Radhey Shyam vs State Of U.P.
2017 Latest Caselaw 4885 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 40
 

 
Case :- JAIL APPEAL No. - 4510 of 2010
 

 
Appellant :- Radhey Shyam
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Syed Imran Ibrahim A.C.
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Mahboob Ali,J.

(By the Court)

Heard Sri Syed Imran Ibrahim, learned Amicus for the appellant and Sri Saghir Ahmad, learned AGA for the State.

This jail appeal has been filed by the appellant Radhey Shyam against the judgement and order dated 21.04.2010 passed by Additional Sessions Judge, Court No.3, Ballia in S.T. No. 246 of 2006, State of U. P. Vs. Radhey Shyam u/s 302/ 307/ 201 I.P.C. and S.T. No. 59 of 2009, State of U. P. Vs. Radhey Shyam, u/s 4/25 Arms Act, P.S.- Garhwar, District- Ballia by which the appellant has been convicted and sentenced to imprisonment for life and fine of Rs. 10,000/- u/s 302 I.P.C., ten years rigorous imprisonment and fine of Rs. 10,000/- u/s 307 I.P.C., three years rigorous imprisonment and fine of Rs. 5,000/- u/s 201 I.P.C. and three years rigorous imprisonment and fine of Rs. 5,000/- u/s 4/25 Arms Act and in case of default of payment of fine, additional imprisonment of six months. All the sentences have been directed to run concurrently.

Briefly stated the facts of this case are that on the basis of a written report (Ext.Ka.1) given by P.W.1 informant Akhilesh Kumar at P.S.- Garhwar, District- Ballia on 22.05.2006 at about 9.40 A.M. in respect of an incident which had taken place on the same day at 9 A.M. in which the accused-appellant Radhey Shyam had allegedly committed the murder of informant's father Vijay and his mother Smt. Devanti Devi in his house by inflicting injuries on them by a sword-like sharp-edged weapon in the presence of the informant and other witnesses Bhim, son of Sri Kishun and Subedar, son of Tapesha who had arrived at the place of occurrence on hearing the noise made by the informant and were also attacked by the accused-appellant with the same weapon, Case Crime No. 53 of 2006 u/s 302/ 307/ 201 I.P.C. was registered against the accused-appellant. Check F.I.R. (Ext.Ka.2) and relevant G.D. entry (Ext.Ka.28) were also prepared. In the written report (Ext.Ka.1), it was alleged by P.W.1 informant Akhilesh Kumar that the accused-appellant Radhey Shyam, after committing the murder of his parents, had dragged their dead bodies into his field of maize and after covering their dead bodies with hay, he had set the same on fire with the object of burning their dead bodies. However, on account of arrival of large number of villagers including Patwari son of Samsuddin, Umesh son of Balgovind and Chotey Lal son of Chandradev at the place of occurrence and their challenging the accused, he ran towards the village whereafter the fire was doused by the villagers.

The investigation of the case was taken up by P.W.6 Hasmat Khan, the then S.H.O who reached the place of occurrence and recorded the statement of P.W.1 informant Akhilesh Kumar and at his instance, inspected the place of occurrence and prepared its site plan. He held inquest on the dead bodies of deceased Vijay and his wife, Smt. Devanti Devi and prepared the inquest reports and other related documents and then dispatched the dead bodies of Vijay and Smt. Devanti Devi to the District Hospital for conducting the postmortem. He collected plain and blood-stained earth and ash from the place of incident and prepared their recovery memos (Ext.Ka.19 and Ka.22). The Investigating Officer arrested the accused-appellant on the same day at about 2.30 P.M. from the lavatory of a Primary School of the village. The crime weapon, hidden by accused-appellant Radhey Shyam under a guava tree under a heap of mud was recovered pursuant to the disclosure statement made by him before the Investigating Officer after his arrest. The recovery memo of the crime weapon was prepared by S.I. Hori Prasad Sonkar. The crime weapon (sword) was produced during the trial and marked as (material Ext.Kha.21). Case Crime No. 54 of 2006 u/s 4/25 Arms Act was registered against the accused-appellant on 25.05.2006 at 16.30 hours on the basis of the recovery memo of the crime weapon (Ext.Ka.21).

After completing the investigation, the Investigating Officer submitted two charge-sheets against the accused-appellant (Ext.Ka.22A and Ka.26) u/s 302/307/201 I.P.C. and 4/25 Arms Act respectively before the Chief Judicial Magistrate, Ballia. Since the offences mentioned in the charge-sheets were triable exclusively by the Court of Sessions, Chief Judicial Magistrate, Ballia committed the accused for trial to the Court of Sessions Judge, Ballia where the two cases under Sections 302/307/201 I.P.C. and 4/25 Arms Act were registered as S.T. No. 246 of 2006 and 59 of 2009 respectively and made over from there for trial to the court of Additional Sessions Judge, Court No.3, Ballia who on the basis of the material on record and after hearing the prosecution as well as the accused-appellant on the point of charge, framed charge u/s 302/307/201 I.P.C. and 4/25 Arms Act against the accused-appellant. The accused-appellant abjured the charge and claimed trial.

The prosecution in order to prove its case examined as many as eight witnesses, out of whom P.W.1 Akhilesh Kumar, P.W.2 Bhim and P.W.3 Subedar were examined as witnesses of fact while P.W.4 Head Constable Ram Lochan, P.W.5 Dr. G.C. Maurya, P.W.6 Hasmat Khan, Investigating Officer, P.W.7 Dr. S.P. Rai and P.W.8 S.I. Dudhil Ram were produced as formal witnesses.

The prosecution also adduced documentary evidence comprising of written report (Ext.Ka.1), check F.I.R. (Ext.Ka.2), carbon copy of G.D. entry (Ext.Ka.3), autopsy reports of deceased Vijay and deceased Smt. Devanti Devi (Ext.Ka.4 and Ka.5), site plan of the place of occurrence of the case u/s 302 I.P.C. (Ext.Ka.6), inquest reports of the deceased Vijay and deceased Smt. Devanti Devi (Ext.Ka.7 and Ka.8), report addressed to the C.M.O, Ballia (Ext.Ka.9), photo lash (Ext.Ka.10), specimen seal (Ext.Ka.11), police form no.13 (pertaining to deceased Vijay) (Ext.Ka.12), report addressed to R.I. (Ext.Ka.13), photo lash (Ext.Ka.14), reports forwarded to R.I., Ballia (Ext.Ka.15 and Ka.16), specimen seal (Ext.Ka.17), police form no.13 (pertaining to deceased Smt. Devanti Devi) (Ext.Ka.18), recovery memo of blood-stained earth (Ext.Ka.19), recovery memo of ash (Ext.Ka.20), recovery memo of sword (Ext.ka.21), recovery memo of simple earth (Ext.Ka.22), charge-sheet filed u/s 302 I.P.C. (Ext.Ka.22A), photostat copies of injury reports of injured Bhim and Subedar (Ext.Ka.23 and Ka.24), charge-sheet submitted in the case u/s 4/25 Arms Act (Ext.Ka.26), check F.I.R. of the case u/s 4/25 Arms Act (Ext.Ka.27) and carbon copy of relevant G.D. entry (Ext.Ka.28).

The accused-appellant in his statement recorded u/s 313 Cr.P.C. denied the prosecution case and alleged that the F.I.R. in this case was ante-timed. He further submitted that there is neither any credible evidence on record nor any reliable eye-account testimony of the incident. He denied the recovery of sword on his pointing out and described the same as fabricated by police. He further stated that he had been implicated in the present case falsely by P.W.1 informant Akhilesh Kumar due to previous enmity after the dead bodies of parents of the informant were found lying in his field, merely on the basis of suspicion. According to him, the dead bodies of informant's parents were thrown by Bhim, Subedar or some other persons in his maize field after committing their murder in the night. The accused-appellant did not examine any witness in defence.

Learned Additional Sessions Judge, Court No.3, Ballia, after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the entire evidence on record, both oral as well as documentary, convicted the accused-appellant u/s 302/307/34 I.P.C. and 4/25 Arms Act and awarded the aforesaid sentences to them.

Sri Syed Imran Ibrahim, learned Amicus appearing for the appellant has submitted that in view of the irreconcilable contradictions in the evidence of the three witnesses of fact examined on behalf of the prosecution during the trial on all material points relating to the occurrence, their presence at the place of occurrence at the time of incident and their claim of having witnessed the same is extremely doubtful and the trial court erred in law in basing the accused-appellant's conviction on the totally unreliable evidence of P.W.1 informant Akhilesh Kumar, P.W.2 Bhim and P.W.3 Subedar. The medical evidence on record does not corroborate the time of the incident as spelt out in the F.I.R. The prosecution having failed to prove its case against the accused-appellant beyond all reasonable doubts, neither the recorded conviction nor the sentences awarded to him can be sustained and are liable to be set-aside.

Per contra Sri Saghir Ahmad, learned AGA has submitted that the prosecution case stands fully proved from the evidence of P.W.1 informant Akhilesh Kumar, P.W.2 Bhim and P.W.3 Subedar. There is no irreconcilable conflict between the eye-witness account and the medical evidence on record. The recorded conviction of the accused-appellant is based upon cogent evidence and the sentences awarded to them are supported by relevant considerations. This appeal lacks merit and is liable to be dismissed.

We have heard Sri Syed Imran Ibrahim, learned Amicus for the appellant and Sri Saghir Ahmad, learned AGA for the State and perused the lower court record.

The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove its case against the accused-appellant beyond all reasonable doubts or not ?

Record shows that as per the prosecution version as spelt out in the F.I.R., the accused-appellant Radhey Shyam, who was the next door neighbour of P.W.1 informant Akhilesh Kumar, started abusing the informant's parents in their house at about 9 A.M. on 22.05.2006 on account of some old dispute between them and when his father objected, the accused-appellant Radhey Shyam went inside his house and returned with a sword-like sharp-edged weapon and started inflicting sword injuries on his father and when his mother Smt. Devanti Devi tried to save her husband from Radhey Shyam, she was also attacked by Radhey Shyam with the same weapon. On the informant Akhilesh Kumar making a noise, his neighbours Bhim, son of Sri Kishun and Subedar, son of Tapesha came to the place of occurrence. But they were also attacked by him with the sword-like sharp-edged weapon causing injuries to them.

The parents of the informant died on the spot as a result of multiple injuries inflicted on them by the accused-appellant, Radhey Shyam. Thereafter, Radhey Shyam dragged the dead bodies of informant's parents into his maize field and after covering their dead bodies with a pile of hay, he set the same on fire. However, on hearing his hue and cry, other villagers including Patwari son of Samsuddin, Umesh son of Balgovind and Chotey Lal son of Chandradev etc, also arrived at the place of occurrence and on their challenging the accused-appellant Radhey Shyam, he fled towards the village. Thereafter, the fire was extinguished by the villagers. Leaving behind the dead bodies of his parents in the maize field of Radhey Shyam, the informant left for the police station to lodge the F.I.R. of the incident.

Record further shows that the written report of the occurrence (Ext.Ka.1) was lodged by P.W.1 informant Akhilesh Kumar at P.S.- Garhwar, District- Ballia which is at a distance of about 11 km from the place of occurrence, on the same day at about 9.40 A.M.

Akhilesh Kumar, the informant in this case and the son of the deceased who was examined as P.W.1 during the trial as an eye witness of the occurrence, in his evidence tendered before the trial court deposed that the incident had taken place at about 9 A.M. when his mother and father were present in their house. Suddenly their neighbour, accused-appellant Radhey Shyam came to their house and started abusing his parents to which they objected on which he ran to his house and returned with a sharp-edged weapon which resembled a sword and started attacking them with the same. On the hue and cry raised by him, P.W.2 Bhim and P.W.3 Subedar also arrived at the place of incident and tried to save his parents. But they were also attacked by him by the same sword. In the attack, the informant's parents as well as P.W.2 and P.W.3 received injuries. As a result of injuries received by his parents, they fell on the ground and died on the spot. Thereafter, the accused-appellant dragged the dead bodies of his parents to his maize field in front of his house and after covering the dead bodies with hay, he tried to burn their corpses. However on hearing the noise made by the informant, Patwari son of Samsuddin, Umesh son of Balgovind and Chotey Lal son of Chandradev etc., also arrived at the crime scene and tried to save the corpses of his parents from being burnt. But by that time, their dead bodies were burnt to a considerable extent. The people who had arrived at the crime scene doused the fire. The accused-appellant fled away. The written report of the incident was scribed by Rama Shankar on his dictation in his house and given at P.S.- Garhwar, District- Ballia. The written report of the occurrence was proved by P.W.1 as (Ext.Ka.1).

P.W.2 Bhim in his examination-in-chief deposed that his house is near the house of Vijay. The house of accused-appellant Radhey Shyam is adjacent to the house of Vijay. The incident had taken place at about 9 A.M. about one year four months before. He was in his house when he heard some noise on which he came out of his house and met P.W.3 Subedar and both of them rushed towards the house of Vijay and on reaching there, he saw accused-appellant Radhey Shyam inflicting blows on Vijay and his wife Smt. Devanti Devi with a sword-like sharp-edged weapon. He and Subedar tried to save them but they were also attacked by him with the same weapon. P.W.2 Bhim received injuries on his legs while P.W.3 Subedar received injuries on his hand. On account of the sword injuries inflicted on them, both Vijay and his wife, Smt. Devanti Devi fell on the ground and died. Thereafter, the accused-appellant Radhey Shyam dragged their dead bodies to his maize field in front of his house and after covering their dead bodies with hay, he set the same ablaze but by that time Patwari son of Samsuddin, Umesh son of Balgovind and Chotey Lal son of Chandradev etc. had also arrived at the crime scene and witnessed the whole incident. They tried to douse the fire. On the arrival of other villagers at the crime scene, the accused-appellant fled. He and Subedar were medically examined on the same day and referred to District Hospital, Ballia where they were admitted for treatment.

P.W.3 Subedar in his examination-in-chief fully corroborated the evidence of P.W.2 Bhim on all material facts relating to the occurrence.

It has been submitted by the learned Amicus that there are material contradictions in the statements of the three witnesses of fact produced by the prosecution with regard to the place of occurrence because according to P.W.1 informant Akhilesh Kumar, the accused-appellant Radhey Shyam had caused injuries to the deceased Vijay and Smt. Devanti Devi in front of their house while P.W.3 Subedar deposed that the accused-appellant had attacked the deceased in his maize field. However, we do not find any force in the aforesaid submission of the learned Amicus. As regard the place of occurrence, both P.W.1 and P.W.2 have deposed that the accused-appellant had caused injuries to the deceased with his sword in front of their house while P.W.3 in his examination-in-chief has merely deposed that when upon hearing the noise, he reached the maize field of the accused-appellant, he saw him wielding blows on Vijay and his wife, Smt. Devanti Devi from his sword. There is nothing in his evidence which may show that he had described the place of occurrence as the maize field of accused-appellant. What he has stated is that he had seen the occurrence from the maize field of the accused-appellant. In this context, it would be useful to have a glance at the site plan of the occurrence prepared by the Investigating Officer of the case which is on record as (Ext.Ka.6). The place where the accused-appellant had attacked the deceased has been shown by the Investigating Officer by letter 'A' in the site plan which is adjacent to the southwest corner of the maize field of accused-appellant Radhey Shyam.

P.W.1 informant Akhilesh Kumar in his cross-examination on page 6 of the paper book has deposed that a lot of blood had spilled at the place where his parents had died after being inflicted injuries by the accused-appellant with a sword in front of his house. Learned Amicus has drawn our attention to the evidence of P.W.6 Hasmat Khan, Investigating Officer of this case on page 43 of the paper book in which he during his cross-examination has stated that apart from maize field, he had not found blood at any other place and submitted that from the evidence of P.W.6 Hasmat Khan, it is proved that the incident had not taken place in front of the house of the deceased.

P.W.2 Bhim in his cross-examination stated that accused-appellant Radhey Shyam's field is adjacent to the house of deceased Vijay in the north direction. He further deposed in his cross-examination on page 22 of the paper book that accused-appellant had attacked him with a sword in the same maize field where he had inflicted injuries on deceased Vijay and Smt. Devanti Devi. P.W.3 Subedar was attacked in the courtyard of the house of Smt. Devanti Devi. The courtyard of Smt. Devanti Devi and the maize field of accused-appellant Radhey Shyam are contiguous to each other.

P.W.3 Subedar in his examination-in-chief deposed that the house of deceased Vijay lies in the south of the field of Radhey Shyam and his house is at a distance of one bigha from the field of Radhey Shyam. Upon closely perusing the site plan of the incident and the testimony of P.W.1 informant Akhilesh Kumar, P.W.2 Bhim and P.W.3 Subedar, we do not find that there is any material discrepancy in the evidence of the three eye witnesses with regard to the place of occurrence considering the fact that the courtyard of the deceased's house and the maize field of the accused-appellant are adjacent to each other and are not separated by property of any other person and hence it was perfectly normal for them to have got confused while describing the place of incident. In view of the above, the failure of the Investigating Officer to either notice or collect any blood from the place in front of the deceased's house does not in any manner adversely affect the prosecution case that the incident had taken place in front of the house of the deceased as blood was found by the Investigating Officer in the maize field in front of the deceased's house. Hence, it cannot be said that there was any material discrepancy in the evidence of the three eye witnesses with regard to the place of occurrence.

It has also been argued by learned Amicus that the F.I.R. in this case is ante-timed. In this regard, it has been emphatically submitted by learned Amicus that it was humanly impossible for P.W.1 informant Akhilesh Kumar to have lodged the F.I.R. of the occurrence on 22.05.2006 at P.S.- Garhwar, District- Ballia at 9.40 A.M. in respect of the incident which had allegedly taken place on the same day at about 9 A.M., considering the distance between the place of incident and the police station which according to the check F.I.R. (Ext.Ka.2) is about 11 km and the evidence of P.W.2 Bhim in which he in his cross-examination has stated that it takes about 1 and ½ hours to reach the police station from the place of occurrence. However, we do not find any merit in the aforesaid submission of the learned Amicus as well.

P.W.4 Ram Lochan, who was posted as Head Constable at P.S.- Garhwar, District- Ballia at the given point of time has categorically deposed that on 22.05.2006, P.W.1 Akhilesh Kumar had given a written report (Ext. Ka.1) on the basis of which Case Crime No. 53 of 2006 under Sections 302, 307, 201 I.P.C. was registered. He further deposed that he had prepared the check F.I.R. and the relevant G. D. entry vide rapat no. 46/2006 in his own hand writing on the same day at about 9.40 A.M. He proved the check F.I.R. (Ext.Ka.2) and the carbon copy of the G.D. Entry as (Ext.Ka.3). The defence counsel cross-examined P.W.4 Ram Lochan at great length but the defence counsel failed to elicit anything from him which may even remotely indicate that the F.I.R. in this case was not registered at the time mentioned in the check F.I.R. It is true that P.W.2 Bhim in his cross-examination has deposed that it takes about 1 and ½ hours to reach the police station from the place of occurrence on foot but in the absence of any evidence on record indicating that P.W.1 informant Akhilesh Kumar had gone to the police station on foot, it will not be safe to hold on the basis of the aforesaid extract of testimony of P.W.2 Bhim that it takes about 1 and ½ hours to reach the police station from the place of occurrence on foot and hence the F.I.R. of the occurrence could not be lodged at the time spelt out in the check F.I.R. (Ext.Ka.2).

It has also been argued by learned Amicus that the time of the occurrence mentioned in the F.I.R. and as testified by the prosecution witnesses of fact examined during the trial does not find corroboration from the medical evidence on record.

As per the prosecution case, the incident had taken place on 22.05.2006 at about 9 A.M. The postmortem on the dead bodies of the deceased Vijay and Smt. Devanti Devi were performed by P.W.5 Dr. G.C. Maurya. P.W.5 in his examination-in-chief deposed that he had conducted autopsy of the dead body of deceased Vijay on 22.05.2006 at 5.30 A.M. He had found that the deceased was aged about 40 years and of average height and built. His eyes and mouth were shut. P.W.5 Dr. G.C. Maurya noted following antemortem injuries on his dead body:-

1. Incised wound 7 cm x ½ cm on the top most part of the head, bone deep and 10 cm above the right ear.

2. Incised wound 6 cm x ½ cm on the head, bone deep and 9 cm above the left ear.

3. Incised wound 10 cm x 1.5 cm on the neck, bone deep (backbone) and 4 cm above the nose.

He also deposed that all the blood vessels, trachea and muscles were cut. The burn injuries were present all over the dead body. Right and left parietal bones and membranes were cut and brain vessels had got ruptured. The stomach was empty. The small and large intestines were partly filled with gases and faecal matter. Rectum was loaded. According to P.W.5 Dr. G.C. Maurya, the deceased had died about 12 hours before and the cause of death was stated to be haemorrhage and shock as a result of antemortem injuries. According to P.W.5 Dr. G.C. Maurya, it was possible that the deceased had died as a result of antemortem injuries inflicted on him by a sharp-edged weapon on 22.05.2006 at about 9 A.M. P.W.5 further deposed that on the same day, he conducted the postmortem on the body of Smt. Devanti Devi at 5 P.M. who was aged about 38 years and she had also died about 12 hours before. She was of average height and built. Her eyes and mouth were closed. Rigor mortis had settled over her body. All antemortem burn injuries were present on her left leg, stomach, both the hands, some parts of face and scalp. He noted following antemortem injuries on the dead body of Smt. Devanti Devi :-

1. Incised wound 6 cm x 2 cm on the left side of neck, muscle deep;

2. Incised wound 9 cm x  2 cm x bone deep and 		suprasternal notch 4 and ½ cm above the 			nose. All blood vessels, wind pipe and 			muscles were ruptured;
 
3. Incised wound 7 cm x 0.5 cm on the topmost 		middle part of head, brain cavity deep and 10 		cm above the right ear;
 
4. Incised wound 3.5 cm x 2 cm on the middle 		part of palm of right hand.
 

 

According to P.W.5 Dr. G.C. Maurya, the right parietal bone of the deceased was cut and the membranes of her brain was partially ruptured and blood clot was present. Blood vessels of the neck were cut. 50 ml gastric juice was present in the deceased's stomach. Her uterus was empty. Her small and large intestines were filled with gas and partly faecal matter. Rectum was loaded. According to P.W.5 Dr. G.C. Maurya, the deceased had died as a result of the antemortem injuries and it was possible that she had died on 22.05.2006 at about 9 A.M. as a result of injuries inflicted on her by a sharp-edged weapon. It is pertinent to note that the defence counsel during the cross-examination of P.W.5 Dr. G.C. Maurya, had not challenged the correctness of the approximate time of the death of the deceased mentioned by him in his examination-in-chief and in their postmortem reports (Ext.Ka.4 and Ka.5).

Learned Amicus has submitted by referring to the medical evidence that in view of the fact that the incident had taken place in a rural area in the month of May and in that part of the year, the villagers mostly go to the fields to ease themselves before the sunrise or early in the morning and the very fact that the small and large intestines of both the deceased were filled with gaseous and partly faecal matter and their rectums were loaded, it appears that the deceased were murdered by some unknown persons while they were going to ease themselves early in the morning and not at 9 A.M. in front of their house. It is apparent from the postmortem reports of the deceased that before they were murdered, they had not eased themselves otherwise their rectums would not have been loaded. This irreconcilable conflict vis-a-vis the medical evidence and the ocular testimony totally shatters the prosecution case that the incident had taken place at 9 A.M. and the same was witnessed by P.W.1 Akhilesh Kumar, P.W.2 Bhim and P.W.3 Subedar. It is not possible for a villager to have not answered the call of nature till 9 A.M. especially in the month of May. The inconsistency pointed out by the learned Amicus in the ocular evidence vis-a-vis medical evidence in our opinion is not so material so as to convince us to discard the testimony of the three eye witnesses produced by the prosecution at the trial for proving the guilt of the accused-appellant. There could be umpteen reasons for the deceased to have not eased themselves till late in the morning. We do not find any reason to doubt the veracity of the facts deposed by them in their statements recorded during the trial. P.W.1 informant Akhilesh Kumar being the son of the deceased Vijay and Smt. Devanti Devi, it was absolutely normal for him to have been present in his house with his parents at the time of the occurrence. He was aged about 15 years on the date of the occurrence. Learned Amicus has not been able to come up with any reason why P.W.1 would have given false evidence against the accused-appellant. Similarly the presence of P.W.2 Bhim and P.W.3 Subedar, who admittedly resided in the close vicinity of the place of occurrence and who claimed to have arrived at the place of occurrence on hearing the noise coming from the house of the deceased cannot be viewed with any suspicion. They were the most natural witnesses of the occurrence being the neighbours of the deceased. P.W.1 Akhilesh Kumar in his evidence tendered before the trial court has fully supported the prosecution case on all material points relating to the incident namely the time, place, manner of occurrence and the identity of the perpetrator of the crime. P.W.2 Bhim and P.W.3 Subedar have fully corroborated the evidence of P.W.1 Akhilesh Kumar in their statements. Moreover, P.W.2 Bhim and P.W.3 Subedar being the persons who had received injuries in the same incident at the hands of accused-appellant, their presence at the place of occurrence cannot be doubted even for a moment. Both P.W.2 Bhim and P.W.3 Subedar were medically examined by P.W.7 Dr. S.P. Rai on 22.05.2006 at about 1 P.M. and 1.15 P.M. respectively who had also prepared and proved their injury reports (Ext.Ka.23 and Ka.24). The injury report of P.W.2 Bhim, aged about 30 years, indicates that he had received following injuries on his person:-

1. Incised wound 5.8 cm x 2 cm x bone deep, backwards and on the inside of right forearm, 3 cm above the wrist.

2. Incised wound 9 cm x 7 cm x bone deep, 			present on left side of wrist and hand. 
 
	P.W.7 Dr. S.P. Rai deposed that blood was oozing out from both the wounds. Injury no.1 and 2 were kept under observation. All these wounds were fresh and caused by a sharp-edged weapon. X-ray was suggested for injury no.1 caused in right wrist and for injury no.2 caused in left wrist. 
 
	The report of P.W.3 Subedar, aged about 45 years, indicates that he had received following injuries on his person:- 
 
1. Lacerated wound 3 cm x 0.3 cm x skull deep, 		on the right side of head 6 cm above the root 		of nose and 2 cm from the mid-line.
 
2. Incised wound 17 cm x 7.5 cm bone deep, on 		the outer and front side of forearm upto the 		wrist.
 
3. Incised wound 18 cm x 1 cm x bone deep, on 		the palm of left hand, 3 cm below the wrist. 
 

 

According to P.W.7 Dr. S.P. Rai, all the injuries nos.1, 2 and 3 were fresh and caused by a sharp-edged weapon. X-ray of left forearm and head was suggested. P.W.7 Dr. S.P. Rai stated in his examination-in-chief that it was possible that the injuries noted by him on the persons of P.W.2 and P.W.3 were inflicted on them on 22.05.2006 at about 9.30 A.M. Thus, it is proved from the evidence of P.W.2, P.W.3, P.W.7 and the injury reports of P.W.2 and P.W.3 (Ext.Ka.23 and Ka.24) that they had received injuries caused by sharp-edged weapon on 22.05.2006 at about 9.30 A.M. We do not find any reason to disbelieve the testimonies of P.W.2 Bhim and P.W.3 Subedar whose presence at the time and place of incident stands fully proved from the injuries received by them in the occurrence.

P.W.6 Hasmat Khan, who had investigated the matter, in his evidence recorded before the trial court disclosed the various steps taken by him during the course of investigation. He proved the site plan of the place of occurrence (Ext.Ka.6), inquest reports of deceased Vijay and Smt. Devanti Devi (Ext.Ka.7 and Ka.8), report given to C.M.O (Ext.Ka.9), photo lash (Ext.Ka.10), specimen seal (Ext.Ka.11), police form no.13 (Ext.Ka.12), reports sent to R.I. (Ext.Ka.13) relating to deceased Vijay, photo lash (Ext.Ka.14), report sent to R.I. (Ext.Ka.15), reports sent to C.M.O (Ext.Ka.16), specimen seal (Ext.Ka.17) and police form no.13 (Ext.Ka.18) pertaining to deceased Smt. Devanti Devi.

He also proved the recovery memos of plain and blood-stained earth and ash collected by him from the place of occurrence (Ext.Ka.19 and Ka.20), memo of recovery of crime weapon (sword) by the accused-appellant Radhey Shyam hidden by him under a heap of mud below a guava tree (Ext.Ka.21) and the charge sheet submitted by him after completion of investigation before the concerned Magistrate (Ext.Ka.22). He also identified the sword which was produced before the Court in a sealed cover as the same sword which had been recovered by the accused-appellant Radhey Shyam and marked as (material Ext.Kha.1).

P.W.8 S.I. Dudhil Ram, who had investigated the Case Crime No. 54/06 u/s 4/25 Arms Act, proved the site plan of the place from where the accused-appellant Radhey Shyam had recovered the crime weapon as (Ext.Ka.25), the charge sheet submitted by him in case u/s 4/25 Arms Act (Ext.Ka.26) and the check F.I.R. of Case Crime No. 54/06 u/s 4/25 Arms Act as (Ext.Ka.27).

Thus, upon a holistic view of the facts of the case and a critical evaluation of the evidence on record, both oral as well as documentary, we find that the prosecution has succeeded in proving by cogent and reliable evidence that the deceased Vijay and his wife, Smt. Devanti Devi were attacked by accused-appellant Radhey Shyam by sword in front of their house on 22.05.2006 at about 9 A.M. and as a result of injuries so inflicted by him on them, they died on the spot whereafter their dead bodies were dragged by the accused-appellant Radhey Shyam to his maize field, covered with grass and hay and then set ablaze by him with the object of destroying material evidence. The prosecution has further succeeded in proving that accused-appellant had inflicted grievous injuries on P.W.2 Bhim and P.W.3 Subedar also when they had tried to intervene and save the deceased. The medical evidence on record substantially collates the ocular version.

We do not find that the learned Trial Judge committed any illegality or legal infirmity in convicting the accused-appellant Radhey Shyam under Section 302/ 307/ 201 I.P.C. and 4/25 Arms Act and awarding aforesaid sentences to him.

No arguments were advanced by learned Amicus challenging the conviction of the accused-appellant u/s 4/25 Arms Act.

This appeal lacks merit and is accordingly dismissed.

Sri Syed Imran Ibrahim, learned Amicus Curiae shall be paid his due remuneration for assisting the Court ably.

Order Date :- 23.9.2017

KS