Vinod Kumar and Others vs State of U.P.

S.I. Jafri, J.—Criminal Appeal No. 1938 of 1977 has been filed by Vinod Kumar, Ram Babu and Ram Kesh Appellants and Criminal Appeal No. 1939 of 1977 has been filed by Hanuman, Roop Ram, Ram Gopal, Ranjit Singh, Ramesh, Jagat Prasad, Gaya Prasad and Shiv Prasad Appellants against the judgment and order dated 11-7-77 of Sri R.K. Garg, Additional Sessions Judge, Kanpur Nagar in Sessions Trial No. A 134 of 1974. By this order, all the Appellants have been convicted and sentenced to imprisonment for life u/s 302 read with Section 149 IPC and to three years'' R.I. u/s 201 IPC read with Section 149 IPC. All the Appellants except Ram Kesh have been further convicted and sentenced to three years'' R.I. u/s 148 IPC and Ram Kesh has been convicted and sentenced to two years'' R.I. u/s 147 IPC.

All the Appellants belong to village Paniya Mau, Police Station Bhognipur, district Kanpur. The three deceased viz, Basudeo, Anant Ram and Mahabir also belonged to the same village Paniya Mau. In this village, there is a tank lying on the western outskirts of the village abadi. This tank is used by the village people for purposes of bathing and washing their clothes.

The case of the prosecution in brief is that at about 11.30 a.m. on 20-8-1973, Basdeo, Anant Ram and Mahabir deceased had gone to the said pond for bathing and washing their clothes. Km. Shashi Kala PW 3 (Sister of Basdeo deceased) had also gone there for similar purposes. Km. Shahsi Kala was at the southern "Burj" of the tank. Basudeo deceased was at the northern "Burj", Mahabir and Anant Ram deceased were on the steps of the ghat at the eastern bank of the tank. The Appellants also reached there with arms in their hands. Vinod Kumar was armed with pistol, Ram Babu with Barchhi, Ram Kesh with lathi, Hanuman with gun, Roop Ram and Ranjit Singh with swords and the remaining Appellants were armed with Kantas. On reaching there they assaulted the three deceased persons. Almost simultaneously the Appellant Hanuman opened fire from his gun ac Basdeo and the Appellant Vinod fired from his pistol at Mahabir. Basudeo jumped into the pond to swim to the other side of the pond for safety. Mahabir who was hurt also tried to run away but fell down on receiving injuries by another filing from his gun by Hanuman Appellant. When he fell down, the Appellants Shiv Prasad and Ranjit Singh hit him with their Kanta and sword. Anant Ram deceased was assaulted by Appellants Roop Ram and Ram Gopal who died on the spot as a result of the injuries received by him. The Appellants Hanuman and Vinod Kumar had rushed to the western bank of the tank and fired at the fleeing Basdeo who after receiving injuries fell down in the field of Deo Karan. All the Appellants had reached there by the time he fell down. There he was again assaulted by the Appellants and his head was actually chopped off the trunk. Thereafter, the Appellants ran away. While running away, Roop Ram Appellant carried away the chopped head of Basudeo.

The occurrence was witnessed by Km. Shahsi Kala PW 3 from beginning to the end as she was present at the pond at the time of occurrence washing her clothes. Ram Swarup and Raj Bahadur who were also present in the vicinity on the western side of the pond had also witnessed the occurrence. The complainant Ram Shanker PW 1 who was present at his house in the village on hearing report of gun-fires and alarm raised by Km. Shashi Kala and others went to the scene of occurrence and witnessed the incident. While Anant Ram and Basdeo had died at the spot, Mahabir was lying in an injured state.

Ram Shankar PW 1 and Ram Swarup PW 2 started for the police station with Mahabir injured on a bullock-cart. In the way, Mahabir also succumbed to his injuries in village Monepur. There Ram Shankar PW 1 wrote a report and then they again proceeded for the police station with the dead body of Mahabir. On arrival at the police station, Ram Shankar PW 1 lodged the written report at 2 P.M. Constable Clerk Babu Lal PW 4 prepared the chik report and registered this case. The Station Officer was not present at the police station. Sub-Inspector Pyare Lal PW 7, who was present when this case was registered, started the investigation in the case. He at once conducted inquest on the dead body of Mahabir at the police station and then sent it to the mortuary for its post-mortem examination. He then went to the place of occurrence where he conducted the inquest proceedings on the dead bodies of Basudeo and Anant Ram. After completing other necessary formalities, he despatched their corpses also to the mortuary for their post-mortem examination. During investigation he had also searched the house of Appellant Jagat Prasad and had recovered a blood-stained Farsa therefrom. Station Officer Sharda Dutt Tripathi PW 8 of the police station also reached the spot at 7 P.M. Then he took over the investigation from Sub-Inspector Pyare Lal PW 7 and submitted a charge-sheet against the Appellants after completing the investigation.

Dr. H.N. Bahadur PW 5 conducted the post-mortem examination on the dead body of Basdeo deceased at 12.10 P.M. on 21-8-1973. He found the following ante-mortem injuries on it:

Incised wound 3/4" x 1/2" sub cut on back of left wrist in outer 1/3rd.

Incised wound 1/2" x 1/3" x sub cut on back of middle of left wrist.

Three gun shot wounds in an area of 3" x 2" on left side abdomen 7" below nipple 1/8" x 1/8" x muscle deep.

One gun shot wound 1/8" x 1/8" x muscle on right side abdomen 2" to the right of the umblicus.

Gun shot wound 1/8" x 1/8" on inner aspect of left elbow edges inverted communicates with another.

Wound 1/6" x 1/6" on back of left elbow edges everted.

Two incised wounds 1" apart obliquely placed 1/2" x 1/4" x muscle deep and

3/4" x 1/2" x muscle deep on outer aspect of left elbow.

One gun shot wound 1/8" x 1/8" on inner aspect of left arm in mid third memo of entry communicating with gun shot wound 1/6" x 1/6" on outer aspect of left arm in mid third wound of each.

Incised wound 1 1/3" x 1/2" x muscle deep on left lumbar region 5" front and 3 spine.

Incised wound three in no, on left shoulder in area of 7" x 4" from medial to lat (A) 2" x 1/2" x muscle deep (B) 3" x 1" x muscle deep and with 1 1/4" x 1/2" x muscle deep.

Eight gun shot wounds in an area of 2" x 1 1/2" on right side back between scapula and post axillary line 1/8" x 1/8" x 2".

Five abraded contusion in an area of 31/2" x 2" x 2" below injury No. 12.

Incised wound 3 1/2" x 2" x bone deep on top of head of humerous seen and is out.

Incised wound 7" x 2 1/2" x muscle deep on back of right shoulder.

Incised wound 3" x 1" x muscle on front of right shoulder.

Incised wound 9" x 7" at the juncture of head and neck at with 4 level cutting all structure on this level.

According to the opinion of the doctor, the death was caused due to shock and haemorrhage as a result of his injuries.

The doctor also conducted post-mortem examination on the dead body of Anant Ram on 21-8-1973 at 1.30 P.M. He found the following ante-mortem injuries on his dead body:

Incised wound 7" x 3" x neck structure deep on left side vertebral bone exposed, Margins clean cut. All the vital structure of neck oesophague traches, confuse and major blood vessels and nerves are cut. Clotted blood sticking to margins of wound.

According to the doctor, the death was caused due to shock and haemorrhage as a result of his injuries.

The doctor also performed post-mortem examination on the dead body of Mahabir the same day at 12.15 p.m. He found the following ante-mortem injuries on it:

Incised wound 6" x 1 1/2" x bone deep on postero lat. aspect of right side neck.

Incised wound 5" x 1 3/4" x bone deep on postero lat. aspect of left side neck.

Incised wound 3" x 1 1/2" x bone deep on inner aspect of right leg mid third bone underneath cut libia.

Three gun shot wounds in an area of 2 1/2" x 2" on left side back between scapula and vertebral column 1/6" x 1/6" x pleural cavity deep three pellets embedded in upper part of lower lobe. About 1/2 lb. clotted blood present in pleural cavity.

According to the opinion of the doctor, his death was also due to shock and haemorrhage as a result of his injuries.

The Appellants denied the charges framed against them and attributed their false implication in the case due to enmity. Appellants examined Virendra Kumar Mehta DW 1 to prove alibi of Vinod Kumar. They also examined Ganga Singh DW 2 in their defence who proved copy of the G.D. Entry No. 9 dated 21-8-1973 of Police Station Sumer Pur, District Hamirpur.

Admittedly there was bad blood and deep seated enmity between the parties. Several criminal as well as civil litigations were fought between the parties. Some cases were also pending on the date of occurrence. It is true that enmity is a double edged weapon which cuts both ways. It may turn out to be a motive for the Appellants to commit the crime. Likewise they might be implicated falsely in the case on account of enmity. However, if the evidence adduced in this case on behalf of the prosecution stands the test of reliability, the enmity between the parties will furnish a strong motive for the commission of the offence by the Appellants.

The prosecution has examined eight witnesses in all in support of its case. Out of them, Ram Shankar PW 1, Ram Swarup PW 2, Km. Shahsi Kala PW 3 and Prayag Narain PW 6 are witnesses of fact. The trial court has placed reliance on the statements of Ram Swarup PW 2 and Km. Shashi Kala PW 3. It has, however, discarded the statements of Ram Shankar PW 1 and Prayag Narain PW 6. We, therefore, propose to first examine the statements of Ram Shankar PW 1 and Prayag Narain PW 6.

After scrutinising the statements of the said two witnesses, viz. Ram Shankar and Prayag Narain, we find that their evidence is reliable. The reasons given by the trial court for discarding their evidence are not sound and correct. The learned Sessions Judge has discarded the statement of Ram Shankar merely on the ground that he had reached the scene of occurrence at the fag-end of the occurrence when the Appellants were assaulting Basdeo deceased in the field of Deo Karan when his head was chopped off and the assailants ran away from there with his chopped head. It may be noted that the fact of beheading Basdeo by the Appellants and running away with his chopped head was mentioned by him in the First Information Report No doubt, there is no mention in the First Information Report of the particular Appellant who had run away with the head of Basudeo but this omission of the name of Roop Ram is of no importance and is not sufficient to discard his statement. The object of the maker of an FIR is only to mention the occurrence with such details and information to the police which is sufficient for the police to initiate investigation without any loss of time. Such minute details, if not mentioned in the First Information Report would not render the statement of its maker unreliable on that account. The statement of Ram Shankar cannot, therefore, be discarded on this ground.

The other ground on which the learned Sessions Judge has not believed the statement of Ram Shankar PW 1 is also not sound. The mere fact that he reached the scene of occurrence at its end on hearing the alarm raised from there does not in any way affect his reliability. Rather, this conduct of the witness speaks of his straight forwardness. Instead of saying that he reached the scene of occurrence at the end, he could have stated that he had reached there earlier also. The statement of this witness does not suffer from any improbability. Instead it appears highly probable When he reached the scene of occurrence while Basudeo was being beheaded, there was no difficulty for him to recognise the Appellants in broad daylight.

The last ground on which the learned Sessions Judge has discarded the statement of Ram Shankar PW 1 is equally untenable. The learned Sessions Judge is of the opinion that it was unnatural for him to reach the place of occurrence empty-handed while the Appellants were armed with deadly weapons. The learned Sessions Judge has probably failed to notice that the witness was closely related to the deceased. So it was most natural for him to rush to the place of occurrence spontaneously on hearing noise without any further mental deliberation and without first looking for a weapon. The impulsive reactions in such circumstances differ from man to man. We find that the statement of Ram Shankar PW 1 suffers from no infirmity and is reliable. His statement is further corroborated by the FIR lodged by him with promptitude.

The statement of other witness Prayag Narain PW 6 has also been rejected by the trial court on flimsy grounds. Mere omission of his name in the First Information Report is no ground for discarding him if his presence at the scene of occurrence is proved in the case. He is a resident of the same village and there is no improbability in his statement that on hearing the alarm, he reached the scene of occurrence and witnessed the assault on the three deceased persons by the Appellants. In fact there is nothing in his cross-examination on the basis of which his statement should be discarded on the above grounds. Moreover, his presence on the spot is also corroborated by the evidence of Ram Shankar PW 1, Km. Shasi Kala PW 3 and Ram Swarup PW 2. There is, therefore, no infirmity in his evidence. Once his presence at the scene of occurrence is believed, he cannot be disbelieved on the ground that he is a partisan witness and his name does not find place in the First Information Report. We, therefore, do not agree with the learned Sessions Judge that no reliance can be placed on the statement of Prayag Narain PW 6.

Km. Shashi Kala PW 3 is the sister of Basudeo deceased. She was aged about 15 years on the day of occurrence. Her name is mentioned in the First Information Report. She had deposed that at the time of occurrence, she was washing her clothes on the bank of the village tank at about 11.30 A.M. when she had witnessed the occurrence in which three deceased, viz. Mahabir, Anant Ram and her brother Basudeo were hacked to death by the Appellants. Her presence at the place of occurrence is natural as she was washing her clothes in the tank. She has fully stood the test of cross-examination. The defence in the course of lengthy and grilling cross-examination has totally tailed to shatter her testimony. Her evidence inspires confidence. We have very carefully gone through her evidence and we fully agree with the learned Sessions Judge that she bad given a true account of the occurrence. Her statement cannot be discarded merely because she is sister of Basudeo deceased. The prosecution would not have introduced her, a young girl of the family of the deceased, as a witness, if she was really not present at the scene and witnessed the occurrence. No father or parent would ever venture to send his daughter to the court as an eye-witness if she has not witnessed the occurrence particularly when there was no dearth of eye-witnesses. We, therefore, hold that the evidence of Km. Shashi Kala is wholly reliable and that the learned Sessions Judge has rightly placed reliance on her evidence.

The other witness Ram Swarup PW 2 is the brother of Mahabir deceased. He has deposed that he was in the village and on bearing the report of the first gun shot, he rushed to the place of occurrence and witnessed the occurrence. He is named in the First Information Report which was promptly lodged by Ram Shankar complainant. His evidence is also convincing and reliable. The defence has failed to show any material infirmity in his evidence capable of rendering his evidence incredible. The trial court has rightly placed reliance on his testimony also for the conviction of the Appellants.

The defence has examined Virendra Kumar Mehta, Lecturer, C.A.V. Inter College, Allahabad DW 1 to prove that the Appellant Vinod Kumar was present in the class on the day of occurrence at Allahabad. The witness had produced scholar''s attendance register of the said class and stated that he himself had marked the presence of students including the Appellant Vinod in both the meetings of the day and the Appellant Vinod Kumar is marked present in the said register on 20-8-1973. But from the entries of subsequent dates made in the said register it is quite apparent that either they were not made in the regular course of business or his presence was marked on the basis of some proxy made by others. The Appellant was arrested on 29-8-1973 but the entries made in the said register from 29-8-1973 to 1-9-1973 clearly show that even on these dates, Appellant Vinod Kumar was first marked present and subsequently letter ''P'' written for present has been overwritten ns ''L'' for leave. The learned Sessions Judge has rightly discarded the evidence of Virendra Kumar Mehta DW 1. We also agree with his observations about this witness, who, being in a responsible position, has not cared to uphold the dignity of that position by appearing in this case to thwart the course of justice and by interpolating the Attendance Register.

Having considered all the facts and circumstances of the case as stated above, we are fully in agreement with the learned Sessions Judge that the prosecution has proved its case against the Appellants beyond all reasonable doubt. Consequently we uphold the conviction and sentence of the Appellants as recorded by the learned Sessions Judge.

In the result, both Criminal Appeal No. 1938 of 1977 and Criminal Appeal No. 1939 of 1977 fail and are dismissed. The order of convictions and sentences of the Appellants recorded by the Sessions Judge is upheld. The Appellants are on bail. They shall be taken into custody forthwith to serve out their sentences.

Appeal dismissed.