Hari Singh and Mahendra vs State of U.P.

K.N. Ojha, J.—Instant criminal appeal has been preferred against Judgment and order dated 2.12.81 passed by learned Addl. Sessions Judges Judge, Budaun in Sessions Trial No. 119 of 1980 convicting the appellants u/s 452 and 307 IPC and a sentence of 2 years and 5 years Rigorous Imprisonment respectively. It was directed that both the sentences shall run concurrently.

Heard Sri R.B. Sharma learned Counsel for the appellants, learned AGA and have gone through the record.

In this case the occurrence is said to have taken place in the night of 28/29 October, 1979 at about 11 p.m. FIR was lodged by Jhandu Singh brother of injured Jhamman Singh on 29.10.1979 at 8.30 a.m. bearing Crime No. 155 u/s 452/307/324 IPC, P.S. Udhaiti, district Budaun. The place of occurrence is Vanshpur hamlet of village Bhedpur which is at the distance of five miles from the Police Station.

According to prosecution Jhandu brother of the victim Jhamman got FIR written by one Prem Pal against the appellants and one Munna Lal and lodged it at Police Station Udhaiti. It was written in the FIR that about seven months and some days before Hari Singh appellant had lodged FIR against injured Jhamman. After investigation charge sheet was not submitted Hari Singh was not arrested hence the appellants were nursing bad blood against Jhamman. Jhamman and Jhandu lived at the residence of their maternal uncle Rohan Singh. Hari Singh and Mahendra Singh appellants are of his village Vanshpur, P.S. Udhaiti district Budaun. Accused Munna Lal who was acquitted by learned Sessions Judge is Maternal uncle of Hari Singh. In the night of 28/29 October ,1979 at about 11 p.m. Hari Singh and Mahendra Singh armed with Gandasa went over the roof of the house of Rohan maternal uncle of Jhamman co-accused Munna Lal caught hold of Jhamman, Hari Singh and Mahendra Singh caused injuries to Jhamman with Gandasa. On his cries Jhandu and Rohan his maternal uncle who were sleeping beside Jhamman woke up on shrieks of Jhamman Asharfi and Ved Ram having torch with them went on the spot. Village persons chased the appellants but appellants were successful in making their escape good. Jhandu got the FIR written from Prem Pal and went in the morning and lodged FIR against the appellant one Munna Lal.

Jhamman was carried to PHC Bilsi but Doctor being not available he was carried to District Hospital Budaun on 29.10.1979 at 4.45 p.m. and following injuries were found on his body:

Lacerated wound 2.5 cm x 2 cm on floor of the mouth. Bleeding present.

Incised wound (Transversely placed) 5cm x 5cm x muscle deep on mid of the left side of the neck extending from mid of trachea. 3.1ncised wound 4 cm x 1 cm bone deep on back of right side of ulner border of lower 1/3 of forearm.

Incised wound 9 cm x 3 cm x tender and round cut on dorsum of the left hand extending from ulner border to hand of index metacarpal.

Incised wound 7 cm x 2cm x tender cut and bone deep on dorsum of left hand extending from the ulner border to hand of the middle metacarpal.

Contusion 3 cm x 1 cm on left side of the face below the left eye.

In the opinion of the Doctor all the injuries were caused by sharp edged weapon and injury No. 6 was caused by blunt object, injury No. 4 and 5 were kept under observation and x-ray was advised.

Investigation was conducted by PW-6, SI Buddhi Singh who was at that time posted at P.S. Udhaiti after investigation he submitted charge sheet against the accused-appellant and one another.

Prosecution examined PW-1 Jhandu Singh, PW-2 Jhamman, PW-3 Asharfi Lai, PW-5 Rohan Singh, PW-4 Dr. B.P. Bhatnagar, Orthopaedic Surgeon of district Budaun was examined to prove the injuries of Jhamman Singh, PW-6 S.I. Buddhi Singh made investigation of the case and submitted charge sheet against the accused persons. Accused could not be arrested till submission of the charge sheet, therefore the charge sheet was submitted when accused-appellants were absconding. Process u/s 82 and 83 was executed by the court (sic) after investigation charge sheet was submitted.

In this case PW-1 Jhandu Singh, PW-2 Jhamman, PW-3 Asharfi Lal and PW-5 Rohan Singh have made consistent statement that injuries were caused by the appellants with Gandasa. They have stated that some months before Hari Singh had lodged FIR against Jhamman but no action was taken by the Police. Jhamman made certain sarcastic remarks against Hari Singh therefore out of revenge Hari Singh got injuries caused to the victim.

PW-1 Jhandu Singh has stated that he is resident of village Karia Mai in village Vanshpur where the occurrence took place. He had got landed property from his maternal uncle Lal Karan.His brother Jhamman and he himself live with Lal Karan their maternal uncle and they help Lal Karan in their agricultural work. Appellant Hari Singh has lodged FIR against Jhamman in respect of theft in which Jhamman was acquitted. Jhamman made certain sarcastical remarks against Hari Sing. Mahendra is cousin of Hari Singh, Munna Lal is father-in-law of Hari Singh. In the night of the occurrence he was sleeping beneath Chapper, Rohan Singh and Jhamman Singh were sleeping beside him, lantern was glowing the light. It was 11 p.m. and on shrieks of Jhamman he saw that Munna Lal co-accused who was acquitted by the learned Sessions Judge and is not appellant in this case but he was named in the FIR had caught hold of the feet of Jhamman, Hari Singh and Mahendra were causing injuries to Jhamman. On the alarm raised by him and other witnesses accused ran away he also stated that witnesses Asharfi and Ved Ram also had reached the spot having torches in their hand. He further stated that due to fear he could not go to Police Station to lodged FIR. He first carried Jhamman to PHC, Bilsi but none was present there hence he was carried to District Hospital Budaun, where he was medically examined. In cross examination he deposed that the case of theft was lodged against Rohan Singh maternal uncle of the victim. A litigation was also earlier contested between Rohan Singh and Hari Sing. He further stated that when Gandasa injury was caused to Jhamman, Jhamman started to tm from cot and therefore there was no blood on the cot but there was blood on earth.

PW-2 Jhamman Singh is the victim himself who has stated that he and Rohan Singh were sleeping on the cot beside each other and at about 10 or 11 p.m. Munna Lal caught hold of his legs, Han Singh and Mahendra caused injuries to him with Gandasa. On the alarm raised by his brother Jhandu Singh and maternal uncle Rohan Singh, Asharfi Lal and other witnesses ran to the spot. He was carried to the PHC Bilsi where the medical treatment could not be got done therefore he was carried to the District Hospital, Budaun. He deposed that Hari Singh lodged a case against him in respect of theft and in that case Jhamman was neither arrested nor prosecuted, therefore the accused persons started to nurse bad blood against him. He also stated that 15 or 20 days before the occurrence he has passed a satire against the appellant.

PW-3 Asharfi Lal who is named in the FIR stated that he is resident of the same village and on shrieks of Jhamman he reached the place of occurrence. There was light of lantern which was hanging. He saw Hari Singh and Mahendra were causing injuries to Jhamman with Gandasa and Munna Lal caught hold of the legs of the victim.

PW-5 Rohan Singh stated that Jhandu and Jhamman are his sister/sons both live in the village. He alongwith Jhandu and Jhamman etc. were sleeping beneath the Chapper and on shrieks of Jhamman he woke up and saw the appellants causing injuries with Gandasa to Jhamman. On shrieks Asharfi Lal and Ved Ram also ran on the spot and saw the occurrence he also corroborated the statement of Jhamman that eight months before accused had got FIR lodged against Jhamman about theft of cattle but no action was taken by the Police and therefore when he passed certain remarks against the appellants they caused injuries with Gandasa.

In this case emphasis has been laid that there is no independent witness to support the prosecution story. The learned Addl. Sessions Judge held that Jhamman is injured and he suffered as many as four incised wounds one on left side of neck. It was muscle deep, another incised wound on right side of lower forearm was bone deep third incised wound was 9 cm x 3 cm and dorsum of left hand was cut fourth incised would was bone deep on left hand beside it Jhamman suffered one lacerated would on mouth and one contusion on left side of face.

If a person is sleeping witnesses also being members of the same family and relation and they are sleeping beside the victim if so many injuries are caused and there is light of lantern it is natural that the culprits would be recognised because injuries are not being caused from a distant place like firearm but injuries being caused with Gandasa. PW-4 Dr. B.P. Bhatnagar has proved injury report Ex.Ka-2 of Jhamman and has stated that these injuries could be caused by sharp edged weapon and would have taken place in the night of 29/29 October, 1979 at about mid night.

In this case injured is not the only witness but there are three other witnesses also whose presence on the spot is natural. When Jhamman and Jhandu were living at the residence of their maternal uncle as some land was given by maternal uncle to these persons and they stated that at the time of occurrence they used to live at the residence of their maternal uncle the presence of these witnesses on the spot is natural. In the night only those witnesses could be present on the spot whose attention was attracted on the shrieks of Jhamman or on the alarm raised by the witnesses and out of two witnesses Asharfi Lal and Ved Ram, Asharfi Lal has been examined as PW-1 who has fully supported the prosecution story though Asharfi Lal is of the family of the maternal uncle of the victim but his statement cannot be dis-believed on this ground as in cross examination he has stated on all the facts which corroborate the statement of other witnesses. If a person goes to the house of the victim in the night and starts causing injuries with Gandasa, it is natural that when the Gandasa is used first time such victim would jump from the cot out of pain and in such circumstance injuries in the nature of lacerated wound on face or contusion on face as is detailed at Injury No. 1 and 6 of Injury report may take place. Such victim would try to save himself and would run away from the cot, therefore if the injuries were caused on different parts of the body there is no contradiction or nothing un-natural.

Much emphasis has been laid that no independent witness has been examined. When the victim was sleeping at the residence his family members or those living in the neighbourhood are expected to reach the spot and therefore the statement of four eye witnesses cannot be dis-believed which includes one injured person.

Much emphasis has been laid that the witnesses being the interested one there testimony cannot be believed.

In Dalip Singh and Others Vs. State of Punjab, it has been held "A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause of enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge alongwith the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

The above decision was relied on in Guli Chand and Others Vs. State of Rajasthan, and Vadivelu Thevar Vs. The State of Madras, it was held that we are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the finding for such an observation is based on the fact that the witnesses are women and the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar Vs. The State of Rajasthan, . We find, however, that it unfortunately still persists, if not in the judgements of the Courts, at any rate in the arguments of counsel."

In Masalti Vs. State of U.P., it was held that "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan Or interested witnesses.... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No (sic) and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

The same law was laid down in State of Punjab v. Jagir Singh AIR 1973 SC 2007 ; Lehna Vs. State of Haryana, and S. Sudershan Reddy and Others Vs. State of Andhra Pradesh, . It was held that "relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

In AIR 2007 SCW 2736 Mano v. State of Tamil Nadu it was held by Hon''ble the Apex Court that "in regard to the interestedness of the witnesses for furthering the prosecution version, relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if a plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible."

Thus in this case the statement of injured, the informant, and the eye witness who was sleeping beside him his maternal uncle Asharfi Lal who lives in the neighbourhood cannot be dis-believed. Because they are natural witnesses, their presence in the night at their residence is natural and on the shrieks of the victim their arrival on the spot is natural, there was light of lantern also. The witnesses had day today occasion to see the faces and gait of the appellants therefore they had no difficulty in correctly ascertaining the identity of the persons who were causing injuries. It is not expected that injuries would have been caused by some other person and they have been left by the witnesses and appellants have been falsely involved in the crime.

Learned Counsel for the appellants has laid much emphasis that there is delay in FIR. A cogent explanation has been given that it was night, the Police Station is at the distance of five miles from the scene of the occurrence, therefore FIR was lodged in the morning. If injuries would have been caused somewhere else the victim would have not been in a position to move from that place. The FIR would have not been lodged even in the following morning, therefore the delay has been explained by the prosecution as why it was not lodged in the night and it was lodged in the following morning. It is also submitted that no blood was found on the cot. The Investigating Officer is PW-6 S.I. Buddhi Singh who stated that he reached the spot on 29.10.79 and prepared site plan. The site plan has been proved by him which is Ex.Ka-4. He took blood stain and plain earth, prepared it recovery memo Ex. Ka. -5. After investigation he submitted charge sheet. He did not find any blood on the cot. He found blood on the earth. The learned trial court explained that when a victim is caused injuries with Gandasa even first stroke of the Gandasa will cause so much pain to the victim that he will not be in a position to remain intact on the cot. Even though he is sleeping but he will jump down from the cot will try to run away out of pain. The moment injury is caused by Gandasa he will leave the cot. Thus there arises no question of cot being blood stained. In such circumstance if the blood was found on the earth beside the cot and not on the cot itself there is no infirmity in the investigation on this point and the recovery of blood stain and plain earth from the place near the cot is proved by the Investigating Officer supports the prosecution story.

Emphasis has been laid by learned Counsel for the appellants that some one caused injuries to Jhamman Singh in the night. The real culprit could not seen and due to enmity the appellants have been involved in the crime. This contention is also not maintainable because when there are many eye witnesses, the real culprit cannot be left out involving innocent persons. There was motive for the appellants to cause injury to the victim. Nothing has been suggested that Jhamman who was living at the residence of his maternal uncle as he was given some land by his maternal uncle had enmity with any other person, therefore the statement of the four eye witnesses cannot be disbelieved on mere suggestion that the victim would have suffered injuries at some other place in the night and the appellants were falsely involved in the crime.

Learned Counsel for the appellants has further submitted that Jhamman Singh is said to become unconscious on the spot. He remained unconscious for two days. Injuries were caused when he was sleeping and therefore he could not recognise the real culprit. Jhamman Singh has stated that he became unconscious on the spot it does not mean that he became so much unconscious that he became unable to recognise the real culprit. It takes some minutes or seconds when a persons becomes unconscious after the injuries are caused. Medical examination report of Jhamman which is proved by Dr. B.P. Bhatnagar PW-4 does not show that Jhamman was carried to the hospital in unconscious condition. It means after suffering many injuries from Gandasa his condition became serious but it does not mean that he could not recognise the real culprit or he could not raise alarm and there was no occasion for other witnesses to arrive at the spot of occurrence.

Considering all the facts and circumstances of the case this Court is of the view that the finding made by the trial court does not suffer from any infirmity and there is no scope for interference with the finding made by the trial court. In this case as many as four incised wounds were caused by Gandasa. The intention of the appellants shows that they had gone on the spot with common intention to commit murder but death of the victim was avoided because on shrieks of the victim other witnesses reached the spot, besides it his maternal uncle and brother were sleeping beside him. The intention of the appellants is proved from the weapon, the nature of injuries and the manner in which the injuries were caused. Thus there is no scope to aware any lesser sentence.

In view of the above discussion this Court finds that instant Appeal does not yield any fruitful result and it deserves to be dismissed.

The appeal filed by the appellants Hari Singh and Mahendra against conviction and sentence u/s 452/307 IPC is dismissed.

The appellants are on bail their bail bonds are forfeited

Let a copy of this judgment be send to the Chief Judicial Magistrate, Budaun who will issue coercive process against the appellants to get them arrested for being sent to jail to serve out their sentences as is awarded by the learned Additional Sessions Judge, Budaun.