Heera Lal (in Jail) vs State of U.P.

Vishnu Sahai, J.—Through this appeal, Appellant Heera Lal challenges the judgment and order dated 21.4.1990, passed by the Special/ Additional Sessions Judge, Faizabad, in Sessions Trial No. 462 of 1988, whereby he has been convicted and sentenced to undergo imprisonment for life for the offence punishable u/s 302, I.P.C.

Shortly stated, the prosecution story runs as under:

The informant, Raj Mani (P.W. 2) is son of the deceased Sahdev and nephew of Laxmi Prasad (P.W. 3). At the time of the incident, the informant, Sahdev, Laxmi Prasad, Mahawal and the Appellant were living in village Fattepur, hamlet of Ajmeri Badshahpur, within the limits of police station Tanda, district Faizabad.

2.1. There was enmity between Appellant Heera Lal and deceased Sahdev. About 2-2-1/2 months before the incident, Gunjan, daughter of Sahdev''s sister had plucked mangoes from the grove of the Appellant. On that, the Appellant beat her and brought her to Sahdev. He started abusing Sahdev. Sahdev asked him not to abuse him but he paid no heed. Thereupon, Sahdev gave two or three slaps to the Appellant. This irked the Appellant, who threatening Sahdev went away. Thereupon, the Appellant lodged an F.I.R. against Sahdev, whereupon a case was registered against him, in which he was on bail at the time of the incident.

2.2. On 18.8.1988, at about 3.00 p.m., Sahdev had gone to untie his bullocks to the south of his house. The informant, Raj Mani was following him as he had to collect cow dung. When Sahdev had reached some distance, he saw the Appellant coming out from his house with a knife in his hand and assaulting him with the same. Sahdev raised cries, hearing which Mahawal (P.W. 1), Laxmi Prasad (P.W. 2), Sita Ram and the informant, with a bamboo rushed to his rescue. Thereupon the Appellant took out something like a bomb from inside his lungi. Seeing it, the informant and others did not dare to rescue Sahdev. Thereafter, Sahdev ran towards the village. The Appellant chased him and near Satai''s house, he again inflicted knife blows on his person. When the informant and others challenged the Appellant, he ran away. As a consequence of the assault, Sahdev was precariously injured and blood had fallen down at a number of places. Thereafter, the informant and others arranged for a cot and after putting Sahdev on the same, proceeded for Primary Health Centre, Tanda. When they reached Salimpur, they saw a jeep, which they stopped. On the said jeep, they proceeded along with Sahdev towards the police station but on the way, near thirwa drain, Sahdev died.

2.3. Thereafter, the informant Raj Mani got his F.I.R. scribed by one Asha Ram ; who after scribing it, read it over to him. He, then affixed his signatures on the said F.I.R. and then along with the F.I.R. and the corpse of his father proceeded to police station Tanda, where he lodged the F.I.R.

The evidence of Constable Hari Krishna Tripathi (P.W. 6), shows that on 18.8.1988, at 5.00 p.m. Raj Mani lodged the F.I.R. at police station, Tanda, on the basis of which he registered a case in the general diary vide Ext. Ka-4. His evidence shows that the same day at 6.10 p.m. he sent the special report.

The investigation was conducted in the usual manner by S.I., Yogendra Nath Srivastava, (P.W. 7). His evidence shows:

The F.I.R. was lodged in his presence. He, thereafter, interrogated the informant Raj Mani and Laxmi Prasad at police station, Tanda, itself and also performed there the inquest on the corpse of the deceased and, thereafter, sent it for autopsy. On 19.8.1988, he seized blood stained and plain earth in separate containers under recovery memos from three different places, namely, (i) where the deceased Sahdev had gone to untie his bullocks ; (ii) from the side of the house of Tidhi Kumhar ; and (iii) from near a neem tree (it is pertinent to mention that Sahdev was assaulted at all the three places).

It is pertinent to mention that the aforesaid blood, which was seized from three places, was sent to the Serologist, who found that it was blood.

He did some other investigation also, but since, in our view, a reference to it is not necessary, for the decision of this appeal, we are not adverting to it.

On completion of investigation, the Appellant was charge-sheeted for an offence punishable u/s 302, I.P.C.

The autopsy on the corpse of the deceased Sahdev was conducted on 19.8.1988 at 11.00 p.m. by Dr. V. P. Singh (P.W. 4), who found on it the following ante-mortem injuries:

(i) Incised wound 9 cm. x 2.5 cm. x muscle deep with clean margin with both corner sharp cut chest upper part, going backwards and outwards above right nipple at 2 O''clock position.

(ii) Penetrating wound 9 cm. x 2.2 cm. x abdominal cavity deep with clean margins both corner sharp at 11 cm. behind left nipple omentum coming out. Descending colon and left kidney cut.

(iii) Incised wound 17 cm. x 1.5 cm. x bone deep on back lower inner part mid line, transverly up to the land of left iliac. Direction towards left and outer side (maximum depth in mid line to bone deep).

(iv) Incised wound 2 cm. x 0.5 cm. x skin deep left thigh under apart 27 cm. above left knee. Both corners sharp.

The cause of death spelt out in the post-mortem report was shock and haemorrhage as a result of ante-mortem injuries.

It is pertinent to mention that in his statement in Court, Dr. V. P. Singh reiterated the same cause of death and also stated therein that the ante-mortem injuries suffered by the deceased were sufficient in ordinary course of nature to cause death and they could have been caused on 18.8.1988 at about 4.00 p.m.

The case was committed to the Court of Sessions in the usual course, where the Appellant was charged for the offence punishable u/s 302, I.P.C., to which he pleaded not guilty and claimed to be tried.

During trial, in all, the prosecution examined seven witnesses. Three of them, namely, Mahawal, Raj Mani and Laxmi Prasad, P. Ws. 1, 2 and 3 respectively were examined as eye-witnesses.

The learned trial Judge believed their evidence and convicted and sentenced the Appellant in the manner stated in paragraph 1.

Hence, this appeal.

We have heard learned Counsel for the parties and perused the depositions of the prosecution witnesses ; the material exhibits tendered and proved by the prosecution ; the statement of the Appellant recorded u/s 313, Cr. P.C. ; and the impugned judgment and are constrained to observe that we do not find any merit in this appeal.

It would be manifest from above that the learned trial Judge has based the conviction of the Appellant on the ocular account furnished by Mahiwal, Raj Mani and Laxmi Prasad, P. Ws. 1, 2 and 3 respectively. In our judgment, the same inspires confidence.

We, now propose giving our reasons for reaching the said conclusion.

We begin with the ocular account furnished by informant Raj Mani (P.W. 2). Since in paragraph 2 we have set out the prosecution story on the basis of the recitals contained in his examination-in-chief, we do not want to burden our judgment by reiterating all the details. In short, his evidence shows:

There was enmity between his father Sahdev and the Appellant (since in para 2 we have referred to it, we do not want to burden our judgment by mentioning it again). On account of it, on 18.8.1988, at about 3.00 p.m., when Sahdev had gone to the south of his house to untie his bullocks (he was following him as he had to collect the cow dung) and had reached near the hut of the Appellant, the Appellant with a knife emerged therefrom and launched an assault on him. He, Mahiwal, and Laxmi Prasad rushed to the rescue of Sahdev but the Appellant took out from his lungi something, which looked like a bomb. Seeing it, he and others gave up their endeavour. Thereafter, Sahdev ran towards the village but the Appellant caught hold of him near Satai''s house and again belaboured him with knife. On being challenged by him (Raj Mani) and others, he ran away. Then, he and others put Sahdev, who was precariously injured, on a cot and proceeded along with him to Primary Health Centre, Tanda at Salimpur, they noticed a jeep coming. They stopped it and on it proceeded with Sahdev towards Police Station, Tanda, but on the way, Sahdev succumbed to his injuries. Thereafter, he got the F.I.R. scribed by Asha Ram and along with others and the corpse of Sahdev proceeded to police station, Tanda, where he lodged the F.I.R.

We have gone through the statement of the informant Raj Mani, P.W. 2 and make no bones in observing that he is a reliable witness.

In the first place, he has explained his presence on the place of incident. He has stated that since he had to collect cow dung, he was following his father Sahdev, when the latter had gone to untie his bullocks. It was on the way (near the Appellant''s house) that the Appellant first assaulted him.

Secondly, the manner of assault as furnished by him is corroborated by medical evidence. He stated that the Appellant assaulted Sahdev with a knife and, as we have earlier seen the autopsy surgeon found three incised wounds and one penetrating wound on the corpse of Sahdev. It is pertinent to mention that in his examination-in-chief, the autopsy surgeon Dr. V. P. Singh categorically stated that the aforesaid injuries could be caused by a knife. It is pertinent to mention that in his cross-examination, he stated that the incised wounds could be caused if a knife blow was given and the knife taken out, and the penetrating wound could be caused if knife was used in a piercing manner.

Thirdly, the prompt F.I.R. of the incident lodged by him (Raj Mani) also lends a seal of assurance to his claim of having seen the incident. We have seen that the incident took place on 18.8.1988 at 3.00 p.m. and the F.I.R. was lodged the same day by him at police station, Tanda, which is situated at a distance of eight kilometres from the place of the incident.

It is pertinent to mention that in the said F.I.R., the essential features of the prosecution case, including his claim (informant''s claim) and that of the other eye-witnesses, namely, Mahawal and Laxmi Prasad of having seen the incident is mentioned.

We have gone through the F.I.R. and have no reservations in observing that unless he had seen the incident, he could not have lodged such an F.I.R. ; full of details.

It is pertinent to mention that although Raj Mani was extensively cross-examined but nothing could be extracted therefrom which could impair his credibility.

It is true that being the son of the deceased, he is a highly interested witness but it should be borne in mind that the law enjoins that the testimony of an interested witness be evaluated with caution. We have exercised the said caution and find it reliable.

For the aforesaid reasons, in our view, the evidence of informant Raj Mani inspires implicit confidence and is by itself sufficient to confirm the conviction of the Appellant for the offence punishable u/s 302, I.P.C.

However, in the instant case, we have plurality of credible ocular account in the form of that furnished by Mahawal (P.W. 1) and Laxmi Prasad (P.W. 3). Their evidence shows that they are residents of the same village, wherein the incident took place. The evidence of the former shows that while he was at his house, he heard the cries of Sahdev and Raj Mani and saw the Appellant assaulting Sahdev with a knife. Since, thereafter he has furnished the same details in respect of the incident, as Raj Mani, we are not adverting to them.

The evidence of the latter shows that at the time of the incident, he was also at his house and he heard the cries of his real brother Sahdev and Raj Mani and when he reached near the neem tree, he saw the Appellant inflicting knife blows on Sahdev. Since, thereafter, he has furnished the same account as Raj Mani, we do not want to burden our judgment by reiterating the details.

It is pertinent to mention that from the evidence of both Mahawal and Laxmi Prasad, it is manifest that they were near the place of the incident when the incident took place. In fact, the evidence of Laxmi Prasad shows that he was at a distance of about 300 paces from the place of the incident. In our view, since it was a broad day light incident, these witnesses would have had no difficulty in recognizing the Appellant and in reaching in-time to see the incident.

It is pertinent to mention that not only their presence is explained on the place of the incident but their evidence is also corroborated by medical evidence.

It is significant to point out that although both these witnesses were extensively cross-examined but nothing could be extracted therefrom, which could impair their credibility.

We wish to emphasise that Mahawal (P.W. 1) is an independent witness, who had no rancour or ill-will against the Appellant, and in our view, in the absence of the same, he would not have falsely implicated the Appellant.

It is true that since Laxmi Prasad is the real brother of the deceased Sahdev, he is an interested witness but it should be borne in mind that the law only enjoins that the testimony of an interested witness should be evaluated with caution and not mechanically rejected. We have exercised the said caution and find it reliable. We are not prepared to believe that he would not have excluded the real assailant and falsely implicated the Appellant.

For the said reasons, in our judgment, the evidence of Mahawal (P.W. 1) and Laxmi Prasad (P.W. 2) also inspires confidence.

For the aforesaid reasons, the ocular account furnished by Mahawal (P.W. 1), Raj Mani (P.W. 2) and Laxmi Prasad (P.W. 3) inspires implicit confidence and fixes the involvement of the Appellant in the crime.

In our judgment, there can be no manner of doubt that only an offence punishable u/s 302 would be made out against the Appellant. A perusal of the ante-mortem injuries, the internal damage accompanying them, in the form of omentum protruding and left kidney being cut, as also the statement of the autopsy surgeon Dr. V. P. Singh (P.W. 4) in terms that the injuries suffered by the deceased were sufficient in ordinary course of nature to cause death coupled with the evidence of the eye-witnesses, that the said injuries were inflicted intentionally by the Appellant, would bring his act in the four corners of clause thirdly of Section 300, I.P.C. the breach of which is punishable u/s 302, I.P.C.

We would be failing in our fairness if before proceeding to the operative part of the judgment, we do not advert to the two principal submissions canvassed by learned Counsel for the Appellant.

She firstly urged that the ocular account is to the effect that knife was used in a piercing manner and that being so all the four wounds suffered by the deceased should have been penetrating wounds rather than three of them being incised wounds and only one a penetrating wound. We have given our anxious consideration to the said submission and find no merit in it. It is common knowledge that under pressure of cross-examination, witnesses wilt and start drawing from their imagination. In our judgment, when the eye-witnesses stated that knife was used in a piercing manner, the probability of their drawing from imagination cannot be ruled out.

Hence, this submission fails.

Secondly, learned Counsel for the Appellant urged that the evidence of Mahawal (P.W. 1) and Laxmi Prasad (P.W. 3) shows that they saw the incident from a distance of about 300 paces. She urged that it was not possible to see it from such a long distance. For two reasons, we cannot accept this submission ; firstly, because the incident took place in the month of August at 3.00 p.m. when it is broad day light (in our view on that date and time the witnesses could have seen the incident from a distance of 300 paces) ; and secondly because the evidence of these witnesses is that they did not remain stationary at the place from where they first saw the incident. Their evidence shows that they proceeded near the places, where deceased was being assaulted and saw the incident from near the said places.

Hence, this submission also fails.

No other submission was canvassed before us by learned Counsel for the Appellant.

In the result, we confirm the conviction of the Appellant for the offence punishable u/s 302, I.P.C. and the sentence of imprisonment of life awarded to him thereunder and dismiss this appeal. The Appellant is on bail and shall be taken into custody forthwith to serve out his sentence.