Nihali and Bhoore vs State of U.P.

Saroj Bala, J.—The judgment and order dated 21.10.1999 passed by the VII Additional Sessions Judge, Moradabad in Sessions Trial No. 541 of 1990 State v. Devpal and Ors. whereby convicting and sentencing the accused-appellants Nehali and Bhurey for the offence punishable u/s 302 I.P.C. read with Section 34 I.P.C. with rigorous imprisonment for life is under challenge in this appeal.

The facts as unfolded on the record of the case are that on 4.6.1990 Shiv Singh the brother of first informant Dhanpal (P.W.I) having tooth ache was lying in the varanda of Ganga Ram (P.W.2). At about 8.15 P.M. co-accused Devpal alias Sapru (murdered during trial) armed with sword, accused-appellants Nihali with knife, Bhurey with spade and co-accused Mohkam (acquitted after trial) carrying Ballam came at the varanda of Ganga Ram and mounted murderous assault on Shiv Singh. On hearing the outcries of Ganga Ram and Bharat, the first informant and other witnesses reached there and exhorted the accused persons who were subjecting the victim to brutal assault. Accused Devpal alias Sapru showing country made pistol asked the first informant and other witnesses to stay away. The commission of offence was viewed in the light of lamp. The victim succumbed to the injuries at the spot. The motive behind the commission of offence was a quarrel between daughter-in-law of Vir Singh and younger sister of accused Devpal alias Sapru about 20-25 days before and Devpal alias Sapru and his family members had pelted bricks and stones at the informant''s house. The victim had challenged accused Devpal alias Sapru to teach him a lesson and since thereafter the latter used to remain in the look out to harm him. The First Information Report (Ext. Ka-1) was scribed and registered by Head Moharir Akram Ali on 4.6.1990 at 9.45 P.M. at the dictation of first informant Dhanpal (P.W.I). The crime was registered at serial No. 27 of the general diary on 4.6.1990 at 9.45 P.M. by H.C. Akram Ali. The general diary entry was (Ext. Ka-13). The inquest on the dead body was conducted by S.I. Munna Lal Rao. The inquest memo is (Ext. K.a-2). During the course of inquest challanlash (Ext.Ka-7), photolash (Ext. Ka-8), letters to R.I. and C.M.O. (Ext. Ka-9 and Ext. Ka-10) specimen seal (Ext.Ka-11) were prepared. After inquest the dead body was sent to the mortuary. The autopsy on the dead body of Shiv Singh was conducted by Dr. G.P. Agnihotri (P.W.4) on 5.6.1990 at 3.45 P.M. and following ante mortem injuries were found on his person as per postmortem certificate (Ext. Ka-6):

Incised wound 10 cm. x 3 cm. x trachea deep on left side and middle of neck at the level of thyroid cartilage the rings of the trachea are cut.

Incised wound 5 cm. x 2cm. x bone deep on left side of check 4 cm. from chin mandible bone is cut.

Incised wound 4 cm. x 1 cm. x ear cartilage deep vertical in direction in middle of left ear. The ear is completely cut.

Incised wound 3 cm. x 1 cm. x ear cartilage deep vertical in direction 1 cm lateral from injury No. 3 and left ear.

Incised wound 6 cm. x 2 cm. x bone deep on left side of skull behind injury No. 4 and left ear.

6.Incised wound 3 cm. x 1 cm. x bone deep on left side of skull. 4cm. from left ear.

Incised wound 4 cm. x 1 cm. x scalp deep on from of head 8 cm. from the root of nose.

Incised wound 5 cm. x 1 cm. x skin deep on top of right shoulder.

Multiple abrasions 2 cm. x 8 cm. on back of left shoulder and left side of chest and upper arm.

Incised wound 5 cm. x 2 cm. x bone deep upper end of ulna and left lower end of numerous are cut.

Incised wound 5 cm. x 2cm. x skin deep on back of left four arm 4 cm from left elbow.

Multiple abrasions 20 cm. x 9 cm. on back left side over scapular region.

Multiple abrasion 21 cm. x 4 cm. on lateral side of left thigh.

Abrasion 10 cm. x 2 cm. on lateral side of right thigh in middle.

There was fracture of left parital and left side of frontal bones, left humerus and left ulna bone. The death was caused due to multiple injuries on the body leading to hemorrhage and shock.

The responsibility to investigate the crime was entrusted to S.I. Jayanti Prasad Mishra (P.W.5). He visited the place of offence and prepared the memo of lamp (Ext. Ka-4) which was burning at the spot. He prepared the site plan of the place of offence (Ext.Ka-5). He took in the police custody the blood smeared earth, plain earth and blood smeared twisted grass cord from the cot under the memo (Ext. Ka-6). After the interrogation of first informant and other witnesses and completing other formalities he submitted the charge sheet (Ext.Ka-12) against the accused persons.

The committal proceedings were conducted by the Chief Judicial Magistrate who by the order dated 16.8.1990 committed the accused persons to the court of Sessions Judge for standing trial for the offence u/s 302 I.P.C. The accused-appellants, co-accused Devpal alias Sapru and Mohkam were charged for the offence punishable u/s 302 I.P.C. read with Section 34 I.P.C. to which they pleaded not guilty and claimed to be tried.

The prosecution in order to substantiate the charge examined Dhanpal (P.W. 1), Gangaram (P.W. 2), Smt. Ramwati (P.W. 3) within whose full view the commission of offence took place. Dr. G.P. Agnihotri (P.W. 4) conducted autopsy on the dead body. S.I. Jayanti Prasad Mishra (P.W. 5) was the investigating officer.

The trial court after consideration of evidence in details found the accused-appellants Nihali and Bhurey guilty for the offence u/s 302 I.P.C. and sentenced them to rigorous imprisonment for life and acquitted the accused Mohkam. The accused Devpal alias Sapru was murdered during the trial and the case abated against him.

We have heard Shri S.S. Rajpoot, learned Amicus Curie appearing for the appellants, Shri Arunendra Singh, learned A.G.A. and have perused the original record.

The learned Counsel for the appellants submitted that Ramwati (P.W.3) is not named as an eyewitness in the First Information Report and there are material contradictions in the testimony of the eyewitnesses. The incident was committed at night and appellants were falsely implicated. Non-examination of Vijendra and Malkhan named as eyewitnesses in the First Information Report is fatal to the prosecution case. These was no motive for murdering Shiv Singh. The evidence of witnesses with regard to complicity of accused Mohkam having been disbelieved, the prosecution failed to prove the case beyond reasonable doubt.

At the very outset a brief narration of ocular testimony would not be out of place to adjudge the arguments raised by the learned Amicus Curie.

The witness Dhanpal (P.W. 1) is the real brother of the deceased. According to him on the date of incident his brother Shiv Singh went to Chandausi for selling Arhar crop. He had brought medicine for tooth ache and after taking medicine in the evening he was lying in the varanda outside the Dalan of Ganga Ram. At about 8-8.15 P.M. hearing the outcries of Ganga Ram that Shiv Singh was being assaulted he reached at the Dalan of Ganga Ram along with Vijendra, Ramwati and Malkhan. He further stated that accused Devpal alias Sapru was armed with sword, Nihali with knife, Bhurey with spade and Mohkam with Ballam and all the four of them were giving blows to his brother Shiv Singh with their respective weapons. When he tried to save him accused Devpal alias Sapru took out a country made pistol from his fold and threatened to kill him. He gave out that a ''Chirag'' was burning in the Dalan of Ganga Ram in the light of which accused were identified. In his cross-examination he admitted that Ganga Ram was the real uncle of witness Bharat and Bharat was involved in the murder of Devpal alias Sapru. It is there in his deposition that accused Nihali pressed his brother at the cot with one hand and subjected him to assault with knife by other hand. Accused Nihali pressed his legs during the course of the incident and accused armed with sword gave repeated blows. According to him the accused armed with spade had pressed his legs with one hand and was giving spade blows with other hand. He refuted the suggestion that Shiv Singh being a man of bad character was killed sometime at night. He denied that he got information about the incident in the morning and informed the police about it in the morning.

Ganga Ram (P.W. 2) testified that about eight years and three months before at about 8 P.M. he was at his ''Chaupal'' where Shiv Singh was lying on the cot, and a spouted lamp was burning there. After sometime accused Nihali, Mohkam, Bhurey and Devpal alias Sapru came there. Accused Devpal alias Sapru was armed with sword, Nihali with knife, Bhurey with spade and Mohkam with Ballam. All the accused persons caught hold of Shiv Singh. Bhurey caught hold of legs and Nihali caught hold of his hand and rest of the two accused subjected him to assault with their weapons. He gave out that Nihali and Bhurey also mounted assault on Shiv Singh with their respective weapons. In the cross-examination he admitted that his real nephew Bharat was in jail in connection with the murder of Devpal alias Sapru and First Information Report of said murder was lodged by accused Nihali. He gave out that there was light of spouted lamp (Dibiya) and not of lamp at the spot. He stated that investigating officer reached the spot at night and interrogated him. According to him Bhurey and Nihali had caught hold of Shiv Singh whereas two other co-accused subjected him to assault. He further stated that witness Ramwati had inquired about the names of the assailants and he disclosed their names and accused had run away before Ramwati reached there.

Smt. Ramwati (P.W.3) deposed that about eight years and three months before her elder brother-in-law Shiv Singh was lying on the cot in the Dalan of Ganga Ram. At about 8 P.M. hearing the outcries of Ganga Ram she along with her husband Dhanpal reached at the Dalan of Ganga Ram and saw the accused Nihali, Mohkam, Bhurey and Devpal alias Sapru mounting assault on Shiv Singh. Accused Nihali was armed with knife, Devpal alias Sapru with sword, Bhurey. with spade and Mohkam wiih Ballam and all the four were subjecting her brother-in-law to assault with their respective weapons. She stated that accused were seen and identified in the light of spouted lamp burning at the ''Baithak''. In her cross-examination she deposed that her husband Dhanpal was not at his residence at the time of alarm and she did not see him at the time of murder of Shiv Singh. She stated that she had not disclosed anything about the incident to anyone and was disclosing about it for the first time before the court. She deposed that the watchman reached at the spot and went to the police station and police came at night along with him. It is there in her testimony that she was sitting at the spot and her husband Dhanpal was also sitting there. She further stated that her husband talked to the watchman when he came at the spot. According to her she had talked to her husband after the incident and he had enquired about the names of assailants but she did not disclose their names. She gave out that her husband ran away after seeing the assailants.

Before the appraisal of testimony of Dhanpal (P.W.I), Gangaram (P.W.2) Smt. Ramwati (P.W.3) certain facts coming into existence during trial and emerging from the record are worth noticing. Accused Devpal alias Sapru was was murdered and a case u/s 302 I.P.C. was registered on 13.10.1996 against Bharat Singh, the real nephew of witness Gangaram (P.W.2) and two others on the basis of First Information Report of accused -appellant Nihali Singh. The complainant Dhanpal (P.W.I) was murdered in November 1998 and a case u/s 302 I.P.C. was registered at P.S. Kurhtehgarh against accused-appellant Nihali. The examination-in-chief of Gangaram (P.W. 2) was recorded on 4.1.1999 but he was cross-examined more than seven months thereafter and witness Smt. Ramwati (P.W.3) was cross examined two and half months after the recording of her examination-in-chief.

Coming to the question of presence of light to enable the witnesses to identify the accused-appellants who are co-villagers and were previously known to them. The source of light has been mentioned in the First Information Report. The depositions of eyewitnesses reveal the presence of light of lamp. They have described it as Chirag, Dhibri, and Dibiya in their depositions. The investigating officer on his visit at the place of offence same night found a lamp burning at the spot. The English meaning of Hindi language words Deepak, Chirag, Dhibri and Dibiya is lamp or spouted lamp. The source of light finds mentioned in the First Information Report and lamp was found burning at the place of offence by the investigating officer the same night. The description of source of light differently does not belie the presence of light at the spot. There was sufficient light to identify the accused-appellants who were previously known to the eyewitnesses.

The testimony of Dhanpal (P.W. 1) was assailed on the ground of interestedness. The creditability of a witness is not affected because of his relationship with deceased. A relation would not hide the actual assailants and make accusations against an innocent person. The well settled principle of law is that the evidence of related witness is to be scrutinised with care, caution and circumspection. In Dalip Singh and Others Vs. State of Punjab, it was laid down by the Apex Court as under:

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 relative 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 for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with 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.

In the case of Masalti Vs. State of U.P., the Apex Court observed 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 hard-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.

In Lehna Vs. State of Haryana, , it was held by the Apex Court:

We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh case in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses.

Considering the legal position there is no substance in the argument that the witness Dhanpal (P.W.I) being a close relative his evidence should not be relied upon. The witness has categorically stated that his brother was subjected to assault by the accused-appellant Nihali with knife, accused appellant Bhurey with spade, co-accused Devpal alias Sapru with sword and accused Mohkam with a Ballam. His lengthy and searching cross-examination could not yield any fruitful results. His evidence receives corroboration from the medical evidence. As many as eleven incised wounds were found on the person of deceased. Dr. G.P. Agnihotri (P.W.4) stated the possibility of infliction of incised wounds by sharp edged weapons such as spade, sword etc. on 4.6.1990 at about 8 P.M. The witness Dhanpal is the author of First Information Report (Ext. Ka-1), scribed by the Head Moharir at his dictation. The First Information Report was lodged with all promptitude within one and half hour of the commission of offence. He was interrogated by the investigating officer S.I. Jayanti Prasad Mislira the same night. The incident having taken place at 8.15 P.M. his presence at his residence was natural and probable. The manner in which he narrated the incident speaks of his very presence at the spot. His deposition that the accused gave piercing blows with knife and sword does not impair his sworn testimony as the chances of making some embellishments even in cases of honest and truthful witnesses here and there cannot be ruled out. This fact cannot be lost sight of that the evidence of the witness (P.W. 1) was recorded eight years after the commission of offence. The witnesses do make embellishments for fear of their testimony being disbelieved in respect of the main incident.

Much stress was laid by the learned Counsel for the appellants that the witnesses Gangaram (P.W.2) and Smt. Ramwati (P.W.3) having contradicted the prosecution case in material particulars and denied the presence of Dhanpal (P.W.I) the entire prosecution case is to be thrown out. The witness Gangaram and Smt. Ramwati in their examinationinchief have supported the prosecution case stating that the victim was subjected to assault by the accused-appellants and co-accused with sword, knife, spade and ballam. Both the witnesses deposed that the witness Dhanpal reached at the spot on hearing the outcries of Gangaram (P.W.2). The witness Gangaram (P.W.2) being under pressure as his real nephew was in jail for the killing of co-accused Devpal alias Sapru or under some pact with accused-appellants appears to have stated that two accused persons caught hold of Shiv Singh and two others subjected him to assault with sword and Bhurey and Nihali had caught hold of him whereas two others mounted assault. He has supported the prosecution case with regard to date, time, place presence of accused-appellants and co-accused with sharp edged weapons and their participation. He admitted the presence of light at the spot. He admitted his presence at the time of commission of offence. The abovementioned discrepancy appearing in his cross-examination is either deliberate or due to gap of time of eight years between the commission of offence and testimony at the trial.

The witness Ramwati (P.W. 3) in her cross-examination denied the presence of her husband Dhanpal (P.W.I) at the time of incident though she in her examination-in-chief stated having reached the spot along with her husband on hearing the outcries of Gangaram. Her testimony is to be read as a whole and is not to be discarded on the basis of few sentences appearing here and there. Dhanpal (P.W.I) the husband of witness Smt. Ramwati having been killed a few months before her evidence, it is quite probable that she denied her husband''s presence out of fear or under pressure. The Apex Court in the case of S. Sudershan Reddy and Others Vs. State of Andhra Pradesh, has held that ''even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, conviction can be maintained''. Her deposition supports the prosecution case with regard to date, time, place of incident, presence of accused-appellants and weapons used by them.

Having evaluated, tested and sifted the evident of eyewitnesses on the touchstone of probabilities we find that their discrepant statements on certain facts do not prove fatal to the prosecution case which is otherwise trustworthy. The medical evidence supports the prosecution case on all counts. We find no reason to interfere with the finding of fact arrived at by the trial court for holding the accused-appellants guilty for killing Shiv Singh. There is no merit in this appeal,.

The criminal Appeal no, 3007 of ,1999, Nihali and Anr. v. State of U.P. is hereby dismissed. The judgment and order dated 21.10.1999 of the trial court is affirmed. The accused-appellants Nihali and Bhurey are in jail. They shall be kept there to serve out the sentence awarded by the trial court and, affirmed by us.

Certify the judgment to the lower court within a week. The record of the case be also transmitted to the court below immediately. The compliance shall be reported by the Chief Judicial Magistrate Mordabad within four weeks from date of receiving the copy of this order.