The State of U.P. vs Narain, Chaddami, Pyare Lal and Ram Sahai

K.N. Ojha, J.—This Government appeal has been preferred from judgement and order dated 6.3.1981 passed by V Additional Sessions Judge, Bareilly in ST. No. 432 of 1980 acquitting accused Narain, Chhadammu, Pyare Lal and Ram Sahai under Sections 302 and 307 I.P.C. each read with Section 34 I.P.C. Ram Bahadur the first informant has preferred Criminal Revision No. 978 of 1981 from the impugned judgement aforesaid.

Since accused respondents Pyarey Lal and Ram Sahay were reported having died, the State appeal filed against them stood abated vide order dated 6.2.2008.

Brief facts of the case giving rise to this appeal are that Ram Sahay had three sons Narayan, Chhadammi and Pyarey Lal and Ram Lal was saru of Ram Sahay. Ram Bahadur is the son of Het Ram, and Janki happened to be the uncle of Ram Bahadur. At about 8.00 A.M. on 24.9.1980 Ram Bahadur alongwith Janki Prasad was going to their house from the Gher and as they reached in front of the Gher of Ram Sahai accused Ram Sahai shouted that Janki had removed the wooden log of his Rahat. Immediately Janki denied this fact and then at the exhortation of Ram Sahai his sons Narain, Chhadammi and Pyarey Lal assaulted him. Narain and Chhadammi caused injuries to Janki with knife and Pyarey Lal with lathis. On the alarm raised by Ram Bahadur the assailants gave him lathi blows. Hearing the shrieks of Janki his nephew Tika Ram, one Lal Karan and Brij Lal rushed to the scene of occurrence and as they challenged the assailants they made their escape good. Thereafter Ram Bahadur got report of the occurrence scribed by Brij Pal son of Janki and went to Police Station Bhamora taking injured Janki in bullockcart and lodged F.I.R. of the occurrence on the same day at 11.05 A.M. Both the injured were sent to P.H.C. Bhamora Hospital for their medical examination and treatment.

Dr. S.S. Rawat medically examined Janki at 11.45 A.M. the same day and found following injuries on his body:

A stab wound measuring 3cm x 1cm not probed to avoid surgical ground. Wound situated at thoracic 8-9 spine on back of chest. Fresh blood oozing. Coarse crepitation present.

A stab wound measuring 2cm x 1cm just 3.5cm apart to injury No. 1 (towards left side) on back of chest, fresh blood oozing and bubble of gas.

A stab wound 3cm x 1cm on left side of back of chest 6cm below injury No. 2. Breath sound absent on auscultation-left infra-scapular region. Fresh blood oozing from wound. Depth for injury No. 2 and 3 not probed to avoid surgical complication. Pulse feeble. Patient gasping unconscious. Margins clean cut. Life saving drug given.

An incised wound 3cm x 0.5cm x skin deep on front aspect of right forearm just 3cm above the lower end of right radius. Fresh blood oozing.

An incised wound 5cm x 0.2cm on front aspect of right arm 1cm above the injury No. 4. Fresh blood oozing.

A lacerated wound size 4cm x 0.5cm x muscle deep on left side of head, 12cm above the right ear.

Margins of injuries No. 1 to 5 were clean cut. Janki expired the same day at 11.55 A.M. Doctor sent a memo to Police Station Bhamora. In the doctor''s opinion injury Nos. 1 to 3 were grievous and injury Nos. 4 to 6 were simple. Injury Nos. 1 to 5 were caused by some sharp pointed cutting object and injury No. 6 was by some blunt object and fresh in duration. He also opined that death was caused due to thoracic haemorrhage resulting cardio respiratory failure.

The doctor examined Ram Bahadur also the same day and found lacerated wound 4cm x 1cm x muscle deep on right side of head. Margins were lacerated and blood was oozing from the wound. The injury was caused by blunt object and fresh in duration.

Dr. D.S. Gangwar who performed post mortem on the dead body of deceased Janki on 25.9.1980 at 11.30 a.m. found following ante mortem injuries on the dead body:

Lacerated wound 3.5cm x 0.5 cm x scalp deep on right side of head 9cm above right eye brow.

Contusion 10cm x 4cm on back of chest left scapular region.

Contusion 12cm x 2cm on left side of back 12cm below lower end of scapula.

Incised wound (stitched) 9cm x 0.5 cm x cavity deep on left side of back 3cm from midline and 15cm below root of neck.

Stitched incised wound 1.8cm x 0.5cm x cavity deep left side of back 6cm below injury No. 4.

Stitched (2) incised wounds 2.5cm x 0.5cm x cavity deep on back of chest at right side near middle line at the level of injury No. 4.

Incised wound 2cm x 1cm x skin deep on back of right forearm near wrist joint.

Linear abrasion 6cm long on the back of right forearm just above injury No. 7.

On internal examination the doctor found pleura punctured under injuries Nos. 4 and 5 and one litre blood was present in the cavity.

After completing investigation the police submitted charge sheet against the accused.

After framing of charge the prosecution examined PW 1 Ram Bahadur and PW 2 Lal Karan as eye-witnesses of the occurrence. PW 3 Constable Jagdish Singh, PW 4 S.I. Shyam Singh Sirohi, PW 5 Dr. S.S. Rawat and PW 6 Dr. D.S. Gangwar were also examined.

Accused-respondents disputed time, place and manner of occurrence alleging that occurrence did not take place near the Gher of accused but it had taken place at some other place in the early hours of morning and some unknown persons might have caused injuries to Janki. It is also alleged that accused Narain and Ram Sahai were assaulted by Ved Ram, Udhao, Hansi and Baljeet on 24.9.1980 at 5.00 A.M. because they were hurling abuses as two trees were lying cut in their field and they asked them not to abuse but they persisted in hurling abuses. Hearing the shrieks Chaman Lal, Ram Lal and others appeared there and saved them. Somebody had injured the victim and the accused respondents were falsely implicated in the crime.

On an appraisal of evidence on the record the learned trial judge passed the impugned judgement acquitting the accused. Feeling aggrieved by the impugned judgement the State preferred this appeal for redress.

Heard Sri Amar Jeet Singh, learned A.G.A. for the State appellant and Sri A.K.S. Bais, learned Counsel for the accused respondents. None appeared for the revisionist. We have gone through the record.

It has been submitted by learned A.G.A. for the State appellant that the findings recorded by the trial court are faulty and perverse as the same are based on erroneous appreciation of evidence. Minor variations between the injury report and post mortem report are of no significance. Only one injury found on the body of accused Ram Sahai which was not proved would not confer right of private defence to the accused persons to cause fatal injuries to Janki.

Learned Counsel for the accused respondents submitted that there are material contradictions in ocular testimony of eye-witnesses and post mortem examination report. Blood was not found on the spot by the Investigating Officer and there are many improbabilities in the prosecution version and therefore, the order of acquittal does not call for any interference by this Court and deserves to be confirmed.

In this case, two eye-witnesses PW 1 Ram Bahadur and PW 2 Lal Karan, who are resident of the same village, were examined by the prosecution in its support. Both of them stated that on account of litigation the accused were inimical to them and caused fatal injuries with knife and lathi to Janki resulting in his death. Narain and Chhadammi who are alive are said to be armed with knives caused fatal injuries to Janki.

Learned Sessions Judge observed that according to the site plan the victim could go by shorter route from his gher or field to his house, but he adopted longer route and normally longer route is not adopted by a person. On this ground it has been doubted by learned trial judge if the incident occurred at the place alleged by the prosecution. In village area persons go through more than one path from his field to his house as the circumstances require. In instant case the victim adopted route which was 50 steps longer in distance than the shorter route. This distance is not of much significance as the distance was of only 40-50 steps.

The next ground on which the order of acquittal was passed was that no fodder cutting machine was found outside village abadi in the gher of Janki. PW 1 Ram Bahadur has stated that he was collecting fodder in the gher of Janki which was being cut on the grass cutting machine. The old machine which was in the gher of Janki was later on taken out from the gher and was fixed near the house of the victim. The site-plan shows that there is grass cutting machine of Shiv Lal near the gher of Janki. Investigating Officer had shown machine of Janki in his Khaprail gher and he had two paths to go to his house one from western side and another from eastern side. It was in the eastern side where the occurrence had taken place. There is statement that after occurrence, the grass cutting machine was taken from gher and it was kept at residence of Janki. Thus the finding of trial court that there was no possibility of Janki carrying fodder in front of door of Ram Sahai is not maintainable.

Learned A.G.A. has submitted that learned Sessions Judge held that place of occurrence is not proved because no blood was found on the spot. Learned A.G.A. submits that injury report as well as post mortem examination report which were proved by PW 5 Dr. S.S. Rawat and PW 6 Dr. D.S. Gangwar show that stab injuries were caused in which mainly infra-thoracic haemorrhage did take place inside the body and blood was found in the cavity. It was a broad day light occurrence. The occurrence did take place on the main pathway. Immediately injured Janki was taken to the hospital. In such circumstance there is nothing surprising if blood was not found on the spot as soon after the occurrence many persons assembled on the spot which was the main pathway and blood which would have fallen down at the place of occurrence would have been trodden due to assembling of several persons there and might not have been visible when the Investigating Officer visited the scene of occurrence. Moreover a perusal of the post mortem report goes to show that pleural cavity contained one litre blood. Learned A.G.A. submits that there is minor variations between the injury report and post mortem report, which would not be a ground to disbelieve the prosecution story.

In the injury report the doctor medically examining injured Janki mentioned three stabbed wounds and two incised wounds on chest, back and right forearm besides a lacerated wound on his head. However the doctor mentioned in the injury report that all the five injuries, three stabbed wounds and two incised wounds (Injuries No. 1 to 5) were clean cut. The doctor conducting autopsy on the dead body mentioned in the post mortem report that there were four ante mortem incised wounds on chest, back and forearm in addition to one lacerated wound on his head besides two contusions on back and one linear abrasion on right forearm. Thus virtually there is no material difference in the injuries found on the person of the victim and after his death on his dead body. In the injury report as well as in post mortem examination injuries found were caused by sharp edged weapon and blunt object as well. At the time of autopsy the dead body is minutely examined. It appears at the time of medical examination of injured Janki contusion might not have appeared as sometimes contusion take time to appear. Under the circumstances on account of minor variations in the injuries in both the medical reports, testimony of two eye witnesses can not be thrown over board.

Learned A.G.A. submits that one simple lacerated wound on the body of accused Narain is not sufficient to hold that injuries were caused in self-defence resulting in death of Janki. PW 4 S.I. S.S. Sirohi who investigated the crime found one lacerated wound on the body of accused Narain. He stated that there was bandage on the head of Narain accused. No F.I.R. was lodged from the side of accused persons. No doubt, prosecution has to explain the injuries sustained by the accused but time of injury sustained by the accused should correspond to the time of occurrence in which the persons on the side of prosecution sustained injuries. Non-explanation of injury of superfluous nature on the person of the accused would not shake the truth of the prosecution version. In AIR 2006 SCW 5239 Sukumar Roy v. State of West Bengal it has been held by the Apex Court that if injury of the accused are of minor nature more so when neither any injury report by the doctor was produced nor any doctor was examined by accused, non-explanation of such injury on the body of accused cannot be a ground to disbelieve the prosecution story. In instant case the Investigating Officer had simply seen bandage on the head of Narain but he was unable to explain as to what was the nature of injury and when it was caused nor the accused came with any explicit version. Thus plea of the defence that they caused injuries to Janki resulting in his death in exercise of right of private defence falls to the ground.

Learned A.G.A. submitted that Sessions Judge has disbelieved the statement of PW 1 Ram Bahadur and PW 2 Lal Karan on the ground that they are interested witnesses. In AIR 2008 SCW 2319 Tuka Ram v. State of Karnataka it has been held by Hon''ble the Apex Court that "Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if a plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible. The ground that the witness being a close relative and consequently being a partisan witness, should no be relied upon, has no substance."

In Dalip Singh and Others Vs. State of Punjab, it has been held by Hon''ble the Apex Court that,

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule. Each case must be limited to and be governed by its own facts.

In Guli Chand and Others Vs. State of Rajasthan, Vadivelu Thevar Vs. The State of Madras, Vadiveluthewar v. State of Madhya Pradesh the same principle as has been observed in Dalip Singh''s case, has been laid down by Hon''ble the Apex Court.

In Masalti Vs. State of U.P., it was held by Hon''ble the Apex Court that;

But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice.

The same principle was laid down in The State of Punjab Vs. Jagir Singh, Baljit Singh and Karam Singh, 2002 (3) SC 76 Gangadhar Behera and Others Vs. State of Orissa, Babulal Bhagwan Khandare and Another Vs. State of Maharashtra, Babu Lal Bhagwan v. State of Maharashtra.

Thus in instant case it is to be ascertained as to whether PW 1 Ram Bahadur and PW 2 Lal Karan are interested witnesses and their testimony deserves to be believed or discarded. It has come in evidence that Janki, the deceased was not real uncle of Ram Bahadur and he used to call him uncle on account of village relations. Sworn testimony of a witness cannot be discarded merely on the ground that he is either a partisan or closely related to the deceased if it is otherwise found to be trustworthy and credible. It only requires scrutiny with care and caution. On careful scrutiny, if the evidence is found to be reliable and trustworthy if can be acted upon and if it is found to be improbable or suspicious it should be rejected. In the instant case pw 1 Ram Bahadur was subjected to long and searching cross-examination but nothing tangible could be elicited to render his testimony doubtful. Soon after the occurrence he arranged a bullock cart and took injured Janki therein to the police station situate at a distance of six miles from the village and handed over written report of the occurrence to the police there at 11.15 a.m. and then the injured was sent to the hospital where he was medically examined at 11.45 noon, pw 1 Ram Bahadur is an injured witness who sustained injury at his scalp which cannot be self-inflicted. Thus his presence at the scene of occurrence cannot be doubted. Likewise PW 2 Lal Karan stated that he was cutting fodder in his field which is near the pathway where the occurrence took place. On the shrieks of the victim he rushed to the spot and witnessed the occurrence. Site plan which was prepared and proved by Investigating Officer shows that the field of Lal Karan where he was cutting fodder was situate near the scene of occurrence. He too was subjected to searching and gruelling cross-examination but his testimony was intact on material particulars of the case. No doubt he sided Janki in litigation between Ram Lal and Janki but his testimony stands corroborated by the testimony of injured witness pw 1 Ram Bahadur. Testimony of both the eye witnesses finds corroboration with medical evidence and F.I.R. of the occurrence lodged promptly at the police station without losing any time. Thus evidence of both the eye witnesses cannot be rejected even though they were close to the deceased and inimically disposed towards the accused.

In view of above discussion this Court arrives at the conclusion that the learned trial judge failed to appreciate evidence on the record in its true perspective and discarded the evidence of two eye witnesses including one injured. For the above, the impugned judgement cannot be sustained in law and is liable to be set aside.

Government Appeal and Criminal Revision are, therefore, allowed and impugned judgement and order passed by V Additional Sessions Judge, Bareilly acquitting the accused respondents is set aside. Accused Narain and Chhadammi are convicted under Sections 302 and 307 each read with Section 34 I.P.C. and each of them is sentenced to undergo imprisonment for life and five years'' rigorous imprisonment respectively thereunder. Both the sentences shall run concurrently. Both the accused respondents are in jail. They shall serve out the sentence imposed upon them.

Office is directed to send copy of the judgement and record of the lower court to the court below immediately for necessary compliance.