(Judgment Reserved on 8.8.2019) (Judgment delivered on 26.8.2019) Court No. - 43 Case :- CRIMINAL APPEAL No. - 1098 of 1987 Appellant :- Sampat And Others Respondent :- State Counsel for Appellant :- J.S. Senger,Brij Raj Singh,Indra Kumar Chaturvedi,Nand Lal Yadav,Prem Chandra,Raj Karan Yadav,Ramesh Chandra Yadav,Brij Gopal Singh Counsel for Respondent :- A.G.A.
Hon'ble Pankaj Naqvi,J. Hon'ble Suresh Kumar Gupta,J.
(Delivered by Hon.Pankaj Naqvi,J) This criminal appeal is preferred against the judgment and order dated 16.12.1987 by the 1st Additional Sessions Judge, Banda in S.T. No.362 of 1986 (Case Crime No.1193 of 19856) convicting the appellants to life under Section 302 IPC.
The prosecution case in brief is as under:-
P.W-1 on 13.9.1986 at around 9.30 AM was on way to Banda Hospital to take medicine along with Ram Sanehi (P.W- 2) who was to purchase grocery. Prem Prasad (deceased) brother of P.W-1 after performing his morning chores relating to live stock had gone to bathe in the compound of one Asharam Lohar while the other brother Chunnu (not examined) was also preparing himself for a bathe. The moment Prem Prasad after hanging his kurta went towards the hand pump, P.W-1 and 2 heard call for exhortations that he i.e, Prem Prasad be not spared. P.W-1 and 2 turned back to see that accused Sampat and Harikishan armed with rifle, ChandraPal and Babulal with guns went near Prem Prasad, fired shots at him who fell down and succumbed at the spot. The accused after extending threats fled from the scene. P.W-1 further alleged that there is previous existing enmity with the accused.
2. On above allegations P.W-1 scribed a report (Ex Ka.1) went to the police station at a distance of 12 kms to lodge F.I.R (Ex Ka.3) as Case Crime No.1193 of 1986 under section 302 I.P.C against above named accused persons.
3. All the 4 accused were charged under Section 302 IPC which they denied and claimed to be tried.
4. The prosecution examined P.Ws 1 and 2 as eye- witnesses and the others as formal.
5. All the accused alleged that the deceased was put to death by the gang of one Ram Pratap, and they were falsely implicated in view of previous enmity. The defence examined D.W-1, son of accused Chandrapal to establish that it was the gang of Ram Pratap which eliminated the deceased.
6. The trial court after evaluating the evidence on record convicted/sentenced the appellants as above.
7. During pendency, appeal of appellant no.4/Babu Lal abated.
8. We have heard Shri Raj Karan Yadav, learned counsel for appellants no.1 and 2, Brij Raj Singh and Brij Gopal Singh for appellant no.3 and Shri V.S.Rajbhar, the learned A.G.A, for the State.
9. Learned counsel for the appellants contended that considering the topography of the scene of crime and in particular the height of the gate and that of the boundary wall it is highly improbable for P.W-1 and 2 to witness the overt act including the identity of assailants. He further argued that although the case of prosecution is of firing from a distance of 14-15 steps at the deceased, yet sign of blackening and tattooing on injury no.5 creates a serious doubt as regards their presence at the scene, a case of false implication as witnesses are inimical in view of pending litigations.
10. Learned A.G.A, opposed the submissions on the ground that P.W-1 and 2 are wholly reliable, and natural witnesses, nothing material could be elicited from their evidence which could dent the prosecution story, appeal is bereft of merit, liable to be dismissed.
11. The site plan (Ex Ka-10) depicts that there is one big compound of Asharam Lohar. Point D is the place from where the accused-appellant fired a shot, point B is the place where the dead body of the deceased lay dead, point C is the hand pump where the deceased was to have his bathe and point A is the place where the deceased was preparing himself for the bath, point E is the place from where the empties are alleged to have been recovered in the south-west corner of the compound. Point F is the place from where P.W-1/the brother of deceased and witnessed the occurrence.
12. P.W-1 alleged that there is previous enmity inasmuch as they were arraigned as an accused in the murder of brother of accused Sampat i.e, Omprakash who also happens to be the father of accused Harikishan. He admits that he along with deceased Prem Prasad, Ram Pal and Kishan Pal were arraigned as accused in the murder of Om Prakash. He admitted that when Prem Prasad was murdered the evidence in above case had come to an end and the case was fixed for arguments. P.W-1 also alleged that a dacoity took place in the house of accused Harikishan on 7.11.1985, in which Ram Pal, Kishan Pal and P.W-2 were arraigned as accused. Accused Hari Kishan, Chandra Pal and one Laxmi were prosecution witnesses in the said case. The real brother of Laxmi is accused Babu Lal. Babulal, Sampat and Chandra Pal appeared as prosecution witnesses in a murder case in which P.W-1 was convicted, sentenced to life but enlarged on bail in appeal. Thus in view of above, previous enmity is established between both the factions. It is well settled that enmity is a double edged sword which can be basis for false implication as well as also for committing the murder. It is equally well settled that testimony of an interested/inimical witness cannot be rejected out rightly, same is to examined with circumspection.
13. P.W-1 is a clerk at a Junior High School in Banda city.
His working hours were from 8 to 12 noon. On the date of occurrence he was on leave as he had to obtain medicines from a government hospital at Banda. He assigns a reason that if he were to obtain medicine after school hours then by that time the hospital gets closed to be opened again in the II shift by which time it would be too late for him to return to his native village. The explanation is plausible and accepted.
14. P.W-1 claims to be an eye-witness as he saw the occurrence from behind the raised platform surrounding the well. The distance between point F and the main gate of the compound is 5-6 steps. The distance between the main gate and the hand pump installed to the south-west corner of the compound is 14-15 steps. Presence of P.W-1 is challenged also on the ground that considering the width of the gate 6 feet and the height 8 feet, the height of the boundary would certainly be not less than the height of the gate making it an absolute impossibility for the witnesses to witness the assault and the identity of the assailants. Argument may look attractive but is devoid of merit, once the court carefully examins P.W-1. P.W-1 nowhere alleges that the gate was closed. Thus the argument that P.W-1 could not have witnessed the occurrence from the distance where he is alleged to have shown his presence, the contention is liable to be rejected. P.W-1 also states as to why in the first occasion he did not raise any warning as he feared his own life. Nothing could come out in his cross examination to doubt his credibility.
15. P.W-2 also claims to be an eye-witness, he alongwith P.W-1 was on his way to Banda to purchase grocery. He too supported the case of prosecution as regards the mode and manner of the occurrence as also the identity of the assailants. He too could not be dented in cross-examination.
16. The contention of the appellants that injury no.5 bears sign of blackening, tattooing and charring which creates a serious doubt to the prosecution story as they alleged that the shots were fired from a distance of 14-15 steps, is liable to be rejected as P.W-1 and 2 stated that when they saw the accused persons, they were at the gate of the compound which was 14-15 steps away from the hand-pump. Both these witnesses stated that after exhorting from the gate the accused persons fired at the deceased. P.W-2 also stated that accused persons after exhortation went 5-6 steps towards the deceased, thus possibility of one shot being fired from a closer distance cannot be ruled out outrightly. The injuries of deceased are compatible with the ocular account.
17. To establish the defence that the deceased was murdered by the gang of one Ram Pratap, the accused examined DW-1, son of accused Chandra Pal. He inspite of knowing the identity of assailants i.e, of Ram Pratap and his 4 cohorts who carried out the murderous assault of the deceased remained a mute spectator for almost 25 days when his father is being arraigned as an accused in the said murder.
This conduct of remaining a mute spectator when FIR has come into existence on the day of occurrence itself nominating his father as an accused, belies his defence as an afterthought.
18. We are thus of the view that on above evidence the prosecution has established its case beyond a reasonable doubt. The appeal is devoid of merit, liable to be dismissed.
19. The appeal is dismissed. Appellants are on bail. Their bail bonds stand cancelled. They shall forthwith surrender before the court concerned to serve out the remainder sentence.
20. The office is directed to transmit back lower court records with a copy of judgment and order of this Court for immediate compliance under the intimation to this court within 2 months.
Order Date :- 26.8.2019 RS (Suresh Kumar Gupta,J) (Pankaj Naqvi,J)