Balbir Singh vs State of U.P.

This criminal appeal is directed against the judgment and order dated 25.9.1982, passed by the Addl. Sessions Judge-V, Etah in S.T. No. 500 of 1980, State v. Balbir Singh, P.S. Aliganj, whereby convicting the Appellant for the offences u/s 302, I.P.C. and Section 25 (1) (b) of the Arms Act and sentencing him to life imprisonment u/s 302, I.P.C. and one year''s rigorous imprisonment u/s 25(1)(b) of the Arms Act with direction that both the sentences shall run concurrently.

Briefly stated the prosecution case at the trial was that Ram Wakil (victim), the real brother of the accused-Appellant wanted to sell his agricultural land to which the accused-Appellant was not agreeable. On August 29, 1980 at about 10.30 a.m. Appellant alongwith victim reached Aliganj tehsil compound and got the rickshaw parked in front of the tea shop of Ram Chandra (P.W. 2) and Rakesh Kumar (D.W. 1). At that time H. C. Riyaz Ali (P.W. 1), H. C. Munshi Singh (P.W. 3), C. P. Deep Chand (P.W. 5) and other police personnel were present in the verandah of police out post Aliganj situated towards western side of the said tea shop. The rickshaw with victim Ram Wakil on board was standing at a distance of 26 paces from the police out post. On hearing the outcries ''mar dala bachao'' the attention of Riyaz Ali (P.W. 1) and other police personnel was diverted towards that direction and they saw the accused-Appellant giving khukri blows over the neck of the victim. Seeing the police and public witnesses coming to the place of offence the accused-Appellant took to his heels with ''khukri'' in his hand. He was chased by the police and captured with blood stained ''khukri'' near the northern gate of Tehsil Aliganj. The victim succumbed to the injuries in the rickshaw. The recovery memo (Ext. Ka-1) narrating the details of the incident and arrest of Appellant with blood stained khukri etc. was prepared at the spot in the presence of police and public witnesses. The recovered ''khukri'' was sealed. The accused-Appellant alongwith recovered articles and recovery memo was taken to police station Aliganj and was handed over to police custody. On the basis of recovery memo (Ext. Ka-1) check F.I.R. (Ext. Ka-3) was prepared and crime was registered u/s 302, I.P.C. and Section 4/25/27 of the Arms Act by H. M. 62, Satish Chandra (P.W. 6). He collected blood stained clothes (Exts. 7 and 8) and plastic shoes (Ext. Ka-9) worn by the accused-Appellant under the memo (Ext. Ka-5).

S.I. Bedi Singh (P.W. 7) conducted investigation of the case. He visited the place of offence and conducted inquest on the dead body of the victim. He prepared inquest memo and connected papers (Exts. Ka-6 to Ka-9) and sent the dead body to the mortuary for post-mortem through constables. He collected the blood stained and plain earth from the spot under the memo (Ext. Ka-11). He seized letters from the pocket of deceased (Exts. 10/1 and 10/2). After interrogating the witnesses he submitted the charge-sheets (Exts. Ka-14 and Ka-15) against the accused-Appellant.

Dr. S. K. Sharma (P.W. 4) conducted autopsy on the dead body of Ram Wakil on 30.8.1980 at 4 p.m. As per post-mortem report (Ext. Ka-3) the following ante-mortem injuries were found:

Incised wound 5 cms. x 2 cms. x bone cut on right mastoid region just behind ear.

Incised wound 8 cms. x 2-1/2 cms. x muscle deep on right lateral side of neck 2 cms. Below injury No. 1.

Incised wound 3 cms. x 2-1/2 cms. x bone cut extending from right side of face 2 cms. below right angle of mouth to left underside of chin.

Incised wound 9 cms. x 3 cms. muscle deep on underside of chin and upper part of neck 2 cms. behind injury No. 3.

Incised wound 15 cms. x 2-1/2 cms. x bone deep on front of neck extending more to the left side 1 cm. below injury No. 4.

Incised wound 8 cms. x 3-1/4 cms. x bone deep on left lateral side and upper part of neck 5 cms. below ear.

Incised wound 3 cms. x 2 cms. x bone deep on front and middle part of chest 6 cms. below injury No. 5.

The trachea was incised through and through, subcutaneous tissues and muscles incised and echymosed, oesophagus incised and echymosed. Death was caused due to shock and haemorrhage as a result of ante-mortem injuries.

After committal proceedings the accused-Appellant was charged for the offences u/s 302, I.P.C. and Section 25 of the Arms Act. He pleaded not guilty and claimed to be tried.

At the trial the prosecution examined in all seven witnesses out of whom H. C. Riyaz Ali (P.W. 1), Ram Chandra (P.W. 2), H. C. Munshi Singh (P.W. 3) and C. P. Deep Chand (P.W. 5) were witnesses of fact. The rest of the formal witnesses were examined to prove the post-mortem report, registration of crime and investigation. The public witness Ram Chandra (P.W. 2) having not supported the prosecution case was dubbed hostile.

The accused-Appellant in his statement u/s 313, Cr. P.C. admitted that his brother had gone to tehsil Aliganj alongwith him. According to him his brother was sitting in the rickshaw parked in front of the tea shop of Rakesh Kumar in Aliganj teshil compound. He admitted having been arrested at the tehsil gate by constables Munshi Singh (P.W. 3) and Deep Chand (P.W. 5) but denied recovery of ''khukri'' from his hand. He admitted that clothes and shoes (Exts. 7, 8 and 9) worn by him at the time of incident were taken by the police but they were not stained with blood.

In defence four witnesses namely, Rakesh Kumar (D.W. 1), Kishan (D.W. 2), Ran Singh (D.W. 3) and Baij Nath Singh (D.W. 4) were examined.

The trial court finding the testimony of police witnesses trustworthy acted upon it and recorded the finding of conviction.

We have heard Ms. Abida Sayed, learned amicus curiae appearing on behalf of the Appellant, the learned A.G.A. and have waded through the trial court record.

The learned amicus curiae submitted that the incident took place in broad day light in the presence of number of public witnesses including the owners of tea shop but none of the public witness supported the prosecution case. The owner of tea shop Ram Chandra (P.W. 2) turned hostile. The four public witnesses examined for defence stated that the victim was killed by some unknown person and while running away he had thrown the ''khukri'' and its cover. There is no denying the fact that the accused-Appellant went to Aliganj tehsil alongwith victim on 29.8.1980 boarding a rickshaw and reached there at 10.30 a.m. The victim was killed in rickshaw parked infront of the shop of witness Ram Chandra (P.W. 2). The accused-Appellant was nabbed soon after the incident at the tehsil gate.

The prosecution case rested on the testimony of H. C. Riyaz Ali (P.W. 1), Ram Chandra (P.W. 2), H. C. Munshi Singh (P.W. 3) and C. P. Deep Chand (P.W. 5). The public witness Ram Chandra (P.W. 2) was dubbed hostile. The testimony of a hostile witness cannot be rejected as a whole merely because the prosecution chose to cross-examine him. His testimony can be accepted to the extent it is found dependable on careful scrutiny. The witness (P.W. 2) admitted that the police out post was situated on the left side of his tea shop. He admitted that the incident took place at about 10-10.30 a.m. near his shop situated in the tehsil compound. According to him the man killed was sitting in the rickshaw. His neck was cut. He denied having seen the assailant. The witness supported the prosecution on the date, time and place of offence and the fact that the victim was killed in the rickshaw and had neck injuries. The prosecution could not lay hand on any other public witness though the incident took place in broad day light in tehsil compound. The reasons for public witnesses not coming forward or not deposing in favour of prosecution are not far to seek. Money, muscle power, fear, harassment, threats or intimidation are some of the important reasons keeping away the witnesses from appearing in Court to speak the truth. In these circumstances the non-production of public witnesses will not weaken the testimony of police witnesses if their testimony on close scrutiny is found to be truthful and reliable.

The witness Riyaz Ali (P.W. 1) was posted at Aliganj police out post on the date of the incident. The police out post Aliganj was situated in the tehsil compound. The place of offence was at a distance of 26 paces from the police out post. According to him on 29.8.1980 at about 10.30 a.m. he was in the verandah of the police out post alongwith H. C. Munshi Singh, C. P. Deep Chand and others. On hearing of noise coming from the side of tea shop of Rakesh and Ram Chandra, they came out and saw a person giving ''khukri'' blows on the neck of another person seated in the rickshaw. The witness alongwith others raising alarm rushed to the spot. The person who was giving ''khukri'' blows was accused-Balbir Singh. No sooner they reached the spot, the accused ran away. He was chased by them and captured near the northern gate of tehsil with ''khukri'' in his hand. He confessed that the deceased Ram Wakil was his real brother. On personal search of accused at the spot a purse containing Rs. 4 from pocket and cover of ''khukri'' tied with a string in his waist were recovered. The recovery memo (Ext. Ka-1) was prepared by him at the spot. The captured accused alongwith recovery memo and sealed bundle containing recovered articles were taken to the police station Aliganj and were lodged there. To the same effect is the testimony of H. C. Munshi Singh. He stated that on the date of incident at about 10.30 a.m. he alongwith Riyaz Ali, Deep Chand and other police personnel was sitting in the verandah of the police outpost. At the same time outcries of ''mar diya, mar diya'' were heard from the side of shop of Ram Chandra. He looked towards the said direction and saw the accused-Balbir Singh cutting the deceased Ram Wakil with ''khukri'' in the rickshaw. Seeing them the accused ran away towards the northern gate of tehsil. He was chased and nabbed near the said gate. The ''khukri'' in his hand was snatched by H. C. Riyaz Ali. There were blood stains on khukri, dhoti and shoes worn by the accused-Appellant. The witness C. P. Deep Chand (P.W. 5) was present at the police out post alongwith Riyaz Ali and Munshi Singh. He stated having seen the accused giving ''khukri'' blows to the victim seated in the rickshaw. According to him the accused ran away on seeing them but he was chased and captured with khukri near the northern gate of the tehsil. All the witnesses were cross-examined at length but nothing impairing or discrediting their testimony was extracted. The accused-Appellant and deceased were not previously known to the witnesses, therefore, their was no reason for false implication. The witnesses refuted the suggestion that the assailant fled away throwing the ''khukri'' at the spot and the accused-Appellant chased him.

At this juncture it would be apt to examine the testimony of defence witnesses Rakesh Kumar (D.W. 1) and Kishan (D.W. 2). The witness Rakesh Kumar (D.W. 1) had a tea shop in the tehsil compound and was present at his shop at 10.30 a.m. on the date of incident. According to him the accused-Balbir and deceased Ram Wakil came to tehsil compound in a rickshaw. The rickshaw was parked in front of his tea shop. Accused-Balbir came to the shop and ordered for tea. At the same time outcries of ''bachao maar dala'' were heard from the side of rickshaw. Accused-Balbir rushed towards the rickshaw from his shop and the assailant ran away throwing the khukri and cover. He stated that accused-Balbir Singh was nabbed by the police. In the cross-examination he denied having seen the assailant. He admitted that a crowd of 100-500 persons including Tehsildar, S.D.M., Advocates and others had assembled at the spot but he did not tell them that accused-Balbir was not the assailant. Both these witnesses were prosecution witnesses and had put their signatures on the recovery memo (Ext. Ka-1). At the trial they changed their stand and sided with defence. They admitted the date, time and place of offence but denied the participation of accused-Appellant in the commission of murder of his brother. They admitted the presence of the accused-Appellant alongwith the deceased in the tehsil premises. Both the witnesses did not complain to the S.D.M., Tehsildar and any other higher authority about the illegal arrest or false implication of accused-Appellant.

The testimony of police witnesses (P.W. 1), (P.W. 3) and (P.W. 5) who had no animus against the accused-Appellant has throughout been consistent and congruous. Their testimony cannot be brushed aside merely on the ground that they are police personnel. There is a presumption that the public servants discharge their duties honestly. The incident having taken place in broad day light in public glare in the tehsil compound, it was not possible for the police personnel to falsely implicate the accused-Appellant. The accused-Appellant or witnesses (D.W. 1 and D.W. 2) did not raise a voice of protest. The testimony of police personnel received corroboration from the chemical examination report (Ext. Ka-18). The blood stained kurta (Ext. 7) dhoti (Ext. 8) and shoes (Ext. 9) worn by the Appellant were taken at the police station Aliganj by H. C. Satish Chand (P.W. 6) on 29.8.1980 at 11.45 a.m. under the memo (Ext. Ka-5). In the chemical examination human blood was found on the aforesaid clothes and shoes and on the khukri recovered from the hand of Appellant.

The witness Ran Singh (D.W. 3), Block Pramukh of Aliganj and village Pradhan deposed that the dispute was that Ram Wakil wanted to sell his land whereas accused-Balbir was against it. In the panchayat, Ram Wakil had agreed not to sell the land and accused undertook to cultivate the field on ''batai''. He feigned ignorance that Ram Wakil again agreed to execute the sale deed on pursuasion of Narottam Singh and Banshi Singh. He stated that the panchayat took place a day before Raksha Bandhan festival and Ram Wakil was killed in the same month. Brij Nath Singh (D.W. 4) deposed that Narottam Singh and Pujari intended to purchase the land of Ram Wakil and there was no dispute between Balbir Singh and Ram Wakil over selling the land. It is clear from the testimony of witness (D.W. 3) that there was a dispute between the deceased and accused-Appellant over selling the land. The accused-Appellant would have been a beneficiary on the death of victim Ram Wakil, his real brother. The victim wanted to sell the land even after panchayat held a day before Raksha Bandhan. In these circumstances the accused-Appellant had strong motive to eliminate him.

The recovery of cover of ''khukri'', tied in the waist of accused-Appellant with a string further strengthened the prosecution case.

The ocular account of the incident as narrated by the witnesses (P.W. 1, P.W. 3 and P.W. 5) received corroboration from the evidence of Dr. Swatantra Kumar Sharma (P.W. 4) who stated about the possibility of infliction of ante-mortem injuries found on the person of deceased with ''khukri'' (Ext. 1).

In view of the foregoing discussions we do not find any substance in the argument of the learned amicus curiae that victim Ram Wakil was murdered by some unknown assailant.

On appraisal of entire prosecution evidence we do not find any infirmity in the well reasoned findings of conviction recorded by the trial court. The appeal being devoid of merits is accordingly dismissed. The impugned judgment and order of conviction is affirmed.

The Appellant-Balbir Singh was released on bail during the pendency of appeal by the order of this Court. The C.J.M., Etah shall cause him to be arrested and lodge him in jail to serve out the sentence awarded by the trial court and affirmed by us.

Certify the judgment to the lower court within a week. The record of the case shall be transmitted to the court below immediately. The compliance shall be reported by the C.J.M., Etah within four weeks from the date of receiving the copy of this order.