Musafir And Others vs State
2019 Latest Caselaw 820 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 13.02.2019
 
Delivered on 08.03.2019
 
Court No. - 1
 

 
Case :- CRIMINAL APPEAL No. - 765 of 1985
 

 
Appellant :- Musafir And Others
 
Respondent :- State
 
Counsel for Appellant :- P.N.Misra,Apul Misra,Rajrshi Gupta
 
Counsel for Respondent :- Dga,Harendra Yadav
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

(Delivered by Hon'ble Dinesh Kumar Singh-I, J.)

1. Heard Sri Apul Misra, Sri Dilip Kumar, learned counsel for appellants, Sri Jai Narayan, learned counsel for the State, Sri M.P. Yadav, learned counsel for complainant and perused the materials brought on record.

2. This criminal appeal has been preferred against the judgment and order dated 21.03.1985 passed by First Additional Sessions Judge, Ghazipur in S.T. No. 22 of 1984 (State Vs. Musafir and 4 others) whereby accused appellants Musafir, Ramavatar, Ramawadh, Mukhram and Ramkrit have been convicted and sentenced under Section 302 read with 149 I.P.C. with imprisonment for life each and accused appellants Musafir, Ramavatar, Ramawadh and Mukhram have also been convicted and sentenced to undergo 2 years rigorous imprisonment under Section 148 I.P.C. and under Section 323 read with 149 I.P.C. with 1 year rigorous imprisonment. Accused Ramkrit has been held guilty and sentenced under Section 147 I.P.C. with 2 years rigorous imprisonment and under Section 323 read with Section 149 I.P.C. with 1 year rigorous imprisonment and all these sentences are directed to run concurrently.

3. The prosecution's case as it unfolds from the F.I.R. is that the informant Ram Ratan Yadav S/o Raghunandan (PW-1) R/o Jagopur, P.S. Mardah, District Ghazipur with his brother namely Satyadeo Yadav (PW-2) was ploughing his field on 17.10.1983 at about 6.30 AM in his village, while he himself and his other brother Lal Ji (deceased) were doing some other work in the said field, meanwhile Musafir Yadav S/o Jagar Nath Yadav, Mukhram Yadav S/o Jagar Nath Yadav, Ramavatar S/o Musafir Yadav, Ramawadh S/o Sukhdev Yadav, Ramkrit S/o Mukhdev Yadav came there, armed with lathis, spear (Ballam) and sickle (Gadasa) with an intention to kill his brother and started abusing Satyadeo Yadav telling him that the said field belongs to them and he should immediately go away from there and restrained him from ploughing the same, this led to altercation between them and thereafter Musafir who was armed with ballam exhorted all of them 'maaro saalo ko roj roj ka jhanjhat samapt' (let them be killed so that no dispute remains on daily basis). Upon this exhortation, Ramawadh with gadasa, Ramavatar with ballam, Mukhram with ballam, Ramkrit with lathi started assaulting Satyadeo (PW-2) and Lal ji (deceased) and when PW-1 raised alarm, his brother Bal Jatan (not examined) also reached there and Chintamani Yadav S/o Hazari Yadav, village pradhan, Jagopur and Prem Kumar Singh S/o Vishwanath Singh R/o Tisori, P.S. Mardah and many others had come there, had seen the incident and tried to intervene, by which the assailants fled towards North. By their assault, Lal Ji, Satyadeo and Bal Jatan received injuries and Lal Ji in particular had received serious injuries, who was placed on the cot and was taken to the police station but before he reached there, he died.

4. A written report containing above facts (Ex. Ka-1) was given at police station at about 7.15 AM to the constable clerk Daya Shankar who registered the case as Crime No. 124 of 1983 under Sections 147, 148, 149 and 302 I.P.C. at P.S. Mardah, on 17.10.1983 and prepared its chik F.I.R. which is Ex. Ka-5 and made entry of this case in general diary at report No. 9 of the same date i.e. 17.10.1983 at 7.15 AM which is Ex.Ka-6. The dead body of the deceased Lal Ji was produced before the police and the injured Bal Jatan and Satyadeo were also produced before the police. The investigation of this case was immediately handed over to S.I. Sri B.K. Singh (PW-7). After registration of the case, the Investigating Officer (for short 'I.O.') started investigation and in pursuance thereof, sent injured Satyadeo and Bal Jatan to P.H.C. Mardah for medical examination and gave direction to the informant that he should accompany the injured to P.H.C. The dead body of the deceased Lal Ji was taken into police custody which was brought by informant and Panchas were appointed and thereafter the panchayatnama was prepared in his presence which is Ex. Ka-7. He also prepared the other challani documents, challan naas, photo naas, chitthi C.M.O, chitthi R.I. which was Ex.Ka A-2 to A-11 respectively and after having sealed the dead body of the deceased, dispatched the same through Jugal Kishor and Bhishm Bahadur Singh for post mortem along with relevant papers. Since the deceased was brought on cot at the police station, the I.O. had found blood on the said cot and thereafter, the sample of bandh was also collected by him in presence of the witnesses and prepared its memo which is Ex.Ka-12 and the said bandh was marked as Material Ex.-5. On the same day, he went to P.H.C. Mardah and recorded there the statement of the informant Ram Ratan Yadav. He did not find the condition of other injured Satyadeo to be satisfactory to take his statement as well as the same could not be recorded. The other co-injured Bal Jatan had accompanied the deceased, therefore, even his statement could not be recorded the same day. On 17.10.1983 itself, he went to the place of incident along with the informant, which was the field of informant and at the instance of informant, he inspected the place of incident and prepared its site plan in his hand writing which is Ex. Ka-13. He found at the said field plough and the other implements of cultivation lying there belonging to the informant and were taken into custody by police, memo of which is Ex. Ka-14. He also found blood which had fallen on the place of incident and collected plain soil as well as blood stained soil from there into separate containers which are Material Ex.- 6 to 9 respectively and prepared its memo which is Ex. Ka-15. Thereafter, he tried to search the accused but they could not be found as they were absconding. On 18.10.1983, when he was busy in investigation of this case with his companions and was in village Chawar, he received information from the police informer that accused of this case Ramavatar was proceeding on the road and after receiving this information, he reached village Marehu and arrested the said accused and recorded his statement in which he admitted his guilt and also stated that he got the lathi recovered which was used in the commission of this offence which he had concealed in his field. In pursuance of that, he was taken by them to his field along with other witnesses Fattigan and Muneshwar and in their presence he took out ballam and lathi from the field of paddy and handed over the same to the I.O. and stated that ballam belonged to him while lathi belonged to Ramkrit. The said weapons were taken into possession by the I.O. which are Material Ex.- 1 and 2 respectively and their memo is Ex. Ka-16. These weapons were deposited in maalkhana on 19.10.1983. This witness has also stated that on 20.10.1983, he arrested accused Ramawadh and Ramkrit of village Marahi when they were about to escape and recorded their statements, in which they verified the said lathi and ballam and thereafter they were lodged at police station. Thereafter, on 21.10.1983, he arrested accused Musafir who was also trying to escape and his statement was also recorded. On 23.10.1983, he recorded statements of witnesses Satyadeo and Bal Jatan. On 24.10.1983, he recorded statements of Chintamani and Prem Kumar and on 25.10.1984, he submitted report for issing warrants under Section 82 and 83 Cr.P.C. against the accused Mukhram. The proceedings of attachment of property of accused Mukhram was undertaken on 29.10.1983 which was performed by S.I. Ram Naresh Singh. Thereafter, on 01.11.1983 accused Mukhram appeared in Court and thereafter his statement was recorded in District Jail, Ghazipur on 10.11.1983. He has further stated that in the site plan he has shown the places from where lathi and ballam were recovered and the said site plan is Ex. Ka-17 and thereafter, after completing the investigation, he prepared charge sheet which is Ex. Ka-18 and submitted the same on 10.11.1983.

5. On the basis of the evidence gathered by the prosecution, charges under Section 148, 302 read with 149, 307 read with 149, 323 read with 149 I.P.C. were framed against the accused Musafir, Ramavatar, Ramawadh and Mukhram on 14.05.1984 to which they pleaded not guilty and claimed to be tried. On the same day, separate charges were framed against accused Ramkrit under Sections 147, 302 read with 149, 307 read with 149 and 323 read with 149 I.P.C. to which he pleaded not guilty and claimed to be tried.

6. In order to prove its case from the side of prosecution, witness Ram Ratan Yadav, informant, also an eye-witness as PW-1, Satyadeo, injured eye-witness as PW-2, Dr. Ram Charan Yadav who conducted medical examination of injured persons as PW-3 and constable Fattigan before whom recovery of weapons was made as PW-4, constable Bhishm Bahadur Singh who had prepared the documents in respect of post mortem as PW-5, Dr. P.C. Tiwari who conducted the post mortem of the deceased as PW-6 and Sri B.K. Singh, I.O. of this case as PW-7 have been examined. Thereafter, the evidence of prosecution was closed and statement of accused were recorded.

7. It would be pertinent to mention here that the statement of only those accused who are still alive, would be taken up here into consideration as it has come on record that accused appellant Musafir Yadav has expired and his appeal has been abated on 01.08.2018 vide this Court's order dated 01.08.2018. The remaining 4 accused are there whose appeal is before us for consideration. Accused appellant Ramkrit has denied the truthfulness of the evidence of the prosecution brought on record and it has been stated that the evidence to the effect is correct that the accused Musafir had taken land on patta about 2 years ago from Pradhan for plantation but after execution of the said patta, they tried to forcibly take possession of the field of informant and showed ignorance in respect of the evidence that a panchayat was held between the two sides wherein they were restrained from making any kind of inference and the land was demarcated. Similarly, the other accused namely Ramawadh, Ramavatar and Mukhram have repeated the same answers and have denied the truthfulness of the prosecution's evidence. All the accused have given evidence in defence by examining Vijay Kumar S/o Laxmi Ram as DW-1.

8. The trial court has convicted the abovementioned accused appellants and have awarded the punishments as mentioned above on the basis of evidence which has come on record. After hearing both the sides, we have to see whether the trial court has made proper appreciation of evidence and has arrived at correct conclusion or not, for which we require to go through the entire evidence which has been brought on record from the side of the prosecution.

9. Learned counsel for the appellants has pointed out the genealogy of both the parties and it was argued that father of the deceased Lal Ji Yadav as well as 3 injured witnesses namely Ram Ratan Yadav (PW-1), Satyadeo Yadav (PW-2) and Bal Jatan, namely Raghunath had one brother namely Jagar Nath and Jagar Nath had 3 sons which included accused Musafir and accused Mukhram and one another i.e. Sukhdev. Accused Musafir had 3 sons which included accused Ramavatar and 2 others while Sukhdev had 4 sons which included accused Ramawadh and accused Ramkrit and 2 others. Therefore, he argued that this is a dispute between the collaterals (belonging to the same clan) and that they had no intention to cause death of the deceased as simply a small dispute had happened between the two sides and in the ensuing maar-pee, the deceased has died due to having received injuries which were not caused with an intention to kill. It was further argued that the 3rd injured Bal Jatan who was also stated to be present on the seen of occurrence has not been examined. The injuries which are received are not fatal. As per the F.I.R., the intention was to dissuade the informant side from ploughing the said field and in pursuance of which it was exhorted 'maaro hal na chalane do' (beat them, let them not plough the field), but this was improved by PW-1 by stating in his examination-in-chief that 'jaan se maaro'. There was no common object to cause murder of the deceased because they simply wanted to chase them away from tilling the field. However, it is argued that in the post mortem report, the deceased was found empty stomach which would suggest that the occurrence took place at some other time and not in the manner as stated by the prosecution case. The deceased would have gone for purpose of cultivation in the morning at about 6.30 AM, he would certainly have eaten something. However, it is argued that deceased is stated to have received 3 lacerated wounds which were caused to him by accused Ramkrit by lathi while Ramavatar was attributed role of causing injury of ballam which explains the 4th injury on his person which was a punctured wound, but no other injury was attributed to any other accused to have been caused to the deceased. Therefore, it is definite that there is false implication. Similarly, it was also argued that injured Bal Jatan who has not been examined is found to have suffered 3 contusions and 1 swelling while Satyadeo (PW-2) injured is found to have suffered 3 incised wounds and 3 contusions and swelling in finger which suggests that the injuries alleged to have been caused by the appellants do not match with the weapons which are alleged to have been used in commission of the offence by the accused persons. Further, it is argued that the patta of the land was in the name of accused side while the land was being ploughed by the complainant side and when panchayat was held, even the advice of the panchayat was not accepted by the complainant side, and the complainant side tried to forcibly plough the said land, therefore, the accused had full right to defend their property by restraining the complainant side. Therefore, provocation came from the side of the complainant and not from the accused side. In this maar-peet only one fatal injury is found to have been received by the deceased, which would show that there was no intention to kill him. Otherwise, he would have been repeatedly assaulted. It appears that there was free fight between the two sides and therefore each one of the accused would be responsible for his own acts. It also shows to be a case of their being no common object to kill the deceased, because the weapons which are found to have been used in causing injuries are the implements which are normally used in agricultural work. It was also argued that the injury caused to Satyadeo which was attributed to accused Ramawadh, which has been caused by gadasa, could not travel beyond offence under Section 324 of I.P.C.

10. Attention was also drawn to the injuries caused to injured Satyadeo and it was argued that his injuries at serial Nos. 3, 4 and 6 could have been caused by falling or by lathi-danda and injury No. 7 was just swelling and there was no injury found on his person which could have been caused by ballam. It was also argued that the injuries caused by Ramkrit would not travel beyond Section 304 (II) I.P.C. because it could not be said that the said injuries were caused with intention to kill only and knowledge could be imputed that they were likely to cause death. It is also argued that the trial court has disbelieved the statement of the DW-1 without assigning any reason and therefore it was argued that the appeal deserves to be allowed and the accused appellants be acquitted or their punishment be reduced.

11. On the other hand, from the side of learned A.G.A. it was vehemently argued that there was no infirmity in the impugned judgment because all the injured eye-witnesses have stated about the fact that it was the accused appellants who had caused injuries to the deceased and to them also which resulted in death of the deceased and the testimonies of the PW-1 and PW-2 could not be disbelieved as they are injured witnesses. The ocular testimony given by these witnesses fully stands corroborated by the medical examination reports of the injured as well as the post mortem report of the deceased. It was also argued that the accused appellants had come prepared with deadly weapons to cause murder of the deceased and the same finds mention in the F.I.R. as well as in the statements of witnesses. Hence, it cannot be said that there was no common object to murder the deceased. It was also stated that the burden could not be shifted upon the prosecution to prove that the land which was in dispute between the parties, its patta was executed in the name of accused Musafir, which was in possession of the complainant side and which led to the dispute. It was the duty of the defence side to produce documentary evidence in this regard, if they so desired. It is also argued from the complainant side that as per F.I.R. the informant side has already made it clear that the said field belonged to them. It was vehemently argued that the informant was in service but he had come to the village in holidays, hence he was present there and it was reiterated that if the accused side only wanted to drive away the informant side from the said field and not allow them to plough the land, they were not required to come with weapons from their house and that would indicate that they had common object of causing murder of the deceased, in case any resistance was found to there from the side of the complainant. It was finally argued that the appeal should be dismissed.

12. In pursuance of the version given in F.I.R., from the side of the prosecution, the informant Ram Ratan Yadav (PW-1) has stated in examination-in-chief that the accused who are present in court belonged to his village. His grandfather was Ram Daniya who had 2 sons namely Raghunath and Jagar Nath. PW-1 has three brothers namely Satyadeo Yadav (PW-2), Lal Ji Yadav (deceased) and Bal Jatan. They all lived together and cultivated land together. Thereafter, he further stated that Jagar Nath has 3 sons, Musafir, Sukhram and Sukhdev. Musafir has 3 sons which included Ramavatar, Maan Singh and Sukhdev has 4 sons which included Ramawadh and Ramkrit. Sukhram had no child. A long back partition had taken place between his father and his uncle and Musafir, etc. used to live separate and used to cultivate also their land separately.

13. Further he has stated that the occurrence had taken place in the North of his village and to the West of the field where occurrence happened was field of accused Musafir and to the East of it was his (PW-1) field of paddy and there is kacchi road which goes North and South. To the South of his field is situated the field of Ramroop and to the North of his (PW-1) khalihaan, there were trees which were planted by Musafir about 2 years ago after having taken patta from village pradhan and the land which PW-1 was ploughing, had been started by the accused side to be said the land regarding which patta had been taken by them. In this regard, a panchayat was held and in the same, the said land was restored to them and the land which was given to Musafir by executing a patta, its demarcation was made in panchayat, but Musafir was not ready to accept the same and wanted to plough PW-1's land by taking unauthorised possession. In this regard, he along with other accused had already given him threats.

14. He has further stated that about 10 months ago at about 6 AM, when he, Satyadeo and Lal Ji reached his field and started ploughing the same, which was being ploughed actually by Satyadeo and Lal Ji was clearing the field, Musafir with ballam in hand, Mukhram and Ramavatar with ballam in hand, Ramawadh with gadasa, Ramkrit with lathi came there and started saying that the said field belongs to them and they would not allow them to plough the same and their bullocks were also driven away from there and when PW-1 and his companions stopped them from doing so, Musafir exhorted them to let them be killed so that daily dispute would come to an end and Ramawadh pushed Satyadeo and Sukhdev assaulted with ballam upon Satyadeo, which was held by Satyadeo and thereafter Ramkrit by lathi and Ramawadh by gadasa started assaulting Lal Ji and when Satyadeo came to his rescue, he along with Lal Ji raised alarm and by then Ramkrit had assaulted Lal Ji from behind and Lal Ji ran from there to save his life and in the meantime, Ramawatar also assaulted him by ballam which hit his waist and he fell down on the medh. In the meantime, PW-1's brother Bal Jatan also came there and proceeded to rescue Lal Ji and due to that, Musafir also assaulted him with ballam. In the meantime, Chintamani and Prem Kumar also reached there who saw the occurrence, tried to intervene and then the accused fled away towards North and PW-1 also ran from there towards kachchi road and then started raising the alarm from there. After the departure of accused from the place of incident, he came near Lal Ji and found that he was unconscious due to injuries received by him and was badly bleeding. Satyadeo and Bal Jatan had also received injuries. Thereafter Lal Ji was placed on cot and Bal Jatan along with other persons proceeded towards the police station. When they reached near tubewell of Chintamani, they found that Lal Ji had succumed to the injuries. There only a report of the incident (Ex. Ka-1) was written and thereafter all of them had gone to the police station taking with the deceased on the cot and he submitted written report at police station and also handed over the dead body of the deceased to police. Police after having registered his report sent Satyadeo and Bal Jatan with the constables to Mardah Hospital for being medically examined, even he himself had gone to the hospital for medical examination. The I.O. had come to the hospital where he recorded his statement. He was taken to the place where incident had happened by the I.O. where he had shown him the place of incident and where the Lal Ji had fallen down after getting injured. Blood was spread there, the I.O. had taken blood stained soil in his possession from there.

15. In cross-examination, this witness has stated that he does not know as to in which year the partition had taken place between his father and uncle nor does he know how long ago, the same happened from the date of incident. He even does not know as to when his grandfather had died nor had he seen him as he had died already before his birth. He also showed ignorance as to whether the partition had taken place before the death of grandfather or his father but he did say that he knows this much only that the land was partitioned between him and his uncle. Their khata was registered as one. His father did not get any land in his own name and stated on his own that his field, where maar-peet had taken place, was about half furlong away from his house. There was about 5 ½ bighas of land in the name of his father and uncle in village Jagopur and also about 1 acre land in village Padita. Even house had been partitioned between his father and uncle. The land pertaining to which the dispute had occurred, never belonged to Gram Samaj. The number of said land was 111 with area being 3 bighas 10 biswas which was about 10 to 12 lattha North-South and 5 lattha East-West. On 3 sides of this field, there are medh excepting the Northern side and these medh are about ½ balisht. The said field is recorded in the name of Raghunath and Jagar Nath. However, he has stated that he has not seen the records as to how much land is recorded in their name. However, it is wrong to say that accused Musafir was given that land for tree plantation and he denied that the plots where incident occurred, the number of plot was 112/9, patta of which was executed in favour of accused Musafir by Gram Sabha and upon that land he had planted 30-40 trees but stated that he had planted only 15-16 trees. He has further stated that he has told the I.O. that about 1 bigha and 15 biswa of the said land was given on patta to Musafir for tree plantation and upon the said land dispute had taken place because the accused Musafir says that the said land belongs to him and had also given a threat, but he had not lodged any report before any officer of police. About 6 months prior to the occurrence, panchayat was held which was oral proceedings. The said panchayat was held in the field, where Gyan Singh, Lekhpal was present, the plot No. 111 which was being ploughed by PW-1 was given to PW-1 and in the Western side of the said land, which was being ploughed by Musafir was given to Musafir.

16. However, he has stated that his elder brother used to plough the land and not him as he does service in Raebareli district where he was employed during the incident and had come to the village on 5 days' leave on the day of occurrence. He denied the suggestion that he was not present on the place of incident on the day of occurrence and had also stated that prior to this incident due to the dispute of the land, both sides used to stop talking to each other or used to talk less but maar-peet had never taken place nor their bullocks were driven away. However, he has stated that on the said field all the three of them had reached together without having breakfast and had taken food at 7 PM in the night the day before. Bal Jatan had not come with lathi. Before arrival of accused, a lot of ploughing had already been done, but could not give its measurement as to how much was left to be ploughed. However, he stated that when accused reached there, Lal Ji was towards North and was within the field about 3-4 lattha inside from the Northern road. PW-1 was near Lal Ji towards North and Satyadeo was towards South of him about 4-5 lattha away with his plough. The accused had entered the field from the Western side and when he had seen that, he had apprehension that accused were having weapons and they were about 3-4 lattha away from him but despite fear he did not run away from there. First of all, Musafir stated that they should not plough the field as the same belongs to him, then Satyadeo stated that the said field belongs to him and this led to altercation between them and in the meantime Ramawadh pushed Satyadeo by his hands by which he did not fall down. At that time, plough was towards Southern side of the field and thereafter Musafir had exhorted and upon that exhortation, the accused started assaulting and first of all Sukhram assaulted Satyadeo with ballam but he does not recollect where the said injury was caused because the stick of the said ballam was held and thereafter Ramawadh made a blow by gadasa upon Satyadeo, by which ballam fell down from the hands of Satyadeo. While the altercation was going on, in the meantime, Ramawadh had got the bullocks freed and when Satyadeo assaulted by gadasa, he (PW-1) was standing near him, but he does not recollect as to from which direction it was hit. He had not gone to rescue Satyadeo although he had raised alarm. Lal Ji had gone towards Satyadeo on raising alarm and since Lal Ji reached near the accused he was started being beaten. At that time, he (PW-1) had tried to come forward 2-3 paces towards Satyadeo but he soon realised the danger and then he fled towards the road. He does not recollect as to where the injury of gadasa was caused to Satyadeo. When Lal Ji was being beaten by accused, he had reached South-East corner of the field where Satyadeo was lying. When Lal Ji started running, Ramkrit leaving Satyadeo swung upon Lal Ji to assault him. Ramavatar had also proceeded to assault Lal Ji, Lal Ji was beaten only by Ramkrit and Ramavatar because Ramavatar had assaulted by ballam which had hit Lal Ji in his waist. After getting hit by lathi of Ramkrit, Lal Ji had fallen on medh and had become unconscious and after him having fallen Ramavatar had assaulted him with ballam, but he could not see as to whose lathi was received by Lal Ji when he had fallen. Ramkrit had assaulted Lal Ji only twice with lathi by which he had fallen. He had not seen as to how many blows were caused by Ramavatar to Lal Ji by ballam although he had told the I.O. that Ramkrit had made three blows of lathi upon him and it was also told to the I.O. that in the meantime Ramavatar had assaulted with ballam in his hand by which he had fallen. When Lal Ji was being beaten, Musafir was standing nearby and was exhorting. Musafir had beaten Bal Jatan with ballam and danda. He had assaulted Bal Jatan by ballam from the side of its stick. He cannot tell as to how many injuries were received by Bal Jatan nor has he written in report that Satyadeo was given push and that he had run away from there and stood on the road and from there he had seen the incident and that at the time of occurrence, Bal Jatan was standing in the field. This incident happened for about 10 minutes and Bal Jatan had received only one injury of lathi.

17. He has denied that he had got paper and pen from the nephew of Chintamani to write report and that he had taken hardly 5 minutes in writing the report but it was right to say that he wrote the report after consultation with the police. The place where report was written, from there the police station was about 50 yards away. When he reached the tubewell, he saw that Lal Ji on cot had died and at that time it must have been 6.45 AM. After giving report to the Munshi at police station, the I.O. came at the police station and inside the police station, he (PW-1), Bal Jatan, Satyadeo and others along with Lal Ji who was on cot had come. He has stated it to be wrong that the inspector did not write his report and a pressure was exerted upon him through Chintamani and Prem Kumar and they were made false witnesses in this case. He also denied that F.I.R. was ante-timed and that his statement was not recorded at the police station and also denied that the said incident happened in the night hours by some unknown persons and due to the enmity the appellants have been falsely implicated.

18. From the statement cited above of this witness, we are of the view that he has given very graphic details of how the incident occurred and how the accused had caused injuries to the deceased as well as to the injured, although there are several questions which could not be answered with respect to the directions from where the injuries were caused, etc. but it is very natural that when the accused assaulted the deceased and his brothers, it could be very difficult to recollect all the details. Even if some exaggeration is found to be there in his testimony in respect of manner of assault being made, the same would not be taken to be unnatural because in such circumstances, anyone would be expected to give final details. There are bound to be exaggerations and contradictions in such matters which is a normal phenomenon but on that basis whole testimony of the witness cannot be doubtful keeping in view the principles of law to sift grain from the chaff.

19. As regards, the writing of the F.I.R., his statement is absolutely trustworthy because he had gone to the police station alogn with dead body of the deceased and others and gave Ex. Ka-1, written report, at the police station on which the case has been registered. No infirmity is found to be there in lodging the said report promptly.

20. As regards enmity having been proved by this witness, we are convinced that there was dispute relating to the agricultural field between the two sides and because the accused side wanted the complainant not to plough the said land, they had come there to drive them away and also fully prepared that in case any resistance was made, they would have killed those who were resisting and in the process this incident has happened in which the deceased has lost his life due to injuries received by him of the aforesaid weapons.

21. We find the testimony of this witness to be trustworthy and his presence cannot be doubted on the spot on the date and time of the occurrence.

22. Other injured eye-witness Satyadeo has stated in examination-in-chief that about 10 to 11 months ago, Lal Ji (deceased) had gone to his field at about 6.00 AM to plough the land with him and Ram Ratan (PW-1). At that time, accused Musafir, Sukhram, Ramavatar, Ramawadh and Ramkrit came there. Musafir, Sukhram and Ramavatar were armed with ballam, Ramawadh with gadasa and Ramkrit with lathi and out of them Musafir stated to the complainant side that the said field belongs to them and he would not allow them to plough the same, on which PW-2 stated that the said field belongs to them and they will continue to plough the same. On this, Ramawadh gave him a push and thereafter started running away after setting the bullocks freed. Musafir exhorted that let them all be killed today so that day to day dispute ends finally and on this exhortation, Sukhram made assault by ballam on his abdomen which was held by him by right hand and thereafter Ramawadh assaulted with gadasa and Ramkrit by lathi, and in the meantime, his brohter Lal Ji came there to rescue him, whereon Lal Ji was started being beaten by Ramkrit with the aid of lathi. When Lal ji shouted and ran away from there, all the accused surrounded him and Ramavatar assaulted him with ballam, pursuant to which he fell down on the Southern medh of field and when the complainant side raised alarm, Bal Jatan also reached there to rescue him. Thereafter, Musafir assaulted Bal Jatan by the side of stick of ballam and thereafter Ram Ratan fled from there to the road and started rasing alarm. On his alarm, Chintamani and Prem Kumar also came there towards the field and saw the occurrence and thereafter the accused had fled towards North. He stated that all the accused are present in the court and he further stated that after their having reached the field, within 15-20 minutes the accused had come there. Lal Ji and Bal Jatan had received injuries while he himself had held his assault by his hands and proceeded to see what happened to Lal Ji and found that he had fainted and he was bleeding profusely. Thereafter, Lal Ji was made to lie down on the cot and was taken to the police station and he himself was made to sit on the bicycle of Prem Kumar and thereafter when they had started towards police station, as soon as they reached near tubewell of Chintamani, they saw that Lal Ji had died due to injuries. Ram Ratan had written his report at the same place and thereafter had taken the report to the police station where he handed it over to the police and Bal Jatan was sent to the Mardah District Hospital for being medically examined where he and Bal Jatan were examined. He remained hospitalised for a week as he had large number of injuries and thereafter was referred to Ghazipur Hospital where he also took treatment.

23. In cross-examination, this witness has stated that his statement was recorded by the I.O. but could not tell its date and time. He does not know that the said field was bearing No. 111 in revenue records nor does he know its total area. The said field was ploughed by him after making 2-3 kyaari (partition). The patta of the land which was got executed by Musafir from Gaon Sabha, the said field was to the North of his field which bears No. 111 and to the North of that land is khalihaan. Musafir had planted 15 to 16 trees. The deceased Lal Ji was a driver of the tractor of Prem Kumar Singh but he does not know whether the family of Prem Kumar Singh was siding with Ram Ji Gupta and the family of accused Musafir was on the side of Chintamani.

24. He was having no lathi-danda. The field where incident happened was being ploughed by them since long before. At the time when the accused reached there, he was ploughing the same and Ram Ratan and Lal Ji were clearing the grass. When he started having talks with the accused, Ram Ratan and Lal Ji started to come towards him and was at a distance of 5-6 paces, the accused after having reached the place of incident within 8-9 minutes, they started applying pressure and forcibly got his bullocks freed despite being restrained by them. When Musafir had exhorted co-accused, at that time he was in the Northern side of the said field at a distance of 1-1.5 lattha and in the same field Lal Ji and Ram Ratan were also standing. All the accused had surrounded him. When they assaulted him, he was alone and although he had fallen on the ground after getting hit, Lal Ji had come to his rescue and when he reached there, they started beating Lal Ji but he could not know as to how many blows of lathi were made upon him. Lal Ji ran away to avoid getting hit by lathis, Ramavatar pierced ballam into him pursuant to which Lal Ji fell down and thereafter all the accused assaulted him. He was continued to be beaten for about 8-9 minute. Thereafter, when he had fallen down, at that time Ram Ratan was standing on the road which was towards East which would have been about 2.5 lattha in width. He could not tell whether accused ran towards Ram Ratan to beat him. Since he himself started getting beaten, Bal Jatan had reached there and Bal Jatan was assaulted only by Musafir and none else. When Bal Jatan was beaten, others also had come due to which accused left him and ran away. This fact was told by him to the I.O. that Ram Ratan had gone from there and stood on the road, but why he had not written so, he does not know, but he is saying so for the first time before the court that Ram Ratan had stood on the road.

25. He also did not know as to how many blows of gadasa and ballam were made upon Lal Ji when he had fallen. However, he has stated that they had reached the police station at about 7/7.15 AM but he does not know what was written in report. The I.O. has recorded the statement 5 to 6 days after the incident. He has denied that no such incident happened and in the dead of night this incident happened in some other manner in which the deceased died and because of enmity the accused have been falsely implicated. The testimony of this witness is found absolutely believable by us because he has given very distinct statement as to in which manner the incident happened. As the statement is found to be corroborating the statement of PW-1 and whatever contradictions or exaggerations are found in the same are not of such nature which would make us disbelieve his statement and it is apparent that due to the dispute between the two sides relating to the agricultural land, this occurrence happened in which accused side, by weapons, had caused injuries to the deceased and 2 injured named above.

26. Dr. Ram Charan Yadav as PW-3 has stated that on 17.10.1983 at about 8.00 AM he had examined injured Bal Jatan and and his injury report is Ex. Ka-2-:

1. Reddish contusion 20cm x 2cm frontside from left scapula to right scapula.

2. Reddish contusion 10cm x 2cm on left scapula, vertical in position.

3. Reddish contusion 11cm x 2cm on lower position of left side of back.

4. Swelling of 5 cm diameter on head, no mark of injury.

27. Thereafter he also medically examined the other injured Satyadeo at 8.10 AM on the same date and found following injuries on his person and his injury memo is Ex.Ka-3-:

1. Incised wound 5cm x 0.5cm x scalp deep on left side of head 8cm above the root of left ear. Bleeding present, margins are regular.

2. Incised wound 2cm x 0.5cm x scalp dead on the left side of head, 8cm above the root of the left ear and 3cm forward to injury no.2.

3. Reddish contusion 11cm x 2cm on side of right upper arm, 7cm above the right elbow joint. Vertical in position.

4. Reddish contusion 7cm x 2cm on the back of right forearm, 4cm above the wrist joint. Oblique in position.

5. Incised wound 1cm x 0.2cm x skin deep in the web between right thumb and right index finger, bleeding present. Margins regular.

6. Reddish contusion 11cm x 2cm on side of left upper arm just above the elbow joint. Vertical in position.

7. Swelling 4 cm diameter on back of left hand near the root of left index finger with 2cm x 2cm reddish contusion.

28. In cross-examination this witness has stated that if there be difference of 6 hours in the injury on either side the nature is called fresh and in the case in hand there could be difference of 1 hour on either side and these injuries could have been caused between 3 to 4 AM also in the night. X-ray report was not produced before him. Injury No.2 caused to Satyadeo was by ballam and the Injury No. 5 could also be caused by ballam, but not Injury No.1. All these injuries which were caused to this injured were caused from which direction, he could not tell. It was wrong to say that after receiving injury No.1 he would not be able to stand on his feet and he further stated that injury Nos. 1 and 2 were not sueprficial but injury Nos. 5 was superficial.

29. PW-4 Fatingan has stated that Lal Ji was murdered about 1 year ago and on very next date, the I.O. had arrested Ramavatar and brought him to the village with other constables and the accused was taken to the field in the said village and taking out ballam and lathi from there, he stated that ballam belonged to him while lathi belonged to Ramkrit, which was taken in possession by the I.O. and he sealed them and the memo of recovery of these weapons were made. The said lathi and ballam were Material Ex.-1 and Material Ex.-2 respectively.

30. This witness in cross-examination has stated that when the I.O. had come to his village, he was at a distance of 4 bighas towards East; he was called by the I.O. and was taken alone to the place from where the recovery was made. Prior to the said recovery, he had never had any talk with the I.O. He does not know as to where the maar-peet had taken place because he was not present there and he has denied the suggestion that because of being friend of Chintamani, he was giving false statement against the accused persons and that no such recovery was made of these weapons in his presence.

31. We do not find any lacunae in the statement of this witness and it is found proved by us in the light of his statement that in his presence, the I.O. had recovered the ballam and lathi which were allegedly used in commission of this offence at the pointing out of the accused Ramavatar.

32. Constable 566 Bhishm Bahadur Singh has been examined as PW-5, who has stated that the I.O. had handed over the dead body of the deceased Lal Ji in sealed condition to him for being taken to the doctor for conducting the post mortem.

33. He is only a formal witness hence no deeper analysis of his statement is required to be made.

34. Dr. P.C. Srivastava, Senior Surgeon, Ghazipur Hospital has stated as PW-6 that on 17.10.1983, he had conducted post-mortem of the deceased Lal Ji Yadav at 4.30 PM whose dead body was brought by constables Jugal Kishore and Bhishm Bahadur Singh and found following injuries on his persons-:

1. Lacerated wound 4cm x 1cm x bone deep, 7cm above the left ear left side of head.

2. Lacerated wound 3cm x 1.5cm x scalp deed, 7cm above and behind the left ear.

3. Lacerated wound 2cm x 1cm x scalp deep, 12cm above the left ear near mid line.

4. Punctured wound 1cm x 1cm x muscle deep just above the left iliac bone crest, 3cm to the left mid line. There was contused muscles below this injury with collection of blood.

35. He has further stated that the deceased had died about half day ago and the rigour mortis was present on his whole body. Beneath temporal muscles of injury Nos. 1, 2 and 3, there was contusion, temporal perital bones were found fractured and he had found the cause of death to be coma as a result of anti-mortem injuries. He has proved his report has Ex.Ka-4 and further stated that his death was possible to have taken place between 6.30-6.45 AM on 17.10.1983 and it was possible for him to die within 10-15 minutes of having received the said injuries. The lacerated wound could have been caused by lathi while punctured wound could have been caused by ballam. The personal belongings such as clothes of the deceased viz. Kurta, Ganji, underwear and Lungi which are Material Ex.- 3 to 6 had been handed over to constables Jugal Kishore and Bahadur.

36. In cross-examination this witness has stated that there could be difference in duration of death of 15 hours and also stated that if one bony part is assaulted by a sharp edged weapon with blunt edges, the laceration could be caused.

37. In defence, from the side of accused, Vijay Kumar has been examined as DW-1 who has stated in his examination-in-chief that Lal Ji had been murdered at about 4 AM in village Jagopur to which the accused persons belonged and he knew the deceased from before. When he was going to see his field of paddy in early morning at about 4 AM, he heared some commotion, and when he reached the hut, Lal Ji was found in dead condition inside the said hut where he was sleeping. He, Ram Ratan, Ram Kewal and one person more viz. Vindhyachal had taken the deceased to police station on a cot, which was about 4.45 AM in the morning and there was darkness and thereafter he returned home. The distance from the said hut of the police station must be around 5 to 6 furlongs.

38. In cross-examination this witness has stated that when he reached the place of incident, he did not find accused persons there. Musafir, Ramavatar, Ramawadh, Ramkrit and Mukhram were not present there. When he reached, Satyadeo and Bal Jatan were present there but he could not tell whether Satyadeo had received injuries by then or not because it was dark there. He could not see as to where he had received injuries nor did he see bleeding. Thereafter he was put a question as to whether the said hut was adjacent to the field of Lal Ji to which he responded by saying that the field was common as Lal Ji did not have any separate field. There was no crop and to the East of the said hut was road, towards West of it was tubewell and to the North of it was the land which was given on patta to Musafir and to the South of it was land given on patta to harijan. The said hut was 10 to 12 latthas away from the road in Western direction. His field is situated in the village in North and at a distance of 2 to 3 furlongs from the said hut is situated his fields, whose numbers he knows. He remained at the said hut for 10 minutes and within 15 minutes thereafter, he reached the police station, but when the report was lodged, he had gone home as he had stayed there only for 10 to 15 minutes. Ram Kewal had returned from the police station although Bal Jatan and Satyadeo remained there only.

39. We do not find the statement of this witness to be trustworthy because he has stated the occurrence to have taken place at 4.00 AM in the early hours on the date of incident. Although as per the prosecution version, the occurrence took place at about 6.30 AM on 17.10.1983. He has not been able to give exact time of the date of incident in his examination-in-chief and has further stated that he had reached the place of incident and near the hut which belonged to Lal Ji wherein he was found dead at about 4.00 AM in the morning which is very unusual since the occurrence has taken place in the month of October when winter begins. At that point of time, 4.00 AM would be a time of complete darkness and it would not be believable that a person would go so early to sow the crop in his field. It appears that he has deliberately stated so in order to prove his presence on the place of incident just to create doubt in the mind of the Court that the accused were not the actual culprits. Hence his testimony is discardable.

40. We find that according to F.I.R., the occurrence had taken place at 6.30 AM on 17.10.1983 and its report had promptly been lodged at 7.15 AM. on the same date, though the distance of the police station from the place of occurrence is reported to be only 1 kilometer. Therefore, there is no possibility of any consultation in writing the F.I.R.

41. As per prosecution case, all the accused namely Musafir (now deceased), Mukhram, Ramavatar, Ramawadh and Ramkrit had reached the spot i.e. the field where the informant with his brothers Satyadeo (PW-2), Lal Ji (deceased) and also others were cultivating the field and tried to stop them from ploughing the same which led to altercation between them and subsequently Musafir who had ballam, exhorted all of them that let the deceased and his brothers be murdered so that dispute on daily basis would end and pursuant to this exhortation, Ramawadh by gadasa, Ramavatar by ballam, Mukhram by ballam, Ramkrit by lathi started beating PW-2 Satyadeo and Lal Ji (deceased) and when alarm had been raised by the said injured person, his brother Bal Jatan reached there. Even he was beaten by all the accused and thereafter Chintamani Yadav, Prem Kumar, etc. reached the said place and then the accused fled from there towards North.

42. In site plan (Ex. Ka-17) by 'A' is shown the place where injured Satyadeo was ploughing the field. By 'B' is shown the place where injured Satyadeo was beaten. By 'C' is shown the place where informant was taking out the grass. By 'D' is shown the place where Lal Ji (deceased) was taking out grass. By 'E' is shown the place where the informant in this case had raised the alarm. By 'F' is shown the place where deceased Lal Ji fell down and by 'double arrow' is shown the place where the witnesses arrived at the place of incident. By 'single arrow' is shown the passage by which the accused came on the spot and by 'xxx' is shown the route in which direction the accused fled away after having given effect to the occurrence.

43. By analysing the statement of PW-1 who is informant as well as injured witness of this occurrence in the light of the said site plan (Ex. Ka-13) prepared by the I.O., it is evident that there is no discrepancy with respect to the statement of this witness and the same finds support from the said site plan. Similarly, the testimony of other injured witness Satyadeo is also found to be in consonance with the said site plan. Although, the 3rd witness Bal Jatan has not been examined but that would not affect the case of prosecution adversely as the two injured witnesses have given the statements in corroboration of the prosecution case as stated in the F.I.R. and which also finds support from the site plan. We do not see any infirmity in their version.

44. Dr. Ram Charan Yadav examined as PW-3 has found as many as 4 injuries on the body of Bal Jatan which comprised 3 contusions and a swelling which could be caused by lathi and in this case, lathi is stated to be in the hands of accused Ramkrit. Hence these injuries could have been caused by the said accused to Bal Jatan.

45. As regards other injured namely Satyadeo, the same doctor has found 7 injuries which comprise 3 injuries i.e. Injury Nos. 1, 2 and 5 to have been caused by sharp edged weapons as these injuries are incised wounds and 4 contusions i.e. injury Nos. 3, 4, 6 and 7 which could have been caused by blunt object. Amongst the accused Musafir, Mukhram, Ramavatar are stated to be armed with ballam while Ramawadh with gadasa which all are sharp edged weapons and therefore, these sharp edged injuries could have been caused by the aforesaid weapons and the contusions could have been caused by the lathi which was being wielded by Ramkrit.

46. As regards deceased, we find he suffered 3 lacerated wounds and 1 punctured wound. All the three lacerated wounds were on vital part and the punctured wound could have been caused by ballam and the lacerated wounds could have been caused by lathi. Although, it is not clear as to who in particular caused which injury to which injured/deceased but it cannot be ruled out that all of them were together assaulting these injured persons as well as the deceased by the aforementioned weapons in prosecution of their common object, to drive them away from the piece of land which was being ploughed by the complainant side failing which they had come prepared with deadly and ordinary weapons to go to any extent, even to cause death which is also apparent from the mention made in the F.I.R. as well as the statement of PW-1. All the witnesses have stated that exhortation was made by Musafir that all the complainant side should be done to death so that dispute on daily basis would end. It was argued by the learned counsel for appellants that there was no formation of unlawful assembly armed with deadly and ordinary weapons to cause death of the deceased and grievous and ordinary injuries to the other injured persons, but we are not convinced to accept this argument because had there not been any such intention the accused persons would not come to the place of occurrence with aforesaid arms in their hands. If they had simply intention to drive them away from there, they could have come there empty handed but that is not the case in hand.

47. We reach the conclusion that all these accused had together assaulted the deceased as well as the other injured in prosecution of abovementioned common object.

48. As regards, argument of learned counsel for appellants that no opinion was expressed by the trial court with respect to DW-1 examined from the side of the appellants in defence, in this regard, we have expressed our opinion above that the presence of the said witness appears to be doubtful on the place of incident because it is very unusual that he would go in the month of October in early hours at about 4 AM when there remains complete darkness to look after his fields and would find deceased dead in his hut. We find no substance in the said argument. Lastly, we would like to mention that offences for which the accused-appellants have been held guilty and have been sentenced appears to have made on the basis of evidence on record, hence the impugned judgment does not suffer from any infirmity.

49. Appeal deserves to be dismissed and is, accordingly, dismissed.

50. Accused Ramavatar, Ramawadh, Ramkrit and Mukhram are on bail. Their bail bonds are cancelled. Let these accused be taken into custody to serve the remaining sentence.

51. A copy of this judgment be provided to the trial Court with a direction that the trial Court shall ensure that the accused serve out the remaining sentence according to law.

 
Order Date-:08.03.2019
 
Nirmal
 

 

 
(Dinesh Kumar Singh-I, J.)        (Ramesh Sinha, J.)