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Reserved

AFR

Criminal Appeal No.1853 of 1983

Deo Raj and another ...................................... Appellants

Versus

State of U.P. .......................................... Respondent.

Connected with

Criminal Appeal No.1854 of 1983

Girdhar and another ....................................... Appellants.

Versus

State of U.P. ................................................. Respondent.

Hon'ble Vinod Prasad, J.

Hon'ble Surendra Kumar, J.

(Delivered by Hon’ble Vinod Prasad J.)

A family consisting of husband Girdhar (A-3), wife Ram Dayee

(A-4), son Deo Raj (A-1) and son-in-law Ram Lal (A-2) have

preferred the above two connected appeals against the judgment

and order dated 8.8.1983 passed by II

nd

Additional Sessions Judge,

Fatehpur in two connected Sessions Trial S.T. No. 488 of 1981, State

Vs. Girdhar and another and S.T. No.589 of 1981, State Vs. Deo Raj

and another. By the impugned judgement and order, all the

appellants were held guilty under Section 302/149 I.P.C. and

therefore, were convicted for that crime and sentenced to

imprisonment for life. Appellants (A-1), (A-2) and( A-3) were also

convicted under Section 323/149 I.P.C. and sentenced to four months

R.I. Appellants (A-3)and (A-4) were convicted under Section 147

I.P.C. and with sentence of 9 months R.I., appellants (A-1) and (A-2)

were convicted under Section 148 I.P.C. with impose sentence of one

year R.I. and appellant (A-4) was convicted under Section 324/149

Neutral Citation No. - 2012:AHC:116026-DB

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I.P.C. and was sentenced to one year R.I. It is aforesaid convictions

and sentences, which are now in question in the instant appeals.

Ab initio, it is mentioned that ( A-3) and (A-4), Girdhar and his

wife Ram Dayee have expired, pendente lite their Criminal Appeal

1854 of 1983 in this court and therefore that appeal already stood

abated vide order dated 21.5.2012 passed by our predecessor Bench.

This has now left us to consider appeals of rest of the two surviving

appellants (A-1) and (A-2) in Criminal Appeal No.1853 of 1983.

Shorn of unnecessarily details and stated laconically,

prosecution allegations, as was scribed in the written F.I.R., Exhibit

Ka-1, coupled with Chik F.I.R., Exhibit Ka-4, divulged during the

investigation and later on testified by the fact witnesses, Rajendra

P.W.1 and Chinka P.W.2, during the Sessions Trial, were that the

informant Rajendra P.W.1 and three of the accused (A-1), ( A-3) and

(A-4) were co-villagers being residents of the same village Rampur

Kurmi, Police Station Chandpur, district Fatehpur and son-in-law (A-2)

is the resident of another village Chuhulpur. Kamal Kishore @

Sudama (deceased) and Jagdish (injured) are the elder brothers of

the informant Rajendra P.W.1, whereas Chinka (injured P.W.2) is his

younger brother. A mango tree was standing in the plot of (A-3), but

seven or eight months prior to the date of the present incident, the

same was cut by the informant, deceased and injured regarding

which a FIR was lodged by (A-3) against them, in which after due

investigation charge sheet was submitted by the police against Kamal

Kishore @ Sudama (deceased), Jagdish and Chinka (both injured),

Ram Sajivan and the informant, PW1. All these persons had to get

themselves bailed out. On the date of the present incident

29.6.1981, Criminal trial in respect of that tree cutting was pending

in the competent court.

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On the incident date, 29.6.1981 at 10 a.m., Girdhar (A-3) was

transporting the woods of the aforesaid mango tree from a bullock-

cart. (A-1), ( A-2) and (A-4), along with two other persons, were

following the said cart from behind. At that time informant and the

deceased were at the door of deceased house. Sudama’s son

Jitendra Mohan informed them about the transporting of the cut

woods by the appellants. On this, deceased followed by the

informant rushed towards the appellants to forbid them from

transporting the woods and when they reached north to the house of

the Panni Lal, nearby agriculture field of Bihari, that they spotted

accused bullock cart transporting the cut woods, which was driven by

(A-3) with others following it from behind on foot. Deceased

exacerbated accused from carrying the woods on which (A-3)

instigated his associates to annihilate the deceased. (A-2), thereafter

assaulted the deceased with an axe but the deceased escaped the

assault and did not sustain any injury by it. Deceased, then made an

escape endeavour but meanwhile ( A-3) jumped out of the bullock-

cart and thereafter (A-1), (A-2) & (A-4) along with two unknown

persons rounded up the deceased in the agricultural field of Bihari,

where he was belaboured by(A-3) and two unknown persons with

lathis, (A-1) and(A-2) with axe and (A-4) by scythe (Hasiya).

Sustaining injuries, deceased fell down on the ground. Informant

raised hue and cry, which attracted his brothers Jagdish and Chinka

(P.W.2), both the injured, but they were also caused injuries. Hue

and cry raised by the informant and the witnesses brought Daya

Shanker, Rajan, Shivadhar and many other at incident scene.

Accused thereafter retreated from the incident scene along with the

bullock-cart towards their village. Informant came to his brothers and

found Kamal Kishore @ Sudama dead and rest of his two brothers

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injured. Blood had trickled down on the murder spot. Informant then

got deceased corpse placed in the shadow of a margosa (neem) tree

on a cot.

Informant Rajendra, P.W.1, scribed the F.I.R., Exhibit Ka-1 and

accompanied with his two injured brothers Jagdish and Chinka, PW2,

came to the police station Chandpur, in a bullock-cart, and arrived

there in the afternoon and then he lodged his FIR. Injuries of his

injured brothers were checked by the Head Constable. From the

police station injured were sent to the hospital by the police whereas

informant returned back to his house leaving both of his injured

brothers at the police station.

Head constable Ram Niwas Mishra, who was posted as head

moharir at the police station Chandpur registered the crime at 1.25

P.M. on the basis of Ext. Ka-1 prepared chik FIR Ext. Ka-4 and crime

registration GD Ext. Ka-5 vide rapat no. 21, in which, he had also

noted injuries of the injured persons. Both the injured thereafter

were dispatched to the District Hospital through constable Chhitani

Lal for their first aids. Special report regarding the murder was

dispatched at 3.30 P.M. by this head moharir P.W. 4 through

constable Shyam Narain Tiwari regarding which, he had made a

entry in Rapat no. 25, the copy of which is Ext. Ka-6.

Investigation into the crime was commenced by S.O. R.K.

Shukla, PW5, in whose absence, the crime was registered. Constable

Ashok Kumar had brought the relevant papers to the I.O.

Investigating Officer commencing the investigation, recorded the

statement of the constable Ashok Kumar and thereafter came to the

incident spot, searched for the accused but could not find them. I.O.

thereafter conducted inquest proceedings on the cadaver of the

deceased, after appointing panch witnesses and prepared inquest

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memo Ext. Ka-7 and other relevant papers, Exts. Ka-8 to Ka-13.

Corpse of the deceased was sealed and was handed over to

constables Manzoor Ahmad and Ashok Kumar to be transported to

the mortuary for post mortem examination. Investigating Officer

thereafter recorded the statements of the informant and witnesses

Daya Shanker, Shivadhar, Rajendra @ Rajan and other persons.

Subsequent thereto, he inspected the spot and prepared site plan

map along with the noting, which is Ext. Ka-14. Blood stained and

plain earth were collected by the I.O. from the incident spot and it

was seized and recovery memo, Ext. Ka-15 was sketched.

Investigation, during night, was conducted in the light of petromax

and torches.

PW5, as investigatory step, had also jotted down injuries of

both the injured and post mortem examination report of the

deceased. On 10.7.1981, I.O. received the intimation that two of the

accused (A-1) and (A-2) had surrendered in the Court of C.J.M.,

Fatehpur on the previous day 9.7.1981. After obtaining the court's

permission, both the accused were interrogated by the I.O. inside the

jail on 13.7.1981. Concluding investigation against Deo Raj (A-1) and

Ram Lal (A-2), P.W.5 had laid charge sheet against them vide Ext.

Ka-16 on 14.7.1981. Two days after, on 16.7.1981, I.O. again came

to know that rest of the two accused Girdhar (A-3) and Ram Dayee

(A-4) had also surrendered in the Court of C.J.M., Fatehpur and,

therefore, I.O. interrogated them inside the jail and concluding

investigation against them, charge sheeted them as well on

28.7.1981 vide Ext Ka-17.

Both the injured were medically examined by Dr. B.K. Mishra

P.W. 6 on the incident date itself. Injured Jagdish was examined at 8

P.M. whereas injured Chinka, PW2, was examined at 8.30 P.M. On

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the body of injured Jagdish, doctor had found following injuries, vide

his medical examination report Ext. ka-19:-

“1. Lacerated wound Y shaped over scalp middle and left side

scalp deep one limb of Y 6cm x 1cm and other limb 8cm x 1cm

x 13 cm above the left ear.

2. Lacerated wound 3cm x 1cm scalp deep, over left side of

scalp 8cm above the left ear.

3. Lacerated wound 2cm x 1/2cm x scalp deep over left side of

scalp 6cm above the left ear.

4. Traumatic swelling over dorsum of left hand upon which 3

abrasion over index middle and ring finger measuring 1cm x

1cm each.

5. Lacerated wound 2cm x 1/2cm over palmer aspect of right

hand at the base of the right ring finger.

6. Incised wound 1.5cm x .25cm x skin deep over base of the

right thumb palmer aspect.

7. Lacerated wound 1.5cm x .25cm present over lateral side of

left leg 7cm above the lateral malleolus.

Duration half day old. All injuries simple in nature and caused

by some blunt object except injury no. 6 which was caused by

some sharp edged object.”

On the body of the another injured Chinka, PW2, doctor had

had noted following injuries vide his medical examination report Ext.

Ka-19:-

“1. Lacerated wound 6cm x 1cm x scalp deep present over

right side of scalp 12 cm above the right ear.

2. Lacerated wound 2cm x 1cm x scalp deep over left side of

skull 12cm above the left ear.

3. Contusion 1.5cm x 1cm present in epigastrium, at middle of

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abdomen.

4. Abrasion 5cm x1cm over back at middle of body 20cm below

the neck.

Opinion- All injuries are simple in nature and caused by some

blunt object.

Duration – Half day.”

In the estimation of the doctor, injuries sustained by both the

injured could have been caused to them at or about the date and

time of the incident. Doctor had further noted that the injuries 1 to 6

of injured Jagdish and 1 to 4 of injured Chinka, PW2 were caused by

blunt objects. During his deposition he had testified that from the

reversed side of the axe, these injuries could be possible. Injury no.7

of injured Jagdish could have been caused by axe or scythe.

Autopsy on the cadaver of the deceased was performed by Dr.

S.K. Singh, P.W.3, on 30.6.1981 in District Hospital, Fatehpur at 4.45

P.M. The corpse was brought to him by CP 161 Manzoor Ahmad and

CP 141 Ashok Kumar of P.S. Chandpur, who had identified the dead

body. According to the doctor, deceased was 35 years of age and

one and quarter day had lapsed since his demise. Following ante

mortem injuries were dictated by the doctor on the cadaver of the

deceased:-

“1. Lacerated wound on right temporal area 4” x 2” x bone

deep 3” above the …..........

2. Lacerated wound in middle of skull 2-1/2” x 1/2” scalp deep

5” above the bridge of …...............

3. Lacerated wound right side of temporal area of skull 2-1/2” x

1/2” x scalp deep B” behind the right ear.

4. Abrasion 3” x 1/2” on right forearm at elbow joint.

5. Contusion 4” x1/2” on lateral aspect of right arm 5” below

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the right shoulder.

6. Contusion 3-1/2” x 1/2” on lateral aspect of right arm 2-1/2”

below the right shoulder.

7. Contusion 5” x 1” on right side of back 1-1/2” below the

angle of scapula.

8. Contusion 3-1/2” x 1” on right side of back 1/2” lateral to

injury no. 7.

9. Lacerated wound back of skull 2-1/2” x 1/2” x scalp deep 1-

1/2” medial to right ear.

10. Lacerated wound 1-1/2” x 1/2” x scalp deep on occipital

area.”

Rigor mortis were present on the lower extremities, his

stomach was distended. His scrotum and penis were swollen and

there was a fracture of his right temporal and right parietal bones.

His membranes were congested, brain was lacerated and half pound

clotted blood was present in the skull cavity. His stomach and small

intestines were empty and large intestine contained faecal matters.

His urinary bladder was also empty. In the opinion of the doctor,

deceased had died because of shock and haemorrhage, as a result of

sustained injuries. Post mortem examination report of the deceased

is Ext. Ka-2.

On the body of the deceased, a banyan and underwear was

seized by the doctor, which were handed over to the constable,

which P.W. 3 has proved as material Ext.1. Doctor had deposed that

deceased could have died at the time of the incident and sustained

injuries cumulatively were sufficient in the ordinary course of nature

to cause his death. He had further deposed that the injuries

sustained by the deceased were possible by blunt objects. He had

also deposed that he had received the papers on 30.6.1981 at 2 P.M.

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On the basis of charge sheet submitted against (A-1) and (A-2),

Criminal Case no. 1744 of 1981, State Vs. Deo Raj and others, was

registered in the Court of C.J.M., Fatehpur, who finding the charge

sheeted offences triable exclusively by court of session's had

committed the said case to the Session's Court vide committal order

dated 3.9.1981. Similarly, against (A-3) and (A-4) Criminal Case no.

2478 of 1981 was registered before the same Committal Court and

this case was also committed to the Session's Court for trial on

20.11.1981.

Both the cases were registered as S.T. No. 488 of 1981 and S.T.

No. 589 of 1981. Since both the cases emanated from the same

incident and hence both were clubbed together and learned Trial

Judge had tried it both together and has rendered the impugned

judgment in both the cases.

In the Sessions Trial, learned trial Judge had charged all the

appellants under sections 302/149, 324/149 and 323/149 I.P.C. He

has further charged (A-3) under section 147 I.P.C., (A-1), (A-2) and

(A-4), under section 148 IPC on 1.10.1982. All the charges were read

out and explained to all the accused, who all denied the same and

claimed to be tried and resultantly, to establish their guilt, learned

trial Judge observed Sessions Trial procedure to prosecute them.

During the aforesaid Trial, prosecution relied upon oral

testimonies of informant Rajendra P.W.1 and injured eye witness

Chinka P.W.2, as the two fact witnesses. Besides their testimonies,

prosecution also tendered formal witnesses, which included post

mortem Dr. S.K. Singh P.W. 3, head moharir Ram Niwas Mishra P.W.

4, investigating officer S.O. R.K. Shukla P.W. 5 and doctor who had

examined injuries of injured Dr. B.K. Mishra P.W. 6.

Accused in their examination under section 313 Cr.P.C. abjured

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all the incriminating circumstances, which were put to them by the

learned trial Judge and pleaded a common defence of their false

implication. They in their defence examined Vinod Kumar as D.W. 1.

Learned Trial Judge/ II

nd

Additional Sessions Judge, Fatehpur,

vide impugned judgment and order, concluded that the prosecution

has successfully anointed the guilt of the appellants and therefore,

convicted all of them under section 302/149 I.P.C. It further

convicted appellants (A-1) to (A-3) under section 323/149 I.P.C,

appellants (A-3) and (A-4) under section 147 I.P.C., appellants (A-1)

and (A-2) under section 148 I.P.C. and appellant (A-4) under section

324/149 I.P.C. and resultantly sentenced them for those offences,

which has already been recorded in the opening part of this

judgment and hence are being eschewed from being repeated.

Challenged in this appeal is to the aforesaid conviction and sentence

by all the appellants.

As has already been stated herein above, since (A-3) and (A-4)

have already expired and their appeals have been abated, we

concentrate on the appeals of the two accused (A-1) and (A-2) only,

vide their appeal no.1853 of 1983.

In the background of preceding facts, We have heard Sri S.K.

Yadav, learned counsel for the appellants in support of the appeal

and Miss Usha Kiran, learned AGA for the respondent State.

Assailing the impugned judgment and conviction, appellants'

counsel submitted that prosecution and accused were collaterals and

informant and deceased wanted to grab mango tree belonging to the

appellants which were given to them even in consolidation

proceedings. A roving appreciation of deposition, of informant’s

evidence indicate that he does not know anything about this tree.

Prosecution side had illegally cut the tree and thereby they had

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started the mischief. It was admitted to PW1 that the tree stood in

the plot of (A-3). Regarding theft committed by the informant,

injured and the deceased a F.I.R. was lodged by (A-3) against them,

in which after due investigation they were charge sheeted and were

facing criminal trial, which was in the offing on the date of the

incident. Just to take revenge that entire appellants family including

son and son-in-law have been framed-in, by the informant in a

concocted case. There was no reason for the deceased to pick up the

quarrel, if the appellants were transporting the woods belonging to

their tree and hence it was the deceased and injured who had picked

up the quarrel, in which only Girdhar (A-3) with two unknown

assailants participated and belaboured the deceased and the injured

with lathis and rest of the family members of (A-3), including his

wife (A-4), son (A-1) and son-in-law (A-2) have been falsely

implicated in a fabricated case. Neither the injured nor the deceased

had sustained any axe or scythe injury and hence claim by the fact

witnesses that deceased and injured were assaulted by these

weapons is a false story. When the prosecution witnesses realised

this difficulty and repugnancy in ocular testimonies vis-à-vis medical

evidence then they had expatiated their version in the trial by

alleging that the axe and scythe were used by the reverse side,

which embellishment is an afterthought and a conscious concoction,

to make prosecution story congruent with medical evidence and

consequently on such a version no reliance can be placed. In

support of said submission learned counsel referred to various

paragraphs of depositions of both the fact witnesses PW1 & 2, to

which we shall refer at the appropriate stage in the later part of this

judgement while making critical appreciation of evidences. It was

next argued that if accused had used the sharp heavy cutting

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weapon from reverse side, as was embellished by prosecution side

during trial, then in that eventuality conviction of the appellants u/s

302 I.P.C. is unsustainable as, in that event it could not have been

concluded with certainty, that accused had an intention to commit

murder. It was further submitted that it is too unrealistic a

submission that the three accused will use their sharp edged

weapons from the reverse side although they had intended to

annihilate the deceased. Such a conduct is wholly un-natural which

does not inspire any confidence in an embellished version. As a

supplementary contention it was argued that initially, the case of the

prosecution was that the deceased was assaulted by all the six

accused from their respective weapons, which included three blunt

objects, two heavy sharp edged cutting weapons (axe) and one

pointed sharp edged weapon (scythe), but the deceased had not

sustained any sharp edged weapon injury either by the axe or by the

scythe and therefore, autopsy report of the deceased was at variance

with the ocular testimonies and contradicted it directly and

substantially. Learned counsel further pointed out that none of the

two injured also sustained any sharp edged heavy cutting weapon

injury or injury by any sharp edged pointed weapon (scythe) and

therefore, participation of (A-1), and (A-2) in the incident is a fib. It

was only to implicate the entire family because of pending criminal

trial against the informant, deceased and injured that such an

embellishment was made by the two fact witnesses. No independent

witnesses came forward to support the prosecution case, which is

entirely based on depositions of two inimical, partisan, interested and

related witnesses and this also corrodes credibility of prosecution

story. Informant was not present during the incident and he is a got

up witness which is evident from his conduct and it seems that

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subsequent to the incident that he was sent for and a false case was

cooked up to implicate the entire family who had launched a criminal

case against the deceased, informant and injured, were some

additional submissions raised by the appellants counsel. Informant

P.W.1 never tried to save lives of his brothers although, he claims to

be an eye witness. Contradictions and incongruities have cropped up

in the prosecution story because of it’s fabrication. Referring to the

statement by the Investigating Officer P.W. 5, it was submitted that

the deceased was of a bad character person and was involved in

many crimes regarding which, he was being prosecuted and since

informant was not present during the incident i.e. why in the site

plan, the place from where informant had witnessed the incident had

not been depicted. Investigation is perfunctory and has left much to

be desired and hence on such an investigation no confidence can be

placed. It was further contended that during investigation also I.O.

had not found any injury by axe and scythe and for this contention a

reference was made to questions and answers put to the I.O. in

paragraph 5 of his deposition. Learned counsel has relied upon

various decisions Bejoy Singh versus State of W.B.:(1990) 2

SCC 159; Shingara Singh versus State of Haryana:

(2003)12 SCC758;Jasbir versus State of Haryana: (2002)

10 SCC 324; Ram Chandra versus State of U.P. (2007) 60

AIC 499 (All); State of Bihar versus Bishwanath Rai 1997

SCC (Cr) 1148. Primarily on the above submissions, it was

contended that conviction of both the appellants (A-1) and( A-2) is

unsanctified and their appeals deserves to be allowed and conviction

be set aside.

Arguing conversely, Miss Usha Kiran, learned AGA, supported

the impugned judgment and submitted that it is a day light incident

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and because of rivalry, accused persons had chased the deceased

and thereafter had assaulted him. There are eye witnesses account

of the injured persons, whose presence at the spot cannot be

doubted and therefore, the prosecution story is convincing without

any damaging fact and consequently, conviction of the appellants

cannot be scraped. It was next submitted that it was not essential for

the prosecution witnesses to have mentioned the manner in which

weapons were used during the incident and therefore, there is no

discrepancy or incongruity in the prosecution story and oral and

medical testimonies. Learned AGA therefore argued that the appeal

lacks merit and be dismissed.

We have considered the arguments raised by both the sides

and have summated evidences on record. What is discernible from

the critical appreciation of oral and documentary evidences is that

both the factions are related with each other as dead accused

Girdhar (A-3) was the uncle of the informant and the deceased.

Father of Girdhar (A-3) and grandfather of the informant were real

brothers. They are thus collaterals. Both the factions had a dispute

over a mango tree, which albeit was standing in the plot of appellant

(A-3) but informant and deceased claimed it to be theirs. They had

got said mango tree cut seven or eight months prior to the present

incident. Embarking upon critical appreciation of evidence, depicts

altogether a different picture as it is very strange that none of two

fact witnesses examined by the prosecution had any idea how they

claimed the said mango tree to be theirs. They have not filed any

documentary evidences in that respect. Consolidation proceeding in

their village had already taken place and in that proceedings, tree

was allotted to A-3. When informant was questioned on the said

aspect he unambiguously stated, at various stages of his depositions,

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that “Consolidation had taken place in my village. How long before

the incident it was done I don’t know. I don’t know who had got

incident tree in consolidation. In consolidation proceeding two plots

were carved out one of Girdhar and the other of my father Chota.

Before the incident the plot which was given to Girdhar the tree

stood in that plot.”( Para 10). Further he had testified in the same

para that “Since I gained consciousness after my birth, I am seeing

that tree standing in the plot of Girdhar”. In para 16 he had admitted

that the criminal case in which he is an accused alongwith others

was in respect of the same tree but he expressed his ignorance

regarding the plot number on which this tree was standing. Thus,

such type of evidence does not inspire any confidence and projects

that something is being suppressed by this witness. PW1 failed to

bring convincing oral as well as documentary evidences on record to

determine that his allegation that the mango tree belonged to

prosecution side was a true fact. It further transpires that in the

wood cutting crime, the cut woods were given in custody of (A-3) by

the I.O. So is the case with another eye witness PW2. Thus it seems

that the tree belonged to the appellants and in such fact situation if

appellants were carrying the wood of that tree, their act was a

damnum, sanctified by law.

In respect of Mango tree evidence of PW2 does not in any way

add credence to the prosecution version. In para 3 of his deposition

has stated that “seven or eight months prior to the incident we got

our mango tree cut which was in the plot of Girdhar. On our tree

cutting Girdhar had made a report in the police station, on which a

criminal case started against us and Rajendra, Jagdish, Kamal

Kishore @ Sudama and I had to get bailed out. On the date of the

incident that case was pending in court. Accused were carrying the

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wood on the date of the incident. That wood was ours.” His entire

depositions in para 7 indicate that though he had seen the accused

loading the cut wood since quite some time but he never resisted

their activity nor informed the deceased, although he claimed that

the woods were his. This self-contradictory statements are unreliable.

Para 7 indicates that this witness had no grievance against accused

while they were loading the woods and hence his claim that the

woods belonged to them is a false claim. Attour, prosecution had not

brought any document to indicate that they had a genuine claim over

the ownership of the Mango tree.

So far as motive to start the incident is concerned, from the

prosecution story itself it is well perceptible that it was the deceased

who had gone to the accused and had proscribed them to refrain

from carrying the woods and it was he who had pick up the quarrel.

Thus the motive lied with the deceased and the informant to resist

the act of the appellants. It is recollected here that the incident had

occurred all of a sudden at the spur of the moment without any

premeditation and hence as whose behest incident had started is of

much significance. Thus prosecution could have a motive to implicate

entire family, when on their own picked up quarrel they were at the

receiving end.

Turning towards another contention that the informant was not

present at the spot, we are of the view that the said submission is

also not without force. We cannot accept evidence in a pedantic

manner without judging it’s veracity to unravel the truth. Informant is

not an injured. He claims to have been sitting with the deceased

when deceased's son had informed them about the carrying of

woods by the appellants. Although deceased immediately started to

resist such transportation but informant remained there, although for

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a short while but for no reasons. He stated that he started after

some time. Anyway, when appellants started the assault, informant

PW1 never tried to save life of his brother (deceased) so much so

that when on his rescue call two of his other brothers (both injured)

intervened into the scuffle and jumped amidst assault to save the

deceased, even then informant, PW1, kept himself at bay without

making, even an insignificant, attempt to help all his brothers. No

doubt different people act in different situations and there cannot be

any determined human conduct of universal application, but then

there are certain natural innate human impulsive reactions, which

also cannot be abjured by a normal human being in a given fact

situation. At least what informant could have done was to pelt stones

or bricks, which also he never endeavoured. All these bizarre conduct

of the informant, and his only being a Mayday caller, to us, does not

inspire any confidence. Here we must hasten to add that the

explanation furnished by PW1 not to save lives of his brothers, that

he was terrified, is a bogus and prevaricated explanation as from the

very beginning of his cross examination, vide para 8 of his

testimonies, defence had been able to surface long criminal activities

in which informant, deceased and their associates were involved.

Thus neither PW1 was a novice nor a hapless helpless person. While

scanning their evidences, it is excepted of us, by a catena of apex

court decisions, that when witnesses are inimical, partisan, related

and interested, who could have reasons to falsely implicate, their

evidences has to be scrutinised carefully and cautiously and therefore

we are under taking all this scrutiny to separate the grain from the

chaff.

Other circumstances indicating absence of informant PW1 at

the time of the incident are that in the FIR he himself had mentioned

18

that- “On commotion I and Ramjan son of Munnu Kurmi and

Shivadhar son of Sadhu Kumhar resident of Rampur Kurmi and my

brother –in-law Dayashankar son of Jagannath resident of Babai and

many village people rush to intervene…”. This clearly shows that he

was not present at least since the beginning of the incident. His

absence is further authenticated by the fact that in site plan map

place from where he had seen the incident had not been depicted.

He is an accused in the criminal case launched by the appellants and

hence is an inimical, partisan, related and interested witness. We are

conscious of the fact that merely because of relationship his evidence

cannot be discarded, but at the same time we are also of the view

that if a related, interested, inimical and partisan witness is unreliable

and untrustworthy his evidence cannot be treated to be creditworthy

merely because of his relationship. There is no concrete evidence to

establish his presence at the incident spot and hence we are of the

opinion that he is a planted and got up witness, who had not seen

the incident at all and it is because of this reason that initial case of

the prosecution that the axe and scythe also caused injuries to the

injured and the deceased was expatiated to make it consistent with

that of post mortem examination report and injury reports. Assault

description deposed by informant is inconsistent with that of injury

reports and autopsy report. Our view that PW1 was not an eye

witness of the incident is further credited because of glaring

omissions and contradictions in his FIR and 161 statements, which

cannot be said to be minor and insignificant. Firstly he had nowhere,

either in the FIR nor 161 Cr.P.C. statement, had stated that he was

present with the deceased at his house, when son of the deceased

had informed them about transporting of woods by the accused. He

had also omitted to state that he had gone behind the deceased. He

19

had also not mentioned nor stated to the I.O. that the deceased had

evaded first blow and sprinted away. He had also not mentioned and

stated during investigation that all the blows by axe were hurled

from the reverse side. He had also not divulged that the injured were

also assaulted with axe and scythe. This last contradiction, was

further found to be false as both the injured had not sustained any

injury by axe nor by scythe. A single cut injury to Chinka, PW2, is at

such a site and is so in-significant that it cannot be attributed to an

assault by a lady with scythe. He for the first time deposed during

trial that the dead body was removed and was placed in the shadow.

All these unsatisfactory and unconvincing testimonies which are

contained from para 11 onwards of his depositions do not inspire any

confidence and makes him an unreliable and planted witness. At this

moment we recollect that the what has been argued by the defence

counsel is that the prosecution story of involvement of six persons in

the incident is a false version, whereas only (A-3) with two of his

associates were involved in the incident wherein they had wielded

lathis, and in which brawl, other side was represented by the

deceased and the two injured only and it was only subsequent to the

loss of life that a false story was cooked up to implicate the entire

family to mount pressure on them and take revenge of criminal case

launched by (A-3).

Other attending unsatisfactory circumstances weighing against

PW1 are that he (informant) was a young man of 25 years of age

and therefore, had he been present at the spot certainly he would

have retaliated, if the incident would have occurred in his presence.

From the beginning of his cross examination, defence had

endeavoured to bring on record that he, deceased and his

associates, had criminal background and used to indulge into the

20

crime so much so that the deceased was convicted in one crime as

well.

Turning towards the evidence of injured P.W. 2, he also does

not seems to be a wholly truthful witness. According to his

deposition, when he had reached at the incident scene, deceased

had already been assaulted by the accused persons. He along with

Jagdish were belaboured subsequent to the assault made on the

deceased. As has already been mentioned herein above though he

and another injured were witnessing loading of woods in the bullock

cart by the appellants since long time but they never resisted or

informed it to the deceased. They were mute spectator to the whole

episode. The cart was load and left the place and even then they did

not raised any objection. This clearly indicate that his claim of woods

belonging to them is a afterthought story. Had his allegation be true,

why he will remain silent is a big question to be answered. Further

he deposed in his examination-in-chief that they were assaulted by

all the accused but he had not sustained any axe or scythe injury.

Faced with such repugnant situation, when cross examined, he

testified in para 9 of his evidence that he could not see whose

assault had hit Sudama. First assault was made on Sudama was by

axe but he could not see whether it hit or not. He has seen scythe

being hurled but did not see whether it hit or not. He had not seen

that axe assault by Deo Raj had hit but had seen him assaulting. In

para 10 he had deposed that assault by axe made by Ram Lal had

not caused him injury. Axe assault by Deo Raj had also not caused

him any injury. Ram Dayee scythe had also not caused him any

injury. He further stated that he was rounded up and assaulted but

could not state whose assault caused him injuries. Later on he (PW2)

deposed that he was assaulted only by one or two assailants. One of

21

them was Girdhar (A-3) and the other was unknown assailant both

armed with lathis. This injured witness had not sustained any heavy

sharp edged weapon injury nor any injury of scythe. Above referred

to testimonies do not inspire any confidence nor indicate that he is a

reliable witness. His deposition that he was assaulted by all the

accused therefore is a false claim. There are serious omission in his

depositions as well vis-a-vis his investigatory statement.

Now turning towards case of the two surviving appellants we

note certain broad features to indicate that they were not present at

the spot and have been falsely implicated. First of all, it is the

prosecution case itself that the appellants were carrying already cut

woods, which were lying there since before and hence there was no

use of axe and hence carrying of axe by the two appellants does not

appeal to reason. Further, neither in the FIR nor in 161 statements,

any of the witnesses had disclosed that assault was made from the

reverse side by both the appellants from the very beginning of the

assault as was claimed by them during trial. This certainly was a

conscious, deliberate and motivated move to make prosecution story

consistent with the injuries and post mortem examination report of

the two injured and the deceased. Such an embellishment which

altogether alters the fact situation and makes happening of the

incident, as alleged by the prosecution doubtful, stated for the first

time in court, in our view has to be discarded from consideration. At

page 19 of his depositions PW1, vide para 14 had clearly stated-“

Axe was wielded from reverse side was not asked by anybody nor I

disclosed. I on my own not mentioned it in FIR nor informed it to the

investigating officer.” We further note that axe is a very heavy

cutting sharp edged weapon and even if used from reverse side it

will cause much severe damage to the cranium than what was been

22

sustained by the deceased. Even during investigation, I.O. had noted

that the most damaging factor of the prosecution story is that

deceased had not sustained any injury by axe or scythe. This is so

clear from the question answer penned down at page 9 of his

deposition. None of injured had sustained any axe injury which has

been attributed to appellants (A-1 ) and (A-2). PW2, in no uncertain

terms had deposed that he was assaulted only by lathi wielding

accused vide para 10 at page 11 of his testimonies and hence he

certainly was not assaulted either by (A-1) or (A-2). Another injured

had also not sustained any axe injury and thus we are of the opinion

that the proven facts and circumstances does not indicate that both

the surviving appellants had participated in the incident. Their

presence at the incident spot during the incident also seems to

extremely doubtful. Only two hard core inimical and interested

witnesses had entered into the witness box to depose against them

without support from any independent quarter and there are medical

inconsistencies in their depositions. After vetting evidences, facts and

circumstances, we are of the view that prosecution has not been able

to establish guilt of appellants (A-1 ) and (A-2) convincingly and

clearly. To countenance our above view we aptly rely upon some of

the apex court decisions which we refer herein below:

In Shingara Singh versus State of Haryana and

another:AIR 2004 SC 124 it has been held by the apex court as

under:-

“There was no dispute that their deposition in Court was

consistent, but what was observed by the trial Court was that their

version as to the manner of occurrence as deposed to by them was

at variance with what was stated in the First Information Report by

P.W. 5, and in the statements of P.Ws. 6 and 7 recorded under S.

23

161, Cr. P.C. When confronted with their earlier statements, they

could not give a satisfactory explanation, with the result that their

credibility was sufficiently impeached. The change of version by each

one of them, and to the same effect, was deliberate and not merely

accidental or on account of lapse of memory. It cannot be disputed

that this was a very significant change. It cannot also be disputed

that the change was deliberately made by all the witnesses, so that

the prosecution case became consistent with the medical evidence

on record. We, therefore, do not find any error committed by the

trial Court in coming to this conclusion.”

In Jasbir and others versus State of Haryana:AIR

2003 SC 554 it has been held by the apex court as under:-

“10. We have been taken through the FIR and the statement

made by Satpal when the inquest was held. He stated that he

noticed that Randhir, Jagdish, Rohtash, Satbir, Jasbir, Rani and

Banwari were armed with halberds and climbed up the roof of the

house. Halberd is described to be a kind of battle axe which can be

used as spear as well. In other words, it is a combination of spear

and battle axe with a long handle. When the statement made by him

in the FIR and at the inquest is clearly to the effect that they had the

halberd, to say that they were armed with lathis would not be

correct or accurate at all. In such cases when there has been long

enmity between the parties, it is not unusual to lug in persons who

are innocent as well. When there were no injuries caused by lathis, it

cannot be explained away in the manner as has been done either by

the trial Court or by the High Court, particularly when the witnesses

are specific that large number of blows on the person of the injured

and the deceased have been inflicted with lathis. The High Court

should not have assumed that pharsa may look like lathi whereas it

24

was nobody's case that the pharsa was used by Randhir and Jagdish

or none of the witnesses stated that Randhir and Jagdish had some

weapon which looked like a lathi but was really a pharsa or a

halberd.Therefore, it will not be safe to rely upon the evidence

tendered by those persons as to the presence of either Randhir or

Jagdish.”

In Bejoy Singh and Vijay Narain Singh and others

versus State of W.B.:AIR 1990 SC 814 it has been held as

under:-

“………Having carefully considered the evidence and the facts and

circumstances of the case and the medical evidence, we are of the

view that the prosecution case suffers from a serious infirmity in

respect of the allegation made against accused Nos. 2 to 4 namely

that they caught hold of the deceased. If we look at the injuries and

particularly on the hands and also on other parts of the body, the

case that they caught hold of him falls to the ground and their

conviction on the basis of this unsatisfactory evidence may result in

miscarriage of justice. Therefore, interference is called for. So far as

appellant No. 2 is concerned, a further allegation is that he had a

knife and thrust it into the stomach after Bejoy Singh, appellant No.

1 and the two unknown persons stabbed him indiscriminately. This

appears to be clearly an afterthought. In the earliest report given by

PW. 3 the principal witness, it is not mentioned at all that Ujagar

Singh, appellant No. 2 had a knife and stabbed the deceased in the

abdomen after Bejoy Singh, appellant No. 1 and the two unknown

persons inflicted so many injuries on him. As a matter of fact it is in

the FIR that only Bejoy Singh, appellant No. 1 and the two unknown

assailants were cutting the deceased all over the body with their

weapons and the three appellants including appellant No. 2 only held

25

the deceased in such. a way that he could not move and PW. 3 went

in front of his elder brother and on seeing him all the assailants ran

away leaving the deceased. We are satisfied that the overt act

attributed to appellant No. 2 namely that he stabbed the deceased is

clearly an after-thought. Therefore this aspect of the prosecution

case also is unacceptable. So far as the first appellant is concerned,

the evidence against him is consistent. In the earliest report it is

mentioned that he along with two unknown assailants came and

stabbed the deceased. The evidence of P.Ws. 3, 13 and 15 also is

consistent against him. It was he who brought the other two

unknown assailants who also inflicted injuries on the deceased. The

medical evidence also corroborates.”

In State of Bihar versus Bishwanath Rai and

others:AIR 1997 SC 3818 it has been held as under:-

“4. In order to prove its case, the prosecution had examined 8

eye-witnesses. The trial Court found them reliable but though their

evidence was consistent, on reappreciation of the entire evidence,

the High Court considered it unsafe to rely upon their evidence. It

held that (i) their evidence is not consistent with the medical

evidence regarding the injury caused to the deceased; (ii) all eye-

witnesses belong to village Patahi which is at a distance of 3 kms.

from Muzaffarpur town where the incident took place and their

explanation for their presence near the place of occurrence is not

convincing; (iii) the fard-bayan though stated to have been recorded

at 11.30 p.m. was possibly not recorded till 2.00 p.m. on the next

day; and (iv) the eye-witnesses have suppressed the real manner in

which the incident took place as they have failed to explain how a

serious injury was received by one of the accused, Ram Nath Prasad

Gupta. The learned counsel for the appellants challenged the finding

26

recorded by the High Court that the fard-bayan of injured witness,

Ramesh Prasad Singh was not recorded till 2.00 p.m. on the next

day, as incorrect. On scrutiny of the evidence of Ram Jiwan Singh

(PW-13), Sub-Inspector of Police who had recorded the fard-bayan,

the Deputy Superintendent of Police (PW-16) and the Superintendent

of Police (DW-1) and also the Injury Certificate (Exh. 4) of Ramesh

Prasad Thakur and the fard-bayan (Exh. A) of accused, Ram Nath

Gupta alias Mohan Prasad Gupta, we find that the fard-bayan of

injured witness, Ramesh Prasad Thakur was really recorded at about

11.30 p.m. on 24-5-1977. The fard-bayan which was recorded

between 8.00 a.m. and 2.00 p.m. on 25-5-1977 was really of

accused, Ram Nath. The finding recorded by the High Court is thus

clearly wrong. However, we find no substance in the other

contentions raised by the learned counsel for the appellants. It was

submitted that the evidence of eye-witnesses being consistent, ought

to have been accepted by the High Court. What the High Court has

pointed out is that though the evidence of the eye-witnesses appears

to be consistent inter se, is not consistent with the medical evidence

and that creates a doubt regarding the real manner in which the

incident had taken place. Even though the eye-witnesses have

deposed that two shots were fired by accused Ram Chandra Singh

and both had caused injuries to the deceased, the evidence of the

doctor is that they were possibly caused by only one shot. All the

eye-witnesses have stated that accused Ram Chandra Singh had

fired two shots from his revolver from a distance of about 6 to 9

feet. The medical evidence shows that there was blackening around

the wounds. This circumstance indicates that in all probability, the

injuries were caused to the deceased with a different type of

weapon. As regards the injuries of PW-4 Chandra Mohan, the eye-

27

witnesses have stated that they were caused by three of the accused

with pharsas and lathis but the medical evidence discloses that he

had not received a single injury which could have been caused by a

pharsa. Realising this inconsistency, all the witnesses have made an

identical improvement in their evidence by stating that he was

assaulted by accused Chandresh Rai with back portion of his pharsa.

Thus they have made a deliberate attempt to change their version to

make it consistent with the medical evidence. Moreover, as rightly

observed by the High Court, all the eye-witnesses are residents of

village Patai and they belong to the rival political party. So also, as

rightly submitted by the learned counsel for the respondents, if a

mob of as many as 60 to 100 people had attacked the deceased and

the persons with him, then others could not have escaped unhurt

and the two injured would have received more injuries. The two

injured had received three injuries each but they were minor injuries.

None of them was caused by a weapon with a sharp edge.

5. The High Court after taking into consideration all these aspects

found it unsafe to rely upon the evidence of eye-witnesses. Once it

found that the eye-witnesses had not given the correct account of

the manner in which the incident had taken place, the High Court

was justified in discarding their evidence even though it was

otherwise consistent. The learned counsel for the appellants could

not point out any infirmity in the other findings recorded by the High

Court.”

Wrapping up our discussion we find that the residue of analysis

is that the prosecution has failed to establish it’s case against the

appellants Deo Raj(A-1) and Ram Lal(A-2) and therefore they

deserves to be acquitted.

Criminal Appeal No.1853 of 1983 Deo Raj and another is

28

allowed. Conviction and sentence of both the appellants Deo Raj (A-

1) and Ram Lal (A-2), as is recorded in the impugned judgement and

order is set aside and they are acquitted of the charge. These

appellants are on bail, they need not surrender, their personal and

surety bonds are hereby discharged.

Let a copy of this judgement be certified to the trial court for

it’s intimation.

Dt.14.92012

RK/Arvind/Tamang