Bal Govind And Ors. vs State Of U.P.
2018 Latest Caselaw 174 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
RESERVED   :  16.01.2018
 
                                                   DELIVERED  :   24.04.2018
 

 
Case :- CRIMINAL APPEAL No. - 2889 of 1983 
 

 
Appellant :- Bal Govind And Ors. 
 
Respondent :- State Of U.P. 
 
Counsel for Appellant :- R.B. Sahai,K.N.Mishra,R.B.Sahai 
 
Counsel for Respondent :- A.G.A. 
 

 
Hon'ble Pradeep Kumar Singh Baghel,J. 

Hon'ble Harsh Kumar,J.

(Delivered by Hon'ble Harsh Kumar, J.)

This appeal has been filed against judgment and order of conviction under section 302/34 I.P.C. passed by 3rd Additional District and Sessions Judge, Deoria in Sessions Trial No.284 of 1982 State vs. Bal Govind and others, Case Crime no.107 of 1982 P.S., Nebua Naurangia, District Deoria convicting 3 out of 4 accused for offence under section 302/34 I.P.C. and acquitting one Akloo. Feeling aggrieved the convicted accused persons Bal Govind, Vikram and Ram Pyare have preferred this appeal.

The brief facts relating to the appeal are that one Govri son of Banshi Yadav submitted a written report for lodging a F.I.R. at 12.45 hours on 19.10.1978 with averments that :

"yesterday on 18.10.1978 the goat of Vikram was grazing in paddy fields of applicant, which was got confined by him in Cattle Pond/Kanji House Naurangia; that feeling annoyed with above, today at about 10.00 a.m. when he and his brother Babu Lal were coming along with Chedi and his father Nanku and their bulls and reached in front of the fields of Sobrati, Bal Govind and Vikram armed with lathis, Ram Pyare armed with Kudal and Akloo empty handed, who were hiding in the sugarcane field of Sobrati since before, suddenly came out of the field and started beating his brother Babu Lal with lathis and back of Kudal, while accused Akloo exhorted them to kill Baboo Lal; that on alarm raised by them Ram Sukhi, Ram Vriksh and several villagers arrived there and seen the occurrence while due to injuries sustained at the hands of accused persons his brother Baboo Lal felled on the ground and died on the spot; that they could not chase the accused persons due to fear and leaving the body of his brother at the spot under vizil of his family members he has come up for lodging of F.I.R."

The investigating officer after preparing inquest report, site plan etc. and sending the dead body of Babu Lal for autopsy, enquiring from witnesses and collecting the postmortem report etc. completed the investigation and submitted charge sheet against all the four accused persons named in the F.I.R. for causing murder of Babu Lal for offences under section 302/34 I.P.C.

The case was committed to sessions and registered as S.T. No.284 of 1982 wherein after hearing the learned counsel for accused, charges were framed against all the four accused persons under section 302/34 I.P.C. for causing murder of Babu Ram.

In order to prove its case, the prosecution examined first informant and eye witness of occurrence Govri as P.W. 1, eye witness Chedi as P.W. 2, the contractor of Cattle Pond/Kanji House for the year 1978 for proving the entry of a goat in Cattle Pond/Kanji House by first informant Govri at 6.00 p.m. on 18.10.1978 as P.W.3, S.I. Ram Ashrey Singh as P.W.4 to prove the chick F.I.R. and G.D. etc., S.O. Lakshmi Narayan Chaturvedi, the investigating officer as P.W.5, Dr. Ghan Shyam Srivastava who conducted the autopsy of the body of Babu Lal as P.W.6 while Vikram Prasad Tripathi pharmacist was called as C.W.-1 to file the copy of injury report of accused appellant Ram Pyare.

After completion of prosecution evidence, the statements of accused persons were recorded under section 313 I.P.C. when accused-appellant No.3 Ram Pyare also filed a written statement and produced Dr. Suresh Chandra Pandey as D.W.-1 to prove his injury report and Head Constable Ram Ashish as D.W. 2.

After completion of evidence of parties and hearing them, the learned Additional Sessions Judge decided the sessions trial by impugned judgment and order holding the accused-appellants guilty of offence under section 302/34 I.P.C. and sentened each of them with imprisonment for life and holding accused Akloo not guilty acquitted him, hence the appeal by convicted accused persons.

As per the report of Chief Judicial Magistrate, Deoria dated 28.7.2015 appellant no.2 Vikram had died so appeal in respect of him stands abated. No State appeal is alleged to have been filed against the impugned judgment and order of acquittal of one accused Akloo.

We have heard Shri R.B. Sahai, learned counsel for surviving appellants no.1 and 3 and Shri Narendra Kumar Singh Yadav, learned A.G.A. For State and perused the record as well as record submitted from trial court.

The learned counsel for accused-appellants submitted that the F.I.R. of the occurrence has been lodged ante-timed; that the real fact is that the occurrence in question did not take place in the manner and at the spot mentioned in the F.I.R. rather false story has been concocted by prosecution; that the first informant and witnesses belong to a group and are on inimical terms with the accused appellants; that the real fact is that the bull of Baboo Lal deceased was causing damage of Arhar crop in the fields of accused-appellant Ram Pyare and was being taken away by him; that Baboo Lal tried to get his bull released from Ram Pyare, and on his refusal Baboo Lal assaulted him with Lathi on which Ram Pyare also used Danda to save his life; that above incident did take place in the fields of Ram Pyare, in the West of village where no one else, except Ram Pyare and Baboo Lal were there; that the story of goat of accused-appellants having been caught by deceased and given in custody of cattle pond on 18.10.1978 is absolutely false; that the prosecution has failed to produce independent witnesses and the prosecution witnesses no.1 and 2 being related to deceased were interested & partisan witnesses and were not trustworthy; that the learned Additional Sessions Judge acted wrongly and illegally in relying on the untrustworthy evidence of interested witnesses and failed to draw adverse inference against prosecution for non-production of independent witness; that prosecution failed to explain the injuries on the person of accused and thus has failed to prove charges against appellants beyond reasonable doubt; that in any case the appellants are entitled to benefit of doubt and are liable to be acquitted; that the impugned judgment and order of conviction is wrong and incorrect and is liable to be set aside.

Per contra learned A.G.A. supported the impugned judgment and order of conviction and contended that the prosecution has proved the charges against appellants by reliable ocular evidence of two eye witnesses beyond reasonable doubt; that it is wrong to say that F.I.R. was lodged ante-timed; that the first informant or prosecution witnesses had no enmity with accused-appellants and there was no reason for their false implication; that it is absolutely wrong to say that the occurrence in question did not take place on the rasta near the paddy and sugarcane fields of Sobrati in the manner mentioned in the F.I.R. and would have taken place in the fields of accused appellant Ram Pyare in the manner mentioned in the written statement of Ram Pyare, submitted after completion of prosecution evidence, and after his statement under Section 313 Cr.P.C. on 6.10.1983; that the story mentioned in the written statement of accused-appellant Ram Pyare is absolutely false and incorrect which has been falsely concocted upon deliberations, to set up a false defence as no suggestion in above respect was ever made to any of the prosecution witnesses; that the accused-appellant Ram Pyare did not sustain any injury during the occurrence in question and the alleged injuries of Ram Pyare are simple and superficial in nature and appears to have been self-inflicted subsequently for setting up a false defence.

Upon hearing parties counsel and perusal of record as well as lower court record, we find that correctness of impugned judgment and order of conviction and sentence of accused appellants may be better tested on following points :-

(a) Motive/false implication

(b) Common intention

(c) F.I.R. being ante-timed

(d) Reliability of witnesses being partisan and for non-

production of independent witnesses

(e) Non-explanation of injuries on the person of

accused

(f) Place of Occurrence

(g) Medical Evidence

(h) Conclusion

(a) Motive/false implication :-

It is settled principle of law that motive lies in the mind of accused and the prosecution may only give probable motive of accused behind the crime and it is not possible for it to give exact details of motive in every case.

It is also settled principle of law that motive looses its importance in cases based on ocular evidence.

As per the averments made in F.I.R, on 18.10.1978, one day before the occurrence dated 19.10.1978, the goat of accused appellant Vikram was grazing in paddy fields of first informant (real brother of deceased), which was handed over by him at the cattle pond at Naurangia and due to this annoyance on 19.10.1978 at about 10.00 a.m. when the first informant and his brother Baboo Lal alongwith Chedi and his father Nankoo were coming with their bulls and reached near the fields of Sobrati, the accused persons, who were hiding there since before, assaulted Baboo Lal with Lathis and back of Kudal. The eye witness Govri P.W.-1 in his statement on oath has stated that on 18.10.1978 Baboo Lal deceased had handed him over a goat saying that this goat was grazing in his paddy fields and on his instructions he delivered the custody of goat to Naurangia cattle pond, Deoria, of which receipt has been produced and proved by him, which has also been verified and proved by Hari Har P.W.-3 the contractor of Naurangia cattle pond, Deoria for the year 1978.

It is also pertinent to mention that the first informant is not alleged to be inimical to the accused-appellants and no details of enmity if any have been disclosed by accused-appellant. However, it has been alleged that the first informant was on inimical terms with co-accused Akloo, on account of litigation in consolidation courts. Hence there may be no reason to the first informant for falsely implicating the accused appellants. On the other hand on account of the incident of catching and handing over the goat of accused-appellant Vikram in the cattle pond Naurangia District Deoria one day before the occurrence, it is quite natural for the accused-appellants to go annoyed and they had sufficient motive to commit the occurrence in question, causing death of Babu Lal.

In view of the discussions made above, we are of the considered view that the prosecution has proved the motive of the accused appellants behind the crime and there is no error or illegality in findings of court below.

(b) Common intention :-

As per averments made in F.I.R. on account of annoyance due to handing over of goat of Vikram to cattle pond, accused- appellants Bal Govind, Vikram and Ram Pyare along with Akloo were hiding in the sugarcane fields of Sobrati and while accused- appellants Bal Govind and Vikram were armed with Lathis, Ram Pyare was armed with Kudal and Akloo was empty handed. It is also contended that Bal Govind, Vikram and Ram Pyare collectively wielded Lathis and Kudal causing multiple injuries to Baboo Lal deceased with the Lathi and back of Kudal, resulting in his death.

Whether the accused persons had common intention to commit the offence or not is a question of fact and common intention has to be inferred from the evidence on record. It is settled principle of law that there may be pre-meeting of mind of all accused for committing the crime in question and common intention may also be formed at the spot during the incident.

In the case of Vaijayanti vs. State of Maharashtra (2005) 13 SCC 134, the Apex Court has held that :-

"The existence of common intention is a question of fact. Since intention is the state of mind, it is therefore, very difficult, if not impossible, to get or procure direct proof of common intention Courts have to infer the intention from the acts or conduct of the accused or other relevant circumstances of the case. Even omission on one's part to do something may attract common intention."

In the case of Suresh vs. State of Uttar Pradesh (2001) 3 SCC 673, the 3 Judges Bench of Apex Court has held that :-

"The real and substantial distinction between 'common' and 'similar', intention even if fine but cannot lost sight of the fact that common intention implies pre-arranged plan, but can develop at spur of moment in the course of commission of offence".

From the evidence on record, it is fully proved that all the three accused appellants jointly and collectively participated in the incident in question as they jointly hided themselves in the sugarcane fields of Sobrati and jointly assaulted the deceased Baboo Lal for causing fatal injuries to him with Lathis and back of Kudal. Since all of them jointly participated in the incident, it is fully proved that the incident in question was committed by all of them in furtherance of their common intention with each other and the trial court has rightly held that co-accused Akloo was not sharing common intention and did not join them in commission of the offence in question.

(c) F.I.R. being ante-timed :

It has been contended that F.I.R. has been lodged ante-timed with wrong and incorrect allegations by concocting a false story. On this point prosecution has produced S.I. Ram Asrey Singh as P.W.-4 who has stated that a written report was submitted by Govri at police station at 12.25 hours on 19.10.1978 on the basis of which he had prepared chik F.I.R. and after making entry at No.15 in general diary, the investigation was taken by S.O. Laxmi Narayan Chaturvedi in his hand, and special report of the case was sent at 1.00 p.m. on the same day, through constable Tarachand Lal of which entry was made at No.16 in G.D. The chik F.I.R., written report and the copies of G.D. were also proved by him as Ext. 1 to 5 and entry of return of Tarachand Lal after delivery of special report, at No.11 in G.D. on very next day 20.10.1978 was also proved as Ext. A-6. The statement of P.W.-4 is fully corroborated by the S.O. Laxmi Narayan Chaturvedi, the Investigating Officer as P.W.-5 and there is nothing incriminating or contradictory in their statements to doubt or disbelieve their testimony or to infer that the F.I.R. has been lodged ante-timed.

Upon careful consideration of material and evidence on record we are of the considered view that the learned court below has rightly held that prompt F.I.R. of the occurrence was lodged by first informant, naming all accused persons and there is nothing on record to suggest that the F.I.R. has been lodged anti-timed upon subsequent deliberations or inclusion of accused appellants.

(d) Reliability of witnesses being partisan and for non-production of independent witnesses :-

Undisputedly out of two eye witnesses, P.W.-1 the first informant is real brother of deceased while P.W.-2 is an independent witness having no relation with the first informant or deceased. None of the above P.W.-1 and P.W.-2 are said to be inimical to any of the accused-appellants. It is settled principle of law that the evidence of related witnesses may not be discarded merely on this score, rather their evidence has to be seen with extra care and caution. It is also settled principle of law that the related witness is not expected to leave the real culprit and falsely implicate the innocent person leaving the real culprit.

In the case of Vijay Kumar Vs. State by Inspector of Police, Madras and another, (2009) 12 SCC 629, the three judges Bench of Apex Court has held that:-

"merely because P.W.-1 is brother of deceased, his evidence can not be rejected when he had no reason to speak falsehood against both accused.

It is settled principle of law that relative witness would not allow real culprit to escape and implicate innocent, though his evidence has to be analysed carefully."

P.W.-1 the first informant was cross examined at length and upon careful analysis of his evidence we find no reason to disbelieve him. It is also pertinent to mention that the statement of P.W.-1 the first informant has been fully corroborated by Chedi P.W.-2 who is an independent eye witness of the occurrence as was accompanying him at the time and there are no material contradictions in the statements of two eye witnesses, to discard their truthful evidence.

It is pertinent to mention that P.W.-1 has stated that the goat of Vikram had been handed over by him at cattle pond Naurangia District Deoria on the preceding day of the incident which has also been corroborated by Hari Har P.W.-3, the contractor of cattle pond for the year 1978, who has also proved that the receipt was issued by him upon taking custody of goat. Though the accused appellants have suggested that above receipt has been forged subsequently, but above suggestion has been denied and there is nothing to show that either Hari Har was not contractor of cattle pond or receipt was forged subsequently. The first informant has mentioned in F.I.R. that the goat of Vikram was grazing in his fields and was taken by him to Naurangia cattle pond District Deoria, while in his statement on oath he has stated that the goat was brought by Baboo Lal, deceased and given to him for handing over at cattle pond. Since first informant and deceased were real brothers and paddy fields in which goat of Vikram allegedly grazing belonged to both of them we find, no contradictions in the averments made in F.I.R. and the statement of P.W.-1 and on account of the alleged minor discrepancy the truthful testimony of P.W.-1 and 2 may not be doubted and disbelieved and prosecution case cannot be thrown out.

Quality and not the quantity of witnesses is material for decision of a case. Since prosecution has produced two eye witnesses of incident out of which one is independent, no adverse inference can be drawn against it for non-production of Ram Sukhi, Ram Vriksha and others who arrived at the spot subsequently.

Upon careful consideration of evidence on record we find it reliable and trustworthy.

(e) Non-explanation of injuries on the person of accused :-

The learned counsel for accused-appellants contended that if during the course of occurrence some injuries were sustained to the accused, the prosecution is required to give reasonable explanation of the injuries of accused and in case the prosecution conceals the injuries of accused or fails to give reasonable explanation of the injuries of accused, the prosecution case has to fail. He has placed reliance on the injury report of accused appellant Ram Pyare Ext. B-6 duly proved by D.W.-1 Dr. Suresh Chandra Pandey, according to which accused appellant Ram Pyare was examined on 19.10.1978 at 5.00 p.m. and following nine injuries were found on his person :-

(1) Contusion 6 cm x 2 cm on back of left scapular region

(2) Contusion 9 cm x 2 cm on back of left side - 6 cm above injury no.1.

(3) Contusion 4 cm x 1.5 cm on top of right shoulder joint.

(4) Contusion 5 cm x 2 cm, 4 cm below injury no.3.

(5) Contusion 4 cm x 2 cm, 5 cm below injury no.4

(6) Contusion 2 cm x 1 cm on back of right forearm, 3 cm above right wrist joint

(7) Traumatic swelling on whole back of the palm

(8) Contusion 4 cm x 2 cm on back of right leg, 6 cm below right knee joint.

(9) Abrasion 1/6 cm x 1/4 cm on interior aspect of left forearm 4 cm above left wrist joint.

All above injuries were opined to be simple and likely to have been caused by blunt object about ¼th day before medical examination.

In view of the fact that injuries were 1/4th day old at the time of medical examination at 5:00 p.m., the above injuries may have been sustained subsequent to the incident in question at or after 11.00 a.m. i.e., after a lapse of one hour or more from the time of the incident in question. However, D.W.-1 has also stated that these injuries may also have been sustained at 10.00 a.m. on 19.10.1978.

It is pertinent to mention that all the above injuries are on non-vital parts of body and are of simple and superficial nature, which may also be self-inflicted. It is also noteworthy that none of the above 9 injuries is grievous or on any vital part of body. In the written statement submitted by accused appellant Ram Pyare on 6.10.1983, no time of the incident (which is alleged to have occurred in his field) has been mentioned. The nature of simple and superficial injuries on non-vital parts of body of accused-appellant Ram Pyare viz-a-viz nature of grievous and fatal injuries sustained by the deceased Baboo Lal on vital part of his body head and chest, etc. itself speak the truthfulness of the prosecution case and falsehood of story subsequently set up by accused-appellant in his written statement.

In view of facts and evidence on record, the defence version of incident having been committed elsewhere in Arhar fields of accused-appellant Ram Pyare does not get corroborated by any corner and does not inspire confidence. It is pertinent to mention that had Baboo Lal deceased charged lathi on accused-appellant Ram Pyare, he would have hit him hard on vital parts of body and would not have taken care of him and let him go only by causing simple and superficial injuries on non-vital parts particularly accused were attempting on his life by causing grievous injuries on his vital parts of body.

In view of the simple and superficial injuries of accused, which appears to have been self inflicted subsequently, no apprehension of life could have arisen to him and in good faith he had no adequate right of private defence (which at all did not arise to him) so as to justify causing of death of Baboo Lal. It is also pertinent to mention that the story set up by the accused appellant Ram Pyare in his written statement is absolutely false as no suggestion was put to P.W.-1, P.W.-2 and I.O. P.W.-5 regarding the above story disputing place of occurrence as well as alleging injuries to accused-appellant Ram Pyare allegedly caused by Baboo Lal. Both the prosecution witnesses no.1 and 2 have stated in their lengthy cross examination that during the incident in question no injury was caused to any of the accused appellants with the Satha (lVgk - a short and thin stick to control cattle) in hand of Nankoo, which also makes it clear that Ram Pyare did not sustain any injury during the incident in question and prosecution is not required to explain the alleged simple and superficial injuries of accused-appellant Ram Pyare.

In 2003 A.C.C. 219, Kiledar Singh vs. State of Madhya Pradesh the Apex Court held that

"Prosecution is not required to explain injuries on person of accused party though all injuries were simple."

In 1988 S.C.C. (Crl.) 280, Paras Nath Singh vs. State of Bihar the Apex Court held that

"Injuries sustained by accused in same incident in which deceased died - prosecution not invariably bound to explain the injuries on accused - prosecution case if otherwise trustworthy and acceptable, would not be affected by its failure to explain injuries on accused.

Plea of exercise of right of private defence - Burden on accused-Mere sustaining of injuries by accused in the same occurrence in which the deceased died, not by itself conclusive proof of deceased being aggressor."

The same view was expressed by three Judges Bench of Apex Court in the case of Ram Sunder Yadav Vs. State of Bihar 1998 (7) SCC 365.

Upon careful consideration of entire evidence on record we find that there is nothing on record even to suggest that incident in question did not take place near the paddy and sugarcane fields of Sobrati, or it did take place in the Arhar fields of accused appellant Ram Pyare following entry of bull of deceased in his fields and further there is no evidence on record to show that accused-appellant Ram Pyare sustained any injury at the hands of deceased or anybody else during the incident in question and any right to private defence arisen to him so as to justify causing of death of Baboo Lal by accused-appellants.

(f) Place of Occurrence :

The accused appellants have also disputed the place of occurrence. The learned counsel for accused-appellants contended that since no blood was collected from the alleged place of occurrence near fields of Sobrati, it shows that the incident in question did not take place there rather occurred in the fields of accused-appellant Ram Pyare, as mentioned in his written statement.

It is pertinent to mention that all the injuries of deceased were caused with hard and blunt object and since no open injury was sustained by him, it was quite natural that blood would not have oozed from the injuries. The prosecution witnesses have also stated that no blood had oozed from the injuries of Baboo Lal and there was some blood only on his nose. In these circumstances, since there was no blood stained earth on the spot, the same could not have been collected by I.O. and for not collecting it, the place of occurrence may not be doubted or disputed.

It is also pertinent to mention that site plan of the place of occurrence has been promptly prepared by I.O., who has also sealed the dead body of Baboo Lal after preparation of inquest report at the same time and has found damaged sugarcane crop there over a small part of fields of Sobrati with marks indicating sitting/hiding of persons, where the accused-appellants had hidden themselves.

It is also noteworthy that no suggestion has been put to any of prosecution witnesses P.W.-1, P.W.-2 or Investigating Officer P.W.-5 that the incident in question did not take place near the fields of Sobrati or it did take place in the fields of accused appellant Ram Pyare.

In view of discussions made above we are of the considered view that prosecution has successfully proved beyond doubt that the occurrence in question occurred at the place near fields of Sobrati as mentioned in F.I.R and shown in site plan Ext. A-11 and not in the fields of accused-appellant Ram Pyare.

(g) Medical Evidence :-

At the time of conducting autopsy of the body of deceased Baboo Lal on 20.10.1978 at 3.00 p.m. the Medical Officer Dr. Ghanshyam Shrivastava prepared postmortem report which has been proved by him as Ext. A-13 in his statement on oath as P.W.-6.

According to Ext.A-13 and statement of P.W.-6 the death of 32 years old Baboo Lal was caused about 1 ½ day back, due to shock and hemorrhage due to following ante mortem injuries sustained to his vital organs.

(1) Contusion with swelling 4" x 2.5" on right side

of the scalp 2" above right ear.

             (2)     Contusion with swelling 5" x 2" on the left
 
     side of the scalp 3" above the left ear.
 
            (3)     Contusion 3" x 2.5" on the left face 1" in front of
 
                      left ear.
 
            (4)     Contusion 3.5" x 2.5" on the left chest 1"
 
    below the left nipple. 
 

In internal examination, the Medical Officer has found clotted blood over an area of 3" x 2" & 4" x 2" of head with reference to injury no.1 and 2 with fracture of base of skull, apart from which clotted blood was found over an area of 1" x ¼" at right temporal region while pleura & left lung were found ruptured and 8th, 9th & 10th ribs on left side were also found fractured.

P.W.-6 has stated that the above injuries were sufficient to cause death in ordinary course and could have been sustained at about 10.00 a.m. on 19.10.1978, with hard and blunt objects such as Lathi and back of Kudal.

He has also stated that 3 ounce semi digested food (Dal Chawal) was found in stomach of deceased Baboo Lal.

P.W.-1 has stated that deceased had taken Dal-Chawal in morning, which also corroborates the findings of semi-digested Dal-Chawal in stomach of deceased in the postmortem report.

It is pertinent to mention that P.W.-6 has not been cross examined on the point of weapon of crime. In view of the fact the exact time of death may not be ascertained and Medical Officer gives only probable time of death in postmortem report in which there can be probable variation of 4 to 6 hours on both sides. With an intention to take undue advantage of this position of medical jurisprudence, the defence has put an absurd suggestion to Medical Officer P.W.-6 that the death of Baboo Lal could also have occurred between 9 - 10 p.m. in the night of 18/19.10.1978 which was answered in affirmative. The suggestion made to Medical Officer and reply thereto, are quite vague, irrelevant and baseless and does neither help the accused-appellants nor adversely affect prosecution case. Undisputedly the occurrence did take place at 10.00 a.m. on 19.10.1978 which date and time have not been disputed by accused-appellants even in written statement of accused-appellant Ram Pyare wherein only place of occurrence and manner have been disputed without disputing the time. Hence it will be nothing but absurd to suggest death of Baboo Lal in the night of 18/19.10.1978 which is nobody's case. It is also noteworthy that the accused appellant Ram Pyare himself has admitted the occurrence in the day time of 19.10.1978 by stating in his written statement dated 6.10.1983 that Baboo Lal tried to snatch his bull and caused Lathi injuries to him, in reply to which in exercise of right of private defence he alleged to have caused him Danda injuries. It is specific case of accused-appellant Ram Pyare that superficial injuries were caused to him at about 10-11 a.m on 19.10.1983 at the hands of Baboo Lal, and so question of death of Baboo Lal in the night of 18/19.10.1983 does not arise and above suggestion of accused is totally vague and bogus.

In view of discussions made above, we are of the considered view that medical evidence on record fully corroborates the prosecution case and is in consonance with ocular evidence on record.

(h) Conclusion :-

Upon careful consideration of the evidence on record, we find that the learned trial court has rightly and correctly analyzed the evidence on record in finding accused-appellants guilty of causing murder of Baboo Lal in common intention with each other and holding co-accused Akloo not guilty of the offence.

We are of the considered view that the learned trial court has not committed any mistake or illegality in coming to the findings. The accused-appellants have failed to prove any illegality, incorrectness or perversity in the findings of trial court. The prosecution has proved its case and charges against the accused-appellants beyond reasonable doubt and there is no sufficient ground to interfere with the impugned judgment and order of conviction or for setting it aside. The appeal is devoid of merits and is liable to be dismissed.

The appeal is dismissed. The conviction and sentence of accused-appellant is affirmed. The appellants were on bail during pendency of appeal. Appellant no.2 Vikram has died during pendency of appeal and appeal in respect of him has abated. The bail bonds of surviving accused-appellants/convicts Bal Govind and Ram Pyare are cancelled and they are directed to surrender forthwith and undergo the remaining period of sentence.

Let the lower court record be sent back to court below along with a copy of the judgment, for ascertaining necessary compliance, forthwith.

Material exhibits, if any, be disposed of after statutory period in accordance with rules.

Order Date :- 24.04.2018

vs