BADRI Vs. STATE OF U P

JUDGEMENT

(1.) D. K. Trivedi, J. The present criminal appeal is directed against judg ment and order dated 19-2-86 passed by the 2nd Addl. Sessions Judge, Unnao convicting the appellants under Section 302/149, 307/149 and 323/149 IPC and sentencing each of them to undergo life imprisonment, 5 years' R. I,, and one pear's R. I. respectively. The learned trial Judge further convicted accused Badri, Sita Nand, Raja Ram and Ram Lakhan under Section 147 I. P. C and sentencing each of them to undergo 2 years' R. I. The remaining accused-appellants namely, Bhola, Sheo Shanker and Naresh Singh were further con victed under Section 148 I. P. C. and each of them were sentenced to three years' R. I. All the sentences were directed to run concurrently.

(2.) THE brief facts of the prosecution case are that about 5 years before the present incident, one Shitla, the father of deceased Surendra Singh was murdered and in the said murder case, appellants Sheo Shanker, Bhola Shauker and their father accused Raja Ram aud others were prosecuted. THE said case ended in acquitial. It is further alleged that four months before this incident, Onkar, the brother of Sheo Shanker, appellant was killed and in the said murder case, complainant Arun Kumar Singh his uncle Virendra Singh and Jitendra were challaned. It is said that the said case is pending and on this count, the accused persons bore ill-will against the complainant. Accused Bhola Shanker, Sheo Shanker and Ram Lakhan alias Pandit are real brothers. Accused Sata Nand is nephew of Raja Ram vho is the father of Bhola Sh inker. Accused Badri and Naresh Singh are residents of village-Rampur and Bahadurpur respectively, whereas, the other accused-persons are residents of village-Khanjhari, P. S. Auras, District Unnao. Accord ing to the prosecution case on 26-3-84, in the morning deceased Surendra Singh armed with rifle had gone to his field alongwith his son Arun Kumar in connection with harvesting of the 'arhar' crop. It is said that at about 9 a. m. Surendra Singh alongwith Arun Kumar and two labourers namely, Kallu and Mulla was returing with the harvested crop loaded on the bullock-cart. As soon as, they reached in the Galiyara, accused-persons namly, Badri armed with lathi, Sata Nand armed with lathi, Raja Ram armed with lathi, Bhola Shanker armed with gun, Seo Shanker armed with gun, Ram Lakhan armed with hockey and Naresh Singh armed with country-made pistol came out from the Arhar-field situate just towards the north of the Galiyara. It is said that the accused-persons exhorted their companions to kill the deceased and on hearing the said exhortation, Surendra Singh (deceased) as well as Arun Kumar ran towards southern side. THEy were chased by the accused and finally Sheo Shanker, appellant fired his gun at Surendra Singh who fell down in the field of Sri Ram Teli. According to the prosecution case, the said fire hit the deceas ed on his skull. It is further said that, thereafter, the other accused-persons started beating him as well as the complainant, Arun Kumar by their respective weapons. It is said that the complainant finding an opportunity ran away raising an alarm, which attracted-several village persons who reached there and witnessed the occurrence. THE accused-pers. ms, thereafter, ran away and then the complainant found his father dead and his rifle was also lying there broken in pieces. THE complainant thereafter, prepared a report (Ext. Ka-1) and lodged the same at P. S. Auras on the same day at about 11. 15 a. m. THE distance of the police station from the place of the incident is about 5 miles, On the basis of the report Ext. K-l, chick report Ext. Ka-3 was prepared and a case was registered in the G. D. THE report was registered in the presencs of P. W. 6 Raghuraj Singh Sachan, Station Officer of the Police Station Auras and therefore, the investigation was entrusted to him. He immediately recorded the statement of complainant Arun Kumar at the police station itself and, thereafter, sent Arun Kumar to Auras Hospital for medical examination. THE Investigating Officer, thereafter, went to the place of the incident and prepared the inquest report as well as the other necessary papers for post mortem examin ation. He handed over the sealed dead body of deceased Surendra Singh to P. W. 4 Constable Shatrughan who brought the dead body to mortuary for post mortem examinantion. He also recovered the pieces of the rifle, as well as the blood stained and plain earth. He also found two empty -12 bore cartri dges at the spot, tie recorded the statements of the witnesses and prepared a site plan and after completing the investigation, submitted the charge sheet against the accused-persons.

(3.) COMPLAINANT Arun Kumar Singh was medically examined on 27-3-84 at 9 a m. at P. H. C. , Auras by P. W. 7 Dr. Jagdish Chandra, who found the following injuries on the person of injured Arun Kumar Singh ; (1) Contusion 6 c. m. X 2 c. m. on front and middle part of right fore-arm. (2) Abrasion 1 c. m. X 1 c. m. on the root of (dorsal side) the index finger of left hand. (3) Abrasion 2 c. m. X 1/2 c. m. on the back of left wrist joint. (4) Contusion 4 c. m. X 2 c. m. on the left said of back, scapular region. (5) Abrasion 1 c. m. x 1 c. m. on front of left knee joint. 6 According to the doctor all the injuries were simple and were caused by some blunt object. The injury report is Ext. Ka-20. 7. The prosecution in support of its case, examined eight witnesses' out of them, P. W. 1 Arun Kumar Singh, P. W. 2 Hari Ram and P. W. 3 Kalloo are the witnesses of facts. P. W. 4 Shatrughan Lai, Constable brought the dead body of deceased Surendra Singh to mortuary for post mortem examination, P. W. 5 R. K. Sachan, Radiologist, conducted the autopsy on the dead body of deceased Surendra Singh and prepared the post-mortem report Ext. Ka-2, P. W. 6 S. I. Jairam Singh, Station Officer conducted the investigation in this case and after completing the same submitted tte charge sheet against the accused- persons. P. W. 7 Dr. Jagdish Chandra, medically examined Arun Kumar Singh on 27-3-84 at 9 am. at P. H. C. Auras and prepared the injury report Ext. Ka-20. P. W. 1 Constable Santosh Kumar was examined as court witness to prove the F. I R. as well as the other entries in the G. D. 8. On the other hand, the accused-persons denied the prosecution case and stated that they have been falsely implicated in this case due to enmity. The accused-persons also examined one witness Mool Chandra, as D W. 1 who is Lekhpal of villages 1 ampur and Bahadurpur. He has stated that P. W. 2 Hari Ram has no field in village Rampur Khaajari. 9. The learned trial Judge after considering the evidence on the record came to the conclusion that the prosecution has successfuly proved the guilt of the accused beyond reasonable doubt and, therefore, he convicted and sentenced the accused-appellants as mentioned above, The appellants aggrieved by the aforesaid judgment and order, preferred the instant appeal, in this Court. 10. We have heard the learned counsel for the appellants as well as the learned Addl. Government Advocate and persued the records. 11. The main contention of the appellamvcounsel is that the learnsd court below committed an error in holding that the prosecution has success fully proved the guilt of the appellants beyond reasonable doubts. Th appellants' counsel pointed out that in the instant case all the three eye witnesses are inimical and partisan witnesses. Apart from the fact, that they are inimical and partisan-witnesses, their presence on the spot at the time of the incident is also not free from doubt. It is alleged by the prosecu tion that the deceased and the complainant were chased upto a distance of 1 4 furlongs but even then, the deceased Surendra Singh did not try to use his rifle. There is nothing on the record to support the story of cutting of the Arhar crop and further the time of the incident is also not proved beyond reasonable doubt. He further contended that the facts and circum stances of the case as well as medical evidence, belie the prosecution case that the incident took place at about 9 a. m. According to him, the probability is that the incident took place in the early hours of the morning when the deceased had gone to ease. He further pointed out several infirmities and improbabilities in the statements of the eye-witnesses, and contended that in view of these infirmities, the testimony of these witnesses cannot be relied upon. He also contended that there is a conflict between the medical and oral evidence and, therefore, the oral evidence is not believable. The learned counsel for the appellants further challenged the injuries of complainant Arun Kumar 'singh and contended that the injuries of Arun Kumar Singh are superficial and appear to be fabricated later on for the purpose of this case. 12. On the other hand, the learned Addl. Government Advocate vehmently contended that the learned Sessions Judge has committed no illega lity in convicting the appellants in this case, because there is an over-whelming evidence of the three eye-witnesses. He also pointed out that out of these three eye- witnesses, one witness namely, P. W. 1 Arun Kumar Singh had also received the injuries and therefore, his presence on the spot cannot be doubted. 13. In the instant case, it is not disputed that there is a long standing enmity between the accused- persons on one side and the complainant, on the other side. The enmity is a double edged weapon and, therefore, the accused had a motive to comtnit the murder and on the other hand the complainant had also sufficient motive to falsely implicate the accused-persons. It is also not disputed that all the three eye-witnesses examined in this case are partisan and inimical and no independent witness came forward to support the prose cution case. It is also not disputed that P. W. 1 Arun Kumar Singh was an accused in Onkar's murder case and he was assigned a specific role firing, but even then no one caused any serious jury to him. It is also not disputed that the deceased (Surendra Singh) who was armed with rifle did not try to use it even though, he was chased upto a distance of 2j furlongs. There is no explanation on the record to show as to how the rifle of deceased Surendra Singh was found broken in pieces. It is also the case of the prosecution that three of the appellants were armed with fire-arms and the also fired their fire arm but no injury was caused to deceased except injury No. 4 to the com plainant. 14. In the instant case, the prosecution examined three eye-witnesses in support of its case. P. W. 1 Arun Kumar Singh is the complainant and son of decease ! Surendra Singh. It is the case of the prosecution that Onkar, the brother of Shiv Shanker appellant was killed and, therefore, in order to take revenge, the accused-persons committed this murder. It is not disputed that P. W. 1 Arun Kumar Singh was one of the accused in Onkar's murder case and he was assigned the role of firing. It is also alleged that Surendra Singh (deceased) was not accused in Onkar's murder case. According to the prosecution case, Arun Kumar Singh accompanied the deceased upto the field and, thereafter, returned with the deceased at the time of the incident. It is also alleged that both of them were chased by the accused- persons and the accused-persons assaulted the deceased in the field of Ram Singh Teli. P. W. 1 Arun Kumar Singh was also there and was assaulted by the accused-persons. It is not disputed that at the time of the assault on the deceased, he was very close to the deceased (Surendra Singh ). In these circumstances, it is strange that the accused-persons instead of killing P. W. I Arun Kumar Singh, killed Surendra Singh who was not accused in Onkar's murder case and secondly, it is also not probable that the accused-persons will cause only simple and superficial injuries on the non-vital part of the body of Arun Kumar Singh who had taken active role in the murder of Onkar, the brother of Sheo Shanker, accused. The injuries found on the body of P. W. 1 Arun Kumar Singh all are on non-vital part and are simple injuries. From the perusal of the injuries it appears that the accused did not assault him but very simple blows were given to him. In these circumstances, in our opinion, the presence of Arun Kumar Singh is doubtful at the time of the incident. Apart from this, P. W. 1 Arun Kumar Singh has no reason to accompany Surendra Singh to the said field. He himself stated that he had gone there without any reason. Again, he was medically examined by P. W. 7 Dr. Jagdish on the next day, the explanation given by P. W. 1 Arun Kumar Singh that on the 26-3-84, he was sent to the P. H. C. but as the doctors were not available in the hospital, therefore, his injuries could not be examined on 26-3-84. On the other hanu P. W. 7 Dr. Jagdish in his cross-examination admits that there are two doctors in the P. H. C. and both of them live in the hospital compound and therefore the explanation given by P. W. 1 Arun Kumar Singh is not correct. Again, if the doctors were not available in the Hospital and he waited there then the CTpmpounder must have made some entry in the Chitthi Majroobi or he would have given some medical first aid to the injured. In any case, it is the duty of the prosecution to explain this delay and in the absence of any such explanation from the doctor, it is not possible to believe the state ment of P. W. 1 Arun Kumar Singh that his injuries could not be examined due to absence of the doctor. This delay of examination the injuries of P. W. 1 Arun Kumar Singh coupled with the facts that Arun Kumar Singh had only simple and superficial injuries throws doubt about the genuineness of these injuries and possibility of the fact that these injuries were fabricated later on cannot be excluded. It may be pointed out here that P. W. 2 Hari Ram in his statement under