Chhotey Lal vs State Of U.P
2011 Latest Caselaw 2163 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Reserved
 

 
Crl. Appeal No.1644 of 2008
 
Chhotey Lal					-				Appellant             
 
	Vs.	
 
State of U.P.				-				Respondent
 

 
Connected with
 

 
Crl. Appeal No.1869 of 2008
 
Ram Awadh alias Nanhu and another -				Appellants
 
	vs.	
 
State of U.P.				-				Respondent
 

 
Crl. Appeal No.1905 of 2008
 
Ganga Prasad				-				Appellant
 
 	Vs.	
 
State of U.P.				-				Respondent
 

 
Crl. Appeal No.2038 of 2008
 
Ram Newaj & another			-				Appellants
 
	Vs.	
 
State of U.P.				-				Respondent
 
******
 

 
Hon'ble Uma Nath Singh, J.

Hon'ble Ved Pal, J.

(Per Uma Nath Singh, J.)

These four appeals arise out of a judgment dated 14.07.2008, passed by learned Additional Sessions judge, Barabanki , in Sessions Trial No.164 of 2004, holding six accused/appellants (herein) guilty of offence under Sections 302/149 IPC, and sentencing them each to undergo imprisonment for life with a fine of Rs.5000/-; with direction to undergo further RI for two months in case of default of payment of fine, besides the conviction and consequent sentence of RI for one year under Section 147 IPC. Regarding the charge of offence under section 148 IPC, except accused Chhote Lal and Ram Awadh who were not found guilty, other co-accused/appellants namely Ganga Prasad, Ram Newaj, Sangam Lal and Janwari have been convicted and sentenced to undergo two years R.I. in addition to the sentences imposed upon under Sections 302/149 IPC and 147 IPC. Learned Trial Court has directed all the sentences to run concurrently.

It appears from the FIR lodged by Uma Shankar Shukla (PW-1), brother of deceased, on 27.01.2004 at 08.15 AM at Police Station Dariyabad, Barabanki, that his brother deceased Brij Mohan Shukla was a social worker and thus used to help such aggrieved persons in the village who would fall victims to any type excesses, therefore, he invited the ires of their opponents and also some other people who developed enmity against him for one reason or the other. On the date of incident and lodging of FIR, the informant and his deceased brother namely Brij Mohan Shukla were returning home from Dariyabad market. They alighted from a jeep on a Pukki (Metalic) road near Tikait Nagar, and started for their village on foot. The deceased stopped for a while to pass urine while the informant walked a little away. In the meantime, when it was about 5 O' Clock in the evening, accused Ganga Prasad, son of Chhotey Lal, Ram Newaj son of Bhai Lal (who was carrying a banka), Chhotey Lal son of Lakshman and Ram Avadh alias Nanhu son of Sukai (who were carrying Lathis), Janwari son of Keshav Ram and Sangam Lal alias Goli son of Sukhai (who were carrying knives), emerged from the south direction of a field having mustard crop. They rushed to the deceased while hurling abuses, like "SALA NETA BANTA HAI. AAJ ISE JAAN SE MAAR DO." (Brother in law (abuse) is becoming a leader, therefore, he be killed today). Deceased Brij Mohan Shukla cried for help and ran towards the field of one Sanjay. Hearing the cries of his brother, the informant turned back but by that time, the accused persons had felled the deceased on ground and started the assaults. Hearing the hue and cry raised by the informant, Jogendra (PW-3) son of Budhaee Lodh, Nangoo (PW-2) son of Hasan Ali and some other villagers reached the spot and also witnessed the incident. Having seen the people approaching the scene of occurrence, the accused persons took to their heels, leaving the deceased on spot who succumbed to the injuries there itself. Leaving the dead body which lay in a field, the informant went to inform the police for taking legal action.

Pursuant to the F.I.R. , the investigation started and vide the inquest report (Ext. Ka 8) inquest proceedings were conducted by S.O. Suresh Kumar Verma, who had reached the scene of occurrence with police force. The inquest proceedings started on 27.01.2010 at 8-15 PM. and was completed on the next day i.e. on 28.01.2004 at 8-30 AM. A number of injuries of different nature were found present on the dead body of deceased by the police officer, during the course of inquest proceedings. They are like:(i) incised wound on right thigh near testicles; (ii)two abrasions on right side of the testicle; (iii) three abrasions on the left thigh;(iv) four incised wounds towards the left of naval point in abdominal region;(v) protruding of intestine; (vi) incised wound with bleeding on the right side of the naval point ; (vi) incised wound over the naval point; (vii) incised wounds at nine places around the chest; (viii) incised wound with blood stains on the right shoulder; (ix) incised wound with blood-stains on chin; (x) incised wound with blood stains on the eye-brow of left eye; (xi) incised wound on head ;(xii) incised wound with blood stains on neck and near the ear and ; (xiii) two incised wounds with blood stains towards the right side of the back and also below. In the inquest report, it is noted that the cause of death of deceased was the cumulative effect of all the injuries.

The dead body was sent for postmortem examination on the same day, and vide the testimony of autopsy surgeon, Dr. Anil Kumar Srivastava (PW-8) the following ante-mortem injuries were noticed :

1. IW 5 cm below right ear pinna, size 7 cms x bone deep.

2. IW situated at the angle on right jaw, 12 x 7 cm x bone deep.

3. IW 3 cm below left ear pinna, 5 cm x 3 cm, bone deep.

4. IW, 17 cm x 3 cm muscle deep below naval pinna.

5. IW 5 cm x 4 cm below left hip.

6. Abrasion 5 cm above the penis in the size of 6 cm x 2 cm.

In the opinion of Doctor, the cause of death was shock and haemorrhage as a result of ante-mortem injuries.

Vide Ext. Ka 7, a spot map was drawn by SO/Investigating Officer S. K. Verma (PW-10) on 28.01.2004.

It further appears that initially, the case was investigated by Station Officer S. K. Verma (PW-10), who also collected some vital incriminating materials connected with the offence, and recorded the statements of witnesses under Section 161 Cr. P.C. Finally, the charge sheet a challan was laid by S.O. Siddha Nath Katiyar (PW- 9).

During the course of trial, the prosecution examined as many as ten witnesses. They are namely: Uma Shanka Shukla (PW-1) (who is the complainant and also the brother of deceased); Nangoo (PW-2); Jogendra (PW-3); Constable Harmurti Chaube (PW-4) (who brought the dead body for postmortem examination); Constable Moharrir Sugreev Singh( PW-5), who prepared the Chik F.I.R; Constable Santosh Kumar Shukla (PW-6) (who delivered the incriminating materials for forensic examination); S.I. M.L. Chaudhari (PW-7); (who arrested accused Ram Avadh, and Janwari); Dr. Anil Kumar Srivastava (PW-8) (who conducted the post-mortem examination of dead body and prepared the post-mortem report); S.O. Siddha Nath Katiyar (PW-9) (who presented the challan), and S.O. S.K. Verma (PW-10) who had initially investigated the case).

However, the defence did not produce any witness in support of its case.

In their statements under Section 313 Cr. P. C, the accused persons denied the charges and pleaded false implication.

We have heard learned counsel for parties and perused the record.

Sri Nagendra Mohan, learned Senior Counsel for appellants submitted that the conviction based on the testimony of solitary witness Uma Shankar Shukla (PW-1) in view of the statements of Nangoo (PW-2) and Jogendra (PW-3), the hostile witnesses, is not worthy of credence for placing reliance. Learned counsel also submitted that when Uma Shankar (PW-1) had gone to market on bicycle there was no explanation as to why he handed over his bicycle to his nephew and then returned home in a marshal Jeep with his deceased brother. Learned counsel also submitted that when the knives were recovered from the possession of two accused persons, then there should have been more stab wounds instead of incised wounds. Learned counsel also submitted that in the inquest report the Investigating Officer has noticed thirteen injuries whereas in the postmortem report the injuries as noted are only six. Learned counsel further submitted that the marks of abrasion found on the dead body of the deceased could be possible on fall. Besides, the incriminating articles recovered at the instance of accused persons were not sent to FSL for examination. That apart, according to learned counsel, the incident took place at 5.00 PM whereas the first information report was lodged at 8.15 PM at police station which is just 6 Kilometers away from the place of incident. Moreover, there is no explanation as to how PW-1 had reached the police station. It is also a submission of learned counsel that if six persons mercilessly caused injuries with various weapons, the number of injuries as noticed to be 12 in the inquest report could not have been as less as six in the postmortem examination.

Uma Shankar (PW-1),who is the brother of deceased and also the complainant, has stated that all the accused persons are the residents of his village. He has owned the F.I.R. registered on 27.1.2004. In his evidence, there is a mention that since his deceased brother Brij Mohan Shukla used to help the villagers, the accused persons were feeling jealous. In his cross-examinations, he has clarified that including the deceased, they are five brothers. He has also mentioned that there was an incident of murder of one Mithlesh Shukla wherein one of his brothers namely Tribhuwan had also been made an accused. It appears that his father had also been murdered and thereafter, it was the occurrence of murder of Mithlesh Shukla.

From the narration of facts in the statement of this witness regarding several incidents of murder, it appears that there were inimical relationships of the family of deceased with other people of the village and there had been some incidents of killing in his family itself. After he had lodged the report at the police station and returned home, then the IO/SO came to the spot at 8 O' clock in the evening. He visited his residence for few minutes and then went to the scene of occurrence. It is also evident from his testimony that the inquest proceedings of the dead body were conducted on the next day at 10 O'clock. It is also mentioned in the statement that this witness left for Tuesday market on bicycle at about 11 O'clock and the deceased who had gone to market by jeep met him at 1 O'clock. They did not eat anything in the market and some of the villagers also met them there. It was a chilly winter season but there was no fog. They had also met some other villagers at about 3 O'clock in the market. The accused persons emerged from the mustard crop. This witness was aware that the deceased had stopped for passing urine and that is why he walked about 8-10 paces ahead and then stopped while holding two vegetables bags, one of which belonged to the deceased brother. The witness also clarified that the money for purchase of vegetables had been paid by the deceased, whereas the fare for hiring jeep for coming to their village being Rs. 6/- was paid by him. He has also given the details of the clothes and shoes worn by the deceased at the time of occurrence. He has given a precise description about the place, the deceased had stopped for passing urine and the accused were hiding and had disturbed the standing mustard crop etc. He has also clarified that the deceased was assaulted when he was passing urine. The deceased suffered Banka injuries on his neck, which caused profuse bleeding.

The eye witness has also stated that the accused persons who had caused the assaults were 2-4 in number. The deceased had run towards the North to save from the assaults. However, he could barely run for about 20-25 paces towards North-East for 2 minutes having come down for about 1 ½ ft. below the road. It was a wheat crop field. There were other crops like potato crops standing on the side of road. When the deceased fell down, his head lay towards South-East and the legs towards North-West. He was also assaulted when he was on run and crossed the potato field. He received the second blow only at that time with a Banka on the backside of his head. Though he did not fall on the ground with the second blow but when he was surrounded from all sides then he collapsed. He could not tell as to how the accused persons who were wielding knives had attacked the deceased. The accused who was armed with Lathi also caused injury. He did not remember about the total number of assaults with Lathi. However, none of the accused had run towards the witness for causing assault. He had stood only on the road while crying to save the deceased by shouting Bachao-bachao (save-save). He has also pointed out the place from where he had witnessed the incident. The duration of incident at the place where the deceased was surrounded and assaulted was only for a few minutes. The place from where he had witnessed the incident was at a distance of 20 paces from the wheat field and the deceased had fallen on the side of wheat crop field. The crop was about 2 ½ ft. high. He could not reach the spot where his brother was assaulted as the incident lasted only for a few minutes and thus could hardly react to save his brother. By the time he could reach the scene of occurrence, his brother was dead. He had reached there after 2-4 minutes and by that time the accused persons had already fled away. He had only seen the injuries caused on the front side of the dead body and he had not turned or disturbed the position of dead body. In his report, he has only mentioned about the injuries that he had seen being caused on the front side of the person of deceased. He had gone to police station all alone in a bicycle at sunset and stayed for half an hour. He had met the police sub-inspector at police station itself and given a written report. However, he had prepared the written report at home. When the police sub-inspector reached the scene of occurrence there was a gathering of a large number of people but he could not recollect their names. In the night, only the police personnels had stayed near the dead body. The dead body had been sealed on the spot itself. Deceased Brij Mohan was a social worker and, thus, used to help the people around,but he was not involved in any crime etc. He denied knowledge about any pending litigation under Section 107 and 116 Cr.P.C. with the accused persons. He was not aware as to whether accused Chhote Lal who was aged about 40-45 years had been prosecuted under Section 302 I.P.C. He has also denied a defence suggestion that the deceased was not a man of good character. He has also denied the defence suggestions that the deceased was killed by unknown persons and his brother Daya Shankar was charged sheeted in the murder case of one Ram Samujha, and therefore, he wanted to build up pressure on the accused by falsely implicating them in this case ; that the incident did not take place in the manner it was reported to the police and that he had not seen the incident.

PW-2 Nangoo, a co-villager of the deceased, categorically denied the prosecution case and mentioned that he had not seen the incident. He also stated that he had not given any statement to the police Sub Inspector. He did not know the reason as to why his statement was recorded by the Investigating Officer. He also denied the knowledge about the murder of his uncle wherein accused Chhotelal was also involved as an accused. He denied the suggestion that since he did not give statement in that case, therefore, the case of murder of his uncle ended in acquittal. He also denied the suggestion that because of fear of accused he had not given the correct statement. He only came to know about this case when he received a summon.

PW-3 Jogendra, also a co-villager of the deceased, denied that he has knowledge as to who committed the murder of deceased Brij Mohan Shukla. He had not seen any of the accused persons causing assault to the deceased. He stated that he had no information as to when the offence took place but it happened in the west side of the village which belonged to one Raja Sanjai Bali. He was not aware as to who committed the murder. Investigating Officer had not inquired anything from him. He also denied his 161 Cr.P.C. statement recorded by the police Sub Inspector. He claimed to be a daily wage labourer going from place to place in the course of engagement. However, he has stated that the dead body of the deceased was wrapped in a sheet and then sealed and taken to the police station. It was a foggy weather. The field where the incident took place belonged to one Sanjai Bali which was situated in a deserted place. It came to notice later that deceased Brij Mohan was lying dead at that place. He was not aware as to whether deceased Brij Mohan had ever gone to jail or not. He was also not aware that there was any dispute with the brothers of Brij Mohan about the property.

PW-4 Harmurti is a police constable. On 28.01.2004, he was asked to go at 06.15 hours with constable Raj Narain Yadav and the copy of FIR to the scene of occurrence where he met the Station Officer, Suresh Chandra Verma. At that time there was a crowd near the dead body. The Station House Officer invited the panch witnesses from the gathering and conducted inquest proceedings. The dead body was sealed and stamped. The original panchnama also bore his signature. Thereafter, the dead body was handed over to him with requisite papers for being carried for postmortem examination at about 10.15 hours. He in turn handed over the dead body with specimen seal and accompanying papers to autopsy surgeon who tallied the specimen seal with the seal affixed on the cover sheet of the dead body. Thereafter he broke open the seals. The witness and the other police constable identified the dead body. That very day at 3.30 PM the doctor conducted the postmortem examination and handed over the police papers, one stamped packet and 2 copies of postmortem reports of the dead body. The witness submitted one envelope in the S.P. Office the same day, and then delivered the second envelope with police papers and the packet at the police station in the evening at 21.30 hours and got his arrival recorded vide daily diary entry report no.22. He identified the entries of the daily diary report regarding the status of dead body when it remained in their custody while being taken for postmortem examination. According to the witness, he and his colleague did not give any opportunity to others to touch the dead body. He had brought along the G.D. dated 28.01.2004. He clarified that in the G.D. Entry for 28.01.2004 there was no other entry. He also produced the G.D. entry of 27.01.2004 and again stated that there was no other entry of any other case at the police station except the entry about this incident. This case was lodged and registered in the presence of Station Officer. At the time of registration of the case at the police station the witness was on picketing duty. He was not able to tell as at what time on 27.01.2004 the Station Officer had returned from the scene of occurrence. It was only on the next day i.e. 28.01.2004 that he met the Station Officer at 7.30 hours and remained with him up to 10.30 hours. The Station Officer had visited the scene of occurrence in a police jeep which was driven by a police driver. On his arrival at the scene of occurrence this witness had met Constable Santosh Kumar, Manoj Kumar Tiwari and other police personnels who were present there. He had taken the dead body in a tractor hired by the family members of the deceased from the scene of occurrence. In his cross examination he has submitted that he returned from picket duty in the morning at 5.00 O'clock when he was informed by the literate Constable Sugreev that he was required by the Station Officer to arrive at the scene of occurrence. He alongwith his colleague, Constable Ram Narain Yadav, went in a police jeep to police station Tikait Ganj and from there walked up to the scene of occurrence. He had noticed the injuries present on the dead body of deceased. He had also seen the presence of injuries on the neck and face. The surface of land was wet due to presence of dew. The wheat crop was standing in field. There used to be foot prints on walking inside the field. After postmortem examination, he handed over the dead body to complainant Uma Shankar. He had not prepared any memo regarding the transfer of custody of the dead body. He did not meet the Circle Officer on the spot but met him only after the postmortem examination. The Investigating Officer had not noted in his statement that in the same tractor trolley the family members of the deceased had also travelled with the dead body and brought it back after postmortem examination. He has denied the defence suggestion that at the time of his departure, the FIR had not been registered. He also denied the defence suggestion that the dead body had been brought to the police station in the night and from there itself it was carried for the postmortem examination. He also denied the defence suggestion that he had not visited the spot of incident.

PW-5 Sugreev Singh was posted as literate Constable called Moharrir on 27.01.2004 at police station Dariyabad. At 20.15 hours in the evening complainant Uma Shankar Shukla submitted a complaint in writing Ext. Ka-1. On the basis of that report he wrote Chik No.5 of 2004 in the presence of SO Suresh Kumar Verma. It was also signed by the SO himself. It has been exhibited as Ext. Ka-2. He also proved the exhibit. The carbon copy of Chik was exhibited as Ext. Ka-3. It was also written vide entry report no.34 in the General Diary wherein it was mentioned that the case was registered at 20.15 hours. He also proved the carbon copy of General Diary vide Ext. Ka-4. In the same G.D there is also an entry regarding the departure of Investigation Officer Suresh Kumar Verma, SO, with other police force and copy of Chik, copy of report and also the copy of Panchayatnama. It is also mentioned that Constable Manoj Kumar Tiwari and Constable Suresh Kumar Shukla had accompanied the SO. This witness clarified that he had written the Chik only on the basis of written report submitted by the complainant. He has denied the defence suggestion that there was any direction from the SO to register the FIR. After writing of Chik, an entry was also made in the G.D and on both the documents the time was noted as 12.15 hours. Information about the incident was also sent to the senior officer namely Circle Officer. The SO had set out with the police force soon after writing of Chik and recording of FIR. The entire exercise at police station had taken about one hour time. As per practice the complainant had signed on the second page of the Chik. The report of SO under Section 157 Cr.P.C. was carried by Constable S.P. Dubey for senior officer at 21.30 hours on 27.01.2004 itself who had returned on next day morning at 8.00 hours on 28.01.2004. No case had been registered before and after the registration of this case. The SO did not return from the scene of occurrence till before 28.01.2004. This witness has also corroborated the departure of Constable Harmurti Chaubey and Constable Ram Narain Yadav as mentioned in their statements at 6.15 hours on 28.01.2004 under the direction of SO for the scene of occurrence. This witness has denied the defence suggestion that after registration of the FIR there was an ante-timed entry in the Chik and the GD was manipulated with subsequent entry on return of SO from the scene of occurrence.

PW-6 Constable Santosh Kumar was posted at police station Dariyabad on 24, 25 and 26.2.2004. He had appeared in the court of CJM with case property containing incriminating materials/case property for inspection and preparation of docket in order to deliver them for chemical examination. After completing the usual procedural formalities, the articles were handed over to this witness for depositing in the Forensic Science Laboratory for testing. As the specimen seal had been kept inside a packet, the witness was asked to get it opened. Thus, he returned to the court of CJM and took out the sample seal from the pocket only under the orders of the Court. However, since he was late by that time, therefore, he went to police station and deposited the packet etc.

Next day, he again received the articles from police station and delivered them in the FSL, Lucknow. He has reiterated the fact that till the articles remained with him, they were not touched, nor did any one even get a chance to tamper with them. He has also supported such entries of these dates made in the daily diaries. He had handed over the articles to the clerk of FSL who had earlier raised the objection. He has also denied all the defence suggestions which were contrary to the prosecution case. He has also remained unshaken in the cross examinations.

Shri Ram L. Chaudhary (PW-7) stated that he was posted as S.I. at police station Dariyabad with SO, One Suresh Kumar Verma on 1st and 4th February 2004, when 5 accused persons were arrested by the police. In the first round of arrest, only two accused persons namely Ram Awadh @ Nanhu and Janwary were arrested on 1.2.2004. When SO Verma along with a police party [that also included PW7] was searching for accused persons , he was tipped off by an informer that accused Ram Awadh and Janwary who were present near Daryabad railway station, had moved towards the railway station. Thus the police party promptly reached there and parked the vehicle outside the railway station. Having received the signal, the police interrupted the accused persons, who attempted to run away. However, they were overpowered and arrested at 13.20 by the police force. They disclosed their names and identity. The police informed them that they were named in the FIR. On being interrogated they confessed that they committed the murder of the deceased towards vengeance and as a reprisal . He was also involved in the murder of one Ram Anuj uncle of accused Janwary. Accused Janwary also disclosed the names of other 3 co accused persons namely accused Ram Newaj, Ganga Prasad and Sangam Lal . At a disclosure statement given by him , he also got the weapon of offence recovered from a pond. The rest three above named co - accused persons were arrested on 4.2.2004 on tip off given by informer to the SO. On their disclosures also, weapons of offence namely banka and knife used by them were recovered from the bamboo bushes and heap of arrow grass. They were also found to be stained with human blood. PW7 has supported the recovery memos and withstood the rigors of a lengthy cross examination. He has explained that in the GD entry as per procedure only the SO is supposed to sign.

Dr.Anil Kumar Shrivastva (PW-8) was posted as a cardiologist in the District Hospital Barabanki on 28.1.2004. He conducted post mortem on the dead body of deceased Brij Mohan Shukla. The probable time of death was a day before the date of postmortem. The dead body was of average built with rigor mortis present all over. He proved the number, nature and seat of injuries as given above. In his opinion , there was a possibility of occurrence of death on 27.1.2004 at 5 O'clock in the evening. Injuries no 1 to 5 were possible from some sharp edged weapons like banka or knife. He also proved all such exhibits which are related to postmortem examination of the dead body. He also opined that the death resulted from the impact of anti mortem injuries as noticed on the dead body. The witness has clarified that injury nos.1 and 3 could cumulatively cause the death of deceased. Injury nos.1,2,and 3 are possible from one or more than one sharp edged weapon. He had not found any everted injury because the injuries were only bone or muscle deep. Thus, the injuries as noticed on the dead body were possible from the weapons recovered at the instance of the accused persons and the probable time of death also appears to be the same as suggested in the prosecution story.

Siddhanath Katiyar was posted as SO, Police Station Dariyabad on 3.3.2004. He had succeeded Suresh Kumar Verma (PW-10) and taken over the investigation. With the permission of the court, he had recorded the statement of accused Chhotelal inside the jail. On 8.3.2004 and 9.3.2004, he recorded the statements of police personnels who were shown to be the witnesses of memos prepared during the investigation. He put up the charge sheet (Ext. Ka-6) under sections 147,148,and 302 r/w 149 IPC against accused persons 1 to 6 . During investigation, he had also come to know that a separate case had been registered under the Arms Act. This witness had a limited role to play in the investigation of this case to the extent of filing of a charge sheet against the accused persons and recording the statements of some witnesses.

Suresh Kumar Verma (PW-10) was posted as SO of Dariyabad Police Station. The Case Crime no.4/04 was registered in his presence. He undertook the investigation of this case and set out with police force for the scene of occurrence. The dead body of the deceased was lying in a field. As there was no provision of light there, the inquest could not be carried out. Some police personnel were left at the spot to protect the dead body. Thereafter, he came to the village in search of the accused persons but they had absconded from their houses. Statement of complainant Uma Shankar Shukla was taken in lantern light at his residence. On 28.1.2004, he inspected the scene of occurrence and at the instance of complainant prepared the spot map, and then carried out the inquest proceedings in the presence of witnesses. After following the necessary procedure , the dead body was sent with constables Harmurti Chaubey, and Ram Nayak for postmortem examination. He also prepared memos connected with recoveries of incriminating materials, and arrested accused Ram awadh and Janwary on 1.2.2004 at 13.20 hrs. on being tipped off by some informer, and recorded the statement of accused Janwary in the nature of extra-judicial confession regarding the factum and manner of commission of offence committed by him along with other accused persons. Accused Janwary also produced the weapon of offence from a pond towards his statement given to SO, which was duly seized vide the connected recovery memos. On 4.2.2004, again having been tipped off by an informant, he arrested accused Ganga prasad, Sangam Lal and Ram Newaj at 13.10 hrs. All the three accused persons also made extra-judicial confessions before the SO and pursuant there to, there were discoveries and recoveries of Banka on being produced by Ganga Prasad and knife by Sangam Lal. The SO also recorded the statements of witnesses connected with recovery and other memos prepared between 5.2.2004 and 20.2.2004 during the course of investigation. He sent the incriminating materials to FSL with constable Santosh Kumar Shukla for examination. He also proved all exhibits connected with investigation. He has clarified that after the registration of case, he started investigation at 20.50 hrs. and went to the scene of occurrence where there was a large gathering of people. After a brief stay for about 15 minutes, he went to the house of the complainant. He also got the dead body photographed which only broadly showed the seats of injuries. In the inquest report also, the SO mentioned about the injuries noticed on the back of dead body. While describing the nature of injuries and position of dead body, he frankly admitted some defects in the investigation carried out by him. Thus, he has supported the prosecution case in material particulars.

In their statements under section 313 Cr.P.C., the accused appellants have pleaded false implication due to enmity.

On the other hand, learned counsel for the state supported the impugned judgment.

On due consideration of rival submissions, and a careful reading of the impugned judgment,we do not find any perversity or serious infirmity in the impugned judgment which may require our interference in appeal . There is an eye witness accounts of the incident as given by complainant Uma Shanker (PW1), brother of the deceased. The incident took place at 5 O'clock in the evening on 27.1.2004 and the FIR was lodged at 8.15 after a gap of 3.15 hrs., having covered a distance of 6 kms. and as per the statement of Investigating officer (PW10) , he started the investigation at 8.50 in the evening itself. Though the inimical relationship between the parties is admitted by the witness but on that count itself, the testimony of solitary eye witness cannot be disbelieved. If the evidence of eye witness is otherwise credible, trustworthy and quality evidence then it is acceptable. Even a corroboration is not required and only in exceptional circumstances one may look for the corroboration for lending further credibility to the testimony of the solitary eye witness. In a judgment of Hon'ble the Apex Court rendered in the case of Namdeo vs. State of Maharashtra (2007) 14 SCC 150, it has been held as:

"16. Having heard the learned counsel for the parties, in our opinion, no interference is called for in exercise of power under Article 136 of the Constitution. It is no doubt true that there is only one eyewitness who is also a close relative of the deceased viz. his son. But it is well settled that it is quality of evidence and not quantity of evidence which is material. Quantity of evidence was never considered to be a test for deciding a criminal trial and the emphasis of courts is always on quality of evidence.

17. So far as legal position is concerned, it is found in the statutory provision in Section 134 of the Evidence Act, 1872, which reads:

"134. Number of witnesses.- No particular number of witness shall in any case be required for the proof of any fact."

x x x x x x x x x x x

28. From the aforesaid discussion, it is clear that Indian legal system does not insist on plurality of witness. Neither the legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eyewitness, therefore, has no force and must be negatived."

In the instant case Uma Shankar (PW-1), brother of the deceased, is the solitary eye-witness of the entire incident. He has given a detailed and graphic description of the incident which also includes different stages of the investigation of this case he was associated with. He has been honest in admitting that his family had enmities with some natives of his locality. He has given the precise time being 11.00 AM when he went to market by a bicycle. The deceased had met him there at 01.00 PM. Both of them had not eaten anything in the market. It was a winter season with chilly weather, but there was no fog. He had also met some other villagers in the market. At the time of incident, the accused persons had emerged from a mustard crop field when the deceased had stopped for passing urine. He had held two packets of vegetables, one belonging to deceased and the other to him, purchased by the deceased himself. According to him, the first injury was caused with Banka on the neck of deceased which started causing profuse bleeding. The second blow was also caused with Banka but the deceased collapsed only on being surrounded by the accused persons. Thereafter, a Lathi blow was also caused. This witness has clarified that the incident of causing blows had happened in quick successions and lasted only for a few minutes, before he could reach the exact spot of incident. By that time, the accused persons had managed to flee away, however, none of them had rushed towards him to cause assault. Under the circumstances, the witness could not get any opportunity to save his brother and when he reached near his injured brother, he was dead. He did not disturb the position of dead body and, thus, could only notice the injuries visible on the front side. He went to police station on bicycle and gave a written report having stayed for about ½ to 1 hour over there.

In his evidence, the witness has stated that accused Ganga Prasad & Ram Newaj were carrying Banka, accused Janwary & Sangam were armed with lathi and knife whereas accused Chhote Lal & Ram Awadh were only wielding lathis. They had chased the deceased and then caused him blows after felling him on the ground in the field of one Sanjay Bali. He has also mentioned that when he raised hue and cry, co-villagers like Jogendra Lala (PW-3) and Nangoo (PW-2) alongwith a number of other villagers rushed to the scene of occurrence. Then the accused persons had run away from spot towards the South-West direction. In the testimony of this solitary eye witness there is nothing to doubt the credibility. His presence on the scene of occurrence appears to be quite probable and his conduct absolutely natural under the obtaining circumstances when the offence lasted only for a few minutes. This witness has owned the contents of F.I.R. which, in turn, corroborates his testimony. Two other witnesses namely Nangoo (PW-2) and Jogendra (PW-3) though have turned hostile, however, from the testimony of Jogendra who has denied the knowledge about the occurrence, it is evident that he had seen the dead body and that is why he has stated that it was wrapped in a sheet and was also sealed and then taken to Police Station. He has also mentioned that it was a foggy weather and the incident took place in the western side of the village in a field which belonged to one Raja Sanjai Bali. Thus, this witness has turned hostile for some extraneous consideration or under threat or influence of the accused persons and has only given a limited support to the prosecution case.

It is also a settled principle of law that the testimony of a hostile witness cannot be rejected in toto and if possible there should be sifting of grain from the chaff. Thus, the testimony of this witness insofar as it relates to the scene of occurrence and the position of dead body is concerned, it lends support to the prosecution case.

The testimony of official witnesses namely Harmurti Chaubey (PW-4), who took the dead body for postmortem and received postmortem reports and incriminating articles from the Autopsy Surgeon; of Sugreev Singh (PW-5), who was posted as Constable Moharrir (Literate Constable) regarding preparation of Chik report, registration of FIR and making GD entries of 27.01.2004 and 28.01.2004; of Constable Santosh Kumar (PW-6) to the effect that he delivered the incriminating articles in the Forensic Science Laboratory; of SI Ram Lal Chaudhary (PW-7) who accompanied the SO Suresh Kumar Verma for arresting the accused persons and in discovery and recovery of incriminating articles; of Dr. Anil Kumar Srivastava (PW-8) who conducted the postmortem on the dead body; of Siddhanath Katiyar (PW-9) the SO who put up the charge sheet against the accused persons under Sections 147, 148 and 302 read with Section 149 IPC, and of Suresh Kumar Verma (PW-10) who conducted the major part of investigation right from inquest proceedings up to the arrest of accused persons and discovery and recovery of incriminating articles, do not suffer from any infirmity. The same have already been referred to and discussed hereinabove.

Now, coming to the submission of learned counsel for appellants regarding the discrepancy between the number of injuries as recorded in the inquest proceedings and the postmortem report, in a judgment of Hon'ble the Apex Court passed in the case of Munshi Prasad and others vs. State of Bihar, (AIR 2001 SC 3031), it has been held that the inquest report and postmortem report cannot be treated as a basic and substantive evidence. Any discrepancy occurring therein can neither be termed to be fatal nor even a suspicious circumstance which would warrant a benefit to the accused persons and the resultant dismissal of the prosecution case. Moreover, the inquest report in the instant case does not suffer from any serious defect except in respect of recording of number of injuries in the excess of the injuries noticed in the postmortem report. Besides, in the cross-examination of Autopsy Surgeon (PW-8) and the Investigating Officer (PW-10) there is no such specific defence suggestion and, therefore, there is also no specific explanation thereto.

Insofar as a recovery of knife from two accused persons is concerned, it would not necessarily mean that both the accused persons could have got equal opportunity to cause sufficient number of injuries, when the entire incident, according to complainant PW-1, lasted only for a few minutes. It was a winter month with chilly weather when the complainant went by bicycle to the police station after covering a distance of six kilometers and thereafter reduced the report in writing and submitted it at police station, therefore, it cannot be said that the FIR was lodged with delay or was ante-timed.

On due considerations of rival submissions and after re-appreciation of evidence on record as discussed in the preceding paragraphs, we are of the considered view that there is no merit in this Bunch of Criminal Appeals.

Hence Criminal Appeal No.1644 of 2008 (Chhotey Lal Vs. State of U.P.), Criminal Appeal No. 1869 of 2008 (Ram Awadh alias Nanhu and another Vs. State of U.P.), Criminal Appeal No.1905 of 2008 (Ganga Prasad Vs. State of U.P.) and Criminal Appeal No.2038 of 2008 (Ram Newaj & Ors Vs. State of U.P.), are hereby dismissed.

                                                     ( Vedpal, J.)           (Uma Nath Singh, J)
 

 
Dated: 31.05.2011
 
A.Katiyar/Irfan