Mangal and Another (In Jail) vs State

R.N. Ray, J.—This appeal has been preferred by these two Appellants who have been found guilty by Sri S.C.M. Tripathi, learned IVth Additional Sessions Judge. Shahjahanpur under Sections 302/34, I.P.C. and 323/34 and the learned Additional Sessions Judge was pleased to sentence each of them by his order dated 1.10.1983 in S.T. No. 28/83, to suffer imprisonment for life u/s 302/34, I.P.C. and six months'' R.I. u/s 323/34, I.P.C. Both the sentences were ordered to run concurrently.

The prosecution case in brief is that there was a pacca road from Jalalabad to Shahjahanpur through the town Kanth. In the township by the side of the road, there are shops on both sides of the road and on the east side of the road, there is one liquor shop which was shown as ''Sharab Bhatti'' in the site plan, (Ext. Ka-16). There is no dispute regarding the liquor shop.

On 5.11.1982, the deceased Babu Ram and Ram Nath and the prosecution witnesses (P.W. 1) Rama Dhin, (P.W. 3) Ram Roop and (P.W. 4) Vishwa Nath had come to Shahjahanpur and the same day both of them boarded in a bus and the bus reached its destination Kanth at about 6.30 p.m. They got down from the bus and took tea at the bus-stand and by 8 p.m. they proceeded to their home and on the town Kanth they reached at the liquor shop. All the three accused were present at the shop. Accused Mangal and Majid purchased liquor. There was a petromax burning at the shop. Babu Ram deceased went to the shop and purchased the liquor. Abuses started exchanging between Babu Ram and the accused persons. Ram Nath went to the shop in aid of Babu Ram. Babu Ram restrained the accused from making the abuses. All the accused were armed with Kanta, lathi got up and attacked Babu Ram and Ram Nath. They assaulted and caused hurts to both of them on the road. Vishwa Nath came forward to rescue the injured and he was also beaten. Both Babu Ram and Ram Nath sustained injuries and fell down on the spot and they succumbed to the injuries, P.W. 1 Rama Dheen, P.W. 3 Ram Roop and P.W. 4 Vishwa Nath witnessed the incident of assault committed by the accused persons. Ram Dularey saw both Babu Ram and Ram Nath lying on the spot. He scribed the report of the occurrence that is, Ext-Ka-1 in the light of the petromax. Ram Dularey went to the police station alongwith Vishwanath and lodged the report. On receipt of the report, Head Moharrir, entered it, (Ext. Kl-2) at about 9.45 p.m. He also made relevant entries in the G.D., carbon copy of the G.D. is Ext. Ka-3. Sri Rajesh Chandra Sharma (P.W. 5) was entrusted with the investigation of the case. He started the investigation soon after the case was registered. He interrogated informant Ram Dularey and the injured Vishwa Nath at the police station. He reached the spot at about 10.30 p.m. The investigating officer took into possession and inspected dead bodies of the deceased Babu Ram and the deceased Ram Nath. He conducted inquest proceedings and completed other formalities regarding the despatch of the dead bodies to mortuary at Shahjahanpur for post-mortem examination; inquest report is marked Ext. Ka-4, diagram of dead bodies Ext. Ka-5, police forma 13 & 33 were marked as Ka-6 and Ext. Ka-7. On 6.11.82, the Investigating Officer inspected the place of occurrence, and prepared the site plan of the spot (Ext. Ka-16). He found blood on the spot and took into his possession blood stained and plain earth from the two places from the spot. He sealed them separately and prepared two separate memos, Ext. Ka-17 and Ka-18. He also found sandal of the deceased Ram Nath lying near his dead body and took it into his possession and sealed it and prepared Ext. Ka-19. He also raided and searched the house of the accused persons but they were not found. He prepared separate memos Ext. Ka-20, 21 & Ka-22 about the search. On 6.11.1982 at about 3 a.m. Dr. B.P. Sharma, M.O., District Hospital, Shahjahanpur, (P.W. 7) examined Vishwa Nath and found the injuries on his person. Dr. Satya Pal, Surgeon, District Hospital, Shahjahanpur conducted autopsy on the dead body of the deceased Babu Ram at 3.30 p.m. and on the body of deceased Ram Nath at 4.30 p.m. He prepared the post-mortem examination report Ext. Ka-25 regarding Babu Ram and Ext. Ka-26 in respect of Ram Nath deceased. The Doctor found that the injuries were ante-mortem in nature and due to those injuries, both the deceased persons died and also opined that in the ordinary course, those injuries were sufficient to cause death.

The accused persons were committed by the learned Magistrate to the Court of Sessions.

The learned trial court framed charged u/s 302/34, I.P.C. and 323/34, I.P.C. against the accused persons. The accused persons pleaded not guilty and claimed to be tried.

The prosecution examined in all 8 witnesses. (P.W. 1) Rama Dheen, (P.W. 2) Ram Dularey, (P.W. 3) Ram Roop, (P.W. 4) Vishwa Nath, (P.W. 5) Rajesh Chandra Sharma, S.I. and I.O., (P.W. 6) Dr. Satya Pal, Surgeon, District Hospital, Shahjahanpur and Dr. B. P. Sharma, M.O., District Hospital, Shahjahanpur, (P.W. 7) and (P.W. 8) Dhirendra Singh, Police Constable, who filed affidavit. The Deputy Superintendent of Police Sri B. B. Singh has been examined as court witness. Among the prosecution witnesses evidence offered by Ram Dularey, S.I. Rajesh Chandra Sharma, Dr. Satya Pal, Dr. B.P. Sharma and the police constable Dhirendra Singh were the formal witnesses in nature. Ram Dularey has stated that on the material date he was present at his house at the village. About 8.45 p.m. Vishwa Nath, Ram Roop and Rama Dhin came and conveyed the incident to him. On receipt of the information he at once proceeded to and came at the spot. He saw the dead bodies of both the deceased persons in a petromax-light. The wounds of the deceased were bleeding. He scribed report of the occurrence, Ext. Ka-1, on the spot. He took the report and filed it at the police station. The part played by the I.O. Rajesh Chandra Sharma and the Medical Officers Dr. Satya Pal and Dr. B.P. Sharma in the case has been indicated above. The police constable Dhirendra Singh stated in his affidavit that on 6.11.1982 he brought the dead bodies of both the deceased Babu Ram and Ram Nath with seals intact to the mortuary at Shahjahanpur. He produced and Identified the dead bodies before the Medical Officer at the time of post-mortem examination.

Rama Dhin claimed to know all three accused Mahesh, Mangal and Majeed, Both deceased Babu Ram and Ram Nath and the injured Vishwa Nath. He deposed that on the fateful day he and Babu Ram came to Kanth on a bus from Shahjahanpur. Ram Nath, Vishwa Nath and Ram Roop met them at Kanth bus station. They all proceeded and reached near the liquor shop in the town. There was a petromax burning. Accused Mangal began to abuse the deceased Babu Ram. Babu Ram asked him not to abuse. Thereupon Mangal accused armed with Kanta and Majeed with lathi attacked upon Babu Ram and Ram Nath and assaulted them. Vishwa Nath rushed to rescue the victims. He also sustained injuries at the hands of the accused persons and fell down. They all ran to the house of Babu Ram at the village and told the father of Babu Ram that Babu Ram was killed.

Ram Roop has deposed that on the material date he had come to Shahjahanpur, while he was returning to the village, Rama Dhin, Vishwa Nath, Ram Nath and Babu Ram met him at Shahjahanpur bus station. They all came to Kanth by bus. All of them got down from the bus at 7 p.m. at the bus station. On the way they reached at the liquor shop at 8 p.m. A petromax was burning there at the liquor shop. Accused Mangal and Majeed and one another were seen at the liquor shop. Accused Mangal and Majeed began to abuse Babu Ram. On the objection of Babu Ram, Mangal who was armed with Kanta and Majeed armed with lathi got up and attacked Babu Ram and Ram Nath. Mangal and Majeed attacked both Babu Ram and Ram Nath by means of Kanta and lathi on the road. Vishwa Nath came to rescue them from accused persons and he was also beaten by the accused persons. Deceased Babu Ram and Ram Nath sustained injuries and fell down. Ram Roop, Bishwa Nath and Rama Dhin ran to the village Kamalnainpur and told about the occurrence to Ram Dularey. Ram Dularey immediately set out for the spot.

(P.W. 4) Vishwa Nath stated that he went to Shahjahanpur and on that day at about 5.30 p.m. he reached Shahjahanpur but station on his way back to home. Babu Ram, Ram Nath and Rama Dhin met him at the bus station. They all came to Kanth on bus. They got down from the bus at the bus station and took tea. At about 8 p.m. All of them proceeded towards home and on the way they reached at the liquor shop at town Kanth. The shop was open and there was a petromax burning, Mangal and Majeed were at the shop. Mangal and Majeed began to exchange abuses with Babu Ram. Ram Nath went in aid of Babu Ram. Majeed and two others were armed with Kanta and lathi and attacked Babu Ram and Ram Nath. He came forward to rescue the victims and was also assaulted by means of lathi. Babu Ram and Ram Nath sustained injuries and fell down. They all at once reached the village Kamalnainpur and told about the incident to Ram Dularey. Ram Dularey filed a report of the occurrence at the police station. He was interrogated at the police station and the police sent him to the District Hospital for medical attention.

In this case the accused persons did not adduce any evidence in their defence. From the statements recorded u/s 313, Code of Criminal Procedure, it appears that the defence wanted to impress upon the Court as they had animosity with the police and police got them falsely involved in the alleged incident. They did not dispute that the deceased persons died due to the injuries on their persons, but they disputed their involvement in the alleged occurrence. It has been argued that there was no motive to commit such an offence, so the prosecution story should be looked into with due suspicion. The accused persons were staying at the liquor shop and abusive languages were being exchanged between Babu Ram and the accused persons and when Ram Nath tried to interfere, the accused persons got further enraged and as they armed with Kanta and lathi, started assaulting Babu Ram and Ram Nath and when Vishwa Nath wanted to resist them, he was also assaulted. Both Babu Ram and Ram Nath sustained injuries which resulted to their death. When there is direct evidence, we do not think that motive has any important factor to play. It has been contended by the learned Counsel for the Appellants that the F.I.R. was prepared on deliberations much later on, most probably next morning and was made ante-time. In support of his submission, it has been contended that non-mentioning of the name of accused Mahesh in a wireless message sent by the local police to the District Police Officers and also omission on the part of the Investigating Officer to enter crime number in some of the papers prepared by him during investigation should be taken into due consideration. Statement of Ram Roop and conduct of prosecution witnesses in not reporting the matter to the police station situated at a short distance from the place of occurrence should not be lost sight of. As per prosecution case, thereafter, they went to the house of Ram Dularey and reported him of the incident. So, it should be held that it was against the normal course of human conduct. Ext. Ka-1 has been brought on the record at the instance of defence. In wireless-message, it was mentioned that Mangal and Majeed committed murder of Babu Ram and Ram Nath. However, non-mentioning of the name of Mahesh accused was not of great importance for assessing the prosecution story. The learned court below had assigned reasons for not placing much reliance upon the said copy of the message. The reasons assigned by the learned court below should not be accepted as correct. Contentions made above do not appear convincing. Moreover, non-mention of the name of Mahesh in a message per se cannot be held fatal for the prosecution story. The I.O. has admitted on oath before the learned court below that crime number was not mentioned in some papers prepared by him i.e. in the Exts. Ka-6, Ka-8, Ka-11 and Ka-14 due to mistake. Learned Counsel for the Appellants submitted that those papers themselves spoke out that the F.I.R. was ante-time and it was concocted at the instance of some interested persons. However, on the contrary, on scrutiny of the evidences of the I.O., we think that it was a mistake on the part of the I.O. for not noting the crime number in certain papers during investigation. As there was no positive suggestion or any material which could show that the I.O. had animosity with the accused persons, so his evidence should not be discarded so lightly.

The evidence of the Investigating Officer should not be brushed aside simply because he is a police officer, if otherwise, his evidence have been characterised of a trustworthy witness. In this regard, we have placed reliance on the judgments in State of Kerala Vs. M.M. Mathew and Another, ; State of Gujarat Vs. Raghunath Vamanrao Baxi, and also Mahadeo Vs. The State, . The later decision of the Hon''ble Supreme Court followed the decision of the Supreme Court as in Aher Raja Khima Vs. The State of Saurashtra, .

The evidence of I.O., if taken into consideration, alongwith the other evidences of the eye-witnesses, then we do not find any material of worth to disbelieve the I.O. as he failed to note crime number in some of the documents during the course of his investigation and it was admitted by him in his cross-examination, that it was a mistake on his part. In this matter, however, we can have guidelines from the decisions as in The State of Bihar Vs. Basawan Singh, .

From the evidences of the doctor Satya Pal (P.W. 6), who held the post mortem examination, it was clear that the injuries sustained by the deceased were ante-mortem in nature and would be inflicted by the weapons which were claimed to have been used by the eye-witnesses. The doctor has also opined that those injuries were in the ordinary course could result in death and both the victims died of coma caused by ante-mortem injuries sustained by them. After the incident when Babu Ram fell down being assaulted by the accused persons, eye-witnesses rushed to the house of Ram Dularey son of the deceased, and informed him of the incident. Ram Dularey was their village-man and the conduct of the said eye-witnesses was not contrary to the ordinary course of human conduct. Vishwa Nath (P.W. 4) was an injured person, his presence at the time of occurrence should be believed as he had sustained injuries in the manner stated by him and his evidences do not suffer from infirmities. It was to be borne in our mind that these eye-witnesses had no previous enmity with any of the accused persons and there cannot be any reason to implicate them falsely. Non-mention of he name of Mahesh in the wireless message cannot, in any way, be held to be highly prejudicial to prosecution story. Evidences of the eye-witnesses including the injured eye-witness (P.W. 4) Vishwa Nath remained althrough unshaken and each eye-witness corroborated the other witnesses in material particulars. In the circumstances, we do not find anything to hold that the prosecution failed to bring home charges against all the accused persons beyond reasonable doubt. As such we concur with the findings of the learned court below and the order of the sentences as passed by the learned court below are hereby affirmed.

In the result, the appeal fails and is dismissed. Bail bonds are cancelled. The C.J.M. concerned is directed to take the accused persons into custody and sent each of them to jail to serve out the sentences as passed by the learned Sessions Judge. Shahjahanpur. The material exhibits shall be disposed of as per rules. Accused Appellants be given benefit of Section 428, Code of Criminal Procedure.