BHARAT SINGH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) These two appeals are directed against the judgment and Order dated 30th January, 1997 of Allahabad High Court arising out (of) Sessions Trial No. 213 of 1978 before the Sessions Judge, Mainpuri. Five appellants were tried for offences under Section 302/149 and Section 148, I.P.C. on the allegation that all of them came armed and surrounded the deceased Jai Dayal Singh, while he was busy with cultivation work on 15-10-1977 at 1.00 p.m. and opened fire at him. On account of such firing the deceased died. The further prosecution case is that on account of previous rivalry between the parties the deceased had been given police guards and those police guards arrived at the scene of occurrence and even chased the assailants and fired at them but all the assailants escaped. While the deceased was on the field, PW1 Jai Prakash and PW2 Satyapal Singh were also there but they ran for their lives to a certain distance and came to the place of occurrence only after the assailants left the place. Jai Prakash PW1 gave a written report at the Police Station at 3.05 p.m. which was treated as F.I.R. and the police then started investigation. After completion of investigation, charge-sheet was submitted and on being committed, the appellants stood their trial. The learned Sessions Judge relying upon the evidence of the two eye witnesses PW1 and PW2, came to the conclusion that the appellants formed an unlawful assembly and started indiscriminately firing at the deceased, as a result of which, the deceased died. Consequently, the Sessions Judge convicted the appellants for the offences as already stated. On appeal, the High Court also re-appreciated the evidence of the two eye witnesses and agreed with the conclusion of the learned Sessions Judge that the witnesses are trustworthy and reliable and, therefore, the conviction of the appellants on the basis of those two witnesses was upheld. Since the conviction of the appellants is based upon the evidence of the aforesaid two eye witnesses, Mr. U.R. Lalit, the learned Senior Counsel, appearing for the appellants contended that the said two eye witnesses admittedly being inimical towards the accused persons, they cannot be held to be fully reliable witnesses and, therefore corroboration from the independent sources, though was available, the same not having been made available in Court, the prosecution case must be held to have been vitiated. According to Mr. Lalit, the police guards having reached the scene of occurrence while the accused persons were there and the prosecution evidence being that the police guards chased the accused persons and there was an exchange of fire, non-examination of those police guards must be construed to be an infirmity which impeaches the reliability of the two inimical eye witnesses PWs 1 and 2. Mr. Lalit also contended that the occurrence having taken place at 1.00 p.m. in broad day light in an open field and very near the Village Basti, normally one would expect several villagers as witnesses and non-availability of such witnesses must be viewed with suspicion. Mr. Lalit also further argued that the investigation in the case has not been made in a fair manner and the true story has not been placed before the Court, as a result of which the conclusion becomes irresistible that the genesis of the case and the manner in which the deceased met his death is not coming forth before the Court and, therefore the accused is entitled to benefit of doubt. According to Mr. Lalit, the fact that only three cartridges were found, two of which from 12 bore gun and one from rifle, the prosecution case that all the appellants started indiscriminately firing at the deceased cannot be accepted. Learned counsel also pointed out some intrinsic inconsistency between the evidence of the witnesses of PWs 1 and 2 and contended that the evidence of such witnesses cannot form the basis of conviction in a charge of murder, particularly when they had positive animosity against the accused persons.

(2.) In view of the contentions raised by the learned counsel, we have carefully scrutinised the evidence of the two eye witnesses PWs 1 and 2. On going through the same, we do not find any intrinsic inconsistency or contradiction between them, so far as the basic prosecution case is concerned. It is apparent that all three of them namely the deceased and PWs 1 and 2 went to the field together and were doing agricultural operation when these accused persons came in a group being armed and started firing. The two witnesses left the field to save their lives but could see the occurrence from the nearby field keeping themselves hidden but the deceased could not run away and was made a victim of the brutal action of the appellants. That the deceased had died of gun-shot injury is established through the evidence of doctor who had conducted the post-mortem examination on the dead body of the deceased. The so-called minor inconsistency in the evidence of the two witnesses pointed out to us by Mr. Lalit, in our view, do not detract the intrinsic worth of the evidence of the two witnesses so as to dub them as unreliable. On the other hand, a reading of the evidence of these two witnesses makes it crystal clear that they were on the field along with the deceased and they did see the occurrence as narrated by them. It is true that the police guards who had been posted to provide security for the deceased on account of previous rivalry between the parties chased the accused persons as told by PWs 1 and 2 and if any of them would have been examined they would have unfolded the fact of their chasing the accused persons and escape of the accused persons. But by the time they reached the scene of occurrence, the accused had already shot at the deceased and have tried to escape from the place. On going through the materials on record, it is difficult for us to come to the conclusion that the police people have seen the fact of the accused appellants, shooting at the deceased and therefore, non-examination of such police guards who cannot be termed as eye witness to the occurrence will not be fatal to the prosecution. Mr. Lalit, in course of his arguments had also pointed out from the evidence of the doctor that the fact that there has been no scorching, blackening and tattooing injury on the body of the deceased is because of the fact that shooting has not been from a close range and, therefore, the evidence of the eye witnesses cannot be held to be reliable. But in the absence of any positive opinion from the doctor and in the absence of the exact distance from which the accused persons started shooting at the deceased, it is not possible to accept this contention of the learned counsel for the appellants. The evidence of eye witnesses have been scrutinised by the learned Sessions Judge as well as by the High Court in appeal and both the Courts have relied upon the same. Ordinarily, therefore, this Court would not have re-appreciated the evidence unless any glaring defect is pointed out. But in view of the arguments advanced by the learned counsel for the appellants, we have also thoroughly scrutinised the evidence of the two witnesses for finding out whether there is any justification for not relying upon the testimony of those two witnesses. But we do not find anything in their evidence so as to discard them from consideration. In our considered opinion, the Courts below rightly relied upon the evidence of the aforesaid two witnesses in basing the conviction of the appellants. We agree with the conclusion arrived at and hold that the prosecution case has been proved beyond reasonable doubt. We, therefore, do not find any merit in these appeals, which are accordingly dismissed.