Court No. - 45
1
A.F.R.
Judgement Reserved on 12.12.2019 Judgement Delivered on 17.12.2019 Case :- CRIMINAL APPEAL No. - 474 of 2002 Appellant :- Ram Chander And Others Respondent :- State Of U.P.
Counsel for Appellant :- Apul Mishra, ,Rahul Saxena,Sushil Kumar Pandey Counsel for Respondent :- Govt. Advocate
Hon'ble B. Amit Sthalekar,J. Hon'ble Ali Zamin,J.
(Per : Ali Zamin, J.)
1. Heard Sri Apul Mishra alongwith Sri Rahul Mishra and Sri Raghuvansh Misra, learned counsel for the appellants and Sri Ajit Ray, learned A.G.A. for the respondent and perused the material on record.
2. This appeal has been filed against the judgement and order dated 29.01.2002 passed in Session Trial No.568 of 1996 (State vs. Ram Bahadur and 3 others), Police Station Beesalpur, District Pilibhit by which learned Additional Session Judge, Pilibhit has convicted the appellants-accused Ram Chander, Ram Shankar, Ram Bharosey and Ram Bahadur and sentenced appellant Ram Chander to undergo two years rigorous imprisonment under Section 148, appellants Ram Shankar, Ram Bharosey and Ram Bahadur have been sentenced to undergo one year rigorous imprisonment under Section 147 I.P.C. and all the appellants have been sentenced to undergo life imprisonment and fine of Rs.2000 under Section 302 read with Section 149 I.P.C. in default of fine to undergo further a period of 6 months additional imprisonment.
3. In brief facts of the prosecution case are that Gaon Sabha land was allotted on lease to the deceased Beni Ram, brother of the informant in which one Sunder Lal (since died during trial) was claiming his land. Munendra Pal Singh village head (Pradhan) resident of village Bharuwa settled the dispute between them a day before the incident and it was decided that Beni Ram will leave three and half bigha land in favour of Sunder Lal. On 22.11.1991 at 11:00 A.M. Ram Bahadur, Sunder Lal of the village came to the house of deceased Beni Ram having spade in hand and asked for measurement as decided yesterday, on which Beni Ram (deceased), Shyam Bihari (informant) and Smt. Ram Rati wife of Beni Ram proceeded for measurement taking gattha of wood (log) and rope. When they reached at 1:00 p.m. on the field, Ram Chander having a spear in hand, Ram Shankar and Rama Bharosey met there. Sunder Lal, Ram Bahadur, Ram Chander, Ram Shankar and Ram Bharosey tied both legs of Beni Ram with towel. Ram Bahadur pressed legs of Beni Ram, Ram Bharosey, Ram Shankar caught hold his both hands, Sunder Lal by spade and Ram Chander by spear started jabbing to Beni Ram stating to kill him, Sunder Lal cut the neck of Beni Ram, Ram Chander gave spear blow on the stomach. Informant and Smt. Ram Rati wife of Beni Ram alarmed. On their alarm Subedar Khan resident of the same village and Ram Singh of village Bharuwa arrived. All of them tried to save Beni Ram but accused threatened to them of dire consequences. After killing Beni Ram, assailants went away towards village through the bank of river.
4. On the oral information of Shyam Bihari (P.W.1) Case Crime No.258 of 1991, under Sections 147, 148, 302 I.P.C. was registered on 22.11.1991 at 15:30 p.m. under chik F.I.R. Ext.Ka-1 and G.D. Entry No.32 Ext.Ka-2 was also prepared on same day at 15:30 P.M. Investigation of the case was handed over to S.I. Gyan Singh (P.W.5). Investigating Officer reached the place of incident, prepared inquest memo (Ext.Ka-4) and relevant documents Ext.Ka-5 to Ext.Ka-11 i.e. address of the deceased, letter to R.I., letter to C.M.O., letter to C.M.O., police form-13, police form 379 and specimen seal respectively and dispatched the dead body for post- mortem.
5. Dr. A.K. Sharma (P.W.3) conducted post-mortem on 23.11.1991 at 3:30 P.M. and prepared report Ex.Ka-2, according to which following injuries were found on the body of the deceased Beni Ram:
1. Incised wound 14 c.m. x 7 c.m. cavity deep at the front of abdomen 5 c.m. below the umbilicus, intestine coming out.
2. Incised wound 9 c.m. x 5 c.m. below trachea the left ear and running below mandible, left carotid artery jagutar vein cut.
3. Incised wound 4 c.m. x 3 c.m. x muscle deep right side of the neck, 3 c.m. below the left angle at mandible on deep dissection carotid artery cut.
4. Incised wound 1 c.m. x 0.5 c.m. bone deep on the right side of neck, 1 c.m. above injury no.3.
5. Incised wound 3 c.m. x 1 c.m. bone deep on the back of right shoulder scapula.
6. Incised wound 5 c.m. x 1 c.m. bone deep on the back of right shoulder 1 c.m. above injury no.5 cardio process of right scapula cut.
7. Incised wound 1 c.m. x 5.7 c.m. x chest cavity deep over the angle of right scapula.
8. Abrasion 3 c.m. x 1 c.m. on the inner end of right collar bone.
9. Abrasion 7 c.m. x 1 c.m. over the left side of neck 5 c.m. above the middle left collar bone.
In his opinion cause of death was shock & haemorrhage due to ante-mortem injuries and death of the deceased was near about one day old.
6. After dispatching the dead body for post-mortem Investigating Officer inspected the place of incident and prepared spot map Ext.Ka-12. He also took into possession rope, log (lattha), blood stained and plain earth (sand), spade along with handle, old towel and prepared memo Ext.Ka-13. After completing the investigation submitted charge sheet Ext.Ka-3 under Sections 147, 148, 302 I.P.C. against the accused-appellants before the C.J.M., Pilibhit, who committed accused for trial to the court of Sessions Judge where Case Crime No.258/1991 was registered as Session Trial No.568 of 1996 (State vs. Ram Bahadur and others). The Sessions Judge transferred it to the court of Special Judge (E.C. Act), Pilibhit for trial. The trial court framed charge under 147 and 302/149 I.P.C. against the accused-appellants Ram Bahadur, Ram Shankar, Ram Bharosey and under Section 148, 302/149 I.P.C. against accused-appellants Sunder Lal and Ram Chander. The accused denied the charge and claimed trial.
Accused Sunder Lal died during trial and case against him was dismissed as abated vide order dated 10.04.2001.
7. Prosecution to prove its case has produced six witnesses.
P.W.1 Shyam Bihari informant, P.W.2 Smt. Ram Rati are witnesses of fact while P.W.3 Dr. A.K. Sharma conducted post-mortem, P.W.4 Mohd. Anees second Investigation Officer, P.W.5 Gyan Singh first Investigating Officer and P.W.6 Constable Narendra Pal Singh are formal witnesses. The accused-appellants in their examination under Section 313 Cr.P.C., have stated that the witnesses have deposed against them due to enmity and denied the prosecution case, but they led no evidence in their defence.
8. Trial court after hearing learned counsel for the parties and perusal of records has passed the impugned judgement and order. Hence, this appeal.
9. Learned counsel for the appellant No.2 Ram Bharosey, appellant No.3 Ram Bahadur and appellant No.4 Ram Shanker, Sri Apul Mishra has submitted that appellants are not connected with the offence. The role has been alleged of catching hold, if one spade stunt is given then the person will fall down and there will be no occasion to catch hold, therefore, participation of the appellants is doubtful. He further submitted that if the whole story of prosecution as stated by P.W.1 Shyam Bihari is accepted that the appellants grappled the deceased, then it was not their intent to commit murder covered under Section 34 of I.P.C. In support of his contention he relied on the following judgements of Hon’ble Supreme Court:
1. Balwantbhai B. Patel vs. State of Gujarat and another, (2009) 10 SCC 584.
2. Bishu Sarkar and others vs. State of West Bengal, AIR 2017 SC 1729.
3. Gaya Yadav and others vs. State of Bihar and others, AIR 2003 SC 1759.
4. D.V. Shanmugham and another vs. State of A.P. AIR 1997 SC 2583.
5. Sushil vs. State of U.P., 1994 Law Suit Supreme Court 995.
10. Learned counsel for the appellant no.1 Ram Chander, Sri Rahul Mishra assisted by Sri Raghuvans Mishra has submitted that P.W.1 Shyam Bihari has specifically stated that he reached the place of incident at 1:00 P.M. going from the police station whereas per chik report Ext.Ka-1 first information report has been registered at 3:30 P.M. Shyam Bihari has also stated that he met daroga and put his thumb impression on the paper when he came police station along with the dead body. He has also stated that he reached police station along with the dead body at 10:00 P.M. in the night while
P.W.2 Smt. Ram Rati has stated that the dead body reached police station at 6:00 P.M. and Shyam Bihari was also along with her. Both witnesses also stated that their statements might have been recorded on the same day, from which it becomes clear that first information report is anti-timed. It is also submitted that on the point of lodging F.I.R. and reaching of the informant to the police station question could have been put to the scribe of the chik and G.D. but scribe of chik and G.D. has not been produced by the prosecution so he has been deprived of the opportunity of cross-examination also. He has also submitted that according to prosecution a spear injury was caused to the deceased in the stomach. Injury by spear will be punctured one but according to post-mortem report injury no.1 has been found to be stomach injury cavity deep incised wound of 14 c.m. x 7 c.m. Thus, the injury alleged to have been caused by spear does not match with the medical report.
11. His next submission is that according to P.W.1 Shyam Bihari the incident took place 20 steps away from the west side of the river and its natural sense will be that incident took place towards west side of the river while P.W.5 Investigating Officer Gyan Singh has stated that the dead body was at a distance of 20 steps in the east from the river, as such from the prosecution evidence place of occurrence is also not established. He further submitted that Smt. Ram Rati has stated that in the incident her forefinger of right hand was cut off but there is no medical report to support her statement and Investigating Officer has stated that if finger of Smt. Ram Rati was cut off then she must have told him and he would have got her medically examined thus Investigating Officer does not support her statement, which makes her presence at the spot doubtful.
12. Next submission is that P.W.1 Shyam Bihari has stated that he was residing along with his son in Sitarganj and he was residing separate with his deceased brother. What was occasion to come on the day of incident has not been explained. Therefore, his presence at the time of incident is doubtful.
13. Lastly he has submitted that P.W.1 Shyam Bihari informant is brother, Smt. Ram Rati is wife of the deceased, both are highly interested witnesses. P.W.1 Shyam Bihari states that he does not know about share and side of the deceased land. He also states that as soon as the accused reached on the field, the accused grappled with his brother while P.W.2 Smt. Ram Rati states that reaching the field marking for partition were made, talks took place between them, near about half an hour period was spent in the field and when her husband sat to smoke chilam, incident took place. Thus, inference will be either P.W.1 Shyam Bihari or P.W.2 Smt. Ram Rati is telling a lie or both of them are telling a lie. Learned counsel prayed that prosecution has failed to prove the charge beyond reasonable doubt against the appellants. The impugned judgement and order is not sustainable. Accordingly, judgement and order is liable to be set aside and appellants are liable to be acquitted.
14. On the other hand Sri Ajit Ray, learned A.G.A. for the respondent submits that on the basis of oral information of the informant Shyam Bihari, F.I.R. Ext.Ka-1 was registered at 3:30 P.M. and in Ext.Ka-1 itself time of the incident has been mentioned 1:00 P.M., not a single question has been put by the defence from the witness P.W.6 Narendra Pal Singh regarding the time of registration of the case. The informant P.W.1 Shyam Bihari, P.W.2 Smt. Ram Rati are rustic persons and their statements in the trial court have been recorded near about after lapse of 6 years from the date of incident. According to Prabhu Dayal v/s State of Rajasthan (2018) 3 SCC (Cr.) 518 rustic witnesses can develop a tendency to exaggerate and this does not make that the entire testimony of such witnesses is falsehood. Minor contradiction in the testimony of witnesses are not fatal to the prosecution case. In State of Karnataka v/s Suvarnamma (2015) 1 SCC (Crl.) 663, Hon’ble Supreme Court has held that in regard to exact time of an incident or the time of duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. It depends on the time sense of individuals which varies from person to person. A witness is liable to be overawed by the court atmosphere and piercing cross-examination by the counsel and out of nervousness mix up facts, get confused regarding sequence of events or fill up details from imagination on the spur of the moment the witnesses nowdays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. So, on the basis of the statement of informant Shyam Bihari and P.W.2 Smt. Ram Rati, it cannot be said that the F.I.R. is anti-timed. Placing reliance on Vijai Pal v/s State (Govt. of NCT Delhi) (2015) 2 SCC (Cr.) 733, he has submitted that value of medical evidence is only corroborative and testimony of Shyam Bihari and Smt. Ram Rati with regard to causing spear injury in stomach by Ram Chander is intact and their statements in this regard are reliable. He also submitted that P.W.1 Shyam Bihari and P.W.2 Smt. Ram Rati have stated that after taking meal they had gone to the field which is corroborated by medical evidence as in post-mortem report Doctor has also found that 2-3 hours before the incident deceased could have taken meal. Shyam Bihari has stated that he lived separately with the deceased in the village and he also lived at Sitarganj along with his son. In his cross-examination nothing has been elicited from which it can be inferred that on the date of incident he was not present on the spot and in the village, where the incident took place. The spot map Ext.ka-12 has been proved by the Investigating Officer P.W.5 Sub-Inspector Gyan Singh, who had taken the blood stained and plain sands from the place of incident and it has been sent to Forensic Science Laboratory, Agra. According to expert report human blood has been found on it from which the place of occurrence is established. Shyam Bihari has stated that place of incident is 20 steps away from the west side of the river. On the basis of his statement it cannot be inferred that the place of incident is changed. He has further submitted that the witnesses have stated that in murder of Jagdish, case was registered against the deceased. He has also stated that a gangster case was also registered against the deceased brother and another case under Section 25 Arms Act was also registered against him which indicates that the witness is not concealing the facts but speaking truly, thus he is reliable and trustworthy witness. Lastly he has submitted that so far as discrepancy regarding incident taking place on reaching the place of incident and after sometime reaching the place of incident is concerned due to the lapse of time and witnesses being rustic one, this discrepancy has taken place but P.W.2 Smt. Ram Rati has stated that on reaching the spot places were dug for marking in which half an hour was spent and when her husband sat for smoking chilam the incident was caused. She has also stated that from the house in reaching the spot it took half an hour. The estimated time has been told by the witness which also corroborate the time of incident to be 1:00 P.M. mentioned in the F.I.R. Ext.Ka-1. He submitted that from the evidences produced by the prosecution charges are fully proved against the appellants. The trial court has rightly convicted and sentenced the appellants- accused. No interference is required by this Court and appeal is liable to be rejected.
15. In cross-examination P.W.1 Shyam Bihari has stated that he reached the spot at 1:00 P.M. going from the police station, while as per F.I.R. Ext.Ka-1, the report of the incident has been made on 22.11.1991 at 15:30 P.M. In cross-examination Shyam Bihari has also stated that dead body reached the police station at 10:00 P.M.
P.W.2 Smt. Ram Rati has stated that dead body came to the police station at 6:00 P.M. As such there is a discrepancy between statements of Shyam Bihari and Smt. Ram Rati with regard to reaching the dead body at the police station.
16. P.W.1 Shyam Bihari has stated that by dictating he lodged the report and after hearing it, he had put his thumb impression. From his statement it is very much clear that when he went to the police station for lodging report at that very time after dictating and hearing the report he put his thumb impression on the report.
17. He has also stated that he is illiterate and he by profession is a farmer. P.W.2 Smt. Ram Rati has also stated that she is illiterate. As per F.I.R. Ext.Ka-1 informant Shyam Bihari is by caste Dhobi (washerman). It is the case of the prosecution that Gaon Sabha land was allotted on lease to the deceased Beni Ram which indicates that the witnesses belong to a poor strata of the society and both are rustic witnesses.
18. In State of U.P. vs. Krishna Master and others (2010) 12 SCC (324), the Hon’ble Supreme Court has held that “the basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relative(s). Therefore, the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness.”
19. In State of Karnataka v/s Suvarnamma and another, 2015 (1) SCC 323, the Hon’ble Supreme Court in para 12.2 of the judgement has referred the case of Bharwada Bhoginbhai Hirjibhai v/s State of Gujarat, 1983 SCC 728 as follows:
5. ……….We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned Counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious :
“(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprised. The [pic]mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person’s mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross- examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him — Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.”
20. In the instant case the incident has occurred on 22.11.1991 and statement of P.W.1 Shyam Bihari was recorded on 23.10.1997 and statement of P.W.2 Smt. Ram Rati was started on 23.10.1997 and completed on 03.03.1998 i.e. the statements of both witnesses were recorded near about after a lapse of six years.
21. In the first information report, Ext.Ka-1 the time of incident has been mentioned 1:00 P.M. and time of giving information to the police station is mentioned as 15:30 P.M. The witness has stated very clearly that he reached the police station and at the police station he had no talk with the daroga. This much talk too did not take place that you reach on the spot. Further he has stated that after lodging report he had gone at the spot and he reached on the spot from the police station at about 1:00 P.M. in the afternoon. It appears that due to his testimony being recorded after a lapse of six years from the date of incident and witness is also a rustic witness overawed by the court atmosphere and piercing cross-examination made by counsel and out of nervousness mixing up facts, getting confused regarding sequence of events or fill up details from imagination on the spur of the moment as held by Hon’ble Supreme Court in Bharwada Bhoginbhai Hirjibhai v/s State of Gujarat, (supra), he has stated that he reached on the spot at 1:00 P.M. going from the police station.
22. Informant Shyam Bihari has further stated that he had talk with darogaji at the police station at the time when he made thumb impression on the paper. He has also stated that when he came along with the dead body at the police station then he had met darogaji. He has clearly stated that after lodging report he had gone on the spot. From his whole statement it is clear that after lodging the report, informant Shyam Bihari returned to the spot thereafter dead body of the deceased was taken to the police station. It appears that due to statement being recorded after six years from the date of incident and informant being rustic one out of nervousness mixing the fact with regard to putting thumb impression has stated that he put his thumb impression on papers when he met darogaji on coming along with dead body. Considering his whole statement it can’t be inferred that he lodged the report when dead body reached the police station. Thus, on the basis of statements of P.W.1 Shyam Bihari that he reached the place of incident at 1:00 P.M. going from the police station and statement of Smt. Ram Rati as well as his statement with regard to time of reaching dead body at the police station, time of lodging F.I.R. 15:30 P.M. mentioned in Ext.Ka-1 and informant’s putting thumb impression on paper when he met daroga along with dead body, it can’t be inferred that F.I.R. was lodged when dead body reached the police station.
23. In view of the above discussion, we do not find any substance in the contention of learned counsel for the appellants that F.I.R. is anti timed.
24. P.W.1 Shyam Bihari in his cross-examination has stated that the incident has taken place at a distance about 20 steps from the west side of the river and as per P.W.5 Gyan Singh Investigating Officer and spot map Ext.Ka-12 distance of the dead body from the river is 22 steps towards east of the river. The veracity of spot map Ext.Ka-12 proved by Investigating Officer P.W.5 Gyan Singh has not been disputed by the defence. In the Ext.Ka-12 dead body has been shown at place marked as ‘D’ which is towards east of the river and distance of the dead body from the east of the river has been shown to be 22 steps. P.W.1 Shyam Bihari has stated that the incident took place at about 20 steps from the west side of the river which cannot be taken as the dead body was 20 steps towards west from the west side of the river. It is tact of the counsel as to how he puts question to a witness. The witness replies in accordance to the question put to him. Thus, on the basis of statements of P.W.1 Shyam Bihari and P.W.5 Gyan Singh Investigating Officer it can’t be inferred that the place of incident is not established. Apart from it, in spot map Ext.Ka-12, it is clearly mentioned that at place marked as ‘D’ dead body was found and at the place marked as ‘3’ blood was found and both places are situated towards east side of the river. On asking by defence in cross-examination Investigation Officer has stated that apart from place D he did not see blood of the deceased. As per recovery memo Ext.Ka-13 Investigating Officer took into his possession blood stained (sand) from the place of incident. He also took into his possession the towel from which legs of deceased alleged to have been tied and a spade shown in the spot map at place F was found. According to scientific report available on record human blood were found on the materials recovered from the place of incident. These facts clearly establish the place of incident towards east of the river. As such prosecution regarding place of incident is consistent, corroborated and reliable.
25. In view of the above, we also find no substance in the contention of learned counsel for the appellants that on the basis of statement of informant P.W.1 Shyam Bihari and P.W.5 Investigating Officer, Gyan Singh, place of incident is not established.
26. As per post-mortem report Ext.Ka-2, seven incised wounds and two abrasions have been found on the person of the deceased, in which injury no.1 is incised wound 14 cm. x 7 cm. cavity deep at the front of abdomen 5 c.m. below the umbilicus, intestine coming out. In Ext.Ka-1 proved by P.W.1 Shyam Bihari, it has been mentioned that Ram Sunder inflicted spear injury on the stomach.
P.W.1 Shyam Bihari through his testimony also has supported the prosecution version and has stated that accused Ram Chander caused spear injury in the stomach of deceased Beni Ram. P.W.2 Smt. Ram Rati too supporting the prosecution story has stated that Ram Chander caused spear injury in the stomach of her husband. Statement of both the witnesses regarding inflicting spear injury in the stomach of deceased Beni Ram by appellant-accused Ram Chander has not been impeached. Thus, the statement of P.W.1 Shyam Bihari and P.W.2 Smt. Ram Rati is consistent and corroborative to each other.
27. Learned counsel for the appellant no.1 contends that injury by spear will be punctured wound and injury no.1 alleged to have been caused by spear has been found to be incised wound of 14 c.m. x 7 c.m. So, the alleged spear injury does not match with the medical report.
28. In Pal Singh vs. State of U.P. (1979) 4 SCC 345, the Hon’ble Apex Court has held as under:
“Lastly, it was submitted that the injuries caused to the deceased are inconsistent with the manner in which the deceased is alleged to have been assaulted. For instance, while the accused were armed with kantas and spears, only one punctured wound was found. We might point out that this is a purely artificial argument. The High Court has rightly pointed out that if the accused assaulted with side portion of the blade of the weapons in a slanting fashion, only incised wounds would be caused. Thus the injuries sustained by the deceased are not inconsistent with the medical report which finds a number of incised wounds inflicted on the deceased. On the findings of fact arrived at by the High Court, it is clear that the appellants shared the common object to cause the death of the deceased either by participation or by exhortation.”
29. In Vijai Pal v/s State of (Government of NCT of Delhi) (supra) Hon’ble Supreme Court in para 15 of the judgement has held as under :
“There is no dispute that the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner as alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. It is also true that the post-mortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the post-mortem can by no means be ascribed to be insignificant. The significance of the evidence of the doctor lies vis--vis the injuries appearing on the body of the deceased person and likely use of the weapon and it would then be the prosecutor's duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses. It is also an accepted principle that sufficient weightage should be given to the evidence of the doctor who has conducted the post- mortem, as compared to the statements found in the textbooks, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value even when it is self- contradictory. It is also a settled principle that the opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the Court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. That apart, it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which are to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant'. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to the alternative possibilities cannot be accepted as conclusive.”
30. In the instant case testimony of P.W.-1 Shyam Bihari and P.W.-2 Smt. Ram Rati with regard to causing spear injury by Ram Chander is consistent and corroborated to each other. Considering the opinion of Hon’ble Apex Court in Pal Singh and others (supra) that if accused assaulted with side portion of the blade of the weapons in a slanting fashion only incised wounds would be caused as well as opinion of Hon’ble Supreme Court in Vijai Pal v/s State (GNCT of Delhi) (supra) referred by learned A.G.A. that value of medical evidence is only corroborative and unless medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever injuries taking place in the manner alleged by eye witnesses, the testimony of eye witnesses can’t be thrown out on the ground of alleged inconsistency between it and medical evidence, in the instant case it can’t be gathered that injury no.1 is not possible by spear as stated by witnesses Shyam Bihari and Smt. Ram Rati. Accordingly, we find no substance in the contention of learned counsel for the appellants that spear injury will necessarily be punctured one and injury no.1 is incised injury hence injury injury no.1 alleged to have been caused by spear does not match with the medical report.
31. P.W.2 Smt. Ram Rati has stated that she made efforts to save her husband from injury being caused by accused in which her right hand’s forefinger got cut and fell on the ground. In cross- examination she has stated that she had shown the cut finger to the Investigating Officer. The Investigating Officer P.W.5 Gyan Singh has stated that he cannot tell whether finger of Smt. Ram Rati was cut or not. Smt. Ram Rati had not received any injury and her finger was not cut, if it happened, so, then she certainly would have told him and he would have got her medically examined for the same. From statement of P.W.2 Smt. Ram Rati and P.W.5 Gyan Singh, it appears that Smt. Ram Rati has made such a statement first time in court which is not supported by any other evidence, so, to this extent her statement does not appear credible.
32. In first information report, it is mentioned that along with deceased Beni Ram, Smt. Ram Rati had also gone at the place of incident. In spot map Ext.Ka-12 at place-1 shown in a circle presence of wife of the deceased has been mentioned. As per statement of P.W.5 Gyan Singh, the spot map was prepared on the day of incident and from cross-examination nothing has been extracted so that its veracity can be doubted. P.W.2 Smt. Ram Rati has also stated that she had accompanied her husband and in her cross-examination by defence nothing material has been extracted, so that her presence on the spot at the time of incident can be doubted. P.W.1 Shyam Bihari in examination-in-chief as well as in cross-examination has stated that he and his sister-in-law (bhabhi) were present on the spot together. He has also stated that due to fear of accused his bhabhi did not go to the deceased to save him. Thus, with regard to presence of P.W.1 Shyam Bihari and P.W.2 Smt. Ram Rati at the time of incident on the spot, prosecution evidence is consistent, corroborative to each other. P.W.2 Smt. Ram Rati in last day of her cross-examination has stated that when her husband was caught, tied and killed she cried and wept, five persons were there so, she could not dare save him. As such the prosecution evidence of P.W.1 Shyam Bihari and P.W.2 Smt. Ram Rati is consistent and corroborated to each other that due to fear of accused, Smt. Ram Rati did not go to the deceased to save him which in the facts and circumstances of the case appears credible.
She has also stated that she tried to save her husband but accused caught hold her. She has further stated that when her finger was cut blood dropped on the place of incident. Next, she has stated that she did not feel finger was cut off. Again she has stated that finger was fallen there on the spot. She has also stated that as the spade was jabbed on neck, she fell down over her husband and injury was caused in her hand. It is the prosecution case that accused Sunder Lal was jabbing with spade and accused Ram Chander with spear and according to Smt. Ram Rati her forefinger was cut as the spade was jabbed on the neck she fell over her husband to save him. It does not appear probable that when spade is used in causing injury then in making effort to save victim only forefinger will cut.
33. In State of Karnataka v/s Suvarnamma and another, 2015 (1) SCC 323, the Hon’ble Supreme Court relying on the case of Bharwada Bhoginbhai Hirjibhai v/s State of Gujarat, 1983 SCC 728 in para 5 of the judgement has quoted sub-para (7) as under:
“A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross- examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him — Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.”
34. In Prabhu Dayal v/s State of Rajasthan (2018) 3 SCC 517, Hon’ble Supreme Court in para 18 of the judgement has held that “it is a common phenomenon that the witnesses are rustic and can develop a tendency to exaggerate. This, however, does not mean that the entire testimony of such witnesses is falsehood. Minor contradictions in the testimony of the witnesses are not fatal to the case of the prosecution. This Court, in State of U.P. v/s M.K. Anthony, (1985) 1 SCC 505, held that inconsistencies and discrepancies alone do not merit the rejection of the evidence as a whole. It stated as follows:
“10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross- examination is an unequal duel between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well-wisher of the family carefully giving due weight to the comments made by the learned counsel for the respondent and the reasons assigned to by the High Court for rejecting his evidence simultaneously keeping in view the appreciation of the evidence of this witness by the trial court, we have no hesitation in holding that the High Court was in error in rejecting the testimony of witness Nair whose evidence appears to us trustworthy and credible.”
In para 21 of the judgement Hon’ble Supreme Court has also held that “Moreover, it is not necessary that the entire testimony of a witness be disregarded because one portion of such testimony is false.
35. In the instant case, it appears that Smt. Ram Rati, who is a rustic witness, under apprehension of being disbelieved by the court to be truthful witness as observed by Hon’ble Supreme Court in State of Karnataka v/s Suvarnamma and another (supra), has tried to fill up details from imagination on the spur of moment and developed a tendency to exaggerate as held by Hon’ble Supreme Court in Prabhu Dayal v/s State of Rajasthan (supra) in stating that her forefinger was cut off in making an effort to save her husband from the accused persons.
In view of the above although we find that statement of Smt. Ram Rati with regard to cutting her forefinger in saving her husband is not credible but on the basis of her this statement, in view of the above discussion, her presence at the time of incident is not doubtful. Accordingly, we do not find substance in the contention of learned counsel for the appellants that presence of Smt. Ram Rati on the spot is doubtful.
36. In the instant case the F.I.R. and G.D. scribe has not been produced, as P.W.6 Constable Narendra Pal Singh has stated that he was posted at police station Beesalpur along with Head Moharrir no.31 Babu Ram Yadav and he has seen him reading and writing and well acquainted with his handwriting and signature. He has proved F.I.R. Ext.Ka-1 included in the file, in the handwriting and signature of Babu Ram Yadav. He has also proved disclosure of F.I.R. no.258/1981 in the G.D. No.32 at 15:30 P.M. as Ext.Ka-15. Regarding registration of F.I.R. No any question has been put to this witness so that registration of F.I.R. at 15:30 P.M. can be doubted.
37. P.W.1 Shyam Bihari has stated that his report was scribed in the police station on his dictation and after hearing it, he had put his thumb impression and he has proved it as Ext.Ka-1. As per Ext.Ka-1, the incident took place at 1:00 P.M. on 22.11.1991. It is also mentioned in it that report was lodged on 22.11.1991 at 15:30 P.M. We have already discussed in preceding paras of the judgement with regard to F.I.R. being ante time and in para 23 of the judgement has found that F.I.R. is not anti-timed. The prosecution has produced the informant P.W.1 Shyam Bihari and defence was provided opportunity of cross-examination to this witness. In such circumstances, although scribe of the chik F.I.R. and G.D. has not been produced by the prosecution and defence had no opportunity to cross-examine the scribe of the chik F.I.R. and G.D. but as prosecution has produced informant P.W.1 Shyam Bihari, who orally lodged F.I.R. Ext.Ka-1 and to prove chik F.I.R. and G.D. prosecution has also produced P.W.6 Constable Narendra Pal Singh and no question with regard to registration of F.I.R. has been put to him. In the facts and circumstances it appears that no prejudice has been caused to the defence. Accordingly, we are of the view that although scribe of chik and G.D. has not been produced by prosecution on account of which defence had no opportunity to cross-examine him but no prejudice has been caused to the defence.
38. P.W.1 Shyam Bihari in cross-examination has stated that he was also residing along with his son, separate with his deceased brother. He has also a house in Sitarganj. His son Sohan Lal was residing with him in Sitarganj. He has stated that on the day of incident at about 11:00 A.M. Ram Bahadur and Sunder Lal came at his house to call deceased Beni Ram, at that time Sunder Lal had a spade. He has also stated that Sunder Lal asked from them to measure the field as decided yesterday on which he, deceased Beni Ram and his wife Smt. Ram Rati reached lease field. He and Beni Ram were bare hand and Smt. Ram Rati had a khurpi. They reached on the field at about 11:00 A.M. and he has narrated the story of the incident. In the spot map Ext.Ka-12, his presence has been also shown by mark 2 in a circle. From his cross-examination nothing has been extracted by defence from which his presence at the time of incident can be doubted. On going through his testimony, it is also clear that the defence has not tried to clarify from him with regard to opportunity of being present in the village where the incident took place. Apart from it, it is also notable that the witness Shyam Bihari has clearly stated that he was also residing along with his son, separate with the deceased brother. In such a situation, his presence at the time of incident appears natural also. P.W.2 Smt. Ram Rati also has supported the presence of Shyam Bihari at the time of incident.
In view of the above discussion, on the basis of statement of informant Shyam Bihari that he has also a house in Sitarganj and he was residing along with his son separate with the deceased, his presence on the spot can’t be doubted. Accordingly, we find no substance in the contention of learned counsel for the appellants that presence of informant Shyam Bihari at the time of incident is doubtful.
39. It is true that P.W.1 Shyam Bihari in his cross-examination has stated that he does not know what share and in which side the accused Sunder Lal had to get in the lease land but in cross- examination itself he has stated that in between field of Beni Ram and accused Sunder Lal field of Siya Ram, Damodar Lal, Ram Gopal and Pancham Rai are adjoining to each other. In cross-examination he has also stated that he did not go in the panchayat. It is case of prosecution that land was allotted to the deceased on lease and prosecution evidence in this regard is intact. Thus, in view of his statement that he did not go in the panchayat, on the basis of statement of informant Shyam Bihari that he does not know what share and which side accused Sunder Lal had to get, no any adverse inference against prosecution can be derived.
40. P.W.1 Shyam Bihari has stated that after reaching the field accused assembled and grappled his brother and fallen down him. P.W.2 Smt. Ram Rati has stated that on reaching the field marking for partition were made, talks took place between them near about half an hour was spent in the field and when her husband sat to smoke chilam incident took place. P.W.5 Investigating Officer Gyan Singh in cross-examination has stated that he did not find chilam or spread tobacco on the place of incident. As per recovery memo Ext.Ka-13 a rope of mooz and jute, a spade, a log of wood and an old towel by which both legs of the deceased alleged to have been tied have been recovered by P.W.5 Gyan Singh Investigating Officer but chilam and tobacco were not recovered by him. If really it was a fact that deceased Beni Ram putting chilam in his mouth as tried to smoke accused persons caused the incident, then certainly chilam and tobacco should have been there and found by the I.O. but it was not so. Apart from it her statement itself appears inherently contradictory as she has stated that firstly Ram Bahadur fallen down the deceased, Ram Bahadur and Ram Shankar tied his legs, Ram Bharosey caught the hand, Sunder Lal cut neck by spade and Ram Chander inflicted spear injury in the stomach. If deceased was fallen down, his legs were tied, thereafter incident was caused, in that situation, no question arises of putting chilam in mouth to smoke. It appears that Smt. Ram Rati who is a rustic witness and statement has been recorded after lapse of six years from the incident, has given such statement being confused or to fill up details from imagination on the spur of moment on account of fear being being disbelieved as held by Hon’ble Supreme Court in Bharwada Bhoginbhai Hirjibhai v/s State of Gujarat, 1983 SCC 728 and considered in State of Karnataka vs. Savarnamma and another (supra).
41. In Ext.Ka-1 the first information report which has been made just after the incident, it is mentioned that when informant Shyam Bihari, deceased Beni Ram and Smt. Ram Rati reached the field accused Ram Chander, Ram Shankar and Ram Bharosey also met there and accused Sunder Lal, Ram Bahadur, Ram Chander Ram Shankar and Ram Bharosey fallen down his brother Beni Ram and tied legs of his brother Beni Ram, Ram Bahadur pressed legs of his brother, Ram Bharosey and Ram Shankar caught his both hand, Sunder Lal by spade and Ram Chander by spear started jabbing stating to kill him. Sunder Lal cut neck of his brother by spade and Ram Chander gave spear blow on stomach. This version has been supported by P.W.1 Shyam Bihari through his testimony also and from his cross-
examination nothing has been extracted, so as to doubt his testimony. It appears that Smt. Ram Rati being a rustic and illiterate lady and her statement also has been recorded after a lapse of six years from the date of incident as held by Hon’ble Supreme Court in Prabhu Dayal v/s State of Rajasthan (2018) e SCC 517 has exaggerated the prosecution story with regard to digging of places for demarcation thereafter sitting the deceased on earth put chilam in his mouth and as he tried to smoke the incident was caused and as discussed in para 31 of the judgement in order to save deceased her forefinger was also not cut off but in material particulars of prosecution case, her testimony like allotment of land on lease to her husband, claim by accused Sunder Lal in the lease land, matter being decided by village head Ram Chander @ Munendra in the evening of the past night, coming of accused Sunder Lal to call the deceased, going on the lease land of deceased Beni Ram, informant Shyam Bihari and herself, tying leg of the deceased by accused Ram Bahadur, Ram Shankar catching hand by Ram Bharosey, causing spade injury on the neck by accused Sunder Lal and spear injury on the stomach by accused Ram Chander is intact. As such on reading her statement as whole core of the case is not shaken and appears to have a ring of truth, as such on the basis of her statement that on reaching the field marking for partition were made, talks took place, her husband sat and as he tried to smoke chilam, incident was caused and in saving deceased her forefinger was cut, her whole statement can’t be discarded.
42. Considering the facts and circumstances of the case as discussed above, in our opinion, on the basis of statement of P.W.2 Smt. Ram Rati that on reaching the field marking for partition were made talks took place between them and near about half an hour period was spent in the field thereafter her husband sat to smoke chilam then incident took place, it cannot be said that witnesses are telling a lie.
43. P.W.1 Shyam Bihari is brother of the deceased Beni Ram and P.W.2 Smt. Ram Rati wife of the deceased, as such both witnesses are related witnesses with the deceased. In the case of Waman and others vs. State of Maharashtra, (2011) Criminal Law Journal 4827, it has been observed by the Hon’ble Supreme Court that merely because witnesses are related to the complainant and deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of their being relative cannot discredit their evidence. In the other words, the relationship is not a factor to affect the credibility of a witness and courts have to scrutinize their evidence meticulously.
44. In Sadayappan @ Ganesan vs. State, represented by Inspector of Police, 2019 SCC 610, the Hon’ble Supreme court has held that criminal law jurisprudence makes a clear distinction between a related and interested witness. A witness cannot be said to be an “interested” witness merely by virtue of being a relative of the victim. The 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.
In the instant case defence has not pointed out how the prosecution witnesses informant P.W.1 Shyam Bihari and P.W.2 Smt. Ram Rati are interested in seeing the accused persons punished.
In view of the above, we find no substance in the contention of learned counsel for the appellants that both the witnesses are highly interested witnesses.
45. Learned counsel for the appellant Sri Apul Mishra has submitted that if one spade stunt is given the person will fall down and there will be no occasion to catch hold, therefore, participation of the appellant is doubtful but we find no force in the contention of learned counsel for the appellant as it is not the prosecution case that spade stunt was given to the deceased thereafter other accused caught hold the hands and press the legs of the deceased.
46. Sri Apul Mishra has also submitted that if prosecution story as stated by P.W.1 Shyam Bihari is accepted that the appellants grappled the deceased, it was not their intent to commit the murder covered under Section 34 of the I.P.C. He has referred five cases in support of his contention, disclosed in para 9 of the judgement.
47. The question before us for consideration is whether appellant no.2 Ram Bharosey and appellant no.4 Ram Shankar, who caught hold hands of the deceased and appellant no.3 Ram Bahadur, who pressed both legs of the deceased shared common intention with co-accused Sunder Lal and Ram Bahadur who caused spade and spear injury to the deceased Beni Ram.
48. Common intention, essentially being a state of mind, so, it is very difficult for prosecution to produce direct evidence to prove such intention, therefore, generally it has to be inferred from the conduct of the accused, manner in which the accused arrived at the scene, they mounted the attack, their determination and concert with which the attack was made and nature of injury caused by one or some of the accused. The persons who are not responsible for the injury can be gathered by subsequent conduct after the attack. To appreciate, whether appellant nos.2, 3 and 4 had common intention in committing the offence or not we would like to refer the following cases.
49. Ramesh Singh @ Photti vs. State of A.P. (2004) 11 SCC 305. In this case Hon’ble Supreme Court in para 12 of the judgement has held as under:
“To appreciate the arguments advanced on behalf of the appellants it is necessary to understand the object of incorporating Section 34 in the Indian Penal Code. As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held to guilty. By introducing Section 34 in the penal code the Legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Section 34 IPC embodies the principles of joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered by the manner in which the accused arrived at the scene, mounted the attack, determination and concert with which the attack was made, from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted.”
50. In Asif Khan vs. State of Maharashtra and another (2019) 5 SCC 210, the Hon’ble Supreme Court in para 26 of the judgement has held as under:
“To the same effect is the judgment of this Court in Raju Pandurang Mahale vs. State of Mahrashtra and Another, (2004) 4 SCC 371. Another judgment, which is relevant for the present case is the case of Murari Thakur and Another Vs. State of Bihar, (2009) 16 SCC 256. In the above case, the main plea of the accused was that he had caught the legs of the deceased whereas third accused cut him with his sharp edged weapon. In paragraph No.7, following was laid down:-
"7. We agree with the view taken by the High Court and the trial court that the accused had committed murder of deceased Bal Krishna Mishra after overpowering him in furtherance of their common intention on 26-8-1998 at 4 p.m. No doubt it was Sunil Kumar, who is not before us, who cut the neck of the deceased but the appellants before us (Murari Thakur and Sudhir Thakur) also participated in the murder. Murari Thakur had caught the legs of the deceased and Sudhir Thakur sat on the back of the deceased at the time of commission of this murder. Hence, Section 34 IPC is clearly applicable in this case."
51. According to prosecution case, Beni Ram had received lease land, accused Sunder Lal was claiming in the lease land. Munendra Pal Singh (village head) had decided the matter in the evening of the past night of the incident that deceased Beni Ram will leave three and half bigha land in favour of accused Sunder Lal. Next day of the decision at about 11:00 A.M. Ram Bahadur and Sunder Lal came to the house of the deceased to call him for measurement of land as decided by the village head at that time Sunder Lal was having a spade. On the call of the accused to measure the land, P.W.1 Shyam Bihari, deceased Beni Ram and his wife Smt. Ram Rati reached the field, where all the accused persons met among whom accused Ram Chander was armed with an spear, accused Sunder Lal was armed with spade. The place of incident is situated on the bank of river a remote area and there was no such occasion for the other accused persons to be present there that too accused Ram Chander being armed with spear. When deceased Beni Ram reached on the spot, he was fallen down by accused, both legs were tied by towel. Accused Ram Bahadur pressed legs of the deceased Beni Ram, Ram Bharosey and Ram Shankar caught hold his both hands. Sunder Lal cut the neck of Beni Ram and Ram Chander gave spear blow on the stomach which is supported by the post- mortem report Ext.Ka.2 proved by P.W.3 Dr. A.K. Sharma. As per post-mortem report as a result of stomach injury intestine of the deceased came out. Over the neck three incised injuries, on right shoulder two incised injuries and one incised injury chest cavity deep over the angle of right scapula have been found. Causing spade injury on the neck and spear injury on the stomach as found in Ext.Ka-2 post-mortem report in the condition of hands being caught by two accused and legs by one accused is possible one. Pressing legs of deceased by one accused, catching hold of both hands by two accused and causing spade and spear injury by two accused indicates that all the accused shared common intention in perpetration of crime. Testimony of P.W.1 Shyam Bihari with regard to going of accused persons through the bank of river is corroborated by spot map Ext.Ka-13 as such prosecution evidence in this regard also is consistent, corroborated and reliable.
52. The facts, circumstances and the observation of five cases referred by learned counsel for the appellants Sri Apul Mishra are follows.
53. In the case of Balwantbhai B. Patel vs. State of Gujarat and another, it has been stated that on 30th November 1993, at about 9 p.m., Ghulam Hussain Ansari, Sagir Ahmed Ansari, since deceased, Gyasuddin Ahmed Ansari and Kitabuddin Ansari were sitting at their house in Falia, District Bharuch, when the three accused Thakorbhai Somabhai, Jagdishbhai Nanjibhai Patel and Balwantbhai Patel, the present appellant, arrived at that place in a drunken condition. They abused Sagir Ahmed Ansari and others sitting there and when they objected, Thakorbhai inflicted a knife blow in the abdomen of Sagir Ahmed and another knife blow on the left side of his head. Gyasuddin Ansari and Kitabuddin Ansari intervened so as to rescue Sagir Ahmed whereupon Balwantbhai, the present appellant, caught hold Gyasuddin and Jagdishbhai inflicted a blow on his head with an axe. The appellant thereafter ran away hurling abuses on the other side. Sagir Ahmed died soon after he reached the Civil hospital. The trial court convicted all the accused and judgement of the trial court was confirmed in appeal by the High Court. In the appeal it was contended that the appellants herein had caught hold of Gyasuddin Ahmed Ansari, PW which had enabled Jagdishbhai, the co-accused, to cause a simple injury on him. It was pointed out that the injury report of Gyasuddin Ahmed Ansari was not on record which clearly falsified the prosecution story. It was also submitted that, in any case, the story of catching hold of a witness or of a deceased or an allegation of exhortation made by an accused are invariably used to cast the net wide with respect to the incident. The Supreme Court has held as under:
“There is no evidence to show that Gyasuddin Ansari had received any injury as his injury statement is not on record. The finding, therefore, of the High Court about the appellant’s presence appears to be on shaky foundations.
We are also not unmindful of the fact that allegations of catching hold of an attack victim or of an exhortation are invariably made when the number of injuries on the injured party do not co-relate to the number of accused or in the alternative in an attempt to rope in as many persons as possible from the other side. We also observe that the appellant has already undergone more than six yesrs of the sentence. For all these reasons, we find that the order of the High Court is not sustainable.”
54. In the case of Bishu Sarkar and others vs. State of West Bengal, AIR 2017 SC 1729, prosecution relied on the testimony of PW 2 Nepal Dey, PW 3 Gopal Dey and PW 5 Kanai Sharma. According to PW2 Nepal Dey, he saw accused Tarit Kundu, Sahadeb Sarkar, Sasthi Sarkar, Bishu Sarkar, Sukumar Ghosh and Paresh Sarkar and all six persons caught hold of the collar of shirt of Raju Bose and assaulted him by fist and blows Accused Sukumar Ghosh and Paresh Sarkar gave the order to kill Raju Bose. Then accused Sasthi Sarkar, Bishu Sarkar, Sahadeb Sarkar had remained engaged in catching hold of Raju Bose. Accused Tarit Kundu gave a blow on the back of Raju Bose with the help of a sharp-cutting weapon like ‘bhojali’. The Hon’ble Supreme Court held as under:
“It is true that PWs 2 and 5 assert that the present appellants had caught hold of Raju Bose. But it is not clear from the record whether such act was so intended to enable accused No.1 to deal the fatal blow. Further, PW 3 is completely silent on this aspect. In the circumstances we deem it appropriate to grant benefit of doubt to the present appellants and acquit them of the charge under Section 302 read with Section 34 IPC.”
55. In the case of Gaya Yadav and others vs. State of Bihar and others, AIR 2003 SC 1759, accused Gaya Yadav belonged to neighbouring village Kurkut Bigha and came to the deceased Jagannath Singh, Mukhiya of Mau Gram Panchayat in Mau Bazar and requested the deceased for supper for the night in his village on the occasion of "Holika Dahan". The deceased was reluctant to accept the invitation. At this time the accused Karu Yadav, who is also of the village Kurkut Bigha arrived there and both the accused insisted upon Mukhiya for the supper. The deceased succumbed to the request of the accused, P.W.3 Lallan Bihari the informant also accompanied him, as they made their way out of Mau village P.W.3 saw 9-10 persons coming from the opposite direction. P.W.3 thought that these persons might be going somewhere on the occasion of “Holika Dahan”. Soon those persons came closer to them and the accused Gaya Yadav and Karu Yadav gave a push to the deceased Mukhiya and thereafter all other accused persons surrounded him. Out of them he could recognize Bhagat Yadav, Mukhiya Yadav, Madeshwar Yadav, Rahish Yadav, Deo Prasad Yadav and Khalitra Yadav. Having seen the accused surrounding the deceased the informant retreated about 10-15 steps backward and thought that the accused persons would leave the deceased Mukhiya but instead accused Khalitrar Yadav and Rahish Yadav caught hold of Mukhiya and accused Gaya Yadav and Bhagat Yadav fired at him from country made pistol. Thereupon, Mukhiya fell down. Thereafter, the accused Mukhiya Yadav who was armed with pausli bent over Mukhiya as if he was cutting the neck of Mukhiya. Simultaneously, all of them were uttering that Mukhiya should not survive. P.W.3 Lallan Bihari, informant during trial deposed that he went back 4 or 6 steps from where he saw that Rahish Yadav and Khalitra Yadav were catching hold the two arms of the deceased and the accused Gaya Yadav and Bhagwat Yadav each fired a shot from the pistol at the deceased who fell down. Thereafter, the accused Mukhiya Yadav began to cut the neck of Mukhiya by pausli. The Hon’ble Supreme Court has held as under:
“So far as A-2 Madheshwar Yadav, A-3 Khalitra Yadav and A-4 Rahish Yadav are concerned, there is no evidence to show that they have shared the common intention to murder the deceased. No overt act has also been attributed to them. Therefore, the prosecution has failed to establish its case against them for the offence under Sections 302/34 I.P.C. beyond reasonable doubts. Their appeal is, accordingly, allowed.”
56. In the case of D.V. Shanmugham and another vs. State of A.P., AIR 1997 SC 2583, it has been stated that some incident had happened between the two groups on 6th May, 1990 in respect of which a complaint was lodged by accused No.1. on account of the same there was ill feeling between the two groups and on the date of occurrence on 22nd September, 1990 at 8:00 P.M. when one Natarajan was coughing on account of his fever the accused No.1 was passing by that road on his scooter. He took this to be act of taunting, and therefore, brought his brother accused No.2 and picked up quarrel and challenged him. Said Natarajan was a relation of the complainant. Shortly thereafter at 10:00 P.M. the complainant PW1 and the deceased - Mohan were returning from a theatre and when they had reached the house of one V. Murli the five accused persons formed themselves into an unlawful assembly and attacked the complainant and the deceased with deadly weapons. While accused No.1 caught hold of deceased-Mohan accused No.2 stabbed him with a knife on the abdomen and Mohan fell down wounded. When the complainant, PW-1 intervened he was also stabbed with a knife by accused No.2 on his left hand and accused No.1 dealt a blow with a stick on the right hand. PW-1 then raised an alarm and on hearing the cries his relatives including Sekhar who is the other deceased came out of their houses and rushed towards Mohan. The five accused persons then also attacked these people and while accused No.3 caught hold of Sekhar, accused No.2 stabbed him with knife on his abdomen and caused fatal injury. These accused persons more particularly accused Mukhiya and 6 hurled stones which caused injury to the member of the complainant group. Accused No.1 also stabbed one Ravi Kumar with a knife on his left elbow, as a result of which said Ravi Kumar was injured. The injured persons were taken to the hospital for treatment and Mohan died during the midnight on account of shock and haemorrhage as a result of the injuries sustained by him. The Hon’ble Supreme Court held as under:
“We find considerable force in the submission of Mr. Parasaran, the learned senior counsel for the appellants, that prosecution has not explained the grievous injury on the head of accused-appellant No.1 and such non- explanation persuades us to draw an inference that the prosecution has not presented the true version at least so far as the role played by accused appellant No.1 and the witnesses who have been examined and who have ascribed a positive role to the appellant No.1 that he caught hold of Mohan when appellant No.1 stabbed Mohan are not true on material point and their evidence thus has become vulnerable. It has been also held that Mr. Parasaran is right in his submission that the witnesses ascribed the role of catching hold of Mohan by accused No.1 and role of caching hold of Sekhar by accused No.3 and the High Court gave the benefit to accused No.3 since the witnesses had not narrated the same to the police when examination under under Section 161 Cr.P.C. took place and therefore the self same infirmities having crept in when the prosecution witnesses stated about catching hold of Mohan by accused No.1, the said accused No.1 is entitled to the benefit of doubt. In fact as stated earlier Mrs. Amreshwari, the learned senior counsel appearing for the State also fairly stated that possibly it would be difficult to sustain the conviction of accused No.1 when the accused No.3 has got benefit of doubt and has been acquitted and no appeal against the said order of acquittal has been filed by the State. On account of such infirmities the prosecution as indicated above and more particularly when the prosecution has failed to offer any explanation for the grievous injuries sustained by accused No.1 on his head and the High Court has already found that the said injury was caused in course of the incident, we have no hesitation to hold that the accused-appellant No.1 D.V. Shanmugam is entitled to the benefit of doubt and accordingly set aside the conviction and sentence of the said accused- appellant No.1 both under Section 302/34 IPC as well as under Section 324 I.P.C.”
57. In the case of Sushil vs. State of U.P., 1994 Law Suit Supreme Court 995, it has been stated that a day earlier to the occurrence there was an altercation between the deceased Jai Prakash and the appellants when the appellants had threatened to kill him. On 15th August, 1982 at about 5:45 A.M. the deceased Jai Prakash along with his uncle Hoshiyara PW 2 had gone to the jungle close by to their village to answer the call of nature. At about 6:30 A.M. after they had eased themselves, Hoshiyara cleaned his hands and when the deceased Jai Prakash was cleaning his hands it is at that point of time the accused Sushil, Tapeshwar and Ram Niwas arrived there. The accused/appellant Tapeshwar caught hold the hands of the deceased Jai Prakash, Ram Niwas attacked with a knife in the abdomen and stomach while Sushil gave knife blows on the waist and knee. When Hoshiyara saw this assault on Jai Prakash he raised hue and cry. The witnessess Charan Singh PW 3, Chandermal PW 4 and Dharampal PW 5 rushed there. The three assailants named above ran away from the place of occurrence after assailing Jai Prakash. The Hon’ble Supreme Court has held as under:
“The appellant Tapeshwar was not armed with any weapon nor he is alleged to have made any assault on the deceased. There is no evidence that Tapeshwar was aware of the fact that the co-accused Sushil and Ram Niwas were armed with knives which may be used by them in the crime. The prosecution evidence is also silent on the point whether these two accused took out the knives suddenly with or without the knowledge of Tapeshwar or came with knives openly and visibly and inflicted knife injuries to the victim. In these facts and circumstances, it is difficult to say with certainty as to what extent, if at all, the appellant Tapeshwar shared the common intention with the other two appellants Sushil and Ram Niwas. In view of these facts and circumstances in our opinion the appellant Tapeshwar is entitled for the benefit of doubt.”
58. As mentioned in para 51 of the judgement, the facts and circumstances of the instant case differ from the facts and circumstances of the cases referred by learned counsel for the appellants, hence, the cases referred are not helpful for the appellants. In view of the opinion of Hon’ble Supreme Court expressed in Ramesh Singh @ Photti v/s State of A.P. and Ashif Khan v/s State of Maharashtra and another (supra), the acts and conducts of the appellants no.2, 3 and 4 in the instant case as mentioned in para 51 of the judgement prior to the incident, like going of accused Sunder Lal and Ram Bahadur to call the deceased for measurement as decided in the evening of past night, on reaching the deceased and witnesses meeting of all the accused persons on the place of incident situated in a remote area on the bank of the river, falling down the deceased by the accused persons thereafter tying both legs of the deceased and pressing legs by accused Ram Bahadur catching hold both hands by accused Ram Bharosey and Ram Shankar inflicting spade and spear injuries, seven in number by Sunder Lal and Ram Chander respectively, making no effort by any accused to save the deceased, after the incident going away together of all accused through the bank of river indicates that all accused persons had shared the common intention in killing the deceased Beni Ram.
59. The accused in their statement under Section 313 Cr.P.C. have stated that witnesses have deposed against them due to enmity but what was the enmity, it has not been explained by them. Since, Sunder Lal (died during trial) was claiming land in the lease land of the deceased, so with regard to him it may be said that witnesses of fact had enmity but so far as appellants are concerned, there is no material on record to draw such an inference. Without any explanation or evidence it cannot be accepted that there was enmity between the deceased and accused persons and witnesses of fact deposed against them due to enmity. Therefore, on the basis of their statement under Section 313 Cr.P.C., it cannot be accepted that accused persons have been falsely implicated and witnesses deposed against them due to enmity and appellant Ram Chander to undergo two years rigorous imprisonment under Section 148 I.P.C.
60. Thus, upon a wholesome consideration of the facts of the case, attending circumstances and the evidence on record, we do not find that the learned trial Judge committed any illegality or legal infirmity in convicting and sentencing appellants Ram Chander, Ram Shankar, Ram Bharosey and Ram Bahadur each to undergo life imprisonment and fine of Rs.2,000/- under Section 302 read with Section 149 I.P.C., in default of fine six 6 months additional imprisonment, appellants Ram Shankar, Ram Bharosey and Ram Bahadur to undergo one year rigorous imprisonment under Section 147 I.P.C. and appellant Ram Chander to undergo two years rigorous imprisonment under Section 148 I.P.C.
61. This appeal lacks merit and is accordingly, dismissed.
62. Appellants Ram Chander, Ram Shankar, Ram Bharosey and Ram Bahadur are on bail. Chief Judicial Magistrate, Pilibhit is directed to take them into custody and send them to jail for serving out the remaining sentences.
63. Office is directed to send a copy of this order to the court concerned within a week for compliance. The C.J.M. concerned shall send his report with regard to the accused-respondents within one month thereafter.
64. The lower court record shall be returned to the court concerned.
Order Date :- 17.12.2019 Jitendra