Balram and Others vs State of U.P.

K. Jayachandra Reddy, J.—There are four Appellants. They were convicted by the trial Court u/s 302 read with section 34 IPC and sentenced to undergo imprisonment for life causing the death of oae Triloki. The Appellants, the deceased and the material witnesses are the residents of Ram Nagar Tarhar within the circle of P. S. Kotwali, District Gonda. The deceased was about 50 years of age at the time of occurrence. PW 6 Smt. Kalap Rail is his widow and PW 1 Ram Raj is the brother of PW 6, PW 1 is a resident of Village Desiapur which is at a distance of one mile from the residence of Triloki deceased. The hamlet where the Appellants reside is about two furlongs from the house of the deceased.

On 4-3-74 Smt. Vidya Devi, a widow of the Appellants family sold two plots to one Bishun Dutt a minor son of the deceased and Pawan Kumar, minor son of Thakur Prasad. The deceased and Thakur Prasad moved for mutation of their names. Jagannath, father of the Appellants, came to know about the transfer of the properly of his family and informed his sons about the same. The four Appellants, who are brothers, approached the deceased to agree to the reconveyance of the purchased property but he refused to oblige them. Because of the refusal, the accused developed a motive to do away with the deceased, The deceased had about 60 bighas of cultivation. He had oaly two children. Oae of them was studying at Faizabad and the other who was residing with him was a minor. He used to take assistance from his brother-in-law Ram Raj, PW 1 in his cultivation. A day before the occurrence, the deceased had called PW 1 to his house as he had to bring some tiles from another place. He also requested his neighbour Bindeshwari to help him in that matter. On the invervening night of 27th and 28th March, 1974, the deceased got up at about 1.30 A.M. and awakened his wife Smt. Kalap Raji, PW 6 and also Ram Raj. PW 1 and told that he was going to awaken Bindeshwari to accompany him. He had directed PW 1 to keep the bullock cart ready in the meantime. Within three minutes of the departure of the deceased from his house, a sound of pistol shot was heard by PWs 1 and 6. The immediately rushed outside the house. PW 1 had a lathi and a torch with him. Bindeshwari and Hirday Narain also arrived with lathis and torches. In the flash of the torches, they saw Balram, the first Appellants armed with a pistol, Ram Dhiraj, A-2 armed with a Pharsa. Kritika. A-3 armed with a lathi and Radhey Shyam, A-4 armed with a spear. They were, assaulting the deceased in the outer Osara of Brahma Dutt, which is at a distance of about 130 paces, from, the house of the deceased. Paras Nath PW 2 and another, both sons of Brahma Dutt also came out. When these persons challenged the accused, they ran away. After the departure of the assailants, PWs 1. 6 and others went near the deceased and found him dead. A broken cot was also lying nearby. A blood-stained spearhead left by the assailants was also found inside the Osara. To the dictation of PW 1, a written report Ex. P-2 was prepared by Gopi Nath. PW 3 and PW 1 took this report to the Police Station Kotwali which is at a distance of 7-1/2 miles from the scene of occurrence and submitted it there at 8 A.M. S.I. Kalika Singh, PW 7 registered the crime and took over the investigation. He reached the place of occurrence at 10 A.M. He held the inquest, received the blood-stained articles and other materials including two empties and six wads, and examined the other witnesses. He sent the dead body for post-mortem. Dr. B. C. Pal, PW 4, v/ho conducted the post-mortem, found 23 ante-mortem injuries out of which two were gun-shot wounds and there were number of lacerated wounds, two punctured wounds, one bruise and many abrasions. Apart from these he also found five more incised wounds and all these injuries were scattered almost all over the entire body. On internal examination, he found fracture of occipital bone and fracture of ribs. Pleura was ruptured and four shots were recovered from the region of heart. Small intestines also were punctured. He opined that the death was as a - result of shock and haemorrhage. The accused were arrested and after completion of the investigation, tie charge-sheet was filed. Though the accused pleaded not guilty. they suggested that the deceased had other enemies also and they might have killed him. ,

The prosecution examined three eye-witnesses namely Ram Raj, PW 1, Paras Nath, PW 2 and Smt. Kalap Raji. PW 6. PWs 1 and 6 fully supported the prosecution case but PW 2 supported the prosecution story about the murder of the deceased and place of occurrence but refused to identify the assailants. Therefore he was declared hostile. The scribe of the FIR Gopi Nath, PW 3 in the cross-examination stated that Ram Paj, PW 1 was sent for from his house next morning who gave an FIR. On that account he too was treated hostile. The other witnesses examined by the prosecution are of formal nature. After scrutinising the entire evidence, the learned Sessions Judge came to the conclusion that the evidence of PWs 1 and 6 was sufficient to base the conviction and that at any rate their evidence has been corroborated on some important particulars by the other two hostile witnesses also and accordingly convicted all the four accused. In the appeal, the same contentions were put forward but the High Court held that PWs 1 and. 6 are the most natural witnesses and the discrepancies pointed out are not very material, and accordingly confirmed the convictions. Hence the present appeal.

Learned counsel appearing for the Appellants submits that the Osara where the occurrence is said to have taken place was a small one and it would not have been possible for four people armed with spears etc. to wield them and inflict injuries on the deceased. He also submitted that on more suspicion these witnesses have implicated the Appellants. His further submission is that the admission made by PW 3, the scribe, to the effect that PW 1 was sent for and he gave the report in the morning, would suggest that the FIR itself is fabricated one. He also invited our attention to the particulars in the map and pointed out that the witnesses could not have identified as to what was happening inside the Osara.

We have gone through the evidence of PWs 1 and 6 who are the main witnesses. PW 1 is the brother-in-law of the deceased and he deposed that he was in the house of the deceased on that night and at about 1.30 A M. the deceased woke up and also awakened them and told them that he was going to call Bindeshwari to go to Luchia Tal for bringing the tiles. PW 1 heard within three minutes a sound of fire-arm and the voice of the deceased crying. Hearing this, he himself and PW 6 went out with a lathi and a torch and they reached the Osara of Brahma Dutt where from the cries emanated. Just then Bindeshwari and Hirday Narain also reached there with a lathi and a torch. In the light of the torches they saw the accused Balram holding a pistol and other accused holding Pharsa, Spear and Lathi and attacking the deceased. In the First Information Report given by him he has mentioned all these details. If he had not been a witness at all, he could not have given all these particulars in the earliest report. The medical evidence fully supports his version. To the same effect is the version given by PW 6. We do not find any material discrepancies in their evidence. There is nothing unnatural. These two witnesses on hearing the pistol sound and the cries of the deceased went outside of the house and witnessed the occurrence. As a matter of fact, PW 2 the hostile witness has spoken about the presence of these two witnesses. He only stated that he could not identify the assailants and thereby he prevaricated from his previous statement but the presence of these witnesses at the scene of occurrence has been categorically admitted by him. Therefore the time and place of occurrence and the presence of these two witnesses at the scene of occurrence cannot be doubted at all. The version given by them is fully corroborated by the medical evidence. There are no infirmities. When that is the position, the admission made by RW 3, the scribe in the cross-examination that PW 1 was not present at the scene of occurrence, when PW 3 went there at about 10 A M., cannot in any manner affect the evidence of PWs 1 and 6. In the chief-examination PW 1 simply stated that he went to the scene of occurrence and there he recorded the statement of PW 1. Having stated so, he added that when the day broke people called and Ram Raj. These vague answers in the cross-examination do not in any manner create a doubt about the presence of PW 1 in the house of the deceased on that night. Both the courts below have concurrently held that the evidence of the eye-witnesses in all respect is reliable For the above reasons we see no grounds to interfere with the said finding. There are no merits in this appeal. The appeal is accordingly dismissed.