Sachchey Lal and Bachchey Lal vs State of U.P.

M.A. Khan, J.—This is an appeal against the judgment and order dated 19.3.1999 passed by Sri Indra Bahadur Singh, learned I Ind Addl. Sessions Judge, Varanasi, thereby convicting the Appellant Sachchey Lal Tewari, for the offence punishable u/s 302, I.P.C. and awarding him death penalty. The Appellant Bachchey Lal Tewari has also been convicted for the offence punishable u/s 302 read with Section 34, I.P.C. and has been sentenced to undergo imprisonment for life.

Facts giving rise to the prosecution of the two Appellants are that the complainant Achhaiber Misra (P.W. 1) and both the Appellants are residents of village Lerhupur within the circle of police station Sarnath district Varanasi in Uttar Pradesh. The agricultural fields of the two sides also adjoin each other near the old brick kiln towards east and south of the village. The ground level of the field of complainant Achhaiber Misra is slightly higher than the level of the plots of the Appellants. On 3.11.1995 at about 6.45 a.m., the Appellants Sachchey Lal Tewari and Bachchey Lal Tewari sons of Mahajan Tewari and Pintoo grandson of Mahajan Tewari were dismantling the demarcating line (mend) between the fields of the complainant Achhaiber Misra and the Appellants. The complainant Achhaiber Misra witnessed it and he along with his sons Vijai Shanker Misra and Surender Nath Misra reached near the field and asked the Appellants not to dismantle the demarcating line of the field. There was exchange of hot words between the two sides. Pintoo grandson of Mahajan Tewari took out the pistol and handed it over to the Appellant Sachchey Lal Tewari and then Pintoo and Bachchey Lal Tewari exhorted by saying that the complainant side should be killed. On it, Sachchey Lal Tewari, Appellant, fired with the pistol at Vijai Shanker Misra and Surender Nath Misra, as a result of which Surender Nath Misra and Vijai Shanker Misra sustained firearm injuries and died instantaneously on the spot. The occurrence was witnessed by Prem Nath Misra, Rama Kant Misra and other village persons and thereafter the two Appellants and Pintoo ran away from the scene of occurrence. Leaving behind the dead bodies of his sons Vijai Shanker Misra and Surender Nath Misra, the complainant Achhaiber Misra went to the police station Sarnath in district Varanasi and lodged a written report Ex. Ka-1 there at about 8.15 a.m. on it G.D. entry was made at the police station and a case against the Appellants was registered. The Investigating Officer, S.I. Sri Sita Ram Chaudhary reached the scene of occurrence. He inspected the site and prepared the site plan Ex. Ka-6. Thereafter he recorded the statements of the witnesses and took the simple and blood stained earth from the scene of occurrence and also prepared the panchayatnamas of the dead bodies of Vijai Shanker Misra and Surender Nath Misra Exts. Ka-8 and Ka-9. The dead body of Vijai Shanker Misra and Surender Nath Misra were sent to district hospital Varanasi, where post-mortem examination was conducted on 4.11.1995 vide post-mortem reports Exts. Ka-17 and Ka-18, after completing necessary formalities of investigation, charge-sheet was submitted against the Appellants who pleaded not guilty to the charges and claimed to be tried. The defence of the Appellants is that they have been falsely implicated in this case due to previous enmity and ill-will.

In support of its case, the prosecution examined seven witnesses in all. They are Achhaiber Misra (P.W. 1), Rama Kant Misra (P.W. 2), Constable Bechan Ram (P.W. 3), Vijai Nath Misra (P.W. 4), Head Constable, Shitala Prasad Dubey (P.W. 5), S.I. Sita Ram Chaudhary (P.W. 6) and Dr. M. K. Roy, Medical Officer (P.W. 7). The defence also examined Yagya Narain Misra (D.W. 1) and Prem Nath Misra (D.W. 2). The learned lower court scrutinized the entire evidence on record, believed the prosecution theory, convicted the Appellants and sentenced them as above. Feeling aggrieved by the said judgment and order the present appeal has been preferred.

At this very stage, it may be pointed out that one Pintoo was also charged for the offence punishable u/s 302 read with Section 34, I.P.C. However, his case was separated as he was below 16 years of age at the time of alleged occurrence and, therefore, he has been directed to be tried under the provisions of Juvenile Justice Act.

Achhaiber Misra (P.W. 1) is the complainant of the case and also the first informant. He has narrated the whole prosecution story before the Court below and has also proved the F.I.R. Ext. Ka-1. He has stated on oath that towards east and south corner of his house is his agricultural land at a distance of about 200 paces from his residential house. The field of the Appellants also adjoin his fields. On the fateful day at about 6.45 a.m., he saw from his own house that the two Appellants and Pintoo were dismantling and demolishing the demarcating line (mend) in between his fields and the field of the Appellants. He and his two sons Vijai Shanker Misra and Surender Nath Misra went to the field and asked the Appellants as to why they were dismantling the mend. On it, the Appellants and Pintoo became infurious. Pintoo took out a revolver from his pocket and handed it over to Appellant Sachchey Lal Tewari and he and Appellants Bachchey Lal Tewari exhorted. On it Sachchey Lal Tewari, Appellant, started firing with the revolver, as a result of which his sons Vijai Shanker Misra and Surender Nath Misra sustained firearm injuries, fell down and died instantaneously on the spot. Besides himself, the occurrence was also witnessed by the witnesses Prem Nath Misra, Rama Kant Misra and other persons working on the adjoining fields. Thereafter the accused persons (Appellants) ran away. He then not prepared a report and took it to the police station and lodged the same.

Rama Kant Misra (P.W. 2) is another witness of fact and he too has corroborated the statement of Achhaiber Misra (P.W. 1) on all kinds. He has stated that on 3.11.1995 at about 6.45 a.m., he was going on the road to have his tea in the morning and when he reached on the corner of the field of Achhaiber Misra (P.W. 1), he saw Sachchey Lal Tewari, Appellant, opening fires. Pintoo alias Ram Sagar and Bachchey Lal Tewari were also present there. As a result of firing Vijai Shanker Misra and Surender Nath Misra sustained injuries, fell down and died. He has also stated that Appellant Bachchey Lal Tewari and Pintoo were exhorting. He has further stated that he had prepared a written report on the dictation of Achhaiber Misra.

Constable Bechan Ram (P.W. 3) has stated that on 3.11.1995 the dead bodies of Vijai Shanker Misra and Surender Nath Misra were sealed by the Investigating Officer in his presence. After preparation of panchayatnamas he carried the two dead bodies upto the mortuary intact condition. After post-mortem the dead bodies were handed over to Achhaiber Misra. The testimony of this witness is thus of formal nature. P.W. 4, Vijai Nath Mishra has stated that the panchayatnamas of the dead bodies of Vijai Shanker Misra and Surender Nath Misra was attested by him. He has thus proved the panchayatnamas Ext. Ka-2 and Ka-4 and is thus a formal witness.

Head Constable, Shitla Prasad Dubey (P.W. 5) has stated that he was posted as Head Moharrir at police station Sarnath on 3.11.1995. The complainant Achhaiber Misra has lodged a written report Ext. Ka-1 at the police station, on which a case against the accused persons was registered by him at the police station and G.D. entries have been prepared by him. His statement is also thus of formal nature.

S.I. Sita Ram Chaudhary (P.W. 6) is the Investigating Officer of this case. He went to the scene of occurrence and prepared site plan Ext. Ka-6 and also prepared the panchayatnamas of the two dead bodies and also the other relevant papers. He also took the sample simple and blood-stained earth from the scene of occurrence and further recorded the statements of the witnesses. After completing necessary formalities and investigation he submitted charge-sheet against the accused persons.

Dr. M. K. Roy (P.W. 7) is the Medical Officer. He has stated that on 4.11.1995 he was posted as Medical Officer in District Hospital, Varanasi. He conducted the post-mortem on the dead body of Surender Nath Misra and found the following ante-mortem injuries on his person:

Firearm injury of entrance over front of chest in Centre-size 1/2 cm. ? 1/2 cm. (in diameter) it is placed over midline 6 cm. below supra sternal.

Wound of exit of firearm 3/4 cm. ? 1/2 cm. over right side of chest over back aspect 5 cm. from back midline and 21 cm. from right shoulder.

Note: Injury Nos. (1) and (2) communicated to each other with a track involving the sternum body at the level of Rib 3, pericardium, upper lobe and lower lobe, posterior right chest wall down and left to right.

Entrance wound of firearm 3/4 cm. in diameter over front and outer of left thigh 30 cm. above left knee.

Wound of exit 1 cm. ? 3/4 cm. over outer back aspect of left thigh 28 cm. from left knee.

Note: Injury Nos. (3) and (4) communicating to each other with a track passing through muscle and at surface from Injury Nos. 3 to (4) is aspect 14 cm. in direction front to back. Lateral downward.

According to him, Surender Nath Misra died due to shock and haemorrhage as a result of firearm injuries on his chest. The post-mortem report prepared and proved by this witness is Ext. Ka-17 on record.

This witness has further deposed that he had also conducted post-mortem on the dead body of Vijai Shanker Misra on 4.11.1995 and found the following ante-mortem injuries on his person:

Wound of entry firearm wound 1/2 cm. diameter in front of chest 15 cm. below supra sternal notch in midline.

Note: Trace, piercing heart ventricle and left lung and bullet was found in 7th rib present post wall left side chest with rib 7th blood clotted and liquid pericord and plural (left) containing 1-1/2 litter. Downward and laterally to left side front to back.

According to him death of Vijai Shanker Misra took place as a result of shock and haemorrhage due to fire arm injuries on the chest. The post-mortem report prepared and proved by this witness is Ext. Ka-18 on record.

The defence also examined two witnesses. Sri Yagya Narain Misra as D.W. 1, has stated that prior to 3.11.1995, he was Pradhan of Gaon Sabha Lerhupur. He has stated that in July 1988, Sachchey Lal Tewari Appellant had lodged a report u/s 452/427, I.P.C. against Paras Nath Misra. At the time of elections in the Gaon Sabha, police force was posted and at that very time Paras Nath Misra, Laxmi Kant Misra and Kamla Kant Misra were arrested with firearms. In that case investigation was conducted by C.B., C.I.D. and a final report was submitted. Vijai Shanker Misra (deceased) had deposed before the Magistrate in that case and he had also given his statement against Paras Nath Misra. He has further stated that at the time of occurrence the relations between the Appellants and the family of the deceased persons were cordial. He has stated that he had heard about the death of Vijai Shanker Misra and Surender Nath Misra. The scribe of the F.I.R. of this case is his own brother Rama Kant Misra. This report was prepared at 10 or 11 a.m. in his presence. He has stated that the police constable was present and he was dictating the F.I.R. and it is on suspicion alone that the accused persons have been named in this case.

Prem Nath Misra (D.W. 2) has stated that on the fateful date at about 6 or 6.30 a.m., he saw the dead bodies of Vijai Shanker Misra and Surender Nath Misra lying on the Chakroad. In fact he did not see any occurrence and his name has been wrongly mentioned as eye-witness of the occurrence in the F.I.R.

The case of the Appellant Sachchey Lal Tewari is slightly different from the case of Appellant Bachchey Lal Tewari. The only role attributed to this Appellant is that he exhorted and on it, Sachchey Lal Tewari fired at Vijai Shanker Misra and Surender Nath Misra. It is also in the evidence that the revolver in question was in the pocket of Pintoo. He took it out from the pocket and handed it over to Sachchey Lal Tewari, the principal accused in this case. Thus, the only role attributed to the Appellant Bachchey Lal Tewari is that of exhortation. In our considered opinion, the role of Bachchey Lal Tewari even according to the prosecution is not that of the principal accused and he is also admittedly not the actual shooter and, therefore, his case stands on a different footing than that of Sachchey Lal Tewari and shall be dealt with at appropriate place.

As regards the role of Appellant Bachchey Lal Tewari, we may mention that he is the principal accused in this case who in fact fired with the revolver thereby causing injuries to Vijai Shanker Misra and Surender Nath Misra.

A close scrutiny of the statements given by Achhaiber Misra (P.W. 1) and Rama Kant Misra (P.W. 2) on oath before the Court below shows that the occurrence in fact took place in their presence. Both these witnesses have consistently deposed that the Appellants and Pintoo were demolishing the ''mend''. The complainant side asked the Appellants not to do so. On it, there was exchange of hot words between the two sides and then Sachchey Lal Tewari fired at Vijai Shanker Misra and Surender Nath Misra. There is absolutely no discrepancy or inconsistency in the statements of Achhaiber Misra (P.W. 1) and Rama Kant Misra (P.W. 2) and absolutely no material contradiction in the statements of these witnesses could be pointed out and nothing has come out to show that these witnesses were not present on or near the scene of occurrence. They have given minute details of the occurrence and the Court below was fully justified in believing the presence of these witnesses and we also find no reason to discard their testimony.

The statements of the above-noted two eye-witnesses find corroboration from the medical evidence on record which shows that Vijai Shanker Misra and Surender Nath Misra did sustain firearm wounds on the chest and thus died on the spot. We find no reason even to discard the medical evidence on record. It is also quite consistent with the ocular evidence adduced in this case by the prosecution.

Learned Counsel for the Appellants has pointed out that Achhaiber Misra (P.W. 1) is the father of the deceased persons while Rama Kant Misra (P.W. 2) is the relation, therefore, the testimony of the two eye-witnesses is that of interested persons and as such should be discarded. We find no force in this argument. Simply because the two witnesses are related to the deceased persons, their testimony cannot be thrown away on that ground alone. The law is well-established on the point that relations are good witnesses and their testimony cannot be discarded simply on the ground of being relations. The rule of prudence, however, is that the evidence of such witnesses will have to be judged, scrutinised and examined with caution and care. Achhaiber Misra (P.W. 1) is no doubt the father of the two deceased persons in this case, yet his testimony is of such a nature that inspires confidence and leaves no room for doubt that he was present on or near the scene of occurrence, Rama Kant Misra (P.W. 2) has stated that he was going to have his tea in the morning and he saw the accused Sachchey Lal Tewari opening fire. There is nothing on record to show that this witness had been in any way inimical to the accused persons. Therefore, the testimony of Rama Kant Misra cannot be termed as that of an inimical or interested witnesses.

F.I.R. in this case was lodged by Achhaiber Misra (P.W. 2). According to the eye-witness account, the occurrence took place on 3.11.1995 at about 6.45 a.m. whereas report of the occurrence was lodged on the same day at about 8.15 a.m. within 1-1/2 hours of the occurrence. The distance between the place of occurrence and the police station was 3 kms. towards south east. Nothing could be pointed out from the side of the defence that this report has been lodged with any delay and/or that there was any consultation or concoction. No such suggestion has even been put to Achhaiber Misra (P.W. 1). A perusal of the F.I.R. Ext. Ka-1 goes to show that it has not only been lodged quite promptly but it also contained material details of the occurrence including the names of the assailants, the date, time and place of occurrence and also the motive for the commission of the crime. The F.I.R. is thus a good corroborative piece of evidence in this case.

The motive for commission of the crime is also established and proved in this case. In fact there was no previous enmity, ill-will or grudge between the complainant side as well as the Appellants. Even no such suggestion has been made from the defence side to Achhaiber Misra complainant (P.W. 1), as such there was absolutely no occasion with Achhaiber Misra (P.W. 1) to implicate the Appellants falsely in this case. The occurrence in fact took place in broad daylight at about 6.45 a.m., and therefore, there was no chance of any misidentity of the assailants.

The date, time and place of occurrence in this case are also established and proved by the statements of Achhaiber Misra (P.W. 1) and Rama Kant Misra (P.W. 2). Both these witnesses have consistently deposed before the Court below that the occurrence took place on 3.11.1995 at about 6.45 a.m. in village Lerhupur in the field of the complainant Achhaiber Misra and the Appellants. The Investigating Officer visited the scene of occurrence and took samples of blood stained and simple earth from the place of occurrence. He also found the dead bodies of Vijai Shanker Misra and Surender Nath Misra lying in the fields. He also prepared various other memos. Thus, the date, time and place of occurrence are established beyond doubt.

The motive to commit the crime is also proved and established by the statement of Achhaiber Misra (P.W. 1). He has stated that on the fateful date and time he was in his house from where his field at a distance of 200 paces was visible. He saw the accused persons demolishing the mend. He and his two sons went to the scene of occurrence and asked the accused persons not to demolish the mend as it would serve no purpose. On being so asked, the accused persons became furious and Pintoo took out the revolver from his pocket and handed it over to Sachchey Lal Tewari Appellant and exhorted. Sachchey Lal Tewari Appellant fired at Vijai Shanker Misra and Surender Nath Misra, as a result of which the two boys sustained injuries on their chest, fell down and died. There is no reason to discard the testimony of Achhaiber Misra (P.W. 1) on this point. But for this, nothing in fact has been suggested even from the defence side that there was ill-will between the complainant and the accused from before or that the accused persons have been falsely implicated in this case for any other reason or out of malice and enmity or grudge.

It will be proper at this stage to discuss the defence evidence as well. The accused persons in their statements u/s 313, Cr. P.C. have denied their involvements in the commission of crime and have simply pleaded that they have been falsely implicated in this case due to enmity. Yagya Narain Misra (D.W. 1) has admitted in his cross-examination that there is relationship between him and Appellant Sachchey Lal Tewari as the son of his sister is married to the sister of the accused Sachchey Lal Tewari and Bachchey Lal Tewari. Therefore, the statement of Yagya Narain Misra is that of an interested witness and even if his statement is thoroughly examined it is of absolutely no help to the defence. He could not point out any such enmity or ill-will between the complainant side and accused persons and in fact stated otherwise that relationship between the two sides were cordial even on the date of occurrence. Prem Nath Misra (D.W. 2) is a witness who is named even in the F.I.R. Ext. Ka-1 as an eye-witness. It is shown that he had seen the occurrence. He admits that but for a dispute over ''mend'' there was absolutely no ill-will and no enmity between the complainant side and the accused persons. He also admits that Achhaiber Misra (P.W. 1) is the son of his real aunty. His statement also cannot be termed to be that of a reliable witness and is of no help to the defence.

As a result of the above discussion of the evidence on record and the circumstances of the case, we find that the prosecution has succeeded in proving that the Appellants Sachchey Lal Tewari on 3.11.1995 at about 6.45 a.m., in village Lerhupur within the circle of police station Sarnath district Varanasi, had fired with revolver at Vijai Shanker Misra and Surender Nath Misra with the intention to kill them and commit their murder, as a result of which Vijai Shanker Misra and Surender Nath Misra sustained fire arm injuries and died on the spot. Thus, the charge u/s 302, I.P.C. stands proved against the Appellant Sachchey Lal Tewari beyond all reasonable doubt.

As far as case of Appellant Bachchey Lal Tewari is concerned, we find that his case stands altogether on a different footing than that of co-Appellant Sachchey Lal Tewari, the latter having been assigned the direct role of firing whereas the only allegation against Appellant Bachchey Lal Tewari is of exhortation. His conviction is sought with the aid of Section 34 of the Indian Penal Code. Presumption of common intention like any other presumption, should not be drawn on bare surmises, conjecture or suspicion. Inference of common intention should never be reached unless it is a necessary corollary deducible from the circumstances of the case. The facts giving rise to presumption should be succinctly clear and must be fully established beyond reasonable doubt. It is of common experience that there is a tendency in our country to rope in innocent persons along with real culprits due to enmity or otherwise and the simplest way for implication is by assigning the role of exhortation. Therefore, it is the pious duty of the Court in such cases to scrutinise evidence and circumstances with utmost care and caution.

In the present case Appellant Bachchey Lal Tewari is real brother of co-Appellant Sachchey Lal Tewari, it is in evidence that these two Appellants had no other brother. As per the own case of prosecution, Appellant Bachchey Lal Tewari along with other two accused persons was busy in dismantling the demarcating mend. He was unarmed during the course of altercation. It was co-accused Pintoo who took out revolver from his pocket and handed over to Sachchey Lal Tewari Appellant whereupon the latter made firing. There is no material or evidence to indicate that Bachchey Lal Tewari had knowledge or had reason to believe that Pintoo accused was carrying a revolver in his pocket. P.W. 1, Achhaiber Misra stated before the trial court that when Pintoo handed over revolver to Sachchey Lal Tewari he and Bachchey Lal Tewari both exhorted Sachchey Lal Tewari to kill and thereafter Sachchey Lal Tewari fired upon Surender Nath Misra and Vijai Shanker Misra, P.W. 2 Rama Kant Misra in his examination-in-chief stated that when Sachchey Lal Tewari was firing both Pintoo and Bachchey Lal Tewari were instigating them. In cross-examination be stated that he saw the incident from a distance of 25 paces and when he looked for the first time, firing was going on which concluded within 1-1-1/2 seconds. According to P.W. 1 exhortation preceded the firing, thus, P.W. 2 Rama Kant Misra could not be a witness of exhortation. Even otherwise also when he was placed at a distance of 25 paces, it was difficult to believe that he could have heard any words spoken Bachchey Lal Tewari. This witness thus not only contradicted P.W. 1 Achhaiber Misra on this vital issue but is also not reliable as far as Bachchey Lal Tewari is concerned. It is also note-worthy that even P.W. 1 Achhaiber Misra has not stated as to what actual words were spoken by Bachchey Lal Tewari. In the circumstances, the mere presence of Bachchey Lal Tewari at the scene of occurrence when he was busy in dismantling the mend would not make him liable with the aid of Section 34, I.P.C. and it appears to us that since the prosecution was fully conscious of this fact, a case of exhortation was developed in order to fasten him with vicarious liability which allegation has not been fully established beyond reasonable doubt. It will thus not be safe and prudent to hold him vicariously liable for the wrongful act of co-Appellant Sachchey Lal Tewari. In the circumstances, we think it safe to extend him benefit of doubt.

The learned trial court has awarded extreme death penalty to Sachchey Lal Tewari. It has been observed by the learned trial court that the Appellant Sachchey Lal Tewari has committed murder of two young boys without any rhyme of reason or without sudden provocation. We have considered all facts and circumstances of the case and in our considered opinion, the present case does not come within the category of rarest of rare cases. Simply because two murders have been committed in this case, it cannot be termed as rarest of rare cases. There was exchange of hot words between the two sides on the matter of dismantling of the mend. Even according to the prosecution there was exchange of hot words between the two sides and this might have prompted the Appellant Sachchey Lal Tewari to open fire. Thus, it cannot be termed as cold blooded murder and in our considered opinion it is not a case which necessitates imposition of death penalty. In our opinion and for meeting the ends of justice, the punishment of death penalty should be reduced to lesser punishment of life imprison-ment.

The appeal is thus partly allowed. The judgment and order passed by the Court below is modified to the extent that the Appellant Bachchey Lal Tewari is held not guilty of the offence punishable u/s 302 read with Section 34, I.P.C. and is acquitted of the same. He is on bail and as such need not surrender. His bail bonds are cancelled and sureties discharged.

The Appellant Sachchey Lal Tewari is, however held guilty of the offence punishable u/s 302, I.P.C. He is convicted of the same and is sentenced to undergo imprisonment for life instead of death sentence. He is in jail and shall serve out the sentence as imposed on him. The reference made by the Sessions Judge rejected.