Bhulan and Another vs Versus State of U.P.

Surendra Kumar, J.—The appellants Bhulan, son of Ram Lagan Lohar and Brahma Bari, son of Birju, resident of Sidhwal Bazar. Police Station Piparaich, District Gorakhpur have preferred this appeal against the judgment and order dated 3.8.1982 passed by the Vth Additional Sessions Judge. Gorakhpur in Sessions Trial No. 239 of 1982 by which the appellants were convicted and sentenced u/s 302 read with Section 34, I.P.C. to life imprisonment. We have heard Sri Samit Gopal, learned counsel for the appellants, learned A.G.A. for the State of U.P. and perused the evidence on record.

Briefly stated, the prosecution story as contained in the G.D. No. 15 dated 10.9.1981 of Police Station Piparaich, District Gorakhpur. Ext. Ka-6, is that Smt. Draupadi, wife of Shyam Sunder, resident of village Sidhwal Bazar. Police Station Piparaich gave written information at about 11.30 a.m. informing the police that her son Munnu aged about 22 years died at about 4.00 a.m. due to belly ache. She carried him to the doctor but he could not be saved. The villagers asked her to inform the police before performing the last rites, therefore, the information was given to the police. The dead body of the deceased Munnu was lying at her house. This written report was written by Chandra Shekhar Pandey of her village. This application bears the endorsement of Hira Singh Pradhan of the village that after inspection, necessary action be taken because there was party fraction in the village. S.I. Sri Devi Dayal Tripathi, P.W. 6 visited the house of Smt. Draupadi and prepared inquest report. Ext. Ka-2 in presence of witnesses Sagar Lal, Chandra Shekhar Pandey and Hira Singh Pradhan. As per the inquest report, Ext. Ka-2, of the deceased Munnu, blood was oozing out from the nostrils and was flowing over the cheek. The inquest report Ext. Ka-2 shows that there were some injuries on the body of the deceased. There was abrasion on the right wrist and skin of the back was cut at different places. S.I. Sri Devi Dayal Tripathi thereafter prepared Photo Nash Ext. Ka-3, Challan Nash Ext. Ka-4 and letter for post-mortem examination, Ext. Ka-5, and sent the sealed dead body of Munnu for post-mortem alongwith papers through Constable Anil Kumar Dubey.

The post-mortem on the dead body of the deceased Munnu was conducted on 11.9.1981 at 2.00 p.m. by Dr. P.N. Awasthy, P.W. 4, who prepared the post-mortem examination report of the deceased Munnu. Dr. Awasthy P.W. 4 proved this report and stated on oath that he examined the dead body of the deceased which was brought by constable Anil Kumar Dubey and Chaukidar Kasim, who identified the dead body. The dead body was in a sealed condition. The deceased was aged about 22 years and death had taken place about 1-1/2 days earlier. Rigour mortis had passed away from the upper extremities but was present in the lower extremities. The face and lips were congested. Blood was coming out from the nostrils. He found the following ante-mortem injuries on the dead body:

Contusion 10" x 8" over front of neck and front of upper part of chest.

Contusion 6" x 4" on right side head just above ear.

Contusion 4" x 4" on back of head.

Abrasion 1" x 1/2" on outer part of right wrist.

On internal examination the doctor found the brain and membranes congested. Larynx and respiratory tracks were congested. Both the lungs were also congested. The stomach was empty. Large and small intestines were full of gases and faecal matter. Liver, spleen, a Kidney were congested. The deceased had died due to asphyxia as a result of strangulation.

After receipt of the postmortem examination report, a case of murder of the deceased Munnu was registered at Crime No. 175 of 1981, u/s 302. I.P.C. on 12.9.1981 at 7.15 a.m. vide G.D. No. 11 Ext. Ka-7.

S.I. Sri Praduman Mishra, P.W. 7 was entrusted investigation of this murder case. He started investigation on 12.9.1981 when the case of murder was registered and proceeded to village Sidhwal where he recorded the statements of Moti Lal P.W. 1, Ram Dularey P.W. 3 and Smt. Draupadi P.W. 5, u/s 161, Cr.P.C. This Investigating Officer made inspection of the place of murder at the instance of eye-witnesses namely Ram Dularey and Moti Lal and prepared site plan, Ext. Ka-8. When the names of the accused-appellants Bhulan and Brahma figured in the statements of the witnesses recorded u/s 161, Cr.P.C. this Investigating Officer tried to trace out the appellants but they were not available in their village. The Investigating Officer P.W. 7 recorded the statements of Ram Awadh and others on 13.9.1981 and Chhattu Lal P.W. 2 on 17.9.1981. It was on 17.9.1981, the Investigating Officer P.W. 7 perused the application already moved by Smt. Draupadi, mother of the deceased, to the higher authorities which reached in the office of Circle Officer of Police Station Piparaich area, which this witness had proved as Ext. Ka-9. The statements u/s 161, Cr.P.C. of S.I. Sri Devi Dayal Tripathi P.W. 6, who conducted the inquest report etc. and Chandra Shekhar were recorded on 29.11.1981. The torch which was used by witness Chhattu in seeing the appellants while committing murder, was taken by this P.W. 7 into his possession on 17.9.1981, the same was given in the supurdagi of Chhattu vide Memo Ext. Ka-10. This torch was found in working order when inspected by this Investigating Officer. Both the accused-appellants herein, were arrested on some information and then their statements were also recorded by the Investigating Officer P.W. 7. On completion of the investigation, this P.W. 7 on finding sufficient evidence of murder against the appellants, submitted charge-sheet, Ext. Ka-11 on 29.11.1981. All these facts and aforesaid documents have been proved by S.I. Sri Praduman Mishra P.W. 7 in his evidence recorded during the trial.

Charge u/s 302 read with Section 34, I.P.C. was framed against the appellants by the trial court to which the appellants pleaded not guilty and claimed to be tried.

In order to prove its case, the prosecution examined Moti Lal P.W. 1. Chhattu Lal P.W. 2, Ram Dularey P.W. 3 and Smt. Draupadi P.W. 5 in the eye-witness account. The prosecution also examined Dr. P.N. Awasthy P.W. 4. S.I. Sri Devi Dayal Tripathi P.W. 6 and S.I. Sri Praduman Mishra, Investigating Officer, P.W. 7. One constable Anil Kumar Dubey who carried the dead body of the deceased Munnu, had filed his evidence in the trial court.

Dr. P.N. Awasthy, P.W. 4, was examined to prove the post-mortem report, Ext. Ka-1, of the deceased Munnu. He also proved the ante-mortem injuries found on the dead body of the deceased Munnu.

The prosecution examined S.I. Sri Devi Dayal Tripathi P.W. 6 to prove the inquest report of the deceased. According to evidence of Sri Tripathi P.W. 6, he deputed five punches, conducted inquest on the dead body of the deceased Munnu and after conducting the inquest on the dead body, he found that death of the deceased Munnu was not caused as a result of stomach pain/belly ache. For the purpose of ascertaining the cause of death, he in consultation with the panches, sent the dead body in a sealed condition for the postmortem examination. He proved the preparation of inquest report Ext. Ka-2, Photo Nash Ext. Ka-3, Challan Nash Ex. Ka-4 and letter to R.I. for postmortem Ext. Ka-5. The dead body was sent through constable Anil Kumar Dubey with the help of Chaukidar Kasim for the post-mortem in a sealed condition.

S.I. Sri Praduman Mishra, Investigating Officer P.W. 7 was examined by the prosecution to prove the steps taken during the investigation and papers prepared during investigation.

It emerges from the cross-examination of the Investigating Officer P.W. 7 that he started the investigation on the date of registration of the murder case itself. promptly interrogated the eye-witnesses and others, inspected the place of occurrence and prepared the site plan at the pointing out of the eye-witnesses without any kind of delay and on finding sufficient evidence of murder against the appellants, he submitted charge-sheet. No delay was caused by this Investigating Officer in recording the statements of the eye-witnesses u/s 161, Cr.P.C. The date of recording the statements u/s 161, Cr.P.C. was mentioned by this P.W. 7 in the case diary but the time thereof was not mentioned, though the Investigating Officer in his evidence disclosed approximate time of recording the statements of the witnesses. The Investigating Officer during his cross-examination clearly deposed that he did not make any inquiry regarding the fact of any kind of unauthorised possession of the land of Smt. Draupadi by a person known as Sagar because there was mention of all the relevant facts in the aforesaid document Ext. Ka-9. The Investigating Officer P.W. 7 was cross-examined about the fact that the wife of the deceased was not interrogated by him. This P.W. 7 replied that since the wife of deceased was not available or could not meet him, therefore, she could not be interrogated.

Before proceeding further, a look at the ocular testimony is very essential. As stated above, Moti Lal P.W. 1, Chhattu Lal P.W. 2, Ram Dularey P.W. 3 and Smt. Draupadi P.W. 5 were examined by the prosecution during the trial as eye-witnesses.

Moti Lal P.W. 1 claiming himself to be eye-witness of the said murder deposed that ten months ago at about 8.30 p.m. he was going to his home by road from Turra Bazar. When his village was at a distance of about 3 furlongs he heard the voice of Munnu. He was saying that Bhulan do not kill him. On hearing the sound he proceeded 10 steps ahead and saw that Munnu had fallen down, and Bhulan was strangulating his neck by gamchha, and Brahma was beating him with legs by riding on his chest. Ram Dularey and Chhattu also arrived there and Ram Awadh came from the side of the village. They forbade the accused persons from doing so and the accused persons fled away towards the village. Chhattu had a torch in his hand and in the light of the torch the witnesses saw the accused persons. Munnu was unconscious. The witnesses Chhattu Lal and Ram Dularey helped Moti Lal P.W. 1 who had brought Munnu to his blind mother on his bicycle. The clothes of Munnu were wet with water and mud. At the time of incident it was raining. They told the incident to the mother of Munnu and they went to their houses. The Investigating Officer had recorded his statement and he had shown him the place of incident.

Chhattu Lal P.W. 2 who is also an eye-witness deposed that about 10 months ago at about 8.30 p.m. he was returning back to his home from Piparaich. When he reached on the road near culvert, he saw Moti Lal going on bicycle. Murari was also with him. When they proceeded 20 steps from the bridge, they heard the voice of Munnu who was saying to Bhulan not to kill him. From there they proceeded 20-25 steps further and saw that Munnu had fallen down. Bhulan was strangulating his neck by a ''gamchha'' and Brahma accused was beating him by legs by riding over his chest. He had a torch in his hand and in the light of the-torch he saw the incident. Ram Awadh also came to the spot from the village. When he asked Bhulan about his high-handedness, the accused persons fled away. They took Munnu to his house by the bicycle of Moti.

The third eye-witness Ram Dularey P.W. 3 also deposed that about 10 months ago at about 8.30 p.m. he was coming back to his house from Piparaich Bazar. When he was near the bridge, Moti Lal was also coming from the side of Piparaich Bazar and he proceeded ahead. He has further deposed that when he proceeded a little forward he heard the voice of Munnu, who was saying to Bhulan not to kill him. When he proceeded one furlong further he saw in the light of torch of Chhattu from a distance of 10 paces that accused Bhulan was strangulating Munnu by a gamchha and accused Brahma was beating him with legs by riding on his chest. They forbade the accused persons from doing so and then the accused persons went away. They brought Munnu to his home by the bicycle of Moti Lal.

Smt. Draupadi P.W. 5, who had lost her husband several years prior to the incident of murder and who is blind and mother of the deceased boy, stated on oath that she had three sons. Munnu was her eldest son. Munnu had died about 10 months ago. Moti, Dularey and Chhattu had brought Munnu to her house at about 8-9 O''clock in the night. Moti informed her that Bhulan had strangulated his neck and Brahma had beaten him by legs. Her son remained unconscious in the night. It was raining the whole night. In the morning she took Munnu to Dr. Chandra Shekhar where the doctor declared Munnu dead. She brought the dead body of Munnu to her home. The village Pradhan Hira Singh advised her not to tell the matter to any one that Bhulan and Brahma had killed her son otherwise the police would take out the dead body for postmortem. The Pradhan advised her to inform the police by saying that Munnu died due to belly ache. She further stated that Hira Singh took her to the police station and he obtained her thumb impression on a plain paper. The contents of the written report were not read over to her, Hira Singh took her to the police station forcibly. She did not tell him any thing. Smt. Draupadi deposed that after the death of her husband, the mother of accused Brahma advised her to keep one person and no body will say anything to her son. The accused Bhulan being the acquaintance of the mother of accused Brahma, began to come to her home. Her husband had given some land to Sagar Teli for fixing a floor mill and in lieu thereof Sagar Teli had got constructed a room for her residence. The mother of accused Brahma and Bhulan asked her that Sagar Tell had acquired more land and they advised her to file a suit against Sagar Teli. Bhulan took her to Gorakhpur for filing a suit. Bhulan used to realise the expenses of the case from her. He was doing the pairvi of her case. Bhulan usurped her all utensils, ornaments and the money earned from labour work, worth Rs. 4,000. Bhulan took her several times alongwith Munnu to Gorakhpur. In the month of ''Bhado'' she and Munnu stopped to talk with Bhulan. When she told the matter to ''Piparaich Ke Baba'' he said that Bhulan was cheating them. After that she alongwith Munnu came to Gorakhpur and filed a complaint, against Bhulan, before Superintendent of Police. Munnu died after 9 days of the filing of the complaint. Accused Bhulan and Brahma had kept the wife of Munnu because Munnu had rebuked his wife and had threatened to kill her if she would go to the house of Brahma and Bhulan. Due to this, the accused were very much angry with Munnu. The witness became blind after giving birth to two children.

The appellants when examined u/s 313, Cr.P.C. during the trial, denied the whole prosecution story and claimed their false implication in this case on account of old enmity. They further stated that the eye-witnesses gave false evidence in the trial under pressure of the police. They clearly admitted that Smt. Draupadi P.W. 5, who is mother of the deceased, was blind since long. They did not adduce any defence evidence.

The first contention of Sri Samit Gopal, learned counsel for the appellants is that the F.I.R. of this case was lodged with inordinate delay by mother of the deceased who was blind. The deceased was married man and the F.I.R. was lodged by blind mother of the deceased. The appellants were not named in the F.I.R. It is true that the F.I.R. was lodged by Smt. Draupadi, who was blind mother of the deceased boy. The death of the deceased boy occurred on 10.9.1981 at 4.00 a.m. Written information about the death of the deceased was given by his mother Smt. Draupadi on 10.9.1981 at 11.30 a.m. informing the police that her son Munnu aged about 22 years had died at about 4.00 a.m. due to belly ache or stomach pain. She carried him to the doctor but he could not be saved. Since Smt. Draupadi P.W. 5 was illiterate and blind woman, she was tutored by villagers and one Hira Singh Pradhan of the village asked her to inform the police before performing last rites of the deceased boy. She was put into belief by the villagers that if she disclosed the names of the murderers of her son in the F.I.R., the police would take the dead body for inquest and postmortem and then she would not be able to perform last rites of her son. Since she was an illiterate and blind lady and she believing the villagers simply gave written Information to the police informing that her son Munnu had died on 10.9.1981 at about 4.00 a.m. due to belly ache. She was forced to intimate the police about death of the deceased due to belly ache or stomach pain. It was specifically mentioned in the Information of death of the deceased allegedly made on her behalf that she had no doubt regarding involvement of any person in the death of her son. Not only this, Hira Singh Village Pradhan made endorsement on the written information that after Inspection necessary action be taken because there was party fraction in the village. If Smt. Draupadi, mother of the deceased had simply given written information to the police regarding death of her son due to stomach pain and she had no doubt against anyone in the murder of her son, then there was no need of above mentioned endorsement of the village Pradhan on the written information which was entered in the G.D. Ext. Ka-6.

S.I. Sri Devi Dayal Tripathi, P.W. 6 was directed to conduct inquest etc. on the dead body, who visited the house of Smt. Draupadi, prepared the inquest report, Ext. Ka-2 and inquest on the dead body was completed on the same day, i.e., on 10.9.1981 till 1.15 p.m. The panches deputed at the time of conducting the inquest on the dead body of the deceased Munnu gave opinion that the death was not caused due to stomach pain as it was bleeding from the nose of the deceased and there were many stains on the dead body, hence the dead body was sent for post-mortem examination.

In the post-mortem examination report of the deceased Munnu, four ante-mortem injuries were found. After getting the postmortem examination report of the deceased, a case was registered u/s 302, I.P.C. on 12.9.1981 at 7.15 a.m. It is evident from the whole testimony of Smt. Draupadi P.W. 5, that she was forced to narrate incorrect facts in the information of death of her son by the villagers and village Pradhan. It is further evident from her evidence and also from the evidence of Investigating Officer P.W. 7 that immediately after registering the case of murder, the Investigating Officer P.W. 7 started investigation on 12.9.1981, the date of registration of murder case and on the same day itself, the Investigating Officer recorded the statements of the eye-witnesses u/s 161, Cr.P.C., inspected the place of occurrence and prepared site plan at the pointing out of the eye-witnesses examined in the trial court. Thus, Smt. Draupadi P.W. 5 narrated true facts in her statement recorded u/s 161, Cr.P.C. She clearly stated in her evidence that her son deceased Munnu was brought to her house by Moti Lal P.W. 1, Chhattu Lal P.W. 2 and Ram Dularey P.W. 3 on the bicycle. She was told by these witnesses namely Moti Lal, Chhattu Lal and Ram Dularey that it was the appellant Bhulan who tightened the neck of the deceased Munnu by a piece of cloth/gamchha and another appellant Brahma gave blows from the legs riding on the chest of the deceased. The deceased Munnu remained unconscious whole night hence oil massage was done throughout night. In the early morning, she took her son Munnu to the doctor because it was raining throughout night. When the doctor Chandra Shekhar Pandey after examining the deceased Munnu declared him dead, then the dead body was brought to her house. It was Hira Singh Village Pradhan who then came to her house, asked her not to make noise or cries and also said that if she disclosed the names of Brahma and Bhulan as murderers of her son, then the police would take the dead body for inquest and post-mortem etc. and then she would not be able to perform last rites on the dead body. Not only this, she was further tutored by Hira Singh Village Pradhan to tell at the police station that her son had died because of stomach pain. Not only this. Hira Singh accompanied her to the police station where she gave the written information having aforesaid endorsement of Hira Singh. She clearly deposed that her thumb impression was got affixed on the written information by village Pradhan Hira Singh but the contents of the written report were not read over and explained to her and it was village Pradhan who had forcibly taken her to the police station for that purpose.

Smt. Draupadi P.W. 5 in her cross-examination clearly deposed that the appellants had enmity with her son Munnu because she had given an application to the Superintendent of Police. She clearly stated that her statement was recorded by the Investigating Officer on the third day of death of her son. It was the appellant Bhulan who got the suit filed by her and her Sasur etc. against Sagar and Om Prakash. Not only this the appellants succeeded in establishing physical relationship with the wife of the deceased Munnu prior to his murder. The wife of the deceased and mother of the deceased had to visit the house of the appellants again and again due to the suit which was got filed at the instance of the appellants against the aforesaid Sagar and then the appellants came in intimate relationship with the wife of the deceased. The appellants got her money spent in frivolous litigation.

It is clearly evident from the evidence led by the prosecution that there was actually no delay in lodging the F.I.R. and just on finding the injuries on the dead body, the case of murder was registered and the investigation was immediately started. The names of the appellants as murderers of the deceased came to light through the statements of the eye-witnesses including the mother on the date when the murder case was registered. Thus, non-mentioning of the names of the appellants in the information of death does not cause any dent in the well proved prosecution case and the same is not fatal to the prosecution. The delay caused is properly and satisfactorily explained from the evidence on record. Thus, this contention of the learned counsel for the appellants is not acceptable.

The next contention of the learned counsel for the appellants is that the presence of Moti Lal P.W. 1, Chhattu Lal P.W. 2 and Ram Dularey P.W. 3 on the said date, time and place is not established and their presence is doubtful.

We have considered this submission and tallied the same with the evidence of the eye-witnesses. These eye-witnesses had brought the deceased Munnu from the said place of occurrence through which the witnesses were passing out at the said time when Bhulan was tightening the gamchha around the neck of the deceased and Brahma riding on the chest of the deceased was inflicting blows by legs. The house of Moti Lal P.W. 1 was just two furlongs away from the place of murder and the house of the deceased was three furlongs away from the place of murder. Moti Lal P.W. 1 around 8.30 p.m. was going to his village and while passing through the place, he had seen the occurrence. The murder was being committed on way to the village. Chhattu Lal P.W. 2 alongwith Moti Lal P.W. 1 took the deceased Munnu from the place of murder on bicycle of Moti Lal P.W. 1 to the house of the deceased. Chhattu Lal P.W. 2 was also coming to his house from Piparaich after purchasing pulses and other articles on the way on foot. The place of occurrence from the said pathway was hardly 2-4 steps. Ram Dularey P.W. 3 also saw the incident from a distance of 10 paces. All these eye-witnesses had taken the deceased Munnu to his house on bicycle of Moti Lal P.W. 1. The statement u/s 161, Cr.P.C. of three eye-witnesses namely Moti Lal P.W. 1, Chhattu Lal P.W. 2 and Ram Dularey P.W. 3 were recorded on 12.9.1981, on the date when the case of murder was registered. It has come in the evidence of Ram Dularey P.W. 3 that the Investigating Officer also reached the village on 10.9.1981 but Ram Dularey P.W. 3 could not meet him hence his statement was also recorded on 12.9.1981. Thus, the evidence of these eye-witnesses clearly establishes and proves their presence on the spot at the relevant time and after seeing the incident they had taken the deceased Munnu on a bicycle to his house and handed him over to Smt. Draupadi, mother of the deceased around 9.00 p.m. The deceased Munnu struggled for his life throughout night and since his mother Smt. Draupadi P.W. 5 was poor, Illiterate and blind lady and it was heavily raining, only massage of oil was made on the person of Munnu and ultimately in the early morning at about 4.00 a.m. he was taken to the doctor Chandra Shekhar Pandey where he was declared dead. Thus, it is clearly proved on record that after sustaining the injuries found on the dead body of the deceased Munnu, he had died. There is no material contradiction in the evidence of the eye-witnesses, the same are in conformity and consistent. There is no reason to doubt their testimony. Their evidence is quite natural, probable, trustworthy and reliable, leaving no chance of any false implication of the appellants in this case just on the ground of enmity. The eye-witnesses are not inimical or interested witnesses, hence their testimony is clearly reliable, acceptable and unimpeachable. Their testimony is further corroborated by medical evidence.

Moti Lal P.W. 1 was suggested by defence side that he deposed falsely due to his relationship with the deceased. No any kind of relationship was suggested to the witness. Moti Lal P.W. 1 was not cross-examined about any kind of relationship. Thus, Moti Lal P.W. 1 is quite an independent, natural and reliable witness. Chhattu Lal P.W. 2 was also suggested by defence side that he deposed falsely under police compulsion and also due to enmity with the appellants. The witness was not cross-examined about any enmity or compulsion. Thus, Chattu Lal P.W. 2 is also an independent and reliable witness. Ram Dularey P.W. 3 was suggested by defence that he had deposed falsely due to enmity developed as a result of some dispute between Ram Dularey P.W. 3 and one Raj Mangal. The witness denied the same. Ram Dularey P.W. 3 is also an independent and reliable witness. It is evident from the testimony of P.W. 1, P.W. 2 and P.W. 3 (eye-witnesses) that they disclosed truth in the trial court and their evidence is quite natural, trustworthy and convincing. There is no possibility even remotely, of the false implication of the appellants in this case of murder on account of any so called enmity or police compulsion.

The last submission of the learned counsel for the appellants is that the witnesses are chance witnesses. This contention is also not acceptable to us.

On the point of interested witnesses, the Hon''ble Supreme Court in State of U.P. Vs. Jagdeo and Others, , observed that only on the ground of interested or related witnesses, their evidence cannot be discarded. Most of the times eye-witnesses happen to be family members or close associates because unless a crime is committed near a public place, strangers are not likely to be present at the time of occurrence.

In Harisingh M. Vasava Vs. State of Gujarat, , it was observed by the Hon''ble Apex Court that failure of the eye-witness to intervene to save life of the deceased cannot be a ground to discard his testimony particularly, when he was not asked as to what restrained or refrained from his intervening. The conviction of accused in the reported case was not interfered by the Hon''ble Apex Court.

In Mst. Dalbir Kaur and Others Vs. State of Punjab, , the Hon''ble Apex Court while defining the word ''interested witness'' observed that a close relative who is a very natural witness cannot be regarded as an interested witness. The witness who gives details with absolute accuracy is trustworthy.

In Balraje @ Trimbak Vs. State of Maharashtra, , this Court held that the mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eye-witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyze the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. After saying so, this Court held that if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same.

In Yakub Ismailbhai Patel Vs. State of Gujarat, and also Yakub Ismailbhai Patel Vs. State of Gujarat, , it was observed by the Hon''ble Supreme Court that human behavior or conduct of a witness depends upon facts and circumstances of each given case and there is no set rule of natural reaction. The evidence of any eye-witness cannot be discarded merely on the ground that he did not react in any particular manner in a particular situation. In Yakub Ismail Bhai Patel''s case, the accused inflicted injuries on vital organs of the deceased, eye-witnesses, friends of the deceased present on the spot did not go forward to help deceased at the time of incident and did not stop the accused. The Hon''ble Supreme Court observed that these cannot be the circumstances to disbelieve testimony of the said witnesses, particularly when rest of testimony of the witnesses is tested with cross-examination.

In Krishna Pillai Sree Kumar and Another Vs. State of Kerala, , it was observed that no criminal case is free from inconsistencies and discrepancies. The main thing to be seen is whether those inconsistencies etc. go to the root of the matter. It was also observed that small animosity can form motive for incidents. It is not open to reasonable doubt when other convincing evidence is available.

Regarding evidence of passers-by and conduct of eyewitnesses, the Hon''ble Supreme Court in Rana Partap and Others Vs. State of Haryana, , observed that in case of murder on road, only passers-by will be the eye-witnesses and they are not chance witnesses. Thus, in the case of murder committed on road or road side, the passers-by are not the chance witnesses. It was further observed that to doubt the presence of witnesses because they did not go to rescue the deceased was unnatural because no set rule of natural reaction is made. Every witness reacts in his own special way.

In Chand Khan and another Vs. State of Uttar Pradesh, , it was observed that minor discrepancies in evidence of eye-witnesses who have given convincing and reliable evidence with regard to details and manner of assault will not affect their evidentiary value. Absence or insufficiency of motive is immaterial if the incident is proved by evidence of eye-witnesses.

In State of U.P. Vs. Nawab Singh, , it was observed that in a murder case when there is direct evidence, motive looses its importance. Some omissions in the statement u/s 161, Cr.P.C. are not sufficient to discard the truthful and creditworthy evidence of the witness and also failure of the witness to give direction from which side the accused came, caused due to illiteracy or lack of knowledge of the witness.

The submission of the learned counsel for the appellants is that in the case of strangulation, there must be ligature mark uniformly around the whole neck. The absence of ligature mark over the whole neck shows that the manner of assault was different from that alleged by the prosecution. The prosecution had alleged that Gamchha was used for strangulation. Dr. Awasthy P.W. 4 stated that injury No. 1 is possible when the neck of the deceased person is tied with gamchha and heavy pressure is applied to it and this injury is possible due to blows inflicted by kicks over the chest. Injury Nos. 2 and 3 are contusions over the head and they are possible at the time of strangulation by fall and they are also possible when the person is hit over the head with hard object. The injuries are possible due to fall at the time of strangulation. After careful analysis and scrutiny of the evidence of eye-witnesses and medical evidence, the prosecution, in our opinion, has successfully proved that Munnu died because of asphyxia on account of strangulation by the accused Bhulan. The deceased Munnu was also hit over the chest by kicks by the accused Brahma. The accused Bhulan and Brahma (appellants) intentionally inflicted these injuries to the deceased Munnu in this case, which were sufficient in the ordinary course of nature to cause his death.

The prosecution has also proved that the deceased Munnu had received ante-mortem injuries at about 8.30 p.m. on 9.9.1981 and Munnu had died at about 4.00 a.m. on 10.9.1981 as a result of said injuries caused to him by the appellants. Munnu was assaulted on the side of Pipraich-Sidhwal road at a distance of 200 paces from the culvert. The place of occurrence is shown by ''A'' in the site plan. P.W. 1 to P.W. 3 who are eye-witnesses, reached the place of occurrence from the path way, they were passing through at the relevant time and then witnessed the whole incident. The place of incident was about 2 to 4 paces from the pathway through which the eye-witnesses were passing while going to their respective houses. These three eye-witnesses have no enmity with the appellants, hence they are independent and reliable witnesses. There is no reason for false implication of the appellants in this case of murder. The statements of the eye-witnesses find corroboration from each other. They have categorically and clearly supported the prosecution story in great details proving participation of the appellants Bhulan and Brahma Bari in this crime. The evidence of eye-witnesses is further supported by medical evidence. The brain, its membranes, kidneys, lungs, pleura larynx and spleen were found congested and according to Dr. Awasthy, this congestion was possible by strangulation. The same was possible because of injury No. 1 which is a contusion of size 10 c.m. x 8 c.m. over front of neck and upper half chest. There is no sufficient or satisfactorily reason to disbelieve the testimony of Smt. Draupadi P.W. 5 just on the ground that she had not stated about participation of the appellants in the murder of her son in the written information allegedly given at the police station on her behalf where she was accompanied by village Pradhan Hira Singh. She in her evidence explained this aspect of the matter that she was told by villagers including village Pradhan Hira Singh that if she disclosed about participation of the appellants in the murder of her son, the police would immediately come into action and dead body of her son would then be taken by the police for inquest and post-mortem etc. and then she would not be able to cremate the dead body of her son. The evidence of Smt. Draupadi P.W. 5 is also truthful, natural and trustworthy in the facts and circumstances of the case.

The appellants had sufficient motive for committing murder of the deceased Munnu because Smt. Draupadi P.W. 5, mother of the deceased was forced for the litigation with Sagar, Om Prakash and others by the appellant Bhulan. The appellant Bhulan was doing pairvi of that case extracting money from the mother of the deceased on the pretext of expenses etc. of the litigation. Not only this, the appellant Bhulan had also some illicit relationship with the wife of the deceased Munnu and this state of affairs continued for about four years. Due to this reason, the deceased Munnu and his mother Smt. Draupadi ceased to be on talking terms with the appellants, then only they filed an application against the appellant Bhulan before the Superintendent of Police, Gorakhpur which is Ext. Ka-9. The application Ext. Ka-9 was moved on 1.9.1981. The present incident of murder took place just after 9 days of the moving of the application Ext. Ka-9. The appellants cheated Smt. Draupadi P.W. 5 and deceased Munnu to the tune of Rs. 4,000. Smt. Draupadi on knowing this fact, complained to the villagers as well as to the concerned authorities which annoyed the appellants. All these things provided a sufficient and strong motive to the appellants to commit the murder of the deceased Munnu.

In view of what has been stated above and after scrutinizing and analysing the entire evidence and going through the conclusions arrived at by the trial court, we are of the opinion that the impugned judgment and order dated 3.8.1982 passed by the trial court/Vth Additional Sessions Judge, Gorakhpur does not call for any interference by this Court. The appellants intentionally committed the murder of the deceased Munnu on the said date, time and place and in the manner alleged by the prosecution. The appellants have not been implicated on account of any so called enmity. The prosecution case is proved by means of cogent and solid evidence beyond shadow of reasonable doubt. Thus, the impugned judgment of conviction and sentence of the appellants is hereby affirmed and the appeal filed by the appellants Bhulan and Brahma Bari is dismissed.

Since the appeal is being dismissed, the bail bonds and surety bonds of the appellants are cancelled. The appellants Bhulan and Brahma Bari are directed to surrender before the trial court immediately to serve out the remaining part of the sentence awarded to them. If they fail to surrender, the trial court is directed to get the appellants Bhulan and Brahma Bari arrested and send them to jail for serving out the remaining part of the sentence awarded by the trial court by means of judgment and order dated 3.8.1982. Let a copy of this judgment be communicated to the court concerned for ensuring compliance.