Sheo Kumar and Others (in Jail) vs State of U.P.

K.S. Rakhra, J.—This is an appeal u/s 374(2), Cr. P.C. against the judgment and order dated 17.1.1980 delivered by the learned Sessions Judge, Kheri in Sessions Trial No. 191 of 1979 convicting the Appellants u/s 302 read with Section 34 of I.P.C. and sentencing them to life imprisonment.

During the pendency of the appeal, one of the Appellants, Sheo Kumar son of Hardwari has died and no near relative of the deceased has applied u/s 394, Cr. P.C. to continue the appeal, hence, his appeal abates. Rest of the two Appellants are Baboo and Sarju.

The occurrence of this case, is said to have taken place on 16.10.1978 at about 5.00 p.m. near the house of Banwari (P.W. 4). It is said that owing to litigation about abadi and agricultural land, the relations between the deceased, first informant Raghubir (P.W. 1) on the one hand and Hardwari and the Appellants on the other, were strained enough. Earlier in the day, there was exchange of hot words in between the deceased Kali Charan and Hardwari. It was said that it was at about 5.00 p.m. that Kali Charan accompanied by his daughter Phoolmati (P.W. 6) and the first informant was coming back from the fields and had he reached near the house of Banwari (P.W. 4), the three accused named in F.I.R. emerged out of nearby banana plants and started assaulting him with kanta, bhali and lathi. It was said that accused Sheo Kumar was armed with kanta, Baboo with bhali and Sarjoo with lathi. It was alleged that the incident was witnessed, amongst Ors. by Raghubir (P.W. 1), Nand Lal (P.W. 2), Banwari (P.W. 4) and Phoolmati (P.W. 6). Kali Charan died on the spot. Written F.I.R. Ext. Ka-1 was lodged by Raghubir, allegedly on the same date at 11.15 p.m. with police station Kotwali, district Lakhimpur Kheri. It was claimed that the Sub-Inspector, Ram Kumar Sharma (P.W. 7) rushed to the spot in the same night and reached there at about 1.00 a.m. on 17.10.1978. The dead body of Kali Charan was found lying in front of the door of Banwari. Due to non-availability of adequate light, inquest report, etc. could not be prepared in the night and the same was allegedly done on the next morning. Blood stained and simple earth was also collected from the place of occurrence.

It was said that the dead body and all the connected papers, were handed over to Constable Mahendra Pratap Singh and village chowkidar at about 8.00 a.m. on 17.10.1978, for being taken to District Headquarter for post-mortem examination. The autopsy on the dead body could be done on 18.10.1978 at about 9.00 a.m. Ante-mortem external and internal injuries found by Dr. S. P. Srivastava at the time of post-mortem examination are reproduced in extenso in the judgment under appeal and need not be repeated again herein this order.

After the usual investigation, the case came to the Court.

The accused denied the charge and contended that Kali Charan was done to death in darkness of the night when none of these alleged eye-witnesses were present, and they had been falsely implicated due to enmity.

Amongst the eight (8) witnesses examined by the prosecution Raghubir (P.W. 1), Nand Lal (P.W. 2), Banwari (P.W. 4) and Phoolmati (P.W. 6) claimed to be eye-witnesses. All the them stated before the Court that these accused Appellants, assaulted Kali Charan, with the weapons assigned to them, on the said date and at the said time in front of the house of Banwari, as a result of which he sustained fatal injuries and succumbed to the same then and there. Dr. S. P. Srivastava, who conducted the post-mortem examination and prepared post-mortem report (Ext. Ka-4), deposed that the injuries were possible by sharp cutting and sharp pointed weapons like kanta and bhala.

The learned Sessions Judge found the evidence of these four eye-witnesses wholly reliable and trustworthy, on all material points. He also found that medical evidence fully corroborated the same. He negatived the contention of the defence that F.I.R. was ante-dated and ante-timed or murder took place in the night etc. According to him charge u/s 302/34 was well established against all the three accused, beyond reasonable doubt and so he convicted and sentenced them accordingly.

Sri B. M. Sahai, the learned Counsel for the surviving Appellants, has first contended F.I.R. Ext. Ka-1 and chik F.I.R. Ext. Ka-2, did not come into existence on 16.10.1978 at 11.15 p.m., as shown in the police papers and deposed to by Raghubir (P.W. 1) and other police witnesses, but the same came into existence much later and not earlier than the evening of 17.10.1978 and thus, the same are ante-dated and ante-timed. Sri Sahai has tried to capitalize the alleged delay in the post-mortem examination, by saying that if F.I.R., inquest reports, etc., had been handed over to the Constable at about 8.00 a.m. on 17.10.1978, for being taken to District Headquarter for autopsy, then how is it that the papers could be laid before the doctor on 18.10.1978 in the morning and this suggests that F.I.R. was not ready even late in the evening of 17.10.1978. Relying on Marudanal Augusti v. State of Kerala 1980 SCC 985. Shri Sahai has argued that once F.I.R. is found to be fabricated or ante-timed or ante-dated, the entire prosecution case deserve to be rejected. On the other hand, the learned Counsel for the State has said that there is positive evidence of Dr. Srivastava (P.W. 5) that the necessary papers relating to post-mortem, were given to him at about 6.00 p.m. on 17.10.1978 but since the post-mortem could be done on 18.10.1978, so he inadvertently put the same date, below his signatures on those papers but when he realized the error, the same was corrected. The learned Counsel for the State also submits that there is no reason to disbelieve Radhey Shyam Agnihotri (P.W. 8), who deposes that the special report of this case was seen by the District Magistrate on 17.10.1978. He says that in view of all this, the mere delay in post-mortem examination will not be sufficient to say that F.I.R. was ante-dated and ante-timed. Shri Sahai has also tried to press into service the same points as mentioned in para 18 of the judgment of trial court, to support his contention that F.I.R. was ante-dated and ante-timed.

We have carefully gone through the relevant papers on record and the oral evidence, on the point of lodging of F.I.R. and sending of dead body and papers of post-mortem signing of special report by the District Magistrate and also well written judgment of the trial court. We agree with Sri Sahai on the point that F.I.R. is the backbone of murder case, as said in the case cited by him and if the same becomes doubtful, the prosecution may not succeed. Importance of prompt F.I.R. has been highlighted recently in Bijoy Singh and Another Vs. State of Bihar, . But we find ourselves unable to accept the contentions that F.I.R. of this case was ante-dated or ante-timed or did not come into existence on the same date at 11.15 a.m.

We do not propose to dwell upon this point in detail, for the learned Sessions Judge has discussed all possible points and the entire evidence, touching the lodging of F.I.R. and sending of papers to the doctor. There was some delay on the part of officials, in taking the dead body and the papers connected therewith to the District Headquarter for post-mortem examination, but then the affidavit of Constable, Mahendra Prasad Singh, goes unrebutted on the point that relevant papers were handed over to him on 17.10.1978 at 8.00 a.m. and the dead body was transported by a bullock cart, the rasta was muddy on account of rains and, therefore, he could reach at about 4.30 p.m. and contacted the doctor, who asked him to contact again on the next day. The defence made and endorsement to the effect that this witness was not required for cross-examination. We think that now the defence cannot challenge his version. So it is difficult to say that the delay, if any, in handing over relevant papers to the doctor, is unexplained. Moreover, we find no good reasons to disbelieve the evidence of Dr. Srivastava that the papers were given to him in the evening of 17.10.1978. There is no credible material or there are no acceptable circumstances to doubt the existence of F.I.R. Ext. Ka-1 and Ext. Ka-2, on 16.10.1978 at 11.15 p.m. as shown in the police papers.

It is next argued by Sri Sahai that findings in the post-mortem report (Ext. Ka-4) coupled with the evidence of Dr. Srivastava (P.W. 4), suggests that this murder took place in darkness of the night and not at 5.00 p.m. as alleged by eye-witnesses. The argument is based on stomach contents and possibility of variation of few hours in the time of death.

We are of the view firstly that there is clinching reliable evidence of Phoolmati in para 16 that they took dal, rice and bhindi before leaving for fields., If in these circumstances, semi-digested food was found in the stomach of the deceased, it cannot be said that he might have been killed after two or three hours of the dinner. Secondly, the direct account of the witnesses, which is otherwise credible and acceptable, cannot be discarded or disbelieved only on the basis of presence or absence of stomach contents.

The argument that the names of the accused and nature of the weapons used, do not find place in inquest report and so the prosecution case that these persons assaulted the deceased with the weapons assigned to them in F.I.R. and in statements of the eye-witnesses, becomes highly doubtful and unreliable, does not in the circumstances of the case, appeal to us. Firstly, we have already concluded that written F.I.R. Ext. Ka-1 came into existence in the same night in which the names of all these three accused and the weapons respectively used by each of them, were mentioned. Secondly, as held by the Apex Court in Amar Singh Vs. Balwinder Singh and Others, , Section 174 of the Code of Criminal Procedure, does not contemplate the mentioning of the names of accused, weapons used by them or the manner of assault. So that argument does not help Sri Sahai in assailing the finding of guilt.

Sri Sahai had drawn the attention of the Court towards para 4 of the statement of Nand Lal (P.W. 2), where he states Daroga Ji (Investigating Officer) was enquiring in the same night, from the villagers sitting there, as to who killed Kali Charan. Sri Sahai wants to say on the basis of this statement, that if the witnesses had seen these accused assaulting Kali Charan, then where was the occasion for Investigating Officer to enquire as to who had killed him. We are of the view that the mere fact that Investigating Officer was enquiring from villagers as to who killed Kali Charan, did not mean F.I.R. Ext. Ka-1 or Ka-2 were not there or by then the accused had not been named. After all Investigating Officer was to enquire into the truth of the claim made in the F.I.R, so there was nothing unnatural on his part, to make that enquiry from the villagers.

It has also been contended that the presence of Raghubir (P.W. 1) and Phoolmati (P.W. 6), at any such occasion when their kith and kin Kali Charan was done to death, appears to be doubtful, because none of them attempted to save the victim and none of them received any injuries or blood stains on their clothes. It is true that none of the two eye-witnesses says that he or she attempted to save the victim or none of them says that any of the accused attempted to assault them or none of them says that he or she received blood stains in touching the dead body after the incident, but it seems to be improper to reject their testimony on such grounds. It is a matter of common experience that at such occasions when crime is committed in broad day light inside abadi in full view of villagers, and when deadly weapons such as kanta and bhala are freely used, different persons react differently. Some of them are chivalrous or courageous enough and so dare to intervene, without caring for consequences and there may be some who are stunned enough and remain mute spectator. Some Ors. may even run away out of fear or with a view to avoid, being cited as a witness. In any case, self-preservation is the natural instinct of each and every creature including human beings. In the case of Marwadi Kishor Parmanand and Another Vs. State of Gujarat, , the Apex Court observed as under:

Different persons react differently in different situations and circumstances. No hard and fast rule of universal application with regard to reaction of a person in a given circumstance can be laid down. Most often when a person happens to see or come across a gruesome and cruel act being perpetrated within his sight then there is a possibility that he may lose his equilibrium and balance of mind and, therefore, he may remain, as a silent spectator till he is able to reconcile himself and then react in his own way. There may be a person who may react by shouting for help while Ors. may even choose to quietly slip away from the place of occurrence giving an impression as if they have seen nothing with a view to avoid their involvement, in any way, with the occurrence. Yet, there may be persons who may be so daring, hazardous and chivalrous enough to come forward unhesitantly jump in the fray at the peril of their own life with a zeal to scare away the assailants and save the victim from further assault.

Again in the case of Leela Ram (Dead) Through Duli Chand Vs. State of Haryana and Another, , the Apex Court observed as quoted below:

The Court shall have to bear in mind that different witnesses react differently under different situations, whereas some become speechless some start wailing while Ors. run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact, it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within set pattern are unproductive and pedantic exercise.

So if kith and kin like Raghubir (P.W. 1) and Phoolmati (P.W. 6) could not muster courage to save Kali Charan, their presence at the time of occurrence cannot be doubted on that ground alone. Likewise, if none of the accused attempted to assault them, it cannot be said that they were not present. It all depended on the pre-plan of the accused, as to who was to be assaulted.

Sri Sahai has next contended that Raghubir (P.W. 1) and Phoolmati (P.W. 6), being related to the deceased are highly interested and are also partisan, so their evidence should not have been acted upon. Firstly, there is vast difference between related and interested witness. Even if the two (P. Ws. 1 and 6) are in the category of interested or partisan witnesses, their evidence cannot be rejected mechanically on that ground and has to be tested but no doubt with little care and cautions (see Dilip Singh v. State of Punjab 1953 CriLJ 1455 ; Guli Chand and Others Vs. State of Rajasthan, ; Vadivelu Thevar Vs. The State of Madras, ; Rameshwar Vs. The State of Rajasthan, ; Masalti Vs. State of U.P., ; State of Punjab v. Jagir Singh AIR 1973 SC 2407 ; Lehna Vs. State of Haryana, and Gangadhar Behera and Others Vs. State of Orissa,

Sri B. M. Sahai has also argued that evidence of four alleged eye-witnesses as regards the manner of assault, does not find corroboration from medical evidence of Dr. Srivastava. He comments that the statements of these witnesses that all the injuries were received in standing posture and none after the victim fell down, does not inspire confidence in view of as many as 26 ante-mortem severe and serious injuries received by the deceased. Firstly, Dr. Srivastava does not say that these could not have been received in the standing posture or victim must have fallen down after receiving some of the injuries. Secondly, even if it is accepted for a moment that after receiving few blows, the victim must have fallen on the ground and the rest of the injuries might have been received in that lying posture, the direct account of marpeet as given by these witnesses cannot be disbelieved, for the simple reason that even the truthful witnesses do some embroidery in the fear of being disbelieved or in their zeal to show that they are the true eye-witnesses. The learned Sessions Judge has believed them, and we do find no good reasons to take a different view.

The argument that there were no lathi injuries is not well founded in view of the presence of few linear abrasions on the dead body. In our view, it was not necessary to receive lacerated wounds or contusions, on the blows of lathi.

We are of the view that all the four eye-witnesses, P. Ws. 1, 2, 4 and 6 are unanimous on all the material points and their evidence is also corroborated by medical evidence of Dr. Srivastava (P.W. 5). They are natural and probable witnesses. After all we see no reason to discard the evidence of Banwari (P.W. 4), in front of whose door this murder was committed in broad day light, and who had no apparent or proved animus to falsely depose against the accused Appellants. We are of the view that learned Sessions Judge was perfectly justified on the basis of material on record, to hold these surviving Appellants guilty u/s 302 read with Section 34 of I.P.C., for committing brutal murder of Kali Charan on 16.10.1978 at about 5.00 p.m. in front of the door of Banwari (P.W. 4).

Thus, the appeal of Appellants, Baboo and Sarju is hereby dismissed. They are on bail. Their bail is cancelled and the sureties discharged. They shall be arrested and sent to jail to serve the sentences imposed upon them, by trial Judge.

The record of the trial court shall be sent back to it with certified copy of the judgment.