Allahabad High Court
Bechu And Others vs State on 6 May, 2022
Bench: Rajan Roy, Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on: 10.02.2022 Delivered on: 06.05.2022 IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW BENCH, LUCKNOW Court No. - 4 Case :- CRIMINAL APPEAL No. - 545 of 1982 Appellant :- Bechu And Others Respondent :- State Counsel for Appellant :- S.S.Sharma,Anil Srivastava,Anish Srivastava Lall,Mohd. Javed,Rajesh Kumar Dwivedi(A.C,Vishnu Swaroop Srivastva Counsel for Respondent :- G.A.,Arun Sinha,Ram Chandra Singh Hon'ble Rajan Roy,J.
Hon'ble Mrs. Saroj Yadav,J.
(Per Rajan Roy, J.) There are two criminal appeals, one bearing Criminal Appeal No.545 of 1982 [Bechu and Ors. vs. State] and the other connected appeal is by the State bearing Government Appeal No.334 of 1983 [State vs. Nanhey & Ors.]. Both the appeals relate to the same incident, albeit, with respect to cross cases and as separate judgments have been rendered by the trial court in respect thereof although they were clubbed and heard together, therefore, though, both the appeals have been heard together, they are being decided by separate judgments by this Court.
This judgment pertains to Criminal Appeal No.545 of 1982.
There were seven appellants in this appeal. Appellant no.1, namely, Bechu S/o Angnoo; appellant no.4, namely, Nanhey S/o Angnoo and appellant no.7, namely, Devidin S/o Hanuman, have died during pendency of the appeal and the same has abated with respect to them. It stands dismissed as abated with regard to those appellants.
The other appellants, namely, Hanuman S/o Angnoo (appellant no.2); Raghunath S/o Angnoo (appellant no.3); Jagjiwan S/o Bechu (appellant no.5) and Raghubar S/o Bechu (appellant no.6) are alive.
The appellants no.2 and 3 have been convicted in Session Trial No.283 of 1979 under Sections 147, 148, 307, 302 read with Section 149 I.P.C. whereas appellants no.5 and 6 have been convicted under Sections 307, 147, 302, read with Section 149 I.P.C. in the same Session Trial by learned Third Addl. District and Sessions Judge, Barabanki. The appellant nos.2, 3, 5 & 6 have been sentenced to imprisonment for life under Section 302 read with Section 149 I.P.C. They have been sentenced to five years rigorous imprisonment under Section 307 read with Section 149 I.P.C. All the aforesaid four appellants have been further sentenced to undergo two years rigorous imprisonment under Section 147 I.P.C. The appellants no.2 and 3, namely, Hanuman and Raghunath have also been sentenced to rigorous imprisonment for three years under Section 148 I.P.C.
Learned Amicus, Sri Rajesh Kumar Dwivedi has argued the appeal for the appellants. Sri Siddharth Sinha, Advocate holding brief of Sri Arun Sinha, learned counsel appearing for the informant/ complainant has been heard so has Sri Chandra Shekhar Pandey, learned Addl. Govt. Advocate for the State.
The prosecution case in brief is that Shiv Narain and Marji Ram (deceased) had taken their cattle towards north of the village for grazing. Shiv Narain assigned the cattle to his son, namely, Sadhu Ram and both Shiv Narain and Marji Ram were returning to their residence. When they reached northern boundary of the grove of Putti Mahraj and proceeded beyond it inside the grove, then the appellants came out of the Arhar crop which had been sown therein and surrounded them. All the appellants started beating them. Appellant no.1, namely Bechu was having a 'Karauli' (small dagger), appellant no.2, namely, Hanuman was having a 'Banka' and appellant no.3, namely, Raghunath, was in possession of 'Kanta'. Rest of the appellants had lathis. Shiv Narain and Marji Ram also had lathis for controlling their cattle. They used their lathis in their defence. On an alarm being raised, others, namely, Bishram, father of Marji Ram (injured prosecution witness no.2), Faqirey (independent prosecution witness no.3), Ram Nath, Thakur Prasad, Ram Gulam and Sajiwan reached the spot. Shiv Narain fell down after being hit. Marji Ram ran four or five steps but the appellants brought him down by beating him. They beat him even after he fell down. Bishram (P.W.2) came forward to save Marji Ram when Jagjiwan i.e. appellant no.5 hit him on his head. When the appellants were challenged by the witnesses they ran away towards the East. Marji Ram died and Shiv Narain was grievously injured and he was taken to Police Station on a Charpai/ Cot. Both of them were taken to hospital along with police personnel. Shiv Narain was admitted in the hospital and remained there for one month. Bishram was discharged on the third day.
The incident took place at 2:30 P.M. on 06.04.1978. The F.I.R. was lodged at Police Station-Tikait Nagar, District-Barabanki by Bishram (P.W.2) at 05:00 P.M. on the same day. Inquest started at about 05:00 P.M. on 06.04.1978 itself and ended at 18:15 P.M on the same day. Postmortem report was conducted on 07.04.1978 at 02:30 P.M. As per postmortem report, there were fourteen antemortem injuries on the body of the deceased- Marji Ram. His death was caused due to shock and Hemorrhage due to injuries. Shiv Narain (P.W.1) received as many as 17 injuries, many of them grievous. Bishram (P.W.2) received one or two injuries which were simple having been caused by blunt object. X-ray was advised with respect to both.
On 07.04.1978, the appellants were arrested as per the testimony of the investigating Officer (P.W.6) and the weapons used in crime, one Banka and two lathis, with blood on them, were recovered from the tubewell room of Raghubar (appellant no.6), which were sealed.
The crime was investigated by police and a charge-sheet was filed against the appellants.
The Magistrate committed the case to the Sessions Court for trial.
Charges were framed against appellant nos.4, 5, 6 and 7 on 18.07.1980 and charges against appellant nos.1, 2 and 3 were framed on 18.07.1980 which were corrected on 07.06.1982. The corrected charge contains a note to the effect- "after correction in the charge under Section 148 I.P.C. as aforesaid, defence neither desired to recall any prosecution witness for the purpose of cross-examination nor produced any witness in defence. There is no need to put any question under Section 313 Cr.P.C. to the accused as this fact has already been inquired from each of them under Section 313 Cr.P.C. earlier. Case, therefore, has to proceed further. The charges were read out and explained to the accused-appellants in Hindi who pleaded not guilty and demanded trial". Accordingly, they were put to trial.
The prosecution produced seven witnesses. Shiv Narain (P.W.-1) and Bishram (P.W.2) are injured eye-witnesses, Faqirey (P.W.3) is an independent eye-witness who is said to have reached the spot on raising of alarm by P.W.1 and P.W.2. P.W.4 - Ayodhya Prasad is Court Muhrir who had taken body of the deceased to Mortuary and handed over requisite police papers to the doctor for postmortem and had identified the body of the deceased. P.W.6 - Dr. A.K. Srivastava is the Radiologist who had conducted the postmortem. P.W.-6 is the Investigating Officer. P.W.7 is the Head Constable/ Head Muhrir who had made the necessary entries in the G.D. and had sent the victims for medical examination.
The postmortem report of Marji Ram is Ex. Ka-16. Injury reports of Bishram and Shiv Narain, P.W.1 and P.W.2 are Ex. Ka-13 and Ex. Ka-14 respectively. Memo of recovery of weapon of crime is Ex. Ka- 8, blood soaked soil etc is Ex. Ka-5, inquest report is Ex. Ka-3. Ex.Ka-4 is the site-plan relating to the situs of crime and Ex.Ka-9 is the site-plan memo relating to recovery of weapon used in the crime.
The case of defence is that Mahadev (not made an accused), Nanhey, Raghunath, Bechu and Hanuman were going towards their field (Khet) for sowing opium when they were way-laid by the informant side (in this case), namely, Marji Ram S/o Bishram, Nanhey S/o Bishram, Kesho Ram S/o Bishram, Shiv Narain S/o Bhulai, Bishram S/o Bhulaim, Sita Ram S/o Baiju, Sajiwan S/o Hanuman, Ram Nath S/o Mata Prasad, Paras Ram S/o Ram Sanehai and Mahadev S/o Ram Ratan, all of whom were armed with Lathis except Mahadev who was having 'Kanta' and they came out from the bushes and attacked them. They (the defence side) used their 'Lathi' and 'Hasiya' to defend themselves. They received injuries in this attack and were medically examined. They went to lodge a report at Thana Kotwali but the police did not take any action and therefore, they filed a complaint case which was proceeded.
The defence side produced three witnesses, namely, D.W.1 Sri Y.K. Jalote, Medical Officer, District Hospital, Barabanki who had allegedly examined the accused Bechu, Hanuman, Mahadev, Raghunath and Nanhey on 06.04.1978 between 06:30 P.M. to 07:30 P.M.; D.W.2-Dr. A.K. Srivastava, Medical Officer, District Hospital, Faizabad, Radiologist who had allegedly conducted X-ray on Hanuman and Bechu on 11.04.1978 i.e. almost five days after the date of incident; D.W.3-Hanuman who had lodged the complaint dated 17.08.1978 in the Court of Chief Judicial Magistrate, Barabanki against the persons who are the informant side in this appeal, as already discussed.
Certain documentary evidence was also led by the defence in the form of certified copy of the complaint filed by Hanuman, medical reports/ injury reports of Bechu, Hanuman, Nanhey, Raghunath and Mahadev dated 06.04.1978 based on medical examination by the Medical Officer on emergency duty at District Hospital, Barabanki which was not done at the instance of police but was done privately. Certified copy of F.I.R. dated 06.04.1978 lodged at 11:00 P.M. at Police Station-Kotwali, District-Barabanki as referred earlier, findings of Radiologist, Dr. A.K. Srivastava based on the alleged X-ray report of Hanuman and Bechu.
It is also not out of place to mention that complaint case filed by accused Hanuman (D.W.3) was also committed to Sessions Court for trial being Session Trial No.173/1981 and was clubbed along with Session Trial No.283 of 1979 as already stated earlier.
The informant side herein who were the accused in Session Trial No.173/1981 have been acquitted vide judgment dated 16.07.1982 passed by learned Third Addl. District and Sessions Judge, Barabanki which has been challenged by the State vide a connected Criminal Appeal No.334 of 1989, as mentioned earlier, which is being decided by a separate judgment, albiet, along with this appeal.
Learned Amicus appearing for the appellants argued as under:-
(I) The F.I.R. was lodged with a delay of two and half hours and this time was used for embellishment of its contents after due deliberations and consultations.
(II) The F.I.R./ Special Report was not forwarded to the jurisdictional Magistrate forthwith.
(III) The blood-stained and plain soil recovered by the Investigating Officer from the alleged scene of crime was not sent for chemical analysis nor is there any chemical examiner's report on record. Independent witnesses of such recovery were not examined.
(IV) The recovery of weapon of assault on the pointing out of the accused is not a recovery in terms of Section 27 of the Indian Evidence Act. No separate disclosure statement of the accused in police custody was recorded by the police which makes the recovery doubtful.
(V) The witnesses of alleged recovery of weapon of assault were not produced before the trial court which casts a serious doubt on the recovery and it proves that the alleged recovery of weapon of assault is a fake recovery.
(VI) The alleged recovered weapons of assault were not sent for chemical examination by the Investigating Officer nor there is any C.F.S.L. report to this effect which also makes the alleged recovery doubtful.
(VII) The weapon of assault, if recovered, were not produced before the Trial Court nor shown to the Autopsy Surgeon to seek his opinion as to whether the particular injuries could be caused by the same weapon or not which also makes the recovery doubtful. No ''Karauli' which is a weapon alleged to have been used in committing the crime was recovered.
(VIII) The doctor did not specifically opine as to which injury proved fatal.
(IX) The place of crime is itself doubtful. The testimonies of P.W. 1, P.W. 2 and P.W. 3, in this regard, do not tally with the site-plan prepared by the Investigating Officer.
(X) The blood stained and plain soil recovered by the Investigating Officer from the spot was not sent for chemical analysis to fix the situs of the crime nor is there any F.S.L. report to this effect which makes the place of occurrence doubtful. No trail of blood was found by the Investigating Officer.
(XI) There are variations/ contradictions and inconsistencies in the testimonies of P.Ws. which create serious doubt on its veracity.
(XII) P.W.1 and 2 are related, interested and witnesses inimical to the appellants hence unreliable.
(XIII) No motive has been established by the prosecution against the accused-appellants for the commission of the crime except that both sides bore enmity with each other.
(XIV) A cross-F.I.R. was lodged by the accused-appellants side against the complainant's party and the accused appellants have used their respective weapons in the right of their private defence. The defence version is strengthened by the State appeal filed by the State of U.P. under Section 378 Cr.P.C. which is connected as Criminal Appeal No.334 of 1983.
(XV) Considering the blow on Bishram's head (P.W.2), he could not have gone to the police station on foot, as is being claimed, therefore, the entire story set-up by the informants is false.
(XVI) The appellants do not have any criminal history whereas the informants side had criminal history as is mentioned in the evidence on record. Therefore, this strengthens the case of the appellants that it is the informant's side which was aggressor and the appellants exercised their right to private defence.
(XVII) It is a settled position of law that suspicion howsoever grave cannot take the place of proof.
(XVIII) The prosecution has miserably failed to prove its case beyond reasonable doubt and the trial court has erred in convicting and sentencing the appellants.
He has relied upon the decisions rendered in 1980 SCC (Crl) 985 'Marudanal Augusti vs. State of Kerela'; AIR 1976 SC 2423 'Ishwar Singh vs. State of U.P.'; AIR 1976 SC 2263 'Lakshmi Singh & Ors. vs. State of Bihar'; 2000 (41) ACC 181 (Alld. HC DB) 'Nawazish Ali & Ors. vs. The State'; AIR (34) 1947 Privy Council 67 'Pulukuri Kottaya and Ors. vs. Emperor'; (2004) 10 SCC 657 'Anter Singh vs. State of Rajasthan'; AIR 1956 SC 217 'Aher Raja Khima vs. the State of Saurashtra'; AIR 2002 SC 3040 (MANU/SC/0684/2002) 'Harjit Singh & Ors. vs. State of Punjab'; 1991 SCC (Cri) 905; (1991) 3 SCC 609 'Harendra Narain Singh & Ors. vs. State of Bihar'.
In response, Sri Chandra Shekhar Pandey, learned Addl. Government Advocate contended that the site-plan was not prepared on the basis of statement of P.W.1 and P.W.2 as they were admitted in hospital. There are no major variations in their testimonies as to the place of occurrence and the contents of the site-plan prepared by the Investigating Officer and the situs of crime is proved. The disclosure statement is contained in the memo of recovery of the weapon of assault and the said recovery has been proved by police witnesses, therefore, merely because, public witnesses have not been examined, this by itself, does not render the recovery doubtful nor does it affect the case of prosecution. The error in mentioning the date in the recovery memo Exhibit Ka-8 as 06.04.1978 at the bottom vis-a-vis the actual date mentioned at the start of memo as 07.04.1978 is merely a bonafide error and cannot by itself enure to the benefit of the accused-appellants. The incident occurred at 2:30 P.M. on 06.04.1978 and the F.I.R. was lodged promptly at 5:00 P.M. Considering the fact that one person had died and another had been grievously injured who had to be carried on a Charpai six miles away to the police station, shows that there was no delay as such, in lodging the F.I.R. Faqirey (P.W.3) the independent eye-witness is mentioned in the F.I.R. itself and there is no question of any embellishment after consultation as alleged. The lodging of F.I.R. has been proved by the informant and the concerned Constable. Inquest was also conducted promptly as it started on the same day at 5:00 P.M. and ended at 6:15 P.M. The appellants did not confront the eye-witnesses on any issue successfully during cross-examination and therefore, it is not open for the appellants to raise pleas on which the witnesses were not confronted before the trial court as per law. There are two injured eye witnesses i.e. P.W.1 & P.W.2 and one independent eye witness i.e. P.W.3 whose testimony along with medical evidence on record is sufficient to establish the guilt of the appellants beyond reasonable doubt. The fact that P.W.1 and P.W.2 were relatives of the deceased does not make much of a difference to the prosecution's case as their presence at the place of crime was natural in the facts and circumstances of the case and there was nothing unnatural about it. The injury on the defence side are on non-vital parts. The facts of the case demonstrate that appellants were the aggressors and force used by them resulted in death of one person and grievous injury to another, apart from others being injured, therefore, the right of private defence being pleaded is not borne-out from the facts and evidence on record and has also not been accepted by the trial court. The alleged X-ray of some of the appellants was got conducted highly belatedly which raises a suspicion about the same. The appellants for reasons best known to them did not lodge their cross-F.I.R. at Police Station-Tikait nagar in whose jurisdiction the crime had been committed. They went and lodged it at Police Station-Kotwali which did not have jurisdiction. If the incident as alleged by them occurred at 1P.M. i.e. prior to the time of incident being alleged by the informant side, then, there was no reason as to why they could not lodge the F.I.R. at Police Station-Tikait Nagar. The trial court has not committed any error in appreciating the facts and evidence on record and has justifiably and rightly convicted the appellants for the offence alleged and sentenced them, based on such evidence and facts. The appeal of the appellants is liable to the dismissed.
It is a case based on direct evidence of three eye witnesses, P.W.1, P.W.2 and P.W.3. There is medical evidence on record in the form of postmortem report which is Ex.Ka-16, injury report of P.W.2-Bishram and P.W.1-Shiv Narain as Ex.Ka.13 & Ex.Ka-14, respectively. Testimony of the doctor who conducted the postmortem Sri A.K. Srivastava, P.W.5 has also been recorded.
The lodging of F.I.R. on 06.04.1978 at 5:00 P.M. by Bishram (P.W.2) has been proved by P.W.7, namely, Amarnath Bajpai (Head Constable) who has proved Chik report as Ex.Ka.1. P.W.2- the injured informant has also proved Ex. Ka-1 and the Tehrir submitted by him in this regard.
The F.I.R. has been lodged within two and half hours of the incident, therefore, considering the fact that one of the persons had died and another was grievously injured as also the testimonies on record that the dead body as also the injured person were lying on the spot for about one hour, it cannot be said that there was any delay in lodging of the F.I.R. and the contention of learned counsel for the appellants in this regard is rejected.
P.W.4, namely, Sri Ayodhya Prasad was posted as Constable at the relevant time at Police Station-Tikait Nagar. He has proved sealing of the dead body of Marji Ram, preparation of Challan Lash, Naksha Lash and other documents for taking the body to the Mortuary and identification of the dead body before the doctor who conducted the postmortem.
Before considering the ocular evidence of P.W. 1, P.W. 2 and P.W. 3, we may consider the postmortem and injury reports referred earlier. As per the postmortem report pertaining to body of the deceased-Marji Ram, which is Ex.Ka-16, there were as many as fourteen ante-mortem injuries on his body which are as follows:-
"ANTEMORTEM INJURIES
1. Two lacerated wounds on scalp (a.) one on upper surface size 8 cm X 1 cm X bone deep (b.) Other 8 cm above left ear pinna size 2.5 cm X 1 cm X bone deep.
2. Three penetrating wounds on left side of face in an area of 8 cm X 6 cm size varying from 2 to 2.5 cm X 0.5 to .75 cm X muscle deep.
3. Lacerated wound on outer aspect of left eyebrow size 2 cm X 0.5 cm X bone deep.
4. Abrasion over middle of forehead size 3 cm X 1 cm.
5. Two incised wounds on chin are on front aspect size 1 cm X 0.5 cm X 0.5 cm other 4 cm below above injury size 2.5 cm X 0.75 cm X muscle deep.
6. Six penetrating wounds on left and back side of neck in an area of 15 cm X 8 cm size varying from 1.5 to 2.5 cm X 0.75 cm to 1 cm X muscle deep.
7. Three penetrating wounds on right side of neck upper part in an area of 6 cm X 5cm. Size 1 cm X 1 cm X muscle deep each.
8. Abrasion on ventral aspect of (Lt.) wrist inner aspect size 3 cm X 1 cm.
9. Incised wound on ventral aspect of left hand near base of index finger size 3 cm X 0.5 cm X bone deep (underlying bone cut completely).
10. Incised wound on dorsal aspect of base of middle finger size 2.5 cm X 0.5 cm X bone deep.
11. Abrasion on front of Right knee size 5 cm X 3.5 cm paper torn front of left knee size 6 cm X 5 cm.
Paper torn back of left side chest a. Size 2 cm X 1 cm X cavity deep 4 cm below lower angle of paper torn 2.5 cm X 1 cm X cavity deep 7 cm below injury 13 paper torn.
14. Three penetrating wounds on back of left paper torn of 12 cm X 4 cm X size 2 to 2.5 cm X 1 to 1.25 X muscle deep."
As per internal examination, injury Nos.1 to 7 were present on head & neck. Skull bone under injury no.1/a was fractured. Injury No.13 was present over chest, ribs and cartilage. Lt. Pleura was punctured under injury No.13 about 1/2 pint blood was found present in left Pleural cavity. Left lungs were found punctured under injury No.13 and the cause of death was mentioned as due to shock and hemorrhage.
The Autopsy Surgeon (P.W.5) has proved the postmortem report. He has stated that cadaver was brought by Constable Ayodhya Prasad (P.W.4) and postmortem was conducted at 2:30 P.M. on 07.04.1978. He has supported the injuries as mentioned in the post-mortem report as also the cause of death mentioned therein. He has deposed that the injuries pointed out were sufficient to cause death of the deceased. His death was possible at 2:30 P.M. on 06.04.1978. In the examination-in-chief, he has mentioned that injury Nos.5, 9 and 10 (incise wounds) were possible of being caused by a sharp-edged weapon such as ''Kanta' and ''Banka'. Injury Nos.2, 6, 7, 13 and 14 (penetrating wounds) could be caused by sharp-pointed weapon such as ''Karauli'. He also stated that he had not seen the Karauli. He deposed that rest of the wounds could be caused by blunt weapon such as Lathi. In cross-examination, he stated that injury Nos.2, 6, 7, 13 and 14 could be caused by penetrating sharp weapon. They could not be caused by any sharp-edged pointed weapon. Injury Nos.4, 8, 11 and 12 could be caused by falling (abrasions). He further stated in cross-examination that incise wounds could be caused by a sharp-edged weapon. Penetrating wounds could not be caused by one-sided, single edged weapon.
Great emphasis was laid by learned counsel for the appellants on penetrating wound nos.2, 6, 7, 13 and 14 to contend that these could not have been caused by use of ''Banka', ''Kanta', Lathi or Karauli. He referred to testimony of doctor (P.W.5) in this regard in cross-examination wherein he has stated that these injuries could not be caused by a sharp edged pointed weapon, to submit that ''Karauli' is a sharp-edged pointed weapon, therefore, penetrating wound could not be caused by use of ''Karauli' much less by use of ''Banka' or ''Kanta'. He also referred to opinion of P.W.5 that penetrating wound could not be caused by single-edged weapon. He submitted that such a wound could only be caused by spear, ballam etc, therefore, these injuries not having been explained, create a doubt about the prosecution story. We have considered this argument and we find that much would depend upon the kind of 'Karauli' (small dagger) which is used. Ordinarily, it is a small weapon, pointed towards the top which could cause penetrating wound also but without entering into the realm of speculation as the said weapon was not recovered nor produced during trial, when we consider the injuries in totality we find that injury no.(1) on the skull is itself sufficient to cause death. The use of all the weapons and cumulative effect of the injuries referred would certainly result in death. The opposite party no.5 has mentioned cause of death as shock and Hemorrhage due to antemortem injuries.
From the medical evidence on record, as discussed hereinabove, it is evident that the deceased-Marji Ram was murdered. The question is whether the appellants murdered him?
As regards the offence under Section 307 I.P.C., the injury report of P.W.1, Ex.Ka.14 mentions as many as seventeen injuries on his body, one injury has been repeated. Injury Nos.1, 2, 3, 4, 5, 11, 13, 14, 15 and 16 are simple. Injury Nos.6 to 10 and 12 are grievous injuries because they could fracture the skull. Injury report is of 06.04.1978 prepared at 7:00 P.M. It mentions that all wounds are fresh, caused within six hours. It further mentions that injury Nos.1, 2, 3, 6, 11, 13, 14 and 16 are caused by a sharp edged weapon, and rest are caused by blunt object.
The injury report of P.W.2-Bishram, Ex.Ka.13 mentions about a black mole on the left side of the face, 2.5 cm below the lateral angle of eye (left) and one injury, a lacerated wound, 5.5 cm X 0.5 cm on the right side of scalp placed transversely 18 cm from the right eyebrow. Bleeding is present in fresh form. Little swelling is also present around it. Injury is mentioned as simple, fresh (within six hours and caused by blunt object). In both the cases, injuries were kept under observation and X-ray of skull was advised. These injury reports are relevant for the offence under Section 307 I.P.C.
Now to consider the ocular evidence led by the prosecution.
P.W.2-Bishram is father of the deceased and informant of the case. In his examination-in-chief, he has narrated the incident as under:-
‟1- ejthjke e`rd esjk yM+dk yM+dk FkkA mldk dRy gq, vkt ls nks lky pkj ekg gq,A ?kVuk ds oDr eS ?kkl Nhy jgk FkkA eSa iqRrhyky dh ckx ds ifPNe ?kkl Nhy jgk Fkk ml oDr fnu ds djhc 2- esjs vykok ?kVukLFky ij Qdhjs] jkeukFk] lathou] xqyke Hkh igqWp x;s Fks vkSj yksx Hkh nkSM+s FksA ejthjke dks cpkus esa eSa nkSM+k rHkh txthou esjs lj ij ykBh ekj nhA eSa ogka ls FkksM+k gV x;k fxjk ughA f'koujk;u ekj [kkdj fxj x;s FksA ejth jke nks rhu dne Hkkx dj rc fxjsA ejthjke ds fxj tkus ij Hkh eqfYteku us mUgs ekjkA xokgks us gYyk epk;k rc eqfYteku iwjc rjQ Hkkx x;sA ejthjke ekSds ij gh ej x;sA"ß The aforesaid testimony has not been dislodged in cross examination by the defence wherein he has stated as under:-
‟27‐ eSa [kqjis ls ?kkl Nhy jgk FkkA [kqjik ogh NksM+ dj eSa ?kVuk LFky ij x;k FkkA pkj ikap gkFk yEch eksVh ykBh eSa fy;s FkkA 28‐ igys igy tc esjh fuxkg iM+h rc ns[kk fd ekj gks jgh gSA eqfYteku rFkk f'koukjk;u o ejthjke ds chp ekjihV gks jgh FkhA ml oDr eSus ugha ns[kk fd guweku] cspw] j?kqukFk] uUgs o egknso pqVk x;s Fks ;k ughA ekjihV djds eqfYteku py fn;s] muds cnu ij eSa pksV dSls ns[krkA ykBh M.Mk ds vykok ge] f'koujk;u o ejthjke vkSj dksbZ gfFk;kj ugha fy;s FksA eSa tc igqqWpk rks eSa eqfYteku ds ?ksjs esa ugha ?kql x;k] eSa FkksM+h nwj ij [kM+k gks x;kA fQj dgk cpkusas ds fy;s eSa FkksM+k lk ?kql x;kA eSa fpYykrk gqvk nkSM+k Fkk fd ?kcjkvks ugh ge vk x;sA lcls igys gh eS ugh igqpk cfYd esjs lkFk gh lkFk vkSj yksx Hkh vk x;s FksAß He has further stated in his cross examination as under:-
‟33‐ eSa vkB ukS cts fnu esa ?kkl Nhy jgk FkkA tc eqfYteku esjs HkkbZ dks ekjus yxs rHkh mu yksxks dks eSus ns[kkA ekjihV ds oDr xokgku ds vykok xkao ;k vkl ikl dk vkSj dksbZ ugha vk;k FkkA ;g dguk xyr gS fd ftl rjg ls eSa crk jgk gwW ml rjg ls dksbZ >xM+k ugh gqvkA ;g dguk xyr gS fd eqfYteku uUgs] guweku] cspw] j?kqukFk o egknso vius iksLrk ds [ksr dks tk jgs Fks rc ge yksx >kfM+;ksa ls fudy dj mu yksxks ekjus yxs rc mijksDr eqfYteku us viuh cpr esa ykBh o gafl;k pykbZAß Thereafter, in his cross examination on behalf of the accused, namely, Bechu, Hanuman, Raghunath and Nanhey, he has stated as under ‟36‐ ekj [kRe gks tkus ds djhc ?kUVk Ms< ?kUVk ckn rd f'ko ujk;u o ekSthjke ekSds ij iM+s jgsA ogh pkjikbZ eaxokbZ xbZ FkhA jkeukFk] eksgu o iape pkjikbZ ys x;s FksA f'koujk;u dks ?kj ugh yk;s FksA ogka ls vLirky ys x;sA ogka nksuks dh eyge iV~Vh gqbZA ?kVuk LFky ls vLirky 6 ehy ds Qklys ij gSA ?kUVk] Ms<+ ?kUVk vLirky esa yxk FkkA VSDlh Though, he is father of the deceased but he is also an injured witness, therefore, merely because of his relation with the deceased, his testimony cannot be discarded, especially in view of failure of the defence to dislodge his testimony in cross-examination and as his version with regard to the incident, naming of the accused, as also his presence on the spot and how the injured Shiv Narain was carried on a Charpai and his going to Police Station to lodge the F.I.R. etc is concerned, the narration of events by him is natural and does not suffer from any inconsistency so as to make it unreliable. He has clearly mentioned the name of all the accused, the weapons which they were carrying and were used by them to commit the crime. He has also mentioned about his own injury which was result of blow inflicted by the accused-Jagjiwan. He deposed that he was cutting grass towards West of grove of Putti Lal when he heard an alarm raised by Marji Ram and Shiv Narain. He rushed to the scene of crime.
Although, motive is not of much relevance in a case based on direct evidence, nevertheless, this witness has deposed that he had been given ten Biswas of land by Patwari on Patta. The accused-Bechu Lal had destroyed the boundary and entered into the land in his possession and wanted to usurp the same, which led to an altercation between them. He has also stated that two days prior to murder of Marji Ram, an altercation had taken place between accused-Raghunath and Shiv Narain (P.W.1) and his son, namely, Sadhu Ram.
He by his testimony has proved that appellants had killed Marji Ram and injured Shiv Narain (P.W.1) and him i.e. Bishram (P.W.2). He has denied that the informant side was the aggressor and had attacked the defence side. He has proved lodging of F.I.R. by him.
P.W.1-Shiv Narain is uncle of the deceased. It is P.W.1 who along with the deceased was taking the cattle for grazing and when they were returning to their residence, they were attacked by the accused-appellants. He is an injured witness with as many as seventeen injuries. In his examination-in-chief, P.W.1 has narrated the incident as under:-
‟6‐ vkt ls nks lky pkj ekg gq, tc bl eqdnesa dh ?kVuk gqbZ FkhA eaS o ejthjke vius tkuoj xako ds mRrj fHkVgh >hy pjkus ys x;s FksA vius yM+ds lk/kwjke dks eSa tkuojksa dks rd dj ge o ejthjke okil ?kj vk jgs FksA tc ge yksx iqRrh czkgEe.k dh ckx ds mRrjh esM ij igqWps vkSj esM+ ls dqN vkxs ckx ds vUnj igqWps rc cspw] guweku] j?kqukFk] uUgsa] txthou] j?kqoj o nschnhu vjgj ls fudydj ge nksuks dks ?ksj fy;kA ;g vjgj iqRrhyky dh Fkh vkSj nfD[ku rjQ dkQh ?kuh FkhA ;g lHkh yksx gedks o ejthjke dks ekjus yxsA 7‐ muesa ls cspw ds ikl djkSyh FkhA guweku ds ikl ckadk FkkA j?kqukFk ds ikl dkark FkkA cfd;k yksxks ds ikl ykfB;ka FkhA ge o ejthjke fpYyk;sA gekjs o ejthjke ds ikl Hkh gjgk gadkusa ds fy;s ykfB;kW Fkh] ge yksx us Hkh ykfB;ksa ls cpko esa ekjkA 8‐ esjs 'kksj ij foJke] Qdhjs] jkeukFk] Bkdqj izlkn] jkexqyke o lthou ogka vk x;sA pksV [kkdj eSa fxj iM+kA ejthjke 4&5 dne Hkkxs ysfdu mudks Hkh eqfYteku usa ekjdj fxjk fn;kA vkSj fxjus ij Hkh mudks ekjkA ejthjke dks cpkus ds fy;s gekjs HkkbZ foJke vkxs c<+s rks txthou us muds lj ij ykBh ekj nhA foJke Hkh fiNM+ dj fxj x;sA xokgku us eqfYteku dks yydkjk rks eqfYteku iwjc rjQ taxy dh rjQ Hkkx x;sA ejthjke ej x;sA eq>s yksx pkjikbZ ij fVdSruxj Fkkus ys x;sA foJke iSny x;s FksA mijksDr ekjihV fnu esa In his cross examination on behalf of the accused-Bechu, Hanuman, Raghunath and Nanhey, he has deposed as under:-
‟10 iqRrhyky ds [ksr ds nfD[ku foir ds [ksr esa vjgj dh Qly Fkh pjh dh Qly ugh FkhA rqylh ds [ksr esa puk dh Qly Fkh] vjgj dh Qly ugh FkhA ;g rqylh ogh gS ftudk [ksr iqRrh dh ckx ds nf[ku gSA iqRrh dh ckx ds mRrj dksbZ gtkjh dk [ksr ugh gSA fdlh gtkjh ds xksM+s gq, [ksr esa ekjihV ugh gqbZA cfYd iqRrh ds xksMs gq, [ksr esa ekjihV gqbZA iqRrh ds ?kj dksbZ gtkjh uke dk O;fDr ugh gSA enukiqj es gtkjh uke dk dksbZ vkneh ugh gS] esjs iqokZ esa gtkjh nthZ gSA eq>s x<~ 11 ekjihV ds igys eSa eqfYteku dks ugha ns[kk Fkk og vjgj esa fNis FksA ekj [kkusa ij eSa fxj iM+k FkkA esjs diM+s ij [kwu fxjk Fkk] ugha ns[kk fd tehu ij fxjk Fkk ;k ugha tc eSa fxj x;k rks [kksiM+h ij diM+k cka/k fy;kA ugha tkurk fd og diM+k D;k gks x;kA diM+k cka/kdj Fkkus ugh x;k FkkA [;ky ugha fd diM+k D;k gqvkA . . . . . .
17 'kksj ij tks xokgku vk;s Fks og yksx dksbZ gfFk;kj ugh ys x;s Fks dsoy foJke ds ikl ykBh FkhA eSa gjgk gdkus x;k Fkk] ykBh ysdj x;k FkkA gekjs o ejthjke ds gjgk Fks vkSj gjgk igys gh tk pqds FksA gjgk lk/kwjke ds ftEes FkuokMhg esa >hy esa dj vk;k FkkA lk/kwjke esjk yM+dk gSA lk/kwjke ?kj ij gSA lk/kwjke 12&14 lky dk gSA og ?kVukLFky ij ugha vk;k FkkA eSus 4&6 ykBh ekjk FkhA eSusa fxjus ds igys gh ykBh pykbZ Fkh tc eq>s ?ksj dj yksx ekj jgs FksA fxj tkusa ds ckn fQj mBdj eSusa ykBh ugh pykbZA ejthyky us Hkh mlh LFkku ij ykBh pkyk;k FkkA ftl LFkku ij eSus pykbZ FkhA ejthjke 4&5 dne Hkkxs oSls gh eqfYteku us ekj dj mUgs fxjk fn;kA tc xokgku vk;s rks ejthjke dks ekj Mkydj xokgku ds yydkjus ij eqfYteku Hkkx x;sA xokgku tc vk;s rks ejthjke fxj iMs Fks vkSj eqfYteku mUgs ekj Mkys FksAÞ In his cross examination on behalf of the accused Jagjiwan, Raghubar and Devidin, he deposed as under:-
‟19‐‐ foJke ?kVuk LFky ij if'pe rjQ ls vk;s Fksa tgka ge o ekjthjke ekjs x;s mlh txg ij foJke Hkh ekjs x;sA ekjihV 5&6 feuV gqbZ FkhA foJke dks tc txthou us ykBh ekj fn;k rc foJke fiNM+ dj if'pe rjQ cSB x;sA foJke dk [kwu dqjrs ij gh jg x;k FkkA foJke eqjsBk ugha ckW/ks FksA . . . . . .
21. eqfYteku ds Hkkx tkus ds vk/kk ?kaVk ckn rd eSa ?kVukLFky ij iM+k jgkA ogka ls eq>s yksx Fkkus ys x;sA Fkkus ds ikl vLirky esa esjh ejge iV~Vh gqbZA ?kVukLFky ls Fkkuk igqWpus esa nks ?kaVk yxk FkkA ftl pkjikbZ ij eS ys tk;k x;k Fkk og pkjikbZ Fkkus ds vUnj Fkkuk eqa'kh ds ikl mrkjh xbZ FkhAß He has clearly stated that he and Marjiram had taken the cattle for grazing towards North of Village-Bithi Jheel and were returning after assigning cattle to Sadhu Ram, his son. When they reached the northern boundary of grove of Putti Brahaman and went ahead of it then the accused-appellants came out of the Arhar crop and all of them started beating him and Marjin Ram.
In his deposition, P.W.1 has very naturally narrated the events which took place and there is no inconsistency in this regard. The deposition in examination-in-chief has not been dislodged in cross examination and has remained intact. He has clearly mentioned the name of the offenders i.e. the appellants herein, the weapons which they were carrying and which they used to commit the crime. He has clearly mentioned that Bechu was carrying ''Karauli', Hanuman had ''Banka', Raghunath was carrying ''Kanta' and rest were carrying lathis. He (P.W.1) and Marji Ram (deceased) were also carrying lathis. They used lathis in self-defence. He fell down on being hit. Marji Ram ran four to five steps but fell down. The accused hit him also. They hit him even after falling down. Bishram (P.W.2) ran to save Marji Ram (deceased) when Jagjiwan struck him on the head with his lathi. When the witnesses challenged the accused, they ran away towards the jungle on the East. Marji Ram died. He (P.W.1) was carried to P.S.-Tikait Nagar on a Charpai. Bishram (P.W.2) went on foot. The incident took place at 2:30 P.M. during the day time.
In cross-examination, his deposition has not been dislodged, rather, P.W.1 has stood his ground and reiterated the same version without any material inconsistency and has thereby supported the prosecution story whole-heartdly. He has also mentioned about the altercation which took place a day ago involving his son, namely, Sadhu Ram, himself and the accused-Raghunath as also about the dispute between Bishram (P.W.2) and Bechu (accused) pertaining to land, which shows his truthfulness.
His testimony tallies with that of P.W.2-informant and no material inconsistency in this regard could be pointed out by learned counsel for the appellants.
Faqirey (P.W.3) is an independent witness who lives in the same village. His name figures in the F.I.R. also which was lodged promptly as already mentioned earlier. P.W.1 and P.W.2 have also spoken about him reaching the spot along with others when an alarm was raised by Marji Ram (deceased) and Shiv Narain (P.W.1). Therefore, his testimony carries weight, especially as, in cross-examination, the defence has not been able to show that he was in any manner an interested witness. He has narrated the events as under:-
‟(2) vkt ls djhc rhu lky gq;s ejthjke ekj Mkys x;sA ethZjke ds firk dk uke foJke gSA f'koujk;u ethZjke ds ppk gSA ethZjke fnu ds djhc (3) eSa iqRrhyky dh ckx ds [ksr ckn vius [ksr ds cjlhe dkV jgk FkkA gYyk lqukA iRrwyky yky ds ckx ds lkeus ls gYyk gks jgk FkkA eS ogka x;kA ns[kk fd f'koujk;u o ethZjke dks eqfYteku gkftj vnkyr ?ksjs Fks vkSj ekj jgs FksA cspw] djkSyh] guweku ckadk o j?kqukFk dkark rFkk cfd;k eqfYteku ykBh fy;s FksA xqyke] foJke] lthou jkeukFk] Bkdqj izlkn rFkk vki yksx ogka vk x;s FksA ethZjke dks cpkus foJke nkSM+s rc txthou us ,d ykBh foJke dks ekj nhA ethZjke dqN nfD[ku rjQ HkkxsA eqfYteku us mudk ihNk djds ekj dj ethZjke dks xM+gs esa fxjk fn;kA ge yksxks us eqfYteku dks MkaVk o yydkjk rc eqfYteku iwjc rjQ pys x;sA eqfYteku us f'koujk;u dks Hkh ekjdj fxjk fn;k FkkA f'koujk;u o foJke us viuh cpr esa ykBh pyk;k FkkA eqfYteku ds pys tkus ds ckn ge yksxks us ns[kk rks ethZjke ej pqds FksA (4) foJke vkSj f'koujk;u dh pksVs ns[kh FkhA . . . . .
(7) ekSds ij lcls igys foJke igqWps FksA tc eSa igqpkW rc eqfYteku] foJke o f'koujk;u ogka FksA xqyke Hkh ogka Fks] lthou] jkeukFk] Bkdqj izlkn Hkh ogka FksA ;g yksx ekjihV dh txg ls mRrj rjQ FksA ogh tkdj eSa Hkh [kM+k gqvk FkkA foJke o f'koujk;u ykBh fy;s FksA vkSj bu yksxks us Hkh cpko esa ykBh ekjhA f'koujk;u o ethZjke fpYyk jgs Fks fd nkSM+ks cpkvks ?ksjs gS ekjs Mky jgs gS rc eS nkSM+dj ogka x;k FkkA tc eSa igqWpk rks f'koukjk;u o ethZjke ekjs tk jgs FksA tc eSa viBuh; rks ns[kk ethZjke dqN nfD[ku Hkkxs tk jgs Fks vkSj mudk ihNk djds eqfYteku us ekj dj xMgs esa fxjk fn;kA tc eSa igqWpk rks f'ko ujk;u ekj [kkdj fxj pqds FksA foJke dks ykBh yxrs eSus ns[kk FkkA (8) eSus eqfYteku cPpw yky] guweku] uUgs j?kqukFk rFkk ,d egknso ds 'kjhj ij pksV ugha ns[kkA f'koujk;u dh ykBh esa ,d dhyk yxk FkkA f'koujk;u tgka fxjs Fks ogka mudh ykBh iM+h Fkh foJke o ethZ tgka fxjs Fks ml txg ij mudh Hkh ykfB;kW iM+h FkhA mudh ykBh dqN ugh yxk FkkA eSus ykfB;ksa dks mBkdj ugh ns[kk FkkA f'koujk;u dh ykBh ds gwjs ls ,d chrk Åij djhc nks (9) ethZjke dks ykBh pykrs eSus ugh ns[kkA foJke us nks ,d ykBh esjs ns[kus esa pykbZA foJke us dsoy nks ,d ykBh esjs lkeus pykbZA igys tks pyk;k gks eSa ugh tkurkA (10) foJke fxjs ugh Fks dsoy >kSfj;k x;s Fks vkSj f'koujk;u ls 5&6 dne if'pe tkdj [kM+s gks x;s FksA ogka gtkjh dk dksbZ [ksr ugh gSA (11) f'koujk;u tgka fxjs Fks ogka [kwu ugh fxjk FkkA ethZjke tgka fxjs Fks ogka [kwu fxjk FkkA tgka foJke >kSfj;k;s Fks ogka ls 5&6 dne nfD[ku ethZjke fxjs FksA vke ds fcjok ds iwjc nl dne ij ethZjke fxjs FksAÞ The narration of events by P.W.3 tallies with P.W.1 and P.W.2. The same is natural without any material inconsistency. He has deposed that he was cutting ''Barseem' (fooder for cattle), two plots towards west after the grove of Putti Brahaman when there was commotion and shouting towards the grove of Putti Brahaman. Hearing it, he went there. He has clearly mentioned the names of the accused, the weapons which they were wielding and using, as also the fact that they were beating the deceased as also P.W.1 and P.W.2. He has mentioned that Bechu was carrying ''Karauli', Hanuman had ''Banka', Raghunath was carrying ''Kanta' and rest were carrying lathis. He has also deposed about witnessing the accused-Jagjiwan hitting Bishram (P.W.2) with lathi. He also witnessed the deceased-Marji Ram running towards South and the accused chasing and murdering him. He has stated that when he and others challenged the accused, they ran away towards the East. He has also deposed that the accused brought down Shiv Narain by hitting him. Shiv Narain and Bishram had used lathis in self-defence. He saw that Marji Ram had died. He has stated that it was Bishram who reached first of all, at the spot, which tallies with the deposition of P.W.1 and P.W.2. In the cross-examination also, he has stood his ground and the defence could not dislodge his testimony. In his cross examination, he has deposed as under:-
‟(14) eqfYteku esa ls rhu vknfe;ksa ds ikl /kkjnkj vkStkj FksA mues lcls cM+k gfFk;kj ,d gkFk dk cakdk FkkA csaV feykdj ,d gkFk yEck FkkA ckWds dh /kkj Ms<+ chrk dh jgh gksxhA csaV vk/kk chrk dk jgk gksxkA lcls NksVk /kkjokyk vkStkj djkSyh Fkh tks lok chrk yEch Fkh mlesa pkj vaxqy dk csaV FkkA dkark ,d chrk yEck FkkA (15) eqfYteku dh fpYyykV eSus ugha lquhA eqfYeku dks fdlh le; fpYykrs ugha lqukA ge yksxks us dsoy eqfYteku dks MkWVk Fkk ;g ugh dgk Fkk fd vkil esa yM+ks erA (16) tgka eSa vkdj [kM+k gqvk ogkW ls og xM+gk fn[kkbZ iM+rk Fkk ftlesa ethZjke fxjk FkkA tgkW vkdj eSa [kM+k gqvk ogha ls ethZjke dks xM+gs esa ekj [kkdj fxjrs ns[kk tgka eSa [kM+k Fkk ogha ls foJke dks Hkh ykBh yxrs ns[kkA tc eqfYteku pys x;s rc xM++gs ds ikl tkdj ns[kk fd ethZjke ejs iM+s gS vkSj foJke FkksM+h nwj ij cSBdj jks jgs gSA eqfYteku dk ihNk ge yksxks us ugh fd;kA tc f'koukjk;u dks mBkdj yksx ys x;s Fkkus rc ge yksx vius ?kj pys x;sA eqfYteku ds Hkkx tkus ds vk/ks ?kUVs ckn ge yksx f'koujk;u dks ysdj Fkkus ds fy;s jokuk gq;sA f'koujk;u dks yksx xkao gksdj ysdj Fkkus pys x;sA og yksx [kfV;k ysdj igys pys x;s vkSj eS [ksr ij ?kkl cka/kus pyk x;kA vkSj yksxks dks ugha ns[kk fd og [kfV;k ds lkFk x;s ;k fd/kj x;sAß The ocular evidence of P.W.1, P.W.2 and P.W.3 are on the same lines. They have vividly narrated the commission of crime as also the site where the crime was committed. The defence could not show any contradictions in their testimonies vis-a-vis, their statement recorded under Section 161 Cr.P.C. by confronting them with the same in accordance with law before the trial court. We do not find any reason to disbelieve their testimonies and the same are wholly reliable and consistent with the prosecution story.
P.W.6 is the Investigating Officer. He has proved preparation of the site-plan on the basis of statements of Faqirey (P.W.3) and Ram Gulam. Ram Gulam has not been examined. P.W.1-Shiv Narain and P.W.2-Bishram were admitted in hospital, therefore, obviously, the site-plan was not prepared on their pointing out. He has deposed about collecting blood-stained and plain soil from the scene of crime and sealing them. It is true that these articles were not sent for examination to the forensic lab, but, this by itself does not bely the prosecution story in view of the consistent testimonies of P.W.1, P.W.2 and P.W.3 with regard to the situs of crime, especially as, the evidence of accused-Hanuman, D.W.3 also mentions the alleged scene of crime in the same area near the grove of Putti Brahaman. Therefore, minor discrepancies in this regard in the site-plan vis-a-vis, the testimoney of P.W.1, P.W.2 and P.W.3 are not very material and do not adversely affect the prosecution's case, a factor which would be discussed further, hereinafter. He has deposed about the deceased's body being sent to mortuary through Constable-Ayodhya Prasad (P.W.4). He has also deposed about arrest of appellants-accused including the accused-Raghubar who stated that he would get the weapon used in crime recovered. He has deposed that in the presence of witnesses and Raghubar, two blood-stained Lathis and Banka were recovered from the tubewell room after the lock of the room was opened by Raghubar after taking out the keys from Chaukhat, on information given by Raghubar. He has deposed about sealing of Lathis and Banka. The fact that these articles were not sent for examination also does not materially affect the prosecution's case as even if there was no recovery, the ocular evidence in this case as discussed was sufficient to prove the prosecution story as against the accused-appellants. Any lapse in this regard on the part of the Investigating Officer does not help the appellants. The fact that recovery memo has not been proved by independent public witnesses, by itself, is of no help to the accused-appellants, as, the Investigating Officer has proved the recovery and the recovery memo and there is no reason as to why he should be disbelieved when he has made the recovery etc in the discharge of his functions as a police officer and no such reason has been put-forth as to why he would falsely implicate the accused-appellants alone in the said matter. We rely on the decision rendered in 2013 (14) SCC 434 'Rohtash Kumar vs. State of Haryana' in this regard.
As per Section 27 of the Indian Evidence Act, part of statement of an accused in police custody, where he mentions the place where the weapon used in committing the crime is hidden and thereafter on his information and showing, the same is recovered/ discovered by the police, is admissible evidence and law in this regard is very well settled. As regards the disclosure statement, no doubt it has not been separately recorded but in the recovery memo the disclosure statement is mentioned and the same has been proved by the Investigating Officer as having been made in police custody and the recovery has also been proved, therefore, the ingredients of Section 27 of the Act are satisfied. Even otherwise, even if there is no recovery of weapon as per law or it is doubtful, this by itself would not adversely affect the prosecution story in view of the reliable ocular evidence of eye-witnesses, two of whom are injured, as already discussed.
The blood-stained Banka which was recovered as aforesaid was shown to him during trial and he identified it as the same which was recovered on the pointing out of Raghubar. The blood-stained portion of Lathis which were sealed by him was shown to him during trial and he identified them as the one which was recovered on the pointing of Raghubar and were used for commission of crime. He has deposed about the investigation conducted by him regarding the crime as also filing of charge-sheet which was in his writing and under his signatures marked as Ex.Ka.10. He has deposed about details of the site-plan prepared by him. He has mentioned that the distance between point (A) to point (B) in the said site-plan though not mentioned therein, was mentioned in case diary and it was six to seven steps whereas the distance between point (A) to point (C) in the site-plan was ten to fifteen steps. In his cross examination, he has stated that Faqirey (P.W.3) had informed him that at the time of incident he was working towards north of the field. He had not stated that he had come from north-east side of Putti Lal's grove. Based on this, learned counsel for the appellants contended that he was inconsistent in this regard with the testimony of Faqirey (P.W.3). However, this is a minor inconsistency which does not have much impact on the prosecution story. The site-plan does reveal that grove of Putti Brahaman was towards the north of Village-Rajanapur (of which Faqirey was a resident) and also north of Village-Madnapur.
Lapses in investigation by the Investigating Officer cannot enure to the benefit of the appellants in the facts of the present case considering the evidence available and discussed hereinabove. Reference may be made in this regard to the judgment rendered in (2017) 11 SCC 195 ''Yogesh Singh vs. Mahabeer Singh & Ors' where the law on this issue has been clarified.
In this very context, the plea of learned counsel for the appellants that the situs of commission of crime itself has not been proved, needs to be considered. The site-plan of the scene of crime is Ex.Ka.4. It has been prepared by the Investigating Officer on the statement of P.W.3-Faqirey and Ram Gulam. Ram Gulam has not been examined but, Faqirey has deposed. As per the site-plan, there is agricultural field of Putti Brahaman towards north western corner and agricultural field of Ramsukh towards the north eastern corner. Both of them reside in Village-Madnapur. Village-Madnapur is towards south of grove of Putti Brahaman. The crime is alleged to have been committed in the grove of Putti Brahaman which it is said was cultivated and there was Arhar crop also. The place where the body of Marji Ram was lying in ''Gaddha' is marked in the siteplan as ''B'. Point-(A) is the spot where the fight had taken place initially between Shiv Narain, Marji Ram and the accused. From there, Marji Ram ran and fell down at point (B) where he was killed. P.W.6 i.e. the Investigating Officer has stated that distance of point (A) to point (B) is about six to seven steps which tallies subsequently with testimony of P.W.1 in this regard wherein he has stated that Marji Ram ran four or five steps but was brought down by the accused-appellants. The point marked by ''X' in the site-plan is the place where the accused were said to be hiding in the Arhar crop. In the site-plan, towards the west, cultivated agricultural field of Chedi Lal is mentioned. Towards the east, cultivated field of Putti Maharaj is mentioned. Towards the south, on the south western corner agricultural field of Tulsi Ram with Arhar crop is mentioned whereas towards the south-eastern side, agricultural field of Bipat is mentioned with the note that Chari crop had been cut and Arhar was sown therein. Now, in the light of this site-plan, when we see the testimony of P.W.1, P.W.2 and P.W.3 with regard to scene of crime, we find that P.W.1 has stated that crime was committed in the grove of Putti Lal, part of which had been cultivated for farming. P.W.1 has clearly mentioned that the field of Ramsukh existed on north-eastern side of the said grove which tallies with site-plan prepared by the Investigating Officer. He has also mentioned that adjacent to field of Ramsukh is the field of Putti, towards the west of grove of Putti Brahaman are the agricultural field of Chedi Lal which also tallies with site-plan prepared by the Investigating Officer. He has further stated that towards south of said grove are the fields of Bipat and Tulsi Ram which are mentioned in the site-plan. He has further stated in cross-examination that in Bipat's Khet which is south of Putti Lal's Khet, Arhar had been sown and there was no crop of Chari which again tallies with the details mentioned in the siteplan as noticed above. Of course, P.W.1 has stated that in Tulsi Ram's Khet, Chana had been sown and not Arhar. In this regard, when we peruse the testimony of P.W.6, the Investigating Officer, when confronted on this point he has stated that he had noted the crop of Arhar in the field of Tulsi Ram and has also stated that if crop of Chana and 'Jan' existed then he would have noted it but then he has also stated that sometimes omissions do take place. Therefore, not much can be read into this variance, especially as, both the site-plan and the ocular evidence on record mentions the scene of crime as grove of Putti Lal which had been cultivated and also that on some parts of it there was Arhar crop and the accused were alleged to have been hiding in the Arhar crop who came out on seeing Marji Ram and Shiv Narain and attacked them, which resulted in fight at point (A) from where Marji Ram ran four to six steps and fell down at point (B) where he was murdered. P.W.1 has stated that Bishram (P.W.2) was also hit on head by Jagjiwan at the same spot i.e. point (B) which tallies with testimonies of P.W.2 and P.W.3 that Bishram (P.W.2) ran to save Marji Ram (deceased). In these circumstances, merely because, blood-stained and plain soil collected from the scene of crime were not sent for chemical examination by itself does not create any doubt about the scene of crime. The contention of learned counsel for the appellants in this regard is not acceptable. The details of the scene of crime and the adjacent plots mentioned in the site-plan are corroborated by the testimonies of P.W.1, P.W.2 and P.W.3 largely and minor variations, if any, do not affect the prosecution story in this regard. D.W.3 also mentions the scene of crime near grove of Putti Brahaman.
Now, coming to Defence witnesses. D.W.1 is the doctor who is said to have examined the accused-appellants on 06.04.1978 itself. He has deposed of having medically examined Bechu, Hanuman, Mahadev, Raghunath and Nanhe. He has proved the injury report prepared by him after seeing the same. He has identified his signatures on the injury report as Ex. Kha.3 to Ex. Kha 7. He has opined that injury nos.(4) and (5) on the body of Bechu could have been caused by a sharp edged weapon. The rest of the injuries of the accused could have been caused by friction or by blunt object such as lathi. The injuries were fresh and could have been caused at 1 P.M. on 06.04.1978. In cross-examination, he has deposed that injured had not been sent to him by the police. P.W.1, P.W.2 and P.W.3 have themselves spoken about Shiv Narain, Marji Ram as also Bishram using lathis in defence, therefore, the likelihood of some injuries being caused on the accused-appellants also, cannot be ruled out.
D.W.2 is the doctor/ radiologist who had allegedly conducted X-ray of skull, left forearm and right upper arm of the accused-Hanuman and Bechu. He opined that he had found a fracture of right parietal bone on the skull of Hanuman. Fractured middle third of left radius bone with styloid process of left ulna bone seen in left forearm, chip fracture on the lower right of humerous bone seen in right arm in Bechu. He has proved the X-ray reports as Ex.Kha.10 and Ex. Kha-11 as being in his writing under his signature. He has deposed that X-ray was conducted on 11.04.1978 i.e about five days after the incident. He was not cross-examined. Here again, as stated earlier, it is also the case of the informant's side that they used their lathis in private defence as such the blow struck by them could have resulted in injuries as mentioned hereinabove.
D.W.3 is the accused-appellant no.2. In his examination-in-chief, he has deposed as under:-
‟(1) vkt ls 4 lky gqvk] fnu ds ,d cts FksA eSa] egknso] uUgs] j?kqukFk] cspw iksLrk yxkus tk jgs FksA iksLrk dk [ksr esjs xkao ds iwoZ mRrj gSA eSa vius ?kj ls mRrj iwoZ gksdj bl [ksr ds fy, tkrk gwwWA iqRrh ds ckx ds nf{k.k gksdj esjs [ksr dks jkLrk x;k gSA iqRrh yky ds ckn ds nf{k.k ,d HkV~Bk FkkA mldh >kM+h ls egknso] f'koukjk;.k] ethZjke] ds'kjke] uUgs] foJke] lhrkjke] lthou] jkeukFk] ijljke] egknso fudysA egknso ds gkFk esa dkark FkkA ckdh ds gkFk esa ykfB;ka FkhA ;g yksx ge yksxks dks ?ksj dj ekjus yxsA ge yksxks esa viuh cpr esa ykBh vkSj gafl;k pyk;hA esjh rjQ ls ikapks vknfe;ksa dks pksVs vk;hA f'koujk;u vkSj ethZjke ds yM+dks us ,d fnu igys esjs [ksr esa tkuoj pjk;s FksA eSus MkaVk FkkA jkr esa ejthjke vkSj f'koujk;.k 10 cts mykguk ysdj vk, Fks vkSj tkueky dh /kedh fn;k FkkA xkao ls fudky nsus dh /kedh fn;k FkkA mldh fjiksVZ eSus lcsjs dh FkhA ge yksxks dh MkDVjh ckjkcadh esa gqbZ FkhA vkSj uUgs us ?kVuk dh fjiksVZ Hkh dh FkhA iqfyl us dksbZ dk;Zokgh ugha dh rks eSus nkok nk;j fd;kA foJke] f'koukjk;.k vkSj ethZ jke dks pksV vk;h FkhAß In his examination-in-chief, he has stated that he along with accused Mahadev, Nanhey, Raghunath and Bechu were going to sow opium in the field towards east of the village. The path to his field lay towards south of grove of Putti. There was a brick kiln towards south of said grove and Mahadev, Shiv Narain (P.W.1), Marji Ram (deceased), Keshav Ram, Nanhey, Bishram (P.W.2),, Sitaram, Sajiwan, Ram Nath, Paras Ram came (all these are persons of informant side in this appeal) out of the bushes. Mahadev was carrying ''Kanta', rest were carrying lathis. They surrounded and started beating them. In defence, they had to use lathi and Hasiya. Five persons from his side were injured. He has admitted the fact that Bishram (P.W.2), Shiv Narain (P.W.1) and Marji Ram (deceased) were also injured from the other side. He has deposed that in the night, there was an altercation with Marji Ram and Shiv Narain and they had threatened them with dire consequences and to drive them out of the village. He had made a report to the police in the morning. In this regard, it is relevant to refer to deposition of P.W.7, the Head Muhrir of P.S. Tikait Nagar who has accepted receiving of a report from Hanuman (i.e. D.W.3) on 06.04.1978 at 09:50 A.M. against Shiv Narain and Marji Ram under Sections 504/ 506 I.P.C. which have been registered in the Case Diary. the same is marked as Ex.Kha.1. Therefore, this fact is proved from the evidence on record. In cross-examination, he has deposed that Marji Ram (deceased) etc ran towards the west whereas they, meaning thereby, the accused-appellants, ran towards the south-west. This is not acceptable in view of the deposition of P.W.1, P.W.2 and P.W.3 regarding Marji Ram falling down at the scene of crime and dying.
In his cross examination, he has stated that Jagjiwan, Raghubar and Devidin were not present on the scene, meaning thereby, the others were present. As regards these three, there is sufficient ocular evidence to establish that they were also present on the scene of crime and in fact, Jagjiwan had struck a blow on the head of P.W.2-Bishram, while others had beaten them up.
D.W.3 has not given explanation as to why, if according to him, the informant side was the aggressor and committed the crime against the accused at 1 P.M. on 06.04.1978, the F.I.R. relating to the said incident was not lodged at P.S. Tikait Nagar instead, it was lodged at 11:45 P.M on the same day but at P.S. Kotwali, District Barabanki, when the latter did not have jurisdiction in the matter. He has deposed in his examination-in-chief that Nanhey had reported the incident to the police but it did not take any action, therefore, he i.e D.W.3, lodged a complaint. But this does not explain as to why the initial report was lodged at P.S. Kotwali, that too, at 11:45 P.M. on 06.04.1978, if the incident, as alleged, by D.W.1, occurred at 1 P.M. and why it was not lodged at P.S. Tikait Nagar, as, up till then, there was no danger of accused being arrested by the police because the incident which is alleged by the informants herein took place subsequently at 2:30 P.M. From the testimony of P.W.7, it is proved that on 11.04.1978 at 09:35 P.M., the Nakal Chik was received from Thana-Kotwali at P.S. Tikait Nagar regarding the incident reported on 06.04.1978 at 11:45 P.M. referred hereinabove, based on which, a Taftishi Ilzam No.50 (A) under Sections 147, 148 and 323 I.P.C. was registered against Marji Ram, Nanhe etc. Thereafter, it appears that a complaint was filed before the Magistrate concerned and the same was tried as referred hereinabove in which the accused who are informant side in this appeal, were acquitted.
As regards the plea of private defence, from the evidence discussed hereinabove, it is proved that accused-appellants were hiding in Arhar crop in the grove of Putti Maharaj and when, Shiv Narain and Marji Ram entered the said grove, when accused/ appellants pounced upon them and attacked them. Shiv Narain and Marji Ram as also Bishram, who reached the spot on an alarm being raised, used their lathis to defend themselves and ultimately Marji Ram died on account of injuries sustained by him from the blows struck by the accused-appellants whereas Shiv Narain was grievously injured and Bishram was also injured. As against this, the evidence of defence witness no.3-accused Hanuman is not reliable, in the face of reliable evidence of P.W.1, P.W.2 and P.W.3. The appellants are proved to be aggressors. In view of this, the plea of private defence fails.
In view of the above discussion, none of the arguments advanced by learned Amicus on behalf of the appellants and the decisions cited by him help his cause.
Based on the evidence discussed hereinabove, especially the ocular evidence of two injured eye-witnesses i.e. P.W.1 and P.W.2 and one independent eye-witness i.e. P.W.3 as also the medical and other evidence on record, it is proved beyond doubt that the appellants formed unlawful assembly with a common object and committed the offence of murder of Marjiram punishable under Section 302 I.P.C. read with Section 149 I.P.C. They are held to be guilty accordingly. The trial court has rightly convicted and sentenced them to life imprisonment on this count. Considering the injuries on the body of P.W.1 which are as many as seventeen, some of them are on vital parts (injury nos.10 and 12 on the scalp), they also prove that the appellants are guilty of committing the offence punishable under Section 307 I.P.C. read with Section 149 I.P.C. and the trial court has rightly convicted and sentenced them to undergo five years rigorous imprisonment on this count. Considering the facts of the case and evidence, as discussed, the conviction of appellant nos.2, 3, 5 and 6 for the offence under Section 147 I.P.C. and conviction and sentencing of appellant nos.2 and 3 for the offence under Section 148 I.P.C., is also justified.
Having gone through judgment of the trial court, we do not find any reason to interfere with the conviction and sentencing of the appellants for the reasons discussed hereinabove. The appeal is accordingly dismissed.
The appellants/ convicts are already in jail. They shall serve their sentence in jail as confirmed hereinabove.
Le a copy of this judgment along with original record of the trial court be send back to the trial court concerned for information and necessary action.
Sri Rajesh Kumar Dwivedi, learned Amicus Curaie who has argued the matter on behalf of the appellants shall be paid Rs.25,000/- (Rupees Twenty Five Thousand Only) by the Allahabad High Court for his services.
(Mrs. Saroj Yadav,J.) (Rajan Roy,J.) Order Date :- 06.05.2022 Shanu/-