Allahabad High Court
Vishwanath vs State Of U.P. on 24 May, 2019
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 17.4.2019 Delivered on 24.5.2019 Court No. - 1 Case :- CRIMINAL APPEAL No.-852 of 1983 Appellant :- Vishwanath Respondent :- State Of U.P. Counsel for Appellant :- S.S. Tewari,A.C. Chaturvedi,Akhilesh Kumar Pandey,Kamla Singh,Umesh Chandra Mishra Counsel for Respondent :- Dga,A.G.A.,Raj Kumar Mishra,Rajiv Lochan Shukla,Satya Prakash Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon'ble Dinesh Kumar Singh-I, J.)
1. Heard Mrs. Kamla Singh, learned counsel for the appellants, Sri Rajiv Lochan Shukla, learned counsel for the complainant as well as Mrs. Archana Singh, learned A.G.A. appearing for the State.
2. This criminal appeal has been preferred by the accused-appellants Vishwanath, Basant Singh, Subhash, Kailash Baboo and Sri Govind against judgment and order dated 6.4.1983, passed by Sessions Judge, Etawah in Sessions Trial No.130 of 1979 (State Vs. Vishwanath and 4 others) whereby accused-appellants Vishwanath, Basant and Subhash have been convicted under Section 148, 302/149, 324/149 IPC and sentenced under Section 148 IPC with one year R.I., under Section 324/149 IPC with two years R.I. and under Section 302/149 IPC with life imprisonment and Sri Govind and Kailash Baboo have been convicted under Sections 147, 302/149 and 324/149 IPC and sentenced with six months R.I. under Section 147 IPC, two years R.I., under Section 324/149 and life imprisonment under Section 302/149 IPC. All these sentences are directed to run concurrently.
3. During pendency of appeal accused-appellants Basant Singh and Sri Govind have died and, their appeals have been abated vide this Court's order dated 27.7.2016. Therefore, the appeal of the remaining accused-appellants namely Vishwanath, Subhash and Kailash only survive for our consideration.
4. The prosecution case as disclosed from the FIR is that informant P.W.1 Murari Lal after irrigating his field on 4.12.1978 was going home by the road in the morning and on the way his cousin brother Kailash Narayan Awasthi (deceased) son of Nawab Singh met him and both of them proceeded together. When at about 8:30 AM they reached towards north of the field of Anand Swaroop in their village in the western side, Vishwanath son of Sri Govind armed with country made pistol, Basant son of Mukund Singh and Subhash son of Shyam Bihari armed with fawda, Kailash Babu son of Sri Govind and Sri Govind son of Ram Nath armed with lathis, met him, who all belong to his village, with whom he had old enmity. As soon as they reached, near them Sri Govind exhorted, let Kailash be killed he should not be left alive because he does lot of pairavi in the cases. At this, Vishwanath made a FIR upon informant's brother Kailash Narayan Awasthi by which he fell down. Thereafter, both of them raised alarm, whereon Soney Lal, Ram Sanehi, Dwarika and many others came there. As soon as Kailash Narayan fell down, all the four accused started assaulting him with lathis and fawada to the extent that his head was crushed. He tried very hard to save his brother and in the process, out of the accused, Subhash and Sri Govind also assaulted the informant with lathi and fawda by which he also received injuries. On account of his brother Kailash Narayan having received injuries, he died on the spot. On the witnesses raising alarm, all the accused fled away towards west and the witnesses did not chase the accused because of fear.
5. On the above, report (Ex. Ka-1), Case Crime No.258 of 1978 was registered at P.S. Bakewar, District Etawah, under Sections 147, 148, 149, 302, 323 and 324 IPC against accused Vishwanath, Basant Singh, Subhash, Kailash Babu and Sri Govind by Head Moharir H.C. 19 Nand Kishor, P.W.6 who prepared chick FIR (Ex. Ka-15 and made entry in G.D. at report no.20 on 4.12.1978 which is exhibit ka-16. On 22.5.1979, he sent nine bundles containing articles related to this offence and entry of the same was made at report no.12 in G.D. dated 22.5.1979 which is exhibit ka-17.
6. The investigation of this case was assigned to S.I. Jagdamba Srivastava who proceeded to the place of occurrence on 4.12.1978 at about 11 AM and reached there at 11.15 AM and filled-up panchayatnama of the deceased, prepared photo lash, challan lash and chhithi for post mortem which are Ex. Ka-2, Ka-5 and Ka.-7 respectively. The dead body was sealed and handed over to constable Heera Shanker and Prabhu Shanker. The informant Murari Lal had also accompanied him to the place of occurrence and from there he was dispatched for his medical examination, thereafter he made inspection of the place of incident and prepared site plan which is Ex. Ka. 8. He collected plain soil (Material Ex. Ka.-13, blood-stained soil (Material Ex. Ka.14) and kept them in separate containers and prepared its fard which is Ex. Ka.-19. Prior to sealing the dead-body of the deceased, the fard with respect to the personal belongings of the deceased i.e. one Coat, (Material Ex. Ka-1), Pant (Material Ex. Ka-2), one Shirt (Material Ex. Ka.-3, Sweater (Material Ex. Ka-4) Tie (Material Ex. Ka-11) were taken in possession and their fard was prepared which is Ex. Ka.-2. At the same time one pair of Shoes (Material Ex. Ka.6), Socks (Material Ex. Ka-5), Belt (Material Ex. Ka-7) were also taken in possession which were recovered near the dead-body of the deceased and their fard was prepared which is Ex. Ka.11. One blood-stained bullet was also taken in possession by him which was sealed and its fard recovery was prepared which is Ex. Ka.12 and the said bullet is Material Ex. Ka-15. Thereafter, he came to know that accused Basant was hiding in sugarcane field and, therefore, he along with other police personnel and witnesses Hari Kishan, Din Dayal and many others went to the said field of sugarcane which belonged to Ram Prakash Barbar, where accused-Basant was found, who was taken into custody and his statement was recorded. The said accused disclosed that he had concealed the bloodstained fawda in his field of lahi which could be provided by him. Thereafter, the said accused with the witnesses was taken to the said field of lahi where he gave out one fawda which is Material Ex. Ka.12. The handle of the said fawda was cut into two parts and thereafter, the iron part of fawda and its wooden handle were sealed at one place while rest of the handle was sealed separately and their fard was made which is Ex. Ka.3. A site-plan was also prepared of the said place from where accused persons had provided fawda which is not available on record. Thereafter the accused-Basant was dispatched to police station with constable Raja Ram and Indrajeet. He also recorded the statements of witnesses of the said fard of fawda namely, Din Dayal and Hari Kishan and thereafter, made raid at the houses of accused but none could be found. He recorded statement of witnesses Soney Lal, Ram Sanehi etc and remained in village during the night and on the next day in the morning at about 8 AM got sealed, one bullet, and deposited it in Malkhana which was entered in G.D. in report no.14 by Head Constable Nand Kishor which is exhibit ka-13. Thereafter, against other accused, process was followed under Section 82 and 83 Cr.P.C. for securing their presence. Accused Kailash on 9.12.1978, and accused Subhash, Vishwanath and Govind on 13.12.1978 surrendered in Court and thereafter, they were interrogated in jail. After concluding the investigation the charge-sheet was submitted against them which is Ex. Ka.14. He also recorded statement of Dr. P.K. Sharma on 8.7.1979 after submission of charge-sheet.
7. Charges were framed against accused Vishwanath, Basant Singh and Subhash under Sections 148, 302/149 and 324/149 IPC to which they pleaded not guilty and claimed to be tried and a separate charge has been framed on the same day against accused Kailash and Sri Govind under Sections 147, 302/ 149 and 324/149 IPC to which they pleaded not guilty and claimed to be tried.
8. In order to prove the prosecution case, Murari Lal, cousin brother of deceased as P.W.1, Soney Lal, an independent eye witness as P.W.2, Din Dayal, witness of inquest as P.W.3, Dr. P.K. Sharma who conducted the postmortem of the deceased as P.W.4, S.I. Jagdamba Srivastava who conducted the investigation as P.W.5, Constable Nand Kishor who prepared chick FIR and G.D. as P.W.6, Constable Shishu Pal Singh and Constable Jairam Singh as P.W.7 and 8 respectively and Dr. S. Tripathi who conducted examination of the injured informant as P.W.9, were examined.
9. Thereafter, the prosecution evidence was closed and the statements of accused under Section 313 Cr.P.C. were recorded on 10.3.1983 in which they have taken the plea of false implication and although no evidence has been adduced in defence. It is also stated that entire evidence which has been gathered by the prosecution against them is false and fabricated.
10. On the basis of evidence which has been cited above, and after having heard both the sides, the Trial Court has held the accused-appellants guilty and has awarded the punishment as noted above.
11. The learned counsel for the appellants has argued that the occurrence did not take place in the manner as stated by the prosecution and the same appears to have happened, while the deceased might have been returning from some marriage because he was found wearing a tie and some unknown assailants would have killed him. It is further argued that the injuries which are found to have been suffered by the deceased appear to have been caused by two different weapons. The prosecution version has been improved in accordance with the injuries found in post-mortem report and in view of that the statement of eye witnesses has been modified to the effect that the fire was made from the front although, initially the prosecution case was that the deceased was fired upon and no direction was mentioned as to from where he was fired. The recovery of one fawda is alleged to have been made from accused Basant and from remaining accused no recovery has been made. All the accused had surrendered before Court as they were innocent and wanted to be acquitted by Court by submitting to the process of law. It was also argued that informant was also carrying a weapon but he did not make fire from it which is unusual. How, P.W.1 reached the place of incident has not been made clear in evidence therefore, the presence of P.W.1 at the seen of occurrence is doubtful. In small intestine and large intestine fecal matter was found in post mortem which suggests that the time at which the prosecution has alleged the murder to have taken place, was incorrect and therefore, benefit of doubt should be given to the accused-appellants. Besides it, after reading out the statement of the eye witnesses, the learned counsel for the appellants pointed out that there were a number of discrepancies in their statements which belies their presence on the spot.
12. As against this, the learned counsel for the complainant as well as learned AGA have vehemently defended the impugned judgment and argued that there was no lacuna in the impugned judgment because the eye witnesses' account is wholly corroborated by the medical evidence and whatever weapons are stated to have been used by the accused side in causing injuries to the deceased as well as the injuries to the injured persons the same were possible to be caused to them. P.W.1 has clearly stated that he ran away from the place where the deceased was being assaulted in order to save himself and after standing at a distance, had seen the occurrence which is very natural. He also argued that in the statement of P.W.1 he has stated that even after the deceased was fired upon, which hit him, after his falling down, all the accused assaulted him by lathis and fawda, so much so that his head was crushed, which is nothing but an exaggeration which is very commonly seen in statements made by rustic witnesses, but it cannot be ruled that the deceased did sustain injuries of fire arm, lathi and fawda which is the sharped-aged weapon as he was found to have sustained 5 injuries, out of which two were gun shot injuries, one lacerated wound, one abrasion and the other gun shot. Two injuries of gun shot have been counted as one because one was entry wound and the other was exit wound.
13. It is also argued that the gun shot wound which was tangential appears to be a grazing shot. He further argued that the presence of P.W.1 at the seen of occurrence cannot be disbelieved because he has suffered injuries of the same weapons which were stated to have been carried by the accused side, his presence cannot be doubted only because he is related to the deceased as he was returning with the deceased who met him on the road when the P.W.1 was returning after irrigating his field. Nothing has been suggested in cross-examination from the side of accused that he was making false statement with respect to his presence on the seen of occurrence. Also no suggestion was given from the side of defence that he (Soney Lal) was not present on the spot at the time of occurrence. It was well within the right of accused to put a leading question in this regard but no such question was put to him and therefore, the accused side has failed in discharging its burden. With respect to the discrepancy highlighted from the appellants' side that in FIR, one fire was stated to have been made upon the deceased while injuries found on the deceased, appears to be two fire shots, it was argued that no clarification has been made in cross-examination from the side of accused in this regard and therefore, it cannot be held that if in FIR, it is mentioned that fire was made, would not mean that two fires were not made and that it should be interpreted that only one fire was made. He also argued that the theory of the appellants side to suggest that there should be two weapons used in the commission of offence also deserves to be discarded as no suggestion was given from their side to any of the witnesses. It is also stressed that the case is of the year 1979 and, therefore, how the records were being maintained and how things were working, cannot be visualized as on date.
14. In the light of respective arguments we have to see, the evidence on record and form opinion whether the impugned judgment deserves to be upheld or needs to be set aside.
15. P.W.1., Murari Lal who is cousin brother of the deceased has stated in examination-in-chief, that deceased Kailash Narayan is his cousin brother who was a conductor in Road-ways. Accused Vishwanath and Kailash Babu are real brothers and are sons of co-accused Govind. Accused Subhash is cousin brother (Khandani) of accused Vishwanath. Accused Basant Singh belongs to the party of these accused. All the five accused were present in Court. The deceased was Karta of his family. About five months ago, prior to the murder of deceased accused Vishwanath, Subhash, Kailash Babu and Basant Singh and two others had beaten tau of the deceased namely Banwari Lal and father of the deceased Nawab Singh after entering into their house, a report regarding which was got lodged at P.S. Bakewar by Banwari Lal. About one and half months thereafter, accused Govind had lodged a report of marpeet against P.W.1 his younger brother Bishun Kumar, brother of deceased Daya Shanker and Santosh etc. In both these cases, the police have submitted final report but in respect of both the cases, a case under Section 107 Cr.P.C. was initiated. At the time of present occurrence, the proceedings under Section 107 Cr.P.C. were still going on.
16. Further this witness has stated that on 4.12.1978 at about 8:30 AM he was returning home after irrigating his land by a Pacca Road, where, on the road Kailash (deceased) met him at the place from where the passage begins for going to the village. Both of them became together and proceeded towards their house. When they reached near the field of Anand Swaroop in which gram was sown, they saw all the five accused coming from the front, out of whom Vishwanath with a country made pistol, Govind and Kailash Babu with lathis, Subhash and Basant with fawda were armed and Govind exhorted "Salo Ko Mar Do Bhachne Na Paven, Kailash Sala Mukadame Ki Batut Pairvi Karta Hai" "Let all these people be killed they should not be left alive as Kailash does lot of pairvi in cases". At his exhortation Vishwanath made fire by his country made pistol upon Kailash which hit on his forehead and he fell down with his face down. When the accused had assaulted, both of them had screamed a loud. On the shoulder and hand P.W.1 sustained injuries of lathi by the blow which was made by Sri Govind and blow of fawda was made by Subhash upon him and both these blows had hit him. Thereafter, he ran away and stood at a distance and kept screaming. There, Ram Sanehi and Dwarika also had reached and from the north, Soney Lal had also come there. After Kailash Narayan had fallen down, the accused had made blows upon him with lathi and fawda also and this was done by all the 4 accused apart from Vishwanath. At the shouting of the witnesses the accused fled towards west and thereafter, when all of them (witnesses) came near Kailash Narayan, he had already died. In the meantime, many people had come there. He after calling for a paper had written a report at the seen of occurrence which is Ex. Ka.1 and was signed by him which was submitted at police station. He had come to the place of incident with the Inspector, from where the Inspector had sent him at about 1-1/4 PM for his medical examination to Mahewa Hospital, from where because of non-availability of doctor, the constable had taken him to Etawah Sadar Hospital where he was medically examined. The deceased was wearing coat, pant, full sleeves' sweater, socks, shoes, under garments (Chaddi, Baniyan) janew and tie which are material exhibits ka-1 to 11.
17. This witness in response to a question put to him has stated that after irrigating his field he had come on the road and he was seen by his brother and then they became together and thereafter, he had seen the occurrence. His field is situated to the north of the road, the number of which is 15 and 16, both these fields are a single agricultural land which is recorded in the name of his father. His village is situated towards north of the Auraiya-Etawah road, from the said road his village is situated at a distance of about one and half furlong and his field is situated at a distance of about one furlong from the road towards north. One chak, road goes towards east from the said field which goes to his village. He was going to this village after having seen his other chak, which was towards South of the road and was adjoining to it. Towards the north of the said road is a tube-well belonging to his family where fawda etc. are kept. He has further stated that he used to irrigate his land on appointed time which was fixed for 5 AM to 11:30 AM once in a week i.e. on Wednesday. The tube-well where he used to keep his fawda at the tube-well there people used to live. On the said date when he had kept his fawda there, then also people were present there. The son of Bateswar Dayal namely, Saryu Narayan and Devi Charan were there, both of them had not met him prior to the said time, therefore, he has stated that they had met him at about 4 AM and after having talked to them he had started irrigating his field. From his northern chak, the chak of these two persons, in which tube-well is installed, would lie after one field and the distance between the two would be about 100 paces.
18. Further, this witness has stated that he runs tempo also and sometimes he engages a driver for running the same and also does agricultural work, he never indulged in gambling. Although one false case of gambling was slapped against him in which he was convicted although he was acquitted in appeal. He denied the suggestion that he did not do agricultural work and that a receipt of irrigation is also false which was only procured by him with a view to showing his presence at the place of incident. He has also stated that in the night of occurrence he was having a blanket on his shoulder and when he reached at the road from the tube-well, he met his father whom he had given the blanket as the sun had risen and after giving the blanket he had gone to see his chak which lay in the south and thereafter, he went towards home. When he returned home why he did not carry with him the said blanket and instead had handed over the same to his father, he could not tell its reason. It is not right to say that he was stating to have given the said blanket to his father so that the injury which is found to have been sustained by him at his shoulder in this occurrence could be proved. His southern chak, where the blanket was given to his father, from there, the kaccha road which goes to his village, was about three farlong away. The said turn is visible from the road which is near his southern chak. About 50 to 60 paces were left to be covered when he saw that a bus had stopped and his brother Kailash was getting down from it. The said Government Bus was going from Etawah to Auraiya number of which he does not know. When P.W.1 received injury he was wearing a shirt which had got cut, his kurta had also got cut, whatever clothes he was wearing had got cut, and on his kurta blood spots were present and the same kurta he was wearing, when he had gone to the police station but the same was not taken in possession by the I.O. nor the same was asked to be given to the I.O. This witness has denied that he did not receive any injury nor was there any blood spot on his clothes and that he was not on the place of occurrence.
19. About 8 to 9 years prior to the occurrence, Kailash was in the service of Roadways. Whatever litigation has been stated to be there between accused and family of Kailash, Kailash was one of the parties in them. Deceased Kailash had not got any report lodged against any of the accused, nor was he named witnesses in any of them. Kailash was karta of his family, was stated by him in Court for the first time and before that he did not mention it in report nor was that stated by him to the I.O. because it was not asked. Although, the cases which have been contested against accused, in those, P.W.1 has been a witness or a party. In those cases, in which a final report was submitted, he was named as a party. In those days Kailash was conductor on the bus which used to ply between Lucknow to Allahabad. The cases in which dates were being fixed for hearing, in which Kailash was stated to be doing pairavi, he could not tell as to which were the dates fixed or on which date he had gone to kutcheri in pairavi. He also does not recollect as to in which case Kailash had got himself bailed out. He denied that Kailash was not doing pairavi and had not got himself bailed out, nor did he have anything to do with any case. The bus on which Kailash was a conductor used to leave Etawah at 6:30 AM for Lucknow and used to return from there in the night at about 9-9:30 PM. From the Etawah bus stand, one would reach P.W.1's home within 20 to 25 minutes. On the date when incident happened the deceased used to rise at about 7-7:30 AM, he does not know till date as to from which bus Kailash had got down and what was its number. The said day was a day of rest for him, therefore, he was coming home, meaning-thereby on that date he was returning from Etawah and on the next date it was rest day for him. Sometimes for the rest day he used to come to the village by his own bus. In summers he used to come home at about 7-7:30 PM and in winters at about 8-8:30 PM. Further this witness has stated that the road where it turns for the chak road, there are shops and houses on the road. At that time, the shops of Surajbhan and Ram Lakhan were there. When he had screamed out loudly, some people had come on the place of occurrence but who were they, he could not tell exactly. About 2 to 3 minutes after the occurrence, he could know that people of vicinity had come there. The eye witnesses of this occurrence, were residents of middle of abadi in the north-eastern side. None of the witnesses had any agricultural land, near the place of incident. First of all, he had seen the accused and at that time they were about 8 to 10 paces away from him and were strolling there. As soon as, he saw weapons in their hands (country made pistol), they started exhorting and the accused started proceeding towards them and hardly they had come forward about 2 to 4 paces, where the occurrence happened. Towards south of the place of incident is a big field of Anand Swaroop. This field must be about 100-150 paces long north-south which was having crop of gram in it. If a person would stand on the south-eastern med of the field of Anand Swaroop, he could easily see the place of occurrence as only one or two trees of Besharam were there. If one would see with concentration from there, he could see the accused standing there. Further this witness has stated that as soon as he saw, the accused they started challenging and made fire, did not give them any opportunity to ran away. The fire hit right side in the head of Kailash and soon he fell down. Kailash could not speak after getting hit. After falling of Kailash accused started making blows by lathi and fawda at his head and made so many blows so that his head was crushed. When the Kailash was being assaulted, P.W.1 came forward to rescue him, then he was also beaten, then he fled away from there to a distance of 50-60 paces and then he turned around and saw that the accused had fled from the place of incident. Thereafter, he saw that the accused had fled towards west, where, at about 4 to 16 paces towards west was the house of Kailash. About 15 paces from the place of incident away, was the field of accused Sri Govind. By the side of the med of his field accused had fled. The crop of Lahi in that field was of about a man's height. Further this witness has stated that after getting hit by fire-arm in his head Kailash could not speak. He had seen there only that the bullet had gone through but immediately thereafter stated that he could not know as to whether the bullet had gone through. He further stated that he could not tell whether brain matter had come out after receiving bullet injury because after the said injury of bullet in head, also he was beaten badly. It is wrong to say that now he had come to know that after getting hit by bullet, the deceased was not in a condition to speak but it is right to say that after getting hit by bullet, the deceased did not speak. He had mentioned in the report that Vishwanath had made fire upon his brother Kailash Narayan Awasthi by which he had fallen. Both of them had screamed, by which lot of villagers had come there, it was rightly written in the report. By this, he did not mean that after getting hit by bullet, the deceased did not scream, before getting hit by bullet and after being challenged/exhorted, both of them had screamed and this only was sought to be conveyed by making above statement. After the deceased, getting hit by bullet, P.W.1 had screamed alone and the deceased had not shouted. The I.O. had recorded the statement but he did not give him the statement that fire was made upon Kailash Narayan Awasthi, from the front, from a distance of about 3 to 4 paces, and by getting hit he fell down and uttered "Hai Mar Dala"
20. After receiving the bullet injury, the deceased stated, "Hai Mar Dala" was not stated by P.W.1 to the I.O. Thereafter, this witness was read out his statement recorded under Section 161 Cr.P.C. and when it was found that the said statement was written therein, he has stated that he could not tell as to how the I.O. had written the same. He further stated that he had told the I.O. that prior to making of fire both of them had screamed. Again he was read out statement under Section 161 Cr.P.C. where-after he has stated that he cannot tell as to why the I.O. had recorded therein that prior to getting hit by bullet they had screamed, was not recorded by the I.O. Further this witness has stated that after running from the place of incident he had gone and stood near the well of Jodha Kori and there he made hue and cry. It is not right to say that when he reached the well of Jodha and when he cried aloud, at that time witnesses came there. Soney Lal had come there as soon as fire was made and Ram Sanehi and Dwarika had met him when P.W.1 had reached near the well and had stopped there. He had given this statement to the I.O. correctly that after running some distance he stopped near the well of kori and started shouting loudly, hearing which Soney Lal son of Badalu, of the village, from near the tree of Chhekur, Ram Sanehi son of Dujju and Dwarika Prasad son of Vishwanath @ Shiv Nath, had also reached near the well of Jhoda Kori and other villagers had also come there. In this statement, the word others included those names such as Shyam Bihari, Sumit Narayan, Druv etc. but these people had not seen the occurrence. He again stated that it was written in his report correctly that when both of them screamed, Soney Lal, Ram Sanehi, Dwarika Prasad and many others had come there and by others he meant that Dhruv etc. who have been named above, had also come. Further this witness has stated that he could not tell why the accused had not beaten him more. When he reached near the well, Ram Sanehi and Dwarika were present there. When he was running towards well right then, he had seen them coming towards well. From the well of Jhodha the house of Thakur Das and Shops would be at a distance of about 1-1/4 farlong but he did not notice whether the residents of these village and owners of the shop had come on the spot or not although, subsequently a lot of people had assembled there. After the fleeing away of the accused when he went near Kailash from the well, at that time Ram Sanehi, Soney Lal and Dwarika were accompanying him. He had not written in the report that from the place of incident he had ran away towards the well and on his screaming, other witnesses had come there because he did not consider it necessary. Further this witness has stated that from the place of incident the police station could be reached within 20 to 25 minutes. The police, first of all, had reached the place of incident at about 11 to 11¼ AM. He was not sent for medical examination from the police station. On his own, he stated that paper was made ready by Diwan Jee at the police station but the Inspector had brought him at the place of occurrence and after Panchayatnama was over, he was sent with constable for his medical examination. Bakewar would lie towards east from the place of incident. The letter was given with regard to his medical to be conducted at Mahewa Hospital which would lie towards east of Bakewar. From Bakewar, Mahewa was at a distance of about 4 to 5 miles. At the place of incident, the Inspector did not take his help. He was taken in jeep of Inspector where the doctor was not present, where-after he came back to P.S. Bakewar and left the jeep there and thereafter he was taken in bus by the same constable to Etawah Hospital. He reached there at about 2PM from Mahewa to Bakewar and at Bakewar within 5 to 10 minutes he got a bus for Etawah and thereafter, in the said night, he stayed at Etawah. The same day at 5 PM he had gone to mortuary as the dead-body had reached there by that time. The post-mortem was conducted on the next day, and on the next day at about 10 AM he had gone to hospital, by that time post-mortem had not been conducted. He had gone to the hospital all-alone while his father and others continued to stay back at the mortuary. Lastly he again has denied not to have seen the occurrence and that after having seen the dead-body and the injury sustained by the deceased, on the basis of conjuncture, he lodged the false report against the accused persons.
21. It would be appropriate to refer here to the site-plan, Ex. Ka.-8 which has been made by the I.O. so as to appreciate the evidence of P.W.1 and other eye witnesses in the light of the said site plan. In this document by ''A' is shown the place where dead-body of Kailash Narayan Awasthi was lying, where lot of blood was lying. On that place, the accused are stated to have made fire upon him and getting hit he had fallen down there and thereafter, he was assaulted there only, by other accused with the aid of lathi and fawda where he ultimately died; by ''D' is shown the place from where plain soil was collected; by ''C' is shown the place from where bloodstained soil was collected; by ''D' is shown the place from where accused Vishwanath had made fire upon Kailash Narayan from the front which is four places towards west of ''A', at that place the accused Vishwanath continued to be standing with the country made pistol; by ''E' is shown the place which is situated on chak road towards south of the place shown by ''A', where informant and Murari Lal were present, when Kailash Narayan was fired upon and where the informant had screamed and there, only accused Subhash and Sri Govind had assaulted the informant; by ''F' is shown the place where, after getting injured Murari Lal fell and was screaming and the said place is about 65 paces away towards south from the place shown by ''A' and from here the informant is stated to have seen the occurrence; by ''G' is shown the place from where witness Ram Sanehi had witnessed, the occurrence, which was 65 paces away towards south from the place shown by ''A'; by ''H' is shown the place from where witness Dwarika had witnessed the occurrence and which was also 65 paces away towards south from the place shown by ''A'; by ''I' is shown the place from where Soney Lal had seen the occurrence which was near the trees of Chhekur and was about 20 paces towards west from the place shown by ''A'.
22. We find that the statement of P.W.1 narrated above in respect of the happening of this occurrence and the place from where he had fled after getting injuries and from where he had seen the occurrence in which the deceased had died, have been shown in the said site-plan and the said site-plan is wholly found to have been corroborated by the statement of P.W.1. This witness has also clearly stated that there was enmity between the two sides as five months prior to this occurrence the accused side had beaten the grand-father (Tau) and father of the informant inside their house regarding which FIR was lodged and thereafter, after about one and half months, the accused Sri Govind had lodged a report concerning marpeet again informant and his younger brother and the brother of deceased and Santosh etc. and a case under Section 107 Cr.P.C. was also going-on when the occurrence happened. Therefore, we find that there was motive to the accused to cause this occurrence. Despite very meticulous cross-examination made by the defence side nothing such has emerged which would make the testimony of this witness to be suspect. His presence at the place of incident is found to be proved by us because he was accompanying the deceased, who was a conductor on a bus and who had got down from the said bus in the morning around the same time when this witness was returning home after irrigating his field and both of them were coming home, this incident happened on the way, we did not see any unnatural element in both these persons being together at the time of occurrence. It is also noticeable that P.W.1 is an injured witness who was also assaulted by the accused side in which he had received injury and had fled from there to save his life and from a distance he had seen the entire occurrence in which the deceased lost his life.
23. P.W.2 Soney Lal has stated in examination-in-chief that at about three years eight months ago he was going to the field of Badshah for bringing Karab and as soon as he reached near the tree of Chhekur at about 8-8:30 AM he saw that Sri Govind, Viswanth, Basant Singh, Subhash Babu and Kailash Narayan, who all are present in Court, were standing there, out of whom Sri Govind and Kailash Babu armed with lathi, Basant and Subhash with fawda and Vishwanath, was ante-handed. At that very moment, he saw Kailash and one Murari Lal coming from the southern side. Right then accused Sri Govind shouted that Kailash Narayan does lot of pairavi in cases, therefore, he should be eliminated. At this exhortation made by Sri Govind, Vishwanath made fire by country made pistol which hit Kailash Narayan at his forehead. Murari Lal screamed out loudly, 'Daudiya Mere Bhai Ko Mar Dala'. By then Sri Govind with lathi and Subhash with fawda started assaulting Murari Lal. Murari Lal after fleeing from there towards south stood near the well. From that side Dwarika and Ram Sanehi gave a call that they were coming. All the accused together with lathi and fawda assaulted Kailash Narayan and thereafter, they had fled towards western side and in this occurrence Kailash Narayan died on the spot. Further this witness has stated that about two hours, thereafter the I.O. came at the seen of occurrence who prepared Panchayatnama of Kailash Narayan, in which this witness was also made a panch and his signature was taken on inquest report which is exhibit ka-2.
24. In cross-examination this witness has stated that with respect to the happening of occurrence that soon after getting hit by the fire-arm injury Kailash Narayan fell down and did not utter a word. Prior to getting hit by the bullet he had screamed "Hai Mar Dala" after getting hit he was not in a condition to speak. It is wrong to say that he came to know subsequently that the deceased had died after getting hit by the bullet. He had given statement to I.O. that Kailash Narayan Awasthi made fire, getting hit by which, he fell down and uttered "Hai Mar Dala" which was correct. After Kailash Narayan uttered "Hai Mar Dala" Murari Lal made loud noise and not prior to that. After the falling down of Kailash, the accused assaulted him with lathi and fawda and crushed his head.
25. With respect to the antecedents of this witness, cross-examination is made by the defence side in which this witness has stated that he was an accused in the case in which a charge was levelled against him of possessing Ganja. No case of Dacoity was initiated against him nor was he ever arrested in any such case. He does not know that he was kept under supervision. No case under Section 107 Cr.P.C. was initiated against him. He did say that there was no other person of his parentage and resident in the village. Ram Kishan and Hari Kishan were his real brothers. The name of the Tau of Kailash Narayan is Banwari Lal son of Shakti Dayal. Banwari Lal had a case under Section 107 Cr.P.C. contested against Sri Govind but not against him (this witness). Both of them had beaten each other's father, then these proceedings were launched but he cannot tell as to how many persons were involved on either side and who was in whose party.
26. Citing the above piece of evidence, learned counsel for the appellants argued that the statement of this witness does not inspire confidence because his antecedents are criminal and, therefore, his testimony should be discarded.
27. With respect to the proceedings of inquest, this witness has stated in cross-examination that the proceedings of inquest were over by 1:15 PM and thereafter, he had gone home to have food. The dead-body had not been dispatched till he left for home. Krishna, Baldev, Dwarika Prasad, Ram Sanehi and Kishan Pal etc. were appointed panchas. He had left the Inspector near the dead-body and had gone home. Thereafter at about 7:00 PM, he was interrogated by the Inspector at the door of Nawab Singh, although he was not interrogated, when he was near the dead-body. Prior to 7 PM he had not stated to I.O. that he had seen the occurrence. After his having left the place at 1:15 PM till 7 PM in the evening he did not meet the I.O. and hence, he could not tell as to what was done by I.O. in the mean time. The Nawab Singh at whose door he was interrogated, is the person, who is father of the deceased Kailash Narayan. When after the inquest he had gone home, till then, Ram Sanehi and Dwarika were present near the dead-body, thereafter, he did not see them on the said date. Till he remained at the door of Nawab Singh, he did not see Ram Sanehi or Dwarika arrive there. He cannot tell as to when the Inspector had made the site-plan or what action was taken against the accused, but he had heard that Basant Singh was arrested by police when he was proceedings towards Mahewa. He has also stated in cross-examination that he has nothing to do with Pradhan Talaiya and it is wrong to say that he was man of Pradhan and that he had not seen the occurrence and was giving false statement.
28. From the evidence of this witness, it is apparent that he has also supported the prosecution version of having seen accused Govind and Kailash armed with lathi and Basant and Subhash armed with fawda and that at the exhortation of accused Govind to murder Kailash Narayan as he was doing lot of pairavi in cases, accused Vishwanath made fire from country made pistol which hit Kailash Narayan and thereafter, all the accused together assaulted the deceased with lathi and fawda, by injuries of which the deceased Kailash Narayan died on the spot. It was pointed out by learned counsel for the appellants that his testimony should be discarded because in examination-in-chief he had stated that he did not see any weapon in the hand of Vishwanath and yet he subsequently, has stated that Vishwanath made fire on Kailash Narayan which hit him, which is subsequent improvement of his version. We are not inclined to accept this argument as this witness has stated that Vishwanath had made fire upon the deceased, which would be sufficient to presume that Vishwanath was armed with a country made pistol. It was also argued that he happens to be a chance witness because he was just passing through that way where incident happened, but we are not inclined to discard his testimony, on this ground and find that it is quite likely that when he was going towards field of Badshah from his house at about 8-8:30AM he had seen the incident, which is quite likely. Whatever has been asked in cross-examination has failed to dis-lodge his statements made in the examination-in-chief and we find his presence proved at the place of occurrence and his having seen the occurrence.
29. P.W.3 Din Dayal Singh son of Panchhi Lal has stated in examination-in-chief that occurrence took place about four years ago. He reached the place of incident at about 2PM and saw that two Inspectors and three constables and Hari Kishan etc were present there. He along with Hari Kishan and three-four men together with police proceeded towards the field of Ram Prakash barber in order to arrest the accused. In the field, accused Basant Singh was arrested and after his arrest, he made a disclosure that he could get the fawda recovered, pursuant to which all of them went to the field of Lahi from where he gave out a fawda to the I.O. which is material Exhibit-12, the same was blood smeared. The handle of the fawda was broken into two parts. The fawda with broken handle was sealed and the half part of it was separately sealed. The Inspector had made the fard in this regard which is Exhibit ka-3 signed by this witness.
30. In cross-examination, this witness has stated that by place of occurrence he meant the place where the murder had taken place. From the place of occurrence, the field of Ram Prakash Nai was towards north and not towards north-east. If one would proceed from the place of occurrence towards the field of Prakash Nai, there would be abadi. From the place of incident, the last portion of the pond is about half furlong and little thereafter, there is small abadi which spreads for about half furlong. The said abadi ends after having travelled 1½ furlong from the place of incident. It is wrong to say that after the end of abadi at a distance of 6 furlong thereafter, is located the field of Ram Prakash, rather the same is located at a distance of 1½ furlong. Village Kuduriya is situated towards north-east of his village. After the abadi of his village, up to one furlong in the north, are the fields of his village. After the abadi of his village, leaving 8 to 10 fields, the fields of Kudariya begain. The field of Ram Prakash Nai (Barbar) is located in village Kudariya which is of 4 to 5 bighas. In one bigha of this field there is crop of ukhari and in the rest, was crop of wheat. The field from which the fawda was recovered, the said field is situated 1½ furlong away towards west from the place of incident.
31. At the field of Ram Prakash Nai, the Inspector had not done any writing work although Basant was interrogated, but the same was not reduced into writing. At the field of Ram Prakash Nai a talk was held between Inspector and Basant for about 5 to 10 minutes and after the writing was done at the field of Basant, thereafter Basant was arrested. He was arrested prior to preparing the fard. All of them stayed there till about 1 to 1½ hours after the recovery of fawda at the field of Basant. When he (P.W.3) reached the place of incident, 10 to 5 minutes thereafter, they went to the field of Ram Prakash Nai and had reached there within 10 to 15 minutes. For breaking the handle of fawda, a saw was brought from village by a constable, although some-one from the family had accompanied him for bringing saw, but he could not tell his name nor address. This witness has not signed the fard, which was written in the field of Basant and thereafter, this witness's statement and that of Hari Kishan were recorded. This witness has denied that the fawda was not recovered in his presence or that accused Basant was not arrested in the said field and also stated it to be wrong that the police had arrested Basant near Mahewa.
32. This witness is a witness of recovery of fawda, which is recovered, as per prosecution, from the field of lahi belonging to accused Basant, at the pointing out of accused Basant and there was blood found on the same and the fard of its recovery is also made in the presence of this witness.
33. P.W.-4 Dr. R.K. Agrawal has stated in examination-in-chief that on 5.12.1978, he had conducted the postmortam of the deceased at about 2:30 PM whose dead-body was brought by constable Prabhu Dayal and Hari Shanker and he found following ante mortem injuries on the person of deceased;-
(i) Gunshot wound of entry 1-1/2 cm x 1 cm on the right side of forehead, 2cm above right eye. Margins were black. No tattooing and charring, underlying bones fractured, wound was cavity deep.
(ii) Incised wound 5cm x 1/2cm bone deep extending from left ear to the back and cutting the left ear lobule.
(iii) gunshot wound of exit 6 cm x 4cm on the back of skull bone fractured in pieces and brain matter has drained out. It was communicating with injury no.1- base of skull was also fractured.
(iv) Gunshot wound tangential 2cm x 1/4cm skin deep margins regular going from upside to downward and to the front on the right side of flank on posterior side.
(v) Abrasion 1 cm x ¼ cm on the middle of left scapula.
34. This witness has further stated that the cause of death was shock and hamarage as a result of the above injuries, which was sufficient in ordinary course of nature to cause death. Injury no.4 was possible to be received by falling on a sharp base of a tree. He had prepared the postmortem in his hand writing which is Exhibit ka-4. In his cross-examination this witness has stated that injury no.1 and 3 were caused by gun shot by which scalp fracture was caused at the base. The deceased had two injuries in his head. If injury no.1 and 3 be treated to be 1, the injuries which were caused by gun shot can be distinguished from the injuries which would be caused by falling on a sharp wood. The injuries which are received by falling on wood normally have irregular edges. If injuries are caused by friction of pellet, the margins would be regular. He had written injury no.4 to be gun shot wound because margins were regular. Injury no.5 could be caused by falling on the wood. The deceased could not have spoken after receiving injury no.1.
35. From the statement of this witness it is evident that the main injuries which have been caused to the deceased, were two gun shot wounds because this witness has stated that injury no.1 and 3 could be treated to be one as they were entry and exit wound while there were two other injuries, one incised wound and the other abrasion.
36. P.W.5 S.I. Jagdamba Srivastava has stated in examination-in-chief that he does not know whether a copy of the statement of doctor was provided to the accused or not, he did not consider it necessary to record statement of any other witness except that of Dr. P.K. Sharma. Normally the statement of doctor is not recorded during investigation. In this case after receiving a copy of post-mortem report, he had considered, it important to record the statement of Dr. P.K. Sharma because injury no.4 recorded in the post-mortem was not being supported by the eye witnesses. When he had seen the scalp of deceased at the place of incident, it was in crushed condition and the brain matter was coming out. He could not understand that the said condition of the head of deceased could be due to repeated assault. He had understood that the said condition could not have happened due to repeated assault by fawda and lathi. Till the time, he prepared inquest, he did not have any evidence that the said injury was caused to the deceased by repeated assault of lathi and fawda. He has stated it to be wrong that FIR was written after his having seen the dead-body first. It is also wrong to say that after having seen the dead-body of the deceased he understood that the said injury at his head would have been caused by repeated blows of fawda and lathi. He also stated it to be wrong that he considered, it necessary to record the statement of doctor to ascertain as to whether the head injury were caused by repeated blows of fawda and lathi or not. He wanted to know from the other as to how injury no.4 was caused because the witnesses could not explain nor is it explained in FIR. After the investigation he had reached the conclusion that the injury no.4 was not gun shot wound, rather was caused by stumps of wood of the bushes near the place where the dead-body was lying because no whole was found in the clothes of the deceased. The stumps of pamarua, a kind of bush/tree, were seen by him by the side of the passage and were also shown in the site-plan and it is wrong to say that the same was shown by him in the site-plan after having received the postmortem report. Further he has stated that there were houses in the vicinity of the place of incident but he has not made any-one of them as witness in this case. He had investigated in respect of enmity of the deceased but during the investigation he did not see any such document by which he could learn that the deceased had enmity with accused persons. The deceased was not in uniform of Roadways. During investigation, he did not try to find out as to why and from which bus the deceased was coming and at what time he got down from it in front of his village. The starting and reaching timings of Government buses are quite late. It is wrong to say that he did not get information about the time when deceased got down from the bus because by that, the timing of the murder would become of early morning. Further this witness has stated that when he had come to lodge the report, there were injuries on his body but he did not find out whether there were blood spots on his clothes or not. When Murari Lal had come for lodging report then he had injuries on his person which were full of blood but he did not pay attention to the fact as to whether the clothes were cut and whether blood spots were there or not at those places where the said injuries were found which was an important piece of evidence. Further he has stated that if he had come to know that there was blood spots or any cut on the clothes of the deceased he would certainly have taken them in his possession. If an injured person come to the police station, it depends on seriousness of his injury as to whether his medical inspection be got done forthwith. He had withheld informant Murari Lal because he was to be taken to the scene of occurrence so that he could tell as to what had happened. This witness had reached the place of incident within 15 minutes. After reaching of Murari Lal at the place of incident, he could be sent forthwith for his medical examination but he was not sent rather was sent for the medical examination at about 1:20 PM. Although, according to the record, Murari Lal did not do any work with him during these two hours. Murari Lal was dispatched for medical examination with constable by him in his jeep. He was sent for his medical examination to Mahewa Government Hospital which lies on the way while going from place of incident to Mahewa. He had sent Murari Lal with one constable and for that reason one constable was called from police station to be sent with him. He has stated it to be wrong that Murari Lal did not suffer any injury because of which he was not sent for medical examination straightway from the police station. In the G.D. of initiation of case, it is entered by Head Moharrir that the informant shall first go to the place of incident and thereafter, for his medical examination. At the time of making inspection of the place of incident Soney Lal was present. The place of incident was inspected after dispatching the dead-body at about 1:30 PM and was finished by 2 PM. On 4.12.1978 at about 6:30 PM at the door of Nawab Singh he recorded statements of Soney Lal and Banwari Lal etc. Murari Lal had stated to him that Kailash Narayan Awasthi uttered "hai mar dala" which is exhibit kha-1. Murari Lal did not give him statement that prior to getting hit by the fire arm both of them had screamed. In panchayatnama only those are made witnesses who are available. It is not so that if there are other witnesses present, in that condition the eye witnesses are not made witnesses of panchayatnama. The second column of the panchayatnama relates to the person who gives information about cause of death. It is wrong to say that the description in this column was not given by him because by that time FIR was not written. He has not written in panchayatanma as to by which weapon, the injuries of the deceased were likely to be caused. Further this witness has stated that it is wrong to say that accused Basant was not arrested in the field of Ram Prakash Nai and it is also wrong to say that accused Basant had not given out fawda (material Ex-12) taking out the same and that Basant was not arrested by him near Mahewa.
37. P.W.6, Head Constable 19 Nand Kishor, has stated in examination-in-chief that it is wrong to say that the FIR of this case was written after return of the inspector from the place of occurrence after consultation. The informant was not given any direction but he had gone with the Sub-Inspector. In reply to query made by Court, this witness has stated that accused Basant was arrested on 4.12.1978 and was dispatched from the police station at 8:30 AM on 5.12.1978 for being produced before the Magistrate. The case property was not sent along with the accused for being presented before the Magistrate and till the case property was deposited in the Sadar Malkhana it remained at the police station itself.
38. P.W.7 .S.I. Shishu Pal Singh has stated in examination-in-chief that on 22.5.1979, he was Sadar Moharir at the Malkhana and on that date 8 sealed bundles were deposited in Malkhana, entry of which is made at serial no.50 of the register which was deposited by constable Shipahi Lal. The said case property was sent through constable Jai Ram Singh on 11.6.1979 to Agra for Chemical Examination. Two bundles of the case property kept lying in Malkhana while 6 bundles were handed-over to constable Kailash Narayan Bajpai with a direction that he shall produced them before Court in one bundle. Kailash Narayan Bajpai thereafter, put all the 6 bundles into one bundle which was sealed and was brought to the Malkhana, thereafter, the said one bundle was given to Jai Ram Singh for being sent to chemical examiner. Till the time, this case property remained in sealed condition in Malkhana, no one was permitted to see it. He had brought original register of the Malkhana. In cross-examination, this witness has stated that all the entries at page no.133 were made in his hand writing and that there is no G.D. maintained at Sadar Malkahana.
39. P.W.8, Constable 143 Jai Ram Singh, has stated in examination-in-chief, on 11.6.1979, he had taken one sealed bundle from Sadar Malkhana to Chemical Examiner, Agra in a proper sealed condition and was brought back on 14.6.1979 and was deposited in Sadar Malkhana by him.
40. P.W.9. Dr. S. Tripathi has stated in examination-in-chief that on 4.12.1978 he was posted at surgeon in the District Hospital and on that date at 3 PM he had medically examined Murari Lal P.W.1 and found following injuries on his person;-
(i) Incised wound 3cm x 0.5cm scalp deep on the outer aspect of left shoulder.
(ii) Abrasion 2cm x 2cm on outer aspect of left upper arm.
41. He has further stated that the said injuries were possible to be received on 4.12.1978 at about 8-8:30 AM and injury no.1 could have been caused by one fawda while injury no.2 could have been caused by friction of lathi. He has proved the medical report Ex. Ka-18 in his writing. In his cross-examination he has stated that both these injuries were superficial in nature and were not on vital part, which could be self inflicted.
42. The entire evidence has been perused by us and we find that according to the FIR the prosecution case is that this occurrence took place on 4.12.1978 at about 8:30 AM and a report regarding it was lodged by the first informant (P.W.1) Murari Lal on the same day at 9:30 AM although, the police station was situated about 1½ miles away from the place of incident, therefore we find that the said FIR has been lodged promptly without there being any opportunity for the informant to make consultations with anyone and therefore, we believe that what-ever has been stated in the FIR is prompt and true version of the occurrence. It is the version of the FIR that all the 4 accused named above had assaulted the deceased with their respective weapons which they were carrying in their hands on 4.12.1978 in the morning at 8:30 AM when the deceased was coming towards his village and had reached near the north of the field of Anand Swaroop which is shown in the site plan (Ex. Ka-8) by "A", at that time P.W.1 also met the deceased who was also returning home after irrigating his field and was with the deceased. On instigation of accused Govind to eliminate the deceased because he was doing pairvi in the cases, this assault was made and accused Vishwanath made fire upon the deceased by which he fell down and thereafter, the other co-accused i.e. Basant Singh and Subhash who were armed with fawda, Kailash Babu and Sri Govind who were armed with lathis started assaulting him badly and when P.W.1 tried to rescue him, out of the said accused Subhash and Sri Govind assaulted P.W.1 also by lathi and fawda, in which he also received injuries and P.W.1 did not chase the accused because of fear. It is also made clear in the FIR that because of enmity between the two sides as a number of litigations were going on, this occurrence was given effect to.
43. This version has been wholly supported by injured witness Murari Lal (P.W.1) who has been shown by the I.O. to have witnessed, this occurrence from the place shown by "F", where he had fled after getting injured and from the said place which was 65 paces away, he had seen the occurrence. This witness has clearly stated that when he was returning after irrigating his field he met the deceased and both of them were returning home and when both of them reached near the field of Anand Swaroop, all the five accused persons were coming from the front, armed with weapons and out of them Sri Govind had instigated others that the deceased should be done to death because he was doing pairavi in cases and at this accused Vishwanath made fire upon Kailash from the front which hit his forehead and he fell down and thereafter, both the deceased as well as P.W.1 screamed out loudly. He has also stated that he himself sustained injury of lathi on his left hand which injury was caused to him by Sri Govind and also sustained injury of fawda which was caused by Subhash and thereafter, he fled from there and stood at a distance, where other witnesses had also arrived when he shouted loudly. This witness has further stated that after the deceased had fallen down on the ground, all the accused had assaulted him by lathis and fawda and thereafter, all the accused fled from there. Therefore, this witness has fully corroborated the version of the FIR and his testimony does not seem to be doubtful as he is an injured witness, whose presence is found to be very natural as he was coming home after irrigating his field, with the deceased, when this occurrence happened. There is no ground for us to disbelieve his testimony when it is tested on the touchstone of meticulous cross-examination made by the defence side on all aspects. The said version of prosecution has also been substantiated by other eye witness namely Soney Lal who also has deposed distinctly that when he was going to take Karab from his house towards the field of Badshah at about 8-8:30 AM and reached near the tree of Chhekur which is shown in the site plan by "I" which is about 20 paces away from the place shown by "A" where the incident had occurred, he saw that all the accused namely Sri Govind, Vishwanath, Basant, Subhash Babu and Kailash Narayan out of whom Basant and Subhash were armed with fawda, Sri Govind and Kailash Babu were armed with lathis and he did not see any weapon in the hand of Vishwanath but stated that at the exhortation of Govind that Kailash Narayan should be done to death, accused Vishwanath made fire upon him which hit his forehead and thereafter, Murari Lal (P.W.2) screamed loudly that his brother was killed "Daudiye Mere Bhai Ko Mar Dala" and then other co-accused Sri Govind with lathis and Subhash with fawda also assaulted P.W.1 due to which P.W.1 fled from there towards south and stood near a well and in the meantime, all the accused together assaulted the deceased with lathi and fawda by which he died and accused fled from there. The statement of this witness is also in consonance with the site plan as well as that of P.W.1. He has been meticulously cross-examined but we do not find anything in his testimony in cross-examination to make us disbelievable the above mentioned statement and we find his presence on the spot to be believable and both these eye witnesses i.e. P.W.1 and P.W.2 have clearly proved that all the five accused had assaulted the deceased by their respective weapons by which the injuries, which are found to have been sustained by the deceased as well as P.W.1 have been proved by Dr. P.K. Sharma (P.W.4) and Dr. S. Tripathi (P.W.9), they are found to be corroborated by the eye witnesses' account and therefore, we find that since ocular testimony is getting substantiated by the medical evidence, it proves beyond reasonable doubt that it was the accused named above, who had actually formed an unlawful assembly fully, armed with deadly and ordinary weapons, with common object of murdering deceased Kailash Narayan Awasthi because he was doing pairavi in the litigation which was going on between two sides and in prosecution of the said common object, all these accused had murdered the deceased. Therefore, we find that there is no infirmity in the impugned judgment by which the accused have been convicted under the above mentioned sections
44. Accordingly, the appeal of the accused-appellants stands dismissed.
45. The accused persons namely Vishwanath, Subhash and Kailash are on bail their bail bonds and surety bonds are discharged and they shall be taken into custody immediately and sent to jail to serve out the remaining sentence.
46. Let a copy of this judgment be transmitted to the Trial Court concerned along with the original record for compliance immediately.
Order Date :- 24.5.2019.
Neeraj
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)