KHUSHI RAM Vs. STATE OF U P

JUDGEMENT

(1.) S. K. Agarwal, J. This appeal was filed by appellants Khushi Ram, Pati Ram and Makhan against their conviction under Section 302/34, 325/34 and 323/34 I. P. C. They were sentenced under the first count to life imprisonment, under the second count to 3 years and under the third count to 2 years R. I. There were 3 other accused who were tried alongwith them but they were acquitted. They are Balak Ram, Rameshwar and Khem Karan. All the sentences were to run concurrently.

(2.) THE story revolves round an inci dent that occurred at 7. 30 a. m. in village Mianpur Gautia situate on the western bank of the river Garra on 24-3-1979. At about 7. 30 a. m. the deceased, informant and his grand son Hulasi Ram boarded the boat of Ram Dayal, P. W. 2, to cross the river to go to their field. When the boat reached the western end of the abovesaid river and Baladin was about to tie the boat, the appellants and the acquitted accused per sons, who were also on the boat, came down from the boat and as soon as the complainant party started to come down, Rameshwar who was armed with a gun stood up raising barrel of his gun towards the complainant party and exhorted his other companions, who were armed with Lathis, to kill Baladin grand father of Hulasi. As a consequence to it an assault was launched by his companions upon the victim. THE deceased tried to protect him self with the Kassi held by him but ul timately hid himself underneath the planks of the boat. He was dragged out from there by the appellants and their acquitted companions. THEy, thereafter, assaulted him with Lathis till his death. THE informant Nanhu and Hulasi Ram also tried to intervene but were to jump off the boat on being assaulted. As soon as Baladin died, the applicant took to their heels towards north- west. Nanhu and Hulasi came back to the boat a little later and examined the victim. He was dead. THEy left the dead-body in the custody of Ram Dayal, the boatman. THEy proceeded towards the police station which is about a mile and half from the spot of occurrence. Nanhu dictated his report to the constable clerk and put his thumb mark upon it. A case was registered and investigation was taken up by P. W. 6, Veer Pal Singh. After completing the initial formalities, he stood transferred to some other police station and investigation was concluded by P. W. 5, S. I. Brijraj Singh. He submitted a charge-sheet against all the six nominated accused persons. As earlier stated, the present ap pellants Khushiram, Patiram and Malkhan have been convicted being close ly related to each other and also bore en mity towards the deceased. While the other three namely Rameshwar, Balak Ram and Khem Karan have been ac quitted by the Sessions Judge.

(3.) THE learned counsel for the defence has argued that the prosecution version as disclosed in the F. I. R. and sub sequently brought forth in the trial has them on boat. THEy used to pass for coming to the eastern bank through the house of appellant Khushi Ram. THE road passes in front of his house. According to him, Shankar and his cousin Deena also accom panied them. He has categorically denied Deena's presence on the boat, Shankar has not been produced nor they have stated in the trial Court that he was also with them. He has further admitted that father of Ram Dayal was a witness in the theft case. Deena was also a witness in that case. THE theft had occurred 3-4 months before the present incident. After the theft, according to this witness, for the last 3-4 months no such indication was given by the accused persons from their conduct which may alarm them. According to him, the deceased used to cross-the river alone also. He has denied that any villager used to stay in their field during night. According to him every one used to come back to their residential side across the river after the sun set. Even during the days of harvesting none of them used to stay there during night. He has stated that in his F. I. R. and in the statement to the investigating officer, he had disclosed the fact of their being in possession of Kassi but it is strange that none of these facts have been stated in the F. I. R. nor in his statement to the inves tigating officer and this witness was unable to offer any explanation for its omission. In the trial Court he has stated that they were going to plough sugarcane field but this fact admittedly was not there in the F. I. R. He has stated that Deena could not board the Feri and was standing on the eastern bank of the river. He has further stated that no assault was launched in the mid of the river but has come up with a new story that when Baladeen sat in the boat Rameshwar aimed his gun on him and said this is a good opportunity to kill Baladeen and the other assailants started belaboring Baladeen but Rameshwar did not fire from his gun. THE investigating officer had found the dead body on the boat itself. Baladeen hid himself under the planks of the boat but was dragged out from there and was killed. He further stated that he failed to disclose in the F. I. R. about Kassi and Danda. Ac cording to him the assault continued for half an hour. Neither he nor Hulasi can swim. THEy raised alarm after they had reached to a distance of 30 paces. On the other end of the river about 100-150 per sons collected and witnessed the incident. He had named four of them Babu, Jalim, Shivraj and Kashi but according to him none of them swam the river to save his grand father. He admitted in his statement that the assailants and other acquitted ac cused are operating as a group but was unable to explain its omission in the state ment to the investigating officer. Accord ing to him the field, which he was going to plough, was of 15 Bighas and was owned by Jaisukh, Bakkha and Khemraj. He could not disclose its number. THEy were going to plough the portion that belong to Jaisukh. He further admitted that he had shown his Kassi to the investigating of ficer. THEre was blood on the Kassi held by the deceased but on the Kassi held by him there was no blood. He did not go on the boat when the inquest was prepared. Ac cording to him, the Kassi belonging to Baladeen remained on the boat. THEir Kassis were also left on the boat. He was- unable to tell what happened to these Kas sis He has denied the defence suggestion that the incident had taken place during night and he had not seen the incident and their injuries are fabricated. He has fur ther admitted that Bakkha had litigation with Rameshwar but he had none. He had nominated Rameshwar on the suggestion of Bakkha and Shankar. He has further admitted that Sundar is uncle of Khem-karan. He has further admitted that Sobha son of Netra Knew Rameshwar. A case of Marpit was contested between Ramesh war and Sobha on the one hand and Bak kha on the other hand. He pleaded that he did not know whether Sundar was a wit ness in that case. He had denied the sug gestion that Khemkaran was nominated at the instance of Bakkha. THE evidence of this witness disclosed clearly that this wit ness has improved his case from the F. I. R. and 161 Cr. P. C. statement to a large ex tent. He had given up his two witnesses Shankar, his brother and Deena, his cousin. THE fact that he was going to plough the field belonging to Bakkha and others and nomination of 3 acquitted ac cused was not found worthy of credence by learned Sessions Judge. I find that the evidence regarding the participation of these 3 accused is unworthy of any credence. THE witness Ram Dayal has not stated a word about the participation of these 3 accused persons. No motive has been established against these 3 accused for committing the murder of Baladeen. THE circumstances also speak that they may not have participated in the occur rence. Had Rameshwar been there and he intended to commit the murder of Baladeen, there was no need for him to give any exhortation. He could have easily fired from his gun and put an end to the life of Baladeen. He would have never exhorted other accused to assault the deceased by Lathis. Thus, giving the deceased a chance for survival by him is not acceptable to us. THEre exists an en mity also against these 3 accused as a case was lodged by Baladeen and in evidence Bakkha is on the side of deceased Baladeen and Shankar is an eyewitness. His explanation is that litigation had taken place between Bakkha and accused Rameshwar. This enmity is sufficient to falsely nominate these 3 accused persons in the occurrence. In this view of the case we are of the opinion that participation of these 3 accused also has been rendered doubtful. THEy, therefore, were rightly ex tended benefit of doubt by the trial Court. 8. According to P. W. 2, Ram Dayal, Makhan and Patiram plied their Lathis. He had very categorically stated that he had not seen any other person using the Lathi even in the assault upon the two injured witnesses. He had nominated Makhan and Patiram alone. P. W. 2 was declared hostile but still his evidence can not be discarded altogether. 9. Now the question that is raised by the defence before us regarding the genuineness of injuries of these witnesses assume significance. If these injuries are found fabricated then presence of these witnesses will be rendered highly doubtful then presence of these witnesses will be rendered highly doubtful and their version against these appellants also will become unworthy of any credence. In this regard we have been taken through Exts. Ka. 12 and Ka. 13. According to theses injury reports these victims were examined at 11. 00 and 11. 15 a. m. One of them had lacerated wound on scalp frontal lobe 3-1/2 cms. x 1-1/2 cm. x 1 cm. Oozing of blood is also shown. THEy were examined by P. W. 7 Dr. A. S. Tripathi at Government Ayur-vedic Hospital, Shehramau (South), Shahjahanpur. THE injuries were found simple and fresh and caused by some blunt object. THE doctor had stated in cross- examina tion that these injuries could be caused within 6 hours. Earlier in examination in chief he had stated that they could be caused at 7. 30 a. m. on 24-3-1979. Accord ing to him since these injuries were bleed ing that raise a probability that they were caused hour or two before as well. He had further stated that these injuries could be self-inflicted also. THE X-ray examination report prepared by V. K. Mohan shows fracture of right radius 2" above the lower end. THE Medical Officer Dr. A. S. Tripathi, P. W. 7, has found these injuries simple and had not advised for any X-ray. This radiologist was produced in Court as P. W. 4 and a scrutiny of his evidence strengthens our suspicion about the X-ray report and its genuineness. He has clearly stated that he is running a X-ray clinic by the name of Mohan X-ray. On 6-4-1979 Nanhu Lai came to his clinic for an X-ray of his wrist. He had drawn two X-rays A. P. and L. P. He has filed the X-ray plates. THE X-ray report is Ex. Ka. 1 and his report is Ex. Ka. 2. In cross-examination he has admitted that Nanhu was not referred to him either by the police or by the Medical Officer, District Hospital. THEse X- rays were done by him on taking his fees. Nanhu Lai had not disclosed to him that the injury on the wrist was sustained by him in any murder case, therefore, he has not taken care to intimate to the police. Nanhu Lai was not known to him from before. He had not obtained any identification of him from any one. THErefore, we find it very difficult to grant any credibility to the X-ray examination report. Since his injuries were reported to be simple by P. W. 7 Dr. A. S. Tripathi, we find no ostensible reason for this injured to undergo any X-ray ex amination. THErefore, we discard radiologist's evidence as unworthy of any credence. This piece of evidence is simple over zealousness on the part of the witness and does not cast any doubt about the authenticity of their injuries. We are of the firm opinion that their injuries are genuine. THEy were not fabricated. We hold that the presence of these witnesses at the place of occurrence, in the circumstan ces, is credible and cannot be discarded for the overdoing of Nanhu or the prosecu tion. One of them has suffered a bleeding injury on his head. THEir evidence thus cannot be discarded. 10. THEir testimony has already been discussed at length by us earlier in our judgment. Now we propose to examine it in the light of the evidence P. W. 2 Ram Dayal. 11. Ram Dayal, P. W. 2, was declared hostile by the prosecution when he failed to support the prosecution version regard ing the participation of Khem Karan, Rameshwar and Balak Ram. So far as this witness is concerned he has very clearly admitted that the boat was purchased by the villagers by contributing towards its cost. He was appointed as boatman by the villagers. His father was a witness in Baladin's case is admitted to P. W. 1 but this witness has pleaded ignorance, although he has admitted that he and his father lived separately in the same house and he has no quarrel with his father. THErefore, we are not prepared to accept that he was not aware of this fact. No effort was made by him to intervene although he was in pos session of equipments by which the boat was ferried. He had also stated that he had seen two Kassis in the boat. One of them had fallen in the river and one Kassi which was on the boat was not present when the investigating officer arrived. It was found after 10-12 days but the investigating of ficer denied recovery of any such Kassi. According to him they were blood stained. Had it been so, the investigating officer could not have missed or avoided to take them into his possession. THE investigat ing officer had not seen any Kassi. THE Kassis were taken away by the family mem bers of Nanhu. He had not disclosed presence of any Kassi with the witnesses. Moreover his admission that 20-25 other persons were also on his boat including Shankar has some significance. Although to the investigating officer he had stated about the presence of Deena also but now has denied his presence. He had clearly admitted that Nanhoo had plied Lathi in his defence but Nanhu denied it. He had admitted that he told the investigating of ficer that Baladeen had plied Kassi in his defence. He has denied presence of any injury upon any of the accused persons. He has also denied the defence suggestion that Baladeen was murdered in the darken hour of night and no witness was present at the place of occurrence. Though the tes timony of this witness is not the testimony of an independent person and he is also an interested and partisan witness but his evidence inspires confidence. He ought not to have been declared hostile. He seems to have at least some sense for truth alive in him and resisted the temptation of supporting the falsehood in its entirety. He certainly lends corroboration to the prosecution case of participation of these three appellants in the incident. 12. THE evidence of these three eye witnesses is further corroborated from the circumstances. Such as recovery of blood from the boat, recovery of the dead -body of Baladin as well as prompt medical ex amination of the injured witnesses and presence of the boat al the western bank of the river. 13. Now coming to the evidence of Hulasi Ram P. W. 3. We find that he had also come up with a case that all the accused persons had assaulted the victim and them. This witness has attributed the role to Balak Ram for his injuries and Patiram for the injuries of Nanhu but P. W. 1 has not stated any such thing. He has also stated that his grand-father had tried to save him self by using the Kassi and Nanhu had already gone out of the boat and as soon as he tried to save his grand father he has also sustained injuries from Lathi. THEreafter, he jumped from the boat and ran to safety and stood 30 paces away. He has admitted the presence of Shankar on the boat at the time of assault. According to him Balak-ram ran behind him by jumping from the boat. He has denied presence of 15-20 others on the boat. He has stated that he has informed the investigating officer that Balak Ram has used his Lathi upon him. He could not offer any explanation for its omission there. He has also denied the suggestion that there was no sugar cane on that joint property. He has admitted that a Maarpit had taken place between Ramesh war and Bakkha. He has denied knowing any Sundar of his village. He has also denied the suggestion that he is deposing falsely on account of Bakkha. But in a faction ridden village witnesses are prone to mix truth with falsehood. Where truth is discernible from false to a degree of its reliability the evidence of a partisan wit ness must not be thrown overboard. THE evidence of both P. W. 1 and P. W. 3 is such that the truth is severable. We are helped in this endeavor by P. W. 2 Ram Dayal. THE demise of Baladin had probably impelled him to spell out the truth alone. In the light of his evidence we are inclined to believe these witnesses to the extent of the par ticipation of these appellants in the inci dent of killing of Baladin and causing in juries to Nanhu and Hulasi. 14. THE law is that a partly reliable witnesses cannot be corroborated by another partly reliable witness. THEre ought to be some wholly reliable cor roborative evidence, it may be oral or cir cumstantial. Corroborative circumstances we have already pointed to earlier. THEre fore, absence of any oral evidence of a reliable person in the present case do not demolish the prosecution evidence in its entirety. 15. It is also proved beyond doubt that the assault on deceased Baladin was made with Lathis. All but 3 injuries sus tained by the deceased are lacerated wounds. Three of these 11 injuries are on front and back of head and there are frac ture of frontal and occipital bones under neath them. THEse injuries are 5, 6 and 8. Fracture of left maxillary bone from cheek to root of nose, fracture of mandible, frac ture of maxillary bone on right side, frac ture and removal of as many as 20 teeth from upper and lower jaws under injuries Nos. 1,2,4 and 8 is clearly a proof of the brute intensity of their assault. It also helps us to gather their intention. Heavy extent of internal damage proves beyond any doubt that they conjointly held the inten tion to kill Baladin. From the nature and seat of injuries probability makes it avail able. THE deceased was ruthlessly battered. THE ferocity of the assault hardly leaves any room for any other inference or prob ability. 16. In the light of the above discus sion we find no force in the defence sugges tion that there was no intention to kill hence the offence will be covered by Sec tion 304 Part II. THEre are stages from which the intention of the offenders is to be gathered i. e. direct evidence to that effect or the indirect evidence (cir cumstances) available on record such as number, nature of the injuries, weapons employed in causing them etc. apart from the motive. THE circumstantial evidence is so sturdy and complete in this case that we find it difficult to accede to the above defence suggestion. THE offence thus clearly fall under Section 3021. P. C. It is not covered by any of the exceptions to Section 300 or Section 299 I. P. C. 17. We, therefore, uphold the convic tion of these appellants for the offence of murder of Baladin and their conviction and sentences under Section 302 I. P. C. read with Section 34 I. P. C. and under Sec tion 325/34 and Section 323/34 I. P. C. are accordingly affirmed. THEy are on bail. THEy shall be taken into custody forthwith to serve out their respective sentences. Copy of this judgment be sent to C. J. M. concerned for immediate compliance. Appeal dismissed. .