Niwas Rai and Others vs State of U.P.

S.B. Singh, J.—1. The present appeal assails the accuracy of the verdict dated 02.08.1983 passed by IInd Additional Sessions Judge, Basti in Session Trial No. 293 of 1982 (State Vs. Sri Niwas Rai and others) arising out of Case Crime No. 173 of 1981, under Sections 147, 148, 302, 149 IPC, P.S. Mahuli, District Basti, whereby the appellants/accused Sri Niwas Rai, Jeet Bahadur Rai, Mukti Nath Rai, Ravindra Rai, Ram Chandra Pandey, Prahalad Pandey, Ram Palat Pandey, Sachchida Nand Pandey and Sadanand Rai have been convicted under Sections 302/149 and 148 IPC and each of them has been sentenced to undergo imprisonment for life under Section 302/149 IPC and to rigorous imprisonment of two years under Section 148 IPC. By the same judgement appellant/accused Ram Dularey Rai has been convicted under Section 302/149 IPC and 147 IPC and sentenced to undergo imprisonment for life under section 302/149 IPC and to rigorous imprisonment of one year under Section 147 IPC.

The prosecution version, in brief, is that accused Sachchida Nand Pandey, Ram Chandra Pandey and Prahlad Pandey are real brothers and Ram Palat Pandey also belongs to the same family. Accused Ravindra Rai and Jeet Bahadur Rai are nephews of accused Sri Niwas Rai. Accused Mukti Nath Rai and Ram Dularey are ''pattidars'' (co-sharers) of accused Sri Niwas Rai. Accused Sadanand is son of the brother-in-law of Abhimanyu, brother of accused Sri Niwas Rai. Sadanand is resident of Bansgaon, District Gorakhpur. Rest of the accused and complainant Gopalji Rai are residents of Village Sakhi, Police Station Mahuli, District Basti. It is alleged that long ago a criminal case of ''mar-peet'' was litigated between father of the complainant Gopalji Rai and one Satyadeo Rai, brother of accused Sri Niwas Rai. Prior to the above case, Ram Naresh Rai, uncle of the complainant, had also lodged a case of theft against Satyadeo Rai. Thus, there was long-standing enmity of litigation between the two parties. To cap it all, a couple of weeks before this incident, Satyadeo Rai @ Chhutai Rai and others were convicted by the Court of Sessions under Section 307 IPC for attempt to murder Pandit Awadhesh, resident of village Sakhi and a close friend of complainant''s father Mahadeo Rai and were imprisoned. Sri Niwas Rai (brother of Satyadeo Rai) harboured the impression that Mahadeo Rai was instrumental for this conviction. This motive led to the commission of this dastardly and cold-blooded double murders.

In the intervening night of 13th and 14th November, 1981 at about 10.30 P.M. deceased Mahadeo Rai and his son complainant Gopalji Rai were sleeping in ''verandah'' of their ''Ghari'' on separate beds and their servant Ram Surat Yadav was also sleeping there on the ground. The complainant''s brother Satyapal, his mother and other family members were sleeping inside the house. A lantern was kept lighted and hanging by a ''dasa'' (a supporting beam) in the verandah. Accused named above, came at the door of complainant Gopalji Rai armed with gun, country made pistols and pistol. Deceased Mahadeo Rai and complainant Gopalji Rai were alarmed on hearing the sound of arrival of accused. Sri Niwas Rai was armed with a pistol, Sadanand Rai, Mukti Nath Rai, Sachchida Nand, Ram Palat Pandey, Prahlad Pandey, Ram Chandra Pandey and Jeet Bahadur Rai with country made pistols. Ravindra Rai with a gun and Ram Dularey with a torch. Sri Niwas Rai, Sadanand Rai, Mukti Nath, Sachchida Nand and Ram Palat Pandey surrounded the complainant and his father, whereas the remaining accused went to the house of Nand Kumar through a lane. A lantern was also kept lighted in the ''verandah'' of Nand Kumar where he was sleeping. Indra Jeet and Janhavi Rai were also sleeping in the said ''verandah'' by the side of deceased Nand Kumar. On the arrival of the accused, Nand Kumar got up but was shot dead by them. The complainant''s mother and his brother Satyapal had also come out on hearing the tumult. Satyapal escaped and set fire to the pile of straw heaped towards the north-east of the complainant''s house and to another heap of straw towards north-west of the house of Sachchida Nand. On hearing the sound of gun shots, witnesses Kaushal Rai, Matabadal and Prabhakar Rai and others rushed to the spot. On hearing the sound of gunshots fired at Nand Kumar, the accused who had surrounded the complainant and his father Mahadeo Rai attempted to shoot at Mahadeo Rai twice from the pistol but both the shots missed. Sadanand Rai also fired at Mahadeo Rai from his country made pistol. In the meantime, all the five accused returned from the house of Nand Kumar to the ''Ghari'' of the complainant and Ravindra Rai fired two shots at Mahadeo Rai from his gun and he succumbed to his injuries instantaneously. Before that when the accused had surrounded the complainant and his father, they were entreating the accused to forbear but the accused did not relent. The witnesses identified the assailants in the light of the lantern and of the burning piles of straw. A written report of the incident was scribed by Jagdish Rai, son of Paras Rai resident of the same village as narrated by the complainant Gopalji Rai. The FIR was registered at the Police Station Mahuli at 8.30 A.M. in the morning of 14.11.1981.

The case was investigated by Sub-Inspector Sri K.N.M. Tripathi, Station Officer of the Police Station and autopsy of the corpses of Nand Kumar Rai and Mahadeo Rai @ Lalji Rai was performed by Dr. A.P. Singh, Medical Officer, District Hospital Basti. After completion of the investigation the accused were chargesheeted and tried by the Sessions Court, Basti.

To bring home the guilt of the accused, the prosecution examined as many as ten witnesses. P.W. 1 Gopalji Rai is son of deceased Mahadeo Rai, who was sleeping beside his father at the time of incident and he had submitted the written report Ext Ka-1. P.W. 2 Indrajeet Rai is brother of deceased Nand Kumar and he was sleeping near him in the ''verandah''. PW 3 Janhavi Rai is resident of the same village and he is a relation of deceased Nand Kumar. PW 4 Awdhesh Prasad is a witness of motive. PW 5 Jagdish Rai is scribe of the written report Ext Ka-1. PW 6 Raghupat is resident of same village who has proved the memo Ext Ka-2 prepared in respect of lanterns; memo Ext. Ka-3 regarding recovery of ashes of straw; memo Ext. Ka-4 regarding recovery of pellets; memo Ext Ka-5 regarding recovery of two empty cartridges and tiklies and memo Ext. Ka-6 ''supurdaginama'' of the mattress, pillow, bed sheet and bedstead of the deceased Nank Kumar; memo Ext. Ka-7 ''supurdaginama'' of the mat, mattress, bedsheet, blanket, pillow and bedstead of deceased Mahadeo Rai; memo Ext. Ka-8 regarding recovery of plain and blood stained soil from the places where Mahadeo Rai and Nand Kumar were done to death; memo Ext. Ka-9 regarding recovery of those wearing apparels and beddings of the two deceased which were splashed with blood. He has also proved Ext. Ka-10 and Ext. Ka-11 which are Inquest Reports of the two deceased. P.W. 7 Head Constable Jayanti Lal, who was Head Moharrir of the Police Station Mahuli on 14.11.1981, has proved the Chik Report Ext. Ka-12 and G.D. Ext. Ka-13. P.W. 8 Amla Prasad was posted as constable on 14.11.1981 in the police station. He accompanied the Station Officer to the spot and with the help of constable Ravindra Singh carried both the corpses for autopsy. P.W. 9 Sub-Inspector K.N.M. Tripathi investigated this case. He inspected the spot on 14.11.1981 and prepared a site plan Ext. Ka-20; prepared Inquest Reports Ext.Ka-10 and Ka-11, recovery memo Ext. Ka-14 regarding blood-stained clothes of deceased Nand Kumar; photo of the corpse of Nand Kumar Ext. Ka-15 and form No. 13 Ext. Ka-16; memo Ext. Ka 17 regarding blood-stained clothes of the deceased Mahadeo Rai @ Lalji Rai and Photo of his corpse Ext. Ka-18 and form No. 13 Ext. Ka-19; ''supurdaginama'' of the two lanterns Ext. Ka-2; memo of recovery of ashes of straw Ext.Ka-3; memo of recovery of four pellets from near the corpse of deceased Nand Kumar Ext. Ka-4. The witness has also prepared and proved Ext. Ka-5, Ka-6, Ka-7, Ka-8 and Ka-9 as detailed in the evidence of P.W.6 Raghupat. The Investigating Officer has proved that after receiving autopsy reports, he completed the investigation and submitted chargesheet Ext.Ka-21.

PW 10 Dr. A.P. Singh performed autopsy of both the corpses. He has proved autopsy reports of Nand Kumar and Mahadeo Rai Ext. Ka-22 and Ka-23. He found the following ante mortem injuries on the person of deceased Nand Kumar:-

Gunshot wound of entry 9 cm x 6 cm x trachea deep right side face and neck 6 cms in front of right ear 4 cms lateral to right side angle. Mouth margin inverted. Blackening and charring present around the wound, wound directed medially down wards right to left under skin. Right mandible broken in multiple pieces and muscles, tissue, vessels and trachea oesophagous badly lacerated. One small pellet, one large metallic pellet, six wading pieces recovered in the body.

Exit guns shot wound 6 cm x 5 cm x trachea deep, on left side neck 8 cm, below the left ear margin inverted this injury communicates to injury No. 1 under neck muscle, tissue and large vessels badly lacerated.

Gun shot wound of entry 3 cm x 2 cm x trachea deep margin inverted blackening present directed medially and slightly downwards right to left underneath, soft tissue and large vessels lacerated.

Gun shot wound exit 2 cm x 1.5 cm x trachea deep left side neck 6 cm below the left ear margin inverted, the injury communicates to injury No. 3.

Lacerated wound 6 cm x 3 cm x muscle deep front of left forearm lower part 5 cm above the left wrist blackening present around the wound.

Lacerated wound 3 cm x 2 cm thigh on distal under phalangeal joint.

Lacerated wound 3 cm x 3 cm x muscle deep on middle of left middle finger 0.5 cm proximal enter phalangeal joint.

Lacerated wound 1 cm x 1/2 cm x muscle deep at the base of left ring finger.

He found the following ante mortem injuries on the person of Mahadeo Rai:-

One wound of entry 7 cm x 6 cm x brain deep rt. side forehead involving right eye brow and right eye, margin inverted blackening and charring present around the wound directed medially backwards.

One wound of entry 3 cm x 2 cm x brain deep on right side one 5 cm below the right ear blackening and charring present around the wound margin inverted direction medially upward.

Abrasion 6 cm x 5 cm back of chest 16 cm above the hip.

Abrasion 3 cm x 1 cm left side front of abdomen 6 cm above the umbilicus.

L.W. 2 cm x 2 cm through and through at distal upper phalanx and left little finger.

Lacerated wound 3 cm x 1 cm on inner part of left ring finger 3 cm above dorsum base of finger.

Accused pleaded innocence and stated that they have been implicated falsely due to enmity with the complainant party. The factors of enmity as described in the prosecution version are admitted to the accused.

Upon consideration of the evidence and material on record, the trial Court arrived at the conclusion that the prosecution has proved the guilt of accused to the hilt and convicted and sentenced the accused as mentioned above.

We have heard Sri V.P. Srivastava, learned Senior Counsel assisted by Sri Dilip Kumar for the appellants and Sri Saghir Ahmad, learned AGA for the State and cautiously scrutinised the evidence and material on record as well as the impugned judgement.

PW 1 Gopalji Rai is son of deceased Mahadeo Rai and at the time of incident he was sleeping near his father on a separate bed. His presence at the time of murder of his father is natural. Likewise PW 2 Indrajeet Rai, is brother of the deceased Nand Kumar and he was also sleeping near Nand Kumar on a separate bed. Thus, his presence at the time of attack on Nand Kumar cannot be doubted. PW 3 Janhavi Rai is resident of the same village. He does not belong to the family of Nand Kumar. According to this witness, he and deceased Nand Kumar both are related to one Gopeshwar Rai resident of village Deehghat, Gorakhpur and both of them had to go there early next morning to participate in a ''Brahmabhoj'' (thirteenth day ceremony after death) and Nand Kumar had called him to sleep at his house and to accompany him early in the morning, and therefore, he was sleeping in ''verandah'' of Nand Kumar at the time of incident. All the above three eye witnesses of the occurrence and all the accused except Sadanand Rai are resident of the same village and well known to each other. Accused Sadanand Rai is related to accused Sri Niwas Rai and was known to the witnesses from before the occurrence. All the three eye witnesses mentioned above have given a consistent and convincing description of the participation of the accused in the commission of this double murder along with date, time and place. There is a clear and precise mention of the names of the accused, the weapons held by them, the manner of assault, specific roles of the accused and motive for the crime. Despite searching cross-examination nothing has been elicited to affect their veracity.

P.W. 4 Awadhesh has proved that one Kedar Pandit was his relation and as Kedar Pandit was issueless he used to take care of him and of his land. Satyadeo Rai, brother of accused Sri Niwas Rai fabricated a forged sale deed of the land of Kedar Pandit in his favour. He instituted proceedings of cancellation of the sale deed and of prosecution under Section 420 IPC and the deceased Nand Kumar had appeared as a witness for the prosecution. Subsequently, Stayadeo Rai and others had attempted to murder him and were prosecuted under Section 307 IPC resulting in their conviction. Deceased Mahadeo Rai @ Lalji Rai was his friend and protector. Thus, a strong motive for elimination of Mahadeo Rai and Nand Kumar has been proved as well as admitted to the accused.

It is established by ocular evidence on record that a lantern was kept lighted in each ''verandah'' where Mahadeo Rai and Nand Kumar were sleeping. There is specific evidence that complainant''s brother Satyapal set ablaze two heaps of straw, one situate towards the north-east of the complainant''s house and the other towards north-west of the house of Sachchida Nand. Thus, there was sufficient light at the time of the incident to facilitate identification of all the assailants as the villagers are accustomed of identifying their acquaintances even in the light of lantern. Therefore, the possibility of any error in identification is ruled out.

The ocular testimony is strengthened by the medical evidence on record. It is manifest from the evidence of PW-10 Dr. A.P. Singh that both the deceased Nand Kumar and Mahadeo Rai succumbed to their ante mortem gunshot injuries on vital parts triggered from a close range.

The learned counsel for the appellants submitted that the First Information Report is inordinately delayed as the incident occurred at 10.30 p.m. and crime was registered next day at 8.30 a.m. It is noteworthy that after the double murder there must have been a reign of terror in the village. PW 1 Gopalji Rai has explained that after the incident he could not muster courage to go to the police station out of fear. The explanation is plausible.

The next contention on behalf of the appellants is that FIR is ante-timed and was scribed after the Investigating Officer had reached the scene of occurrence because the distance of the Police Station from the place of disaster is mentioned as 10 miles in the first information report, whereas in the Inquest Reports it is 20 kilometers. It is submitted that the discrepancy would not have occurred if the FIR were registered before preparation of the Inquest Reports and in that situation the distance in both the documents must have been identical. In this regard, it has to be mentioned that the difference between 10 miles and 20 kilometres is approximately four kilometres and it is quite probable that the I.O. mentioned the distance in the Inquest Reports on the basis of his own guesswork instead of copying the same from the FIR. Moreover, there is no reason to disbelieve the cogent evidence of P.W. 1 Gopalji Rai on this issue.

Learned counsel for the appellants further contended that PW 3 Janhavi Rai is resident of the same village and it is unnatural and improbable that he was sleeping in the house of Nand Kumar simply because he had to accompany him in the morning for attending a social occasion at village Deehghat, Gorakhpur. The contention appears to be correct. But it does not alter the conclusion arrived at by the trial Court because the testimony of PW 1 Gopalji Rai and PW 2 Indrajeet Rai corroborated by medical evidence is sufficient to establish the guilt of the accused to the hilt. The presence of P.W. 1 Gopalji Rai and P.W. 2 Indrajeet Rai at the time of occurrence cannot, by any stretch of imagination, be disputed because they are very natural witnesses.

The next argument advanced by the learned counsel is that PW 1 Gopalji Rai has deposed that Mahadeo Rai sustained four firearm injuries but the postmortem report discloses only two gunshot injuries and thus there is a conflict between the ocular evidence and the medical evidence. A perusal of the postmortem report of Mahadeo Rai makes it vivid that there are two gun shot wounds of entry, two abrasions and two lacerated wounds on his person. PW 10 Dr. A.P. Singh has not expressed any definite opinion that the two lacerated wounds can not be caused by firearms. Thus, the possibility of the two lacerated wounds having been caused by firearms cannot be excluded. Medical science is not perfect, and therefore, it cannot specify the cause of every injury with arithmetical exactitude.

The Hon''ble Apex Court in the cases of Abdul Saeed Vs. State of M.P., , (2010) 10 SCC 259 and Mahmood Vs. State of U.P., , AIR 2008 SC 515 has propounded that as per Section 45, Evidence Act, a doctor is a medical expert. It is well settled that medical evidence is only an evidence of opinion and it is not conclusive and when oral evidence is found to be inconsistent with medical opinion, the question of relying upon one or the other would depend upon the facts and circumstances of the case. If the direct testimony is reliable, the same cannot be rejected on hypothetical medical evidence and the ocular evidence, if reliable, should be preferred over medical evidence. Opinion given by a medical witness (doctor) need not be the last word on the subject. It is of only advisory character. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion.

It has been vehemently canvassed by the learned counsel for the appellants that the prosecution has not examined the independent witnesses i.e. Kaushal Rai, Matabadal and Prabhakar Rai, who were allegedly present on the spot at the time of incident and on the contrary only inimical and related witnesses have been examined and their tainted testimony is unworthy of credence. The Hon''ble Apex Court in the cases of (1) Dilawar Singh vs. State of Harayan , (2015) 1 SCC 737, (2) Dhari vs. State of U.P., , AIR 2013 SC 308 and (3) Ramesh Harijan Vs. State of U.P., , (2012) 5 SCC 777 has propounded that the enmity of the witnesses with the accused is not a ground to reject their testimony and if on proper scrutiny, the testimony of such witnesses is found reliable, the accused can be convicted. However, the possibility of falsely involving some persons in the crime or exaggerating the role of some of the accused by such witnesses should be kept in mind and ascertained on the facts of each case.

Regarding the independent witnesses, the Hon''ble Apex Court in the cases of (1) Kripal Singh vs. State of Harayana, , AIR 2013 SC 286, (2) Sandeep vs. State of U.P., , (2012) 6 SCC 107 and (3) Mano Dutt and Another vs. State of U.P., , 2012 (77) ACC 209 (SC) has propounded that if a witness examined in the court is otherwise found reliable and trustworthy, the facts sought to be proved by that witness need not be further proved through other witnesses though there may be other witnesses available who could have been examined but were not examined. Non-examination of material witness is not a mathematical formula for discarding the weight of testimony available on record, however natural, trustworthy and convincing it may be. It is settled law that non-examination of eye-witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of pen. Court can convict an accused on statement of sole witness even if he is relative of deceased and non-examination of independent witness would not be fatal to the case of prosecution.

Further the learned counsel for the appellants has submitted that the I.O. has not mentioned the scorched condition of the ground at the places where heaps of straw were set ablaze; scorching and blackening of the Aonla tree; blackening of the walls of nearby houses and marks of blackening on the walls where the lanterns were hanging. In this regard, it is pertinent to mention that PW-1, Gopalji Rai has stated that burning of the heaps of straw did not blacken the walls and the Aonla tree was not scorched; the heap of straw was at a distance of 4-5 steps from the house of Sachchida Nand and hence the flames did not leave any impact on the walls; there was no blackening mark on the wall where the lantern was hanging in his ''verandah'' because the lantern was hanging by a ''Dasa'' (a supporting beam, wire or rope), and therefore, there was no blackening mark on the wall. PW 1 Gopalji Rai admitted that there was blackening mark of lantern on the wall of the ''verandah'' where Nand Kumar was sleeping at the time of the occurrence. PW 2 Indrajeet Rai also confirmed that there was blackening where the lantern was lighted in his ''verandah''. The Investigating Officer had not mentioned these facts. That is an omission on his part but the same does not lead to any consequence and the evidence of the eye witnesses is conclusive. Omission on the part of Investigating Officer is just an irregularity or deficiency in the investigation. The Hon''ble Supreme Court in the cases of (i) State of Karnataka Vs. Suvarnamma, , (2015) 1 SCC 323 and (ii) Hema Vs. State, , 2013 (81) ACC 1 (SC) (Three Judge Bench) has settled that any irregularity or deficiency in investigation by Investigating Officer need not necessarily lead to rejection of the case of the prosecution when it is otherwise proved. The only requirement is use of extra caution in evaluation of evidence. A defective investigation cannot be fatal to prosecution where ocular testimony is found credible and cogent.

Lastly the learned counsel for the appellants has argued that one Nagendra Rai was a dreaded desperado of the area and he harboured a suspicion that Mahadeo Rai was an informer of the Police, as Nagendra Rai and his companion threw the guns of two constables in his village, and therefore, he killed Mahadeo Rai and Nand Kumar. This is only a wishful thinking devoid of any concrete substratum. Neither there is any testimony to substantiate it nor any circumstance to suggest preponderance of probability.

No other point has been highlighted before us nor mentioned during the course of argument.

The conscience of the Court is convinced of the commission of the crime by the culprits before us and the judgement of the trial court is perfectly correct and the appeal is sans merit.

The appeal against appellants Nos. 2, 3, 4, 6, 7 and 9 namely Jeet Bahadur Rai, Mukti Nath, Ravindra Rai, Prahlad Pandey, Sadanand Rai and Sachchida Nand is sans merit and deserves to be dismissed and is hereby dismissed. The conviction and sentence awarded by the trial Court against the appellants/accused Jeet Bahadur Rai, Mukti Nath, Ravindra Rai, Prahlad Pandey, Sadanand Rai and Sachchida Nand is confirmed.

So far as the appellants/accused Sri Niwas Rai, Ram Palat Pandey, Ram Dularey and Ram Chandra Pandey are concerned, they have expired during the pendency of this appeal and the same has abated against them vide order dated 21.5.2012.

The appellants Nos. 2, 3, 4, 6, 7 and 9 namely Jeet Bahadur Rai, Mukti Nath, Ravindra Rai, Prahlad Pandey, Sadanand Rai and Sachchida Nand shall surrender before the trial Court immediately to serve out the sentence awarded by the trial Court.

The copy of the Judgment and entire record be transmitted back to the learned trial court for compliance.