Mohar and Another vs State of U.P.

Sema, J.—These two appeals arise out of a common judgment and order passed by the High Court of Judicature at Allahabad dated 15th May, 2000 in Criminal Appeal No. 1659 of 1979 and Government Appeal No. 2819 of 1979. Criminal Appeal No. 1659 of 1979 had been preferred by Baljore (the appellant before us in Criminal Appeal No. 787/2002), who was convicted u/s 302 IPC and sentenced to life imprisonment by an order dated Ist May, 1979 passed by the VIth Additional Sessions Judge, Azamgarh, in Sessions Trial No. 533 of 1977. Government Appeal No. 2819 of 1979 had been preferred by the State of U.P. against the acquittal judgment by the Trial Court acquitting Mohar, Tikori and Tapsi (Mohar and Tikori are appellants before us in Criminal Appeal No. 658 of 2000) for the offences punishable u/s 302, 324 and 323 read with Section 34 IPC. By the impugned judgment the High Court, after examining the evidence on record, dismissed Criminal appeal No. 1659 of 1979 preferred by Baljore and he was convicted and sentenced to imprisonment for life u/s 302 read with Section 34 instead of Section 302 IPC simpliciter, as recorded by the Trial Court. The High Court also allowed the Government Appeal No. 2819 of 1979 by reversing the acquittal of accused Mohar, Tikori and Tapsi, as recorded by the learned trial Judge and convicted each of them under Sections 302, 323 read with Section 34 IPC and sentenced them to undergo imprisonment for life and RI for a period of one year u/s 323 read with Section 34 IPC. The substantive part of sentences were directed to run concurrently. It appears that during the pendency of appeal accused - Tapsi expired and the appeal preferred by him stood abated. Now only the appellants Mohar and Tikori (in Criminal Appeal No. 658/2000) are before us.

Both the accused and the complainants are residents of villageUltahawa Dewara, P.S. Maharajganj, District Azamgarh. Ramraj -- P.W.-1and deceased -- Ram Awadh were also residents of the said village. Towardsthe north of the house of Ram Raj and Ram Awadh, there was anagricultural field of accused - Baljore. There was also an agricultural fieldof deceased Ram Awadh near by. It is stated that in the year 1977 peas cropwas existing in the filed of Ram Awadh and wheat crop was existing in thefield of Baljore.

The murder of deceased Ram Awadh and Hansraj is a sequel to thequarrel between Km. Kamli, daughter of deceased Ram Awadh andTufania, son of accused Baljore on 29.1.1997 while they were picking Kariand collecting grass adjoining their fields. It is stated that the quarrelbetween the two children was pacified by Balli (PW-3) and the childrenretired to their respective houses. When Ram Raj (PW-1) and his brother deceased Ram Awadh were present in front of their houses and Jagarjit(Jagdish) PW-4 son of deceased Ram Awadh was mulching cow in front ofhis door, it is said that accused Tapsi armed with lathi, Baljore, Mohar andTikori armed with spears appeared in front of the house of Ram Raj and onbeing exhorted by accused Tapsi (since expired) Baljore attacked deceasedRam Awadh with spear, accused Tapsi attacked Jagarjit (Jagidsh) with lathi.On arrival of deceased Hansraj accused Tikori and Mohar attacked Hansrajwith spears. Thereafter, the said accused started causing injuries on thedeceased Ram Awadh and deceased Hansraj with their respective weapons.Jagarjit (PW-4) and Ram Awadh (deceased) tired to save themselves byplying Hasuwa (sickle ) and lathi respectively. It is stated that the deceasedRam Awadh sustained injuries inflicted by spear caused by Baljore anddeceased Hansraj sustained injuries caused by Mohar. Jagarjit (PW-4)sustained lathi injuries. On an alarm being raised by Ramraj (PW-1) andinjured persons, Vibhuti (PW-2), Balli (PW-3) and Ayodhya came to thespot and witnessed the occurrence. After the incident, both the injured RamAwadh and Hansraj were taken to Police Station, Maharajganj, at a distanceof about five miles from the place of occurrence, and Ram Raj (PW-1)lodged the First Information Report at about 8.50 p.m. Head Constable,Yadunandan Singh (P.W.6) prepared the First Information Report (Ex. Ka-1)and registered the case vide extract G.D. (Ext. Ka-2) under Sections 232,324 and 307 IPC.

Accused Baljore also lodged written first information of theincident at the Police Station and PW-6 Head Constable Yadunandan Singhprepared the FIR (Ex. Ka-17).

On 30.1.1977, injured Ram Awadh succumbed to his injuries atP.H.C. Maharajganj and on information being received of the death of Ram Awadh, Head Constable Yadunandan Singh, made entries in the GeneralDiary and converted the offence from Section 307 IPC to 302 IPC. SarvdeoSingh (Pw-7), the Investigating Officer visited the hospital and preparedpanchnama (Ex. Ka-6). Thereafter, constable Suresh Prasad (PW-9) tookthe dead body of Ram Awadh to Azamgarh and on the same day at about4.00p.m. Dr. O.P. Khattri PW-11, Medical Officer District Hospital,Azamgarh, conducted post mortem and found the following injuries on hisperson:

"ANTE MORTEM INJURIES

Abrasion 1/2 cm x 1/2 on the right side nose middle.

A stitched wound 2.5 cm long with one stitch on the left ofchest lower part 22 cm from anterior axillary fold.

ON INTERNAL EXAMINATION

Wall-injuries distended under ante-mortem injuries.

Pleura -- punctured on left side as described by antemortem injuries.

Diaphragm on the left side is punctured underneath injuryNo.2

Peritoneum - punctured below injury No.2Cavity contains about one pint blood material with foodmaterial.

Contents, wall perforated (1" x 1/2" x cavity deep) 5" from the pylorous.

Stomach - contains digested material about 4 oz.

The deceased was average built. Rigor mortis waspresent on the dead body. In the opinion of the doctor theinjury No. 2 was caused by pointed sharp edged weaponlike spear. The injury was sufficient to cause death inordinary course of nature. The death occurred as a resultof shock and hemorrhage due to said injuries. The doctorprepared post-mortem report Ext. Ka-15"

As noticed above Accused-Baljore had also filed a crosscomplaint and he also sustained injuries. On examination byDr. V.Pandey (PW-10), the accused sustained the following injuries onhis person;

Punctured Wound 2/10" x 1/10" x 1/10" at the backof left little finger, 1.1/2" below the top of the samefinger.

Construction with swelling 2.1/2" x 2", 8" below theleft elbow, on the left fore-arm, lateral aspect.

Contusion with swelling 2.1/2" x 1.1/2" on the rightupper and outer surface 2.1/2" above the right elbow joint.

Complaint of plain on the right knee joint.

Punctured wound 2/10" x 2/10" on the right of theback of chest 6.1/2" from the right nipple. Wound was notbleeding."

It is also noticed that the counter complaint lodged by Accused-Baljorewas found to be false by the Trial Court as the First Report lodged byaccused Baljore, on 29.1.1977, was stated to be oral. Complaint by theaccused was disproved by Ex. Ka-17. It may be noticed that in Exh. Ka-17,the complainant did not mention the place of incident. In the subsequentF.I.R., in April, 1977, the accused stated that the incident had taken place inhis wheat filed. The learned trial court disbelieved the defence put up bythe accused on the basis of subsequent FIR dated 7.4.1977 (Ex. Ka-2), filedby Baljore. The Trial Court found that the said application had been filedafter a lapse of two months of the incident which was highly belated and theallegation made therein was highly improbable and well an after-though toset up the plea of right of private defence.

On appreciation of the evidence the Trial Court acquitted the appellantsMohar and Tikori by assigning the following reasons:-

(a) In the evidence of Ramraj (PW-1) and Balli (PW-3) the presence of one Jagdish PW-4 at the place ofoccurrence is mentioned but the name of Jagarjit does notfind place in the FIR.

(b) Vibhuti (PW-2) explained that Jagidsh has hisalias (names) as Jagjeet and Jagarjeet, but this statementwas not supported by Ramraj (Pw-1).

(c) Ramraj (PW-1), Balli (PW-3) and Jagdish (PW-4)gave different versions regarding colour of cow whichJagdish PW-4 was said to have been mulching at the timeof occurrence.

(d) Jagdish (PW-4) stated that the prosecution partyplied sickle in order to save themselves but this fact hasnot been mentioned in the FIR and that the puncturedwounds of the accused Baljore and Tapsi could not havebeen caused by sickle.

(e) The injuries sustained by Jagdish (PW-4) were notexamined on the same day but the next day and thedoctor opined that his injuries could be self-inflicted.

Counsel for the appellants strenuously urged that the appellants haveacted in a right of private defence and that for the reasoning as noticedabove, the Trial Court has rightly recorded the acquittal of the twoappellants but the High Court was in error in reversing the acquittal of theaccused on appeal.

We will now proceed to examine the evidence on record. Accordingto the prosecution story Jagdish (PW-4) alias Jagarjit was at the place ofincident mulching cow. In FIR Ramraj (PW-1) stated that at the time ofoccurrence, Jagarjit nephew of PW-1 was mulching cow at the door of thehouse. The learned trial Court disbelieved the presence of Jagarjit at theplace of occurrence as in the cross examination PW 1 stated that PW-4 isalso known as Jagdish alias Jagjit. It is to be noticed that PW-4 Jagidsh hasreceived injuries on his body in the same incident.

The testimony of an injured witness has its own efficacy andrelevancy. The fact that the witness sustained injuries on his body wouldshow that he was present at the place of occurrence and had seen theoccurrence by himself. Convincing evidence would require to discredit aninjured witness. Similarly, every discrepancy in the statement of witnesscannot be treated as fatal. the discrepancy which do not affect the prosecution case materially cannot create any infirmity.

In the instant casethe discrepancy in the name of PW-4 appearing in the FIR and the crossexamination of PW-1 has been clarified. In cross examination PW-1had clarified that his brother - Ram Awadh had three sons: (1) Jagidsh PW-4 (2) Jagarnath and (3) Suresh. This witness, however, stated that Jagarjithad only one name. PW-2 - Vibhuti, however, stated that at the time ofoccurrence the son of Ram Awadh Jagjit @ Jagarjit was mulching cow andhe was also called as Jagdish. Balli (PW-3) mentioned his name as Jagjitand Jagdish. PW-4 also gave his name as Jagdish.

In the injury report he has also given his name as Jagdish . It is notedthat PW-4 has been given different names as Jagdish, Jagarjit and Jagjit butit is not disputed that he is the son of deceased Ram Awadh. Calling PW-4as Jagarjit, Jagjit and Jagdish leads to only of conclusion that he is the sonof deceased Ram Awadh. It is the specific case of the prosecution that sonof deceased Ram Awadh and the nephew of Ramraj (PW-1) was mulchingcow near the door of the house at the time of occurrence. It is nobody'scase that PW-4 Jagidsh was not the son of deceased Ram Awadh. It is acommon knowledge that in the village one name can be called by differentnicknames and by different pronunciations and solely on the ground that thename of PW-4 appeared differently in the FIR and during the prosecutionevidence, his presence at the place of occurrence cannot be disputed, moreso, because he is the one who received injuries on his body as noticed above.

The other reason assigned by the Trial Court, dies-believing thepresence of PW-4 at the place of occurrence, was the colour of the cow saidto have been mulching by PW-4. PW-1 Ramraj stated that the colour of cowwas white, Vibhuti - PW-2 stated that the colour was 'dhawar' and Balli-PW3however, stated its colour as 'sokan'. The different versionsof colour of the cow assigned by PWs cannot be a ground to throw away thepresence of PW-4 on the spot because from the evidence of PWs 1-3, thefactum of PW-4 mulching cow at the place and time of occurrence has beenclearly established. In such a melee witnesses may not be mindful of thecolour of the cow.

The other ground, on which the learned Trial Court disbelieved thestatement of PW-4, is the injuries sustained by the appellant Baljore. In theprosecution evidence it is stated that PW-4 Jagidsh plied sickle in hisdefence. Admittedly accused Baljroe and Tapsi (since dead) sustainedinjuries and also the deceased Ram Awadh, Hansraj and Jagdish (Pw-4).Accused Baljore was medically examined by PW-10 Dr. V.P. Pandey andfound five injuries on his body, as noticed earlier. The Doctor opined that allthe injuries on Baljore were simple. Injury Nos. 1 and 5 were caused bypointed sharp edged weapon and rest by blunt weapon. Counsel for theappellants submits that sickle is not a pointed sharp edged weapon and suchinjuries cannot be caused by sickle and therefore ocular evidence is contraryto the medical evidence and the evidence of prosecution cannot be reliedupon. We are no persuaded to accept the contention made by the learnedcounsel for the appellants, firstly because whether such injuries could because by sickle or not will depend upon the shape and size of the sickle andsecondly, because Dr. Pandey PW-10 in his cross examination has clearlystated that injury Nos. 1 and 5 of accused Baljore could be caused by sickle.

Next it is contended by the learned counsel that Jagidsh PW-4admittedly received injuries on 29.1.1977 but he was examined on 30.1.1977and the injury said to have been sustained by Pw-4 is manufactured, apartfrom, according to the evidence of PW-10 such injury could e self inflicted.Such contention is far-fetched and does not appeal to us at all and deservesoutright rejection.

FIR was lodged on 29.1.1977 itself and it is mentioned in the FIR thatTapsi attacked Jagarjit with lathi. It is noticed that FIR was lodged with noloss of time and, therefore, it cannot be said that since injured PW-4 wasexamined on 30.1.1977, it is manufactured by the prosecution subsequently.

The High Court, on re-assessment of the entire evidence, has come tothe conclusion that the presence of PW-4, at the place of incident is clearlyestablished. The whole case, as already noticed, set up by the accusedside, was rejected by the trial court as highly improbable and the saidfinding was confirmed by the High Court. Both the Trial Court and theHigh Court also found that the accused party was the aggressor.

The High Court, also on re-appreciation of evidence convicted Moharand Tikori. It may be noticed that while acquitting the accused- Tikori, theTrial Court was of the view that P.W.- 1 - Ram Raj has not mentioned Tikoriin his examination-in-chief, instead he mentioned one Kishori. However,P.W.-1, in his cross-examination denied the suggestion that he had notmentioned the name of Tikori in the FIR. He has also denied the suggestionthat the name of the accused-- Tikori was subsequently added. The otherocular evidence of P.Ws., namely, Vibhuti - PW-2, Bali - PW-3 andJagdish - PW-4 have also specifically stated the name of accused -Tikoriand they have not named any accused as Kishori. This apart, in the FIR,PW-1 - Ram Raj has specifically stated Tikori as one of the accused. Soalso the ocular evidence of PWs. - 1, 2, 3 & 4 stated the presence ofaccused persons at the spot with arms and participation of accused Mohar incausing spear injuries to deceased - Hansraj. The benefit of doubt renderedby the Trial Court, in respect of accused - Mohar, Tikori and Tapsi (sincedeceased) runs straight to the teeth of ocular evidence. The High Court onappreciation of ocular evidence of PWs. 1, 2, 3, & 4 and materials on recordhas rightly come to the conclusion that the prosecution has been able toprove the presence and participation of the accused Mohar, Tikori and Tapsi(since deceased) beyond reasonable doubt. The Trial Court acquitted themon the benefit of doubt on tenuous ground.

On perusal of the evidence and materials on record, we have noreason to take a contrary view than the view taken by the High Court.

On right of private defence put up by the accused, as already noticed,the trial court on appreciation of the evidence particularly after consideringExt. K-17; FIR lodged on 29.1.1977; Ex. Kha-2 and FIR filed on 7.4.1977,has come to the conclusion that occurrence originated in front of the houseof deceased Ram Awash and found that the accused party was the aggressorand the prosecution witnesses acted in self defence.

With regard to Criminal Appeal No. 787 of 2000, preferred byBaljore, learned counsel for the appellant fairly submits that there isconcurrent findings of facts. The only contentions of the counsel is that thereis not intention on the part of the accused- Baljore to cause the death of thedeceased and he submits that the conviction of the appellant under Section302 IPC may be converted to the one u/s 304 Part I. On perusalof the evidence on record, we are of the view that this concession is notavailable to the appellant.

For the aforestated reasons these appeals are devoid of merit and theyare, accordingly, dismissed.