Sukhdeo and Others (In Jail) vs State of U.P.

K.K. Misra, J.—This appeal arises out of the judgment and order dated 5.5.1981, passed by Sri R. R. Jatava, the then IIIrd Additional Sessions Judge, Hamirpur in Sessions Trial No. 257 of 1978 convicting the Appellants Sudarshan and Bhan Pratap u/s 302, I.P.C. and Appellants Sukhdeo and Hardayal u/s 302 read with Section 34, I.P.C. and sentencing each of them to undergo imprisonment for life.

The Appellant Har Dayal died during the pendency of appeal. Hence the appeal abated concerning him under order dated 20.11.2003. The appeal is being taken up for decision in respect of other three Appellants.

According to the F.I.R., the first informant Shiv Singh is the adopted son of deceased Brij Rani and was living with her for the last 16-17 years. Accused Har Dayal is the nephew whereas accused Sukhdeo, Sudarshan and Bhan Pratap are grandsons of the deceased Brij Rani. There was litigation of land dispute between the accused persons and the deceased. Bhoj Ram was issueless. On 16.7.1978, deceased Brij Rani and Rao Rani had gone to answer the call of the nature at 8 a.m. towards the har of the north eastern side of the village pond. As soon as they reached in the field of Durga Lodhi, Sudarshan armed with Kulhari, Bhan Pratap armed with pharsa and Har Dayal and Sukhdeo armed with lathis came from the side of har and Sudarshan and Bhanpratap started assaulting Brij Rani deceased with kulhari and pharsa. When Rao Rani ran towards the village making an alarm, Har Dayal and Sukhdeo caught hold of her. On her shouts, the first informant, Udit Narain and Leela Dhar reached there and they saw the accused persons Sudarshan and Bhan Pratap assaulting Brij Rani with kulhari and pharsa. These witnesses challenged them whereupon they fled in the eastern direction. The deceased fell down and died instantly. The F.I.R. of the incident was lodged at Police Station Jarai at 12.10 p.m. on 16.7.1978 by P.W. 1 Shiv Singh. A case was registered. P.W. 4 Ravindra Kishore Pandey, the Investigating Officer, proceeded to the spot for investigation. He prepared the inquest report and sent the dead body for post-mortem examination. He also collected blood stained and plain earth from the scene of incident as also broken piece of butt of kulhari. Investigating Officer recorded the statements of the first informant Shiv Singh and witnesses Hari Singh, Ram Singh, Udit Narayan, Chain Sukh, etc. He also prepared the site plan. After completing the investigation, the Investigating Officer submitted charge-sheet.

The post-mortem examination on the dead body was conducted by Dr. P. M. Singh, the then Medical Officer, Government Hospital, Rath, on 17.7.1978 at 9.30 a.m. The doctor found the following ante-mortem injuries on the dead body:

(1) Incised wound 11 cm. ? 9 cm. ? brain deep on the back of right side of head, underlying occipital bone fractured in 6 pieces. Brain matter protruding out. Clotted blood present.

(2) Incised wound 4 cm. ? 2 cm. ? brain deep on the right side of head 2 cm. above the injury No. 1 underlying parietal bone fractured in 3 pieces, brain matter coming out of wound, clotted blood present.

(3) Contused swelling 5 cm. ? 5 cm. around left eye, bluish, clotted blood underneath present.

(4) Abraded contusion in area of 4 cm. ? 2 cm. on left side of neck, middle part, fracture of thyroid cartilage present.

(5) Multiple abraded contusions in area of 9 cm. ? 8 cm. on right scapular region with fracture of underlying scapula present, clotted blood present.

(6) Abraded contusion 5 cm. ? 3 cm. on left scapular region.

(7) Abradsion1.5 cm. ? 0.5 cm. on left side back of neck.

In the opinion of the doctor, the cause of death was haemorrhage, shock and coma due to head injury.

The accused persons in their statements recorded u/s 313, Cr. P.C. denied the case of the prosecution and stated about their false implication in the case due to enmity. Accused Appellant Sukhdeo further stated that he was an employee of State Dispensary and he was on duty at the time of the incident.

The prosecution in order to prove its case against the accused Appellant examined three eye-witnesses besides other formal witnesses. The three eye-witnesses are P.W. 1 Shiv Singh who lodged the F.I.R. P.W. 2 Udit Narain and P.W. 5 Smt. Rao Rani.

The trial court believing the evidence put forth by the prosecution convicted and sentenced the accused-Appellants as aforesaid.

The gist of the evidence of eye-witnesses should be set out. P.W. 1 Shiv Singh deposed in his evidence that the deceased Brij Rani was his adopted mother. At about 8 a.m. Brij Rani along with Rao Rani had gone to answer the call of the nature. When she reached near the field of Swami, from the side of har, Sudarshan armed with kulhari, Bhan Pratap armed with pharsa and Har Dayal and Sukhdeo armed with lathis came there. Sudarshan and Bhan Pratap started assaulting with both sides of their weapons, that is, from the side of sharp edged and blunt side. When Rao Rani ran towards the village, Har Dayal and Sukhdeo caught hold of her. He further deposed that at that time he as also Udit Narayan and Leela Dhar were taking bath in the nearby pond. On hearing her cries, they rushed towards the place of incident. When they challenged, the accused Appellants ran away towards the east. When they went near Brij Rani, they found her dead. He then, leaving the dead body in the custody of Udit Narayan, Leela Dhar, etc. went to his house and wrote the report. He then taking Binda Chowkidar went to bus stand, Atrauli. There he waited for the bus. The bus came after 2-1/2 hours. Boarding the bus he reached police station, Jaria and lodged the report. He further deposed that on the same day Daroga Ji came to the village for investigation. He further deposed that he was adopted by Brij Rani 10-12 years before the date of incident. He deposed that adoption deed was filed in consolidation court. Before being adopted, he used to visit Brij Rani and after adoption he began to live with her. He admitted that in the report he stated that the murder took place in the field of Durga Lodhi. According to him, the fields of Durga and Swami Deen were adjacent to each other. The pond where he was taking bath was situate at a distance of 20 paces from the place of occurrence. He saw the incident running towards the field. When he just spotted Rao Rani, she was in the hold of Har Dayal and Sukhdeo. He denied the defence suggestion that he did not see the incident and that there was some litigation between the parties and he has falsely nominated the accused Appellants in the case due to enmity.

P.W. 2 Udit Narayan deposed that accused Hardayal, was nephew of the deceased and rest of the accused Appellants were her grandsons. There was some litigation between the deceased Brij Rani and accused Appellant Har Dayal. He deposed that on the date of incident at about 8 a.m. he had gone to take a bath at the pond. Shiv Singh and Leela Dhar were also taking bath at the pond. At the same time Brij Rani and Rao Rani were going to answer the call of the nature. As soon as they reached near the field of Swami Deen, the accused Appellants Bhan Pratap armed with pharsa, Sudarshan armed with kulhari and Sukhdeo and Har Dayal armed with lathis appeared there. Accused Appellants Sudarshan and Bhan Pratap began to assault Brij Rani with their respective weapons from both sides, that is, from sharp edged side and blunt side. When Rao Rani ran seeing the assault, then Sukhdeo and Har Dayal caught hold of her. Seeing the incident and hearing the cries, he with Shiv Singh and Leela Dhar ran towards the incident. On their challenge, the accused ran away towards the east. Brij Rani deceased had fallen down sustaining the injuries.

P.W. 5 Rao Rani deposed in her evidence that the deceased was her cousin mother-in-law. On the date of incident after some time of rising of the sun, she along with deceased Brij Rani had gone to answer the call of the nature. She further deposed that when they reached near the field of Swami, she saw four persons, namely, Bhan Pratap, Har Dayal, Sukhdeo and Sudarshan. Sheo Nath was also going to answer the call of the nature. Seeing them, Sheo Nath went to answer the call of the nature to the other side. Bhan Pratap was armed with pharsa, Sudarshan was armed with kulhari and Har Dayal and Sukhdeo were armed with lathis. Sudarshan and Bhan Pratap assaulted Brij Rani with their respective arms. Seeing this, she was stunned and when she raised a cry, Udit Narayan, Leela Dhar and Shiv Singh came there. On her making a hue and cry, Har Dayal and Sukhdeo caught hold of her.

P.W. 3 Dr. P. M. Singh had conducted the post-mortem examination on the dead body of the deceased Brij Rani. He deposed in his evidence that injury Nos. 1 and 2 could be caused by pharsa and kulhari and injury Nos. 3, 4, 5 and 6 could be caused by blunt side of kulhari and pharsa.

We have heard Sri G. S. Chaturvedi, learned Counsel for the Appellants and Sri A. K. Dwivedi, learned A.G.A. for the State.

The first point raised by the learned Counsel for the Appellants is that there is clear cut conflict and discrepancy between the evidence of the eye-witnesses and the medical evidence. He argued that majority of the injuries were caused by some blunt object but the witnesses did not state in their evidence recorded u/s 161, Cr. P.C. that the kulhari and pharsa were used by the blunt side. However, in their deposition before the Court at the trial, they all tried to improve and deposed that the pharsa and kulhari were used from the both sides, that is, from the sharp edged side and the blunt side. In the post-mortem examination, the doctor found two incised wounds and four contusions. The doctor opined that the incised wounds might have been caused by axe and pharsa but the contusions could not be caused with any of these weapons. Thus, there is clear inconsistency between the eye-witnesses account and the medical evidence. It is settled law that when there is minor variation between the eye-witness account and the medical evidence, the eye-witness account given by the witnesses should be preferred but if the eye-witness account is in total contradiction to the medical evidence, the evidence given by the eye-witnesses cannot be relied upon and it should be discarded. Majority of the injuries sustained by the deceased are contusions, which could be sustained only by blunt object, but the witnesses neither in their statements recorded u/s 161, Cr. P.C. nor the first informant in the F.I.R. stated that the blunt side of the kulhari and pharsa was used. This is material contradiction between the eye-witness account and the medical evidence and it is not safe to convict the Appellants on the basis of their evidence. If there is material contradiction between the ocular evidence and the medical evidence, the benefit of doubt must be given to the accused persons. Where there is a conflict between the medical evidence and the oral testimony of witnesses, the evidence can be assessed only in two ways. A Court can either believe the prosecution witnesses unreservedly and explain away the conflict by holding that the witnesses have merely exaggerated the incident or rely upon the medical evidence and approach the oral testimony with caution testing it in the light of the medical evidence. The first method can be applied only in those cases where the oral evidence is above reproach and creates confidence and there is no appreciable reason for the false implication of any accused. Where the evidence is not of that character and the medical evidence is not open to any doubt or suspicion, the only safe and judicial method of assessing evidence is the second method. In the present case, the doctor who conducted the post-mortem examination on the dead body of deceased Brij Rani had opined that only injury Nos. 1 and 2 could be caused by pharsa and kulhari and the injury Nos. 3, 4, 5 and 6 could be caused by blunt side of pharsa and kulhari . In these circumstances, the statements of the eye-witnesses cannot be safely relied on. Kulhari and pharsa must have ordinarily been used in their natural manner and there is no explanation by prosecution of injury No. 3, 4, 5 and 6.

Learned Counsel for the Appellants next submitted that there is enmity between the parties and litigation with regard to the property of the deceased was going on between the parties. The witnesses are closely related to each other. They are interested witnesses and are not trustworthy. We find force in this submission. It has come in the evidence of P.W. 2 Udit Narayan that Appellant Hardayal was the nephew of the deceased and rest of the Appellants are grandsons of the deceased. P.W. 1 Shiv Singh was the adopted son of the deceased. It has also come on record that Smt. Brij Rani deceased was to give statement in the consolidation court with regard to the pending dispute. Besides the above eye-witnesses, who are related to each other, no independent witness from the village has been produced at the trial to prove the guilt of the accused-Appellants. In the villages, it is quite natural for the villagers to go to the fields either for cultivating the fields or grazing the animals at about the time of present incident. It was rainy season and the crops were to be sown in the field. But no independent witness has been examined. It has also come in the evidence of P.W. 2 Udit Narain that he is maternal uncle of P.W. 1 Shiv Singh. P.W. 5 Rao Rani has also stated in her evidence that P.W. 1 Shiv Singh is the son of her daughter Shyam Kali. Thus, the witnesses being related to each other are partisan witnesses and cannot be relied upon in view of clear conflict between their evidence and medical evidence.

We should also point out that in villages women mostly go to answer the call of the nature in the early morning before sunrise. But in this case in the F.I.R. and the statements of the witnesses it has come on record that the deceased Brij Rani along with Rao Rani had gone to answer the call of the nature at 8 a.m., which is quite unnatural. This also goes to show that the case set up by the prosecution is not true. Only one tumbler was found at the place of the incident. This further makes the presence of P.W. 5 Rao Rani on the place of occurrence doubtful. It is also unnatural that though Rao Rani P.W. 5 was caught hold of by two lathi wielding accused, yet they did not cause any injury to her.

From the above discussion, it appears that none had seen the actual occurrence. The possibility of false implication of the accused Appellants on account of enmity and land litigation was very much there. They deserve to be afforded the benefit of doubt.

In the result, the appeal is allowed. The order of conviction and sentence dated 5.5.1981, passed by Sri R. R. Jatav, IIIrd Addl. Sessions Judge, Hamirpur, as above is set aside. The Appellants are on bail. They need not surrender.

The judgment be certified to the lower court.