Allahabad High Court
Bhola Yadav And Anr. vs State Of U.P. on 20 September, 2000
Equivalent citations: 2001CRILJ377
Bench: J.C. Gupta, S.K. Agarwal
JUDGMENT
1. Bhola Yadav and Shyam Lal Yadav, both sons of Ram Deen Yadav have preferred this appeal against the judgment and order dated 15-11-80 passed by the then Sessions Judge, Azamgarh, Appellant Bhola Yadav has been convicted and sentenced to life imprisonment under Section 302, I.P.C. and to undergo six months R.I. for the offence punishable under Section 323 read with Section 34, I.P.C. Shyam Lal Yadav, appellant has been convicted and sentenced to imprisonment for life under Section 302 read with Section 34, I.P.C. and six months R.I. Under Section 323, I.P.C. Sentences of both the appellants have been ordered to run concurrently. Accused Ram Prasad, Ram Naresh (Naresh), Harish Chandra and Sanwaroo who were also tried along with above appellants were given benefit of doubt and acquitted by the trial Judge.
2. The appeal arises out of an incident wherein two persons namely Parasnath Singh and Chandrabhan Singh, both sons of Sri Jagdish Singh, were murdered.
3. Ram Deen Yadav had three sons, Bhola Yadav appellant, Shyam Lal Yadav appellant and Phirangi Yadav. A little before the present occurrence, Phirangi Yadav was murdered. Paras Nath Singh deceased of the present case with Ram Singh, Sudarshan Singh and others was prosecuted for it. That case however ended into acquittal of all the accused about a year before the present incident. It is alleged that the appellants since then were bearing enmity against Paras Nath Singh and his family members and were awaiting for an appropriate opportunity to avenge the murder of their brother Phirangi Yadav.
4. It is alleged that on 8-6-78, Ambika Singh P.W. 1 was going to village Deoria to attend the "Chauth" ceremony of his nephew. He was accompanied by Chandra Bhan Singh his brother Paras Nath Singh, Jai Pradash Singh P.W. 6, Awadh Raj Singh and Vijai Bahadur, P.W. 5. They had gone to Piparidih railway station for boarding a train for Deoria. On reaching railway station they found that train was running late. Railway Station was situated only at a distance of 20-25 paces from the Piparidih market and since the train was late, Paras Nath Singh and others came to Piparidih market at about 1.30 p.m. Paras Nath Singh entered into the shop of Jaichand, barber for getting himself shaved, while his companions remained outside. It is further alleged that while Parasnath Singh was sitting on the chair in side the barber shop of Jaichand, appellants Bhola Yadav and Shyam Lal Yadav along with acquitted co-accused persons Ram Prasad, Naresh and two unknown persons arrived there. Appellant Bhola Yadav was armed with a gun while rest were having lathi. Appellant Bhola Yadav entered into the shop of Jaichand and fired upon Paras Nath Singh who fell down from the chair on receiving gun shot. Vijai Bahadur Singh, P.W. 5 mustered courage and caught hold of the gun of Bhola Yadav. A scuffle ensued between him and Bhola Yadav and both of them came out of the barber's shop. Vijay Bahadur was then assaulted by appellant Shyam Lal with lathi as a result of which he fell down and lost the grip on the gun of Bhola Yadav. Other witnesses advanced towards Bhola Yadav to catch hold of him but then the rest of the assailants who were armed with lathis started assaulting them. Bhola Yadav, appellant then opened fire twice on Chndrabhan Singh which resulted in his instant death. All the assailants thereafter ran away from the scene of occurrence. Besides P.W. 5 Vijai Bahadur Singh, Jai Prakash P.W. 6 and Awadhraj Singh also sustained lathi injuries in the incident.
5. Leaving the dead body of Chandrabhan Singh in the custody of Jai Prakash and Awadhraj Singh, Ambika Singh, P.W. 1 went to Mau along with injured Paras Nath Singh and Vijai Bahadur Singh and lodged written report Ex. Ka-1 at the police station at 2.55 p.m. on the same day. On the basis of this report, check F.I.R. Ex. Ka-18 was prepared and case was registered in the General Diary, copy of which is Ex. Ka-19.
6. Paras Nath Singh was in a serious condition. He was sendfor medical examination and treatment to Civil Hospital, Mau along with Constable Amar Nath Pandey, Dr. S.N.P. Sinha, Medical Officer, P.W. 8 examined Parasnath Singh at 3.15 p.m. and found following injuries :
1. Gun shot injury 3-1/2 cm. in diameter on right side of abdomen in the region of liver, 17 cm. lateral and upward from umblicus, wound of entry' abdominal chest contains out through opening.
2. Gun shot injury 2 cm. in diameter on right side abdomen, 1 cm. lateral to injury No. 1, wound of entry.
3. General condition of the patient was very poor. Pulse was not traceable, patient was referred to Varanasi.
4. Two wound of exit 1/2 cm. in diameter each on posterior side 5 cm to right iliac crest' 3 cm. away from each other.
6A. In the opinion of doctor all the injuries were grievous due to damage to viscera and vital organ liver and were caused by gun shots. Duration of injuries was about 1/2 days old. The injury report of Paras Nath Singh is Ex. Ka. 12.
7. Vijai Bahadur Singh was also medically examined by the same doctor at 3.20 p.m. and following injuries were noticed :
1. Lacerated wound 7 cm. x 1/2 cm. x bone deep on medio lateral position on scalp, 8 cm. above from root of left ear.
2. Contusion 8 cm. x 3 cm. on left scapular region. Injury report of Vijai Bahadur Singh is Ex. Ka. 13.
8. Jai Prakash Singh was also medically examined by Dr. S.N.P. Sinha on the same evening at 10.10 p.m but he found no external injury on his person except complaint of pain in left chest. Medical report of Jai Prakash Singh is Ex. Ka. 14.
9. On the same evening at 10.15 p.m. Dr. S.N.P. Sinha medically examined Awadhraj Singh and found following injuries :
1. Abrasion 1-1/2 cm. x 1 cm. on top of left shoulder.
2. Traumatic swelling 3 cm. x 2-1/2 cm. on posterior side of right wrist.
10. In the opinion of the doctor Injuries were simple and caused by blunt object and their duration was about 1/3 day. Injury report of Awadhraj Singh is Ex. Ka. 15.
11. After registration of crime, investigation was conducted by S.I. Parasu Ram Singh P.W. 10. He immediately rushed to the place of occurrence and found that dead body of Chandrabhan Singh was lying on the passage to the market. He conducted inquest on the dead body of Chandrabhan Singh and sent the same for post-mortem examination through Constable Gopal Singh and Constable Vyas Singh. He also collected blood from near the dead body of Chandrabhan Singh and also from inside the saloon of Jaichand. Dead body of Chandrabhan Singh was found at a distance of about 30 paces from the saloon of Jaichand. On the same day he interrogated Ambika Singh, Awadhraj Singh, Jai Prakash Singh, Ramdhani Singh and others and prepared site plan Ex. Ka. 25 after making spot inspection.
12. Post-mortem examination on the dead body of Chandrabhan Singh was conducted by Dr. R. R. Rai, P.W. 7 on 9-6-1978 at 2.30 p.m. The deceased was of average built and rigor mortis was absent in upper limbs but was seen in lower limbs. Following ante-mortem injuries were noticed during post-mortem examination :
1. Gun shot wound of entry 1.5 cm x 1.5 cm circular on left side chest, 2.5 cm below and outer from left nipple. Tattooing was present on the margins of the wound in circle of 3/4".
2. Four gun shot wounds of exist measuring 1/2" x 1/2" rounded, each on border of left side middle part.
3. Gun shot wound of entry 1.5 cm x 1.5 cm circular in shape on the right side of abdomen on illiac fossa. A loop of small intestine was coming out from the wound.
13. In the internal examination, 6th and 7th left ribs of the deceased were found fractured under injury No. 1. Pleurra, left lung and peritoneum at all places were found punctured. Stomach, spleen, left kidney and left intestines were also punctured. Two pellets and a wad were extracted from the dead body. In the opinion of the doctor cause of death was shock and haemorrhage as a result of ante mortem injuries. The postmortem report of Chandrabhan Singh, is Ex. Ka. 11.
14. Paras Nath Singh who was seriously injured in the incident and was admitted in the hospital died in Varanasi Hospital on 16- 6-78 at 1.35 a.m. Autopsy on his dead body was conducted by Dr. B. V. Subrahmanyam, P.W. 4 on the same day at 1 p.m. He found a surgical bandage on the abdomen and back of the deceased and also surgical incised wound besides the following ante mortem injuries :
1. Gun shot wound of entry on the right flank 2 cm above illiac crest, 3 cm on the mid line on the back. There were six separate holes of entry in an area of 1 cm x 0.75 cm. There was also a hole on the right of mid line above the thigh bone, 6 cm. above illiac bone and 17 cm to the right of the mid line, one piece of cardboard was recovered from the hole of entry. The area of dispersal was 17 cm.
15. On dissection of the body muscles of the side of flank were found perforated. Liver was lacerated in the right lobe lower outer aspect. The direction of the wound was lower, upward, behind, forward and right to left. In the opinion of the doctor cause of death was shock and haemorrhage due to ante mortem injuries. Post-mortem report of Paras Nath Singh is Ex. Ka. 17.
16. After completing investigation, charge sheet, Ex.Ka. 26, was submitted against the present appellants Bhola Yadav, Shyam Lal Yadav as well as Ram Prasad, Ram Naresh, Harish Chandra, Sanwaroo Yadav. The first four were named in the F.I.R. while names of Harish Chandra and Sanwaroo Yadav came to light during investigation.
17. Prosecution in support of its case produced ten witnesses namely, Ambika Singh, P.W. 1, S. I. Ram Das, P.W.2 who conducted inquest on the dead body of Paras Nath Singh, P.W.3 Constable Gopal Singh consigned the sealed corpus of Chandrabhan Singh to mortuary, P.W. 4 Dr. V.B. Subrahmanyam who proved postmortem report of Paras Nath Singh, P.W. 5 Vijai Bahadur Singh, P.W. 6 Jai Prakash Singh, P.W. 7 Dr. R.R. Rai who proved the post-mortem report of Chandrabhan Singh, P.W. 8 Dr. S.N. P. Sinha who proved injury reports of Paras Nath Singh, Vijai Bahadur Singh, Jai Prakash and Awadhraj Singh, P.W. 9 Head Constable Jittan Prasad Yadav and P.W. 10 S.I. Parasu Ram Singh, the Investigating Officer.
18. The trial Court also examined six witnesses as Court witnesses as the Court was apprised of the fact that dying declaration of Paras Nath Singh was recorded in hospital before his death. C.W.I Fasih Uddin, the English Record Keeper of the Collectorate Office, brought the relevant register and stated that on 13-6-78 he had received papers from hospital which he entered into the register after obtaining necessary order from Incharge District Magistrate and sent those papers in a sealed cover to the Court of Chief Judicial Magistrate, Azamgarh on 15-6-78. C.W.2 Arjun Singh is a witness of dying declaration of Paras Nath Singh which was recorded by Dr. S.N.P. Sinha. C.W. 3 Gabboo Lal was the Reader in the Court of C.J.M. he stated that he had received the dying declaration in a sealed envelop on 15-6-78. C.W. 4 Kaushal Kishore and C.W. 5 Brij Mohan Das are other two witnesses of dying declaration. C.W. 6 Dr. S.N.P. Sinha stated that when Paras Nath Singh was brought in the hospital no Magistrate was available, hence he proceeded to record his dying declaration in the presence of Kaushal Kishore, Lalloo Babu alias Brij Mohan and Arjun Singh. According to him three lines of dying declaration in English were written by him and thereafter some portion was written by Paras Nath Singh himself and when Paras Nath Singh told him that he was finding it difficult to write, he himself recorded later part of his dying declaration. He stated that he asked questions from Paras Nath Singh and the replies made by him were reduced to writing.
19. Excepting accused Bhola Yadav all other accused persons denied their presence at the scene of occurrence. Bhoal Yadav in his statement before the trial Court gave a counter version of the occurrence. He denied presence of Jai Prakash Singh, P.W. 6 and Awadhraj Singh at the time of incident. According to him there was a piece of land in Piparidih Bazar near his house, in respect of which he was having enmity with one Jittan. About 10-20 days prior to the present occurrence, Jittan had succeeded in winning over Paras Nath Singh and Chandrbhan Singh. Paras Nath Singh was a bad character as he was involved in several dacoity and murder cases. Only a day prior to the present occurrence abuses were exchanged between Smt. Dasi (his brother's wife) on one hand and Jittan and Paras Nath Singh on the other hand. On the day of occurrence at about noon time Smt. Dasi had gone with the child of accused Bhola Yadav to the saloon of Jaichand for the dressing of his hair, Paras Nath Singh, Vijai Bahadur Singh and Chandrabhan Singh arrived there. They had an exchange of hot words with Smt. Dasi. Vijai Bahadur Singh gave a lathi blow to Smt. Dasi. One relation of Bhola accused was also present with Smt. Dasi at that time. On coming to know of the said incident, accused Bhola Yadav also reached there and on his arrival he found that Marpit was going on between the relation of Bhola Yadav and Vijai Bahadur Singh. As soon as Bhola advanced, Chandrabhan Singh with spear and Paras Nath Singh with lathi attacked him and Smt. Dasi. Finding their lives in danger, Bhola Yadav fired in self-defence causing injuries to Paras Nath Singh and Chandrabhan Singh while Vijai Bahadur Singh received injuries as a result of lathi blows given to him by the relation of Bhola accused. He further stated that his injuries and that of Smt. Dasi were medically examined at District Hospital, Azamgarh. Smt. Dasi had also sent an application to the Superintendent of Police, Azamgarh narrating the entire facts but that application was got lost by S.I. Parashuram Singh, the Investigating Officer of the present case. Accused persons in their defence produced four witnesses. Dr. V.B. Tripathi, D.W. 1, proved the injury report of accused Bhola Yadav as Ex. Kha. 8, who was examined on 8-6-78 at 5.15 p.m. Following injuries were found :
1. Lacerated wound 5 cm x 1/2 cm x skin deep on left side of scalp longitudinally placed, 10 cm above the upper end of left ear.
2. Two parallel abrasions of 3 cm x 1/2 cm of left side of neck, 2 cm lateral to larynix.
3. Abrasion 5 cm, linear is present on left shoulder extending from acromion process of clavicle, downward.
20. All the injuries were reported to be simple and caused by blunt object, their duration was few hours.
21. Injuries of Smt. Dasi were examined by Dr. R. R. Rai, P.W. 7 on 8-6-78 at 11 p.m. Injury report of Smt. Dasi is Ex. Kha. 1 wherein the following injuries were noted:
1. Incised wound 2 cm x l/2 cm x muscle deep on side chest, 5 cm below left clavicle shape of wound spindle shaped.
2. Incised wound 2 cm x 1/2 cm x muscle deep on right side abdomen middle part spindle shaped.
3. Incised wound 1.5 cm x 1/2 cm x muscle deep on posterio medial aspect upper part of right upper arm, spindle shaped.
4. Contusion 10 cm x 2 cm on the neck extending to back.
5. Contusion 7 cm x 1 cm medial aspect of left elbow.
22. All the injuries were simple and were about 1/2 day old. Doctor admitted that these injuries could be suffered by a sharp knife and if they were caused by heavy weapon, they ought to have been deep and not only skin deep. The injuries were only skin deep touching the muscles but muscles had not been cut. In cross-examination he further opined that they were possible not caused by Ballam (Spear).
23. D.W. 2 Uma Shanker Pandey was Head Master of Basic Primary School. He did not support the version of the accused and denied that Bhola had brought before him report Meterial Ex. 6. The evidence of this witness is thus of no help to the defence.
24. D.W. 3 Vijai Bahadur Singh was the Head Clerk in Diesel Loco Motive Works, Varanasi. He stated that Vijai Bahadur Singh had not given him any application for leave from 6th June to 8th June, 1978. However he remained on leave without pay from 14-5-78 to 5-7-78. The evidence of this witness is also of no avail to the defence.
25. D.W. 4 Onkar Nath Pandey proved report No. 25 of the General Diary dated 3-6-78 of P.S. Mau as Ex. Kha. 11 and also the F.I.R. dated 7-4-78 lodged by Bhola Yadav against Jittan Chauhan as Ex. Kah. 12. It may also be mentioned here that prosecution also got proved F.I.R. dated 8-6-78 lodged by Bhola Yadav at 8.45 p.m. at P.S. Kotwali against Udai Narain and Paras Nath Singh under Sections 323/352, I.P.C as Ex. Kha. 17.
26. The learned Session Judge on consideration of evidence on record found appellants Bhola Yadav and Shyam Lal Yadav guilty of the offence of murder of Chandrabhan Singh and Paras Nath Singh and for causing simple injuries to other injured persons. However the learned Session Judge acquitted other four accused persons giving them benefit of doubt.
27. Learned counsel for the appellants and the learned A.G.A. were heard at length.
28. Learned counsel for the appellants submitted before us that the First Informant's presence at the scene of occurrence is highly doubtful and accordingly the First Information Report becomes a suspicious document and loses its corroborative value; that the prosecution is guilty of suppressing true facts as it has not explained the injuries suffered on defence side by Bhola Yadav and Smt. Dasi; that the evidence of prosecution witnesses is not reliable and when the same has not been found trustworthy in respect of four acquitted accused persons who have been given benefit of doubt by the learned Session Judge, the same benefit should be given to the appellants; and that in any view of the matter only Bhola Yadav appellant could be held liable for exceeding the right of private defence.
29. The factum of death of Chandrabhan Singh and Paras Nath Singh due to firearm injuries has neither been challenged nor disputed by the learned counsel for the appellants. Presence of Vijai Bahadur Singh at the time of incident and his receiving injuries has also not been disputed from the appellants' side. What has in fact been disputed is the manner of incident.
30. From the prosecution side three witnesses of fact have been produced. They are P.W. 1 Ambika Singh first informant. P.W. 5 Vijai Bahadur Singh and P.W. 6 Jai Prakash Singh. From injury report of Vijay Bahadur Singh Ex. Ka. 13 it is clear that he had sustained two blunt weapon injuries on his person, one of them was a lacerated wound 7 cm x 1/2 cm x bone deep on medio lateral position on scalp, 8 cm above from the root of left ear. Injury No. 2 was a contusion on scapular region. As per the prosecution case he was assaulted not by Bhola Yadav but by rest of the assailants armed with lathi when this witness had caught hold of the gun of Bhola Yadav after he had fired on Paras Nath Singh. In the medical examination of P.W. 6 Jai Prakash no visible injury was found and he only complained of pain. Awadh Raj Singh sustained two injuries as is clear from injury report Ex. Ka. 15. One was abrasion 1-1/2 cm x 1 cm on top of left shoulder while the other injury was trauma the swelling 3 cm x 2-1/2 cm on posterior side of right wrist. According to the prosecution case Vijay Bahadur Singh, Jai Prakash Singh and Awadh Raj Singh sustained lathi injuries in the incident when they intervened.
31. P.W. 1 Ambika Singh is the first informant. He stated before the trial Court that on the day of occurrence he was going to village Deoria in connection with the "Chauth" ceremony of his nephew. He was accompanied by his co-villagers Chandra Bhan Singh, Paras Nath Singh, Awadh Raj Singh, P.W. 6 Jai Prakash Singh, and P.W. 5 Vijai Bahadur Singh of village Vinod Pur. On reaching Piparidih Railway station, from where they were to board train for Deoria, they came to know that train was running late. They then went to Piparidih market which was situated at a distance of only 25-30 paces from the railway station. Vijay Bahadur Singh and Paras Nath Singh for getting themselves shaved entered into the saloon of Jai Chand. Firstly Vijay Bahadur Singh got himself shaved and thereafter Paras Nath Singh sat on the chair for that purpose. While he was still on the chair, Bhola Yadav and his brother Shyam Lal Yadav along with their associates arrived there. Bhola Yadav was having a gun and he fired upon Paras Nath Singh who fell down. Seeing this Vijay Bahadur Singh. P.W. 5 mustered courage and held the gun of Bhola Yadav. A scuffle for release of gun ensued between him and Bhola Yadav and they came out of the saloon. Appellant Shyam Lal Yadav then gave lathi blows on Vijay Bahadur Singh whereupon the latter fell down and in the process lost grip of the gun. Bhola Yadav then fired in Chandra Bhan Singh also. He fell down outside the shop at a distance of about 30 paces. Bhola Yadav then made another fire on the chest of Chandra Bhan Singh resulting in his instantaneous death. Jai Prakash Singh, P.W. 6 and Awadh Raj when tried to intervene were also assaulted by lathi. When the accused persons left the scene of occurrence, Ambika Singh took Paras Nath Singh along with Vijay Bahadur Singh and others to railway station leaving the dead body of Chandra Bhan Singh in the care and custody of Awadh Raj Singh and Jai Prakash. Paras Nath Singh and others boarded the train at Piparidih station and reached Mau in the afternoon where Ambika Singh lodged written report Ex. Ka. 1 at police station Mau at 2.55 p.m. Injured Paras Nath Singh and Vijay Bahadur Singh were then sent under police escort to Civil Hospital where their injuries were examined by Dr. S.N.P. Sinha (P.W. 8) at 3.15 p.m. and 3.25 p.m. respectively. Dr. Sinha found two gun shot injuries on the abdomen of Paras Nath Singh. Both the injuries had also corresponding exit wounds.
32. P.W. 5 Vijay Bahadur Singh is an injured witness. He also gave similar reason of his being present along with the two deceased persons and Ambika Singh, P.W. 1. He fully corroborated the statement of P.W. 1 Ambika Singh while giving details of the incident. P.W. 6 Jai Prakash who is also alleged to have been assaulted supported the prosecution case in its entirety. Like P.W. 1 and P.W. 5 he had also accompanied Ambika Singh for going to Deoria in connection with the 'Chauth' ceremony of the nephew of Ambika Singh. This witness gave out a graphic version of the incident and has clearly stated that it was appellant Bhola Yadav who caused fire arm injuries from his gun to Paras Nath Singh and Chandra Bhan Singh. It has also been stated by him that P.W. 5 Vijay Bahadur Singh was assaulted by Shyam Lal Yadav, appellant with lathi when he had held the gun of Bhola Yadav, appellant and was striving to snatch the same from his hands. It is further in his statement that when Vijay Bahadur Singh was struggling to snatch the gun, other associates of appellant Bhola Yadav also intervened and scuffled with Vijay Bahadur Singh.
33. It would thus be seen that all the aforesaid three witnesses who have stated of their presence at the scene of occurrence with the two deceased persons have vividly indicated in their statements as to how the incident originated and culminated. Their evidence finds full corroboration from medical evidences as well. From the post-mortem reports of both the deceased persons it is apparent that gun shot injuries were found which to our mind were caused by a gun. Post-mortem report of Chandra Bhan Singh indicates that he had sustained two separate gun shot wounds of entry, in the form of injuries Nos. 1 and 3. Injury No. 2 was an exit wound of injury No. 1 while post-mortem report of Paras Nath Singh indicates that there were six separate wholes of entry in an area of 1 cm x 0.5 cm in diameter. This could be result of one shot. Injury report of Vijay Bahadur Singh Ex. Ka. 13 shows that he had sustained two blunt weapon injuries out of which injury No. 1 was a lacerated wound 7 cm x 1/2 cm x bone deep on scalp, 8 cm above the root of left ear. The medical evidence thus fully corroborates the eye witness account given by the prosecution witnesses. Their evidence further gets corroboration from the spot inspection made by the investigating officer. The investigating officer had collected blood at two places, one from inside the saloon and the other from near the dead body of Chandra Bhan Singh outside it. The fact that blood was found at two places supports the evidence furnished by the aforesaid witnesses that Bhola Yadav first fired upon Paras Nath Singh while he was inside the saloon of Jai Chand and then fired two shots upon Chandra Bhan Singh when the later was outside the shop.
34. All the witnesses are totally independent. None of them related to any of the deceased, nor was having any animosity against the appellants. They had no axe to grind against the appellants nor were they having any direct interest in seeing that the appellants are some how or the other convicted, therefore, it is not possible to brand them as interested' witnesses.
35. It was contended by the appellants' counsel that since none of the two deceased were related to P.W. 1 Ambika Singh, therefore, if he was going to Deoria in connection with the 'Chauth' ceremony of his nephew, there could be no occasion for Paras Nath Singh, Chandra Bhan Singh and Vijay Bahadur Singh to have accompanied him. It has come in the evidence of P.W. 1 Ambika Singh that in 'Chauth' ceremony villagers also go. Deceased persons were co-villagers of Ambika Singh, therefore, there was nothing unnatural or improbable if the deceased persons had accompanied P.W. 1 Ambika Singh. Presence of Ambika Singh is also doubted by the learned counsel for the appellants for the reason that he did not sustain even a scratch on his body nor he made any attempt to save the deceased persons or Vijay Bahadur Singh. We have carefully gone through his statement and find no substance in this submission of the learned counsel. He was neither a relation of the deceased nor of Vijay Bahadur Singh. Merely because he did not jump in the fray despite being a co-villager will not make his presence doubtful. It is of common experience that different people react to a given situation differently. Their reaction depends upon physical courage, mental equipment and social awareness etc. Apparently within his view Paras Nath Singh had sustained serious gun shot injury at the hands of Bhola Yadav inside the barber shop while he was sitting on chair for getting himself shaved. Vijay Bahadur Singh, P.W. 5 who tried to snatch the gun from the hands of Bhola Yadav was also assaulted with lathi including one on head which caused bleeding injury and he fell down loosing the grip of the gun and thus Bhola Yadav had full opportunity to use the gun and he ultimately used the same by making fire twice on Chandra Bhan Singh. In this situation Ambika Singh, P.W. 1 could have well apprehended that if he would advance he might be shot at or seriously injured by the companions of Bhola Yadav. Therefore, his not taking part in the incident cannot at all be considered to be a circumstance incongruous with his eye witness account. His conduct in the circumstances, could not be characterized as unnatural or abnormal. The version given by this witness is quite natural. He even helped the victims Paras Nath Singh and Vijay Bahadur Singh to be carried to police station Mau where he himself lodged the F.I.R. without any delay wherein the entire details of incident and role played by each accused were specifically mentioned. Names of witnesses and those who had received injuries were also given. All these facts and circumstances, leave no room for any doubt in the presence of this witness at the scene of occurrence.
36. P.W. 5 Vijay Bahadur Singh had himself received injuries during the course of incident and his presence is also admitted to Bhola Yadav appellant in his statement made under Section 313, Cr.P.C. His presence at the scene of occurrence thus cannot be doubted. The incident had occurred in broad day light and the assailants were well know to him. This witness was not interested in roping the appellants falsely shielding the real assailants. He has also given a detailed version of the incident. His evidence to us seems to be trustworthy and reliable. Similarly the presence of P.W. 6 Jai Chand cannot be doubted and his evidence gets full corroboration from the evidence of P.W. 1 Ambika Singh and P.W. 5 Vijay Bahadur Singh. It was contended by learned counsel for the appellants that the statement of Vijay Bahadur Singh P.W. 5 was recorded very late and this delayed interrogation of this witness by the investigating officer creates a doubt in the correctness of the prosecution story. We do not find any substance in the submission of the learned counsel. Once P.W. 5 Vijay Bahadur Singh who is an injured witness is found to be reliable and trustworthy, it is not possible to countenance the submission that the investigating officer was waiting to give a twist to the real story. It will not be out of place to mention here that First Information Report wherein details of the incident had been given, had already come into existence in which not only presence of Vijay Bahadur Singh was stated but it was also specifically mentioned that he was assaulted when he scuffled with Bhola Yadav in an attempt to snatch the gun from the hands of the appellant Bhola Yadav.
37. In additional to the eye witness account furnished by the aforesaid three witnesses there is yet another important piece of evidence for establishing the guilt of the appellants and it is in the form of Dying Declaration Ex. Ka. 28 made by Paras Nath Singh before his death. This dying declaration was recorded on 8-7-78 at 3-15 p.m. by Dr. S.N.P. Sinha, C.W. 6, when Paras Nath Singh was receiving treatment in Civil Hospital, Mau. The following lines in English were written by Dr. Sinha on the top of the dying declaration :
Dying declaration of Sri Paras Nath Sinha S/o Jagdish Singh, resident of village Ahilad P.W. Mau District Azamgarh on 8-6-78 at 3.15 p.m.
38. Dr. Sinha has stated that after writing the aforesaid lines in English he asked Paras Nath Singh to write his statement in his own hand writing, whereupon Paras Nath Singh started writing and he wrote in his hand that when he was getting himself shaved in Piparidlh market, Bhola Yadav, his brother Shyam Lal Yadav and four other persons came together, and Bhola Yadav fired upon him and his brother who died an instant death. Dr. Sinha has further stated that after writing the aforesaid lines Paras Nath Singh orally told him that he was finding it difficult to write further, therefore, he proceeded to record his statement in his own handwriting. The dying declaration was then recorded in question and answer form in the following manner :
1. Your name : - Paras Nath Singh
2. Father's name : - Jagdish Singh
3. Village : - Ahilad, district Azamgarh, P.S. Mau
4. Who fired on you : - Bhola Yadav S/o Ram Deen resident of Usmanpur, District Azamgarh
5. Who were present - Shyam Lal elder brother with the of Bhola and personfiring four other persons
6. Whether you - I can identify them could identify by seeing their faces these others but I do not know their names.
7. At what place - At about 1.30 p.m. and at what time in Piparidih market you were fired inside a Saloon upon
8. Whether there - Yes, there was enmity was any enmity on account of against Bhola Criminal Case and his companions :
9. Whether inside - Vijay Bahadur Singh the saloon you S/o Ram Janam were all alone Singh resident of or was there any Vinod Pur, P.S. Chiraiya one else : Kore, district Azamgarh was present in the saloon, when I received fire arm injury my brother Chandra Bhan Singh rushed alongwith some other persons : they were Awadh Raj Singh, Jai Prakash Singh and others.
10. After receiving - I fell down but was injuries what conscious and saw was your state : that my brother Chandra Bhan caught hold of gun whereupon Bhola fired upon him also.
11. After firing - After receiving gun what was the shot injuries Chandra state of Chandra Bhan fell down Bhan whereupon Bhola fired another shot upon his brother whereupon he died.
12. Whether you - No, I saw him from a had gone to distance of about your brother to one Bisa.
see him if he was dead :
39. The aforesaid dying declaration was recorded in the presence of Kaushal Kishore, Advocate C.W. 4, Brij Mohan Das C.W.5 and Arjun Singh C.W.2. Dr. Sinha further stated that dying declaration was then sent in a sealed envelop to the office of District Magistrate, Azamgarh. C.W.I Sri Fasih Uddin stated before the trial Court that the aforesaid sealed envelop was received in English Office of Collectorate, Azamgarh and an entry was made in the relevant register. The sealed envelop was then sent to the Court of Chief Judicial Magistrate on 15-6-78. C.W.3 Sri Gabboo Lal was a clerk in the Court of C.J.M., Azamgarh. He stated that the dying declaration in sealed envelop was received by him from Collectorate office on 15-6-78 and an entry was made to this effect in the register of dying declarations at serial No. 8. C.W. 2 Arjun Singh, C.W.4 Kaushal Kishore, Advocate and C.W.5 Brij Mohan Das proved their signatures on the dying declaration which they had appended as witnesses. They have categorically stated that the dying declaration of Paras Nath Singh was recorded in their presence by the doctor and Paras Nath Singh had signed the same in their presence. It was argued by the appellants counsel that this dying declaration has no value inas much as there is no certificate to the effect that declarant Paras Nath Singh was in a fit mental state to give statement. Dr. S.N.P. Sinha C.W. 6 in his statement before the Court has stated that at the time when dying declaration was recorded, Paras Nath Singh was in a fit mental state to make statement. In crossexamination he stated that since he had himself recorded the statement he did not think it necessary to append certificate about the mental fitness of Paras Nath Singh. It is not out of place to mention here that this dying declaration was recorded by the doctor who had himself medically examined Paras Nath Singh at 3.15 p.m. when he was brought in police escort to the hospital from the police station, Mau after the lodging of F.I.R. In the injury report of Paras Nath Singh Ex. Ka. 12 there is no mention that Paras Nath Singh was unconscious or semi-conscious. It is also noteworthy that a portion of dying declaration was scribed by Paras Nath Singh himself and he died after about 8 days on 16-6-78 in Varanasi Hospital where he was lateron removed. Thus he survived for about 8 days after receiving gun shot injury. In this state of affairs, we have no reason not to accept the statement of Dr. Sinha that when dying declaration Ex. Ka. 28 was recorded Paras Nath Singh was in a fit state to make the statement. All the three witnesses namely : Arjun Singh C.W. 2, Kaushal Kishore, Advocate C.W. 4 and Brij Mohan Das C.W. 5 have also stated that the doctor sahib had recorded the statement of Paras Nath Singh after putting questions to him. Arjun Singh was a resident of Haddi Madari. Kaushal Kishore, Advocate resided in Munshipur while Brij Mohan Das was a resident of Mau Nath Bhanjan. None of these witnesses belonged to the village of Paras Nath Singh and Ambika Singh P.W. 1. They were having no concern whatsoever either with the deceased or the accused persons. We thus find absolutely no reason to disbelieve them. It is fully established beyond doubt that Paras Nath Singh made a statement on 28-6-78 to Dr. Sinha which was reduced into writing as Ex. Ka. 28 in the form of dying declaration. A perusal of the dying declaration which has been quoted above leaves no room for doubt that incident had occurred at the place and time as alleged by the prosecution wherein Paras Nath Singh and Chandra Bhan Singh were shot at by Bhola Yadav, appellant from his gun. It is further to be noted that in his dying declaration Paras Nath Singh had also stated of the presence of Vijay Bahadur Singh, Awadh Raj Singh, Jai Prakash and others. He further corroborated the prosecution case that he was fired upon when he was inside the saloon (barber shop). He has also stated of the presence of appellant Shyam Lal Yadav. After giving our thoughtful consideration, we are of the view that dying declaration corroborates the prosecution story in all material particulars. The law with regard to dying declaration is well settled that there is neither any rule of law nor of prudence that dying declaration cannot be acted upon without corroboration and the need of corroboration arises where the Court comes to the conclusion that the dying declaration is not reliable and that it suffers from any infirmity. The primary effort of the Court is to be satisfied that the dying declaration is true and if that satisfaction is reached, no question of corroboration arises. In the case of Nanhau Ram v. State, AIR 1988 SC 912, it was held that normally the Courts in order to satisfy whether deceased was in a fit mental condition to make the dying declaration, look to the medical opinion, but where the eye-witnesses state that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. If we look to the injuries of Paras Nath Singh it would be found that he had sustained gun shot injuries on right side of abdomen. The post-mortem report of Paras Nath Singh, Ex. Ka. 7, further reveals that no injury was sustained by Paras Nath Singh on head or any portion of neck or chest. Larynx and trachen were intact. Neither the lungs nor heart were affected. It is pertinent to point out that Paras Nath Singh survived for more than 8 days before he died on 16- 6-78. Therefore, even the medical evidence supports the statement of Dr. Sinha and other witnesses that Paras Nath Singh was in a fit and conscious state to make the statement at the time of recording of dying declaration. We are further fully satisfied that it was not the result of tutoring as no one was present near Paras Nath Singh who was inimical to the accused persons. Dr. Sinha has also stated that he called the aforesaid three witnesses from the crowd which had collected outside the hospital. As already pointed out above all these witnesses belonged to villages different from the village of the deceased and the first informant and were totally independent. In our opinion dying declaration Ex. Ka. 28 is true, reliable and can safely be acted upon and the same also gets corroboration in material particulars from the evidence furnished by eye-witnesses including injured witness.
40. Learned counsel for the appellants then made an abortive effort to create a doubt in the finding of the trial Court regarding culpability of the appellants by contending that the prosecution has deliberately suppressed the genesis and the origin of occurrence and has thus not presented true version in as much as the injuries of appellant Bhola Yadav and Smt. Dasi have not been explained. It was pointed out by him that Bhola Yadav appellant in his statement has specifically pleaded right of private defence and according to his submission necessary basis in support of that plea has been laid in cross-examination of the witnesses and the same also emerges from the circumstances appearing in the case. We are fully mindful of the position of law that burden to prove plea of self-defence can be discharged by the accused by showing preponderance of probability in favour of that plea on the basis of material on record and that the standard of proof for such a plea is not the same as that which lies on the shoulders of prosecution. That burden will stand discharged once the probability of the plea of accused is established from the evidence on record examined on the anvil of test of preponderance of probability.
41. In the present case admittedly no witness in defence has been examined in support of the statement made by Bhola Yadav under Section 313, Cr.P.C. We have however examined the evidence of prosecution witnesses with a view to find out if the plea of self-defence raised by appellant Bhola Yadav is probable and we find that nothing material has come in the statement of the three eye-witnesses which may probabilise the plea of self-defence of appellant Bhola Yadav.
42. Now we come to the argument of learned counsel for the appellants that since the prosecution has not explained the injuries of Bhola Yadav and Smt. Dasi, the evidence of the eye-witnesses is not capable of being relied upon.
43. It is now well recognized that what will be the effect on the prosecution case of non-explanation of injuries suffered on defence side is a question of fact and not of law. Before an adverse inference is drawn against the prosecution for its alleged suppression or failure to explain the injuries on the person of the accused, it must be reasonably shown that, in all probability, the injuries were caused to him in the same occurrence or as a part of the same transaction in which the victims on the side of prosecution were injured. It is not the law that the prosecution is obliged to explain the injuries of defence side in all cases and in all circumstances. It all depends upon the facts and circumstances of each case if the prosecution case is to be doubted for its failure to explain injuries of the accused and no hard and fast rule can be formulated in this regard.
44. In the case of A.M. Kunnikoya v. State of Kerala, (1994) 31 All Cri C 9 (SC), it was held that if evidence of eye-witnesses is reliable and inspires confidence, prosecution case cannot be rejected solely on the ground of non-disclosure and non-explanation of superficial injuries sustained by the accused.
45. In a given case where injuries are superficial and the explanation given is found impeachable, yet the evidence of prosecution witnesses cannot be thrown out on that account alone. If the injuries received by the accused are self-explained or in other words are consistent with the prosecution case and circumstances themselves explain such injuries, prosecution case will not be adversely affected. This omission may assume greater importance where the evidence consists of interested or inimical witnesses but may loose significance where the prosecution evidence is so clear and cogent so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of the prosecution to explain the injuries. Therefore, in order to determine the question whether the prosecution case is, in any way, affected on account of its failure to explain injuries received on defence side, each case has to be examined on its own facts and circumstances and it is not possible to frame any water tight compartment in this regard.
46. We will first deal with the injuries of Bhola Yadav appellant, so far as they are concerned they were superficial as is evident from injury report Ex. Ka. 8 proved by D.W. 1 Dr. V.V. Tripathi. Injury No. 1 was a skin deep lacerated wound while other two injuries were simple abrasions. As per the statement of P.W. 1 Ambika Singh these injuries were perhaps caused to Bhola Yadav during the course of scuffle which ensued between him and Vijay Bahadur Singh P.W. 5, when the latter was trying to snatch gun from Bhola Yadav. In cross-examination he stated that he did not himself see those injuries from his own eyes but he was told about them by others. He further stated that he did not wield any lathi or danda on Bhola Yadav nor saw any other person using them on Bhola Yadav. P.W. 5 Vijay Bahadur Singh has stated that he had held the gun of Bhola Yadav after he had fired a shot upon Paras Nath Singh and then scuffled with him for about 1-15 minutes. He further added that Jai Prakash P.W. 6 and Awadh Raj in the meantime picked up wooden sticks from a carpenter shop which was situated in front of the scene of occurrence and used the same in defence. Learned counsel for the appellants submitted that so far as the statement of P.W. 5 Vijay Bahadur Singh regarding use of wooden sticks for explaining the injuries of accused Bhola Yadav is concerned, it is a developed one and advanced for the first time at the trial because he did not state so in his statement made under Section 161 Cr.P.C. nor such an explanation has been furnished either by P.W.I Ambika Singh or by P.W. 6 Jai Prakash. Even if this explanation given by P.W. 5 Vijay Bahadur is discarded as a development or embellishment, the fact remains that as per the statements of all the three witnesses and the averments made in the F.I.R. a scuffle had ensued between Bhola Yadav and P.W. 5 Vijay Bahadur Singh on the point of snatching gun. Right from the F.I.R. it has been the consistent case of prosecution that such a scuffle had ensued between Vijay Bahadur Singh and Bhola Yadav when the former held the gun of Bhola Yadav after he had fired upon Paras Nath Singh. As per the statement of P.W. 5 Vijay Bahadur Singh and the dying declaration Ex. Ka. 28, Vijay Bahadur Singh was also present inside Jaichand's saloon, when Bhola Yadav had fired upon Paras Nath Singh, P.W. 5 Vijay Bahadur Singh has specifically stated that first he got himself shaved and thereafter Paras Nath Singh sat on the chair for shaving. It is of common experience that villagers usually do not shave themselves at home and they get it done from barbers. Since Vijay Bahadur Singh and Paras Nath Singh were going in a ceremony, it was most natural that they might have thought it better to get themselves shaved on getting an opportunity on account of the train running late. According to P.W. 5 Vijay Bahadur Singh as well as P.W. 6 Jai Prakash scuffle between Vijay Bahadur Singh and Bhola Yadav continued for about 10-15 minutes. P.W. 6 Jai Prakash further stated that other associates of Bhola Yadav also intervened and tried to snatch the gun from the grip of Vijay Bahadur Singh. Therefore, even after giving all allowance to the defence in not taking into account the explanation furnished by Vijay Bahadur Singh regarding the injuries of Bhola Yadav to the effect that Jai Chand and Awadh Raj had picked up wooden sticks and used them in defence, yet it is fully borne out from the evidence on record that a scuffle had ensued for about 10-15 minutes between P.W. 5 Vijay Bahadur Singh and accused Bhola Yadav and his associates, therefore, in such a disorderly struggle there was every possibility of Bhola Yadav receiving superficial injuries. The insignificant and superficial injuries of Bhola Yadav are, thus, fully explained by the prosecution evidence and the circumstances appearing in the case.
47. Now coming to the injuries of Smt. Dasi, we find that the learned Sessions Judge has recorded a finding that Smt. Dasi was not present at the scene of occurrence and her injuries were seemingly self-suffered. After closely examining the evidence on record, we find no reason to take a different view. Injury report of Smt. Dasi has been proved as Ex. Kha. 1 by Dr. R.R. Rai, P.W. 7. The injuries were examined on 8-6- 78 at 11 p.m. in the District Hospital, Azamgarh and not at Mau. All the three witnesses of fact examined on behalf of the prosecution have categorically denied presence of Smt. Dasi at the scene of occurrence or of her receiving injuries during the course of incident. Dr. Rai P.W. 7 has categorically stated that Smt. Dasi had come before him all alone and was not accompanied by any person. He admitted that the injuries of Smt. Dasi could be caused by a blade or sharp knife and had a heavy weapon been used, the injuries would have been much deeper. He in clear words admitted that all the injuries were skin deep up to muscles but muscles had not been cut. He further stated that since the blade of a spear was usually not very sharp, injuries of Smt. Dasi were possibly not caused by spear. However according to the statement of Bhola Yadav, Smt. Dasi was assaulted with lathi by Vijay Bahadur and with spear by Chandra Bhan. As per the opinion of the doctor none of the injuries was possibly caused by a spear and we agree with the opinion expressed by Doctor Rai. According to Bhola Yadav, Smt. Dasi had gone to the shop of Jai Chand barber for the dressing of hair of son of Bhola Yadav. One relative of his was also with Smt. Dasi. Paras Nath Singh, Vijay Bahadur and Chandra Bhan reached at the saloon of Jai Chand and Paras Nath Singh had an altercation with Smt. Dasi whereupon Vijay Bahadur assaulted her by lathi. On getting information of this Bhola Yadav also reached there. On his arrival, he found that Vijay Bahadur and his own relation were assaulting each other. Chandra Bhan was armed with a spear and Paras Nath Singh with lathi and they both started assaulting Smt. Dasi. Seeing her life in danger he fired upon Chandra Bhan and Paras Nath Singh. This defence version of the incident is apparently false and is not acceptable to us in the absence of production of either Smt. Dasi or the so-called relative of Bhola Yadav whose name has neither been suggested to any of the witnesses nor stated by Bhola Yadav in his statement. Smt. Dasi is the widow of Phirangi Yadava brother of Bhola Yadava who was undisputedly murdered prior to the present occurrence and Paras Nath Singh deceased of the present case and others were tried and acquitted in that murder case. In the back drop of this animosity if Paras Nath Singh, his brother Chandra Bhan Singh and their associates had come well prepared with deadly weapons to assault Smt. Dasi, it is inconceivable that she would have been spared with only skin deep and superficial injuries. First information report of the present case was lodged by Ambika Singh P.W. 1 at police station Mau at 2.55 p.m. in the same (sic) after soon wherein Bhola Yadava had been charged for firing upon Chandra Bhan Singh and Paras Nath Singh. Chandra Bhan Singh had died on the spot within the view of assailants Bhola Yadava and Shyam Lal Yadava. Smt. Dasi was thus naturally interested in saving appellants Bhola Yadava and Shyam Lal Yadava who are real brothers of her late husband Phirangi Yadava and perhaps with this end in view who got manufactured injuries on her person. If she was present at the scene of occurrence and sustained injuries at the hands of the two deceased persons, there was no reason why she would not get her injuries examined at the earliest at Mau. Why she chose to defer her medical examination up to 11 p.m. has not been explained either by the defence or the circumstances appearing in the case. As already pointed out above the injuries of Smt. Dasi could be self-inflicted or self-suffered. The prosecution witnesses who are wholly independent, disinterested, reliable and trustworthy have not admitted the presence of Smt. Dasi at the scene of occurrence. We do not find any reason to disbelieve them. Since it is not established that Smt. Dasi sustained injuries in the course of this incident, the prosecution was under no obligation to explain them.
48. Lastly, it was argued by the learned counsel for the appellants that the evidence of prosecution witnesses has not been found trustworthy by the trial Judge in respect of four acquitted accused persons namely, Ram Prasad, Ram Naresh, Harish Chandra and Sanwaroo Yadav, therefore, on the same evidence conviction of the appellants cannot be sustained. It is well nigh settled that merely because benefit of doubt has been extended to some accused, other accused persons will not be entitled to acquittal merely for the reason that their conviction is based on the testimony of same set of witnesses whose testimony has not been considered trust-worthy to sustain the guilt of other accused persons. A perusal of the judgment of the trial Court will indicate that the aforesaid four accused persons have been given benefit of doubt not on the ground that the evidence of three eye-witnesses is unreliable but they have been acquitted for other reasons. So far as Harish Chandra and Sanwaroo are concerned they were not named in the First Information Report Ex. Ka. 1 and it further appears that there was a doubt in the mind of the trial Judge with regard to their identity. Same doubt has also been expressed by the trial Court with regard to Ram Prasad and Ram Naresh alias Naresh Yadav though they were named in the First Information Report. No overt act has been assigned to these accused persons by the witnesses in their statements and the most important circumstance going in favour of their acquittal was that none of them was named by Paras Nath Singh in his dying declaration Ex. Ka. 28 which was recorded at 3.15 p.m. on the same day of occurrence. A specific question was asked from Paras Nath Singh as to who were the assailants and the reply was that they were Bhola and his brother Shyam Lal and four others. On a further question, he categorically stated that he did not know their names and he would identify them if confronted with. In this view of the matter the trial Judge seems to have adopted the safest course of giving benefit of doubt to Ram Prasad, Ram Naresh, Harish Chandra and Sanwaroo as they were not named by deceased Paras Nath Singh in his dying declaration. In our considered opinion their acquittal has no adverse effect on the prosecution case as far as the present appellants Bhola Yadav and Shyam Lal Yadav are concerned.
49. For the foregoing reasons our conclusions are that P.W. 1 Ambika Singh, P.W. 5 Vijay Bahadur Singh and P.W. 6 Jai Prakash are totally independent witnesses and they were given cogent and convincing reasons of their presence at the time of occurrence, that their evidence is reliable and trustworthy and is fully supported by medical evidence and the circumstances appearing in the case, that the First Information Report was promptly lodged and has a corroborative value, that the dying declaration of the deceased is true and reliable and that the defence version is palpably false and wholly inconsistent with the circumstances appearing in the case. On the basis of these findings, we hold that the prosecution case against the appellants is proved beyond any reasonable doubt.
50. For the reasons stated above we maintain the conviction and sentence of the appellants as recorded by the learned Sessions Judge in the judgment dated 5-11-1980, accordingly this appeal is dismissed.
51. Appellants Bhola Yadav and Shyam Lal Yadav are on bail, their bail is cancelled and they shall be taken into custody forthwith to serve out their respective sentences.
52. Copy of this judgment be sent to Chief Judicial Magistrate concerned for immediate compliance who shall report back to this Court after making compliance.