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Ram Kumar v. State Of U.P. - CRIMINAL APPEAL No. 2984 of 1979 [2007] RD-AH 13412 (2 August 2007)


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Court No. 54

Reserved on 4.7.2007

Delivered on. 2.8.2007

Criminal Appeal No. 2984 of 1979.

Ram Kumar and two others. Vs. State of U.P.

Hon'ble R.N. Misra, J

This appeal has been preferred by the appellants against the judgement and order dated  5.11.1979, passed by Sri R.N. Sinha, the then Second Addl. Sessions Judge, Fatehpur, in S.T. No.25 of 1979, by which the appellants have been convicted for the offence, punishable under Section 304 Part II read with Section 34 and Section 323 read with section 34 of Indian Penal Code and sentenced to undergo R.I. for five years and one years respectively. Both the sentences have been ordered to run concurrently.

The facts giving rise to this case are as under:

According to the prosecution case, in the month of June, 1976, the accused appellant Shyam Lal was erecting a wall on the land of Sahodar Kewat, for which a Panchayat had been convened, in which a number of village people had participated. Shiv Lochan and his real brother, Shiv Mohan( deceased) and Chandrapal were also there. They had taken to the cause of Sahodar Kewat, while appellant Gaya Prasad and Ram Kumar had sided  the appellant Shyam Lal. The deceased had condemned the act of Shyam Lal for erecting wall in the land of Sahodar.  Shyam Lal had taken it ill and he had rebuked  the deceased. The deceased left the Panchayat and came to his house and narrated the entire facts to his wife Smt. Shiv Rani. On 21.6.1976,  before sunset, Shiv Mohan had gone to ease himself towards North of his house . There was a tree of Semar and grasses .The complainant-informant Smt. Shiv Rani,  wife of the deceased Shiv Mohan heard the alarm,  raised by her husband. She rushed to the spot along with her Dewar Chandrapal and villagers Badri Prasad , Swayambar and Smt. Basdeiya. They saw that the accused-appellant Ram Kumar, Shyam Lal and Gaya Prasad were assaulting Shiv Mohan by Lathis. Badri wanted to intervene, but he was also assaulted by the appellants. Swayambar and Smt. Raj Rani also sustained  injuries while intervention was made by them. After assaulting them, the accused-appellants ran away from the spot . The complainant-informant along with witnesses took Shiv Mohan to his house and some domestic treatment was given to him but in that very night ( 21/22.6.1976), at about 4.00 A.M, he died. Smt. Shiv Rani gave oral information of the incident to police station Kishunpur, district Fatehpur and on the basis of that information, the police registered a case, under Section 323, 304 I.P.C. against the appellants as is evident from the chik Ext. Ka-1 and G.D. Ext. Ka-2. The police reached the spot and prepared inquest of dead body of deceased, which is Ext. Ka-3. Photo of dead body ext. Ka-4 and challan Ext. Ka-5 were also prepared. The dead body was sealed , sample of which is ext. Ka-5. It was sent for post mortem examination, report of which is ext. Ka-10. The injured persons Swayamber, Badri and Smt. Raj Rani were also medically examined at Primary Health Centre, Vijaypur, district Fatehpur. Their injury reports are ext. Ka-11 to Ka 13. The Investigating Officer inspected the place of occurrence and prepared site plan Ext. Ka-8 and after completing the investigation, he submitted charge sheet Ext. Ka-9 against the appellants.

The case was committed to the court of Session, where the appellants were charged for the offence, punishable under Section 302 read with section 34 and Section 323 read with section 34 I.P.C.

In support of its case, the prosecution has examined Smt. Shiv Rani PW-1, Smt. Raj Rani PW-2 and Swayamber PW-3 as eye witness of fact. PW-4 is Head Constable Radhey Shyama Tripathi, who had prepared chik and made entry in the G.D on the basis of oral information given by the complainant-informant. PW-5 is Chandra Pal, who is also witness of fact. PW-6 Vishnu Dayal Verma is Sub-Inspector, who had investigated the case. PW-9 is Dr. Babu Ram Bajpai, who had conducted the post mortem examination of the deceased. PW-8 is Dr. Murli Manohar Rastogi, who had examined injuries of all the three injured persons.

The accused-appellants have denied the allegation levelled against them and alleged their false implications due to enmity. The appellant Ram Kumar has stated that some quarrel had taken place between  Shiv Mohan and his brother Brij Mohan at 8.00 P.M in the night, in which, Smt. Raj Rani had sustained injuries while intervening. The appellant Gaya Prasad has also given the same statement. However, no evidence in defence has been adduced by them.

I have heard Sri R.B. Sahai, learned counsel for the appellant and learned A.G.A for the State and have gone through the evidence on record.

The trouble started between the parties regarding a Panchayat, which was held in the village a few days back to the incident in question. In the F.I.R, Ext. Ka-1, it has been mentioned that the accused-appellant Shyam Lal had raised a wall over the Nali of Sahodar Kewat , for which the Panchayat had taken place. In that Panchayat, the deceased Shiv Mohan had also participated and had taken cause of Sahodar Kewat. This pinched the appellant Shyam Lal and deceased was rebuked by him and the Panchayat ended without any fruitful result. However, Shyam Lal could not complete the  disputed wall , due to opposition of deceased and some other villagers. PW-1 Smt. Shiv Rani, wife of deceased has stated before the court that after returning back from the Panchayat, her husband had told the above noted facts to her.

PW-3, Swayamber has stated that he was also present in that Panchayat. He has also corroborated the aforesaid facts, which had been told by deceased to his wife. No cross examination on this point has been made by the accused from this witness. Thus, the motive behind the occurrence is well proved.

According to the prosecution case, the incident had taken place on  21.6.1976 before sunset. The report ext. Ka-1 was lodged at the police station Kishunpur on 22.6.1976 at 10.30 A.M. The distance of police station from the place of occurrence was about 11 miles. Reason for delay in the F.I.R was that the family members were busy in treatment of deceased, who had sustained injuries and was unconscious. No doubt, the deceased was neither admitted in any hospital nor was shown to any doctor, instead, he was being given local treatment by the family members. Learned counsel for the appellants has argued that the family member did not admit the deceased in any hospital because there were no such injuries. But this argument is baseless. It was  due to poverty, the deceased was not shifted to any hospital. The local treatment given to him failed and he died in the night and in such circumstances, it was but natural for the family members to report the matter to the police on the  next day. PW-1, Smt. Shiv Rani, wife of the deceased and PW-5, Chandra Pal, brother of the deceased have clearly stated that the local treatment was being given to the deceased at the house and therefore, no body reported the matter to police or went to hospital. Thus, delay in the F.I.R was justified.

The place of occurrence was in front  of house of Brij Mohan, who  was real brother of the deceased. The Investigating Officer has shown that place by letter 'E' in the site plan ext. Ka-8. There was a well. The Mar-peet started from the field situate towards North of the house of deceased shown by letter 'A' in the site plan. PW-1 and PW-5 both have stated that the deceased had gone to ease himself in the field where there was an old local brick kiln( Paijava) and Semar tree. In the meantime, the accused persons reached there and assaulted him. He ran way from that place, but the accused persons chased him and when the deceased reached in front of the house of his brother, Brij mohan, he was assaulted by Lathi there.  Towards north of the place of occurrence, there was a Well and the witnesses saw the occurrence from the place 'C' and 'D'. At place 'E', Raj Rani was assaulted by the accused persons. In this incident, Smt. Raj Rani, Badri and Swayamber were also sustained injuries. Their injury reports are on the record. Ext. Ka-11 is injury report of Swayamber PW-3, according to which, there was following injury on his person.

"Contusion 6 cm x 5 cm on the left side of chest on its outer side 19 cm below the left shoulder. Colour blue.

This injury was simple and caused by some blunt weapon.

The injury report of Badri  ext. Ka-12 shows following injuries:-

1.Abraded contusion 2 cm x 1.5 cm on the top of the head 16 cm from right ear tragus. Scabbed.

2.Abraded contusion 2 cm x 2 cm on back of head 13 cm from right ear tragus 7.5 cm behind injury no.1. Scabbed.

3.Contusion 4 cm x 3 cm on the back of head 12 cm from left ear tragus 6.5 cm behind injury no.2. Colour blue.

4.Contusion 5 cm x 2 cm on the right shoulder on its top. Colour blue.

These injuries were simple in nature and caused by some blunt weapon.

Smt. Raj Rani, PW-2 sustained following injuries:

1.Lacerated wound on the right side of the head 4 cm x .5 cm x 0.5 cm, 11 cm from the right ear Tragus covered with dried blood.

2.Contusion 6 cm x 6.5 cm on the outer side of left arm 13 cm from left shoulder. Colour blue.

All the injuries were simple and caused by some blunt weapon.

The injuries were examined by Dr. M.M. Rastogi on 23.6.1976. Duration of the injuries of all the injured was about two days.

The prosecution has examined Dr. Rastogi as PW-8, He has proved the above injury reports. There is nothing on record to show that these injuries were self inflicted or false one.

PW-1 Smt. Shiv Rani, the wife of the deceased has stated that his agricultural field was situate in the backside of her house, where there was Semar tree and old Pajawa( local brick kiln). Her husband went to ease himself, where the accused persons reached and assaulted him due to previous enmity of Panchayat. The incident had taken place before sunset. In her very examination in chief, she has stated that the accused-appellant Shyam Lal had assaulted her husband and all the accused persons chased him and when he reached near the house of Brij Mohan, he was assaulted by all. She has further stated that all the accused had Lathi in their hands. She saw the accused persons while assaulting her husband. While running away from the field, the appellant Shyam Lal had made Lathi assault. She has further stated that when Badri, Swamber, Smt. Basdeiya and Smt. Raj Rani wanted to intervene, Badri, Swayamber and Raj Rani were also assaulted by the accused persons. Further, she has stated that after sustaining the injuries, her husband became unconscious. They brought him to the house and gave local treatment of Onion, turmeric  and Ghee . He was alive but in the night he died.  In the next morning, she reported the matter to the police. In her cross examination, she denied the suggestion of defence that Marpeet had taken place between deceased and his brother, Brijmohan and to save Brij Mohan, the accused persons have been falsely implicated. She has admitted this fact that Raj Rani is her real sister, who has been married with Brij Mohan, the real brother of deceased.  The marriage of Smt. Raj Rani was proposed with Shiv Mohan, the deceased, but due to sudden illness of Shiv Mohan, she was married with Brij Mohan. She has further denied this suggestion of defence that deceased used to visit the house of Brij Mohan in his absence and had some illicit connection with Smt. Raj Rani. There is nothing on record to show that there had been any illicit connection between the deceased and Smt. Raj Rani. Smt. Raj Rani had stated that after the marriage with Brij Mohan, she always treated the deceased as her Jeth. In her cross examination PW-1 has stated that the appellant Ram Kumar and Gaya Prasad were friends and associates of Shyam Lal, who had participated in the incident. Some minor contradictions have appeared in her cross examination, where she stated that she had not seen the accused persons while assaulting the deceased in the field near Semar tree, but she heard the alarm raised by him. The distance of the house of Brij Mohan was 100 steps from the Semar tree. She has further stated that she had seen the accused persons while chasing the deceased from the field towards house of Brij Mohan. Further, she has stated that she had seen one of the accused , who had given Lathi blow to the deceased near semar tree and remaining injuries were caused near the house of Brij Mohan. Further, she has stated that all the accused persons had given two or three Lathi blow to the deceased in standing condition and when he fell down, he was assaulted by them. Smt. Raj Rani PW-2,  is the wife of Brij Mohan, the real brother of deceased and she is real sister of PW-1 Shiv Rani. She has stated that when she heard noise in front of her house, she came out of the house and saw that Ram Kumar, Shyam Lal and Gaya Prasad were assaulting Shiv Mohan by Lathis. She has stated that  Badri, Swayamber, Chandrapal had also seen the Mar-peet.  Smt. Basdeiya had seen the Mar-peet from the well and she has stated that when they wanted to intervene, she, Badri and Swayamber sustained injuries caused by the accused persons. Shiv Mohan became unconscious after sustaining the injuries  and in the morning he died. All the injured persons were medically examined at Vijaypur hospital. This argument of learned counsel for the appellants has no force that since deceased has not sustained such injuries, therefore, he was not medically examined by any doctor, whereas the other injured persons were examined. There was no reason for the family members to ignore the medical examination of deceased. Since parties belong to a village and a poor section, therefore, local treatment was given.

PW-5 Chandrapal, the real brother of deceased has also given same account of occurrence. He has also stated that on hearing the alarm raised by deceased, he reached near the house of Brij Mohan and  saw that  the accused persons were assaulting him by Lathis. Smt. Raj Rani came out of the house of Brij Mohan and wanted to intervene. She was also beaten by them. Swayamber and Badri were also beaten by them. He also helped in sending the deceased from the place of occurrence to his house, where in the night, he died.  He had also accompanied Smt. Shiv Rani PW-1 to the police station,where she had lodged the report. Further, he could not see any incident near Semar tree because when he heard the alarm raised by deceased, he was being beaten by the accused near the house of Brij Mohan.  Badri, Swayamber and Smt. Raj Rani were unarmed and came out from the house. In the case of Krishna Mochi Vs. State of Bihar, 2002(6) SCC 81, the Hon'ble Apex Court has opined that a witness may  not stand the test of cross examination which may be some times because he is bucolic person and is not able to understand the question put to him by the skilful cross examiner and at times, under the stress of cross examination certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and therefore, minor discrepancies have to be ignored".

In the case of  Sukhdeo Yadav Vs. State of Bihar; AIR 2001 SC 3678, the Hon'ble Apex Court has opined that it is indeed necessary, however to note that  there would be hardly a witness whose evidence does not contain some account of exaggeration or embellishment, some times there would be a deliberate attempt to offer the same and some times, the witnesses in their over anxiety to do better from the witness box details out an exaggerated account".

Learned counsel for the appellants has argued that no independent witness has been examined by the prosecution and only family members have been examined, whose testimony cannot be accepted. But this argument has no force. In the case of Ravi Vs. State; 2004 (11) SCC 266, it has been observed by Hon'ble Apex Court that  "it is well settled in a catena of cases that evidence of all the eye witnesses cannot be rejected, merely because they are related. The relative will not exonerate the real culprits and falsely implicate others".

This argument has also no force that to save Brij Mohan, these appellants were falsely implicated in this case. There is nothing convincing evidence on record that any Mar-peet took place between deceased and Brij Mohan for any reason. The wife of Brij Mohan has also given statement in favour of prosecution. Learned counsel for the appellants has further argued that Smt. Shiv Rani, wife of deceased did not receive any injury and she has stated that she did not intervene in the mar-peet and even after Mar-peet, she did not touch the body of deceased, therefore, her presence on the spot was totally doubtful. But this argument has also no force. In the case of Hardeep Singh Vs.  Harbansh Singh; 1997 (1) SCC 80, the Hon'ble Apex Court has observed that "non-intervention of relatives of deceased including the eye witnesses during the assault on the victim to  protect him, in our opinion is wholly unsustainable. Since accused were armed with deadly weapons and relatives  and witnesses were unarmed, in such situation, it was absurd to  expect any intervention and if they were to do so, it would have led to some more causalities".

Learned counsel for the appellants has further  argued that one of the injured namely Badri has not been examined by the prosecution, which also creates doubt in the prosecution case, but this argument is also baseless. In the case of Appa Bhai Vs. State of Gujrat; 1988 (Suppl) SCC 241,  and in the case of Seeman vs. State; 2005(11) (crl) SCC 142, the Hon'ble Apex Court has observed that "non-production of independent witnesses by prosecution, named in the F.I.R, cannot be taken to be a circumstance to discredit the statements of interested witnesses. It is well settled that the quality not  quantity of evidence which should be judged by the court to place credence on it".

PW-3 Swayamber who was injured also in this case has not fully supported the prosecution case. In his very examination in chief, he has stated that he had not seen  Ram Kumar while assaulting the deceased.  In the cross examination by the prosecution, he disowned his statement  recorded by the Investigating Officer, under Section 161 Cr.P.C. In his cross examination, he has stated that when he was going to his house from the field, he had seen the occurrence, which had taken place near the house of Brij Mohan. However, he has stated that the Mar-peet had taken place between Brij Mohan and deceased and in the intervention, he had also sustained injuries. He has denied this suggestion of the prosecution that due to enmity, he had named Gaya Prasad and Shyam Lal for making assault on the deceased. In his cross examination, he has further stated that Gaya Prasad  and Shyam Lal had also assaulted the deceased by lathi. This clearly shows that to save the appellants, he has given a contradictory statement. From his statement, it is clear that Gaya Prasad and Shyam Lal had also assaulted the deceased by Lathis. However, contention regarding Brij Mohan as assailant is not acceptable in light of evidence of three other witnesses of fact. The law of appreciating evidence of hostile witnesses is very clear . In the case of Dhananjai Chaterji  vs. State of West Bengal; 1994 SCC( crl) 358, the Hon'ble Apex Court has observed that "the testmoney of hostile witnesses cannot be ignored totally. Such part of his testimony as receives corroboration from other evidence on record can be accepted, but careful scrutiny should be made".

As I have discussed earlier, Swayamber has corroborated the prosecution case half heartedly and has tried to give corners to the defence version to benefit the appellants, but that part of his statement which is corroborated by PW1, 2 and 5 can be accepted in favour of prosecution.

Dr. M.M. Rastogi, PW-7 had conducted the autopsy of the deceased. He found following injuries on his person:

1.Contusion 2 cm x 1 cm on right side forehead, 1 cm above the right eye brow.

2.Contusion 1  ½ cm x 1 cm on the left temporal region, 1 cm away from left ear.

3.Contusion with swelling 2 cm x 1 ½ cm on the right parietal region of head 2 cm above the right ear.

4.Contusion 2 ½ cm x 2 cm on the back of right elbow.

5.Contusion 1 ½ cm x 1 cm on the top of left shoulder.

6.Contusion 2 cm x 1 cm on the top of right shoulder.

7.Contusion 2 ½ cm x 2 cm on the back of right chest lower part.

On the internal examination, the doctor found the right parietal bone and occipital bone  fractured and brain membranes  congested. The death was caused due to coma as a result of head injury. Much emphasis has been laid by learned counsel for the appellants that according to doctor, some blackish undigested food was found in the stomach of deceased and he would have  taken meals before 2 or 3 hours of his death.  Learned counsel for the appellants has contended that the death might have taken place at any other time. PW-1 Smt. Shiv Rani has stated in her cross examination that after three hours of the noon, the deceased had taken meals, meaning thereby, he had taken meals about 3.00 P.M. The incident had taken place sometime before sunset. All the witnesses have stated that the deceased became unconscious after sustaining  the injuries. The explanation given by learned trial court in his judgement is quite acceptable that during unconsciousness,  the digestive process would also have stopped. The doctor found semi-digested  blackish food in the stomach of deceased. Moreover, in the case of Ram Prakash and others Vs. State of U.P.; 1970 SC Crl. Ruling 208, it has been held by the Hon'ble Apex Court that "the presence of faecal matter in the intestines of the deceased cannot decide time of his death".

PW-1, Smt. Shiv Rani has admitted this fact that after the Panchayat,  her husband was falsely implicated in a case, under Section 399 and 402 I.P.C by the appellants and when her husband was released on bail, he was murdered. Learned counsel for the appellants has argued that due to said enmity, the appellants have been falsely implicated in this case, but this argument cannot be accepted.  The enmity is double edged weapon. It might be possible that when the appellants failed in their  attempts  to get the deceased in jail for a long period, they killed him.

In view of my above discussion, I  come to the conclusion that the learned trial court has rightly believed the evidence of eye witnesses and convicted the appellants. Thus, the appeal has no force and is liable to be dismissed.

The appeal of appellant Shyam Lal is dismissed. He is on bail. His bail is cancelled.

Let a copy of this judgement be sent to the C.J.M, Fatehpur for taking the appellant Shyam Lal into custody and send him jail to serve out the sentences awarded by learned trial court and compliance be reported to this Court on  15.9.2007.

It has come on the record that the appellants Ram Kumar and Gaya Prasad have died during the pendency of appeal, therefore, the case against them stands abated.

Date: August, 2nd,  2007



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