Allahabad High Court
Sri Krishna vs State Of U.P. on 21 August, 2018
Equivalent citations: AIRONLINE 2018 ALL 3312
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 06.8.2018 Delivered on 21.8.2018 Case :- CRIMINAL APPEAL No. - 1244 of 1983 Appellant :- Sri Krishna and others Respondent :- State Of U.P. Counsel for Appellant :- V.C.Katiyar,Ajay Kumar Mishra,D.N. Singh,O.P. Katiyar,Pradyumn Kumar,Rahul Mishra,S.D.N. Singh Counsel for Respondent :- Dga,A.G.A.,Rajesh Kumar Tripathi Hon'ble Sudhir Agarwal,J.
Hon'ble Om Prakash-VII,J.
(By Om Prakash-VII, J.)
1. Instant criminal appeal has been preferred by accused appellants Shri Krishna, Ram Kishna, Bharat, Roop Lal, Sukhvasi, Har Dayal @ Har Pal, Ram Autar son of Soney Lal, Ram Asrey, Ram Adhar, Udhan and Ram Autar son of Satti Deen Jatav against judgment and order dated 20/21.5.1983 passed by IIIrd Additional District & Sessions Judge, Farrukhabad in Session Trial No.413 of 1981 (State of U.P. vs. Sri Krishan and others) convicting and sentencing the appellants Shri Krishna, Ram Kishna, Bharat, Roop Lal, Sukhvasi, Har Dayal @ Har Pal, Ram Autar son of Soney Lal, Ram Asrey, Ram Adhar, Udhan and Ram Autar son of Satti Deen Jatav for the offence punishable under Sections 302/149 IPC for imprisonment for life, for the offence under Sections 307/149 IPC to undergo five years rigorous imprisonment and accused appellants Roop Lal, Sukhvasi, Har Dayal @ Harpal, Ram Autar son of Soney Lal, Ram Asrey, Ramadhar, Udhan and Ram Autar son of Satti Deen for the offence under Section 147 IPC to undergo one year rigorous imprisonment and accused appellants Sri Krishan, Ram Krishan and Bharat for the offence under Section 148 IPC to undergo two years rigorous imprisonment and accused appellants Ram Autar son of Sattideen and Sri Krishan for the offence under Sectiion 404 IPC to undergo two and a half years rigorous imprisonment. All the sentences were directed to run concurrently.
2. At the outset, it is relevant to mention here that during pendency of this appeal, appellant nos. 4, 5 and 11 (Roop Lal, Sukhvasi and Ram Autar son of Satti Deen) have died. Accordingly, vide order dated 19.5.2016 this Court has abated the appeal in respect of appellant nos. 4, 5 and 11 (Roop Lal, Sukhvasi and Ram Autar son of Satti Deen), respectively.
3. Now, Court is proceeding to consider present appeal in respect of rest of appellants, namely, Shri Krishna, Ram Krishna, Bharat, Hardayal @ Harpal, Ram Autar son of Soney Lal, Ram Ashrey, Ram Adhar and Udhan.
4. Prosecution case, in nutshell, as unfolded by informant Ram Swarup son of Gajraj Singh in First Information Report (in short 'F.I.R.'), is that on 1.9.1979 at about 8 a.m. his brother Balbir Singh, who was Assistant Teacher in a primary School, was going there on his cycle and when he reached near field of Baladin, accused persons, namely, Sri Krishan and Ram Krishan armed with spears, Bharat with Kanta and others with lathies, appeared there from nearby maize field and started attacking him. On raising alarm by his brother, informant, who was also talking in nearby field, along with Onkar Singh, Din Dayal, Rameshwar and Prithvi Singh regarding purchase of a buffalo (bhainsa), rushed there and found his brother being attacked. When informant objected and alarmed, Sri Krishan shouted that he should also be murdered, then accused persons rushed towards informant and started attacking him with lathies and spears. Witnesses could not come near him. When brother of informant escaped in east, accused persons leaving the informant, captured his brother in Urad field of Yadunath Singh and beating him dragged towards tube-well, then Sri Krishan set-fire his chhapper and asked his companions to burn the brother of informant. Meanwhile after hearing noise, women of informant family reached there and fell over informant's brother. Villagers also gathered there and when they exhorted, accused persons fled away towards east. Ram Autar Jatav took away cycle and wrist watch of his brother and Sri Krishan took money from pocket. When informant and other persons reached on the place of occurrence they saw that his brother was dead. Informant's brother had enmity with accused persons on account of purchase of plot from Durga Dayal as half field was purchased by deceased and remaining by Sukhvasi, brother of accused Sri Krishna. There was a dispute regarding intervening mend, accused persons used to say that this half portion also belonged to them, that is why they beaten informant and his brother. Informant sustained serious injuries. He dictated report to Onkar Singh and since he was unable to reach police station, report was sent through Onkar Singh to police station for lodging F.I.R..
5. On the basis of the written report (Ext. ka-1) scribed by one Onkar Singh, chik First Information Report (Ext. Ka-17) was registered at Police Station concerned on 1.9.1979 at 11.15 a.m. mentioning all details as had been described in Ext. Ka-.1. G.D. entry was also made at the same time, which is Ext. Ka-18. Special report said to be sent in the matter is Ext Kha-1.
6. Investigation of the matter was entrusted to sub-Inspector P.P. Singh. He proceeded to place of occurrence and prepared site plan (Ext. ka-2; recorded statement of witnesses Onkar Singh and injured Ram Swarup; inspected burnt chhappar and took its ashes and prepared memo Ext. ka-3. He found a pair of chappals on the spot belonging to the deceased, which is Ext. ka-4. He also took blood stained and plain earth from spot and kept in a sealed boxes preparing sample seal. Memo in this regard is Ext. ka-5. Inquest report (Ext. ka-6) was prepared by Sub-Inspector O.P. Kureel keeping the dead body in sealed cloth and preparing the sample seal. The Investigating Officer also prepared other police papers, i.e. form-13, photo lash etc., which are Ext. ka-7 to ka-10. Dead body of deceased was sent through constable Raja Ram for post mortem to District Hospital along with police papers. Injured Ram Swarup was also sent to Civil Hospital Fatehgarh along with majroobi chitthi Ext. ka-11. Investigating Officer, thereafter, made search of accused persons, who were not available and prepared memo in this regard, which is Ext. ka-12 to ka-15. In the night, he stayed on the place of occurrence. Next day, he recorded statement of other witnesses. Constable Raja Ram on 1.9.1979 had taken dead body of deceased with relevant papers for post mortem.
7. Autopsy report (Ext. ka-19) was prepared after conducting post mortem on the dead body of deceased on 3.9.1979 at 4.45 p.m.
8. As per post mortem report, deceased was about 32 years old and probable time of death was about two days. On general examination, deceased was average body built and rigor mortis was passed of in both extremities. Skin peeled of. Decomposition started.
9. On examination of dead body of the deceased, following ante-mortem injuries were found:
"1. Punctured wound ½" x ½" x bone deep in the skin of left leg 4" above the ankle margins inverted.
2. Lacerated wound 1" x ½" x muscle deep in the outer side of left leg 2" above the ankle joint.
3. Lacerated wound 1½ x ¾" x bone deep in the skin of right leg 5" above the ankle joint.
4. Contusion 3" x 2" in-front of right ankle joint.
5. Lacerated wound 3" x ½" x muscle deep in the back of right elbow joint
6. Lacerated wound 1" x ¾" x superficial trachea deep in the outer side of upper 1/3rd of right arm.
7. Punctured wound ½" x 4/10" x cavity deep in the right eye.
8. Punctured wound ¾" x ½" x bone deep in the back of left arm 1½" above the elbow joint margins are inverted.
9. Contusion 1" x ¾" in the outer side of left arm 4" above the elbow joint.
10. Lacerated wound ½" x ¼" x muscle deep in the hand between left middle of ring finger.
11. Contusion 3" x 2" on the front of right side of chest 3" below the collar bone iv to v rib are fractured.
12. Contusion 3" x 2" on the top of left shoulder.
13. Contusion 2" x 1½" on the back of right shoulder.
14. Contusion 3" x 2" on the back of right lower region."
10. According to doctor, small and large intestines were full of faecal matter and gases, semi digested food was also found in the stomach.
11. In the opinion of doctor, death was caused due to shock and hemorrhage as a result of ante-mortem injuries.
12. Injured Ram Swarup was also medically examined by Dr. S.C. Saxena on 2.9.1979 at 3.40 p.m.. Following injuries were found on his body:
"(i) Septic lacerated wound 1½" x ¼" x scalp deep on the tip of back of the skull bone.
(ii) Lacerated wound 1¼" x ¼" x muscle deep, present back of the left elbow joint.
(iii) Lacerated wound ½" x ¼" x muscle deep left side of fore-arm upper side.
(iv) Abrased contusion 2½" x ½" in the middle third of right fore- arm. Advised x-ray of right fore-arm.
(v) Lacerated wound ½" x ¼" x muscle deep right side of right index finger upper front.
(vi) Lacerated wound ¾" x ¼" x muscles right side of little finger.
(vii) Complete trauma all over the body."
13. According to doctor, all injuries, except injury no.4, were simple in nature and were caused by blunt object. X-ray of right fore-arm was advised.
14. Bloodstained and plain earth was sent to Agra for chemical examination but no report was received.
15. After completing investigation, charge-sheet (Ext. ka-16) against all accused was filed. Concerned Magistrate took cognizance. Case being exclusively triable by sessions court was committed to Court of sessions.
16. Accused appeared and charges under Sections 302/149 IPC and 307/149 IPC were framed against all accused persons, charge under Section 147 IPC was framed against all accused persons except Sri Krishan, Ram Krishan and Bharat, charge under Section 148 IPC was framed against Sri Krishan, Ram Krishan and Bharat, charge under Section 404 IPC was framed against Ram Autar and Sri Krishan. All the accused have denied the charges framed against them and claimed their trial.
17. Trial proceeded and in order to prove its case on behalf of prosecution, eight witnesses, namely, PW-1 Injured/informant Ram Swarup, PW-2 Onkar Singh, PW-3 Rameshwar, PW-4 Sub-Inspector P.P. Singh (Investigating Officer), PW-5 Sub-Inspector Shyam Sunder Singh, PW-6 Dr. K.K. Agarwal, PW-7 Dr. S.C. Saxena and PW-8 Raja Ram were examined.
18. After closure of evidence, statement of accused appellants under Section 313 Cr.P.C. was recorded in which they stated the prosecution case false. On point of statement of witnesses they stated that they have made false statement due to enmity. They have also showed unawareness about preparation of police papers, charge sheet, chik FIR as well as G.D. and specifically stated that they have been falsely implicated in this case due to enmity.
19. In support of its case, defence examined Daulat Ram, an official of Collectorate, Fatehgarh and documents i.e. copy of map (Ext. kha-2) copy of sale deeds (Ext. kha-3 and kha-4), extract copies of Khatauni, khasra etc. (Ext kha-6, kha-7 and kha-8) and extract copy of family register (Ext. kha-9) were filed by them. Though Ext. kha-5 was referred to a complaint by Shri Krishna against Balbeer, Ram Swarup and others but its date was not shown.
20. Having heard learned counsel for parties and going through the record, trial court has found that prosecution has fully succeeded in bringing home the charges against accused appellants beyond reasonable doubt warranting their conviction and sentence. Hence this appeal.
21. We have heard Shri Rahul Mishra, learned counsel for appellants, Shri Rajesh Kumar Tripathi, learned counsel for complainant / informant and Shri Syed Ali Murtaza, learned AGA for State at length.
22. Castigating the impugned judgment and order, learned counsel appearing for appellants submitted that prosecution was not able to prove its case beyond reasonable doubt. Written report (Ext. Ka-1) was not in existence at the time mentioned in chik report. At this juncture, learned counsel appearing for appellants referring to special report sent by police concerned to superior authorities submitted that number of accused described in F.I.R. differ with number of accused disclosed in special report. Thus, referring to these facts it was also argued that F.I.R. in the matter was changed. It was further submitted that prosecution was also not able to prove date, time and place of incident. Place, where accused were said to be hidden, is not field of maize crop nor there was maize crop in adjacent field of place of occurrence. Thus, prosecution case that accused-appellants had kept hidden themselves in field of maize itself becomes doubtful. Referring to place of occurrence and place, where witnesses were said to be present and talking shown in site plan, it was next contended that it appears improbable and unbelievable that hue and cry made by deceased from the place of incident would have been heard by witnesses. Drawing the attention of Court towards statements of P.W. 1, P.W. 2 and P.W. 3 it was also argued that it is admitted case of prosecution that accused-appellants and deceased could not be seen from the filed of P.W. 1. It was also submitted that P.W. 2, P.W. 3 and other witnesses cited in First Information Report are not resident of village where incident took place. Therefore, they are chance witnesses. Reason disclosed in F.I.R. for their presence in field of P.W. 1 is also not believable, as there is major contradiction in their statements on material points. Referring to post mortem report and the facts mentioned in it about content of stomach of deceased, it was also argued that incident was committed in early hour at some other place and by some unknown persons as has been suggested to witnesses in cross-examination by defence. Faecal matter present in stomach/intestine itself indicates that time of death shown in F.I.R. is doubtful. Non existence of any dragging injury on the body of deceased also shows prosecution story doubtful. At this juncture, learned counsel appearing for appellants also referred to weapons assigned to appellants and argued that one of accused, namely, Bharat Singh has been assigned with weapon kanta but no injury has been found on body of deceased or injured caused by said weapon. There is major contradiction on this point in the statements of prosecution witnesses. It is also urged that prosecution did not produce Forensic Science Laboratory Report. Sleeper (chappal) produced before Court was also old and in ruptured condition. Investigating Officer did not investigate the matter properly, which causes injustice to accused. Neither cot nor matress were taken into possession by police. Injured was examined on 2.9.1979 but reason for delay has not been properly explained. Medical evidence does not support prosecution case. Police papers prepared along with inquest report do not bear crime number etc.. Motive was also not proved and is not sufficient to commit present offence. Since witnesses examined in the matter were inimical, they have made false statements. There is improvement in statement of prosecution witnesses at the stage of deposition before Court on point of place of occurrence, where accused were hidden and place where witnesses were present. There is also omission on point as to whether injured was beaten only one time or twice. There is also major contradiction on point of inflicting injuries by accused. Topographical details shown in site plan are contradictory with the details disclosed by prosecution witnesses in statement made before Court. P.W.1, P.W. 2 and P.W. 3 have made contradictory statement about role played by each and every accused. At this juncture, learned counsel appearing for appellants also referred to documents filed in support of their defence to show enmity and relation of prosecution witnesses with accused-appellants. Non-taking of bloodstained earth from the place where deceased and injured were said to be beaten also creates doubt about truthfulness of prosecution case. P.W. 2 and P.W. 3 are pocket witnesses and were closely related to injured and deceased. They were not present on the spot and due to that reason contradiction occurred on material points in their statements. It was further argued that 11 persons armed with deadly weapons were said to be involved in beating the deceased and injured but injuries are less in number than blows said to have been caused. Weapons said to have been used in commission of crime have also not been recovered in the matter. Findings recorded by trial court in impugned judgment and order suffer from infirmity, illegality and perversity. Incident took place when deceased and injured were sleeping in night in their field to look after crops. Hence, impugned judgment and order suffers from infirmity and illegality warranting interference by this Court.
23. On the other hand, learned AGA as well as learned counsel appearing for informant submitted that F.I.R. was lodged promptly. There is no delay and if some facts were found missing in special report sent by police concerned to superior officer, this fact itself is not sufficient to disbelieve prosecution case. Constable, who had prepared special report, was punished in the matter. There was enmity between parties in regard to purchase of land. Deceased had purchased half portion of land and remaining half portion was purchased by brother of accused Shri Krishan and, therefore, there was dispute regarding area possessed by them. Thus, prosecution was able to prove motive assigned in matter. Medical evidence fully supports prosecution case. At this juncture, learned AGA referring to post mortem report, injury report and statements of prosecution witnesses argued that injuries found on the body of deceased and injured could be caused with weapons assigned to accused. Oral testimony is fully supported by medical evidence. Merely on this basis that gasses and faecal matter were found in intestine and on the basis of opinion expressed by doctor that time of death may differ to six hours either side, it shall not be presumed that incident did not take place at the time mentioned in F.I.R.. Nothing is on record to show the time of taking meal/food by deceased. What sort of food and when it was taken by deceased is not clear. Digestion of food taken by a person depends upon several factors. Thus, merely on the opinion of doctor, time of death stated by witnesses in the matter cannot be doubted, especially when there are eye account injured witnesses. Hearing hue and cry of deceased, P.W. 1, P.W.2 and P.W. 3 had reached on the spot. If there is contradiction in statement of witnesses regarding maize field with topographical details of site plan, ocular testimony of injured and eye account witnesses cannot be disbelieved. P.W. 1 was present in his field to look after his maize crop, it was morning hour, presence of all other witnesses in his field, who were familiar to P.W. 1, cannot be disbelieved. P.W. 1, P.W. 2 and P.W. 3 have clearly and consistently stated reason of their presence in the field of P.W. 1 - Ram Swarup. Discrepancies, contradictions, improvement, exaggeration and omission occurred in prosecution evidence are not fatal to prosecution case on material points. Injuries found on the body of injured are not self-inflicted. Majrubi chitthi prepared in the matter itself indicates that on the day of incident injured was taken to nearest hospital for treatment. Since doctor was not available, he was examined next day. Mere delay in medical examination of injured is not sufficient to disbelieve the statement of prosecution witnesses. Although P.W. 1, P.W. 2 and P.W. 3 are related to deceased yet their presence at place of occurrence after hearing hue and cry of deceased was probable and believable. If dragging mark was not found on the body of deceased, this fact itself is also not sufficient to disbelieve prosecution case. Findings recorded by trial court in impugned judgment and order are based on correct appreciation of facts, evidence and law. There is no illegality, infirmity or perversity in the impugned judgment and order warranting interference by this Court.
24. We have considered rival submissions made by learned counsel for parties and have gone through entire record including impugned judgment and order carefully.
25. In this matter, as is evident from record, offence is said to have been committed on 1.9.1979 at 8 a.m.. F.I.R. was lodged on same day at 11.50 a.m.. Distance between place of occurrence and police station is six miles. Injured P.W. 1 sent written report (Ext. Ka-1) through P.W. 2, who had scribed the same. Written report (Ext. Ka-1) was prepared at place of occurrence on dictation of P.W. 1. After registering the case, police reached on the spot. P.W. 2 also returned at place of occurrence. Site plan was prepared on the basis of information given by P.W. 2. Maize crop is not shown in field of Munshi as per site plan. No kanta injury in the form of incised wound or cut wound was found on body of deceased or injured. After hearing hue and cry of deceased, P.W. 1 Ram Swarup, an injured witness, had reached on the spot. He was also beaten by accused persons. P.W. 2 and P.W. 3 were also present in field of P.W. 1. Having heard hue and cry of deceased, they had also reached at place of occurrence although they did not make any effort to save deceased or injured neither police produce F.S.L report. Cots, on which deceased and injured were lying, were not taken into possession nor prosecution was able to prove the fact that blood was found on cots. Contradictions have occurred in statement of prosecution witnesses as to whether injured was beaten by accused only once or twice. Nothing has been mentioned in F.I.R. about causing of injuries to injured second time or in the eye of deceased by accused Shri Kishan with weapon 'spear'. It has also come in evidence that a proceeding under Section 107 CrPC was started between the parties and there was also enmity between informant side and other person. Name of some accused did not find place in special report. In some police papers prepared by I.O. at time of inquest report or fard recoveries, name of accused person is also missing. Majroobi chitthi indicates that injured was taken on 1.9.1979 itself for treatment to Durwai Hospital but doctor was not available there, then he was taken to District Hospital.
26. In above factual backdrop of the case, first of all, we proceed to deal with submission regarding F.I.R..
27. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. [vide: Sahib Singh Vs. State of Haryana, AIR 1997 SC 3247].
28. In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide : Chandrapal Singh & Ors. Vs. Maharaj Singh & Anr., AIR 1982 SC 1238; State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., AIR 1992 SC 604; G. Sagar Suri & Anr. Vs. State of U.P. & Ors., AIR 2000 SC 754; and Gorige Pentaiah Vs. State of A.P. & Ors., (2008) 12 SCC 531).
29. Though in special report submitted to superior officer name of three accused are missing yet date and time of lodging F.I.R., time of incident, name of informant, crime number, name of injured, weapons assigned to accused appellants and other details have been shown in the said report. F.I.R., as mentioned above, was lodged on the same day at 11.50 a.m.. Distance between place of occurrence and police station concerned is six miles. Hence, in the facts and circumstances of case, it cannot be said that F.I.R. was lodged belatedly or was not in existence at the time of transmitting of special report to superior authorities. Mistake committed by police constable in copying F.I.R. is not sufficient to believe that F.I.R. is not a genuine document. If entire prosecution story as well as statement made by police witnesses are compared, it clearly emerges that police reached at place of occurrence after registering F.I.R.. Thus submission raised by learned counsel appearing for appellants about authenticity and genuineness of F.I.R. is not acceptable. If P.W. 1 (injured) had not gone to police station for lodging F.I.R., this fact is also not sufficient to doubt genuineness and existence of F.I.R. and on this basis it cannot be held that after transmitting special report in consultation with police F.I.R. was changed. It is pertinent to mention here that in criminal cases F.I.R. is lodged only to set the law in motion and in cognizable offences it can be lodged by any person having knowledge of the crime. It is not material as to who informed about commission of crime. In the circumstances, submission raised by learned counsel appearing for appellants is not acceptable. F.I.R. in the matter was lodged promptly giving correct details. If some facts are missing in F.I.R. the same itself is not sufficient to disbelieve prosecution case. F.I.R. is not an encyclopedia. Details given in the F.I.R. are sufficient to show commission of a crime.
30. As far as motive is concerned, although we are oblivious of fact that motive relegates into back ground in a case of direct ocular testimony and is not of much significance, but where motive is false and cooked up, then it assumes importance to test veracity or other wise of prosecution witnesses. In this matter, prosecution case from very beginning is that deceased had purchased half of portion of disputed land from one Pandit Durga Dayal and remaining half portion was purchased by brother of accused Kishan Singh and there was dispute between them regarding intervening mend. Proceeding under Section 107 Cr.P.C. was started between them in this regard. It may be mentioned here that sometime on the basis of severe motive offences are committed. It may also be mentioned here that motive is double edged weapon, at one point of time, it may be a reason for committing offence and at the same time, it may also be a reason for false implication. Therefore, in our view, prosecution case cannot be disbelieved only on this score. As stated above, though motive is an essential ingredient to constitute the crime but where there are eye account witnesses, motive loses its significance. The effect of motive attributed in the present matter has to be seen in the light of other evidence.
31. So far as medical evidence is concerned, learned counsel appearing for appellants has urged that in stomach semi digested food was found and in both intestine gasses and faecal matter were also available. This fact indicates that incident took place in night hour. Prosecution case is that deceased was going to his school at about 8 a.m. in morning and when he reached near place of occurrence, accused persons, hidden in maize field, came out and started beating him and after hearing hue and cry made by deceased, injured and other witnesses, present in the field of P.W.-1, also reached there and When injured tried to save his brother, he was also beaten by them. It may be mentioned here that P.W. 6 Dr. K.K. Agarwal has clearly stated in his statement before Court that injuries found on body of deceased could come on 1.9.1979 at 8 a.m.. Similar is the position in statement of P.W. 7 Dr. S.C. Saxena, who has examined injured P.W. 1. He has also clearly stated that injuries found on the body of injured P.W. 1 could be caused with weapon lathi and could come on 1.9.1979. Although P.W 6 in cross-examination has stated that three to four hours time is taken in reaching the food at the stage of semi digestion and there may be variation/difference in time of death about half day either side. P.W. 7 in cross-examination has also stated that injury found on the body of P.W. 1 may come in intervening night of 31.8.1979/1.9.1979 and there may be variation of four to six hours. The opinion given by doctors concerned in cross-examination is an opinion and only on that basis in the instant matter time of incident cannot be doubted. It may be mentioned here that digestive process depends upon type of food consumed by the person, body health, mental conditions etc.. No hard and fast standard in medical jurisprudence has been made on this point and opinion is formed on the basis of experiences.
32. It is settled that presence of semi digested food in the stomach of deceased is not conclusive in itself for determining time of death. The State of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when the deceased had his last meal and what that meal consisted of. Further, presence of faecal matter in the intestines is also not conclusive, as the deceased might be suffering from constipation. Where there is positive direct evidence about time of occurrence, it is not open to court to speculate about the time of occurrence by the presence of faecal matter in the intestines. In villages, rural people usually go to answer the call of nature before sunrise, no such generalization is possible. It depends upon habit of the individual, the state of his health, particularly of his digestive system, weather and several other factors. Time required for digestion may depend upon the nature of food. Process of digestion is very greatly delayed in the case of vegetable food consumed by Indians. Time varies according to digestive capacity. The process of digestion is not uniform. It varies from individual to individual. Digestion varies with the state of gastric mucosa. It also depends on the health of person at particular time. [vide : 1971 Criminal L.J. 1511 (V 77 C 445), Sheo Darshan v. State of Uttar Pradesh, AIR 1971 SC 1794, State of Uttar Pradesh v. Shanker, AIR 1981 SC 897, Lachman Singh versus State, AIR 1952 SC 167, Nihal Singh versus State, AIR 1965 SC 26 and Shivaji versus State, AIR 1973 SC 2622].
33. In the instant matter nothing is on record to hold conclusively that when deceased took meal or when he had gone to ease himself. In absence of conclusive evidence on this point, presumption on the basis of submission made on behalf of appellants cannot be drawn that time of incident is doubtful and incident took place in night hours itself. As mentioned above, time of digestion varies person to person and it also depends upon type of food taken by a person concerned and no hard and fast rule can be applied, hence, on this ground submission raised by learned counsel for appellants cannot be accepted and time of death of deceased and time of injuries established by prosecution cannot be doubted. If injuries found on the body of deceased are compared with weapon assigned to accused appellants, it is evident that punctured wound and several lacerated wounds, total fourteen wounds in number, have been caused upon the body of deceased, weapons assigned to accused persons are spear, kanta and lathi. Similarly, if injuries found on the body of injured are also compared with weapon assigned to accused appellants, all injuries could be caused with weapon lathi. Nothing is on record or suggested by defence that injuries found on the body of deceased or injured could not come with weapon, spear and lathi. Only disturbing fact in injuries found on deceased as well as on person of injured is that accused Bharat is assigned with weapon kanta but neither any incised wound nor cut wound is found on body of deceased or injured. Thus, on close scrutiny of entire evidence in light of submission raised on behalf of appellants, we are of the view that injuries found on the body of deceased and injured could come with the use of weapon 'spear' and 'lathi'. Medical evidence to this extent fully supports oral version. Part played by each accused shall be scrutinized in light of weapon assigned to them in consonance with injuries found on injured and deceased.
34. As far as presence of prosecution witnesses, namely, P.W. 1, P.W. 2 and P.W. 3 at the place of occurrence is concerned, incident is said to have taken place in morning hour i.e. 8 a.m. in the month of September when maize crop was ready for harvesting. Presence of P.W. 1 in the field to look after maize crop is not improbable and unnatural. Generally farmers visit their field in morning to see their crops. Presence of P.W. 1 in his field is natural one. As regards presence of P.W. 2, P.W. 3 and other witnesses cited in F.I.R. is concerned, they were familiar / acquaintance to P.W. 1 and were going to purchase buffalo (bhainsa) and in that regard they were talking with P.W. 1 Ram Swarup in his field and during that period they hear hue and cry of deceased. Distance between field of P.W. 1 Ram Swarup and first place of incident, where initially incident took place and deceased was surrounded by accused, was not as far as away that noise made from that place could not be heard by witnesses present in the field of P.W. 1. Since it was morning hour and place of incident was in village locality, hue and cry made by deceased could easily be heard by persons present in the field of P.W. 1. If distance between field of P.W. 1 and field of Baladeen, shown in site plan, is also compared with the facts and circumstances of case, presence of all prosecution witnesses at place of occurrence immediately after hearing hue and cry was not improbable and impossible. P.W. 1 is injured witness and injures found on his body are not manufactured or self-inflicted. It is a clear and consistent case of prosecution that injuries found on the body of injured P.W. 1 were occurred in incident in question. As regards the submission raised by learned counsel appearing for appellants that P.W. 2 and P.W. 3 are chance witnesses, they are resident of different villages and were not present on the spot is concerned, written report was prepared immediately after incident by P.W. 2 on dictation of P.W. 1 and P.W. 2 proceeded along with written report leaving deceased and injured at place of occurrence to police station for lodging F.I.R. Thus, this fact indicates that witnesses P.W. 1, P.W. 2 and P.W. 3 all were present at place of occurrence. Reason due to which they claim their presence in field of P.W. 1 Ram Swarup can also not be disbelieved as they intend to purchase buffalo (bhainsa) and for that reason they were talking with P.W. 1. It is also pertinent to mention that if two or three persons were going to purchase buffalo (bhainsa), the conduct of witnesses can not be taken as unusual or unnatural. Thus, on this score also presence of P.W. 2 and P.W. 3 at the place of occurrence or in field of P.W. 1 is not doubtful. If there is minor contradiction in their statements about use of kanta, this fact is also not sufficient to disbelieve presence of these witnesses at place of occurrence. Statement of witnesses may be false on one point but statement made on other facts may not be disbelieved if same is supported by other evidence. Statement of P.W. 2 and P.W. 3 in regard to use of kanta by accused-appellant Bharat is not supported by medical evidence but statement in regard to use of other weapons assigned to rest of accused appellants in commission of offence are consistent and clear and is supported by medical evidence. Thus, on close scrutiny of entire evidence, we are of considered view that P.W. 1, P.W. 2 and P.W. 3 were present in field of P.W. 1 and after hearing hue and cry of deceased they reached at place of occurrence and P.W. 1 injured was also beaten by accused appellants in same incident. Merely on the ground of contradiction in statement that P.W. 1 was beaten only once or twice and non-mentioning of this fact in the F.I.R. itself does not render prosecution case doubtful.
35. As regards submission that PW-2 and PW-3 are interested witnesses, they are familiar and relative of PW-1, therefore, their testimony made before court on oath can not be relied upon is concerned, there is no universal rule as to warrant rejection of evidence of a witness merely because he/ she is related to or interested in the parties to either side. In such cases, if presence of such a witness at the time of occurrence is proved or considered to be natural and evidence tendered by such witness is found in the light of surrounding circumstances and probabilities of the case to be true, it can provide a good and sound basis for conviction of accused. Similarly, a witness may be shown as inimical and near relative but in such circumstances the court has a duty to scrutinize their evidence with great care, caution and circumspection and be very careful in weighing such evidence. Thus, now it is settled that evidence of a witness cannot be discarded merely on the ground that he is a related witness, if otherwise the same is found credible. Similar is the position regarding interested witness. A witness may be called "interested" only when he or she derives some benefit from the result of a litigation. Related witness cannot be equated with interested witness. The views expressed by us are also supported with the pronouncement of the Supreme Court in the case of State of U.P. vs. Kishanlal and others, JT 2008 (8) SC 650, which is as under (paragraphs 8,9,10 and 11 of the said judgment):
"8. As observed earlier, though the High Court accepted the testimony of PWs 1, 5, 7 and 9 while confirming the conviction and sentences of Onkar Singh has not given due credence to their testimonies in respect of other accused. This Court has repeatedly held that if the testimony of prosecution witnesses was cogent, reliable and confidence inspiring, it cannot be discarded merely on the ground that the witness happened to be relative of the deceased. The plea "interested witness" "related witness" has been succinctly explained by this Court in State of Rajasthan vs. Smt. Kalki & Anr., (1981) 2 SCC 752. The following conclusion in paragraph 7 is relevant:
"7. As mentioned above the High Court has declined to rely on the evidence of PW 1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased", and (2) there were discrepancies in her evidence. With respect, in our opinion, both the grounds are invalid. For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True, it is, she is the wife of the deceased; but she cannot be called an "interested" witness. She is related to the deceased. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be "interested"."
9. From the above it is clear that "related" is not equivalent to "interested". The witness may be called "interested" only when he or she has derived some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished. A witness, who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be `interested'.
10. The plea of defence that it would not be safe to accept the evidence of the eye witnesses who are the close relatives of the deceased, has not been accepted by this Court. There is no such universal rule as to warrant rejection of the evidence of a witness merely because he/she was related to or interested in the parties to either side. In such cases, if the presence of such a witness at the time of occurrence is proved or considered to be natural and the evidence tendered by such witness is found in the light of the surrounding circumstances and probabilities of the case to be true, it can provide a good and sound basis for conviction of the accused. Where it is shown that there is enmity and the witnesses are near relatives too, the Court has a duty to scrutinize their evidence with great care, caution and circumspection and be very careful too in weighing such evidence. The testimony of related witnesses, if after deep scrutiny, found to be credible cannot be discarded. It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness, if otherwise the same is found credible. The witness could be a relative but that does not mean his statement should be rejected. In such a case, it is the duty of the Court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinizing the evidence of the interested witness. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement. The ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible. Vide State of A.P. vs. Veddula Veera Reddy & Ors. [JT 1998 (2) SC 67 :(1998) 4 SCC 145], Ram Anup Singh & Ors. vs. State of Bihar [JT 2002 (5) SC 621 : (2002) 6 SCC 686], Harijana Narayana & Ors. vs. State of A.P. [JT 2003 (6) SC 171: (2003) 11 SCC 681], Anil Sharma & Ors. vs. State of Jharkhand [JT 2004 (Suppl.1) SC 559: (2004) 5 SCC 679], Seeman @ Veeranam vs. State, By Inspector of Police [JT 2005 (5) SC 555 :(2005) 11 SCC 142], Salim Sahab vs. State of M.P. (2007) 1 SCC 699, Kapildeo Mandal and Ors. vs. State of Bihar, AIR 2008 SC 533, D. Sailu vs. State of A.P., [JT 2007 (11) SC 57: AIR 2008 SC 505. 11) In Kulesh Mondal vs. State of West Bengal, (2007) 8 SCC 578, this Court considered the reliability of interested/related witnesses and has reiterated the earlier rulings and it is worthwhile to refer the same which reads as under:
"11. "10. We may also observe that the ground that the [witnesses being close relatives and consequently being partisan witnesses,] should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab, AIR 1953 SC 364 in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: (AIR p. 366, para 25) `25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan (AIR 1952 SC 54 at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.'
11. Again in Masalti v. State of U.P. (AIR 1965 SC 202) this Court observed: (AIR pp. 209-10, para 14) `14. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.'
36. As regards discrepancies, omission etc., Apex Court in Kishanlal and others (supra) case, has held as under (paragraph 12 of said judgment).
"12. To the same effect is the decision in State of Punjab v. Jagir Singh, (1974) 3 SCC 277, Lehna v. State of Haryana, [JT 2002 (Supp.1) SC 577] .... As observed by this Court in State of Rajasthan v. Kalki [(1981) 2 SCC 752], normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar, (2002) 6 SCC 81".
37. So far as involvement of accused-appellants in commission of present offence is concerned, accused Shri Krishna and Ram Kishan were assigned with weapon 'spear', accused Bharat was assigned with weapon 'Kanta' and other accused were armed with 'lathi'. Prosecution case is that all accused had surrounded the deceased and in furtherance of common object of unlawful assembly they caused injuries to deceased and injured person. Injuries found on body of deceased and injured if compared with the weapons assigned to accused-appellants, involvement of accused Shri Krishna, Ram Kishna, Roop Lal (since deceased), Sukhvasi (since deceased), Hardayal alias Harpal, Ram Autar (since deceased), Ram Asrey, Rama Adhar, Udhan, Ram Autar son of Satti Deen Jataw in the present matter is not doubtful. No injury was found on body of deceased or injured said to have been caused by weapon 'kata' assigned to accused-Bharat. P.W. 1, P.W. 2 and P.W. 3 in their statement have also made contradictory statement about use of weapon 'kanta'. P.W. 2 at one point of time in his deposition had stated that 'kanta' was used from its blunt side and P.W. 3 has stated that kanta was being used in natural way but this fact was not disclosed by these witnesses in their statement under Section 161 CrPC. Therefore, involvement of accused-appellant Bharat in the matter appears to be doubtful. If appellant Bharat was involved in this matter and had used kanta, some injury caused by kanta would have been received by deceased and injured. It is also pertinent to mention that if Bharat was involved in this case, all the facts stated by witnesses before the court on point of use of 'Kanta' by accused Bharat would have come in the F.I.R., in the statement under Section 161 CrPC and contradiction would not have occurred in statement of P.W. 1, P.W. 2 and P.W. 3 on this point. Thus, applying the rule of caution and also keeping in view the entire facts and circumstances of case and analyzing prosecution evidence, involvement of accused-appellant Bharat in this matter is found doubtful.
38. Thus, on close scrutiny of entire evidence, we are of the view that involvement of accused appellants Shri Krishna, Ram Kishna, Hardayal alias Harpal, Ram Asrey, Rama Adhar, Udhan, Ram Autar son of Sonelal in the present matter is clearly established by prosecution evidence beyond reasonable doubt, as injuries found on the body of deceased as well as injured have been caused by weapons assigned to them in furtherance of common object of unlawful assembly formed by them. Accused Hardayal @ Harpal, Ram Autar son of Sone Lal, Ram Ashrey, Ramadhar, Udhan were armed with lathi therefore they were rightly convicted for the offence under Section 147 I.P.C. Appellants Shri Krishan, Ram Kishan assigned with weapon spear have also been rightly convicted for the offence under 148 I.P.C.. All the accused appellants except Bharat have committed murder of deceased Balveer and caused injuries to injured P.W. 1 with intention to kill him in furtherance of common object of unlawful assembly and they actively participated in commission of crime hence trial court has rightly convicted to them for the offence under Section 302/149 I.P.C., 307/149 I.P.C. Accused-appellant Shri Krishan has also rightly been convicted for the offence under Section 404 I.P.C. as there is sufficient evidence to hold that this accused-appellant misappropriated currency from pocket of deceased Balbeer.
39. So far as submission regarding sentence is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.
40. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is the obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving the avowed object of law. Further, it is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, the enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
41. In view of above propositions of law, the paramount principle that should be the guiding laser beam is that the punishment should be proportionate to the gravity of offence.
42. Hence, applying the principles laid down by the Apex Court in the aforesaid judgments and having regard to the totality of facts and circumstances of the case, nature of offence and the manner in which it was executed or committed, we find that punishment imposed upon accused-appellants by the trial court in the impugned judgment and order is not excessive or exorbitant and no question arises to interfere in the matter on point of punishment imposed upon the appellants Hardayal @ Harpal, Ram Autar son of Sone Lal, Ram Ashrey, Ramadhar, Udhan, Shri Krishna and Ram Krishan.
43. In the light of foregoing discussions, appeal is liable to be allowed in part. Conviction and sentence imposed upon accused appellant Bharat for the offence punishable under Sections 148, 302 read with section 149, 307 I.P.C. read with section 149 I.P.C. is liable to be set-aside and conviction and sentence of appellants, namely, Hardayal @ Harpal, Ram Autar son of Sone Lal, Ram Ashrey, Ramadhar, Udhan, Shri Krishna and Ram Krishan for the offences imposed vide impugned judgment and order dated 20/21.5.1983 is liable to be upheld.
44. Accordingly, criminal appeal is allowed in part and conviction and sentence imposed upon accused appellant Bharat for the offence punishable under Sections 148, 302 I.P.C. read with section 149 I.P.C., 307 I.P.C. read with section 149 I.P.C. is set-aside, as he is found not guilty for the aforesaid offences. He is acquitted of all the charges framed against him. He is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. However, conviction and sentence of accused appellants, namely, Hardayal @ Harpal, Ram Autar son of Sone Lal, Ram Ashrey, Ramadhar, Udhan, Shri Krishna and Ram Krishan for the offences imposed vide impugned judgment and order dated 20/21.5.1983 is upheld. They are on bail, their bail bonds are cancelled. They are directed to surrender before Court concerned immediately, who shall take them into custody and send them in jail for serving-out remaining sentence imposed upon them by the trial court. In case they fail to surrender, as directed above, the Chief Judicial Magistrate concerned is directed to take coercive action against them in this regard.
45. Keeping in view provisions of Section 437-A CrPC, appellant Bharat is directed to forthwith furnish a personal bond of the sum of Rs. fifty thousand and two reliable Sureties each in the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court.
46. Copy of this judgment alongwith lower court record be sent forthwith to the Sessions Judge, Farrukhabad for compliance and a compliance report be sent to this Court.
Order date : 21.8.2018 A.N.Mishra