AMAR PAL Vs. STATE OF U P

JUDGEMENT

(1.) Both these appeals arise out of the same judgment and hence are being disposed of through this common judgment. 1. The learned 1st Additional Sessions Judge, Meerut in Sessions Trial No. 5 of 1979-State of U. P. v. Tirkha and four others convicted all the five appellants under Sections 302/149, I. P. C. and under Section 148, I. P. C. and sentenced them to life imprisonment and one year's R. I. respectively vide judgment, dated 2-11-1979. These appeals have been filed against the afore said conviction and sentence. 3. The following pedigree of the appellants will help in appreciating the facts: Bhagmal Son (Tikha accused) Kartar Man Singh Amarpal (assused) Babu Karanpal Krishna Pal (assuced) Sohanveer (assused) 4. The prosecution case was that the fields of the complainant Ziley Singh and appellant Tirkha were adjoining. Their relations were strained They were involved in several criminal litigations on 11-10-1978 Amarpal (deceased) went to the shop of Dr. Raj veer (PW 6) at about 12-30 p. m. as he was having headache. After taking medicine he came out of the shop, when the appellants surrounded him and assaulted him with knives. The occurrence was witnessed by PW 2 Ram Saran, PW 3 Atar Singh, PW 6 Dr. Rajveer and one Ramveer (not examined) amongst other persons. Amarpal fell down in front of the house of Basti Ram and died on the spot. Complainant Ziley Singh, PW 1 who is uncle of the deceased received information of the incident and reached the scene of occurrence and prepared report (Ext. Ka- 1) scribed by his nephew Azadpal brother c f the deceased and lodged the first information report at 4. 15 p, m. on 11-10-1978 at Police Station, Saroorpur after covering a distance of nine miles. Sub- Inspector Atma Singh, PW 9 of Police out-post Khiwai visited the place of occurrence and started the investigation, conducted inquest on the dead body, prepared panchayatnama and sent the dead body through the constables Mehak Singh (PW 8) and Balbir Singh to Meerut mor tuary. Dr. S. C. Goel, PW 5 conducted the post-mortem examination on the deadbody of Amarpal on 12 -. 0-1978 at 3. 30 p. m. and found 2 lacerated wounds and 16 incised wounds which were all ante-mortem on the dead body. In the opinion of the doctor, the incised wounds could be caused by knife and the lacerated wounds could be caused by a fall over 'kharanja or the head hitting the wall. 5. The Investigating Officer interrogated PW 1 Ziley Singh on 11-10-1978, prepared site-plan, and took blood stained and unstained earth from the place of occurrence. He also found blood on the wall near the scene of occurrence. Thereafter the investigation was taken up by S. O. Prem Singh Nagar (PW 7) who recorded the statement of PW 3 Atar Singh on 1-11-1978, PW2ramsaran on 2 11-1978 and Dr. Rajveer, PW 6 on 6-12-1978. The charge-sheet was submitted on the same day. 6. The appellants pleaded not guilty and claimed that they have been falsely implicated due to party politics. The prosecution examined three eye witnesses, namely, PW 2 Ram Saran, PW 3 Atar Singh and PW 6 Dr. Rajveer alongwith other formal witnesses. The appellants did not examine any witness but filed certain papers. The trial Court after considering the evidence on record came to the conclusion that the charges under Sections 30, /149,1. P. C. and 148, I. P. C. have been proved against the appellants. He, therefore, convicted and sentenced the appellants as aforesaid. Hence those appeals. 7. We have gone through the evidence on record carefully and have heard the learned counsel for the appellants as well as the State Counsel at length. The evidence of eye-witnesses has been challenged firstly on the ground that they are interested and inimical witnesses and secondly on the basis that the Investigating Officer recorded their statements after unreasonable and unexplained delay. The learned counsel for the appellants also argued that the statement of Dr. Rajveer, PW 6 is unreliable because he is not named in the first information report, he has not been named by PW 1 Ziley Singh under Section 161, Cr. P. C. , his statement has been recorded by the Investigat ing Officer after 1-3/4 months and he is an interested witness. The learned counsel has also argued that though the first information report and the state ments of the eye witnesses did not indicate as to how the victim received two lacerated wounds on the head, false explanation that the victim's head collided with the wall has been given by the eye witnesses. Learned counsel argued that, therefore, the explanation being an after-thought and unreliable the medical evidence contradicts the oral evidence. Learned counsel further argued that no independent witness of the locality has been examined by the prosecu tion although the incident occurred in the locality having several houses. In reply the learned State Counsel has argued that merely because there is delay in recording the statements of eye witnesses, the eye witnesses will not become unreliable, if they are otherwise reliable witnesses. Further it has been argued by the prosecution counsel that even if there is no explanation for the injuries Nos. 1 and 2 (lacerated wounds), the manner of incident would indicate that these injuries could be caused through fall of the victim on the 'kharanja' or on the adjoining wall. 8. We proceed to consider the evidence on record to appreciate these arguments. The evidence led by the prosecution regarding motive of the crime is reliable and there cannot be any doubt that there were strained relations between the deceased and his family members on the one hand and appellant Tirkha and his sons on the other. There was a marpit between the complai nant and appellant Tirkha and his sons on 8-4-1978 in connection with irriga tion of a field. A report of that incident was lodged by Mahabir uncle of the deceased (chick report Ext. Ka-14 ). Appellant Tirkha and his sons again picked up a quarrel on the night between 25/26th June, 1978 and assaulted Smt. Pitamo mother of the deceased. A report of that incident was lodged by Azadpal, brother of the deceased on 27-6-1978. A cross report of that incident was also lodged by appellant Sohanveer against deceased Amarpal and his mother Smt. Pitamo and Azadpal brother of deceased alongwith others. It is also undisputed that at the time of murder of Amarpal, proceedings under Sections 107/1 (1 were pending between the parties. There is, thus, reliable evidence that the appellants had strong motive to commit the crime. It is, however, true that the same motive could also result in false implication of the appellants because enmity is a double edged weapon, if, however, there is direct and reliable evidence o' the crime, this question of motive looses its importance. 9. The three witness, namely, PW 2 Ram Saran, PW 3 Atar Singh and PW 6 Rajveer have consistently stand that they saw all the five appellants assaulting the deceased infront of the shop of Rajveer on 11- 10-1978 at about 12. 30 p. m. with knoves. All of them have stated that they were attracted towards the scene of the crime because of the alarm raised by the victim, PW 2 Ram Saran has his house at a distance of about 0 or 60 yards from the shop of Dr. Rajveer. This distance, according to PW 1 Ziley Singh is 115 yards but that is only an estimate. The presence of this witness is, therefore, pro bable. PW 3 Atar Singh has his house about 40 to 50 yards from the place of occurrence. According to PW i Ziley Singh, the distance is about 100 yards but still even the presence of this witness is highly probable. Dr Rajveer, PW 6 has his shop just adjacent to the place of occurrence. It is in the first information report itself that the deceased had gone to his shop to take medi cines for headache and he had taken medicine and had come out from the shop when he was surrounded and assaulted by the culprits. The presence of Dr. Rajveer Singh is, therefore, highly probable and natural. 10. The first criticism against these witnesses is that because their state ments were recorded by the Investigating Officer after undue delay, their evidence becomes unreliable. For this argument, the learned counsel for the appellants has relied on a decision of the Supreme Court in 1988 SCC (Cri) 361 A adheh and another v. State of Madhya Pradesh. In that case, the incident had occurred in Madhya Pradesh near octroi post and inspite of the presence of employees of toll barrier, Home Guards or local residents and the District Magistrate, Senior Superintendent of Police and other officers who had reached the place of occurrence within few minutes of the incident, tiie prosecution had not produced any of them but had examined two witnesses Udai Singh and Kali Charan who were residents of Uttar Pradesh and were close relatives of the deceased and their presence at ths scene of occurrence was highly doubtful. It is on the basis of these facts that it was found by the Supreme Court that the trial Court rightly discarded their testimony as their statements had been recorded by the police after two months of the occurrence without there being any explanation for the delay. 11. In the present case, however, PW 2 Ram Saran has his house 50 or 60 yards away from the place of occurrence. He has stated that after the incident he did not coins back to the place of occurrence on that day. Thus, the Investigating Officer could not meet him, on that day. He has also stated that he had gone out once or twice after the incident hence it is probable that his statement could not be recorded because of his non-availability. So far PW 3 Atar Singh is concerned, he lives at a distance of '-,q to 50 yards from the place of occurrence. He has stated that he remained at the scene of occur rence upto 4 or 5 minutes after the incident and, thereafter, he went away. He again came there at about 5. 30 p. m he is also a witness of Panchayatnama but the Investigating Officer did not record his statement as a witness of Panchayatnama on that day. The next day this witness went to Girdhsrpur and came back 5 or 8 days later. He has stated that he goes out of station occasionally. Hence it is possible that the statement of this witness could not be recorded by the Investigating Officer because of his non- availability. PW 6 Rajveer was not interrogated by the Investigating Officer and, therefore, he moved an affidavit before the Deputy Superintendent of Police as pet his state ment in the trial Court He has stated that he was eye witness of the occur rence but because he was not interrogated, he moved that affidavit. He was, therefore, interrogated by the Investigating Officer after i-1/2 months. It is important to note that the first information report mentions in the beginning that the victim had gone to the medicine shop of Or. Rajveer to take medicine for headache and that the victim had received medicine and had come out from the shop when he was assaulted. The Investigating Officer was therefore, duty bound to record the statement of Dr. Rajveer Singh to test the veracity of the contents of the first information report regarding visit relating to the victim just before the incident. If the Investigating Officer failed to record the state ment of Rajveer, no adverse inference could be drawn against Dr. Rajveer regarding his reliability as an eye witness. 12. Learned counsel for the appellants also placed reliance on the decision of the Supreme Court in Balakrishna v, State of Orissa, AIR 1971 SC 804. In that case the evidence of two eye-witnesses had already been rejected and there was only one eye-witness left for consideration, whose statement had been recorded after 10 or 11 days of the incident, and there was no explanation for the delay. Moreover, there were discrepancies in his statement as to whether the eye-witness had been admitted in the hospital or not and whether the version of the eye-witness that he received four lathi blows was correct in the face of the medical evidence. The Supreme Court after considering these facts remarked that in view of these incongruities there is justification in the comment of the learned Advocate for the accused that the delayed examination of the eye-witness by Investigating Officer would give an opportunity to the eye-witness to concoct a different version than what actually took place. The facts in the present case are different. PW 6 Dr. Rajveer Singh is a reliable and trustworthy witness. There are no incongruities and discrepancies in his statement to render his evidence unreliable. Hence delay in recording his statement alone is not sufficient to discard his testimony. 13. Coming to the next point that the statement of Dr. Rajveer should be rejected as unreliable on the basis that he was not named in the first infor mation report and was not named by PW 1 Ziley Singh in his statement under Section 161, Cr. P. C. we find that these arguments do not have much force. The first information report mentions that the victim had gone to the shop of Dr. Rajveer and he had taken medicines there and when after taking medicine he came out on return journey, was assaulted. The first information report is not an encyclopedia and if, therefore, the presence of Dr, Rajveer as an eye- witness has not been mentioned separately in the first information report, the defence does not get any advantage out of it. PW I Ziley Singh may not have named Dr. Rajveer, PW 6 as an eye-witness during his statement before the police under Section 161, Cr. P. f. but PW 1 Ziley Singh is himself not an eye- witness. He mentioned facts only according to information received from Dharampal Singh. We have already found that it was the duty of the Investigating Officer to record the statement of Dr. Rajveer at the earliest possible time on the basis of the facts alleged in the first information report and for that failure the witness cannot be discarded as unreliable. Dr. Rajveer is a natural witness. His presence in the shop just before the incident cannot be doubted. The incident occurred infront of his shop. It was, therefore, most natural for this witness to hear the alarm of the victim and to come out from the shop and to witness the incident. We are, therefore, of the opinion that Dr. Rajveer PW 6 is a reliable and trustworthy witness. It was further argued in continuation of the same argument that if the presence of Dr. Rajveer is doubtful the presence of the other eye-witness who support the presence of Dr. Rajveer also becomes doubtful and untrustworthy. In this connection, the decision of the Supreme Court reported in AIR 1957 SC 589 (Bhagwan Das and another v. State of Rajasthan) has been cited, In that case, the presence of one witness Bega had become doubtful but another witness Hajari had mentioned the presence of Bega because Bega was to be produced as a prosecu tion witness and Hajari had been asked to mention it and yet the High Court had relied on the statement of Hajari. It was on those facts that the Supreme Court held that "hajari had mentioned the presence of Bega merely because the later was to be produced as a prosecution witness and because he (Hajari) had been asked to mention it, then it would detract so materially from his reliability that if would be dangerous to accept his testimony as being of any great value. '7 In the present case the facts are different We have already found that the presence of Dr. Rajveer cannot b: doubted. He has been found to be a reliable witness. Under these circumstances, the reliability of other eye-witnesses cannot be doubted on this ground that they support the presence of Dr. Rajveer at the time of occurrence. 14. The next point argued by the learned counsel for the appellants relates to two lacerated wounds received by the deceased. Dr. S. C. Gee), PW 5 has stated that these two injuries could have been received by the victim because of a fall on 'kharanja' or because his head collided with the well. PW 9 S. I. Atma Singh, the first investigating officer has found blood spots on the well adjoining the scene of occurrence. It is, therefore, highly probable that these two injuries were received either when the victim fell on the ground or that his head collided with the well. The prosecution need not have explained the manner in which these two injuries were caused. In a marpit where five persons were assaulting one victim with knives, it is natural to believe that the victim would try to run away and in that process he would be forced to stay where he was and in these scuffle he would fall down or hit the well near the place of occurrence. We are, therefore, of the opinion that there is no conflict in the oral evidence and the medical evidence. All he details of the manner of the occurrence need not come in the statements of the eye-witness during interrogation by the Investigating Officer. If, therefore, the eye-witness mentioned for the first time in the trial court that they saw the victim colliding with the wall there is nothing unnatural or improbable about the same. The eye-witness account cannot be rejected on this ground. 15. It was also urged on behalf of the appellants that independent witness of the locality has been examined. The eye-witnesses Ram Saran and Atar Singh may be termed as witnesses interested in the deceased but Dr. Rajveer has been found to be in an independent witness, hence even this ground of attack of the prosecution evidence fails because it is without force The deci sion of Supreme Court in the State of U. P. V. Madan Mohan, 1989 (26) ACC 368) : 1989 JIC 675 (SC) is of no help to the defence because in that case no witness of locality was examined whereas in the present case Pr Rajveer Singh, is a witness of the locality and the other two eye-witnesses namely, PW 2 Ram Saran and P. N. Atar Singh also live in the same locality having their houses at short distance from the place of occurrence. 16. No other being has been pressed before us. We, therefore, find no force in these appeals. The appeals are dismissed. All the appellants are on bail. Their bail bonds are cancelled. They shall surrender forthwith to serve out their sentence. Appeal dismissed. .