and other villages in Ghazipur. The family also had some land in Lakhimpur Kheri which was partitioned between them. Ram Janam Ral, Bachchu Lal and Hira Lal used to look after the cultivation of the land in Lakhimpur Kheri belonging to the branch of the informant Kamla Rai. Babu Lal used to look after his share.of the land there. Kailash Rai deceased was the Karta of his family as regards the cultivation of the land in village Tarwa. About a month after the partition, Jangali Rai who used to stay at Ghazipur started quarreling. He insisted that he should be given the land near the pumping set of village Tandwa according to his share. His father Babu Lal was, however, not agreeable to it. An altercation took place between Kailash Rai and accused Umesh Chandra Rai alias Jangali Rai in this connection whereby the deceased firmly told the accused Jangali Rai that the land of village Tandawa would not be given to him. After this altercation, Jangali Rai developed intimacy with the accused Loknath Rai who had a personal enmity with the informant Kamla Rai PW 1. Loknath Rai and Kamla Rai were litigating also -on civil as well as criminal sides. There had been a Marpit between the two sides.
5. The informant Kamla Rai PW 1 and his family owned a house for females besides an Ahata in the north with two rooms. There was a Verandah in front of those rooms. The bullocks were U'thered in the Ahata. The family also had a Baithaka in the east of Ahata situate in the north of the females house. The Sehan of Kamla Rai and others was in the north of Baithaka aforesaid. The Baithaka and Ahata were connected with the house meant for females through doors. The house of the accused Loknath was in its south after the house of Triveni Rai and passage. The other accused of his family lived in that house. In the north of Ahata, the house of Deenanath Rai existed. It had its door towards the east. The criminal complaint filed by the accused Kamla Rai PW 1 against the accused Loknath Rai and others was listed for hearing on 26.6.1979. The arguments were heard and a date was fixed for judgment. While Kamla Rai was returning home, Deenanath Rai, Loknath Rai and Bashisht Rai threatened him to see him and also gave threats about his life and property.
6. In between the fateful night, the family members of the complainant went to sleep as usual. Kamla Rai, Shriram Rai, Gorakh Rai, Munna Lal and children were sleeping in the Sehan in the north of the Baithaka. The ladies were sleeping inside the Zanana house. Kailash Rai deceased and his wife Smt. Bijula Devi PW 4 were sleeping on a cot inside the Ahata. At about 1-2 O1 clock in the night, the accused Ashok Rai, Umesh Chandra Rai alias Jangali Rai and Bashisht Rai came in the Ahata by climbing over the roof through the window and coming down inside. The accused Bashisht Rai was armed with Dao (cutting weapon); accused Jangali Rai had a Gandasa and accused Ashok Rai was armed with a sword. As the accused Ashok Rai tightly closed the mouth of Smt. Bijula Devi PW 4, she awoke. She saw the accused Jangali Rai pressing down the head of the deceased Kailash Rai (her husband) and accused Bashisht Rai cutting the throat of her husband by means of Dao. Her husband started moving his body restlessly and he also received two injuries on his chest. Thereafter, all the three accused started running away. She raised alarm and flashed the torch by the time these accused could reach the gate. They saw towards her. She continued weeping and these accused went out the Ahata through the door opening towards the Verandah of the aforesaid Baithaka. Kamal Rai PW 1, Shriram Rai and others who were sleeping outside in the Sehan awoke by the cries raised by Smt. Bijula Devi. Kamla Rai and Shriram had torches which they flashed, towards the door through which the accused Jangali, Bashisht Rai and Ashok Rai were coming out. They saw Bashisht Rai armed with Dao; Ashok Rai with a sword and Jangali Rai with a Gandasa. The clothes of Bashisht Rai were blood stained. These accused were challenged by Kamla Rai and others but they continued running after the Sehan of the complainant towards south. When they turned south-ward, 5-7 persons who were standing there from before joined them. They were accused Loknath, Ramnath, Awadh Narain Rai, Jai Prakash Rai and Hirdaya Narain Rai besides 1-2 other persons who could not be recognized. All of them ran towards south. The complainant Kamla Rai and Shriram Rai raised alarm attracting Deenanath Rai, Kedar Rai PW 2 and others. Ram Babu also came in the complainant's Sehan from the south. Chandrama Rai arrived from the west. They had torches and they also saw the accused running away. The accused were chased for 10-12 paces but could not be apprehended. After the accused made their escape good, Kamla Rai came in the Ahata and found Kailash Rai dead near his cot with a cut throat injury. Bijula Devi was found crying and weeping and her clothes were blood stained. She narrated the incident seen by her to him. He returned back to his sehan darwaza and dictated the report to Ram Babu. He took it to P.S. Mohamdabad where he lodged the same at about 2.45 A.M. the same night. The check F.I.R. was prepared on its basis and entry was made in the G.D. by H.C. Haridwar Rai PW 5. The investigation was taken up by S.I. Sheomurti Singh PW 7 in whose presence the report was lodged. He recorded the statement of Kamla Rai and left for the place of occurrence along with,. S.I. Jafari and the police personnel. He busied himself in the investigation of the case, preparing Panchayatnama and other necessary papers. The blood stained and simple earth were collected from the spot and sealed separately. The dead body was sealed and sent through Constables Hausla Prasad Upadhyay and Ram Adhar to the headquarters for post-mortem examination along with relevant papers. The post-mortem was conducted by Dr Virendra Srivastava PW 6 on 27.6.1979 at 5 P.M. The deceased was aged about 30 years and about % day had passed since he died. The following ante-mortem injuries were found on his person:
1. One incised wound on right side of neck in the middle measuring 15 cm x 4 cm, horizontally placed extending from anterior aspect of neck up to posterior aspect of right side with retracted skin in the middle, clear cut margins, inverted, all major vessels and muscles, trachea, ocsephegens cut upto bone^sprouting of blood present,
2. One incised wound on left side of chest horizontally placed measuring 7 cm x 2 cm spindle shaped, 9 cm above the left nipple, clean cut margins, muscle deep.
3. Incised wound measuring 2 cm x .5 cm on left chest wall horizontally placed, 2 cm medial to injury no.2, clean cut margins, muscle deep.
7. On internal examination, larynx and trachea were found cut. Small and large intestine were semi full. Semi digested food was found in his stomach. The large vessels right side of neck were cut. The ante-mortem injuries caused by sharp weapon produced haemorrfiage and shock resulting in death. As per the opinion of the doctor, the deceased could have died between 1 or 2 A.M. in between the night of 26/27.6.1979 due to the injuries sustained by him and immediately after the injuries were inflicted on him. He was also of the opinion that the neck injury could be caused by Dao (which was produced and proced before the court as Ext.Ka-12).
8. During investigation, the Investigating Officer took in possession the blood stained Saree, Petticoat, Blouse and brassiere of Bijula Devi PW 4 in the presence of Deep Narain Rai PW 3 and Singhasan Rai. They were immediately sealed with the preparation of Fard. He also inspected the torch of Bijula Devi and returned it to her after preparing Fard. He also inspected the torches of Kamla Rai, Deepan Rai, Kedar Rai, Shriram, Chandrama Rai and Ram Babu and returned back the same to them. The torches were found in working order and memos were prepared in this behalf. The blood stained Sujani spread over the cot of the deceased, pillow, one Lewa and undershirt of the deceased found on the cot were taken in police custody. They were found blood stained. Near the cot, the blood stained Sandle had also been found, taken in possession and kept/sealed cover. The Badh and Pati of the cot were also found blood stained and pieces of the same were taken in police custody with the preparation of memo.
8. The Investigating Officer and other police personnel were in search of the accused. He received an information through an informant that some of the accused were present in the house of Lokhnath Rai. He raided the house of Loknath Rai at 1.30 -2.00 P.M. on 27.6.1979 and arrested Loknath Rai, Awadh Narain Rai and Jangali accused in the presence of Deep Narain Rai PW 3. The statements of these accused were recorded after they were arrested. The accused Jangali got recovered Dao (weapon of offence) given to him by Bashisht Rai from the place in the east of the house. It was found blood stained and taken in police custody and memo (Ext. Ka-13) was prepared about it. The recovered weapon was sealed at the spot and site plan of the place of recovery was prepared. The underwear of the accused Jangali Rai was found blood stained. It was taken in police custody and memo (Ext. Ka-14) was prepared. During the course of inspection of the person of the accused Jangali, some blood marks were found on his chest and thigh. These blood marks were shifted on the filter paper Ext. 16 and memo (Ext. Ka-15) was prepared about it. The recovered articles were sealed at the spot.
9. Lungi and underwear of the deceased (Ext. 17 and 18) were brought back from the mortuary by Constable Ram Adhar to the police station. The blood stained articles were sent to chemical examiner for analysis. The chemical examiner and serologist gave reports (Eixt. Ka-29 and Ka-30). The chemical examiner found that all the articles sent were blood stained. The serologist reported that the blood stained earth, sujani, pillow, undershirt, sandle, saree, petticoat, brassiere, underwear and lungi were blood stained and the blood was of 'B' group. The blood on the underwear of the accused, filter paper and Dao was found disintegrated. Ultimately, .the accused were booked for trial.
10. The accused denied the prosecution story and pleaded false implication due to enmity. The accused Bashisht Rai stated that Jangali Rai and Loknath Rai were not on friendly terms. According to him, he had been living outside. He also stated that he was selected in P.C.S. before the occurrence and people knew about that. He was falsely implicated so as to damage his career. On the date of alleged occurrence, he was in District Lakhimpur collecting data for his thesis for M. Sc. (Ag.) degree. He claimed to be working at the post of District Agriculture Officer. The accused Ramnath Rai also stated that he was not present at his house. On the date of the alleged occurrence, he was at Bhatani Railway Station where he was employed. The accused Hridaya Narain Rai stated that at the time of occurrence, he was preparing for I.T.I, at Ghazipur. Ashok Rai accused stated that at the time of occurrence, he was atAllahabad and was preparing his thesis for M. Sc. (Ag.) degree. He claimed to be working as Assistant Soil Conservative Inspector. The accused Awadh Narain Rai stated that he was a student of Class X. The accused Umesh Chandra Rai alias Jangali Rai denied any enmity about the land with Kailash Rai. According to him, his relations with Loknath Rai were strained. He was allegedly implicated so as to usurp his land because his father was an old man. According to him, he was arrested from his house and was taken to the police station and locked up there. He denied the alleged discovery. Jai Prakash Rai accused stated that at the time of occurrence, he was preparing i for B.A. Examination in Ballia.
11. The prosecution in all examined seven witnesses. Out of them, Kamla Rai PW 1 informant, Kedar Rai PW 2 and Bijula Devi PW 4 (wife of the deceased Kailash Rai) were the witnesses of fact. Deep Narain Rai PW 3 was a witness of Fard, recovery and discovery. H.C. Haridwar PW 5 had prepared check F.I.R. and G.D. Dr Virendra Srivastava PW 6 had conducted the autopsy on the dead body of the deceased and Sheomurti Singh PW 7 was the Investigating Officer of the case. The affidavits of Surya Nath Mishra, Head Clerk in the Office of C.M.O., Constable Rafiullah, H.C. Sadhu Singh and Constable Baijnath Rai were also filed to prove the link evidence about safe transit of the blood stained articles to Sadar Malkhana and C.M.O. Office as also for chemical examination.
12. The accused did not adduce any oral evidence. However, a number of papers were filed by them.
13. We have heard Miss N.A. Moonis, learned A.G.A. from the side of the State-appellant in Government Appeal No. 1392 of 1981 and Sri D.R. Chaudhary holding brief of Sri S.S. Giri, counsel for the accused respondents in the said appeal. The submission of the State counsel is that the testimony of the informant Kamla Rai PW 1, Kedar Rai PW 2 and Bijula Devi PW 4- wife of the deceased Kailash Rai (witnesses of fact) completely established the culpability of all the accused respondents in the commission of this crime together with Umesh Chandra Rai alias Jangali Rai (appellant of Criminal Appeal No.832 of 1981 who died during the pendency of the said appeal). According to her, the trial court erred in disbelieving tlie testimony of these witnesses against the accused respondents of Government Appeal and also ignoring other circumstances surfacing on record from allied evidence of other witnesses.
14. On the other hand, the submissions from the side of the accused respondents are that the prosecution case had a weak structure right from the beginning; it was a dark night; all the witnesses of fact were inter se related and inimically deposed against the accused respondents who, without having any opportunity to recognize any of the assailants, tendered evidence simply on the basis of imagination guided by their deep seated enmity against the accused respondents. It has also been urged that the motive imputed by the prosecution against the accused respondents was very weak and tenuous. Learned counsel for the accused respondents has, with these submissions, supported the acquittal recorded by the trial court in favour of the accused respondents of Government Appeal. As for Criminal Appeal No.832 of 1981 filed by the convicted accused respondent Jangali Rai, suffice it to say that challenge to his conviction has become futile consequent upon his death during the pendency of the appeal which has abated owing to his death.
15. The lower court record is before us which we have carefully perused. We have cautiously cross-checked the findings of the lower court with the evidence on record.
16. We first propose to deal with the case concerning the accused respondent other than Bashisht Rai and Ashok Rai. To say in other words, the case of the accused respondents Jai Prakash Rai, Awadh Narain Rai, Hirdaya Narain Rai, Loknath Rai and Ramnath Rai is taken up first. Jai Prakash Rai is the son of Deonath Rai and brother of Bashisht Rai (whose case we shall take up a little later). Loknath Rai and Ramnath Rai are brothers being sons of Deepan Rai. Ashok Rai (whose case shall also be discussed later) and Awadh Narain Rai are also brothers being sons of Ramnath Rai and Hirdaya Narain is the son of Loknath Rai. We note from the evidence that Deepan Rai had three sons, Loknath Rai, Ramnath Rai and Deonath. Thus all the above named accused being descendants of common ancestor Deepan Rai aswl belonged to one family. As against the accused Loknath Rai, Ramnath Rai, Hirdaya Narain Rai, Awadh Narain Rai and Jai Prakash Rai, there is no direct evidence of their participation in the crime at hand. They along with 2 or 3 other persons had allegedly been seen by Kamla Rai PW 1 and Kedar Rai PW 2 in the light of torches, joining the remaining three Bashisht Rai, Ashok Rai and Jangali Rai who had come out of the house of the incident armed with Dao, Sword and Gandasa respectively. They, as per the own case of the prosecution, had allegedly stayed outside the house and courtyard where the murder of Kailash Rai was committed. It is somewhat incongruous that they would have been physically present there even when they were not to play any role in the commission of the crime. In our opinion, the trial judge rightly concluded that they were entitled to acquittal as charges against them had not been established beyond shadow of doubt.
17. The Apex Court has observed in the case of Bajwa v. State reported in 1973 Criminal Law Journal page 769 that in cases where there are party factions there is tendency to include the innocent with the guilty and it is extremely difficult for the court to guard against such a danger. The only real safeguard against the risk of connecting the innocent with the guilty lies in insisting on acceptable evidence which in some cases implicates such accused and satisfies the conscience of the court. In such cases, no doubt the prosecution witnesses claim to have seen the occurrence involving all the accused but it is safe only to convict those who are stated to have taken active part and about whose identity there can be no reasonable doubt.
18. So, we find ourselves in agreement with the trial judge that the accused respondents Jai Prakash Rai, Awadh Narain Rai, Hirdaya Narain, Loknath Rai and Ramnath Rai were entitled to acquittal. In other words, their acquittal is perfectly justified, not warranting any interference by this court of appeal.
19. We should also state as a passing reference that the conviction of the accused respondent Umesh Chandra Rai alias Jangali Rai (of connected Criminal Appeal No.832 of 1981) was also perfectly justified and in tune with the evidence on record. The trial judge has given cogent reasons for convicting him, though, as we said, he has died during the pendency of the appeal and is not available to suffer the punishment awarded to him. At the time of his arrest, he was found to wear a blood stained underwear and also had blood marks on his thigh and chest. He also led to.the recovery of blood stained Dao with which fatal injury had been caused to the deceased. The role assigned to him as per the testimony of the eyewitness Bijula Devi PW 4 (wife of the deceased Kailash Rai) was that he had caught hold of the head of the deceased when the other accused Bashisht Rai struck Dao blow on the neck of her husband. The circumstances established in the case fully corroborated the deposition of Bijula Devi PW 4 as against the accused Umesh Chandra Rai alias Jangali Rai. He was, therefore, rightly held to be one of the authors of the crime who had played potent role by pressing the head of the deceased when the fatal Dao blow was inflicted upon him. He was cousin brother of the deceased Kailash Rai and Dewar (brother-in-law of the eyewitness-Bijula Devi PW 4). His conviction under Section 302 read with Section 34 I.P.C. and under Section 449 I.P.C. with sentence of life imprisonment on both the counts was in tune and voice of the evidence on record.
20. It takes us to the case of remaining two accused, namely, Bashisht Rai son of Deonath Rai and Ashok Rai son of Ramnath Rai. Ramnath Rai and Deonath Rai both are brothers of Loknath Rai. Thus, Ashok Rai and Bashisht Rai are the first cousins.
21. It would be in the fitness of things to summarise the reasons given by the trial judge for acquitting them. The reasons recorded by the trial judge for their acquittal are these: These two accused had no direct enmity with the deceased Kailash Rai and thus had no motive to commit this crime. Accused Bashisht Rai was selected in the combined examination of 1977 in the cadre of U.P. Agriculture Service-Class II and was appointed as Agriculture Officer in May 1980. He had a bright career and would not choose to commit murder so as to spoil his future. It was admitted by Kamla Rai PW 1 that Bashisht Rai did not live in the village. It was the case of Ashok Rai that he, too, was studying and living outside. This argument seemingly appealed to the trial judge. Bijula Devi PW 4 allegedly made a contradictory statement that both these accused were continuously residing in the village. Saying that she was young Pardanashin lady, the trial judge observed that she might have committed a mistake about the correct identification of Bashisht Rai and Ashok Rai as she had not even seen the houses of her immediate neighbors, Kapoor Chand, Ghuna Bind, Kashi Lohar, Chillar and Rambriksha. The trial judge also held that there was no corroboration of the testimony of Bijula Devi PW 4 implicating these two accused as authors of the crime. Lastly, he drew support in recording their acquittal from the statement of Sheomurti Singh I.O. PW 7 who stated that he had mentioned in the case diary that it was generally felt that the nomination of the accused except Jangali Rai was it false. He further stated that it was the opinion of the people and he did not know whether it was correct or false. The trial judge observed that the Investigating Officer himself never tried to find out the truth of general rumour afloat after the occurrence and submitted charge sheet on 2.8.1979 i.e. within 1 1/2 months of the crime. It was again, as per the trial judge, a circumstance showing that all the accused except Jangali Rai might have not been responsible for the crime. So, in short, these were the reasons adopted by the trial judge in recording acquittal of Bashisht Rai and Ashok Rai.
22. On careful consideration, we are firmly of the view that none of the reasons adopted by the trial judge in recording the acquittal of Bashisht Rai and Ashok Rai has the backing of law or the attraction of logic. As a matter of fact, the evidence of their participation in this crime was firm and of sterling character as we shall indicate in subsequent discussion. Their acquittal, we are in the judgment, has been recorded on purely conjectural approach.
23. We deal with the question of motive first. We need not labour much on the point that motive is not evidence in a case. It is not sine qua non for the commission of a crime. Moreover,the motive is concealed in the heart of the perpetrator of the crime and is not easily fathomable. It is also to be kept in the mind that the motive aspect is insignificant when there is direct evidence regarding the commission of particular crime by certain person(s). In the present case, the background, as it was, came to be proved by the evidence on record. Kamla Rai PW 1 was the real brother of the deceased Kailash Rai. Two accused Bashisht Rai son of Deonath Rai and Ashok Rai son of Ramnath Rai were not strangers. Deonath Rai, Ramnath and Loknath Rai were real brothers. Kamla Rai PW 1 clearly stated that he had filed a suit m civil court against Loknath Rai about a village pathway which had been obstructed by him (Loknath Rai). Loknath Rai, as a counterblast, also filed a case about another path way against him. Thereafter, when Kamla Rai PW 1 was returning from his pumping set, Loknath Rai, Ramnath Rai (father of the accused Ashok Rai) and Deonath (father of the accused Bashisht Rai) had assaulted him with lathis with regard to which he had filed a complaint against them. Thereafter, there was a Marpit between Deenanath and Loknath Rai. In that connection, the accused Loknath Rai lodged a reportwith police implicating him (Kamla Rai). Kailash Rai (deceased) besides Udai Narain and Deenanath. From the side of Deenanath and others, the '' cousin of Kamla Rai had lodged a report. A cross-case under Section 307 . I.P.C. was pending between both the sides. Thus, there being animosity between the family of these two accused and that of the deceased, it could not be said that there could have been no motive to commit the crime. The mind of a criminal is very complex. In view of the facts detailed above, the alleged absence of motive on the part of the accused Bashisht Rai and Ashok Rai could not be a ground to record acquittal in their favour, particularly when there was eyewitness account in the form of testimony of Bijula Devi PW 4 about their actual participation in commission of this crime.
24. The res gestae evidence admissible under Section 6 of the Evidence Act was also there against them, because immediately after the incident, the eyewitness Bijula Devi PW 4 (whose presence at the spot could not be doubted) had named them as participants of this crime to Kamla Rai PW 1 and Kedar Rai PW 2. So, to come to the point, the finding of absence or insufficiency of motive on the part of the accused Bashisht Rai and Ashok Rai cannot be sustained on close scrutiny of the evidence and circumstances surfacing on record.
25. It was wholly irrelevant that the accused respondents Bashisht Rai and
26. Ashok Rai would not have participated in the commission of this crime to mar their bright future. Many heinous crimes are committed by the persons in authority and those who are well placed in life financially and otherwise. It was wholly imaginary thinking that persons with fright future would not commit such a crime. So far as Bashisht Rai was concerned, he stated under Section 313 Cr.P.C. that on the alleged day of incident he was collecting data for his thesis of M.Sc. (Ag.) degree in Lakhimpur and had been selected in P.C.S. Class II. We note from the testimony of I.O. Sheomurti Singh PW 7 that he had also recorded the statement of one Dr Sufendra Nath resident of Dildar Nagar because the accused Bashisht Rai had made statement to him that on the day of incident he was at his residence. This statement of the Investigating Officer was not challenged in his cross-examination. It is obvious that the stand taken by the accused Bashisht Rai was not consistent as to whether he was at Lakhimpur on the alleged day of incident or at the residence of Dr Surendra Nath in Dildar Nagar. Further, he did not lead any evidence as to in which particular year and from which college he allegedly passed M.Sc, (Ag.). Needless to say, as per Section 106 of the Indian Evidence Act when any fact is specially within the knowledge of any person, the burden of proving that fact is upon hinrf. It is further to be pointed out that the incident took place in the month of June when the educational institutions remain closed for summer. Therefore, his presence in his village in between the night of 26/27.6,1979, when the incident occurred was most likely. Ashok Rai accused respondent stated under Section 313 Cr.P.C. that at the time of the alleged incident he was preparing for his thesis of M. Sc. (Ag.) and also for P.C.S. competition. In respect of him also, reasoning indicated by us while dealing with the case of Bashisht Rai, would equally apply. At any rate, the simple fact of their having been students of M. Sc. (Ag.) in some year or session at some college could not be a ground to give clean chit to them to absolve them on the imaginary premise that none of them would ruin or damage his career by involving in this crime. The instances are not infrequent that the students take admission in institutions without regularly attending the classes. Further, as we pointed out, the incident took place in the month of June when both these accused were normally expected be in the village at their residence. There was bad-blood between the family of the accused and that of the informant and the deceased with pending litigations of civil as well as of criminal side. It was not unusual or unnatural that these two accused actively participated in cutting short the life of Kailash Rai with pre-planning and mental thinking that in defence they would advance the bogey of having not participated in this crime as they had a so-called bright future, an argument looking specious at the first blush but not standing a close scrutiny. The reasoning of the alleged bright future of these two accused which seemingly weighed with the trial judge does not meet our approval.
27. The trial judge was not justified in drawing support to back the acquittal of these two accused Bashisht Rai and Ashok Rai on the ground that Sheomurti Singh, I.O. PW 7 stated that it was mentioned by him in the case diary that it was generally felt that the nomination of the accused except Jangali was false. He further stated that it was the opinion of the people in general and he did not know whether it was correct or false. The trial judge observed that the Investigating Officer himself never tried to find out the truth of the general rumour afloat after the occurrence had taken place and submitted charge sheet on 2.8.1979-within 11/2 months after the crime. According to him, it was again a circumstance showing that all the accused excepting Jangali might have not been responsible for this crime. To say the least, the trial judge wholly acted on conjectural basis to take it a .circumstance favouring these two accused. The case is always decided on the weight of evidence adduced in the court and not on inferences based on general opinion and imagination. There was no basis for the above statement made by the Investigating Officer. No witness of the village came forward to back it. Had someone come to make a statement before the court in this behalf, his statement could be tested through cross-examination. Nothing of kind was there and the trial judge erred in drawing inference on the alleged general opinion of the people coming through mouth of the Investigating Officer without any basis.
28. The last ground which commended itself to the trial judge was that there was no corroboration of the testimony of the eyewitness Bijula Devi PW4 (wife of the deceased Kailash Rai) and that it was quite possible that she committed some mistake about the identity of the accused Bashisht Rai and Ashok Rai. This aspect of the matter requires a little discussion to clear the mist. We should point out that the corroboration as a condition of judicial reliance on the testimony of a witness is not a matter of law, but a guidance of prudence under given circumstances. Each case is to be viewed on its facts and evidence. In the case at hand, a very important factor is that Bijula Devi PW 4 was the most natural witness of the incident which took place in the night time in her courtyard where she was sleeping with her husband Kailash Rai (deceased) on one and the same cot. It is equally of great significance that , about the incident taking place at about 2 O' clock in the night, the F.I.R. was lodged at 2.45 Q' clock in the night by Kamla Rai PW 1 to whom she had narrated the actual incident as to how her husband was murdered in which the present accused Bashisht Rai, Ashok Rai and Umesh Chandra Rai alias Jangali Rai actively participated. No time gap had intervened for any concoction or deliberation so as to falsely implicate thes"e accused. Crying and weeping, she narrated the story to Kailash Rai immediately after the accused had made their escape good from the scene. Her clothes were also found blood stained and in this behalf there arc reports of chemical examiner and serologist also (Ext. Ka-29 and Ka-30) The blood stains on her Saree, Petticoat and brassiere were of the same group 'B' as of the blood on certain other recovery made on the spot including Baniyan of the deceased. It is consistently there in the testimony of Kamla Rai PW 1 that she had narrated to him weeping that Jangali Rai, Ashok Rai and Bashisht Rai had barged in the courtyard; Ashok Rai tightly closed (gagged) her mouth; Jangali Rai pressingly held the head of her husband Kailash Rai and Bashisht Rai struck Dao blow on the neck of her husband. Almost to the same effect is the statement of Kedar Rai PW 2. There is no reason to discard this part of their testimony. Kamla Rai is the real brother of Kailash Rai deceased who was sleeping outside in the S'ehan and awoke by the cries raised by Bijula Devi PW 4. The house of Kedar Rai PW 2 was also just nearby. He was sleeping at his door and awoke on shouts and commotion. The proximity of his house to that of the place of incident renders his presence at the scene immediately after the incident \s. to be quite natural and probable. To say in legal words, in the present case, there is res gestae evidence regarding the participation of the accused Bashisht Rai and Ashok Rai in the commission of this crime and the same is admissible under Section 6 of the Indian Evidence Act. This Section is based on the principle that a fact, though not in issue, may be necessary for deciding the facts in issue as forming part of the same transaction. This section admits those facts which are known as res gestae. Res gestae means the things done, including the words spoken in the course of a transaction but such facts must form part of the same transaction, may be, at different times and places. For the application of Section 6, it is necessary that the fact must not be too remote but a part of the single transaction. A transaction is a group of facts connected together to be referred to by a single legal name, as a crime, a contract, a wrong or any other subject of enquiry which may be in issue before the court.
29. It would be apt to refer to Illustration (a) given in Section 6 of the Indian Evidence Act. It is like this A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating,or so shortly before or after it as to form part of the transaction, is a relevant ,fact.
30. In the instant case, what was stated by the eyewitness Bijula Devi PW 4 to Kamla Rai and Kedar Rai immediately after the incident as to the participation of the accused Bashisht Rai and Ashok Rai is res gestae evidence. As we said, there was almost no scope for any concoction or manipulation in this behalf after the incident took place because the F.l.R. was lodged merely 45 minutes thereafter. What was narrated to Kamla Rai by Bijula Devi PW 4 immediately after the incident was mentioned in the promptly lodged F.l.R. too, regarding which Kamla Rai PW 1 and Kedar Rai PW 2 have deposed before the court also subjecting themselves to be tested by cross-examination.
31. We note from the testimony of Dr Virendra Srivastava PW 6 who conducted autopsy on the dead body of the deceased that the ante-mortem injury no.l of the deceased at his neck was possible by a Dao. As per the testimony of Bijula Devi PW 4, Bashisht Rai struck Dao blow on the neck of her husband while his neck was being pressed by Jangali Rai. A look at injury no.l shows that almost 1/2i of the neck of the victim was found cut. She also stated that her husband received injuries in the chest while he was restless. The two injuries in the chest are only skin deep as would be clear from the perusal of the post-mortem report. The argument that Bijula Devi had not seen the occurrence because she had not stated about it before the Investigating Officer and there was no recital about it in the F.I.R. was rightly rejected by the trial judge. In the F.I.R., reference was about the throat cutting by Bashisht Rai. Since it was the fatal injury, the omission of skin deep injury on the chest was immaterial, She did say before the court that while being restless, her husband received two injuries on the chest also.
32. Learned counsel for the accused respondents argued that the statement of Bijula Devi PW 4 could not be believed that when the accused ran, she flashed her torch and then the accused turned their heads. The counsel argued that as staled by Kamla Rai PW 1, it was a dark night. The checking of calendar shows that it was Hindi month of Aasadh (26/27.6.1979)-Tithi of Shukla Paksha Dwitiya. The counsel argued that it was wholly unbelievable that while running the accused would have_turned their heads back side. He fieasoned that Bijula Devi PW 4 made such a false statement to show that she had an opportunity to see the faces of the accused. It is not possible to locate any merit in this argument. In starry night in the month of June, Bijula Devi PW 4 could have very well recognized the three accused-Bashisht Rai, Ashok Rai and Jangali Rai even without the aid of torch, because all of them were in her close proximity while committing this crime, one of them having pressed her mouth, the other one pressing the head of her husband and third one striking Dao blow on the neck of her husband. It cannot at all be doubted that she knew them from before. Jangali Rai was the first cousin of her husband and Ashok Rai and Bashisht Rai belonged to one and the same family of Loknath, Ramnath Rai and Deonath Rai and there was civil as well as criminal litigations pending between their family and the family of her husband. Moreover, when the accused could locate their target, it would be preposterous to suggest that Bijula Devi PW 4 who was on the same cot of her husband (victim) could not recognize the accused persons i.e Bashisht Rai, Ashok Rai and Jangali Rai. There was nothing unnatural that the accused while leaving the spot after committing the crime and before reaching the door to be out had turned their heads to back side. It was quite possible as per the reflex action that while running they turned back to see the immediate reaction of Bijula Devi PW 4 (in whose presence the crime had been committed) apprehending that she might throw some heavy object towards them concealed under the cot. To say in other words, they could have turned back to see whether they had gone out of the range of danger. We do not think that there was anything unnatural that she Hashed her torch towards them immediately after the incident when they were running and leaving the spot. The Investigating Officer had examined her torch which had been given in her custody through a memo Ext. Ka-4.
33. The trial judge doubted the correctness of the identification of the accused Bashisht Rai and Ashok Rai by the eyewitness Bijula Devi PW 4 on two grounds. First, she was living in her Sasural for about 6-7 years preceding the incident. She was a young Pardanashin lady and the possibility that she committed some mistake about the correct identification of these two accused could not be ruled out as she admitted that she had not seen the houses of her neighbours Kapoor Chand, Ghuna Bind, Kashi Lohar, Chillar and Ram Briksh. She did not know them. However, as per the deposition of Kedar Rai PW 2, the houses of Kapoor Chand, Ghuna Bind and Kasbi Lohar were in the north of his house and the house of Kamla Rai was in , the west of the house of Kashi Lohar after a lane. When Bijula Devi PW 4 did not know and had not heard about the persons whose houses were in close proximity of her house, it was quite possible, as per the trial judge, that she committed some mistake about the identity of the accused Bashisht Rai as also of Ashok Rai. We do not think that such reasoning justified the doubting of correctness of the identification of these two accused by Bijula Devi. True, she was a Pardanashin lady and did not freely move about in the village but regard zs to had to this aspect of the matter that the persons named above were not of the caste of her in-laws. There is nothing to indicate that the family of her in-laws and of these persons had any interaction, regular dealings or social relations. So, there was nothing strange that she did not know about them and their houses. But the situation was different so far as the accused Bashisht Rai and Ashok Rai were concerned. They were of the own clan of her in-laws. Not only this, several civil and criminal cases were also pending between her family and that of these two accused. It was, therefore, natural that she knew the members of the family antagonized to her own family. No doubt could be entertained about her knowing and recognizing the accused Bashisht Rai and Ashok Rai from before. She correctly identified them as the culprits participating in the commission of this crime. She even empathetically and specifically described the role played by each of them in the commission of this crime which was narrated by her immediately after the incident, too, to Kamla Rai PW 1 and Kedar Rai PW 2. Reference of the same came in the promptly lodged F.I.R. made by Kamla Rai PW 1 at the police station the same night at 2.45 O" clock (the incident had taken place at about 2 O' clock in the night). Our considered view is that the first ground adopted by the trial judge to doubt the correctness of the identification of the accused Bashisht Rai and Ashok Rai by Bijula Devi PW 4 has no legs to stand.
34. The second ground taken by the trial judge is that she stated before the court that Ashok Rai and Bashisht Rai were continuously living in the village. She denied that any of them had gone out of the village in connection with studies. The trial judge pointed out that, on the other hand, Kamla Rai PW 1 admitted that Bashisht Rai and Ashok Rai were not living in the village. On account of this variation in the statements of Kamla Rai PW 1 and Bijula Devi PW 4, the trial judge inferred that there was the possibility of Bijula Devi having committed mistake in identifying Bashisht Rai and Ashok Rai at the scene of incident. This reasoning also cannot meet our approval. As we mentioned somewhere above, the incident took place in the month of June when most of the educational institutions remain closed for summer. There was every livelihood of Bashisht Rai and Ashok Rai being present in the village at that time. Further, even if it is taken for the sake of argument that both or any of them was an enrolled student somewhere outside the village, it did not mean that they were living in banishment or exile outside the village. It has also to be stated at the risk of repetition that it has not been clarified as to what was the distance of the alleged educational institution(s) in which they were allegedly studying. There is nothing to show that any of them was a hosteller. There is no evidence from their side about the distance of so-called educational institution(s) from the village. Even if enrolled as a student outside the village, they would have been visiting their native village frequently and statement of rustic lady (Bijula Devi PW 4) is not to be interpreted pedantically to find fault with it when she said that these two accused did not go out of the village for education. They were frequently being seen in the village and there was nothing wrong if she stated that they did not go out of the village for education. We are of the clear view that the conclusion of the trial judge was simply the figment of imagination that there was possibility of mistake in the identification of the two accused Bashisht Rai and Ashok Rai by Bijula Devi PW 4 at the scene of incident.
35. In view of the above discussion, we are firmly of the view that the lower court did not analyse the evidence in proper perspective regarding the participation of the accused Bashisht Rai and Ashok Rai in the commission of this crime. Lightly brushing aside the trustworthy eyewitness account rendered by Bijula Devi PW 4 and res gestae evidence referred to by us earlier, the trial court simply acted on surmises and conjectures. The evidence regarding their participation in this crime was clinching and wholesome. Needless to say, legitimization of trivialities would make a mockery of administration of criminal justice. The finding of the lower court acquitting the accused Bashisht Rai and Ashok Rai is erroneous, illegal and wholly perverse.
36. The number of culprits was less than five and formation of unlawful assembly was not proved. The participation of the accused Jai Prakash Rai, Awadh Narain Rai, Hirdaya Narain Rai, Loknath Rai and Ramnath Rai has rightly been found to be doubtful by the trial court. Situation boils down to this that the culprits who committed this crime were only three, namely, Bashisht Rai, Ashok Rai and Umesh Chandra Rai alias Jangali Rai (who was convicted under Section 302 I.P.C. read with Sections 34 and 449 I.P.C. and has died during the pendency of the connected Criminal Appeal No.832 of 1981). All of them committed offence punishable under Section 449 I.P.C. Further, the accused Bashisht Rai who struck fatal Dao blow on the deceased Kailash Rai committed offence punishable under Section 302 I.P.C. and the accused Ashok Rai as also Umesh Chandra Rai alias Jangali Rai (who died during the pendency of connected Criminal Appeal No.832 of 1981) committed the offence under Section 302 I.P.C. read with Section 34 I.P.C. Umesh Chandra Rai alias Jangali Rai has died. The other two accused respondents, namely, Bashisht Rai and Ashok Rai are liable to be convicted and sentenced for the offences committed by them as stated above.
37. In the net result, for the discussion hereinabove, we partly allow the instant Government Appeal and order as under:
1. The accused Bashisht Rai is held "guilty and convicted of the offences punishable under Sections 302 and 449 I.P.C. The other accused Ashok Rai is convicted for the offence punishable under Section 302 read with Section 34 and 449 I.P.C. Each of them is sentenced to undergo life imprisonment on both the counts. The sentences shall run concurrently.
2. The acquittal of the accused respondents Jai Prakash Rai, Awadh Narain Rai, Hirdaya Narain Rai, Loknath Rai and Ramnath Rai is upheld.
3. The accused respondents Bashisht Rai and Ashok Rai are on bail. The Chief Judicial Magistrate, Ghazipur shall cause them to be arrested and lodged in jail to serve out the sentences, reporting compliance within two months.
38. Judgment be certified to the lower court immediately.