Ram Kumar @ Bhulli vs State of U.P.

S.S. Tiwari, J.—Heard learned Counsel for the appellant and Sri. K.N. Bajpai learned Advocate for the State and perused the records.

This appeal has been preferred by the appellant Ram Kumar @ Bhulli, S/o Jagannath, R/o Laukahan Khera (Bhagna Khera) a6aiust the judgment and order dated 22.1.2001 passed by learned Additional Sessions/Judge, Fatehpur in S.T. No. 221 of 1999 under section 302 IPC, P.S.Kalyanpur, DistrictFatehpur by which appellant has been convicted and sentenced to undergo life imprisonment.

The prosecution story in brief unfolded by the prosecution is that on 29.5.1999 at about 12:30 p.m. Ram Sumer Kewat came to the house of Ram Kumar and opened fire to kill Ram Bhawan, and his brother who were sitting at the residence of Ram Kumar @ Bhulli but the fire discharged by Ram Sumer Kewat hit the wife of Ram Kumar @ Bhulli on her head and she was seriously injured. Ram Bhawan and his brother chased Ram Sumer Kewat. In the meantime Ram Kumar @ Bhulli having a country made pistol hurriedly went towards the house of Ram Sumer Kewat to kilt his wife and children and while on way he met with Nanki the wife of Ram Sumer Kewat, he shot her dead and thereafter he went to the house of Ram Sumer Kewat and shot dead his younger son Rajesh who was sleeping inside the house. This incident was seen by the children of Ram Sumer Kewat and other persons of the village.

Dharmraj resident of the same village got prepared a written report of this incident by one Satyendra Singh Chauhan and submitted it at the police station Kalyanpur, on the basis of which a criminal case at Crime No. 98 of 1999 was registered against Ram Kumar @ Bhulli Kewat under section302 IPC. Police reached the spot subsequently prepared inquest report and other connected papers relating to the dead bodies of Nanki and Rajesh were got prepared and the sealed dead bodies were sent for post mortem to the district hospital, Fatehpur. During investigation the Investigating Officer recovered a country made pistol and a cartridge from the personal search of accused and after completing the investigation the Investigating Officer submitted chargesheet against accused Ram Kumar @ Bhulli under section302 IPC and under section25 Arms Act.

After supplying copies of relevant prosecution papers the case of accused appellant was committed to the Court of sessions for trial by CJ.M, Fatehpur,

Charges were framed against the accused Ram Kumar @ Bhulli under Section302 IPC and under section25 Arms Act. The accused did not plead guilty to the charges framed against him and claimed to be tried.

The prosecution examined PW1 Ram Asrey, PW2 Ram Kumar, PW3 Dharmraj, PW4 Rishi Singh, PW5 Ram Kishore, PW6 Vishram, PW7 Rampal, PW8 Ram Chandra, PW9 Bhuli, PW10 Dr. Harish Chandra Srivastava, PW11 Head Constable Krishna Kumar Singh, PW12 Rajendra Singh, PW13 Ramesh Chandra, PW14 Mohd. Irshad, PW15 Raja and PW16 Aruna Devi in support of the prosecution story.

The accused Ram Kumar @ Bhulli has denied the prosecution story in his statement under section 313 Cr.P.C and stated that Ram Sumer Kewat had caused fire arm injury to his wife and in his defence he falsely implicated the accused. He further stated that the witnesses Raja and Aruna Devi were not present in the village on the date of incident. The accused was not present on the spot as he had gone for the treatment of his injured wife to the hospital.

In defence he has examined Ram Swaroop @ Dauwa as DW1 and Raja Ram S/o Mangli as DW2. A certified copy of the FIR relating to Case Crime No. 98A of 1999 under section307 IPC registered at P.S. Kalyanpur was also filed.

The prosecution has examined PW1, PW2, PW3, PW4, PW15, and PW16 as witnesses of fact. PW5, PW6, PW7, PW8 and PW9 are the witnesses of inquest report. PW10 has been examined to prove the post mortem report of the deceased whereas PW11, PW12, PW13 and PW14 are the police witnesses who have been examined to prove the registration of the criminal case at the police station and investigation of the case.

P.W.l Ram Asrey has stated that about six months ago the wife and son of Ram Sumer were killed. Who killed them he does not know, PW1 has been declared hostile and in crossexamination, he has admitted that he belongs to the community of Ram Kumar. He has denied that his statement was ever recorded under section 161 of Cr.P.C.

PW2 Ram Kumar son of Chandrika has also become hostile. He has admitted in his statement that about 56 months ago, the wife and son of Ram Sumer were killed. According to him, he was not present in the village at the time of murder and he does not know as to who killed them. He has also denied his statement '' under section161 of Cr.P.C.

PW3 Dharmraj has also not supported the story of the prosecution. He had submitted written report at the police station on the basis of which case was registered. According to PW3, about six months ago people of the village were shouting that murder had taken place. On hearing the shouting, he had gone to police station. He did not submit any written report at the police station and it was the police S.I. who had obtained his signatures on a blank paper. PW3 has identified his signatures on Ext. Ka.l. In crossexamination, he has denied that his statement was recorded by the Investigating Officer under section 161 Cr.P.C.

PW4 Risht Singh has stated that about 78 months ago, the wife and son of Rain Sumer were murdered in the village. After hearing the noise of their death, he had gone to Laukahan Khera. Police SubInspector had arrived at the spot and blood stained and plain earth was taken from the spot and memo was prepared. He has admitted his signatures on the Fard Ext. Ka. 2 and Ext. Ka.3

PW5 to PW8 have proved the inquest report.Ext. Ka.4 and Ext. Ka.5 by identifying their signatures on it.

PW9 Bhulli son of Chandrika has given hearsay evidence stating that after four days of incident, he had heard about the murder of the wife of Ram Sumer and his son Rajesh.

PW10 Dr. Harish Chandra Srivastava, has stated that on 30.5.99, he was posted as pathologist in District Hospital Fatehpur and he conducted the post mortem examination on the dead body of a lady wife of Ram Sumer on 30.5.99 at 3 P.M. According to P.W.10 the dead body was brought by constables Mohd. Irshad and Ram Saran of Police Station Kalyanpur. The age of the deceased was about 40 years and death had occurred about one day before. Blood stains were present over face. Abdomen distended greenish discoloration was seen over whole abdomen. Faecal matter was coming out from anus, blackening of left half of left palm with finger was present. Rigor mortis was presently only on lower extremities he found following antemortem injuries on the dead body of the deceased Smt. Nanki:

Firearm wound of entry 7.5 cm. x 3 cm. x 4 cm. deep with inverted margins on mouth lower face and upper part of front of neck. There was blackening all around the wound as well as left side face upto left eye region and eye brow, underlying mandible bone was fractured, larynx missing, underlying blood vessels were lacerated and missing. Tongue was missing. On internal examination he found the brain and left lung pale, small intestine had gas and liquid and large intestine had faecal matter and gas. According to him the death had occurred due to the injuries caused to her before death and due to shock and hemorrhage. He has further stated that at about 3.45 P.M. he conducted the post mortem on the dead body of Rajesh, who was aged about 5 years and had expired about one day earlier. Rigor mortis was present over lower extremities only. Dr. Harish Chandra Srivastava has further stated that he found the following antemortem injury on the dead body of Rajesh:

Firearm wound of entry and exit both were present on mouth Hand right side face and right side front of neck 9 cm. x 7 cm. x 3 cm. In depth. Margins were inverted on mouth and adjoining part of face. There was wound of exit with everted margin on right side face, right front of neck well connected with wound of entry, underlying muscles and blood vessels were lacerated and mandible bone fractured and missing. There was blackening of whole face and upper part of front of right side neck too.

On internal examination of deceased, the Doctor found that brain and left lung were pale, heart empty and small intestine had gas and large intestine had faecal matter and gas. According to him the deceased had died due to injuries caused to him before death, as a result of shock and hemorrhage. He has further opined that the injuries found on both the deceased could be caused by country made pistol on 29.5.99 at 12.30 P.M.

PW11 is Head constable Krishna Kumar Singh, who has proved it chek FIR Ext. Ka.8 and copy of G.D, Ext. Ka. 9. He has further proved cnik FIR. of case crime No. 101 of 1999 under section 25 Arms Act as Ext. Ka.10 and copy of G.D. As Ext. Ka. 11.

PW12 is the Investigating Officer. On 25.5.99 he was posted as Station Officer at P.S. Kallyanpur, had started investigation of case crime No. 98/99 under section 302 of I.P.C. During investigation, he had copied the F.I.R. and G.D. in his case diary. He had recorded statement of Dharmraj and Head Moharrir Krishna Kumar Singh and made inspection of the spot. He had taken statements of Shiv Baran, Ram Kumar Kewat, Bhuili, Ram Asrey and prepared site plan Ext. Ka.12. He has further stated that he prepared inquest reports of the dead bodies of Rajesh and Nanki Ext. Ka.4 and Ext. Ka.5. He has further proved the papers including the post mortem report, letter to C.M.O., letter to R.I., photo nash, challan nash which are Ext. Ka.13 to Ext. Ka. 20 respectively. He has also proved the Fard Ext. Ka. 2 and Ext. Ka. 3. He recorded the statements of witnesses of FardPanchayatnama. On 2.6.99 he arrested the accused at 8.30 in the night near QST Factory at Bindki Station Road and a country made pistol and a live cartridge was recovered from his possession. He has proved its recovery memo Ext. Ka. 21. The recovered fire arm and cartridge were sealed and accused along with articles recovered were taken to the police station and a case was got registered against him under section 25 of Arms Act. He has proved the chargesheet Ext. Ka.22. He has further stated that case crimeNo. 101/99 under section 25 of Arms Act was investigated by S.I. Ramgopal. P.W. 12 has proved siteplan Ext. Ka. 23, chargesheet of case crime No. 101/99 under section 25 of Arms Act Ext. Ka. 24 and Sanction accorded by District Magistrate Fatehpur Ext. Ka.25.

PW13 Ramesh Chandra has proved the chik F.I.R. Of crime No. 101/99 under section 25 of Arms Act Ext. Ka. 10 and copy of G.D. Ext. Ka.11.

PW14 Constable Mohd. Irshad is the witness of recovery of fire arm and cartridge from the accused and of his arrest. He has stated that on 2.6.1999 Ram Kumar @ Bhuili was arrested on Station Bindki Road near QST factory and a country made pistol along with one cartridge was recovered from his possession. Articles recovered from his possession were sealed on the spot and Fard Ext. Ka. 21 was prepared on the spot. He had signed the recovery memo. In crossexamination, P.W. 14 has admitted that the country made pistol and cartridge recovered from the accused are not available in the Court.

Heard the learned Counsel for the appellant and learned A.G.A. for the State and perused the record.

It is submitted at the bar that lodging of F.I.R. itself has not been proved as the scribe of the written report has not supported it. The prosecution has failed to prove its story by independent and reliable witnesses. The learned Court below has relied upon the evidence of the child witnesses namely PW15 and PW16 who are the children of the deceased and they are not reliable, they are tutored witnesses, their presence on the spot at the time of the alleged occurrence is doubtful. Recovery of the country made pistol has also not been proved, there was no motive with the appellant to commit this crime. There are material contradictions in the evidence produced by the prosecution.

On the other hand learned A.G.A. has argued that there is no material contradiction in the evidence adduced by the prosecution. The oral evidence has been fully corroborated by the medical evidence. The child witnesses are reliable witnesses, their mental capacity to depose in the Court has been tested by the learned Court below before recording their evidence. There was a strong motive for commission of the crime by the appellant.

As regards the contention raised by the appellant that written report and F.I.R. are doubtful documents, as the scribe has not supported the submission of the written report at the police station, it is fabricated document with the help of police, a perusal of the written report Ext. Ka.1 shows that an information regarding the commission of the crime including the name of the appellant as assailant of the wife and son of Ram Sumer and the weapon used has been mentioned in it and on the basis of this written report FIR was registered at the police station on the same day at it 15:15 pm. Considering the distance between the place of occurrence and the police station it cannot be said that there is undue delay in lodging the FIR regarding the incident. PW3 Dharamraj is said to have submitted written report at the police Station. Though he has denied it in his evidence in the Court but he has admitted his presence at the police station on that day and he also admits putting his signature on a blank, paper which he has identified as Ext. Ka.1. Considering the entire statement of this witness it appears that he has deliberately given such in the Court afterwards as there was no justification for his presence at the police station on that day and for signing a blank paper at the police station. It is also worth to mention that the facts mentioned in Ext. Ka. 1 are not presumed to be in the knowledge of police officials by that time. The police had come in motion just after lodging of this report at the police stationed investigation was started on the same day. Thus there is no substance in this contention of the learned Counsel for the appellant.

It has also been argued that the prosecution story is not supported by oral and medical evidence. In this regard a perusal of the evidence on record shows mat PW15 and PW16 have fully corroborated the prosecution story and they have replied all the questions put them by defence Counsel at length in the Court. A perusal of evidence adduced by these two witnesses reveals that nothing could be extracted by the defence so as to disbelieve the evidence given by these witnesses with regard to the incident. Particularly regarding the place of occurrence, weapon used in commission of the offence and name of the accused. The contention of the appellant that they are child witnesses and should not be believed, is not tenable. These witnesses cannot be disbelieved because they are child witnesses. Both these witnesses have supported each other. The variations and contradictions in their evidence are minor and negligible, they are very natural witness. Their presence on spot is not doubtful. The appellant has placed reliance on Dharam Dass and another v. The State, 1989 Alld Crl. Cases 316 and argued that without corroboration by independent witness the testimony of child witness should not believed. The Apex Court following the case of Mohammad Sugal Esa Mamasan Rer Alalah v. King observed in the matter of Rameshwar Kalyan Singh v. State of Rajasthan that there is not legal bar in accepting the uncorroborated testimony of a child witness yet prudence requires that Courts should not act on the uncorroborated evidence of a child whether sworn or unsworn. The same view was reiterated in the case of Raja Ram v. State Considering the evidence in present case, it is clear that PW15 and PW16 supported each other.

The medical evidence fully corroborates the oral evidence. The weapon alleged to have been used in commission of this crime stated by these witnesses has been fully supported by the medical evidence. The oral evidence adduced by witnesses of fact is fully corroborated by the medical evidence particularly with regard to the use of weapon, nature and place of injury and other material particulars on the point.

It has also been argued by the learned Counsel for the appellant that no independent witness has supported the prosecution story. The record reveals that prosecution has examined PW1, PW2 and PW3 as independent witnesses in support of the prosecution case but they have not supported the prosecution case and they have been declared hostile on the request of the prosecution. The learned A.G.A. has argued that the witnesses belong to the same village and by passage of time they have been won over by the accused appellant. These witnesses have supported the prosecution case regarding the death of deceased persons on that date in the village. Considering the fact that accused belongs to the same village the contention that no independent witness has supported the prosecution story is not fatal to the prosecution as no independent person wants to strain his relations with his covillagers and neighbours. There is no legal bar in accepting the, prosecution case without evidence or independent witness. The only requirement is that the evidence available on record should be trust worthy, cogent and unblemished.

It has also been argued that the country made pistol has not been produced in the Court hence an adverse inference should be drawn against the prosecution case. The learned Court below has discussed this aspect in the impugned judgment at length. The witnesses have fully supported the prosecution case to the extent that the wife and son of Ram Sumer were killed by firing shots by country made pistol by the accused Ram Kumar @ Bhulli on the aforesaid date, time and place. Recovery memo of the fire arm has been proved by PW10 as Ext. Ka. 21 on record. So only nonproduction of country made pistol in the Court below does not belie the entire prosecution case. At the most the charge under section25 Arms Act can be said to be not proved against the accuser and he has already been acquitted on that charge.

It has also been argued at the bar that accused appellant Ram Kumar @ Bhulli had no motive to commit this crime nor he was present on the spot at the time of alleged occurrence as he had gone with his injured wife for her treatment at Rewari. The prosecution story reveals that Ram Sumer went at the residence of accused with a country made pistol and fired a shot at Ram Bhawan and his brother who were sitting inside the house of accused but that fire hit the wife of accused appellant on her head and she was badly injured. Ram Bhawan and others chased Ram Sumer who ran away and in the meantime accused Ram Kumar @ Bhulli took out his country made pistol and ran towards the house of Ram Sumer. He met with the wife of Ram Sumer who was on the way towards his house, he fired a shot on her and she died on the spot. Thereafter he went to the house of Ram Sumer where he found his younger son Rajesh sleeping on a cot he fired a shot on Rajesh from a close range and he also died. This makes out a clear and obvious motive for the accused. As regards the contention of defence that Ram Kumar was not present on the spot at the time of alleged occurrence, he has examined two witnesses in defence to support his version. DW1 Ram Swaroop @ Dauwa has stated in his evidence that wife of Ram Sumer was killed in front of his house, by that time Ram Kumar @ Bhulli had gone with his wife in a bullock cart to the hospital. He has further admitted in his examinationinchief that police personal and other persons of the locality had gathered there at 3:15 pm. A perusal of his entire evidence shows that he had not seen the actual occurrence with his own eyes. DW2 has been examined by the accused to prove the absence of accused appellant on the spot at the time of alleged occurrence, but this witness named as Rajaram has admitted that he had carried the wife of the accused appellant on his bullock cart to Rewari for her treatment Ram Kumar, his mother and his brother had also accompanied him. He had reached Rewari at about 3:00 p.m. where the doctor declared his wife dead, In his cross examination he has admitted that he was not present on the spot when the wife and child of Ram Sumer were injured and killed. He has admitted a very important fact in his cross examination that between 2:00 to 2:30 pm he had carried the wife of Ram Kumar on his bullock cart to Rewari. In other words accused appellant did not leave the village with his wife before 2:00 to 2:30 pm and as per prosecution case this incident had already taken place by that time. The medical report also supports this fact. Thus the evidence adduced by the defence witnesses produced by the accused appellant corroborates the factum of death of the wife and son of Ram Kumar and even the time of their death get support from his evidence.

In view of the above facts and circumstances, it is established on record that factum of death of Nanki and Rajesh, the time of their death and the place of occurrence has been fully supported by the evidence adduced by the prosecution corroborated with the medical evidence. In case of Ramesh Krishna Madhusudan Nayar v. State of Maharashtra, (2009) 2 SCC (Cri.) 755 the Apex Court held that "Coming to the question whether on the basis of a solitary evidence conviction can be maintained/a bare reference to section 134 of the Evidence Act, 1872 (in short ''the Evidence Act'') would suffice. The provision clearly states that no particular number of witnesses is required to establish the case. Conviction can be based on the testimony of a single witness if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the Court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained". The Apex Court further observed in case of Namdeo v. State of Maharashtra, (2009) 1 SCC (Cri.) 773 held that "It is no doubt true that there is only one eyewitness who is also a close relative of the deceased viz. his son. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. It is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that there must be a particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent Court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that noconviction can be recorded in case of solitary eyewitness, therefore, has no force and must be negatived. As a general rule, a Court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an a approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. It is also a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this Is a rule of prudence and not of law. Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon the facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy conviction can be based on the "sole" testimony of such witness".

Considering the submissions made by the learned Counsel for the appellant and looking into the evidence adduced by the prosecution on record and in view of the above observations of Supreme Court it is established that there is no material contradiction. In the evidence adduced by the prosecution so as to disbelieve the prosecution case. The learned Trial Court has not committed any mistake in passing the impugned judgment and order. The submission advanced by appellant have no force and accordingly the appeal having no force deserves to be dismissed and accordingly it is hereby dismissed..

Office is directed to inform the Court below for necessary action.