BALRAM Vs. STATE OF U P

JUDGEMENT

(1.) There are four appellants. They were convicted by the trial court u/s. 302 read with Sec. 34 of the Indian Penal Code and sentenced to undergo imprisonment for life for causing the death of one Triloki. The appellants, the deceased and the material witnesses are the residents of Ram Nagar Tarhar within the circle of P.S. Kotwali, District Gonda. The deceased was about 50 years of age at the time of occurrence. P.W. 6 Smt. Kalap Raji is his widow and P.W. 1 Ram Raj is the brother of P.W. 6. P.W. 1 is a resident of Village Desiapur which is at a distance of one mile from the residence of Triloki deceased. The hamlet where the appellants reside is about two furlongs from the house of the deceased.

(2.) On 4.3.1974 Smt. Vidya Devi, a widow of the appellants' family sold two plots, one to Bishun Dutt, a minor son of the deceased and Pawan Kumar, minor son of Thakur Prasad. The deceased and Thakur Prasad moved for mutation of their names. Jagannath, father of the appellants, came to know about the transfer of the property of his family and informed his sons about the same. The four appellants, who are brothers, approached the deceased to agree to the reconveyance of the purchased property but he refused to oblige them. Because of this refusal, the accused developed a motive to do away with the deceased. The deceased had about 60 bighas of cultivation. He had only two children. One of them was studying at Faizabad and the other who was residing with him, was a minor. He used to take assistance from his brother-in-law Ram Raj, P.W. 1 in his cultivation. A day before the occurrence, the deceased had called P.W. 1 to his house as he had to bring some tiles from another place. He also requested his neighbour Bindeshwari to help him in that matter. On the intervening night of 27th and 28.03.1974, the deceased got up at about 1.30 A.M. and awakened his wife Smt. Kalap Raji, P.W. 6 and also Ram Raj, P.W. 1 and told that he was going to awaken Bindeshwari to accompany him. He had directed P.W. 1 to keep the bullock cart ready in the meantime. Within three minutes of the departure of the deceased from his house, a sound of pistol shot was heard by P.Ws. 1 and 6. They immediately rushed outside the house. P.W. 1 had a lathi and a torch with him. Bindeshwari and Hirday Narain also arrived with lathis and torches. In the flash of the torches, they saw Balram, the first appellant armed with a pistol, Ram Dhiraj, A-2 armed with a Pharsa, Kritika, A-3 armed with a lathi and Radhey Shyam, A-4 armed with a spear. They were assaulting the deceased in the outer Osara of Brahma Dutt, which is at a distance of about 130 paces from the house of the deceased. Paras Nath, P. W. 2 and another, both sons of Brahma Dutt also came out. When those persons challenged the accused, they ran away. After the departure of the assailants, P.Ws. 1, 6 and others went near the deceased and found him dead. A broken cot was also lying nearby. A blood-stained spearhead left by the assailants was also found inside the Osara. To the dictation of P.W. 1, a written report Ex. P- 2 was prepared by Gopi Nath, P.W. 3 and P.W. 1 took this report to the Police Station Kotwali which is at a distance of 7-1/2 miles from the scene of occurrence and submitted it there at 8 A.M. S.I. Kalika Singh, P.W. 7 registered the crime and took over the investigation. He reached the place of occurrence at 10 A.M. He held the inquest, received the blood-stained articles and other materials including two empties and six wads, and examined the other witnesses. He sent the dead body for post-mortem. Dr. B.C. Pal, P.W. 4, who conducted the post-mortem, found 23 antemortem injuries out of which two were gun-shots wounds and there were number of lacerated wounds, two punctured wounds, one bruise and many abrasions. Apart from these he also found five more incised wounds and all these injuries were scattered almost all over the entire body. On internal examination, he found fracture of occipital bone and fracture of ribs. Pleura was ruptured and four shots were recovered from the region of heart. Small intestines also were punctured. He opined that the death was as a result of shock and haemorrhage. The accused were arrested and after completion of the investigation, the charge-sheet was filed. Though the accused pleaded not guilty, they suggested that the deceased had other enemies also and they might have killed him.

(3.) The prosecution examined three eye-witnesses namely Ram Raj, P.W. 1, Paras Nath, P.W. 2 and Smt. Kalap Raji, P.W. 6. P.Ws. 1 and 6 fully supported the prosecution case but P.W. 2 supported the prosecution story about the murder of the deceased and place of occurrence but refused to identify the assailants. Therefore he was declared hostile. The scribe of the F.I.R. Gopi Nath, P.W. 3 in the cross-examination stated that Ram Raj, P.W. 1 was sent for from his house next morning who gave an F.I.R. On that account he too was treated hostile. The other witnesses examined by the prosecution are of formal nature. After scrutinising the entire evidence, the learned Sessions Judge came to the conclusion that the evidence of P.Ws. 1 and 6 was sufficient to base the conviction and that at any rate their evidence has been corroborated on some important particulars by the other two hostile witnesses also and accordingly convicted all the four accused. In the appeal, the same contentions were put forward but the High Court held that P.Ws. 1 and 6 are the most natural witnesses and the discrepancies pointed out are not very material, and accordingly confirmed the convictions. Hence the present appeal.