Ram Chandra And Another vs State Of U.P.
2018 Latest Caselaw 3054 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 
Court No. - 4 
 
Case :- CRIMINAL APPEAL No. - 694 of 1988 
 
Appellant :- Ram Chandra And Another 
 
Respondent :- State Of U.P. 
 
Counsel for Appellant :- Siddharth Shukla,Dileep Kumar Srivastava,Gautam,H.N.Singh,Sanjay Kumar Srivastava 
 
Counsel for Respondent :- AGA 
 

 
Hon'ble Bala Krishna Narayana,J. 

Hon'ble Arvind Kumar Mishra-I,J.

(Delivered by Hon'ble Bala Krishna Narayana, J.)

1. Heard Sri H.N. Singh, Sr. Advocate assisted by Sri Dileep Kumar Srivastava, learned counsel for the appellants, Sri Saghir Ahmad, Sri A.N. Mulla, learned AGA for the State and Smt. Manju Thakur, State Law Officer.

2. This criminal appeal is directed against the judgment and order dated 30.1.1988 passed by IInd Additional Sessions Judge, Deoria in Sessions trial No. 41 of 1986 (State Versus Ram Chandra and another) convicting and sentencing the appellants to rigorous imprisonment for life under Section 302/34 I.P.C.

3. Record shows that appellant no. 1, Ram Chandra has died and this appeal was dismissed as abated qua appellant no. 1, Ram Chandra vide order dated 25.4.2017 passed by this Court.

4. The prosecution case as contained in the chik F.I.R. scribed on the verbal report of Badri Das who was the priest of Kali Mandir, Hate, District Deoria is that on 11.9.1985 at about 3:30 A.M., Ram Chandra resident of Qasba Hate and his grand-son, Jangali Yadav (A2) resident of Thathi after tying him sprinkled kerosene oil over his body and set him ablaze. It has been mentioned in the chik F.I.R. that the informant started demanding water and on interrogation the reason for the occurrence which was given by him was on account of 'Mandir and she-calf'. It has further been mentioned that the informant stopped speaking and was not in a position to tell anything. It also bears the thumb-impression of the informant. On the basis of the chik F.I.R., its corresponding G.D. entry was prepared, which is Ext. ka2, and the case was registered U/S 307 I.P.C. and the investigation followed.

5. The victim was sent to P.H.C. Hata for medical examination and treatment where he was medically examined by Dr. A.K. Verma, Medical Officer Incharge, P.H.C. Hata, Deoria at 5 A.M. on the same day and he found the following injuries on his person:-

(a) Burn of the whole body, bleeding from the nose.

(b) Patient unconscious condition and gasping. Smell of the kerosene oil from the body.

Opinion: Burn was due to dry heat. Duration-about fresh.

i Patient referred to District Hospital Deoria.

ii Opinion reserved.

iii This injury report is Ext. Ka6 and the Majrubi letter is Ext. Ka3.

6. P.W. 6 S.I. Haribansh Singh was posted at P.S. Hata on 11.12.1985 and P. W. 5 Ram Sajiwan Shukla was posted as S.H.O. of the same police station at the relevant point of time and the case was registered in his presence and investigation thereof was entrusted to P. W. 6 S. I. Haribansh Singh. He recorded the statement of injured Badri Das and whatever was stated by him was recorded by P. W. 6 S. I. Haribansh Singh in the C.D., true copy of which has been brought on record and marked as Ext. Ka7. As the condition of the injured was critical, he was sent to P.H.C. Hata for medical examination escorted by P. W. 7 Constable Hari Narain Yadav C.P. No. 294. Thereafter the I.O. recorded the statements of witnesses Jagdish Narain and Bagish Tiwari. Then he recorded the statement of P. W. 5 Ram Sajiwan Shukla S.H.O., since the case had been registered in his presence and also interrogated the victim about the incident. He then recorded the statement of P. W. 2 Moinuddin Siddiqui. Constable Hari Narain Yadav who had taken Badari Das to P.H.C. Hata in a Jeep, returned back to the police station at 06.05 A.M. alongwith the dead body of Badari Das who had died during treatment and handed over to him the injury report of the deceased on the basis of which the case was converted into one u/S 302 I.P.C. The I.O. thereafter recorded the statements of Constable Hari Narain Yadav as well as Bhagwati, the driver of the official jeep. Thereafter the inquest on the body of the deceased Badri Das was conducted on 11.9.1985 at 8:30 A.M. by P. W. 6 S. I. Haribansh Singh who prepared the inquest report and other connected papers Ext. Ka8 to Ext. Ka14. He then sealed the body of the deceased and dispatched it to District Hospital Deoria for post mortem examination escorted by P. W. 7 Hari Narain Yadav and Bijli Singh and thereafter proceeded to the place of occurrence and after inspecting the same prepared its site plan Ext. Ka15. He recovered match box, partly burnt neem leaves, a piece of square bed sheet and pieces of burnt dhoti and prepared the recovery memo of the aforesaid articles Ext. Ka16. He also recovered 5 kg plastic container containing about 100 gm of kerosene oil from the place of occurrence and prepared its recovery memo Ext. Ka17.

7. The postmortem on the dead body of the deceased, Badri Das was conducted by P. W. 3 Dr. Radhey Shyam Yadav on 11.9.1985 who also prepared his postmortem report Ext. Ka5. The investigation of the case was then transferred to P. W. 8 S.S.I. Fhanindra under the orders of C.O. who after completing the investigation filed charge-sheet against all the accused Ext. Ka19 on 10.10.1985 before C.J.M. Deoria.

8. Since the offences mentioned in the charge-sheet were triable exclusively by the Court of Session, C.J.M. Deoria committed the case of the accused for trial to the Court of Session Judge, Deoria where their case was registered as S.T. No. 41 of 1986 (State of U.P. Versus Ram Chandra and another) from where it was made over for trial to the Court of IInd Additional Sessions Judge, Deoria who on the basis of the material on record and after hearing the prosecution as well as the accused on the point of charge, framed charges under Sections 302/34 I.P.C. against both the appellants. The accused abjured the charges and claimed trial.

9. The prosecution in order to bring home the charge framed against the accused, examined as many as eight witness of whom, P. W. 1 Jagdish Narain Pandey was examined as witnesses of fact while P. W. 2 Moinuddin Siddiqui, P. W. 3 Dr. Radhey Shyam Yadav, P. W. 4 Atul Kumar Verma, P. W. 5 Ram Sajivan, P. W. 6 Hari Bansh Singh, P. W. 7 Constable Hari Narain Yadav and P. W. 8 Fhanindra Nath Rai, second investigating officer of the case were produced as formal witnesses.

10. The accused in their statements recorded under Section 313 Cr.P.C. pleaded not guilty and stated that they had falsely been implicated in the present case by P. W. 1 Jagdish Narain Pandey. (A2) Jangali Yadav further stated that he had set up a shop of betel and general merchant in front of the police station Hata and the official of the police station used to purchase articles from the said shop but when he demanded the price of articles purchased by them from him, they threatened to demolish his shop and ruin him by falsely implicating in a criminal case. He further stated that on the date of incident, he closed his shop at about 9 P.M. and had gone to his house along with co-villagers and on the next day two policemen came to his village and forcibly brought him to the police station and implicated him falsely in this case. The accused examined one witness in defence namely Umakant Chaubey as D. W. 1 to prove the plea of alibi set up by Jangali Yadav (A2) before the trial court.

11. Learned IInd Additional Sessions Judge, Deoria after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record convicted both the appellants under Section 302 I.P.C. and awarded aforesaid sentences. Hence this appeal.

12. Learned counsel for the appellants has submitted that the incident had taken place in the darkness of night and infact no one had witnessed the same. However, when Badri Das was found in a burnt state by P. W. 1 Jagdish Narain Pandey, he in connivance with P. W. 2 Moinuddin Siddiqui fabricated a first information report allegedly prepared by P. W. 2 Constable Moinuddin Siddiqui on the verbal information of the deceased falsely implicating the appellants. He next submitted that the trial court committed a patent error of law in treating the verbal report given by the deceased at the police station as his dying declaration and convicting the appellants on the basis thereon, although the so-called dying declaration of the deceased was not at all reliable. He next submitted that there is material on record indicating that P. W. 1 Jagdish Narain Pandey was inimical towards the appellant no. 1, Ram Chandra to whom the deceased intended to bequeath his estate as he himself had his eyes on the deceased's property and hence the recorded conviction of the appellants on the evidence of sole eye witness P. W. 1 Jagdish Narain Pandey, who is not at all a wholly reliable witness, without seeking corroboration from any other evidence, cannot be maintained and is liable to be set aside. He further submitted that from the medical evidence on record, it is established that even if it is assumed for the sake of arguments that the deceased was alive for some time after the incident, he was not in a position to speak at all and hence the prosecution claim that he had narrated a part of incident to P. W. 1 Jagdish Narain Pandey and P. W. 2 Moinuddin Siddiqui implicating the appellants, is absolutely false and unreliable. He lastly submitted that such being the state of evidence, neither the recorded conviction of the appellants nor the sentence of life imprisonment awarded to the appellants can be sustained and are liable to be set aside.

13. Per contra Sri Saghir Ahmad, learned A.G.A. appearing for the State submitted that there is cogent evidence of P. W. 1 Jagdish Narain Pandey on record proving that it was the appellants who had set the deceased ablaze after sprinkling kerosene oil on him and the F.I.R. of the incident was scribed by P. W. 2 Moinuddin Siddiqui on the verbal information of the deceased which under the circumstances of the case, was rightly treated as the dying declaration of the deceased. The prosecution witness of fact was cross-examined by the defence counsel at great length but he could not elicit anything out of him, which may, even, remotely indicate that he was not speaking the truth. He lastly submitted that the medical evidence on record fully corroborates the prosecution case with regard to the manner of assault. This appeal lacks merit and is liable to be dismissed.

14. We have heard learned counsel for the parties and perused the entire lower court record.

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

16. With the aforesaid objective mind, we now proceed to analyze and appraise the evidence on record.

17. P. W. 1, Jagdish Narain Pandey who was the sole witness of fact examined by the prosecution during the trial, stated on oath that there is a Kali Mandir in Qasba Hata and Badari Das was its priest. Sabha Nand Pandey was the father-in-law of his brother, Brij Bahadur Pandey and was also Gurubhai of Badari Das. He had been living in the temple since last 15 to 16 years and was got educated by Badari Das who had also got him employed and thereafter got him married to one Shakuntala. He was living in a hut erected by him on temple land towards west. He was employed as a Teacher in Smt. Reshma Higher Secondary School Sahajanawa. He used to come on Sunday and other holidays and likewise used to go on Monday. He further stated that the Mandir is east-facing which has two rooms and an Osara towards west. There is a Chabutara at a distance of 5-7 steps in the east of the Osara and a Neem tree towards south of the Chabutara. Towards north and east of the Chabutara, there is a grove and in its south, there is a road. The house of Bagish Tiwari is at a distance of about 100 meters in south of the Mandir. The witness stated that he knew accused Ram Chandar and Jangali. Ram Chandar was living in the temple for the last 6-7 years and Jangali was his grand-son who also used to visit him. Ram Chandar used to look-after the cows of the Mandir. It is stated that there were three cows alongwith a calf. The calf was of Jersey breed and Ram Chandra desired to take it and on that issue there was a dispute between Badari Das and Ram Chandar for the last 8-10 days preceding the occurrence. Ram Chandar was ordered to leave the temple premises. To settle the dispute a Panchayat was convened in which he and Bagish Tiwari had also participated. He further stated that Badari Das told him that Ram Chandar was threatening to take away the calf forcibly on the next morning and to beat him. Bagish Tiwari replied that the matter will be seen at the relevant time. He further stated that on the date of occurrence Badari Das was sleeping on the aforesaid Chabutara and accused Ram Chandar was sleeping in the Osara and the witness along with his family members were sleeping in his hut. On hearing the shrieks, they woke up and rushed to the scene of occurrence where they saw Badari Das in burning condition and both the accused were present there. Ram Chandar was holding a container of kerosene oil. P. W. 1 further stated that when he questioned them, they started running towards west leaving the container behind. He raised an alarm which attracted Bagish Tiwari, Radhey Shyam and Ram Garib to the crime scene. Thereafter he threw water over him due to which the fire was controlled. His mouth was closed and his legs and hands were tied, Badri Das was untied by him. He was in a critical condition. When Bagish Tiwari asked about the occurrence, Badari Das told them that accused Ram Chandar and Jangali after tying him had sprinkled kerosene oil on him had set him ablaze. The victim was aged about 70 years. Thereafter he was shifted to Police Station Hata on a cot from where he was sent to P.H.C. Hata for medical examination where he ultimately succumbed to his burn injuries.

18. P. W. 2 Constable Moinuddin Siddiqui C. P. No. 643 stated on oath that on 11.09.1985 he was posted at P.S. Hata as Head Moharrir and on that day the injured Badari Das was brought to the police station on a cot by Jagdish Narain, Bagish Tiwari, Radhey Shyam, Bihari and Phekoo and the injured lodged a verbal report about the incident. He wrote what was stated to him by Badri Das and he got his thumb-impression on the Chik F.I.R. He proved it as Ext. Ka1. He had mentioned the fact in the F.I.R. that the injured stopped speaking and that he had received burn injuries. The corresponding G. D. entry was made by him at report no. 4 on 11.09.1985 at 4.10 A.M. U/S307 I.P.C. and proved its carbon copy as Ext. Ka2. The injured was sent to P.H.C. Hata escorted by Constable Hari Narain after preparing a Majrubi letter, which is Ext. Ka3. He thereafter received information about the death of Badari Das at the police station at 6:00 A.M. on that very day and his corpse was also brought to the police station on the basis of which, he altered the offence into u/s 302 I.P.C. and its corresponding G.D. entry was made by him at 6.05 A.M., which is Ext. Ka4.

19. P. W. 3 Dr. Radhey Shyam Yadav, E.N.T. Surgeon had conducted the postmortem examination on the dead body of Badri Das on 11.9.1985 and prepared and proved his postmortem report Ext. Ka5. He noted following features on the body of the deceased :

"Age 				: about 65 years.
 
Time since death	: about half day old.
 
Average built body of old person, rigor mortis present below neck, singing of all hairs, eyes closed and mouth half - open. Pugilistic attitude of body. 
 
Ante mortem injury : Superficial burn from 1st to fourth degree all over the body  present. Blackening of skin present.
 
Internal injuries : Brain : Congested.
 
Scalp, skull, membranes, base, spinal cord, vertebrae, walls, ribs, cartilages, pleura, larynx, trachea, bronchi hearts-lungs, pericardium vessels, peritoneum, cavity all - all were fond N.A.D. 100 gms fluid was found in the stomach and both the intestines were found containing faecal matters.
 
	In the opinion of the doctor, death was due to shock as a result of ante mortem injury."
 

 
20. P. W. 5 Ram Sajiwan Shukla, who was posted as S.H.O. at P.S. Hata from 1985 to January 1987 at the relevant point of time, deposed that case Crime No. 146 of 1985, under Section 307 I.P.C. was registered at the police station in his presence against the appellants, late Ram Chandra Yadav (A1) and Jangali Yadav (A2) on the verbal report of the priest Badri Das and the investigation of the case was handed over to P. W. 6 S.I. Haribansh Singh. He started the initial investigation which was completed by S.S.I. P. N. Rai who submitted charge sheet against the accused. P. W. 5 Ram Sajivan proved the carbon copy of the G.D. entry as Ext. Ka2.    P. W. 6 Haribansh Singh, first investigating officer of the case in his evidence tendered during the trial narrated the steps taken by him during the course of investigation and proved the statement of deceased, Badri Das recorded under Section 161 Cr.P.C. as Ext. Ka7. He also proved the inquest report of the deceased and other connected papers as Ext. Ka8 to Ext. Ka14. He proved the site plan of the place of occurrence Ext. Ka15 and the recovery memo of match box, bed sheet, pieces of dhoti, half burnt neem leaves and the plastic container containing 100 gm kerosene oil recovered by him from the place of occurrence Ext. Ka16 and which was produced during the trial and marked as material Exts. Ka1 to Ka6. 
 

21. P. W. 7 Constable Hari Narain Yadav stated before the trial court that he was posted at P. S. Hata on 11.9.1985 and on the same day in the morning at about 4:30 A.M. he was sent to P.H.C. Hata escorting Badri Das for medical examination which was conducted there and as the condition of the injured was critical he was referred to District Hospital Deoria. However the deceased died on the way to the District Hospital. Thereafter, he returned to the police station Hata and reported the death of injured Badri Das to the S.H.O. and handed over his injury report to him. He also accompanied corpse for the postmortem examination.

22. Learned counsel for the appellants has vehemently argued that Ext. Ka1, chik F.I.R. in this case which the prosecution claims to have been prepared on the verbal report of deceased, Badri Das, is a forged and fabricated document which does not even bear the thumb impression of the informant, who later succumbed to the burn injuries.

23. Learned counsel for the appellants has also argued that the dying declaration in this case is not at all reliable and the conviction of (A2) Jangali Yadav by the trial court by relying upon the so-called dying declaration of the deceased, is per se illegal. Advancing his argument in this regard further, learned counsel for the appellants has submitted that after water was poured by P. W. 1 Jagdish Narain Pandey on the deceased while he was engulfed in flames with a view to douse the fire, the shock which he received at that point of time must have sent him into coma, rendering him unable to speak thereafter and hence, there was no occasion and no possibility of the deceased Badri Das having made any verbal inculpatory statement against the appellants.

24. In this regard our attention has been invited by the learned counsel for the appellants to the evidence of P. W. 4 Dr. Atul Kumar Verma, In-Charge Medical Officer, P.H.C. Hata who had examined the injuries of the deceased at 5:00 P.M. in which he had stated that he had found whole of the body of the deceased burnt upto fourth degree. Learned counsel for the appellants has also invited our attention to the part of the testimony of P. W. 3 Dr. Radhey Shyam Yadav who had performed the autopsy on the body of the deceased Badri Das wherein he stated that normally, in such a situation, the man concerned cannot be in a position to depose and the shock could be of the extreme degree. In our opinion the dying declaration of the deceased cannot be discarded on the aforesaid grounds inter alia for the reasons; firstly, no question or suggestion was put to P. W. 4 Dr. Atul Kumar Verma by the defence counsel that in view of the injuries received by deceased Badri Das, it was totally impossible for him to speak or state anything and secondly the evidence of P. W. 3 Dr. Radhey Shyam Yadav which is in the nature of an opinion, cannot be termed to be conclusive. Besides there is consistent and clinching evidence of P. W. 1 Jagdish Narain Pandey coupled with the statement of P. W. 5 Ram Sajivan Shukla, In-Charge Inspector and P. W. 2 Constable Moinuddin Siddiqui, that the deceased had made a statement before them.

25. Thus, we do not find any force in the argument of learned counsel for the appellants that at the time of making the statement, the deceased Badri Das was not in a position to speak.

26. The dying declaration of the deceased Ext. Ka1 has also been castigated by learned counsel for the appellants on the ground that it was not recorded before the Tehsildar, although when the injury report of Badri Das was taken to the police station Hata where he had allegedly made the verbal report, the Officer In-Charge of the police station could have easily called Tehsildar for recording the statement of injured Badri Das, rather than getting recorded the same by P. W. 2 Constable Moinuddin Siddiqui. The aforesaid argument of the learned counsel for the appellants is also without any merit for the simple reason that at the time when injured Badri Das was making verbal statement at P. S. Hata, it was not being recorded as his dying declaration and hence there was no occasion for summoning the Tehsildar after recording of his statement on the basis of which, chik F.I.R. Ext. Ka1 was written by P. W. 2 Moinuddin Siddiqui which after the death of Ram Das was relied upon by the prosecution as his dying declaration, which was admissible in evidence under Section 32(1) of the Indian Evidence Act.

27. In the case of Munnawar and others v. State of Uttar Pradesh and others reported in 2010 (70) ACC 853 (SC), the Apex Court held as under:

"that a dying declaration can be relied upon if the deceased remained alive for a long period of time after the incident and died after recording of the dying declaration. That may be evidence to show that his condition was not overtly critical or precarious when the dying declaration was recorded."

28. The law on dying declaration is settled and it has been laid down in a catena of decisions of the Apex Court that although dying declaration should be carefully scrutinized but if after perusal of the same, the Court is satisfied that the dying declaration is true and is free from any effort to prompt the deceased to make a statement and is coherent and consistent, there is no legal impediment in founding the conviction on such a dying declaration, even if there is no corroboration, and thus, if the statement of a dying person passes the test of careful scrutiny applied by the court, it becomes more reliable piece of evidence, which does not require any corroboration.

29. In AIR 1979 SC 1505, the Supreme Court in the case of Surajdeo Ojha and others Vs. State of Bihar held that where the dying declaration comprised of a short statement made within one hour of the assault where there was no injury affecting the brain or the heart and only serious injury was on abdomen which was not found to be sufficient making the deceased unconscious immediately and doctors also did not opine that the deceased would have become unconscious immediately, held that there was no doubt about truthfulness of the dying declaration.

30. In AIR 1976 SC 2199, the Supreme Court in the case of Munna Raja and another Vs. The State of Madhya Pradesh held that where after making the statement before the police the victim succumbed to his injuries and thereafter, the statement can be treated as a dying declaration and is admissible under Section 32(1) of the Indian Evidence Act. In this case the Apex Court further held that if the Court may be in a position to assess the evidentiary value of a dying declaration, what is necessary, is that the whole of the statement made by the deceased must be laid before the court without tampering with its terms or its tenor and the law does not require that the maker of the dying declaration must cover the whole incident or narrate the case history.

31. In AIR 1965 SC 989, the Supreme Court in the case of Thurukanni Pompiah And Anr. vs State Of Mysore held that the truthful and reliable dying declaration may form the sole basis of conviction, even though it is not corroborated by any other evidence but the Court must be satisfied that the declaration is truthful.

32. Now coming to the facts of the instant case and upon perusal of the record, we find that Badri Das was set ablaze after tying his limbs and pouring kerosene oil on him by the accused-appellants on 11.9.1985 and on his raising alarm, P. W. 1 Jagdish Narain Pandey, his wife and other witnesses who lived nearby rushed to the place of occurrence and on reaching there they found appellants standing near the pyre, (A1) Ram Chandra holding a plastic cane in his hand and on noticing them both miscreants ran away. P. W. 1 Jagdish Narain Pandey threw cold water on the burning pyre with the intention of dousing the fire. They brought down the deceased Badri Das from the pyre. On being inquired by Bagesh Tiwari, Badri Das told him that accused Ram Chandra (A1) and Jangali Yadav (A2) after tying his limbs, sprinkled kerosene oil and thereafter set him on fire. The victim Badri Das was brought to the police station within 40 minutes on the same day i. e. 11.9.1985 and before getting unconscious, he verbally stated that his name was Badri Das and he was priest of Kali Mandir and in the morning at about 3:00 A.M. Ram Chandra Yadav (A1) resident of kasba Hata came with his grand son (nati) Jangali (A2) who lived in Thathi, poured kerosene oil on him and then set him ablaze on account of temple and she-calf (jersey cow). The distance between the police station and the place of occurrence is two furlongs and hence it cannot be said that there was any delay in bringing the victim to the police station which could have been utilized for the purpose of concocting a false story implicating the appellants. There is no evidence on record even remotely indicating that at the time when the injured Badri Das was making his statement, he was prompted either by the police officer or P. W. 1 Jagdish Narai Pandey.

33. Another argument has been advanced by the learned counsel for the appellants that the incident having taken place on 3:30 A.M. in the dark night, it was not at all possible for the deceased or the witnesses to have identified the persons who after tying his limbs, had poured kerosene oil on him and set him ablaze, as admittedly the prosecution has failed to prove by leading any evidence that there was any source of light at the time and place of occurrence. The aforesaid argument of the learned counsel for the appellants at the first instance appeals to us but the same is also without any force. From the brief narration of the incident verbally made by deceased, Badri Das, it transpires that the incident had not taken place in a fleeting moment. The miscreants had first tied the limbs of Badri Das and then sprinkled kerosene oil on him and thereafter he was set ablaze by them. The entire process must have taken about 5-10 minutes and since both the accused were known to the deceased previously even if there was no source of light at the time of the incident, under circumstances the deceased would not have had any difficulty in recognizing his assailants. It is true that (A2) Jangali is not the resident of the same village but there is evidence on record showing that he is the grand son of late Ram Chandra (A1) and he used to frequently visit his grand-father (A1) Ram Chandra's village.

34. Although the defence has examined one Uma Kant Chaubey as D.W. 1 to establish the alibi of Jangali Yadav (A2) but we do not find his evidence of any help to Jangali Yadav (A2) in view of the fact that he has been nominated as accused by deceased Badri Das in his dying declaration, which appears to be reliable and trustworthy. The argument advanced by the learned counsel for the appellants that the appellants were falsely implicated in the present case by P. W. 1 Jagdish Narain Pandey in order to grab the property of the temple and hence no reliance can be placed on his evidence he being an interested and partisan witness. Learned counsel for the appellants has also challenged the presence of P. W. 1 Jagdish Narain Pandey at the time and the place of occurrence. The theory of illicit relationship between the deceased and Shakuntala, wife of Bagesh Tiwari and on it being discovered by P. W. 1 Jagdish Narain Pandey, he committed the murder of Badri Das and thereafter falsely implicated the accused-appellants, Ram Chandra (A1) and Jangali Yadav (A2) as accused with the object of grabbing the property of temple, propounded by the learned counsel for the appellants does not appear to have any element of truth. Had it been so, then the deceased would not have nominated the appellants as accused in his dying declaration. Moreover, the defence has also failed to lead any evidence to prove the aforesaid theory. As regards the alleged presence of P. W. 1 Jagdish Narain Pandey at the place of occurrence, he claims that he had reached the place of occurrence on hearing the hue and cry of the deceased and on reaching there, he had seen both the appellants standing there, Ram Chandra (A1) holding a plastic cane in his hand and the deceased burning, cannot be disbelieved.

35. It has been submitted by the learned counsel for the appellants that it is the own case of the prosecution that P. W. 1 Jagdish Narain Pandey at the relevant date and time was employed as a teacher in Smt. Reshma Higher Secondary School Sahajanawa which was at a distance of about 53 km from the place of occurrence and as per his own evidence, P. W. 1 remained away from his house from Monday to Saturday in connection with his teaching work and the incident having taken place on Wednesday, there was absolutely no occasion for P. W. 1 to have remained present in his house and hence his entire evidence tendered before the trial court is false and concocted. The aforesaid argument of the learned counsel for the appellants is also fallacious. There is evidence on record showing that the incident had taken place during durga puja vacation, when the school and colleges are closed and hence it was perfectly natural for P. W. 1 Jagdish Narain Pandey to have remained in his native village on the date of occurrence. Moreover, his presence at the police station has been proved by P. W. 1 Jagdish Narain Pandey and P. W. 5 Ram Sjivan who have not been shown to have any animosity towards Jangali Yadav (A2).

36. It has also been argued by the learned counsel for the appellants that the failure of the prosecution to examine Shakuntala, wife of P. W. 1 Jagdish Narain Pandey, Bagesh Tiwari, the two independent witnesses and another witness who had reached the place of occurrence, merits drawing of an adverse inference against the prosecution. We do not find any merit in the said submission of the learned counsel for the appellants. The evidence of P. W. 1 Jagdish Narain Pandey has remained consistent and clinching throughout. Moreover, as has already noted, it is proved from the evidence of P. W. 2 Moinuddin Siddiqui that the deceased was brought to the police station in a burnt condition by P. W. 1 Jagdish Narain Pandey and the deceased in his verbal statement had not made any inculpatory remark against P. W. 1 Jagdish Narain Pandey. Thus, non examination of Shakuntala wife of P. W. 1 Jagdish Narain Pandey in our opinion, is not fatal to the prosecution case in any manner.

37. Coming to the last argument of the learned counsel for the appellants that the prosecution has failed to prove the motive for the appellants to commit the murder of the deceased, we find that although in a case based upon direct evidence motive does not assume much relevance. However in this case the deceased himself in his dying declaration has disclosed the motive for the crime i.e. the temple and the she-calf (jersey cow) which finds further corroboration from the evidence of P. W. 1 Jagdish Narain Pandey.

38. Thus, upon a wholesome appraisal of the facts and circumstances of the case and a very careful appraisal and analysis of the evidence on record, both oral as well as documentary, we find that the prosecution has fully succeeded in proving its case against (A2) Jangali Yadav. The dying declaration made by the deceased Ext. Ka1 in our opinion, is voluntary and truthful. The manner of assault as narrated by the deceased in his dying declaration stands fully corroborated from the oral and medical evidence evidence on record and the articles seized from the place of occurrence by the Investigating Officer, to which we have already made a detailed reference hereinabove.

39. The learned Trial Judge did not commit any illegality or legal infirmity in convicting Jangali Yadav (A2) for having committed the murder of Badri Das by setting him ablaze on 11.9.1985 at 3:30 A.M. in the Kali temple and awarding life sentence to him.

40. This appeal lacks merit and is accordingly dismissed.

41. (A2) Jangali Yadav is reported to be on bail. His bail bonds are cancelled and sureties are discharged. The Chief Judicial Magistrate, Kushinagar (previously Deoria) is directed to take Jangali Yadav (A2) in custody and send him to jail for serving out the remaining part of his sentence and submit his report in this regard to the Registrar General of this Court within three months.

42. Office is directed to transmit a copy of this judgment and order to Court concerned/Chief Judicial Magistrate, Kushinagar (previously Deoria) for necessary follow up action.

Order Date:- 5.10.2018

SA