Allahabad High Court
Ramapati @ Ram Pati Singh vs State Of U.P. on 24 May, 2019
Bench: Naheed Ara Moonis, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
RESERVED.
CRIMINAL APPEAL NO. 848 of 1999.
Appellant: Ramapati @ Ram Pati Singh
Respondent: State of U.P.
Counsel for Appellant:- , Jagdish Singh Sengar, Mahendra Kumar.
Counsel for Respondent:- Govt. Advocate, Govind Saran, G.S. Hajela, S.K. Dubey, Shri Prakash Dwivedi.
Connected with
Case :- CRIMINAL APPEAL No. - 1001 of 1999
Appellant :- Lal Sahab Singh
Respondent :- State Of U.P.
Counsel for Appellant :- Jagdish Singh Sengar, ,D.P.Singh,Lokesh Kumar,Pawan Singh Pundir,Sanjay Kumar Singh,Vipin Kumar Singh
Counsel for Respondent :- Govt. Advocate
Connected with
Case :- CRIMINAL APPEAL No. - 1002 of 1999
Appellant :- Narendra Singh @ Pappu And Another
Respondent :- State Of U.P.
Counsel for Appellant :- Jagdish Singh Sengar,Rajesh Kumar Singh,Vipin Kumar Singh
Counsel for Respondent :- Govt. Advocate
Hon'ble Naheed Ara Moonis,J.
Hon'ble Virendra Kumar Srivastava, J.
(Delivered by Hon'ble N.A. Moonis,J.)
These three fore-captioned appeals have been preferred by the appellants against the common judgment and order dated 24.3.1999 passed by the 4th Additional Sessions Judge, Jaunpur in S.T. No. 246 of 1993 (State of U.P. Vs. Ramapati Singh @ Ram Pati Singh & others) arising out of case Crime No. 228 of 1993, police station Nevhariya, district Jaunpur whereby the appellant Lal Sahab Singh has been convicted and sentenced for the offence punishable under Section 302 IPC for life imprisonment, under Section 325/34 for one year imprisonment and Sections 323/34 for six months imprisonment, appellant Ramapati Singh @ Ram Pati Singh, Narendra Singh @ Pappu and Shobh Nath Singh have been convicted and sentenced for the offence punishable under Section 302/34 IPC for life imprisonment, under Section 325/34 for one year rigorous imprisonment and under Section 323/34 I.P.C. for six months rigorous imprisonment, hence the same are being heard and decided by this Court by this common judgment and order.
In the present case the accused persons, deceased and injured persons except accused Shobh Nath have belonged to the same family, hence it is necessary to give genealogical tree of the family, which is as follows;
Bhaddar Singh
│
Ist wife - Shiv Nath Singh - 2nd wife Amrita Devi (Injured)
│ │
Ramapati @ Ram Pati Singh │
│ │
(accused) │
__________________________________ │
│ │ │ │ │
Lal Sahab Singh
(accused)
Rai Sahab Singh
Rajendra Pratap Singh
Narendra Pratap Singh @ Pappu
(accused)
│ ________________________________
│ │ │ │
Ram Sringar Singh (Deceased)
│
Dhyan Chand, complainant
(P.W-2)
Surendra Pratap Singh, P.W-1
(injured)
Virendra Pratap Singh
Rajendra Pratap Singh
.
Shiv Nath Singh who is the father of accused Ramapati @ Ram Pati Singh had performed two marriages. From his first wife accused Ramapati @ Ram Pati Singh was born. Lal Sahab Singh, Narendra Pratap Singh, Rai Sahab and Rajendra Prasad are the sons of accused Ramapati @ Ram Pati Singh. Lal Sahab Singh and Narendra Pratap Singh are accused in the present case. Ram Sringar Singh, Surendra Pratap Singh, Virendra Pratap Singh and Rajendra Pratap Singh are sons of Shiv Nath Singh from his second wife Amrita Devi. In the incident Amrita Devi and Surendra Pratap Singh are injured persons while Ram Sringar Singh is the deceased. Dhyan Chand is the son of deceased Ram Sringar Singh.
A first information report was lodged by Dhyan Chand on 17.6.1993 at 11.30 A.M. at police station Nevhariya, district Jaunpur in respect of an incident occurred on the same day at 10 A.M. Dhyan Chand had divulged that litigation is going on with respect to partition of the property between his father (Ram Sringar Singh) and his uncle (Tau) Ramapati @ Ram Pati Singh. On 17.6.1993 at about 10 A.M. Ramapati @ Ram Pati Singh, his son Lal Sahab Singh, Narendra Singh @ Pappu and one Shobh Nath son of Rama Dular of his village equipped with lathi danda and spear were cutting bamboo from 'Banskothi' the disputed land. His father went at the spot and refrained Ramapati @ Ram Pati Singh to stop cutting bamboo at this Ramapati @ Ram Pati Singh and his sons had abused him and asserted that they will cut the bamboo and he may do whatever he wishes. On hearing altercation the complainant himself, his uncle Surendra Singh and his grand mother Amrita Devi, Udai Bhan Singh and Virendra Singh of his village besides various other persons hurriedly reached there. Ramapati @ Ram Pati Singh and Shobh Nath had exhorted to kill Ram Sringar Singh today so that all the dispute may come to an end. yydkj dj dgs fd jke Jhxkaj dks tku ls ekj Mkyks ftlls lkjk >xMk [kRe gks tk;s---------At this Lal Sahab Singh had given a blow of spear on his father. He had received injury of spear and fell down. Thereafter Lal Sahab Singh gave several blows to him with the spear. His uncle Surendra Singh and grand mother went near to save his father Ramapati @ Ram Pati Singh, Narendra Singh and Shobh Nath had also thrashed them mercilessly with lathi and had also assaulted his father with their respective lathis. On raising hue and cry the accused persons left the place extending threat to life towards their house. His father had sustained several injuries. His uncle took his father and grand mother for medical treatment to the Sadar Hospital, Jaunpur. He (Dhyan Chand) went to the police station to lodge the report to take appropriate action. The report was scribe through Ram Asrey Singh and was submitted at the police station.
The first information report was initially registered under Sections 307, 323, 504 and 506 I.P.C. as case Crime No. 228 of 1993 at police station Nevhariya, district Jaunpur against Ramapati @ Ram Pati Singh, Lal Sahab Singh, Narendra Singh @ Pappu and Shobh Nath Singh. The chick first information report was prepared by Head Constable Bare Lal Yadav (P.W.5) who entered the same in the general diary No. 16 at 11.30 A.M. on 17.6.1993, which was proved by him as Ext. Ka-6. On receiving the information with regard to the death of Ram Sringar Singh through Surendra Pratap Singh that he expired while he was taken to the hospital, the case was converted under Section 302 I.P.C. of which the reference was made in the G.D. No. 20 at 2.30 P.M. on the same day. He had sent the special report G.D. No. 22 dated 17.6.1993 to the higher authorities at 3.20 P.M.
The criminal law was set in motion and the investigation was entrusted to Kailash Nath Dubey (P.W. 8) Inspector who was posted as Station Officer of police station Nevhariya, district Jaunpur on 17.6.1993. He recorded the statement of the complainant thereafter proceeded to the place of incident at village Barra where he recorded the statement of the eye witnesses, namely, Udai Bhan Singh and Virendra Singh, thereafter inspected the place of incident and had collected blood stained and plain earth, recovered one spear, which was stained with blood of which memo was prepared in the presence of Madan Mohan Singh and Gyanendra Pratap Singh and also recorded their statements. He had prepared the site plan at the pointing of the complainant, which was marked as Exhibit Ka. 10. The memo of blood stained and plain earth was marked as Exhibit Ka. 11 and the memo of spear exhibited as Exhibit Ka. 12. Constable Shiv Nand Yadav also reached at the place of incident and informed about the death of injured Ram Sringar Singh, while he was taken to hospital and had also informed about that the case has been converted. Injury report of Surendra Singh and Amrita Devi were handed over to the Investigating Officer along with the report about converting the case, which were mentioned in the case diary. He recorded the statement of injured Surendra Singh, Amrita Devi, the driver of the jeep, Mahendra Kumar and scribe of the first information report, Ram Asray and thereafter returned to the police station along with the case property, which was deposited at the Maalkhana.
S.I. Dharkeshwar Singh (P.W.10) who was posted at police station Kotwali Jaunpur on 17.6.1993 was directed to conduct the inquest of the deceased Ram Sringar Singh. He reached at the Sadar Hospital along with constable Nagendra Prasad and Constable Murli Manohar. He prepared photo nash of the deceased exhibited as Exhibit Ka. 18. He conducted the inquest of the deceased and prepared the inquest report exhibited as Exhibit Ka. 19 and after obtaining report of the Chief Medical Officer the dead body was sent for postmortem, which was marked as Exhibit Ka. 22 and Ka. 23. Sample seal Exhibited Ka. 24 and challan nash Exhibited Ka. 25.
The Investigating Officer after receiving information of death of Ram Sringar Singh had informed the higher authorities through special report, a reference was made in the GD No.22 at 3:20 P.M. on 17.6.1993 marked as Ext. Ka-9. Thereafter he had arrested accused Ramapati @ Ram Pati Singh, Lal Sahab Singh, Narendra Singh @ Pappu and Shobh Nath Singh at the crossing of Salavarpur at 2.45 P.M. on 18.6.1993. On the basis of X-ray report offence under Section 325 IPC was added on 24.6.1993. After recording the statement of S.I. Dharkeshwar Singh, Constable Murli Manohar and Nagendra Prasad other witnesses of inquest completed all the formalities and submitted the charge sheet against the above mentioned accused persons under Sections 302/ 323/ 325/ 504/ 506/34 IPC by the Kailash Nath Dubey (P.W-8), the Investigating officer of the case. The charge sheet was marked as Ext. Ka-13.
After taking cognizance of the offence, the learned Magistrate had committed the case to the court of sessions.
The learned IVth Additional Sessions Judge, Jaunpur by order dated 3.6.1994 framed the charges against Ramapati @ Ram Pati Singh, Narendra Singh @ Pappu Singh and Shobh Nath Singh under Section 302/34 IPC for the commission of murder of Ram Sringar Singh. For causing injury to Surendra Singh, the charges were framed against them under Section 325/34 IPC and for causing simple injuries to Surendra Singh and Smt. Amrita Devi, the charges were framed under Section 323/34 IPC and separate charges against the accused Lal Sahab Singh under Sections 302, 325/34 & 323/34 IPC were framed.
The accused appellants abjured from the charges and claimed to be tried.
The prosecution in support of its case examined Surendra Pratap Singh as P.W-1, Dhyan Chand as P.W-2 and Uday Bhan Singh as P.W-4 as witnesses of fact and formal witnesses P.W-3 Dr. Ram Narayan Pandey, P.W-5 Head Constable Badey Lal Yadav, P.W-6 Constable Chandra Bhan Tiwari, P.W-7 Constable Narendra Prasad, P.W-8 Inspector Kailash Nath Dubey, P.W-9 Dr. S.N. Pandey, P.W-10 SI Dharkeshwar Singh, and P.W-11 Dr. R.S. Verma, Radiologist.
The defence case was one of denial who had proposed to examine Rajesh Singh as D.W-1 and V.K. Upadhyay as D.W-2.
Having appraised and evaluated the evidence adduced on record, the learned Sessions Judge reached to the conclusion that the witnesses of fact brought home the prosecution case proved to the hilt against all the accused appellants and were held guilty for the killing of Ram Sringar Singh and causing injuries to Surendra Pratap Singh and Smt. Amrita Devi, as such convicted the appellants for life imprisonment for the offences charged against them.
Heard Shri V.P. Srivastava, learned Senior Counsel assisted by Shri Vipin Kumar Singh, learned counsel for the appellants Ramapati @ Ram Pati Singh, Lal Sahab Singh and Narendra Singh, Shri Dharam Pal Singh, learned Senior Counsel assisted by Shri Rajesh Kumar Singh, learned counsel appearing on behalf of the appellant Shobh Nath Singh, Shri G.S. Hazela, learned counsel for the complainant and Shri Devendra Kumar Singh, learned Additional Government Advocate on behalf of the State and also taken through the record of the case.
Learned counsel for the appellants has submitted that the appellants have challenged the conviction and sentence on the ground that the impugned judgment and order dated 24.3.1999 is against the weight of evidence on record and is bad in the eye of law. The prosecution has failed to establish charge as in the manner the offence is alleged to have been committed by the prosecution is totally different to what comes out from the evidence given by the eye witnesses. Their evidence is full of contradiction and discrepancies. From the oral and medical evidence, the time of lodging FIR and the time of incident is highly improbable. The nature of injury found on the body of the deceased was not possible by the weapon used and it is highly doubtful that the injuries allegedly caused by sharp edged weapon was caused by ballam (spear).
Learned counsel appearing for the appellants further reiterated the stand taken before the learned Sessions Judge and submitted that the relatives including female were gathered on the occasion of marriage of Seema, the daughter of the deceased Ram Sringar Singh, some anti- social elements had entered in his house with intent to commit loot and dacoity. When Ram Sringar Singh woke up the miscreants had brutally assaulted him and thrashed other persons. On account of enmity due to property dispute among them, the appellants have been falsely implicated in the present case. Learned counsel has further submitted that the accused appellants are the relatives of the deceased and other prosecution witnesses belong to the same family of the deceased/injured person, except the accused Shobh Nath Singh. There was dispute relating to the property, hence all of them have been roped in the present case.
The appellants were not at all involved in the offence as alleged by the prosecution, still they have been convicted and sentenced to undergo life imprisonment. The conviction and sentence is not only contrary to law, but also too severe. The learned trial court has misread and misconstrued the material on record. The statements of the eye witnesses are self-contradictory and against the medical evidence on record vis-a-vis eye-witnesses, site plan and various memo prepared by the investigating officer. There is also various lacuna on the part of the investigating officer while conducting the investigation, yet the charge sheet was submitted against all the accused persons. Therefore the conviction and sentence imposed by the trial court is unsustainable and the appellants are liable to be acquitted.
Learned counsel appearing on behalf of accused Shobh Nath Singh has argued that the appellant Shobh Nath Singh, who happens to be the neighbour of the other accused appellants roped along with other persons assigning him the role of exhortation along with Ramapati @ Ram Pati Singh and sentenced to undergo life imprisonment.
It is further submitted by the learned counsel for the appellant Shobh Nath Singh that mere presence of appellant Shobh Nath at the place of occurrence along with other co-accused was not sufficient to infer common intention as he had no relation with them. Essential ingredient of Section 34 I.P.C. that a common intention was shared has not been established by the prosecution. as such the overt act of exhortation attributed to him that he had also joined the other accused persons in assaulting the deceased and the injured was not sufficient to sustain his conviction attributing common intention.
Learned counsel for the complainant and the learned A.G.A. have submitted that the prosecution case is supported by the evidence of reliable eyewitnesses and one of them is injured witness, as such his presence at the time of place of occurrence cannot be doubted nor it can be doubted that the incident had not taken place in respect of which, the FIR was promptly lodged against the named accused persons. The contradiction and discrepancy pointed out by defence is not so as to go to the root of the matter which has rightly been ignored by the learned trial court. The trial court has appreciated the evidence in correct perspective, as such the finding recorded by the learned trial court convicting the appellants deserves to be upheld and affirmed.
In vindication of their stand, learned counsel appearing for the appellants as well as complainant and the learned A.G.A. have taken us through record of the case in the above perspective, we would like to divulge and delve into the evidence adduced by the prosecution in order to appreciate the same in the teeth of arguments advanced across the bar by the learned counsel for the appellants.
Surendra Pratap Singh an injured witness, was examined as P.W-1. In his examination-in-chief he has narrated about the relation with the accused persons and the deceased which has already been discussed in the preceding paragraphs of this judgment.
Surendra Pratap Singh (P.W-1) is the brother of the deceased Ram Sringar Singh and also uncle of Dhyan Chand who had lodged the FIR. Dhyan Chand (P.W-2) is the son of the deceased Ram Sringar Singh. He had stated that accused Ramapati @ Ram Pati Singh was living separately from him and his brother since 1989-1990. Several cases are going on between him and his brother Ram Sringar Singh with Ramapati @ Ram Pati Singh. His father Shiv Nath Singh had purchased a bus numbered as UP F-7517 which was in the name of him and accused Ramapati @ Ram Pati Singh. There was a dispute with regard to its claim for which a case is pending in the court of Jaunpur numbered as Case No.695 of 1991 Surendra Pratap Singh Vs. Shiv Nath Singh & others He had proved the copy of written statement in the court which was marked as Ext. Ka-1.
A case with respect to one Mahendra Jeep (Diesel) numbered as UTO No.4439 was pending in the court of Civil Judge, Jaunpur as Case No.160 1991 Ram Sringar Singh Vs. Lal Sahab Singh. A photocopy of the plaint marked as Ext. Ka-2 and a copy of the plaint in respect of Case No.728 of 1991 (Shiv Nath Vs. Rampati and others) with respect to the dispute of the land pending in the court of Munsif, Jaunpur was filed as Ext. Ka-3 during the course of his examination in chief.
He had stated that in respect of the bus no.U.P. F-7517, the accused Narendra Singh had mutated his name from the RTO which was registered in his (P.W-1) name and accused Ram Pati Singh @ Rama Pati Singh. He had moved an application before the RTO in which inquiry was conducted. The photocopy of the said inquiry was also filed as Paper No.41-K. In respect of the incident he had stated that it was at about 10 A.M. when he (P.W-1) heard the noise, he arrived at the place of incident. Accused Lal Sahab Singh having spear (ballam) Ramapati @ Ram Pati Singh, Shobh Nath Singh and Narendra Singh wielded with lathies were present. Ramapati @ Ram Pati Singh and Shobh Nath Singh had exhorted to kill Ram Sringar Singh so that all the dispute come to an end. They were cutting bamboos in his "Banskothi". His brother Ram Sringar Singh was preventing all the accused persons from cutting bamboos. They were hurling vituperative words and saying that baans katoonga jo karna ho kar lena. Udai Bhan Singh, Virendra Singh as well as his mother Amrita Devi and his nephew Dhyan Chand (P.W-2) also arrived there. Despite they were restrained by his brother, accused persons did not stop to cut the bamboos. Ramapati @ Ram Pati Singh and Shobh Nath Singh had again exhorted to kill Ram Sringar Singh. At this Lal Sahab Singh had given a blow of spear to Ram Sringar Singh, on account of which he fell down, Lal Sahab Singh had again given several blows to him. Shobhnath, Rampat and Nagendra, who were wielded with lathi had also assaulted his brother Ram Sringar Singh. Accused Ramapati @ Ram Pati Singh and Shobh Nath Singh were also present in court. He (P.W-1) and his mother Amrita Devi ran towards to save Ram Sringar Singh, then he and his mother were also brutally assaulted by Ramapati @ Ram Pati Singh, Shobh Nath Singh and Rajendra with lathi as such they fell down. Various other persons had also gathered at the place of incident. Thereafter the accused persons after hearing noise, they ran towards their houses.
Thereafter he (P.W-1) took his mother Amrita Devi and brother Ram Sringar Singh for treatment to Sadar Hospital, Jaunpur in his jeep where his brother was admitted and the Doctor had declared him as dead. The dead body was kept in the mortuary.
P.W-1 had got examined his injuries and of his mother and thereafter they went to police station Nevhariya where he had informed about the death of his brother Ram Sringar Singh. He had further deposed that he had given his medical report along with X-ray to the police. At the police station the police had disclosed that his nephew Dhyan Chand Singh got the written report registered in respect of the incident. Thereafter he and his mother returned back to his house on his jeep. At that moment the police had already arrived there where his statement and the statement of his mother were recorded. He had disclosed about the pendency of the cases between the parties.
In his cross-examination by the defense he had narrated about the injury caused to him by the accused persons with lathi, on account of which, the bones of two fingers of left hand were broken. He had also stated about that witness Dhyan Chand resides in Ahmedabad since 6-7 months and he has a milk shop in Mumbai and he has license of it. He also resides in Mumbai since one year. After the incident Dhyan Chand had also came in his house on account of marriage. His younger brother Virendra resides in Allahabad. He had denied that none of the accused persons resides in Mumbai. Sometime earlier Lal Sahab Singh who was residing at Ahmedabad Rai Sahab was residing at Mumbai where he was doing service in a Mill. He has stated that the deceased Ram Sringar Singh is his elder brother earlier he used to do service in Ahmedabad and thereafter he also doing work of Contractor. He has also stated that the accused Ramapati @ Ram Pati Singh was born by first wife of his father Shiv Nath Singh.
He is not aware about that when his first mother I.e. the mother of Ramapati @ Ram Pati Singh had expired. The age of Ramapati @ Ram Pati Singh is about sixty years. He has stated about that prior 3-4 years of the incident there was partition among the brothers. At the time of partition accused Ramapati @ Ram Pati Singh had got 1/5 part in all the houses and he also received 1/5 part of the house. Prior to 1-2 years of the incident Ramapati @ Ram Pati Singh had filed a case under Section 229-B of U. P. Z. A. & L. R. Act against his father Shiv Nath claiming ½ share. The case is still pending. Thereafter his father had also filed a case before civil court against Ramapati @ Ram Pati Singh, who had claiming ½ of the share. In his family there was 40 bigha of agricultural land in which half of the land was purchased through sale-deed and half was ancestral.
P.W-1 has also divulged that there was joint income of the family. Two buses and one jeep of their family were running on rent. The claim of Ramapati @ Ram Pati Singh was not accepted by the court of Chief Judicial Magistrate, Banaras and the bus is in police custody.
He has denied the suggestion that the buses were in the name of Ramapati @ Ram Pati Singh and his son Narendra Singh and were got in his name after deleting the name of Ramapati @ Ram Pati Singh. It is also wrong to say that he had denied that the buses were given in the custody of Ramapati @ Ram Pati Singh. He was put to lengthy cross-examination by the defence.
All the accused Ramapati @ Ram Pati Singh, Lal Sahab Singh and Narendra Singh showed enmity due to pendency of several cases. Further he had denied about the suggestion that the dacoity was committed in his presence who had caused injuries to him and his brother. He had also denied that in order to usurp the landed property, the accused appellants have been falsely implicated. He has also denied that under the influence of his relatives he had got up false injury report. He had completely denied that he is not able to explain as to how the miscreants had assaulted with which weapon. He had also denied the suggestion that on the occasion of marriage the miscreants had committed loot with their invited ladies in the night.
The P.W-1 Surendra Pratap Singh was also cross-examined separately on behalf of accused Shobh Nath Singh. He stated that accused Shobh Nath Singh is Pawar Thakur Caste. He (P.W-1)and other accused persons belong to the same family of Moti Thakur Caste. Accused Shobh Nath Singh has no relation with his family. He has also denied that no dispute had occurred with the family of the accused Shobh Nath Singh with his family members. Prior to the incident accused Ramapati @ Ram Pati Singh had filed a case under Sections 323,504 IPC against him and his brothers, namely, Virendra Pratap Singh, Gyanendra Pratap Singh and one Uday Bhan Singh S/o Jharkhadey Singh on 8.5.1992 which is pending before the court of learned Chief Judicial Magistrate-II. He is not aware about any date fixed in the said case. The case which is pending as (State Vs. Surendra Singh) Shobh Nath is the witness who is the accused in the present case. He had denied that the accused Shobh Nath Singh was not present and had not participated in the incident. He also denied that as accused Shobh Nath Singh is the witness from the side of accused Ramapati @ Ram Pati Singh in the case which is pending in the court of Chief Judicial Magistrate-II, Jaunpur, hence he has been falsely implicated in the present case.
Dhyan Chand Singh who is the son of the deceased (Ram Sringar Singh) and had lodged the FIR was examined as P.W-2. He had reiterated the prosecution case as narrated in the FIR. He had proved the FIR which was got scribed by Ram Asray and submitted to the police station. The report was proved by him and marked as Ext. Ka-4. He stated that his house is situated towards North to baas Kothi and house of the accused is towards 80-90 paces North. A case of partition was going on with respect to the land since before the incident between his father and Ramapati @ Ram Pati Singh. The incident had taken place 4 years ago at about 10 A.M. The accused persons, namely, Ramapati @ Ram Pati Singh, Lal Sahab Singh, Narendra Singh and Shobnath reached at the baas kothi where they were cutting bamboos. His father was restraining them, then the accused persons had started abusing him. On hearing the altercation, he, his uncle Surendra Singh, his grandmother Amrita Devi, Uday Bhan Singh and Virendra of his village reached at the place incident. Ramapati @ Ram Pati Singh and Shobh Nath Singh had exhorted jke Jhxkaj dks tku ls ekj Mkyks (to kill Ram Sringar Singh). At this, Lal Sahab Singh had given a blow of spear to his father. On receiving blow his father fell down, despite that Lal Sahab Singh had assaulted him. To save his father, his grandmother Amrita Devi and his uncle Surendra Singh came near, then Narendra Singh, Ramapati @ Ram Pati Singh and Shobh Nath Singh had also assaulted his father with lathi. His father had sustained injuries of lathi and ballam (spear). Ramapati @ Ram Pati Singh, Shobh Nath Singh and Narendra Singh were equipped with lathi. After assaulting his father, they had gone to their house hurling abusive language and extending threat of dire consequences. The incident had taken place towards west side of the baas kothi. After the incident, his uncle Surendra Pratap Singh had taken the injured person at Sadar Hospital, Jaunpur. He (Dhyan Chand) had got the written report at the police station with respect to the incident.
P.W-2 was cross-examined in detail by all the accused persons jointly, except on behalf of the accused Shobh Nath Singh. Nothing could be elicited to doubt that he was not present at the time of incident. He had completely denied that Narendra Singh had committed murder of his father in the night. He had denied the manner of the incident had not occurred as mentioned in the first information report. This witness was cross-examined on behalf of Shobh Nath Singh separately where he had stated that all the witness, except Shobh Nath Singh belong to Gauti Thakur. Shobnath belong to Pawan Thakur Caste. He along with other accused persons belong to the same family. He is not aware about any enmity with the accused Shobh Nath Singh with his family members. He had stated that he does not reside here, as such he could not say as to where accused Ramapati @ Ram Pati Singh had filed cases against his family members prior to the incident. He had also denied that Shobh Nath Singh was a witness in respect of any case lodged by the accused Ramapati @ Ram Pati Singh. He had denied that accused Shobh Nath Singh was not involved in the present incident. He had also denied that accused Shobh Nath Singh has falsely been implicated due to enmity. He further stated that the FIR was scribed by Ram Asrey Singh and he is not aware that prior to this incident Ram Asray Singh had filed a case against accused Shobh Nath Singh.
P.W-4 Uday Bhan Singh who is an eyewitness of the incident, had also reiterated the prosecution version and has shown his presence at the time of incident. He had specifically stated about the assault committed by Lal Sahab Singh upon Ram Sringar Singh the father of P.W-2. Ram Sringar Singh on receiving blow of spear by Lal Sahab Singh had fell down. Thereafter Lal Sahab Singh had caused injuries again with spear and other accused persons who were armed with lathi had assaulted him. When his brother Surendra Pratap Singh and mother, Amrita Devi reached there to save Ram Sringar Singh, they were also assaulted by Ramapati @ Ram Pati Singh, Narendra Singh and Shobh Nath Singh. He had specifically stated that Ram Sringar Singh succumbed to the injuries. This witness was also cross-examined by all the witnesses jointly, except the accused Shobh Nath Singh. This witness was also put to lengthy cross-examination by the defence, specifically in respect of causing injuries with ballam (spear). Nothing could be elicited to create doubt upon his testimony with regard to his presence at the time of incident or that he had not seen the incident.
On behalf of appellant Shobh Nath Singh, P.W-4 Udai Bhan Singh was cross-examined where he had again reiterated that he is Gauti Thakur Caste and accused appellants, namely, Ramapati @ Ram Pati Singh and Surendra Singh are also Gauti Thakur Caste. Accused Shobh Nath Singh is of Pawar Thakur Caste and the complainant as well as accused persons belong to same family. He denied that he did not reach at the place of occurrence when the assault took place. He had also denied that the accused persons had not participated in the incident. He had stated that he had disclosed to the police that he was sitting at his door and Dhyan Chand and Amrita Devi were also sitting there. This fact was not disclosed to police as he was not enquired about that. He further stated that the statement of Dhyan Chand was not recorded. After his examination, the statements of Amrita Devi and Surendra Singh were recorded not immediately, but after sometime and he was present at that time. He stated that he is not residing here, hence he could not say that the accused Ramapati @ Ram Pati Singh had filed any case against his family members or not. He is not aware that accused Shobh Nath is a witness in any case or not. It is wrong to say that the accused Shobh Nath is not involved in the incident. He denied that on account of enmity he is giving false evidence.
Dr. Ram Narayan Pandey, who had conducted the postmortem of the deceased Ram Sringar Singh was examined as P.W-3. Dr. Ram Narain P. W. 3, who was posted at District Hospital Jaunpur on 17.6.1993. The dead body was brought by constable Nagendra Prasad and Constable Murli Manohar Srivastava in sealed cover. He had conducted postmortem examination on 17.6.1993 at 5:30 P.M. and found the following anti mortem injuries on the body of the deceased.
1. Incised wound on front of left shoulder 4cm x 2cm x chest cavity deep left side blood present.
2. Incised wound on left side medial part of front of neck just above sternum 3cm x 1 cm x chest cavity deep left side, blood clot found.
3. Incised wound under left side chin 1cm x 1cm x skin deep blood clot.
4. Incised wound 3.5 cm x 1 cm x skin deep on upper most lateral aspect of right arm, blood present.
5. Incised wound 1.5 cm x 0.5 cm x skin deep of right chest, 12 cm. below sternal notch just lateral to sternum blood clot present.
6. Contusion 6cm x 4cm on right side upper lateral side abdomen 22 cm below. Right nipple.
7. Linear abrasion left chest 1cm x 2 cm in size, 19 cm below, lateral to left nipple.
8. Abrasion on right side shoulder 6 cm. below medial most of shoulder.
9. Incised wound 3cm x 1 cm x muscle deep on lateral aspect of upper most of right thigh, blood clot present.
10. Incised wound 3cm x 1cm x scalp deep on right side head. 6 cm above right ear blood clot present.
11. Incised wound 6cm x 1 cm. X scalp deep in A.P. direction, on left side head. 8 cm. above left eye brow, blood present.
12. Contusion 12 cm x 3 cm on lateral aspect on right thigh.
On external examination the eyes and mouth were closed, rigor mortis were present on both limbs. No sign of decomposition.
On internal examination left lung was found lacerated. Blood was present in the left side of chest. Both chambers of heart were empty. Abdomen was empty. The death occurred due to haemorrhage and shock due to anti mortem chest injuries. The duration of death was within 12 hours of examination. The postmortem report exhibited as Exhibit Ka-5. He while proving the postmortem report had stated that the death of Ram Sringar Singh could have been occurred on 7.6.1993 at 10 A.M. The detail has already been mentioned in the preceding paragraphs with regard to the injuries suffered by the deceased. He had deposed that the injury nos. 6, 7,8 & 12 could have been received from the blunt object like lathi and the rest of the lacerated wounds are caused by sharped edged weapon. Spear could have been used for causing injury nos.1 & 2. Other incised wounds could have been received by any other sharp edged weapon. He had stated that he received the papers from the police on which he had signed.
This witness was put to lengthy cross-examination with regard to the nature of injuries and had given an opinion that there could be difference of 6 hours on either way. In respect of the death of Ram Sringar Singh, the death could have occurred at 4 A.M. on 16/17.6.1993. He had admitted that stomach and small intestine were empty while large intestine was filled with faecal matter and gas and on this basis Ram Sringar Singh could have died at 4 A.M. in the morning. He had totally denied that he had not seen the dead body and merely on the basis of description of injuries mentioned in the inquest report, he had prepared the postmortem report. He had also denied under the influence, he had added injury no.12. However, this witness was not examined on behalf of accused appellant Shobh Nath Singh.
Head Constable Badey Lal Yadav was examined as P.W-5 who had proved the FIR entries of the case and carbon copy of the G.D. entry marked as Ext. Ka-7 and converted the case under Section 302 I.P.C. which was marked as Ext. Ka-8 and special report of the G.D. entries was made by him marked as Ext Ka-9.
In his examination-in-chief, P.W-5 had denied that it is wrong to say that he had not seen the special report at that time, however, nothing could be elicited in his cross-examination. He was not examined on behalf of accused appellant Shobh Nath Singh.
Constable Chandra Bhan Tiwari, who was examined as P.W-6 had produced the bundle brought from the police station containing spear. He deposed that under the orders of the court he had brought the spear from the malkhana in a sealed cover. Under the orders of the court the sealed bundle was opened in which blood stained clothes and spear were found. It was also containing blood stained and plain earth which was kept in two separate containers.
On his cross-examination by the defence counsel he had stated that spear was not in a sealed condition in the box. This witness was not cross-examined on behalf of the accused appellant Shobh Nath Singh.
Constable Nagendra Prasad was examined as P.W-7 who had stated that the dead body of the deceased Ram Sringar Singh was handed over to him and Murli Manohar Srivastava. After the inquest report was prepared, he had also received the papers relating to the inquest and thereafter they brought the dead body to the mortuary where the postmortem was conducted. After the postmortem the dead body was handed over to the family members of the deceased. After the postmortem two sealed packets and one bundle of blood stained clothes were handed over to him which were consigned at the police station. So long the dead body remained in his custody no one was allowed to access upon the dead body.
In his cross-examination on behalf of accused persons on being inquired as to whom the dead body was handed over by him he replied that the dead body was given to his heirs. He did not know about the name of the heirs and no such paper is on record on which he had obtained the signature after handing over the dead body.
Kailash Nath Dubey who is the Investigating officer of the case was examined as P.W-8. He had conducted the investigation and submitted the charge sheet of which the detail has been mentioned in the preceding paragraph. He was put to lengthy cross-examination by the defence that no incident had occurred as narrated by the prosecution. All the alleged recovery was fake and fabricated and the accused persons were implicated due to enmity after consultation with the complainant which was totally by him.
Dr. S.N. Pandey, P.W. 9 who was posted as Chief Medical Officer, District Hospital, Jaunpur was examined as P.W-9 had examined the injuries of Surendra Pratap Singh (P.W-1) on 7.6.1993 at 11.30 A.M. The injury report exhibited as Exhibit Ka. 14. The following injuries were found on the body of injured Surendra Pratap Singh;-
1. Lacerated wound 3 cm x 0.5 cm x scalp deep right side 7 cm above right eye brow, bleeding present.
2. Lacerated wound 3 cm x 0.5 cm. Scalp deep on right side head 10 cm above right ear, bleeding present.
3. Lacerated wound 2 cm x 1 cm bone deep, left side head 9 cm above the left ear.
4. Contused swelling 6 cm x 3 cm. back of palm 4 cm below wrist kept under observation.
5. Contusion 10 cm x 2 cm right side black 10 cm. joint of shoulder.
6. Contusion 25 x 2 right side back 10 cm. Below
7. Contusion 10cm x 3 cm on right side back 7 cm below on right scapula.
8. Contusion 3 cm x 2 cm. On the outer aspect of right hand.
9. Contusion 4 cm x 2 cm right forearm, 4 cm below.
10. Contusion 5 cm x 2 cm palm of right hand.
11. Abrasion 1cm .
12. Contusion 6 cm x 2 cm in front of left thigh knee joint.
13. Contusion 2 cm x 1 cm left though 10 cm above the joint knee.
14. Contusion 1 cm x 0.5 cm in front of joint, 10 cm above the ankle.
According to him, the injury no.4 was kept under observation and advised for X-ray, whereas other injuries were simple and caused by hard blunt object. The Doctor had opined that at the time of examination injuries were fresh. The injury no. 4 of the injured Surendra Pratap Singh X-ray was done by Dr. R.S. Verma, Radiologist who had prepared the report as Exhibit Ka-16 and the X-ray plate was exhibited as Exhibit Ka-2. According to X-ray report there was fracture on second, third and fourth metacarpal bone of left hand.
He had proved the medical report as Ext. Ka-14 and had stated that the injuries were fresh at the time of examination. All the injuries were caused by blunt object like lathi.
He had also examined the injuries of Smt. Amrita Devi at 11:45 A.M. on the same day brought by Surendra Singh. The following injures were found on the body of injured Amrita Devi;-
1. Lacerated wound 2 cm x 0.5 cm scalp deep on right side head. 4 cm above the eye brow, bleeding present.
2. Abrasion contused read 7 cm x 3 cm on the back of right forearm just below kept under observation. Advised X-ray.
3. Contused swelling 4 cm x 3 cm in front of right shoulder.
4. Lacerated wound 1 cm x 0.5 cm. Muscle deep on the right finger, bleeding present. Injury no.2 was kept under observation. Advised X- ray. Other injuries were found simple caused by hard object. All injuries were fresh at the time of examination.
The witness had deposed that the injury no. 2 received by Amrita Devi was kept under observation. The other injuries were simple in nature caused by hard blunt object like lathi. The injuries were fresh at the time of examination which could have been caused at 10 A.M. on 17.6.1993. He had proved the medical report of Smt. Amrita Devi prepared by him which was marked as Ext. Ka-15.
In his cross-examination, he had totally denied that the injuries mentioned in the medical report were not sustained by them and under some pressure he had exaggerated the nature of injuries. He was further re-examined on behalf of the prosecution. He had stated that the injury no.4 of Surendra Pratap Singh was kept under observation and he was advised for X-ray which was prepared by R.S. Verma, Radiologist. The injury no. 4 was serious as in the left hand 2nd & 4th metacarpal bone was found fracture.
The defence cross-examined him in respect of X-ray report of injured Surendra Pratap Singh. He deposed that he had admitted him after giving first aid and he was attended by different Doctors of which the reference would have been made on the bed head ticket. He had further stated that it was not mentioned in the X-ray report by the Radiologist that callus formation was there or not. He has proved the X-ray report prepared by Dr. R.S. Verma, Radiologist.
SI Dharkeshwar Singh who had conducted the inquest of the deceased Ram Sringar Singh was examined as P.W-10. He had stated that he had received information with regard to the death of Ram Sringar Singh which was made part of the case diary. He had proved the papers/memo relating to the deceased and the information received from the hospital about the death of Ram Sringar Singh which was marked as Ext. Ka-16. Photonash is marked as Ext. Ka-18, postmortem report of the deceased Ram Sringar Singh is marked as Ext. Ka-19, letter to R.I. is marked as Ext. Ka-20, letter written through RI to CMO for conducting postmortem is marked as Ext. Ka-21, letters to CMO are marked as Ext. Ka-22 & Ext. Ka-23, sample seal is marked as Ext. Ka-24 and challan lash is marked as Ext. Ka-25.,
In his cross-examination he had stated that he had started inquest at 11:40 A.M. and had taken the signatures of the inquest witnesses after the conclusion of the inquest. He had admitted that the family members of the deceased were present at the time of the witnesses of inquest. He had denied that at the instance of Raj Kumar Singh, one of the inquest all the formalities were completed by him and no family members were present at the time of inquest. He proved the inquest report marked as Ext. Ka-19.
R.S. Verma, Radiologist was examined as P.W-11. He had deposed that he was posted as Radiologist at district hospital, Jaunpur on 19.6.1993 and under his supervision X-ray of injury no.4 of injured Surendra Pratap Singh was done on the advised of Dr. S.N. Pandey in which 2nd, 3rd & 4th metacarpal bone was found fractured. He proved X-ray report which is marked as Ext. Ka-16 and stated that callus formation fracture had seen in the X-ray after two weeks. He had opined that on account of falling on hard blunt object fracture could be possible.
On cross-examination on behalf of accused appellant Shobh Nath Singh, he denied that he had not prepared the X-ray on account of any pressure of the Technician and a fake report of injured was prepared.
The report of the Chemical Examiner, Lucknow was filed and proved as Ext. Ka-26. According to the report, human blood was found on spear vest and underwear, and blood was found disintegrated on the sample soil.
After examination of the prosecution witnesses accused appellants were examined under Sections 313 Cr.P.C.
Accused Ramapati @ Ram Pati Singh had denied all the incriminating circumstances put to him and had stated that he has been implicated under the influence of police on account of enmity with the witnesses. He had further stated that one day prior to the incident, he had gone along with his son Narendra Singh to Ghazipur with his Bus No. UP F-7517.
Accused Narendra Singh in his statement recorded under Section 313 Cr.P.C. had denied all the incriminating circumstances put to him and had stated that he along with his father had gone to Ghazipur on 16.3.1993 and they had returned back in the night of 17.6.1993. He was arrested by the police from his house.
Accused Lal Sahab Singh had also denied all the incriminating circumstances put to him in his statement recorded under Section 313 Cr.P.C. and had stated that he has been falsely implicated as he is running his house by doing service in Ahmedabad.
In nut-shell all the above accused appellants had accepted their relation with the complainant and accepted that they belong to genealogical tree of the family, but denying the other part and had stated that after filing of the case under Section 229-B of U.P. Z.A. & L.R. Act, the complainant party had filed the civil cases. The complainant had no baanskothi. The medical report of the injured persons has been fabricated. The time of lodging of the report has wrongly been mentioned. The report has been lodged with the consultation of the SHO. The site plan has also been wrongly prepared of different place. The charge sheet has wrongly been submitted as the case has wrongly been registered on account of enmity with the witnesses and under the pressure of the police. Prior to one day of incident Ramapati @ Ram Pati Singh had gone along with his son Narendra Singh to Ghazipur in his Bus No.UP F-7517. He had gone prior to U.P. Z.A. & L.R. Act, His grandfather was also alive before Zamindari Abolition. His father had no other issue. His mother had died. He had not received any share in the property. He had been given dilapidated house in which he and his children are residing. After filing of a case under Section 229-B of the Act all the proceedings have been initiated. In a false and fabricated manner by the father of the complainant with intent to usurp the entire property and had also made a false claim of the bus and jeep etc. In this case he has falsely been implicated. The incident of marpeet was absolutely false. There was marriage of daughter of Ram Sringar Singh and in that connection they had come from Ahmedabad. Some unknown dacoits had committed loot in the night and committed assault. The complainant with the help of the police had lodged the ante-time FIR. The incident is totally false and vague. When Ramapati and his son Narendra Singh along with Rajesh Kumar Singh had gone on 16.6.1993 in the marriage at Sakin Bind, resident of police station Jalalpur to Dileep Rai, Ghazipur and returned back in the night of 17.6.1993 they were arrested by the police from their house.
Accused Shobh Nath Singh in his statement recorded under Section 313 Cr.P.C. had accepted the family tree of the accused persons and denied all incriminating circumstances put to him showing ignorance in respect of the incident. He had stated that the charge sheet has wrongly been submitted against him. On account of enmity and under the pressure of the police witnesses have wrongly deposed against him. He had stated that he was not present at the time of incident.
The defence has examined Rajesh Kumar Singh as D.W-1, who had stated that on 16.9.1993 his marriage was solemnized. His procession had gone to village Dileep Rai Patti, Police Station Saidpur, District Ghazipur. Ramapati @ Ram Pati Singh along with Narendra Singh had gone with the Bus No.UP F-7517 carrying the persons of marriage procession. Bus was in the name of Ramapati @ Ram Pati Singh. The bus came to his house on 16.6.1993 at about 3 P.M. The procession reached at about 7 P.M. at Dileep Rai Patti and on next day at 3 P.M. procession was returned. Both accused appellants, namely, Ramapati @ Ram Pati Singh and Narendra Singh had gone with him and returned with the procession. He reached at 6 P.M. in the evening by the bus and stated that they had never gone away leaving the procession rather remained there on 16.6.1993 from 3 P.M. to 6 P.M. on 17.6.1993.
B.K. Upadhyay was examined as D.W-2. He had deposed that he was posted as Lower Divisional Clerk since 1994 in the T.B. Clinic, Jaunpur. He had brought the register of the pay bill of his department which is kept in his custody. He knows about Ram Dhani Singh Technician who was posted as X-Ray Technician in the T.B. Clinic which is government clinic. Ram Dhani Singh belongs to village Jalalpur and he is posted here since 1993. He had filed the photocopy of the cash register of 1993 which is marked as Ext. Kha-1.
Accused Shobh Nath Singh had filed a original copy of the charge sheet submitted in Case No.1226 of 1992, State Vs. Surendra & others, under Sections 323,504 IPC at police station Newarhiya which was marked as Ext. Kha-2 in which he was shown as a witness of the case.
Accused Ramapati @ Ram Pati Singh & others had also filed documentary evidence in support of his case in which written statement was filed in the court of Hakim, Tahseel Madiyahun, District Jaunpur in a case under Section 229-B/176 of U.P. Z.A. & L.R. Act, Ramapati @ Ram Pati Singh Vs. Shiv Nath & others which was marked as Ext. Kha-3, except this from the side of accused Ramapati @ Ram Pati Singh & others photocopy of the order dated 6.1.1993 was filed relating to the release order of U.P. Bus No.F-7517 passed by the learned Judicial Magistrate-II, Varanasi and several other papers showing the cases pending between the parties as Ext. Kha-4 to Ext. Kha-12.
Learned trial court after appreciation of the oral and documentary evidence on record arrived at the conclusion that the prosecution has proved the case against the appellants beyond all reasonable doubt in which accused Lal Sahab Singh was actively involved in committing murder of Ram Sringar Singh while other accused appellants, namely, Ramapati @ Ram Pati Singh, Narenda Singh and Shobh Nath Singh had caused injuries to the deceased and two other injured persons, namely, Surendra Pratap Singha and Smt. Amrita Devi and hence they were found guilty and were convicted for life imprisonment as stated in the opening paragraph of the judgment.
Coming to the submission raised by the learned counsel for the appellant that the witnesses of facts examined during trial P.W. 1 Surendra Pratap Singh, P. W. 2 Dhyan Chand Singh and P. W. 4 Udai Bhan Singh are not reliable and trustworthy witnesses. In our opinion we need to say only this that we have gone through the evidence of all these witnesses and have found that they are wholly reliable. The defense has not able to shake their testimony at all. They have supported the prosecution version in all its material aspect of the matter. They had no reason to falsely implicate them. P.W.1 is the brother of deceased and P. W. 2 is the son of the deceased. P.W. 3 who is an independent witness, his testimony is also found to be reliable and worthy of credence. He had no reason to falsely implicate the appellant Shobh Nath Singh. The testimony of P.W-3 is well supported by the statements of the P.W. 1 and P.W. 2 as well as with the medical evidence. So far as P.W. 1 is concerned he is an injured witness too, as such his evidence cannot be brushed aside easily as the testimony of an injured witness is always rated high. P. W. 1 Surendra Singh who is brother of deceased Ram Sringar Singh is also related to accused appellant Ramapati @ Ram Pati Singh who is his cousin and he is uncle of Lal Sahab Singh and Narendra Singh who are accused in the present case. The testimony of P.W. 1 cannot be disbelieved simply on the ground that there is inconsistency in his medical report with the ocular evidence. The incident had taken place at 10 A.M. and this witness was examined by the Doctor at 11.30 A.M. on the same date who had found lacerated wound caused by blunt object. He was advised for X-ray for the injury no. 4 and the X-ray report had indicated that second, third and fourth metacarpal bone of left hand were fractured. Besides that injuries lacerated wound was found over the head also. All the injuries were found fresh.
The submission of the learned counsel for the appellant that the incident had not taken place as alleged in the first information report rather it would have happened in the early hours of morning around 4 A.M., cannot be accepted because if the injury would have sustained by the injured at 4 A.M. in the morning he could not remain unattended for five-six hours. The medical report confirms about the time of incident, which had taken place at 10 A.M. The grand mother of the complainant had also sustained injury in the said incident was examined at 11.45 A. M. She had also sustained injuries over her head and abraded contusion and swelling over hand and shoulder and the blood was oozing from the wounds. The Doctor had opined that all the injuries were fresh at the time of examination caused by hard blunt object, thus examining the medical report of Amrita Devi also it cannot be said that the incident had taken place at 4 A. M. In the morning and it is highly improbable with such injuries she remained at her house and thereafter her injuries were examined by the Doctor at 11.45 A.M. From both the medical reports of P.W. 1 Surendra Singh and Smt. Amrita Devi the time of occurrence cannot be doubted.
To examine the testimony reverting to the witnesses of P.W. 1 and P.W.-2, which was assailed on the ground that both were interested witnesses being the brother and son of the deceased. We are not at all impressed with this contention that both the witnesses being the inmates of the house are unreliable. They are natural witnesses whose testimony is cogent, credible and trustworthy, hence their testimony cannot be discarded merely on the ground that they are related to the deceased. It is pertinent to mention that these witnesses are not only related to the deceased but also to the accused family and there are remote chances to falsely implicate their own family members leaving behind the actual assailants. The law is settled that if testimony of any witness is found worthy of credence then his testimony cannot be brushed aside on the ground that he is related to the deceased or victim.
Having regard to the observation made by the Hon'ble Apex Court in the case of Dalip Singh and others v. The State of Punjab, AIR (1953) SC 364 the following observations made by the Hon'ble Apex Court in Israr Vs. State of U.P., 2005 (51) ACC page 113, in para 12 of the judgment are also worth mentioning ........ "Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible."
In Masalti V. State of U.P. (AIR 1965 SC 202) Supreme Court observed that "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice."
Recently, in Rupinder Singh Sandhu vs State of Punjab, (2018) 16 SCC 475, it has been reiterated by the supreme court that relationship by itself will not render the witness untrustworthy.
PW-1 Surendra Pratap Singh is the brother while PW-2 Dhyan Chand is the son of the deceased Ram Sringar Singh. But, there is nothing in their statements which can create any amount of doubt. Their deposition is natural and trustworthy as both have been cross-examination at length on every point very minutely by the defence and they have been rightly relied upon by the learned trial court. In Aganu vs State of UP, AIR 1971 SC 296 it has been held that the testimony of a witness, otherwise reliable can not be rejected merely on the basis that he is a related witness.
In the instant case also the testimony of injured P.W. 1 Surendra Prasad Singh and the complainant P.W. 2 Dhyan Chand Singh cannot be brushed aside on the ground that they are near relatives of the deceased as their testimony is wholly reliable, which finds corroboration from the medical and other evidence on record. It has also been argued that one independent witness who is named in the first information report, namely, Virendra Singh was not examined, as such the prosecution story should be discarded.
In our considered view one of the independent witness who is also named in the first information report, namely, Udai Bhan who was present at the time of the incident has been examined as P. W. 4 clearly indicates the manner in which the incident had taken place, which has fully corroborated the medical evidence as well as the testimony of P.W. 1 and P.W. 2. The Hon'ble Apex Court in the case of Appabhai and another Vs. State of Gujrat A.I.R. 1988 SC page 696 in paragraph 11 of the judgment it has been observed as under;
"Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused."
In the case of Krishna Mochi Vs. State of Bihar 2002 SCC (Criminal) 122, the Hon'ble Apex Court in para 31 of the judgment had made the following observations;
"It is a matter of common experience that in recent times there has been a sharp decline on ethical in public life even in developed countries much less a developing one, like hours where the ratio of decline is higher. Even in ordinary case witnesses are not inclined to establish or their evidence is not found to be credible by courts for many old reasons. One of the reason may be that they do not have grudge to establish against an accused because of threats to their life. More so, when the offenders are habitual criminal or hibiscus in the government or close to powers, which may be political economical or other powers including muscle power."
It has been submitted by the learned counsel that due to pending litigation between the parties hence they have been falsely implicated in the present case and in fact 3/4 days prior to the incident there was a marriage in the house of the complainant and on the alleged day of incident in the night dacoity had taken place in the house of the complainant and after ransacking the house the accused persons had assaulted the inmates of the house with the result that two persons had sustained injuries and on account of brutal assault Ram Sringar Singh had succumbed to the injury.
The defence theory in our opinion is quite unnatural and impossible in view of the material evidence on record. If there was a dacoity in the house of the complainant no proof of dacoity was found inside the house by the investigating officer. No blood was found there, if the dacoity would have taken place then other family members would have also been assaulted by the dacoits and if for the sake of argument the dacoits would have assaulted the inmates of the house at about 4 A.M. the injured persons would not have gone to hospital after 5/6 hours and then to implicate the appellants who were belonged to his own family. Thus the alleged dacoity is completely ruled out from the evidence on record.
All the accused persons in their statements under Section 313 Cr.P.C. have taken plea of alibi. The appellant Ramapati @ Ram Pati Singh has stated about that he along with his son Narendra Singh was not present at the time of the incident and they had gone along with bus in the marriage of one Rajesh Kumar Singh to village Diliprai Patti, police station Saidpur, district Ghazipur and in proof of defence he has produced Rajesh Kumar Singh as D. W. 1. His evidence does not inspire confidence to show that the appellant Ramapati Singh and Narendra Singh has proved the alibi, as the evidence of D.W. 1 Rajesh Kumar Singh clearly shows that he was not aware as to in which case he had come to depose before the court and in respect of whose murder the case was and who were the accused persons. Both the appellants Narendra Singh and Ramapati Singh were neither invited from groom or from the side of bride. The bus which was engaged by Rajesh Kumar Singh the name of the driver was Rahmat thus both the appellants were neither the driver of the said bus nor they have any relation in the said village where they have stated that they had gone to attend the marriage, thus the plea of alibi which had been taken is not satisfactory at all to place any credence. The other appellants had also stated that they were not present at the time of incident except Lal Sahab Singh who had stated that he was doing work in Ahmadabad and was falsely implicated in the present case. In fact they had not denied the homicidal death of Ram Sringar Singh who is the family member and the presence of the two prosecution witnesses who are also related to them.
In our opinion the plea of alibi has not been proved at all by the defence. It is a sound principle of law that the plea of alibi has to be proved by the prosecution. The object of recording the statements of the accused under Section 313 Cr.P.C. is to put all incriminating evidence to the accused so as to provide him opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution and at the same time also permit him to forward his own version or reason if he so chooses in relation to his involvement or otherwise in the crime. The statement of the accused can be used to test the veracity of the exculpatory part to the evidence, if any, made by the accused. We are conscious of the fact that conviction of the accused cannot be based merely on the statement made under Section 313 Cr.P.C. as it cannot be held as a substantive piece of evidence. In the present case the accused persons, except Shobh Nath as well as the deceased are belonged to the same family and by giving just a fair denial or lack of knowledge it cannot tilt the case in their favour. Their answer either to separate the case of the prosecution or reflect the element of falsehood in both circumstances, the trial court has rightly drawn adverse inference against them.
In Binay Kumar Singh vs State of Bihar; AIR 1997 SC 322 and State of Haryana vs. Sher Singh; AIR 1981 SC 1021, it has been laid down that the initial burden to prove its case is always on the prosecution and the burden would not be lessened by the mere fact that the accused had adopted the defence of alibi. The plea of the accused persons in such cases needs to be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence.
Alibi is not an exception (special or general) envisaged in the IPC or any other law. It is only a rule of evidence recognized in S. 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. The Latin word "alibi" means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and had participated in the crime. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.
Furthermore, it has been held in Sandeep Vs. State of UP, (2012) 6 SCC 107 and Mukesh Vs. State for NCT of Delhi & Others, AIR 2017 SC 2161 that burden of proving the plea of alibi lies upon the accused. If the accused has not adequately discharged that burden, the prosecution version which was otherwise plausible has, therefore, to be believed. It has been further laid down in Shaikh Sattar Vs. State of Maharashtra, (2010) 8 SCC 430 that plea of alibi has to be established by accused by leading positive evidence. Failure of said plea would not necessarily lead to success of prosecution case which has to be independently proved by prosecution beyond reasonable doubts.
In the present case Rajesh Singh has been produced by the defence as D.W-1 for prove the plea of alibi on behalf of accused Ramapati @ Ram Pati Singh and Narendra Singh as has been discussed in detail. His testimony was not found cogent and convincing by the learned trial court. As such the appellants have utterly failed to establish the plea of alibi. On the contrary, all the prosecution witnesses including one independent witness have proved presence of the appellants and active participation in commission of crime.
The learned counsel has also submitted that the postmortem report of the deceased goes to show that the incident had not occurred at the time as alleged by the prosecution. At the time of the postmortem of the deceased the stomach was empty. Large intestine was half full with faecal matter, thus it is highly improbable that the incident had taken place at 11 A.M. and the stomach was empty. The postmortem report of the deceased Ram Sringar Singh shows that the postmortem was conducted at 5.30 P.M. on the same day by Doctor Raj Narain Pandey P. W. 3. He was cross examined by the defense. He had given his opinion that the death could have occurred at about ¾ A.M. in the morning and he also deposed that rigour mortis was present all over the body, which shows that death has occurred at 4 A.M. in the early morning.
This cannot be accepted as in the postmortem report the Doctor had specifically mentioned about the rigour mortis present in both the limbs. He has stated that death would have occurred within 12 hours from examination. There was no sign of any decomposition as the sign of decomposition takes place only after 12 hours of the death. The Doctor has not found any sign of decomposition.
It was the incident of month of summer as such only stiffness was found in the hands. The large intestine was half filled with faecal matter, which cannot determine that the death had occurred at about 4 A.M. The Doctor was not cross examined as to when the deceased had taken the meal.
In Suresh Chandra Bahri vs State of Bihar JT 1994 (4) SC 309, the Supreme Court referred Modi Medical Jurisprudence and Toxicology 22nd Addition at page 246-247 about determination of time of death. "The points to be noted in ascertaining the time are warmth or cooling of the body, the absence or presence of cadaveric hypostasis, rigour mortis and the progress of decomposition". The time of death can also be ascertained to some extent from the contents of the stomach. The rate of emptying of stomach varies in healthy persons from 2-5-6 hours. The emptying of stomach depends upon the healthy state of body,: consistency of food motility of the stomach, osmotic pressure of the stomach contents, quantity of food in the duodenum, surroundings in which food is taken, emotional factors and residual variations and only very approximate time of death can be given. A meal containing carbohydrates generally leaves the stomach early and the one containing protein, later. Similarly the fatty food delays the emptying time, while liquids leave the stomach immediately after ingestion. Sometimes, the emptying of the stomach remains in abeyance for a long time in state of profound shock and coma.
In Krishnan Vs. State, AIR 2003 SC 2978, the Hon'ble Supreme Court considered the question how to reconcile where medical opinion suggesting alternative possibilities than ocular testimony and the Apex Court has observed thus the ocular evidence being cogent, credible and trustworthy, minor variance, if any, with the medical evidence are not of any consequence. It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witnesses' account which had to be tested independently. It is trite that where the eye witnesses' account is found credible and trustworthy, medical opinion pointing two alternative possibilities is not accepted as conclusive. Eye-witnesses account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility.
Similarly, in Thamman Kumar v. State of Union Territory of Chandigarh, AIR 2003 SC 3975, the Supreme Court has explained the legal principle on the point by making following observation:
"There may be a case where there is total absence of injuries, which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type, which is possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but are not found on that portion of the body where they are deposed to have been caused by the eye-witnesses. The same kind of inference cannot be drawn in three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second category and third category no such inference can straight-way be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of the ocular testimony."
In Rambali Vs. State of U.P. reported in 2004(49) ACC 453 the Hon'ble Apex Court has held that the medical evidence about time for digestion of food and the state of the contents of the stomach during the course of conducting postmortem is not safe criteria for determining the time of occurrence.
At the time of the postmortem of the dead body of the deceased Ram Sringar Singh 12 anti mortem wounds were found on his person. In which seven were incised wounds and according to the prosecution case after giving one blow of spear by accused appellant Lal Sahab when the deceased fell down, he was thereafter severally assaulted with ballam and was also assaulted with lathis, which shows the brutality with which the deceased was murdered. The incident was of 10 A.M. On 17.6.1993 and the postmortem was done at 5.30 P. M. Duration of death has been mentioned as within 12 hours and according to the Doctor there is margin of six hours as such on the basis of the postmortem report also it is established that anti-mortem injuries of the deceased were possibly to be caused on 17.6.1993 at about 10 A.M. At the time of making spot inspection by the Investigating Officer P.W. 8 Kailash Nath Dubey, blood was found lying at the place of occurrence. He took into possession of blood stained and simple earth, blood stained blade of spear and apparel of the deceased, which were kept in separate container of which memos were prepared. The same were sent to the Forensic Science Laboratory. The report of the chemical examiner is on record Exhibit Ka-26 in view of the provision of Section 293 Cr.P.C. this report can be read in evidence without its formal proof. This report shows that human blood was found on spear. Blood stains were found on all the articles i.e. the spear, vest and under wear of the deceased. As such from this report also it is established that the incident had taken place where human blood was found lying.
There are various judgments of the Apex Court wherein it has been held that if the direct testimony of eye witnesses is reliable, the same cannot be rejected on hypothetical medical evidence and the ocular evidence, if reliable, should be preferred over medical evidence. The opinion given by the medical witness need not be the last word on the subject. It is of only advisory character. Such an opinion shall be tested by the court. If the opinion given by one doctor is not consistent with the probability, the court has no liability to go by the opinion merely because it is said by the doctor. Of course, due weight must be given to the opinions given by persons who are experts in the particular subject. Ocular evidence would have primacy unless established to be totally irreconcilable with the medical evidence. Testimony of ocular witness has greater evidentiary value.
The argument of the learned counsel for the appellants is that the incident took place at a time much after what has been alleged by the prosecution. In Mahavir Singh Vs. State of Haryana, (2014) 6 SCC 716, it has been laid down that in case the question is not put to the witness in cross-examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be questioned.
It is well settled that doctor can never be absolutely certain on point of time of duration of injuries and death. In Ramjee Rai Vs. State of Bihar, 2007 (57) ACC 385 (SC), it has been held that the medical science has not reached such perfection so as to enable a medical expert to categorically indicate the exact timing of death. In Ram Swaroop Vs. State of U.P., 2000 (40) ACC 432 (SC), the Supreme Court has further held that the doctor can never be absolutely certain on point of time so far as duration of injuries and death are concerned.
The injury reports of Surendra Pratap Singh (P.W-1) and Smt. Amrita Devi have corroborated the prosecution version on the point of date and time of occurrence. The deposition of Surendra Pratap Singh (P.W-1) shows his presence during incident which is fully established because of the injuries sustained by him. He has narrated the entire incident in detail.
It is settled principle of law that the evidence of the injured witness is put at a very higher footing and without any substantial reason the statement of such injured witnesses cannot be disbelieved.
The plea of motive has been more strongly raised from the side of accused Shobh Nath Singh as he does not belong to the family of other accused persons and he had no interest in the cutting of bamboos.
It has also been argued by the learned counsel for the accused appellant Shobh Nath that as he was a witness in a criminal case against the complainant he has been falsely implicated in the present case.
The prosecution witnesses knew him, identified him at the time of commission of offense and was present with lathi and extorted particularly with appellant Rampati Singh to kill Ram Sringar Singh and had actively participated in committing offense. As observed in Ch. Dulla Reddy and others Vs. State of Andhra Pradesh JT 1993 (3) SC 633 Section 34 I.P.C. is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused. The sequence of event and the manner in which the occurrence took place manifest pre-concerted plan and prior meeting of mind even after causing injury with ballam by Lal Sahab Singh, the other accused persons who were armed with lathi had assaulted him. All the accused persons are vicariously responsible for the act of the other and have been rightly convicted by the trial court.
It has been argued by the learned counsel on behalf of other accused appellants that on account of enmity the appellants have been falsely been implicated in the present. It is pertinent to mention that where case is based on direct evidence it is not incumbent for the prosecution to allege or prove motive. It can, however, be pointed out that even then the motive was very much present with the accused persons. There was enmity with regard to the cutting of bamboos which were owned by the complainant.
In the instant case the motive for the assault existed because the accused appellants were annoyed when they were restrained not to cut the bamboo. The accused appellants armed with lathi-danda and ballam were present and cutting the bamboos from the disputed 'Baanskothi'. The complainant's father had restrained the accused appellant Ramapati Singh, Ram Sringar Singh, the father of the complainant is the cousin of Ramapati Singh and the sons of Ramapati, Lal Sahab, and Narendra Singh accused in the present case were cutting bamboo. The complainant's father restrained his cousin Ramapti Singh, his sons and Shobh Nath Singh. They started hurling abusive language and threatened that they will cut the bamboo. They uttered ........ lkys dkVwxk tks djuk gS dj yks -
Hearing this the complainant, his uncle Surendra Singh and his grand mother Amrita Devi reached there besides Udai Bhan Singh, Virendra Singh also rushed to the spot at this Ramapati and Shobh Nath had exhorted that ---- "jke Jhxkaj dks tku ls ekj Mkyks ftlls lkjk >xMk [kRe gks tk;s---------
On this exhortation Lal Sahab had assaulted Ram Sringar Singh with his spear and after receiving the injury caused over his neck he fell down thereafter Lal Sahab had given several blows to his father when his uncle Surendra Singh and grand mother Amrita Devi rushed towards Ram Sringar Singh, Ramapati @ Ram Pati Singh, Narendra Singh and Shobh Nath had also assaulted them with lathi. They had also assaulted to his father with lathi. All the appellants after committing the crime had immediately escaped from the place of occurrence.
From the perusal of the FIR, it is clear that motive has been set out in the FIR itself and the witnesses have proved it. When the complainant's father resisted for cutting the bamboos the accused appellants were annoyed as they are already present there along with lathi and ballam and in a pre-planned have brutally assaulted the complainant's father Ram Sringar Singh. When his brother Surendra Pratap Singh (P.W-1) and mother Smt. Amrita Devi went ahead to save them, they were also assaulted with lathi. The accused Shobh Nath Singh had equally participated in the incident and had exhorted along with accused Ramapati @ Ram Pati to kill Ram Sringar Singh. As such all the accused appellants have actively participated in the commission of crime. Therefore, the learned trial court has rightly concluded that even though it is not necessary to establish motive in case of direct evidence, even then the prosecution has been able to prove motive for the commission of the offence.
In Saddik Vs. State of Gujarat, (2016) 10 SCC 663, it has been held that motive is not a sine qua non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence the element of motive does not play such an important role as to cast any doubt on the credibility of the prosecution witnesses even if there be any doubts raised in this regard. If the eye-witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused.
It has also been argued on behalf of the appellants that PW-2 being son of the deceased did not receive any injury nor has made any attempt to save his father and uncle. It is notable of this point that the statement of the first informant Dhyan Chand who is the son of the deceased was recorded during trial in the year 1998 and at that time he has recorded his age as 19 years. The date of occurrence was 17.6.1993, hence he was hardly 14 years of age. As such the accused persons were allegedly armed with deadly weapon he was enough frightened to see his father being killed and uncle as well as mother sustained injuries. In such a tender age, the conduct of the witness and his testimony cannot be disbelieved.
In Sucha Singh Vs. State of Punjab, (2003) 7 SCC 643, where eye witnesses did not come to the rescue of the deceased, it has been held that such reaction, conduct and behaviour of the witnesses cannot be a ground to discard their evidence when they are unarmed and the accused are armed with deadly weapons. All the prosecution witnesses have in a very natural way stated about the whole incident and have stated that the accused persons on the date, time and place of occurrence caused death of Ram Sringar Singh by causing injuries with ballam (spear) and sharp edged weapon and caused injuries with lathi to Surendra Pratap Singh and Smt. Amrita Devi.
Learned counsel for the appellants has also argued that the investigation in the present case is highly defective as it is not fair and impartial. After lodging of the FIR if there is any defect in investigation, if any cannot give any advantage to the defence unless such defect goes to the very root of the prosecution version.
In Rupinder Singh Sandhu (Supra), it has been remarked by the Apex Court that even if there is lapse in investigation, the same cannot be used to give advantage to accused persons in cases where prosecution has led credible evidence, as it is difficult to determine that the investigative defect occurred due to general inefficiency of system or deliberated to shield the accused. In our considered view, the defect pointed out on behalf of the defence appears to be very minor and insignificant in nature and no force can be attached to that part of the argument.
Surendra Pratap Singh was examined as an injured witness (P.W-1). Law gives a very higher value to a witness who has sustained so many injuries including grievous injury in the same incident. As held in State of Haryana Vs. Krishan, AIR 2017 SC 3125, deposition of an injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies for the reason that his presence on the scene stands established in the case and it is proved that he suffered the injuries during the incident. Minor variation in the statement of an witness shows that the witness is not tutored and is reliable.
In Maksudan vs State of UP, 1983 SCC (Cri.) 176 that the testimony of injured witness is to be kept on higher footing as the presence of such witness at the place and time of occurrence is established because of the injury.
The learned counsels for the appellants have pointed out discrepancy in the testimony of witnesses. Some sort of contradiction, improvement, embellishment is bound to occur in the statement where one family member has died on the spot and two others have sustained injuries. In such a horrendous situation the witnesses are not supposed to be perfectionist to give the exact account of the incident. As laid down in State of U.P. v. Naresh; 2011 (75) ACC 215) (SC), in all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
In Gosu Jayarami Reddy and another Vs. State of Andhra Pradesh; (2011) 3 SCC(Cri) 630, it was observed that Courts need to be realistic in their expectation from the witnesses and go by what would be reasonable based on ordinary human conduct with ordinary human frailties of memory and power to register events and their details. A witness who is terrorized by the brutality of the attack cannot be disbelieved only because in his description of who hit the deceased on what part of the body there is some mix-up or confusion.
In nut-shell some discrepancies are bound to occur because of the sociological background of the witnesses as also the time gap between the date of occurrence and the date on which they give their depositions in Court.
The plea of defence of false implication on account of enmity and family dispute has been rightly disbelieved by the learned trial court. The documents which have been filed to show enmity by the defence, but, they could not render the account of trustworthy eyewitnesses as untrustworthy. Moreover, the accused appellants were close relatives and family members with the complainant-party, as such there is no reason why they will be falsely implicated by complainant's side.
It has been argued by the learned counsel for the appellants that despite alleged incident had taken place in a broad-day-light, the other witnesses as mentioned in the FIR have not been examined. In this regard Hon'ble the Apex Court in the case of Bipin Kumar Mondal v. State of West Bengal AIR 2010 SC 3638 has held that in-fact it is not the number and quantity but quality that is material. Section 134 of The Evidence Act provides that no particular number of witnesses is required for proof of any fact. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy. The time honoured principle is that evidence must be weighed and not counted. The legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is open to court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence.
From the above prolix and verbose discussions, we are of the view that the learned trial court has rightly concluded that the prosecution has been able to prove the charges against the appellants beyond shadow of any doubt. The whole incident has been narrated by the eyewitnesses in a very natural and spontaneous way. It has been establish from the medical evidence that the accused Lal Sahab Singh who was armed with ballam has caused injury to the deceased as many as 8 incised wounds while other accused persons have also assaulted him with lathi. Two injured persons; one P.W-1 Surendra Pratap Singh had sustained as many as 14 injuries caused by hard blunt object resulting into fracture of metacarpal bones of left hand and another Smt. Amrita Devi, the mother of Surendra Pratap Singh (P.W-1) had also sustained 4 injuries on her person on the exhortation of accused Ramapati @ Rampati and Shobh Nath Singh who were also equipped with lathis goes to establish that the accused persons had shared common intention to kill the deceased and caused injuries to the abovenamed two persons.
Judicial precedents with regard to common intention stand well entrenched by the Apex Court, it will be sufficient to refer State of Rajasthan vs. Shobha Ram, (2013) 14 SCC 732, observing as follows :-
"10. Insofar as common intention is concerned, it is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of crime and also from prior and subsequent attendant circumstances. As observed in Hari Ram Vs. State of U.P. : (2004) 8 SCC 146, the existence of direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances.
Therefore, in order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence before a person can be vicariously convicted for the act of the other."
The common intention is a state of mind. It is not possible to read a person's mind there can hardly be a direct evidence of common intention. The existence or non existence of common intention amongst the accused has to be deciphered cumulatively from their conduct and behaviour in the facts and circumstances of each case. Events prior to the occurrence as also after and during the occurrence are all relevant to deduce if there existed any common intention. The Hon'ble Apex Court in Ramaswami Ayyangar Vs. State of Tamilnadu, 1976 Volume 3 SCC page 779 explaining the essence and purport of common intention it was observed as follows;
" The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim or may otherwise facilitate the "the common of crime". Such a person also commits an 'act' as much as his co- participants actually committing the planned crime".
There existed sufficient evidence to decipher the common intention. A well reasoned order of the learned trial court cannot be said to be based upon conjecture and surmises.
It is also clear that the FIR in respect of the incident was lodged without any delay and even if for the sake of argument if there was any delay, the facts and circumstances have been explained by the prosecution. The place of occurrence has also been established. There is no substantial contradiction or discrepancy in the evidence to show that they are tutored. The testimony of the witnesses has been examined by the prosecution which is natural, credible and trustworthy.
The finding recorded by the trial court is based on appreciation of evidence in correct perspective and sentence awarded to the accused appellants does not suffer from any illegality or perversity. Hence we do not find to interfere with the finding recorded by the trial court whereby convicted the accused appellants and adequately awarded sentence.
All the above appeals having no substance, are accordingly dismissed. The conviction and sentence awarded to the appellants, namely, Ramapati @ Ram Pati Singh, Lal Sahab Singh, Narendra Singh @ Pappu and Shobh Nath Singh by learned Trial Judge vide order dated 24.3.1999 passed by the 4th Additional Sessions Judge, Jaunpur is hereby maintained and affirmed.
The appellants Ramapati @ Ram Pati Singh, Lal Sahab Singh, Narendra Singh @ Pappu and Shobh Nath Singh are on bail. Their personal and surety bonds are hereby cancelled and they are directed to surrender before the Chief Judicial Magistrate concerned immediately to serve out the sentence imposed upon them by the trial court and affirmed by us. In case they fail to surrender, as directed above, the Chief Judicial Magistrate concerned is directed to take coercive action against them in this regard and necessary entries be maintained in the relevant register.
The copy of the judgment be placed on record of the connected criminal appeals as part thereof.
Office is directed to send copy of the judgment alongwith lower court record to CJM as well District Judge forthwith compliance.
Order Date :-24.5.2019
M. Tariq
(Virendra Kumar Srivastava, J) (Naheed Ara Moonis, J)
