Chhabinath And Others vs State Of U.P.
2019 Latest Caselaw 4856 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgement Reserved on 8.05.2019
 
Judgement Delivered on 22.05.2019
 

 
Court No. - 1
 

 
Case :- CRIMINAL APPEAL No. - 8238 of 2007
 

 
Appellant :- Chhabinath And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Apul Misra,Abhisek Mayank,Dilip Singh,P.N. Misra,Rahul Saxena,Satyendra Kumar Mishra
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

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

1. Heard Sri Rahul Saxena, learned counsel for the appellants, Sri Irshad Hussain, learned A.G.A. for the State and perused the record.

2. This Criminal Appeal has been preferred by the accused appellants, Chhabinath, Bhagwan Swaroop and Anoop Kumar against the judgement and order dated 23.11.2007 passed by the Additional Sessions Judge, Court No.1, Pilibhit in S.T. No. 504 of 2005, State Vs. Chhabinath and others whereby all the accused appellants have been convicted and sentenced under Section 302 I.P.C. read with Section 34 I.P.C. with life imprisonment and fine of Rs. 5,000/- and in default of payment of fine, six months additional imprisonment each.

3. Accused appellant nos. 1 and 2 i.e. Chhabinath and Bhagwan Swaroop have died and their appeals have been abated vide this Court's order dated 8.05.2019, therefore, only appeal of appellant no. 3, Anoop Kumar remains for our consideration.

4. The prosecution case as mentioned in F.I.R. is that the maternal uncle of informant, Jhajhan Lal (P.W.1) S/o Lekh Raj Gangwar R/o Village Gangupur, P.S. Bisalpur, Distrct Pilibhit, namely Bihari Lal had a son called Hari Prasad who had died 10 to 12 years after getting married, where after, Bihari Lal had kept informant's son Ram Bahadur with him and Bihari Lal had executed a will of his land and grove measuring about 30 bighas in favour of the informant's son, Ram Bahadur. The wife of Bihari Lal i.e. Sukhdei was issue-less, hence, she made a claim in respect of this land. For about six years, litigation was going on between Sukhdei and informant's son Ram Bahadur. In the meantime, Sukhdei kept his sister's son, Chhabinath S/o Lochan R/o Mahmoodapur, P.S. Bhuta and her son-in-law, Bhagwan Swaroop S/o Ram Charan R/o Chitkuna, P.S. Bisalpur and Anoop S/o Bhagwan Swaroop; Chhabinath used to go Mahmoodapur from time to time. Today i.e. 30.06.2005, informant, his sons i.e. Ram Bahadur and Munesh had gone in the grove of Mango near Sitarganj to pluck mangoes then Chhabinath, Bhagwan Swaroop S/o Ram Charan R/o Chitkuna, P.S, Bisalpur and his son, Anoop told them that they were guarding 'amiya' (small raw mango) and that they would not allow them to pluck mangoes. At this both the sides started abusing each other, right then, all the three accused exhorted 'maro sale ko' then the informant and his companions fled from there raising alarm. At about 1:30 p.m., informant's son, Ram Bahadur was surrounded by them in grove of Ram Bahadur and all the three badly assaulted him with 'lathi-dandas' by which he died on the spot. Thereafter, all the three accused fled towards their village. Subsequently some villagers also arrived at the scene of occurrence where the dead body of the deceased was lying on the spot. Thereafter informant gave an application at the police station and requested for necessary action to be taken against the guilty. On the basis of the said written report, Exhibit Ka-1 being given at the P.S., Bisalpur, Case Crime No. 222 of 2005 under Section 302 I.P.C. was registered against Chhabinath S/o Lochan Prasad, Bhagwan Swaroop S/o Ram Charan and Anoop S/o Bhagwan Swaroop on 3.06.2005 at 14:45 hours (2:45 p.m.) by P.W.6, C. 612, Om Prakash who prepared chik F.I.R., Exhibit Ka-13 and made entry of this case in G.D. at report no. 34, time 14:45 hours on the same day which is Exhibit Ka-14.

5. The investigation of this case was handed over to S.I., Munshi Ram Shukla, P.W.5 on 3.6.2005 who after having assumed investigation, recorded statement of Constable Om Prakash who had written the F.I.R. and thereafter he proceeded along with papers to the place of incident in village, Sitarganj Nagadia where he found the dead body of deceased, Ram Bahadur lying. He prepared the inquest report of the deceased, Ram Bahadur as Exhibit Ka-5 and also prepared other challani-documents i.e. challan-lash, photo-nash, chitthi-R.I., Chitthi-C.M.O. which are Exhibits Ka-6 to Ka-9. Thereafter after having sealed the dead body, the same had been dispatched for post-mortem through Constable Ram Sanehi and Constable Shiv Lal. He, thereafter recorded statement of informant Jhajhan Lal and at his instance, prepared site-plan which is Exhibit Ka-11, thereafter, he collected plain-soil and blood stained soil from the place of incident in presence of the witnesses from ten paces away from the place where the dead-body was lying and the same were kept in different containers which were sealed and its fard was prepared which is Exhibit Ka-12. Thereafter he recorded statement of witnesses of inquest i.e. Ram Dulare, Jaheer Khan, Rameshwar Dayal and also of the witnesses of fard i.e. Jamuna Prasad and Shiv Lal. Thereafter investigation was handed over to S.H.O., Sri Sudhir Kumar Tyagi, P.W.4.

6. Sri Sudhir Kumar Tyagi (S.H.O.), P.W.4 has stated that on 5.6.2005, he arrested accused Bhagwan Swaroop and accused Anoop Kumar and recorded their statements. He got the panchayatnama prepared on 4.6.2005 by S.I., Munshi Ram Shukla; he recorded statement of witness Munesh. On 8.6.2005, he arrested accused, Chhabinath and recorded his statement. On 6.7.2005, he sent the case property to F.S.L., Agra through Constable Shiv Lal, who got it deposited there on 27.6.2005, receipt of which is Exhibit Ka-3. Thereafter he recorded statement of witnesses, Ram Chandra and Constable Shiv Lal on 16.7.2005 and after having completed the investigation, submitted charge-sheet, Exhibit Ka-4.

7. P.W.4, Sudhir Kumar Tyagi has stated in cross-examination that he had gone to the place of incident and at that time, Munshi Ram Shukla was filling panchayatnama. He does not remember whether there was any tube-well near the place of incident nor does he know that any tube-well was operational at the time of incident and there were five to six persons available. He had not recorded statement of doctor who had conducted the post-mortem. The accused had caused the death of deceased by using 'lathi-danda' and the injuries which were found on the body of the deceased were possible to have been caused by lathi-danda. There was lot of crowd at the time of incident because the family members of the deceased were weeping but he cannot tell whether wife of the deceased was there or not. The deceased was originally resident of village Gangupur, P.S. Bisalpur who was kept by maternal uncle of the informant, Bihari Lal with him. He has no such knowledge that he used to come daily from Gangupur to Bisalpur to his shop of tailoring and would return in the evening. Deceased used to live both at Sitarganj and Bisalpur. In village, Sitarpur, he was putting up with the maternal uncle of informant i.e. Bihari Lal and since the deceased belonged to Gangupur, in panchayatnama, Gangupur has been mentioned. On the date when the deceased was murdered, he does not recollect as to where he was on that day.

8. On the basis of evidence on record, the trial court framed charges against accused appellants on 18.3.2006 under Section 302 I.P.C. and on the same day, another charge was framed under Section 302 I.P.C. read with Section 34 I.P.C. to which they pleaded not guilty and claimed to be tried.

9. In order to prove its case, prosecution examined informant, Jhajhan Lal as P.W.1, Munesh, who is brother of the deceased, as P.W.2, Dr. Prashant Kumar, who conducted post-mortem of the deceased, as P.W.3, Investigating Officer-I, S.I. Munshi Lal Sharma as P.W.5 and Investigating Officer-II, Sudhir Kumar Tyagi as P.W.4 and Head Moharrir, Om Prakash as P.W.6. Thereafter prosecution evidence was closed and statement of accused were recorded under Section 313 Cr.P.C. on 16.8.2007.

10. The accused appellant no.3 who is alive i.e. Anoop Kumar has taken plea of false implication and additionally has stated that none of the witnesses knew him and they have given false statement because of being relatives. Sukhdei has no relation with him. No witness has been examined by him in defence.

11. On the basis of evidence on record, the trial court has held the accused appellants guilty and sentenced them under the above mentioned sections.

12. We have to see, in the light of the arguments made before us by learned counsel for the appellants as to whether the said judgement needs to be interfered with.

13. It is argued by the learned counsel for the appellant that accused appellant has no motive to commit this offence. The deceased was having litigation with Sukhdei, the pairvi of which was done by accused side because of which the accused has been falsely implicated. The accused has been falsely implicated. The accused had no relation with the deceased. No independent witness has been examined though according to the F.I.R., there were independent witnesses at the time when this incident is stated to have taken place, therefore, the judgement of the trial court needs to be set-aside and accused appellant deserves to be acquitted.

14. On the other hand, from the side of learned A.G.A., it has been argued in support of impugned judgement that the same has been passed in accordance with the appropriate appraisal of the evidence. It is further argued that the accused, Chhabinath (A-1) is son of the sister of Sukhdei, Bhagwan Swaroop (A-2) is son-in-law of the Chhabinath and Anoop (A-3), present accused appellant is son of accused Bhagwan Swaroop and that the property of Sukhdei would devolve upon all the three of them. It is further argued that Bihari Lal had 40 bighas of land, out of which 10 bighas was given through will to Sukhdei and 30 bighas of land through will to the deceased, Ram Bahadur. Hari Prasad is son of Bihari Lal and his wife's name is Sukhdei. Further it is argued that the deceased had come to pluck the mangoes with his father and brother in the grove in question who was resisted by accused side then the present occurrence took place, in which all the three accused had beaten him to death by 'lathi-danda' which has been proved by eye-witness account of P.W.1, who is father of the deceased and P.W.2 who is real brother of the deceased. Therefore the appeal deserves to be dismissed.

15. We have to re-appraise the evidence to arrive at conclusion as to whether the trial court's judgment is in accordance with the evidence which has been adduced from the side of prosecution of not.

16. In support of the prosecution version as narrated in the F.I.R., P.W. 1, Jhajhan Lal has deposed in examination-in-chief that he knows all the three accused i.e. Chhabinath, Bhagwan Swaroop and Anoop. Anoop is son of Bhagwan Swaroop. Chhabinath is brother-in-law of Bhagwan Swaroop and Ram Bahadur, deceased is informant's son. The informant's 'nanihal' is situated in village, Sitarganj. His maternal uncle, Bihari Lal had kept his son, deceased Ram Bahadur with him and had executed a will of 30 bighas of his land and grove in his favour. The son of Bihari Lal i.e. Hari Prasad had died after about 10 to 12 years of marriage, therefore, Bihari Lal had kept with him, Ram Bahadur (deceased). Hari Prasad and Sukhdei had no child born out of the wed-lock. Sukhdei had filed a case against Ram Bahadur in respect land which was given through will to him (Ram Bahadur) by his maternal uncle which was going on. Sukhdei had kept with her accused, Chhabinath (A-1), who is son of her sister; Bhagwan Swaroop (A-2) who is son-in-law of the Chhabinath; and Anoop, A-3 (present accused appellant) who is son of accused Bhagwan Swaroop. Further this witness has stated that the occurrence took place on 3.6.2005. On the said date, he had gone with his son, Ram Bahadur (deceased) and Munesh to pluck mangoes from the grove of mangoes situated in Sitarganj where Chhabinath, Bhagwan Swaroop and Anoop were present. All the three told him as to why he had come in the grove because the said grove was being looked after by them and they would not allow them to pluck mangoes. Thereafter the accused started abusing informant badly and started beating Ram Bahadur with 'lathi-danda' at about 1:30 p.m. Thereafter the accused fled towards west. This occurrence has been witnessed by P.W.1 and Munesh in which Ram Bahadur died on the spot. He had got the report scribed by Ram Chandra Lal in Bisalpur and the same, after having been written, was read out to him and thereafter he has put his signature there-on, which is Exhibit Ka-1.

17. In cross-examination, this witness has stated that his son who was murdered, namely Ram Bahadur, did not live in Gangupur with him, rather lived in Sitarganj. Sukhdei is wife of Hari Prasad S/o Bihari Lal. Ram Bahadur had been married. At the time when Bihari Lal died, he was owning 40 bighas of land which included agricultural land as well as grove. The said 40 bighas of land is still intact and nothing out of it has been sold. When Bihari Lal died, till then, the mutation proceedings were going on. Till the time when Bihari Lal was alive, the said land remained in his name and no case was contested with respect to said land in his life time. Now for the last 6 to 7 years, the litigation has been going on in respect to the said land. Till after 13 to 14 years of the death of Bihari Lal, no case was filed. After the death of Bihari Lal, case regarding mutation had been initiated, in which 30 bighas of land came in the name of Ram Bahadur and 10 bighas of land in the name of Sukhdei although he does not know the number of the said land. Out of the said 40 bighas, the grove was only about 1 ½ to 1 ¾ bighas, although he does not know its number. Further he stated that accused had filed a case about 6 to 7 years ago in Tehsil and, thereafter stated that they had got this case filed by Sukhdei but Pairvi was being done in that case by the accused side. It was ordered in the said case that Bihari Lal was alive and, therefore, an appeal was preferred against the same which was pending in commissionaire but he does not know as to how many days have passed since the time when appeal was filed, as the same was filed by deceased, Ram Bahadur which is still pending. From the court of Deputy Sahab, Sukhei has won the case, although he does not know as to when the said judgement was passed by Deputy Sahab. Further he has stated that the children of Ram Bahadur were living in a rented accommodation in Bisalpur while P.W.1's son Munesh lives with P.W.1 in village Gangupur. It is further stated that in the said grove, there were about 30-35 trees of 'sheeshams' and mangoes although he had not counted them. The said grove is situated towards east of Sitarganj at a distance of about 10 mtrs. from the village.

18. He has further stated that at the time when panchayatnama was filled, he was present there and in front of him the injuries were seen. The I.O. had reached the place of occurrence at about 4:30 p.m. and had interrogated him there and had enquired as to who were the assailants and whom he would like to make the witnesses, then he had told him that he himself along with his son, Munesh would be the witnesses in this case as no other person of village, Sitarganj was ready to be witness due to incurring enmity and due to fear of accused. Further he has stated that murder of deceased took place at about 1:30 p.m. at the northern 'merh' of his grove. At the time when this incident happened, there were 4 to 5 men near one boring who were irrigating their land, who had seen this occurrence and belonged to village, Sitarganj but he does not know their names. He has further stated that I.O. has recorded his statement in which he has told him that there were five men who were irrigating field of sugar-cane but this fact, he has not mentioned in written report that there were five men who were irrigating their land nor did he mention this fact in his statement to I.O. It could be possible that his son might be knowing their names. He used to go village, Sitarganj once in a year or in six months. Since the time when his son was murdered, he has not gone to Sitarganj. Prior to that when the case was going on pertaining to land then he had felt the need to go Sitarganj two to four times only. He has denied that the persons who were irrigating their sugar-cane field, were not ready to give evidence because of which he was not revealing their names. Further he has stated that he had gone for plucking the mangoes for making pickle and had gone with the three bags. The bag belonging to the deceased, Ram Bahadur, which had been taken away by him after his murder, regarding which he has not mentioned in F.I.R. nor has he stated to anyone. He denied the suggestion that he had not seen this occurrence and some unknown persons might have killed Ram Bahadur in mid after-noon and when the information was sent to Gangupur, he and his son came there and lodged this false report. 19. Further he has stated that he owns 12 to 13 bighas of land in Gangupur out of which one bigha is mango grove while five to six bighas is also grove. On the date of incident neither there was any marriage nor any invitation nor Daswa nor Terahi but he had come to Sitarganj for plucking mangoes. He and his son, Munesh had come to Bisalpur from Gangupur and after taking Ram Bahadur along with him from Bisalpur, they had proceeded to Sitarganj for plucking the mangoes along with bags in which 5 to 6 kg. mangoes could be adjusted.

20. From the above testimony of this witness, we find that in cross-examination, he has consistently stated the same version which was given by him in examination-in-chief that he along with his deceased son, Ram Bahadur and Munesh had come to the place of incident i.e. grove of mangoes which according to him was given through will by Bihari Lal to the deceased and it was then that the accused who were already present there resisted the informant and his companions which included the deceased from plucking the mangoes; abuses were hurled from the side of accused which later on resulted in the accused side beating the deceased by 'lathis-dandas' which resulted in death of Ram Bahadur. It is also stated by this witness that there was enmity between the two sides because with respect to said land, a case was being contested by Sukhdei and Pairvi of the same was being done by accused side, because all the accused were kept by Sukhdei with her. Therefore, the enmity between two sides was also proved by this witness. The presence of this witness is found to be believable by us on the place of incident. Nothing could be elicited from his statement in cross-examination which would lead us to disbelieve his statement in examination-in-chief.

21. P.W.2, Munesh who is brother of the deceased has stated that he knows Bihari Lal who was his grand-father and was maternal uncle of his father Jhajhan Lal, P.W.1. The name of son of Bihari Lal was Hari Prasad who was married to Sukhdei. Hari Prasad pre-deceased Bihari Lal and thus Bihari Lal became issue-less who owned 36 bighas of land, out of which 30 bighas was given to his brother, Ram Bahadur through will after keeping Ram Bahadur with him in Sitarganj. The wife of Hari Prasad is Sukhdei had filed a case in respect of the land which was given through will to deceased, Ram Bahadur which is still pending. In the meantime, Sukhdei had kept with her in Sitarganj, the accused who were sons of her elder sister i.e. Chhabinath, the brother-in-law of Chhabinath, Bhagwan Swaroop and Anoop S/o Bhagwan Swaroop. Chhabinath was staying at Bhurapur temporarily but sometimes he used to visit Sitarganj also.

22. The occurrence took place on 3.6.2005, on that date, he along with his father, Jhajhan Lal and Ram Bahadur (deceased) had gone to mango-grove for plucking the mangoes but were resisted by accused, Anoop because of which abuses were made, thereafter accused appellants, Chhabinath, Bhagwan Swaroop and Anoop started beating him and his companions with 'lathi-danda' at about 1:30 p.m. At that time his brother, Ram Bahadur was at the northern 'merh' of the said grove where all the three accused had beaten the deceased to death and, thereafter fled towards the village. This occurrence took place in-front of his eyes.

23. In cross-examination, he has stated that he has not seen the will nor does he know its executant. He does not know whether on the basis of will, Ram Bahadur had filed any case, but one case is going on in which the land is alleged to be theirs by accused and Ram Bahadur claims the same to be his, thereafter he stated that one case was contested by Ram Bahadur against Sukhdei in which accused were pairokars of Sukhdei but in the said case, Ram Bahadur was defeated and further stated that the said land is in the name of Bihari Lal. He further stated that Ram Bahadur has filed an appeal against the said judgement but he does not know whether the same was pending because pairvi was being done by Ram Bahadur. In the case being contested on the basis of will, he never went to the court but Ram Bahadur used to till him that the pairvi from the side of Sukhdei was being done by the accused. He has not stayed in Sitarganj but had gone there. He had gone only on the date of incident and not before that because of which he was making statement in this case. He stays in Gangupur village and works as a tailor. The place of incident was seen by him for the first time and had stayed there only for ten minutes. His father Jhajhan Lal had come with him to Bisalpur village. The other villagers had also come, therefore, he had left the dead body in the grove itself. He and his father had stayed in the house of Ram Bahadur. His father had gone to the P.S. taking along with him his 'bhabhi' (wife of deceased). Kamlesh had also gone to the P.S. with his father. His father and his bhabhi after taking police along with them had gone to Sitarganj, thereafter stated that his bhabhi had returned while his father had gone for the post-mortem with the police personnel. His bhabhi had also come at about 8:00 p.m. after the dead body was sealed. He has further stated that he had gone to Mehmoodapur once about three years ago. The grove where the incident happened was seen by him for the first time. To the north of the said grove is chak-road, thereafter there is a field but he does not know whom it belongs. To the east and west also, there are fields but he does not know name of its owners but he was told that in the east, there was field of Dharam Pal which was told to him by Ram Bahadur (deceased). There must have been about 30-35 trees in the grove which were not counted by him nor could he tell the type of trees but the said grove was situated at about 100 paces away from 'abadi'. Further he has stated that accused had assaulted by 'lathis' in-front of him and all the three had made 50-50 assaults and, thereafter stated that, in all, accused would have made 50 assaults. When the accused started abusing, he, his father and brother fled from there towards north (navadia). Hardly about 18-20 paces could he run, his brother was caught because he was unable to run and by then had run about 2-3 paces only, thereafter, accused had beaten him down to the ground. The accused had held the neck of his brother by their hands and made him fall to the ground and, thereafter had assaulted him with 'lathis' and 'dandas'. At that time, he and his father concealed themselves and continued to remained there in concealment for about 10-15 minutes and when they became sure that the accused had fled away, they reached near Ram Bahadur who had died. The dead body was lying and all around it, blood was spread. He had not felt the nerve of Ram Bahadur but had seen his injuries. When villagers had come then he and his father had come home leaving his dead body there. His father had told that first of all, let them go to home and share this news with the wife of the deceased that her husband had been killed and then she could be sent to lodge the report. He and his father had gone to Bisalpur. His father and Bhabhi had gone to P.S. His bhabhi was told to go and lodge the report because her husband had been killed but he does not know whether she had taken written report or not as he was at home. He does not know whether his bhabhi was made witness in this case nor did he enquire about it from his father and bhabhi. His bhabhi had come on the spot where dead body was lying and the said statement given above in this regard is correct; after sealing of the body, she had returned. He had not consulted anyone in respect of making any independent witness in this case nor his father had been consulted in this regard. His bhabhi was not made informant in this case because she was a lady and it was considered that it would be difficult for her to go in evidence because of which Jhajhan Lal was made informant in this case. He did not consider it important to name his bhabhi as a witness. He was giving statement only because he had seen the occurrence and has denied that because of being tutored, he was making false statement before court after consulting his bhabhi and father, in collusion with police.

24. The testimony of this witness shows that he was a chance witness as he has stated himself to be putting up at Bisalpur but on the date of incident, he had come to Sitarpur where the occurrence took place. It appears to be co-incidence that he was present on the date of incident with his father who has stated to have accompanied his father along with deceased brother and to have gone to the grove for the purpose of plucking mangoes and on being resisted by the accused side, the accused had committed mar-peet with the deceased in which the deceased is stated to have died. Though we find that there is tinge of unnaturalness in his statement as at one place, he has stated that both he and his father had left the dead body lying at the scene of occurrence and had come home when some villagers had assembled there, the said conduct appears to be unnatural because if brother of a person is killed, without taking his care at the spot, leaving the body at the said place, would be unnatural but we cannot visualize how a person would behave in such odd circumstances when real brother had been killed and yet he leaves the place of occurrence. May be, both of them had left the place when the other villagers had arrived in order to see how the information of the said occurrence has to be reported. This witness has also admitted that his 'bhabhi' was not informant of this case nor witness of the occurrence because it was not thought proper as she, being a lady, would feel harassed when she would be asked to depose before various authorities. As regards not making witness from amongst persons who had arrived there, explanation has been given that others were not ready to be witness because of incurring animosity, may be believable because in today's time, it is difficult to depose against the actual criminals for fear of life, therefore in such circumstances it may be possible that no one would have given his consent to be witness in the present case, out of those who were stated to be present at the place of occurrence.

25. We find that testimony of P.W.2 is corroborating the evidence given by P.W.1 in respect of manner of assault upon the deceased as well as the story narrated in the F.I.R.

26. It would be pertinent to mention as to whether the I.O. has shown the place of occurrence to be the same which is being narrated by the P.W.1 and P.W.2? We find that in Exhibit Ka-11 which is site-plan of this occurrence prepared by I.O., he has shown by 'A' the place where abusing and marpeet took place with the deceased and by 'B' is shown the place where the dead-body was lying in the pool of blood; by 'C' is shown the place where the accused were present and the distance between 'A' and 'B' is shown to be 10 paces and 'A' to 'C' is shown 5 paces, therefore it would indicate that initially quarrel started at place 'A' in the grove of deceased, Ram Bahadur with the accused who were just 5 paces away from them at place 'C' to the south-west of him and, thereafter by arrow is shown the place where the accused and witnesses fled in northern direction up to the place shown by 'B', which was 10 paces away. It shows that from 'A' to 'B' i.e. about 10 paces, the deceased was chased by the accused persons and he ultimately died at spot 'B'. This site-plan gets corroborated from the statement of P.W.1 and P.W.2 although the place from where P.W.1 and P.W.2 have seen the occurrence has not been shown which is a lacuna left by the I.O. but the benefit of the same cannot be allowed to go to the accused.

27. P.W.3 is doctor Prashant Kumar who had conducted post-mortem of the deceased, Ram Bahadur on 4.6.2005 at 3:30 p.m. whose dead body was brought by Constable Ram Sanehi and Constable Shiv Lal of P.S. Bisalpur and had identified the same. He found the deceased to have died one day ago and found following ante-mortem injuries on his person:-

(i)     4 x ½ cm. split lacerated wound over right scalp at parietal region above right ear. Scalp depth, no fracture of underlying bone.
 
(ii) 	11x4 cm. contusion with 1 x 2 cm. and 3 x 4 cm. abrasion over right fore-head and parieto-temporal region with underlying haematoma. 
 
(iii) 4 x 2 cm. contusion with abrasion over upper lip with broken upper canine, incisor, pre-molar right tooth of upper right side with also contusion on lower lip, right mid with broken of lower canine and incisor tooth. 
 
(iv) 15 x 13 cm. contusion over right shoulder laterally and posteriorly. 
 
(v) 6 x 5 cm. contusion with abrasion 1 x 2 cm. over right elbow joint, posteriorly. 
 
(vi) 2 x 3 cm. abrasion in right lower 1/3 of right fore-arm. 
 
(vii) linear contusion 14 x 2 cm. over right lower chest obliquely directed laterally.
 
(viii) 12 x 2 cm. linear contusion over right back of chest. 
 
(ix) Contusion 23 cm. x 9 cm. over right shoulder and arm. 
 
(x) Linear contusion 10 cm. x 3 cm. over left lower chest laterally, obliquely directed. 
 
(xi) Right leg multiple small lacerated wound of 2 x 3 cm. size which are four in numbers at upper 1/3rd  fracture, tibial bone come out. There is multiple fracture of right tibial and tibulla bone in upper 1/3 and lower 1/3 region with displacement. 
 
(xii) left 2 x 3 lacerated wound at upper 1/3rd from which fracture end of tibial bone come out. There is fracture of tibial and fibula bone at upper 1/3rd and lower 1/3rd with displacement.
 
28.    The cause of death is recorded as shock and haemorrhage due to ante-mortem injuries. He has proved this post-mortem report which is Exhibit Ka-2.
 

29. In cross-examination, this witness has stated that 'lathi' is round and long blunt weapon by which if injuries are caused, the rounded portion would touch the object of hitting. By hitting a 'lathi' a maximum diameter of the injury would be equivalent to the diameter of the 'lathi'; further the wounds' width would depend upon the surface by which the blows are made by 'lathi' although the diameter of 'lathi' normally happens from 2 to 3 cm. If an object is repeatedly assaulted by lathi, the width of the injury could also be 10 cm. but if only one assault is made then the width would be maximum from 3 to 4 cm. He has seen a brick injury no. 4 which was not possible to be caused by 'lathi' if hit once but it could be caused by making a blow with half brick. Similarly injury no. 9 is also possible to be caused by brick but the same cannot be caused by one blow of 'lathi'. He further stated that injury nos. 4 and 9 were possible to be caused by a blunt object such as broad wood. There could be difference in time of death of six hours on either side which cannot be exactly disclosed by him.

30. This witness is a formal witness who has found as many as twelve injuries and all these injuries are stated to have been caused by blunt object such as 'lathi-danda' which are stated by the prosecution side to be the weapons by which deceased is stated to have been assaulted by the three accused. This witness has also proved that the death could have happened by assaulting the deceased by 'lathi-danda' on 3.6.2005 at 1:30 p.m. which is the time which is stated in the F.I.R. by prosecution when the deceased is said to have been assaulted.

31. P.W.5 Munshi Ram Shukla in cross-examination has stated that he did not record the statement of Munni Devi who is wife of informant, who had accompanied informant for lodging report because he had to immediately leave for the place of incident. Munni Devi had met him at P.S. but had not accompanied him to the place of incident nor had he found her on the place of incident. He had reached the place of incident prior to 16:30 hours and stayed there for about 3 to 4 hours and till then he did not see Munni Devi there as she was not present there during the time. Father of the deceased Ram Bahadur is Jhajhan Lal. The deceased at the time of incident used to live at both the places i.e. Gagupura and Sitarganj but he had not mentioned that deceased used to live in Sitarganj also. He could not have any knowledge about the wife of the deceased till date as to where she was living. He has no knowledge that deceased, Ram Bahadur had 'pucca' house in Bisalpur nor does he know that he was staying there with wife and children. During investigation he could not come to know that deceased was having a tailor shop in Bisalpur nor could he know during investigation that deceased used to live permanently in Bisalpur and he had lost case of land about ten years ago nor could he know that his name was not there in the voter list of Sitarganj for the last ten years but he denied the suggestion that deceased never lived in Sitarganj. He did not record any statement of Lekhpal in this regard nor did he see any revenue record to know ownership of the said grove. No such statement had been recorded in respect of the witnesses concealing themselves, therefore, there was no reason to show the same in the site-plan. Witness Jhajhan Lal, P.W.1 had not stated to him that he had seen the occurrence concealing himself but had stated that he had seen the occurrence with Munesh. He did not record statement of Munesh. He has also not shown the place from where the witnesses had seen the occurrence. He did not get any small raw mango lying there on the scene of occurrence nor any bag was found nor did he find any cycle of the deceased. What was there on all the four sides of the place of incident, was mentioned by him at the instance of informant. He does not know whether P.W.1 had been to the place of incident earlier or not.

32. P.W.6, Om Prakash who had prepared the chik F.I.R. and G.D. in cross-examination has denied that he had sent special report of this occurrence with delay of nine hours and that he had prepared the forged F.I.R.

33. It is evident from the F.I.R. that according to the prosecution, occurrence happened on 3.6.2005 at about 1:30 p.m. in village Sitarganj in the grove which is stated to be disputed as deceased was claiming it to be of his on the basis of a will which was executed in his favour by Bihari Lal, who was maternal uncle of the informant, while the Sukhdei had contested the said claim of the deceased in court, pairvi of which was being done by the accused side. The report of this incident is lodged on the same day at 2:45 p.m. although distance of the P.S. from the place of occurrence is just 3 km., hence the said F.I.R. is promptly lodged without leaving any chance of embellishment by the informant in the contents of the F.I.R., therefore, the same cannot be held to be ante-timed and is found to be well-proved on the basis of statement of P.W.1 mentioned above. Further as per prosecution case, all the three accused are stated to have assaulted when the deceased along with his father, P.W.1, brother, P.W.2 had come to the place of incident in order to pluck the mangoes which was resisted by the accused side which followed by abusing from both the sides and, thereafter, all the three accused started beating the deceased by 'lathi-danda' and he was chased to a certain distance for about 10 paces where he fell down and the doctor has found as many as 12 injuries to have been caused to him by hard and blunt object which could be lathi also. The statement of P.W.1 and P.W.2, though, are father and real brother of the deceased, therefore are close relatives but their statements have been scrutinized by us very meticulously and both of them are found to be present at the time of occurrence, even though they were not residing at that time in village, Sitarganj where the incident happened. This is settled law that even if a witness is a relative witness, his testimony cannot be discarded simply on that ground only, precaution which is required to be taken is that it should be analysed meticulously. The principle 'falsus in uno, falsus in omnibus' (false in one thing, false in every thing) is not applicable in India, therefore, we have to sift the grain from the chaff in the evidence on record. Based on that principle, we have analysed the statement of both the eye-witness and find that their presence is found to be proved in the light of evidence given by them in examination-in-chief which has been tested on the touch stone of cross-examination. Their testimonies are found largely believable with respect to their having seen the occurrence and being present at the date and time of the occurrence. Their ocular testimony is also getting corroboration from the medical report because the doctor has found the injuries caused to the deceased by 'lathi-danda' and the time is also matching with the time which has been stated in the F.I.R., therefore, we come to the conclusion that there is no infirmity in the judgement of the trial court.

34. So far as the accused appellants having caused injuries to the deceased is concerned by which he died, we have to see whether the case of the accused would fall under Section 304 I.P.C. Part 1 of the I.P.C. or would it fall under Section 302 I.P.C. It has come in evidence that deceased along with his father and brother had gone to the place of incident in order to pluck the mangoes which was resisted by the accused side and subsequently after abusing between two sides, the matter got aggravated and accused side had beaten the deceased to death by lathis. We find that the lathi is a weapon which is not supposed to be deadly weapon, therefore intention cold be to teach the deceased a lesson so that he would not dare visit the said place again in order to pluck the mangoes which was a disputed land according to the accused side. It has also come in evidence that a litigation was going on between Sukhdei on one hand and deceased on the other in which pairvi was being done by accused person from the side of Sukhdei, therefore, we find that the accused side had given effect to this occurrence without any pre-meditated mind that they wanted to kill the deceased. It appears that on the spot, the matter got so much aggravated and passions ran so high that the accused side became very aggressive and it resulted in causing the death of the deceased and that too by 'lathi' which is not a very deadly weapon, therefore the present case would fall in Exception 4 of Section 300 I.P.C. and we find that this case would fall in the category of culpable homicide not amounting to murder which is punishable offence under Section 304 Part 1 I.P.C. with life imprisonment or imprisonment of either description for a term which may extend to ten years and shall also be liable to fine and if the act by which the death is caused, is done with the intention to causing death, or of causing such bodily injury as is likely to cause death.

35. We deem it proper to hold the accused guilty under Section 304 Part 1 I.P.C. read with Section 34 I.P.C. and would like to reduce the sentence of the accused appellant, Anoop to meet the ends of justice, to ten (10) years R.I. and fine of Rs. 1,00,000/- and in default of payment of fine, to further undergo one year R.I. We punish him accordingly. In case, he has already served out the said period, he would be released in this case unless wanted in any other case.

36 Let a certified copy of this judgement be transmitted to the trial court along with lower court record with direction that it shall ensure the compliance forthwith.

37. The appeal is partly allowed.

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

Order Date:- 22.05.2019

A. Mandhani