Radhey Shyam and Others vs State of U.P.

S.K. Jain, J.—This criminal appeal has been preferred by the appellants under Section 374(2) Cr. P.C. against the judgment and order dated 3181982 passed by learned 7th Additional Sessions Judge, Azamgarh in Sessions Trail No. 192 of 1981, State v. Radhey Shyam and two Ors., whereby the learned Additional Sessions Judge convicted appellant Radhey Shyam under Section 302 I.P.C. and sentenced him to undergo life imprisonment. Appellant Radhey Shyam was also convicted under Section 307 I.P.C. and sentenced to undergo rigorous imprisonment for a period of ten years and to a fine of Rs. 250/ and in default rigorous imprisonment for one year.

Appellants Khurchun and Smt. Dulari were convicted under Section 302 read with Section 34 I.P.C. and sentenced to undergo imprisonment for life. They were further convicted for the offence under Section 307 read with Section 34 I.P.C. and sentenced to undergo rigorous imprisonment for seven years and sentenced to pay a fine of Rs. 100/ and in default of payment of fine a further sentence of rigorous imprisonment for a period of six months was imposed on each of them.

Appellant Khurchun died during pendency of appeal and the appeal stands abated against him vide order dated 245 2007.

The prosecution case in brief is that Samharu and appellant Khurchun were brothers who were litigating in Civil Court over some land. It is further alleged that on 1811981 at 8.00 a.m. in village Zindopur, the first informant Smt. Surati Devi was scavenging the courtyard of her house and her brother Ram Shabd was leveling the floor of his hut. Because of enmity of land appellants Khurchun, Radhey Shyam and Smt. Dulari came there. Appellant Radhey Shyam was armed with a Gandasa (meant for cutting of fodder). The three appellants pounced over Ram Shabd. Appellant Smt. Dulari caught his feet and made Ram Shabd fall on the ground. Deceased appellant Khurchun sat on the chest of Ram Shabd and appellant Radhey Shyam inflicted several Gandasa blows on the neck of Ram Shabd. The occurrence was witnessed by Smt. Surati who raised an alarm and rushed towards deceased Ram Shabd. She was caught by appellant Dulari, who caught her feet and made her fall on the ground. Appellant Radhey Shyam caused her injuries. It is further case of the prosecution that on alarm being raised wife of Kamal Dhari, Smt. Balwanta, Ram Nayan and brotherinlaw of Smt. Surati, Mandev arrived. Man Dev was also assaulted by Radhey Shyam by Gandasa. It is further alleged that Ram Shabd died on the spot and Smt. Surati and Man Dev sustained injuries. Smt. Surati got the report scribed by one Subedar and went to the police station Bardah and lodged the same at 12.10 p.m. The distance between the place of occurrence from the police station was ten miles.

On the basis of this report made by Smt. Surati Ext. Ka1 a chick report Ext. Ka5 was written by P.W. 6 H/C Mulli Lal and case was registered by him in the GD report No. 14 at about 12.10 p.m. as per Ext. Ka6. The two injured namely, Smt. Surati and Man Dev were sent for their medical examination. Their injuries were examined at PHC Thekma. Their injury reports are Ext. Ka2 and Ka3 on the record. PW7 Kamleshwar Pandey who was posted as Station Officer, took up the investigation, recorded the statement of Mulli Lal Head Constable, Surati and thereafter along with constable and one SubInspector went to the place of occurrence, held inquest of deadbody of Ram Shabd prepared its report Ext. Ka8. After sealing the deadbody of Ram Shabd and preparing necessary papers for postmortem sent the same for postmortem to Sadar Hospital, Azamgarh. From the place of occurrence he took the blood stained and ordinary earth into his possession, sealed the same and prepared recovery memo Ext. Ka15 and after preparing the site plan Ext. Ka16, he remitted the chargesheet Ext. Ka17 against the accused persons.

PW2 Dr. N.K. Singh on 1811981 conducted the medical examination of Smt. Surati and found the following injuries on her person :

(1) Incised wound 11 cm x 4 cm x 3 cm on back side of right chest on 10th 11th 12th ribs.

(2) Incised wound 1cm x .5 cm x 2 mm on the right shoulder joint.

(3) Incised wound 2 cm x 1 cm x 1 mm on left hand.

(4) Incised wound 3 cm x 1 cm x 3 cm on the left fore head.

(5) Contusion red in colour 3 cm x 2 cm on sternum in the inter mammory region.

In the opinion of the doctor these injuries were simple. Injury Nos. 1, 2, 3 and 4 were inflicted by sharp edged weapon and injury No. 5 was inflicted by blunt weapon. He further opined that injury Nos. 1 to 4 could be caused by a Gandasa. These injuries were fresh in nature and could be sustained by the injured on the same day at 8.00 a.m. He proved the medical examination report of Surati Ext. Ka2.

On the day of occurrence Dr. N.K. Singh at 1.30 p.m. medically examined the injuries suffered by Man Dev and found the following injuries on his person :

(1) Incised wound 4 cm x 3 mm x 2 mm on the fore head left side 4 cm above left eye brow.

(2) Incised wound 4 cm x 1 cm x bone deep on the left parietal bone 8 cm above left pinna.

In the opinion of the doctor the injuries suffered by Man Dev were simple and were caused by sharp edged weapon like Gandasa used for cutting fodder and were fresh at the time of examination and could be sustained by the injured at 8.00 a.m. on the same day. He prepared medical examination report Ext. Ka 3.

He further opined that the injuries sustained by the two injured were on vital parts of the body and if inflicted with little heavier hand the death was possible. He further opined that the blood had flown out from the injuries sustained by Smt. Surati and if she was not admitted in the Hospital for on e hour more her life could be in danger.

PW3 Dr. Kalka Singh on 1911981 in District Hospital, Azamgarh at 4.45 p.m. conducted the autopsy on the deadbody of Ram Shabd and found the following antemortem injuries on the person of deceased :

(1) Incised wound 20 cm x 4 cm x cervical vertebral bone deep, just below the right side of mandible. The wound was oblique in position tailing towards right side of shoulder. Margins clear cut. Regular bleeding stopped.

(2) Lacerated wound 4 cm x 2 cm x muscle deep on the upper portion on the top of left shoulder, border irregular ragged. Bleeding had sopped.

(3) Lacerated wound 3 cm x 1.5 cm x muscle deep above left ankle joint. Margin ragged, bleeding had stopped.

On internal examination larynx trachea, bronchi, oesophagus cut through and through.

In the opinion of the doctor the deceased had died one and half day earlier from the time of postmortem. He died due to haemorrhage of injury No. 1 and bleeding. He prepared postmortem report Ext. Ka4 at the time of conducting postmortem. According to him injury No. 1 of the deceased was caused by sharp edged weapon like Gandasi.

The prosecution in order to bring home the charges leveled against the appellants examined Smt. Surati P.W. 1, Man Dev P.W. 4, Smt. Balwanta P.W. 5 as witnesses of fact. Dr. A.K. Singh PW2 was examined to prove the injury report of Smt. Surati and Man Dev and Dr. Kalka Singh PW3, who conducted the autopsy of dead body of Ram Shabd. P.W. 6, Head Constable Mulli Lal who prepared the chick report and registered the case as per the G.D. and sent two injured for medical examination. He also took into possession the blood stained Saree and blouse and proved its entry as Ext. Ka7. S.I. Kameshwar Chaubey is the I.O. of the case has been examined as PW7.

The appellant denied the prosecution accusations in toto and stated that they have been falsely implicated in this case. Appellant Dulari stated that she was in her Sasural and has been falsely implicated due to enmity with her father.

Appellant Rahdey Shyam further stated that a dacoity took place and he does not know who committed murder of Ram Shabd.

No defence evidence was adduced.

We have heard learned senior Counsel, Sri. P.N. Misra for the appellants and Sri. S. Kumar learned AGA for the State and perused the record.

Learned Counsel for the appellant has argued that out of three witnesses of fact two are close relatives of the deceased. Smt. Surati is sister of the deceased and Man Dev is brotherinlaw of the deceased. Smt. Balwanta is inimical to the appellants due to litigation between the husband of Smt. Balwanta and the appellants. It is further submitted by the learned Counsel for the appellant that the witnesses are interested and admittedly there was enmity between the appellants and the deceased. It has further been argued by the learned Counsel for the appellant that Smt. Dulari has been falsely implicated in this case due to enmity. She did not go to the place of occurrence with any weapon and it cannot be said that she shared common intention of committing murder of Ram Shabd or causing injuries to Surati and Man Dev. The learned Counsel further submitted that there was no need for Smt. Dulari to catch hold of the feet of deceased or Surati.

Learned AGA submitted that it is the day light occurrence. The injured witnesses have fully supported the prosecution version and the law is settled on the point that the testimony of near relative cannot be rejected on the ground of their being interested. The occurrence took place inside the house of the deceased. The presence of Surati and Man Dev is probable and natural. At the time Smt. Balwanta arrived there hearing the alarm and her statement is also trustworthy. The evidence of three eyewitnesses of fact is full corroborated by the medical evidence on record.

We have given our thoughtful consideration to the respective submissions of the learned Counsel for the parties and perused the record.

In this case, murder of Ram Shabd had taken place in the broad day light in his house and his sister Smt. Surati Devi and brotherinlaw Man Dev suffered injuries. Smt. Surati has been examined as PW1 and her brotherinlaw Man Dev as PW4. Both are the injured witnesses. Deceased appellant Khurchun was the real uncle of Smt. Surati. The deposition of these two injured eye witnesses show that the deceased suffered injuries as per the prosecution version. The injuries of deceased could be suffered by him as per the opinion of the doctor at the time of the occurrence. Similarly the injuries suffered by these two witnesses in the opinion of PW2 Dr. N.K. Singh could be suffered by them at the time of occurrence. Smt. Surati is the real sister of the deceased and Man Dev is her brotherinlaw. Thus, they are closely related but both of them suffered injuries in the alleged occurrence. Where an injured person has seen the real assailants he would normally not let them go and substitute some other person. The presence of injured witnesses on the spot cannot be doubted. They being themselves the victims their testimony can also not be rejected on the ground that they are related to the deceased.

In the case of Avadhesh v. State of U.P., 1994 AIR SCW 4572, it has been laid down by the Apex Court that where the eyewitnesses have received several injuries duly proved by the Medical Officer, the presence of eyewitnesses is fastened on the spot, their presence on the spot cannot be doubted.

In the case of Sushil and Ors. v. State of U.P., 1995(2) JIC 131 (SC) : 1994 (3) Crimes 831 (SC), it has been observed by the Hon''ble Supreme Court that the mere fact that the witnesses are either relatives of the deceased or inimical to the accused by itself is not circumstance to throw away their evidence. The evidence has to be closely scrutinised with care and caution and if found to be consistent and supportable there is no reason to discredit their testimony and it has to be accepted as reliable.

PW1 Smt. Surati who is alleged to have witnessed the occurrence and was injured in the occurrence is daughter of Sumharu Yadav and sister of deceased ram Shabd. She has deposed that at about 8.00 a.m. she was scavenging at the door of her house. She further deposed that there was a dispute between her father and the accused persons over Sahn and the Madai. The deceased appellant Khurchun who was her uncle who had filed a civil suit before this occurrence and on the day of occurrence a commission was to come to inspect the disputed property.

She further deposed that at the time of occurrence her father had gone to his agricultural field and her mother had gone to the house of Chandi Pandit, when deceased appellant Khurchun, appellant Dulari and Radhey Shyam came near the Madai. Radhey Shyam was armed with Gandasa, which is used for cutting the fodder. Khurchun made Ram Shabd fall on the ground. Appellant Dulari caught his feet and pressed. Radhey Shyam murdered Ram Shabd by inflicting Gandasa injuries and cutting his throat. She further states while raising an alarm in order to save her brother she fell upon her brother, hearing her alarm her Jeeja Man Dev, wife of Kamal dhari Balwanta and Ram Narain ran to rescue her. Dulari had caught her feet. Deceased appellant Khurchun set on her chest. Appellant Radhey Shyam by Gandasa tried to cut her into two pieces. When her brotherinlaw reached there, Radhey Shyam caused two injuries by Gandasa on his head.

She has further deposed that her brother Ram Shabd died. She along with Man Dev suffered injuries when her other brother Chandrika came back home she went along with them to Thekma and got the report scribed by Subedar. She was interrogated by Darogaji at the police station. She had been subjected to searching and length crossexamination but nothing could be elucidated from her crossexamination to doubt her testimony. Her testimony is corroborated by her medical examination report.

PW4 is Man Dev., brotherinlaw of the deceased and Smt. Surati. This witness deposed that on the day of occurrence in the morning he was going to Thekma to purchase fertilizer for his fields, his brotherinlaw Chandrika met him and asked him to come to his house for refreshment. He, therefore, reached the house of his fatherinlaw at about 7.00 a.m. and Chandrika left the house after refreshment and this witness laid down on a cot. He further deposed that his father in law Samharu had gone to harvest the sugar cane crop and his motherinlaw had gone to some other place and his sister in law was cleaning the floor and deceased Ram Shabd was leveling the ground floor of the Madai. Thereafter he gave vivid description of the occurrence regarding injuries caused to deceased Ram Shabd, Smt. Surati and to him. This witness was also subjected to lengthy crossexamination but in vain. Nothing could be elucidated to suggest that he has any reason to falsely implicate the accused persons in this case. He suffered injuries in the occurrence and his statement is corroborated by his medical examination report.

The last witness of fact is Smt. Balwanta. Her house is towards east of the house of deceased appellant Khurchun. She has also corroborated the prosecution story as stated by Smt. Surati and Man Deo. It has come in her evidence that when she reached the place of occurrence, the appellants were causing injuries to Ram Shabd and Ram Shabd was almost dead.

The motive of crime as unfolded in the prosecution story that a litigation was going on between deceased appellant Khurchun and Samharu Yadav, the father of the deceased. Appellants Khurchun and Samharu Yadav were real brothers. As per statement of PW1 on the day of occurrence a commission was to visit the place of occurrence. Therefore, the appellant Khurchun along with two other appellants came there and committed this crime.

We find no reason to disbelieve the testimony of the three eyewitnesses, which is corroborated by medical evidence on record and their presence at the place of occurrence and at the time of occurrence is natural and probable. The two witnesses, namely, Smt. Surati and Man Dev suffered injuries in the occurrence. The injuries suffered by them are not superfluous, therefore, their presence cannot be doubted. Their statement right from the time of lodging FIR up to the time of trial has been consistent. We are, therefore, of the opinion that appellant Radhey Shyam has been rightly convicted under Section 302 I.P.C. and sentenced for imprisonment of life and no interference regarding his conviction is called for. It is also clear from the evidence on record that Radhey Shyam caused incised wound 4 cm x 3 mm x 3 mm on the fore head left side 4 cm above left eye brow and incised wound 4 cm x 1 cm x bone deep on the left parietal bone of Man Dev. These injuries caused by him to Man Dev are on vital parts of his body and he also caused injuries to Smt. Surati. Thus his conviction under Section 307 I.P.C. and sentenced awarded under this section also does not call for interference by this Court.

Appellant Khurchun died during pendency of appeal.

Now coming to the role assigned to appellant Dulari. It appears from the evidence on record that she was unarmed. It has also come in the evidence that she caught hold of the feet of deceased Ram Shabd, when appellant Radhey Shyam caused injuries to him. It has further come in evidence that she caught the feet of Smt. Surati when appellant Radhey Shyam caused her injuries. Thus role assigned to her is of catching feet of the deceased and injured Surati.

It has come in the evidence that the deceased appellant Khurchun had climbed on the chest of Ram Shabd when Radhey Shyam caused him injuries and again Khurchun sat on the chest of Smt. Surati when appellant Radhey Shyam caused her injuries. Learned Counsel for the appellant has argued that when ram Shabd had fallen on the ground and Khurchun had sat on his chest, there was no need of any body catching hold of feet of Ram Shabd and again when Khurchun had sat on the chest of Surati there was no need of catching feet of Surati. It has also been argued that it is unnatural for Radhey Shyam and deceased appellant Khurchun to take Smt. Dulari who is daughter of accused appellant Khurchun and real sister of appellant Radhey Shyam alongwith them when they came to the house of deceased Ram Shabd to commit his murder.

Learned Counsel for the appellant has contended that Smt. Dulari has been falsely implicated in this case because her father had enmity with the family of the deceased. Her presence at the time of occurrence at the place of occurrence is highly doubtful. She has stated in her statement under Section 313 Cr. P.C. that at the time of occurrence she was in her Sasural and has been falsely implicated in this case due to enmity between her father and the deceased.

In view of above by way of abundant caution, we are of the opinion that participation of Smt. Dulari and her presence at the place of occurrence at the time of occurrence is doubtful and her false implication in the case can not be ruled out. We, therefore, set aside conviction of appellant Dulari under Section 302 read with Section 34 I.P.C. and sentence of life imprisonment. We also set aside her conviction and sentence passed by learned Additional Sessions Judge under Section 307 read with Section 34 I.P.C. She is acquitted of the said two charges.

The appeal is partly allowed while upholding the conviction and sentence of appellant Radhey Shyam under Section 302 I.P.C. and sentence of life imprisonment therein and his conviction under Section 307 I.P.C. and sentence of rigorous imprisonment for a period of ten years and fine of Rs. 250 and indefault rigorous imprisonment for one year. We set aside the conviction and sentence of appellant Smt. Dulari under Section 302 read with Section 34 I.P.C. and Section 307 read with Section 34 I.P.C.

Let a copy of this judgment be sent to the Sessions Judge concerned for compliance within a week. The compliance report be submitted within a month from today.