Madhuban Verma vs State of U.P.

H.L. Gokhale, C.J.—This appeal has been preferred by the Appellant-Madhuban Verma against the judgment and order dated 22.12.1981, passed by the Additional District and Sessions Judge, Faizabad in S.T. No. 150 of 1979, whereby the Appellant has been found guilty and convicted under Sections 302, 323 and 394, I.P.C. and has been sentenced to undergo rigorous imprisonment for life u/s 302, I.P.C. for four years u/s 394, I.P.C. and nine months u/s 323 I.P.C. All the sentences have been directed to run concurrently.

The facts of the case as disclosed in the First Information Report (Ex. Ka-1) lodged on 16th March, 1976 are that the informant Sri Nath Singh (P.W. 1) was living with his brother Jairam Singh in the railway quarter at Darshan Nagar, where he was posted as Assistant Station Master. At that time, the informant was a law student in Saket Degree College, Ayodhya. The accused Madhuban Verma was posted as waterman at Darshan Nagar Railway Station, which is near to Faizabad Railway Station. A few days prior to the incident, Madhuban Verma was beaten by some students and he was under the impression that he was beated at the instance of the informant and his brother Jairam Singh. Madhuban Verma wanted to take revenge and had expressed his desire to that effect to several persons and on that account was nurturing enmity with Jairam Singh. Accused was living with Hoob Lal Verma who was posted as Station Master, Darshan Nagar and was also doing his domestic work. He used to sleep at his place. Another brother of informant one Vishwanath and one Ambika Verma were candidates for the post of Lecturer in the College and Ambika Verma used to visit Hoob Lal Verma. Ambika Verma and Madhuban Verma were on friendly terms. Informant''s brother Jairam Singh was making efforts to get Vishwanath selected.

According to the informant, his brother Jairam Singh had gone out in connection with Appellant''s selection and he returned in the night of 15.11.1976 and reached his quarter from Faizabad. After taking his food, he slept in the room with his wife and his son Akhilesh Singh alias Sanjay Singh. The informant was sleeping in the adjoining room with a common door. At about 12.30 in the night, the informant heard cries of his nephew and sister-in-law and after opening the door, came in that room and saw that his brother and nephew were being attacked by four persons by the rare side of axe. When he tried to intervene, he was also beaten. At that time, electric light was burning in both the rooms and the verandah. He and his sister-in-law identified Madhuban Verma, the waterman. The other three assailants were unknown to them from before. At the noise, the neighbours came and saw assailants running away. The informant apprehended that the incident occurred because of the enmity on account of dispute concerning selection of lecturer and the earlier incident of beating of the Appellant. His brother Jairam Singh died at the spot and his nephew received serious injuries. Sri Nath Singh scribed the report and sent it through one Bhola and Dayanand to Police Station Ayodhya, District Faizabad. He himself took the injured Akhilesh alias Sanjay to Faizabad by train.

P.W. 6 Head Constable Shaligram Tiwari was posted as Constable Moharrir (Writer) at P. S. Ayodhya. On 16.11.1976 at about 2.15 a.m., Bhola and Dayanand came to him with the report Exhibit Ka-1 and on that basis he prepared the chik report Ex. Ka-6 and registered the case in the general diary at rapat (Report) No. 7. Its copy has been proved as Ex. Ka-7.

The accused was arrested on the next day when he was going to the market. After investigation, the charge-sheet was submitted against the accused. He was committed to the Court of Sessions by Chief Judicial Magistrate, Faizabad by order dated 19.5.1979. The charges were framed against the accused on 3.9.1980. He denied the charges and claimed trial. The other assailants were not traced.

In support of its case, the prosecution led evidence and examined P.W. 1 Sri Nath Singh, the informant, P.W. 2 Dr. H. K. Verma (who conducted the post mortem on the body of Jairam Singh), P.W. 3 Constable Ram Ratan, P.W. 4 Dr. B. Das (who attended the injured Sri Nath Singh and Akhilesh Singh in the Emergency Ward at Faizabad), P.W. 5 Dr. R. S. Srivastava (who conducted the post mortem of Akhilesh Singh), P.W. 6 Head Constable Shaligram Tiwari, P.W. 7 Smt. Indrawati, wife of the deceased Jairam Singh, P.W. 8 Constable Priya Nath Pandey, P.W. 9 Ram Naresh, P.W. 10 Bhola, P.W. 11 the Investigating Officer, Hridaya Narayan Singh, P.W. 12 Sub-Inspector Rameshwar Baksh Singh and P.W. 13 Sub-Inspector Shiv Poojan.

P.W. 4 Dr. B. Das was posted as Emergency Medical Officer on 16.11.1976 at District Hospital, Faizabad. At 3.10 a.m. injured Sri Nath Singh and Akhilesh were taken there by Hoob Lal Verma, Station Master, Darshan Nagar Railway Station. He examined Sri Nath at 3.10 a.m. and found the following injuries on his person:

(i) abraded contusion 6 cm. ? 5 cm. on left side of the face ; and (ii) lacerated wound 2 cm. ? 0.8 cm. ? 0.5 cm. on left side of head. These injuries were simple and caused by some blunt object and were fresh at the time of examination. The injury report is Ex. Ka-3.

He examined Akhilesh at 3.20 a.m. and found the following injuries on his person:

(i) lacerated wound 2.5 cm. ? 0.5 cm. ? bone deep on left side of head ;

(ii) lacerated wound 2 cm. ? 0.5 cm. ? 0.5 cm. on left side of head, 2.5 cm. ahead of injury No. 1 ; and (iii) lacerated wound 0.5 cm. ? 0.2 cm. ? 0.2 cm. on left side of head, 2 cm. below injury No. 2.

All these injuries were kept under observation and X-ray was advised. Injuries could have been caused by blunt object. The injured Akhilesh Singh was in semi-conscious condition and general condition was poor. Dr. H. K. Verma (P.W. 2) prepared the injury report at the time of examination and proved it. In cross-examination, he has stated that in the injury report the time "p.m." has been mentioned by clerical mistake and he actually examined the injured persons in the night.

P.W. 11 Hridaya Narayan Singh was posted as Station In-charge, Police Station Ayodhya on 16.11.1976. The case was registered in his presence. He signed the chik report after registration of the case. He started investigation and reached the place of occurrence at 3.30 a.m. He also deputed Sub-Inspector and Constable in search of the accused. He stayed at the place of occurrence and prepared the inquest report (Ex. Ka-9) of Jairam Singh at 6.30 a.m. The dead body was sealed and was handed over to constable Priyanath and Lalji alongwith inquest report and relevant papers in sealed packets for post mortem examination.

P.W. 8 Priya Nath Pandey who was posted as Constable at P. S. Kotwali, Ayodhya on 16.11.1976 brought the dead body of Jairam Singh in the morning to Faizabad with the relevant papers and identified the same in presence of the Medical Officer. As long as the dead body remained in his possession, no one was allowed to touch it.

P.W. 2 Dr. H. K. Verma was posted as Medical Officer in District Hospital, Faizabad on 16.11.1976. He conducted the post mortem examination of the body of Jairam Singh at 4.15 p.m. The dead body was brought by Constable Lalji Mishra and Priyanath and was identified by them. Rigour mortis was present. He found the following ante mortem injuries on his body:

(i) Abraded contusion 3 cm. ? 1.2 cm. ? 1.25 cm. on the left mastoid region just above the upper border with swelling in an area of 10 cm. ? 7 cm. ;

(ii) abraded contusion 3 cm. ? 1.2 cm. ? 2 cm. behind the left ear on the left side neck upper part ; and (iii) Abraded contusion 1.5 cm. ? 0.5 cm. on the left lower jaw, 1 cm. below the lobules on left ear. There was an old abrasion on the abdomen on the right side.

On internal examination doctor found that blood was present under injury No. 1 and corresponding part of skull on the right side also. Veins of the brain were congested. The right and left lungs were congested and edematous. Semi-digested food was present in the stomach. Gases in small intestine and faecal matter in the large intestine were present. According to the doctor, cause of death was shock and intra cranial haemorrhage as a result of ante mortem injuries. He proved post mortem report Ex. Ka-2. According to him, the death could have been caused at 12.30 a.m. on 16.11.1976 and the injuries could have been caused by pansa (rare blunt portion of axe).

When the condition of Akhilesh Singh alias Sanjay Singh deteriorated in District Hospital, Faizabad, he was shifted to Medical College, Lucknow, for better treatment but he succumbed to his injuries on 22.11.1976.

P.W. 12 Rameshwar Baksh Singh, who was posted as Sub-Inspector at Police Station Chowk, Lucknow on 22.11.1976 received a memo about the death of Akhilesh Singh alias Sanjay Singh at 4.30 p.m. and entry was made in the general diary at rapat No. 36 (Ex. Ka-20) by Head Constable Umashanker Mishra. He was entrusted with the work of conducting inquest. On 23.11.1976, he went to the Medical College mortuary, appointed panches and prepared the inquest report of the body of Akhilesh Singh alias Sanjay Singh and also other relevant papers. Inquest report is Ex. Ka-21. Thereafter the body was handed over to Constable Ram Ratan for getting the post-mortem examination done.

P.W. 3 Constable Ram Ratan was posted at P. S. Chowk, Lucknow on 23.11.1976. He received the dead body in the medical college mortuary from Sub-Inspector Rameshwar Baksh Singh alongwith relevant papers. He identified the body in presence of the doctor. Doctor gave him post mortem report in a sealed cover, which was filed by him at the police station.

P.W. 5 Dr. R. S. Srivastava, who was posted as School Health Officer, Lucknow, conducted the post mortem examination of Akhilesh Singh alias Sanjay Singh on 23.11.1976 at 2.00 p.m. on the directions of the Chief Medical Officer, Lucknow. The dead body was identified by constable Ram Ratan Singh. Rigour mortis was present. Post mortem stains were also present. Abdomen was distended. He noted the following injuries on his body:

(i) Lacerated wound 2 cm. ? 0.25 cm. ? brain deep on the left side of head six and half cm. from left ear in vertical direction ;

(ii) Lacerated punctured wound 1/2 cm. ? 11/2 cm. ? 1 cm. on left lower head, 2 cm. below injury No. 1 and 4 cm. above left ear ;

(iii) Stitched wound. One stitch was present. On opening of stitch lacerated wound was found measuring 2 cm. ? 1/2 cm. ? 1/2 cm. on the left side back of the head, 8 cm. above from the left ear and 2 cm back to the injury No. 1 ;

(iv) Dark brown bluish discolouration on the left upper eyelid in an area of 5 cm. ? 3 cm. ;

(v) Dark brown bluish discolouration on the right eyelid 4 cm. ? 2 cm. ; and

(vi) Abraded contusion on the back of right shoulder in an area of 1.5 cm. ? 1 cm.

On opening the skull he found (a) depressed fracture 11 cm. ? 7 cm. in left temporal and partietal and left frontal bone. Brain matter was coming out, (b) Fissured fracture 22 cm. long frontal and right temporal bone continued with injury (a) Duramatter was lacerated. There was clotting of blood in epidural and subdural region. Upper surface of brain had clotted blood over it. Brain was congested with clotted blood present on the base of skull. Left parietal and temporal region of the brain was lacerated in an area of 8 cm. ? 6 cm. ? 11/2 cm. with clotted blood over it. According to doctor cause of death was shock and comma due to head injuries, which could be caused by blunt weapon. The death had taken place in the hospital on 22.11.1976 at 2.40 p.m. Injury could have been caused by rare side of the axe. He prepared the post mortem examination report at the time of examination. He proved it Ex. Ka-5. According to the doctor, the injuries of head were sufficient to cause death in ordinary course of nature.

P.W. 9 who was witness of threats to the deceased, prior to this incident, but has not supported that version and has been cross-examined.

P.W. 10 Bhola denied that he had taken the report to the police station. He has also been cross-examined by the prosecution. He also stated that he did not see the assailants coming out of the quarter of the deceased.

P.W. 11 Hridaya Narayan Singh investigated the case and interrogated the witnesses Smt. Indrawati, Ram Naresh and Bhola at the place of occurrence and inspected the place of occurrence and prepared the site plan Ex. Ka-14. He took the blood stained pillow and quilt of injured Akhilesh Singh alias Sanjai Singh in his custody and prepared the fard Ex. Ka-15, the blood stained loi (blanket) of the deceased and prepared the fard Ex. Ka-16, the blood stained earth and simple earth from the place of occurrence and sealed them separately and prepared fard Ex. Ka-17. He also took a lock with kundi, fresh broken brass kalchul in two parts, a fresh broken handle of axe in custody and prepared the fard Ex. Ka-18. Torch of Bhola was also taken into custody and fard Ex. Ka-19 was prepared. He also prepared the inquest report as mentioned above. He went to District Hospital, Faizabad and interrogated the injured Sri Nath Singh. Akhilesh Singh alias Sanjay Singh was unconscious and therefore, his statement could not be recorded.

Accused was arrested on 16.11.1976 in the day time. The investigation was transferred to C.B.C.I.D. Further investigation was carried on by Inspector Hanuman Singh of C.B.C.I.D. Because of his death, he could not be examined in the Court and witness P.W. 13 Shiv Poojan Singh, who had worked with Hanuman Singh and was familiar with his writing and signature proved the charge-sheet Ex. Ka-26 as filed by Hanuman Singh, after completing the investigation. This witness also proved an extract of statement of P.W. 1, as Ex. Kha-1.

The prosecution also tendered the report of chemical examiner and serologist in evidence. Reports are Exts. Ka-27 and Ka-28. Blood was found on the pillow, cover of quilt and blanket and the earth sent for chemical-examination.

P.W. 1 Sri Nath Singh has stated on oath that Jairam Singh was his elder brother and was posted as Assistant Station Master at Darshan Nagar Railway Station, District Faizabad. His son was Akhilesh Singh alias Sanjay Singh and in this incident both of them were murdered. At that time, this witness was a student in Saket College, Ayodhya and was living with Jairam Singh in his Railway Quarter. At that time, Hoob Lal Verma was Station Master, Darshan Nagar Railway Station, Jairam Singh and Hoob Lal Verma were not on cordial terms since prior to this incident. Accused Madhuban Verma was working as waterman at the Railway Station. About one month prior to the incident, accused was beaten by some students of the above noted college and accused was under the impression that Jairam Singh was behind his beating. Accused had told some persons that he would take revenge on Jairam Singh. Accused used to live in the quarter of Hoob Lal Verma even in the night. According to this witness, his brother had returned from Kanpur on 15.11.1976 and had come back from Faizabad Railway Station by cycle at about 10.30 p.m. After taking his meals, he had slept in room No. 1 on one cot. In that room Smt. Indrawati and Akhilesh Singh, wife and son of Jairam Singh, were also sleeping on another cot. The electric bulb was burning in the room and also in the outside verandah. He was sleeping in room No. 2 and there was common door in between the two rooms, which was closed. The electric bulb in his room No. 2 was also burning. At about 12.30 in the night, he woke up on hearing the cries of his sister-in-law (bhabhi) and Akhilesh ''cpkvks cpkvks'' and after opening the common door, he came to room No. 1 and saw that the accused Madhuban Verma and three others, whom he did not know from before, were attacking his brother Jairam Singh. They all had axe. They were giving blows with pansa (rare side) of the axe to Jairam Singh and Akhilesh Singh alias Sanjay Singh and when this witness tried to intervene he was attacked by Madhuban Verma with the pansa of the axe. At that time, Smt. Indrawati opened the outside door of the room and ran shouting towards platform. He saw the accused in the electric light and identified him. On hearing the alarm, raised by Indrawati, other persons also came there. Jairam Singh died at the spot and Akhilesh had received grievous injuries.

At that time, A. P. Jauhari, Assistant Station Master was on duty. The witness wrote the report Ex. Ka-1 and gave it to Bhola and Dayanand, to be given at the Police Station, Kotwali, Ayodhya. He sent the report at about 1-1.15 a.m. Since Akhilesh Singh alias Sanjay Singh was seriously injured and he was also injured, A. P. Jauhari, Assistant Station Master managed to send them for treatment to District Hospital, Faizabad by train. They were admitted there and were medically examined. When the condition of Akhilesh deteriorated he was shifted to Medical College, Lucknow where he died on 22.11.1976.

In the cross-examination, this witness has stated that Hoob Lal Verma used to mark Madhuban Verma present even if he was not on duty and this was the cause of differences between Hoob Lal Verma and his brother Jairam Singh. He does not know whether the Station Master or the Assistant Station Master was entitled to mark his attendance, but his brother did not like this act of Hoob Lal Verma. However, his brother did not want to get any other person appointed. The duty of waterman was to supply water to the drivers of the engines. But Madhuban Verma used to do private work in the house of Hoob Lal Verma. Witness also stated that some students of the above noted college used to board the train from Darshan Nagar Railway Station and he had heard that they had beaten Madhuban Verma. Shobha Pandey, cabiln man and Ram Naresh, porter had told him that Madhuban Verma had declared that he will take revenge for his beating from Jairam Singh. They had told the witness 10-15 days prior to the incident about this threat. However, he did not tell about this threat to his brother Jairam Singh. He also did not enquire about the threat from the accused, as they were not on talking terms. He had no enmity with the accused prior to the incident but was aggrieved because of his threat given to his brother. There was also no enmity between Ambika Verma and Jairam Singh prior to the incident. At the time of writing report, he had suspicion that Ambika Verma, might be behind the incident. The interview for the post of Lecturer in Saidehi Inter College was to be held on 16.11.1976 and his brother Vishwanath Singh and Ambika Verma were the candidates. Vishwanath Singh was suspended 4-5 months prior to the incident by the Principal of Saidehi Inter College. It is wrong to say that Vishwanath Singh was suspended as Ambika Verma was to be appointed in his place. He also denied that the Principal, Saidehi Inter College had filed any criminal case against Vishwanath Singh prior to this incident. It is also wrong that his brother Jairam Singh was doing any pairavi against the suspension of his brother Vishwanath. However, his brother had taken leave and had gone to Kanpur to meet the experts for the interview. When his brother returned to 10.30 p.m., he was awake. His brother went to sleep at about 11 p.m. The electric light was available in the quarter for all the 24 hours at that time. He denied the suggestion that his brother used to put off light at the time of sleep. After hearing the noise, when he reached in room No. 1, his brother was lying dead as a result of the injuries received and the accused Madhuban Verma was beating his nephew Akhilesh Singh alias Sanjay Singh. He was also beaten by the accused. His sister-in-law (bhabhi) went to the Station raising alarm and by the time Ayodhya Prasad Jauhari, Assistant Station Master came, Madhuban Verma had run away. Hoob Lal Verma, Dayanand and Bhola also came thereafter about 15 minutes. He had told Jauhari and Hoob Lal Verma that accused Madhuban Verma had given the blows. He did not mention in his report Ex. Ka-1 that Madhuban Verma beat Akhilesh as he was expecting to know about other assailants also. He also did not mention in the report that the assailants including Madhuban Verma had attacked with pansa of the axe because he was also injured and the dead body of his brother was lying there and Akhilesh Singh alias Sanjay Singh was badly injured and he was in grief. He had told the Investigating Officer that the accused Madhuban Verma had beaten him and his nephew Akhilesh Singh alias Sanjay Singh. He had seen the accused Madhuban Verma beating his nephew Akhilesh Singh alias Sanjay Singh. He was not given the blows by Madhuban Verma but was attacked by his companions. If the Investigating Officer did not mention in his statement that Madhuban Verma had attacked his nephew, it might be because of some influence on him. Sri A. P. Jauhari, the Assistant Station Master had told him that he had informed Ayodhya Kotwali on telephone about the incident. He has denied the suggestion that Vishwanath Singh was reinstated because of the influence of Jairam Singh and his relations with the Inspector of the Schools and on that account, the Principal of Saidehi Inter College, felt humiliated. He did not give such statement to the Investigating Officer. He has denied the suggestion that he and his brother Jairam Singh were annoyed with Madhuban Verma because he was not doing their domestic work. He has also denied the suggestion that he could not identify the assailants and that accused was named due to suspicion after the police had reached the place of occurrence. Madhuban Verma had not covered his face. The other three assailants had tied handkerchief on their forehead.

P.W. 7 Smt. Indrawati has stated on oath that she is wife of deceased Jairam Singh and mother of deceased Akhilesh Singh alias Sanjay Singh. Sri Nath Singh is the younger brother of Jairam Singh. At the time of incident, she was with the husband. Her husband was on one cot. She and her son were on the other cot. At about 12.30 in the night, when the electric bulb was burning, the accused and three assailants had come in the room. Accused Madhuban Verma had axe and other assailants had axe and hammer. She woke up on hearing their ''aahat'' (sound of movement). Accused Madhuban Verma and three assailants started belabouring her husband and she woke up her son Akhilesh Singh alias Sanjay Singh and raised alarm. Madhuban Verma gave axe blows on the head of Akhilesh Singh alias Sanjay Singh and other assailants also attacked Sanjay Singh. Sri Nath Singh, her brother-in-law, came on hearing alarm and he was also attacked. The accused took paper and wristwatch from the suitcase kept on almirah. She opened the door and ran to Assistant Station Master, Jauhari. By the time, she returned with Jauhari, Madhuban and three assailants had run away. Her husband died because of injuries received by him. The condition of Akhilesh Singh alias Sanjay Singh was very critical. Sri Nath prepared a report and sent it to Police Station Ayodhya. Thereafter Akhilesh Singh alias Sanjay Singh and her brother-in-law went to the District Hospital, Faizabad. Sanjay was sent to Lucknow Hospital for treatment but there he died. Madhuban Verma was a waterman at that time and instead of doing his official duty he used to do domestic work of Hoob Lal Verma. Maduban also used to take and bring back the younger daughter of Hoob Lal Verma and it was not liked by her husband who had objected some days prior to the incident. Madhuban Verma was beaten by the students of the college, where her brother-in-law was also a student. Madhuban Verma accused her husband for this beating and had told some persons to take revenge. The paper taken from the suitcase was the attendance sheet.

In cross-examination, she has stated that she does not remember whether she told the Investigating Officer that Madhuban Verma gave axe blows on the head of her son or not. Since she was under grief, she did not tell the Investigating Officer clearly that Madhuban Verma gave axe blows to Akhilesh Singh alias Sanjay Singh but had told that the assailants had beaten him and Madhuban Verma was also one of them. She had told the Inspector that three assailants had kulhari and Hammer. If it has not been written like that, she could not explain. She had told the Inspector that Madhuban Verma was having axe and had attacked with axe. She had also told the Investigating Officers that Madhuban Verma had given blows with pansa of the axe to her husband. If it has not been written, she could not explain. She had also told about the beating of Madhuban Verma by the students of the degree college prior to the incident and if it has also not been written by the Investigating Officer, she could not explain. She also could not explain as to why her statement that the accused Madhuban Verma, accused her husband for his beating, was not written. At the time of the incident, Madhuban Verma was not on duty at Railway Station but he used to live there. Her son Akhilesh Singh alias Sanjay Singh, brother-in-law Sri Nath told her that Madhuban Verma used to say that he had to take revenge from Jairam Singh. She was told by her brother-in-law that accused Madhuban Verma was beaten by students at the Railway Station. Her husband had not objected about the taking of the daughter of Hoob Lal Verma by the accused to the School, in her presence. Her cot was at a distance of about 1-1/2 hands from the cot of her husband. She woke up on hearing the sound of assault and raised alarm and on hearing that alarm Akhilesh Singh alias Sanjay Singh also woke up and after beating her husband, Madhuban Verma had attacked her son Akhilesh Singh alias Sanjay Singh. Besides Madhuban Verma, no other assailants attacked her son. When Akhilesh Singh alias Sanjay Singh was being attacked by Madhuban Verma, she was also on the cot. The blood that came out from the injury of Akhilesh Singh alias Sanjay Singh did not come on her clothes. When Akhilesh Singh alias Sanjay Singh was being attacked by Maduban Verma, she ran towards station. At that time, she did not see Hoob Lal Verma in her quarter. She had gone to sleep at 10-10.30 p.m. and had not put off the light. They used to sleep in burning light. Madhuban Verma had no cover on his face. His companions had tied cloth on their faces. Her husband had no enmity with the Principal of the Saidehi Inter College. She has denied that her husband had any enmity with the Principal. She does not know if her husband had made any efforts to save the service of Vishwanath Singh. She denied the suggestion that Police Inspector Kotwali, Ayodhya made her brother-in-law write the report. She also denied that she could not identify the assailants and that accused was falsely implicated on account of suspicion and enmity. She also denied the suggestion that she did not sleep in the room where the incident took place.

The accused was examined u/s 313, Cr. P.C. He admitted that Jairam Singh was posted as Assistant Station Master and said that he was posted as waterman at the time of incident. However, he denied the rest of the prosecution case. According to him, he was working as seasonal waterman. He also used to do the work for Hoob Lal Verma and was not doing any private work of Jairam Singh and on that account he nurtured enmity with him and has been wrongly implicated in this case. The accused examined Yogendra Pratap Singh, Assistant Station Master, as D.W. 1. He proved the attendance register and stated that Madhuban Verma was appointed on 15.4.1976 and worked till 30.9.1976. He was appointed by Station Master.

Learned trial court after considering the evidence concluded that the prosecution had been able to establish its case against the accused beyond reasonable doubt and the accused alongwith three others had caused injuries to the deceased persons and had also taken away wristwatch and papers. The accused also caused simple injuries to the informant. Consequently, he found the accused guilty and convicted him as aforesaid. Feeling aggrieved, this appeal has been preferred.

We have heard Sri Nagendra Mohan, learned Counsel for the Appellant, learned Additional Government Advocate Sri R. P. Shukla and have perused the material available on record.

In this case, the fact that the incident took place in the night of 15/16.11.1976 at about 12.30 in the railway quarter of Jairam Singh at Darshan Nagar Railway Station, has not been disputed. It is a case of homicide in which two persons lost their lives and one person was injured.

Learned Counsel for the Appellant has contended that the learned trial court has not made proper appreciation of the evidence on record and has erred in convicting him. According to him, the prosecution failed to establish the case against the Appellant. He has also contended that the presence of the prosecution witnesses cannot be accepted. According to him Smt. Indrawati has stated that she was lying on the cot with her son when her son was being attacked, but she did not receive any injury or any blood stains on her clothes and is not probable. Learned Counsel for the Appellant has also contended that if there were four assailants in the room, it is not probable that they would have left the two persons alive to become witnesses against them. Learned Counsel for the Appellant has further contended that as per the prosecution case, the accused had enmity with Jairam Singh and if it was so then his son would not have been attacked and it appears that some other assailants were there and when the son woke up and resisted he was attacked. It is contended that the alleged motive is a weak motive to commit a murder.

Against it, learned A.G.A. has contended that the accused and three others armed with axe came in the room of Jairam Singh and caused injuries to Jairam Singh with pansa (rare side) of the axe and they also attacked Akhilesh Singh alias Sanjay Singh and when the informant came on hearing the cries he was also attacked. He has further contended that electric light was burning there and there was no question of any mistake in identifying the accused, as he was already known to the witnesses. He has also contended that the accused has not been falsely implicated and there is no ground for his false implication. According to the learned A.G.A., if the accused were to be falsely implicated, even Hoob Lal Verma and Ambika Verma could have been made accused, but it is not the case and it shows that Madhuban Verma has been rightly named as an accused since he was present with the three other assailants and actively participated in the incident. Learned A.G.A., has further contended that the presence of the witnesses is natural and probable they being inmates of the house and there is no reason to discard their testimony. Besides P.W. 1 Sri Nath Singh is injured witness.

The incident took place in the night inside the house of Jairam Singh and the inmates of the house that is the informant Sri Nath Singh P.W. 1 and his sister-in-law (bhabhi) Smt. Indrawati P.W. 7 are the natural and probable witnesses and have stated the prosecution case in material details and there is no reason to disbelieve their testimony which has also been corroborated by the medical evidence. Sri Nath Singh is an injured witness and his presence cannot be ruled out. Even no suggestion has been given to these witnesses in their cross-examination, which was made at length, that they were not living in the house or that they were not present at the time of the occurrence or that they did not see the incident. If Smt. Indrawati did not get any injury or blood did not come on her clothes while her son was being given the pansa blows on his head, blows were being given to her son and she had also made him awake, and she had also left the cot and ran out. Again, if the assailants caused fatal injuries to Jairam Singh and his son and two persons Sri Nath Singh and Smt. Indrawati were not given fatal blows, there is nothing improbable in it. The mindset of the assailants, the circumstances as develop and as to how the persons involved react at the spur of the moment, are material. The evidence shows that the accused and other assailants first attacked Jairam Singh. It is probable that when his son awoke, he was attacked. In the meantime, Sri Nath Singh entered in the room and he was also attacked. Finding that Smt. Indrawati had gone out of the room for help, the accused and other left the place. Therefore, if Sri Nath and Smt. Indrawati were not given fatal blows, there is nothing improbable in it.

The learned Counsel for the accused-Appellant has also argued that there was no light and the accused could not be identified. But it has positively come in the statements of these two witnesses that there was supply of electric light for twenty four hours and particularly in the night and that when the incident took place, the electric light was burning. The witnesses have also stated that they were in the habit of sleeping without putting off the electric light. In this connection, learned Counsel for the Appellant has contended that the Investigating Officer had found the broken bulb in the verandah. But in this connection, no attention of the witnesses of the fact or the Investigating Officer has been drawn during their cross-examination and it cannot be said that the bulb in the verandah was broken at the time of the incident. In any case, the accused was seen and identified while he was in the room where the light was burning and, therefore, the broken bulb of the verandah does not help the accused. The accused was already known to the witnesses and there could be no identity problem. The witnesses could not identify the other assailants, as they were not known to them.

The learned Counsel for the Appellant has also made a submission that the witnesses are relatives of the deceased and are interested witnesses. It is correct that they are the relatives of the decease, but simply on this ground their testimony cannot be discarded although it requires close scrutiny. Moreover, a near relation is not likely to substitute a real culprit on account of enmity. A careful consideration of the testimony of these witnesses shows that they were present at the time of the incident and saw the accused committing the crime.

Learned Counsel for the Appellant has contended that there are differences in the statement of the witnesses as given to the two Investigating Officers and as made in the Court. He has also contended that even in the first information report, the informant did not specifically mention that Madhuban Verma caused injuries to the deceased. It is correct that the informant had mentioned in the first information report that four assailants had come and they attacked his brother and nephew and when he tried to save them, he was also attacked and out of those assailants he had identified Madhuban Verma, the waterman and rest were also identified by their faces, although he did not know their names. The statements of Sri Nath Singh and Smt. Indrawati as recorded by the Investigating Officer of Civil Police as well as the C.I.D. show that they did not specifically allege about the beating made by the Appellant Madhuban Verma but in their statements the presence of Madhuban Verma as one of the assailants has been specifically made and in the circumstances, it cannot be said that there is any improvement or change in the version of the witnesses and on this account their testimony cannot be discarded.

Even if there are minor differences or discrepancies, they do not affect the testimony of the witnesses, as it has to be seen in its entirety.

In the case of Leela Ram (D) through Duli Chand v. State of Haryana and Anr. (XL) 2000 ACC 34: 1999 (3) ACR 2390 (SC), it has been held that "be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There is bound to be some discrepancies between the narrations of the different witnesses when they speak on details, and unless the contradictions are of a material dimensions, the same should not be used to jettison the evidence in its entirety.

Learned Counsel for the Appellant has contended that the medical evidence does not support the prosecution case and the injuries could not have been caused by axe. According to him, in the first information report, the informant has not mentioned that the assailants gave the blows with pansa of the axe. In the first information report, the weapon as carried by the assailants has not been mentioned. According to Sri Nath Singh his brother had died as a result of the injuries received and was lying dead in the room. His nephew was seriously injured and he himself was injured and he had written the report before leaving for Faizabad within an hour of the incident. In these circumstances of the case, if the weapon was not mentioned in the first information report, it is not material.

In the instant case, the only recovery of weapon is the wooden portion of the pansa (rare part of the axe). The medical evidence shows that the injuries received by the deceased persons were not incised wounds. They were contused wounds leading to fracture besides the gull. Doctors have stated that the injuries could have been caused by the blunt portion of the axe. Beating of the accused by the students of the College and the controversy with respect to the selection for the post of Lecturer of the brother of the deceased are not such issues, which would lead one to murder the person concerned. That apart, if the accused and others were carrying axe, nothing prevented them from using the sharp portion thereof. From the injuries, it has clearly stated by the doctors that they were not caused by any sharp edged weapon. This being the position, it is not possible to say that the intention of the accused was to commit a murder. It is undoubtedly a homicidal death, but it would come in the exception to take it out from the concept of murder.

In our view, therefore, the evidence on record leads us on the conclusion that it was a homicidal death, but not amounting to murder. The accused is, therefore, entitled to have the appeal allowed in part, and the punishment altered from Section 302 to Section 304, Part II of I.P.C.

P.W. 1, an injured witness Sri Nath Singh has received injuries, which have been categorized by the learned Sessions Judge as also simple injuries. The judgment of the learned Sessions Judge holding the accused to be guilty of causing simple injuries and convicting him u/s 323, I.P.C. will therefore, have to be upheld.

As far as the charge of robbery is concerned, the only evidence is that the lock of a cupboard was broken and perhaps a wrist watch and some papers (attendance sheet) have been found missing. If the attempt was to cause robbery, the accused would not have been satisfied with merely taking away a wrist watch. Besides, there was no recovery of the wrist watch from the accused. It is only a statement of the prosecution witnesses that their wrist watch is missing. The appeal will, therefore, have to be allowed as far as the charge u/s 394, I.P.C. is concerned.

In the circumstances, the appeal is partly allowed. The Appellant is convicted u/s 304, Part II read with Section 323 of I.P.C. He will be sentenced to undergo rigorous imprisonment for seven years u/s 304, Part II and nine months u/s 323 of I.P.C. Both the punishments will run concurrently. The accused is presently in custody. He will undergo remaining part of the punishment after deducting the period already undergone.