Gulzari Lal And Others vs State Of U.P.
2019 Latest Caselaw 5194 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment reserved on 30.4.2019
 
Judgment delivered on 30.5.2019
 
Court No. - 1
 

 
Case :- CRIMINAL APPEAL No. - 2232 of 1983
 

 
Appellant :- Gulzari Lal And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- T.S.Dabas,M.P. Tiwari,Prakash Chandr Srivastava,R.L.Verma
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

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

1. Heard Sri P.C. Srivastava, Advocate assisted by Sri M.P. Tiwari, learned counsel for the appellants and Sri Pawan Shukla, learned A.G.A. for the State.

2. This criminal appeal has been preferred by the accused-appellants Guljari Lal, Madan, Virendra, Ravi Shankar and Dori Lal against the judgment and order dated 20.9.1983 passed by Special Judge/Additional Sessions Judge, Bareilly in S.T. No. 476 of 1981, whereby accused-appellant Virendra has been convicted and sentenced under Section 302 IPC with life imprisonment; accused-appellant Guljari Lal, Madan Lal, Ravi Shankar and Dori Lal have been convicted under Section 302 read with Section 149 IPC and sentenced with life imprisonment; accused Virendra has been convicted under Section 148 IPC and sentenced with one year rigorous imprisonment and other accused have been convicted under Section 147 IPC and sentenced with six months rigorous imprisonment and all the above accused-appellants convicted under Section 323 read with Section 149 IPC and sentenced with three months rigorous imprisonment. It is further directed that all the sentenced shall run concurrently.

3. In brief the case of the prosecution as disclosed in the F.I.R. is that informant Deena Nath (PW-1) s/o Mahadev Mistri, resident of village Ladhi Bazar, P.S. Gorya Kodhi, District Siwan, State of Bihar, was working as fireman in North-East Railway Loco Shed, Bareilly city and was living in old Loco Colony in Quarter No. L/2-A. Accused Guljari Lal was employed in N.E. Railway Workshop, Izzatnagar and was also living in the said colony in Quarter No. L/4B. About 7-8 months ago, Guljari Lal and his sons had beaten Balram Singh of the District of informant, whereon the informant had dissuaded him from indulging in such kind of high-handedness, since then they were inimical towards him. At about 10:00 pm, Guljari Lal called informant at his home and when informant reached near his quarter, he found Guljari Lal and his sons namely, Madan, Virendra, Ravi Shankar and his relative Dori Lal present there; Guljari Lal told informant that he was defaming his sons. At this informant rebutted and stated whom he had stated about it, right then, Guljari Lal instigated "pakad lo aur maro", then all these accused started assaulting him and when informant raised alarm, Sri Ram Abhilakh Singh S/o Dal Bahadur Singh and Shivnath S/o Shiv Mangal, rickshaw puller and Sudama Singh S/o Sri Chandraraji Singh and his wife Smt. Radha Rani and many other persons of the Mohalla had arrived there and Sudama Singh tried to save him from being beaten, then Guljari Lal told that he is expressing too much sympathy, let him be taught a lesson first and then Virendra taking out his knife ran to assault him, then informant and Sudama Singh fled from there, but all these accused caught hold of Sudama Singh in the lane adjacent to the quarter of Basant and was thrown down and Virendra made a blow by knife at the neck of Sudama Singh. When Smt. Radha Rani rushed to save him, Madan and Dori Lal had thrown her down by which, she received many injuries. This occurrence was seen by witnesses in the light of bulb, which was there on the Pakad tree. Sudama Singh became unconscious and blood sprang out and when the people challenged the accused, they fled towards quarters. Sudama Singh and Smt. Radha Rani were taken to Government Hospital in injured condition on a rickshaw, therefore, informant prayed that a report be lodged and an action be taken against the guilty persons.

4. Upon the said written report (Ext. Ka-1), case crime no. 240 of 1981 was registered against the accused Guljari Lal, Madan, Virendra, Ravi Shankar and Dori Lal under Sections 147 and 307 IPC at P.S. Prem Nagar, District Bareilly on 28.7.1981 at 4:25 am, by H.M. Rishipal Singh and he prepared chik F.I.R. (Ext. Ka-3) and made entry of this case in G.D. at report no. 39 same day, which is Ext. Ka-4.

5. Investigation of this case was handed over to S.I. Satyapal Singh (PW-4), who recorded statement of Deena Nath (informant) at the P.S. itself and, thereafter, he went to the place of occurrence with the informant which was located in Loco Railway colony and having reached there inspected the place of incident and prepared site plan, which is Ext. Ka-5. At the place of occurrence, on the tree of Pakad, a bulb was hanging and thus there was lot of light. He collected blood stained soil and ordinary soil from the place of occurrence in separate containers and prepared its Fard, which is Ext. Ka-6. He made search of all the accused and, thereafter, all accused could not be found. On 29.7.1981, he reached District Hospital, Bareilly and found out about Sudama Singh, there then he came to know that he had died. His dead body was found kept in the mortuary of the hospital. He recorded statements there of Shivnath, Ram Abhilakh etc. and that of Dr. M.K. Gupta (PW-5). He also recorded statement of injured Radha Rani, who was weeping in morning at the demise of her husband because of which, her statement could not be written on that date. After sending the written report to P.S. Prem Nagar, he converted the case from Section 307 to Section 302 IPC and its mention was made in G.D. at report no. 11, date 29.7.1981, which is Ext. Ka-6. Thereafter, he made search for the accused and accused Virendra met him all of a sudden in Bramhpur Mohalla and was arrested there and was brought to the P.S. Premnagar, where he was lodged in Hawalat and his statement was recorded. He also received medical reports of the injured Deena Nath at the P.S. and also came to know that accused Guljari Lal and Dori Lal had been arrested and were sent to jail. He made raid for arresting accused Madan and Ravi Shankar but could not be found. He, thereafter, recorded statement of Smt. Radha Rani and took in possession the blood stained clothes of her i.e. Dhoti, which is material Ext. 3 and blouse, which is material Ext. 4, which were blood stained and made its Fard, which is Ext. Ka-2, upon which thumb impression was made by Smt. Radha Rani and was signed by PW-4. He came back to the P.S. and the sealed bundle containing the case property along with sample seal were deposited there. He received the papers relating to panchayatnama and post-mortem on the same day. On 3.8.1981, accused Madan surrendered in court and was sent to jail. On 11.8.1981, he recorded statement of accused Guljari Lal and on 6.9.1981 he submitted charge sheet against accused Guljari Lal, Madan, Virendra, Ravi Shankar and Dori Lal, which is Ext. Ka-7. The blood stained and ordinary soil kept in separate containers, were sealed on the spot. The container containing blood stained soil is material Ext. 5 and containing ordinary soil is material Ext. 6.

6. On the above evidence, the trial court has framed charges against accused Guljari Lal, Madan, Ravi Shankar, Dori Lal, under Section 307 read with Section 149 and 323 read with Section 149 IPC in May, 1982 while against co-accused Virendra a separate charge on 4.5.1982 has been framed under Section 148, 302/149 and 323/149 IPC, to which, they pleaded not guilty and claimed to be tried. Thereafter, on 30.8.1983, against Virendra, a separate charge under Section 302 IPC was framed to which, he pleaded not guilty and claimed trial.

7. In order to prove its case, from the side of prosecution, Deena Nath as PW-1, Shivnath as PW-2, Radha Rani as PW-3, Satyapal Singh as PW-4, Dr. M.K. Gupta as PW-5 and Dr. V.K. Endly as PW-6, were examined.

8. Thereafter, the prosecution evidence was closed and the statement of accused were recorded under Section 313 Cr.P.C. on 8.8.1983, in which they have taken the plea of false implication due to enmity. From the side of defence Sri M.C. Sharma has been examined as DW-1.

9. Accused Guljari Lal has additionally stated that at the time of occurrence he was at the temple and not at the place of incident.

10. Accused- Dori Lal additionally has stated that he has old tea shop near Loco Colony and near that, near temple, there is tea stall of Sanjeeva Puraliya. Sudama Singh and Sanjeeva Puraliya were friends. Sudama Singh wanted that this accused's (Dori Lal's) tea shop should be closed so that the tea shop of his friend should flourish. On the date of incident, the deceased had come to his shop for having tea and had not made any payment. On the date of incident, at about 9:00 pm, Deena Nath and Sudama Singh had taken tea at his shop and had gone without paying money and when he asked for it, they started quarreling and issued threats to him. After sometime, he closed the shop and went to the place of his father-in-law Chhotey Lal and from there he went to the place of his Mamiya Sasur (maternal father-in-law- Guljari Lal's place), there, Sudama Singh and Deenanath came at about 10:00 pm abusing him and entered his quarter despite being restrained and slapped him, at which he stepped back. Ravi Shankar and Virendra came forward and tried to throw them out. When Ravi Shankar received injuries then he went to the P.S. along with written report to lodge a case, there the inspector told him that he should take Ravi Shankar forthwith to the P.S. He himself went to the hospital but report of Deena Nath had been written prior to his report, although he had reached there first. Blood was lying in the quarter of Guljari Lal, which was not seen by police in collusion with Deena Nath. He and Guljari Lal have enmity with maternal uncle of Shivnath.

11. Accused Virendra additionally has stated that on the date of incident, in the night, at about 10:00 pm, Deena Nath and Sudama Singh had come to beat Dori Lal, at which he had stepped back, then he and Ravi Shankar came forward and tried to oust them from the quarter but in the meantime Sudama Singh took out a knife from his waist and gave it to Deena Nath and stated that both of them were having too much sympathy, hence they should be dealt with. At this, Deena Nath made a blow of knife in the abdomen of his brother- Ravi Shankar with a common intention to kill by which, he fell down in the courtyard. The blood came out of the said wound. After falling down of Ravi Shankar, Sudama Singh told Deena Nath that Virendra has been left, he should not be let off and that he should finish him of by making blow of knife. Sudama Singh tried to catch hold of him and in the meantime, one knife, which was lying nearby, meant for cutting vegetable, happened to come in the hand of this accused, by which to defend his brother, he made assault upon Sudama Singh. Deena Nath took Sudama Singh from his quarter to his own quarter but before he could reach his quarter, Sudama Singh fell down. There was no pole having bulb in old Loco Colony or any Pakad tree. The light of quarters does not go out of the quarters. Radha Rani came near her husband weeping and fell down upon her husband. None of the accused had assaulted her.

12. Accused- Ravi Shankar has additionally stated that Deena Nath and Sudama Singh started beating Dori Lal and Dori Lal stepped back a little. He (this accused) and Virendra tried to throw them out, at which, Sudama Singh gave knife to Deena Nath and he inserted the said knife in the abdomen of this accused, by which, he fell down. Thereafter, Sudama Singh tried to catch hold of Virendra and told Deena Nath that he (this accused) should also be finished and then Virendra picked up a knife and tried to defend himself, which hit Sudama Singh.

13. On the basis of evidence on record the trial court has convicted the accused-appellants and sentenced them as mentioned above.

14. Now we have to see in the light of arguments made by the learned counsel for the appellants as well as after re-appraisal of the evidence on record as to whether the impugned judgment deserves to be interfered with or not.

15. It has been argued by the learned counsel for the appellants that accused-appellants Guljari Lal and Dori Lal have died and their appeals have been abated vide order dated 30.4.2019. The accused-appellants Virendra and Ravi Shankar have been held to be juvenile by the Juvenile Justice Board vide order dated 20.10.2018 and, therefore, appeal of only accused-appellants Madan, Virendra and Ravi Shankar remains with us for consideration. He further argued that the trial court has misread the evidence and that there is no explanation given by the prosecution side of the injuries sustained by the appellants and that the said sentence is too severe and prayer is made that the conviction be set-aside.

16. On the other hand, learned A.G.A. has vehemently argued that the judgment is in accordance with the evidence on record. The accused have brutally murdered the deceased Sudama Singh and have caused injuries to his wife Smt. Radha Rani by knife in prosecution of common object of unlawful assembly formed by them with an object to murder the deceased- Sudama Singh, therefore, the judgment needs to be upheld.

17. In order to appreciate the arguments, we have to re-appraise the evidence on record.

18. PW-1 Deena Nath, who is informant of this case, has stated in examination-in-chief that he knows accused Guljari Lal, Virendra, Madan, Ravi Shankar and Dori Lal since prior to the date of occurrence very well, who are present in court as well. Madan, Virendra and Ravi Shankar are real brothers and Guljari Lal is their father. The accused Dori Lal is son-in-law of 'Bahnoi' (brother-in-law) of accused Guljari Lal. Guljari Lal and all the above named three sons remained in one quarter only, while Dori Lal lives in old Loco Colony with his father-in-law. PW-1 lives in quarter no. L/2A, the exit gate of which lies in the east and in front of that door, there is a tree of Pakad. To the north of his quarter, is situated quarter of Chhotey Lal, who is father-in-law of accused Dori Lal and in the same row, towards north lies quarter of Abhilakh and to the north of that adjoining, is quarter of accused Guljari Lal. To the north of quarter of Guljari Lal, is Dhawan Guard and to the north of that is quarter of his brother Om Prakash, who has died. All these quarters are in one row. There is a drain in front of all these quarters and entire colony is called old Loco Colony. In the east, the quarters which are constructed, in them, the southern quarter is that of Komal. The witness Shivnath (PW-2) is Bhanja (sister's son) of Komal and lives with him only in the said quarter. To the north of this quarter is situated quarter of Pramod Kumar and Yogendra Kumar Singh thereafter of Mishri Lal and to the north of his quarter is a lane in which there is one Kothari and to the north of that lies quarter of Basant Lal and to the north of that lies quarter of Sudama Singh (deceased). He is employee of North-eastern Railway on the post of Second Fireman and at the time of occurrence, he was living in the quarter no. L/2-A and is original resident of Siwan, Bihar. Sudama Singh (deceased) is resident of District Deoria, U.P.. Sudama Singh (deceased) was working in Railway workshop and Radha Rani is his wife. At the time of occurrence, Sudama Singh was living with his wife and small daughter in his quarter, while he (this witness) was living with his wife and small children.

19. He has further stated that Guljari Lal (accused) works in Railway Workshop which is known as carriage Wagon. His sons are bad elements, who used to indulge in quarrels. He stated that about 7-8 months ago a quarrel had happened between the sons of Guljari Lal and Guljari Lal on the one hand and Balram Singh on the other, in which these persons had beaten Balram Singh, who was resident of District of PW-1. He (PW-1) had counselled Guljari Lal not to indulge in any high handedness, since then he was having animosity towards him. He has further stated that the present occurrence happened about one year and three and half months ago in the night at about 10:00 pm. PW-1 was in his quarter. The accused Guljari Lal had got him called through his son Ravi Shankar with whom, he went to the house of Guljari Lal and when he reached in front of his quarter, he met there four accused persons. Ravi Shankar had accompanied him. Guljari Lal told him that he (PW-1) was defaming his sons, at this PW-1 told Guljari Lal that call that person before whom he denounced his sons, then Guljari Lal exhorted "Pakad Lo and Maro" then all these persons started beating him with fists and kicks and also slapped him and when he screamed, Ram Abhilakh Singh, Shivnath Singh, Sudama Singh, Radha Rani and various other persons came from their quarters. There was no light except the light of bulb, which were there in the quarters and one bulb was also there on tree of Pakad by which there was light. Sudama Singh came there to defend him, then Guljari Lal told that he has too much sympathy, hence he should be taught a lesson, in the meantime, Virendra took out knife and ran after him, at this PW-1 and Sudama Singh fled from there towards the quarter of Basant. All the five accused followed PW-1 and Sudama Singh to the quarter of Basant, in front of lane and caught hold of Sudama Singh. Virendra assaulted Sudama Singh by knife at his neck. Radha Rani came there to save Sudama Singh. Madan and Dori Lal had thrown down Radha Rani and had beaten her with kicks and fists by which she received injuriess. When the witnesses challenged, all the five accused they fled towards house of Guljari Lal. After getting injured Sudama Singh fell down in the lane situated by the quarter of Basan Lal near the western drain where lot of blood had spread. His clothes were totally wet with blood. In the light of electricity, PW-1 and the witnesses have seen this occurrence. After the accused had fled from there, PW-1 and all the witnesses reached near Sudama Singh and found him in unconscious and badly injured condition. Shivnath used to run rickshaw and he was asked to take Radha Rani and Sudama Singh to Government Hospital. PW-1 has further stated that he has studied up to class 9th and has written report of this incident in his own hand writing, which is Ext. Ka-1. Premnagar P.S. was about 2 km away from the place of incident where he had given this report. By the said injuries Sudama Singh died in the night at about 12:00 -1:00 a.m. in civil hospital. PW-1 had gone to the hospital. He has further stated that he was also medically examined.

20. In cross-examination, this witness has stated that after the accused fled from there, he along with others reached the place of incident, where deceased Sudama Singh was lying and remained there for about 10 minutes and during this period, no other witness came there except the witnesses, whose names have been disclosed by him above namely, Ram Abhilakh Singh and Radha Rani. Radha Rani continuously kept weeping. She was thrown down by which, she had also received injuries on her cheek and below her eyes, from where blood had oozed out. He himself had not suffered any manifest injury as he was beaten only by kicks and fists. He had written the report of this incident in his quarter in about 10 minutes time and when he came out of his quarter, the people had already taken away the deceased Sudama Singh. He met Sudama Singh on a rickshaw about half km away from his quarter in which Radha Rani (PW-3) was also sitting, which was being driven by Shivnath (PW-2). Munna was going on foot behind the rickshaw.

21. He has further stated that after giving written report Ext. Ka-1 at the P.S., he stayed there for about one hour, during which inspector S.P. Singh reached there who had interrogated him at the P.S.. Fifteen minutes after his reaching at the P.S., accused-Dori Lal had also reached there. No interrogation was made of Dori Lal by Inspector in his presence. He had told I.O. that Dori Lal was accused in this case but he was not taken in custody by the police, rather PW-1 was arrested at the police station. He had not seen anybody with accused Dori Lal. After he having been arrested, he was sent to jail on the third day and, therefore, had to remain confined in Hawalat at P.S. Premnagar. After his entry in Hawalat, about 1:00 to 1:30 hours, Dori Lal and Guljari Lal were also brought in Hawalat, who were confined there for one night and were sent to jail on the next day. This witness has further stated that the bulb was glowing in the quarters, which was written by him in the written report (Ext. Ka-1), but if the same is not found written, he cannot tell its reason and further explained that he was extremely nervous because of which he may not have written it but he had certainly stated about it to the Investigating Officer, but if that is not found written in his statement he cannot tell its reason. This witness has pointed out one person in the court namely, Dhawan and his name was inquired, then he stated that his name was Dhawan, who was guard in Railway and denied that his name was Om Prakash but he does not know the full name of Dhawan. He also could not say whether Dhawan and Sajjan were one and the same person. Sajjan was Guard deployed/posted at Bareilly City Station. The quarter of the accused Guljari Lal was adjoining towards north of the quarter of Sajjan. He further stated that he had not written in his report that Sudama Singh was thrown down, rather he had written that he was held and was thrown down. He had also written in his report that Radha Rani was thrown down but he cannot tell why the same is not found written in the said report. He had also written in the report that Guljari Lal had called him but it was omitted from being written in the report that he was called through Ravi Shankar but about it he had stated before I.O., but he cannot tell as to why the same was not found recorded in his statement. He had also written in the report that when he reached near the house of Guljari Lal, all the five accused were present and on his own he further stated that because Ravi Shankar had accompanied him, only four accused were present there and because of this reason, he had written in the report that all the five accused were present there. In fact, when he had reached there, the remaining four accused were there while one accompanied him. He had also written in the report that all the accused started beating him, whereon he raised alarm, then Ram Abhilakh Singh and many others persons of the Mohalla came there, of the said colony. He further stated that in his earlier statement he had correctly stated that no other person except the three witnesses were present there and on his own he further explained that by that, he meant that when he fled from there, the accused chased him and then the accused persons caught hold of Sudama Singh (deceased) near the quarter of Basant and was thrown down and at that place. The three witnesses namely, Ram Abhilakh, Shivnath and Radha Rani, apart from him were present at the time, when he was being beaten and before his fleeing from there. At that place, where near the house of Guljari Lal, he was beaten, there, above named three witnesses had reached apart from other persons namely, Ishwari Prasad and Chandan etc. because of which, he had written that other persons had reached there at the time when he was being beaten. When he fled, Ishwari Prasad and Chandan did not flee and when Sudama Singh fell down, at that time these witnesses had not reached there. He denied that report was written by him in consultation with police to defend himself.

22. This witness has stated that he had written in the report that the sons of accused- Guljari Lal were rogues, who were disposed to picking up rows, but if the same is not found written in the written report, he cannot tell its reason.

23. Further this witness has stated that the tea shop of accused- Dori Lal was situated about 100 paces away from the colony and near that, towards west of it, there is another tea shop but he does not know whether the same belongs to Sanjeeva or not. He denied it that Sanjeeva being 'Purabiya' (people of eastern region), PW-1 and deceased Sudama Singh wanted Dori Lal to shift his tea shop from there so that the tea shop of Sanjeeva would flourish. Further this witness has stated that he does not know that Rama Shankar is son of Komil and he used to live in the quarter of Komil or not but it is right to say that Shivnath Singh (PW-2) is Bhanja (nephew) of Komil. He came to know about this during the proceedings of this case. He knows Aziz Khan @ Munna but does not know that on 11.11.1975 Ravi Shankar, Aziz @ Munna had assaulted Madan Lal (accused) by knife, report regarding which was lodged by Guljari Lal (accused) but today he has come to know that both these persons had to face a criminal case in this regard but were acquitted from court. He does not know that accused Guljari Lal had given any application against witness Shivnath, which was inquired into by police and since then the relationship between Guljari Lal and Shivnath became sour. Further this witness has stated that he does not know that in 1980, deceased Sudama Singh was caught at Station Bhojipura with bottles of illegal liquor and was challaned under Section 60 of Excise Act or not. He also denied any knowledge that Ram Ashre and Prem Singh were also caught with him and against them the case is still going on. He denied the suggestion that deceased Sudama Singh used to deal in trade of illegal liquor and PW-1 used to consume liquor with him. He admitted that accused Dori Lal had lodged a report against him (PW-1) regarding which case is still pending in court, in the said case the deceased Sudama Singh was also shown accused.

24. It would be pertinent to refer hear the details of the site plan so as to appreciate the evidence of this witness with respect to place of occurrence in a better way.

25. In the site plan in quarter no. L/4-B belonging to accused Guljari Lal by 'X' is shown the place where mar-peet took place and by 'arrow' is shown direction in which the informant and Sudama Singh (deceased) fled after having been shown the knife by the accused and at place shown by 'A' the deceased Sudama Singh is shown to have fallen where he was assaulted by knife by the accused and blood was also found lying there which was taken by police in possession and a lane is also shown to the east of it. By 'B' is shown the place where Smt. Radha Rani (PW-3), who had come to rescue her husband Sudama Singh, was thrown down and was beaten.

26. PW-1 has stated that the door of the quarter of Guljari Lal opens towards east and towards east of it, at about 3-4 paces away, is a drain and further east of this drain, is some vacant land and, thereafter, goes a road. The gap between the drain and the road is about ten paces. The said road is about 6 to 7 paces in width and towards east of this road, at a distance of about 6 to 7 paces, lies the quarter. In front of the quarter of accused-Guljari Lal, towards east, is the quarter of Sudama Singh (deceased) and adjoining to the quarter of Sudama Singh, is the quarter of Basant Lal towards south and to the south of the quarter of Basant Lal, lies a lane. The distance between the quarter of Sudama Singh and Guljari Lal, is about 30-40 paces. The mar-peet had taken place about five to six paces away from the quarter of Basant Lal towards west, which took place at a distance of about four to six paces towards east of road.

27. If we read this statement in the light of site plan, it is found absolutely proved as the statement of PW-1 is fully in consonance with the site plan, therefore, this witness has proved the place where this incident happened, in which the occurrence started at place 'X' in the house of accused Guljari Lal, where informant was called and when he fled after being shown knife by the accused side, towards north-east direction and at place shown by 'A', the deceased Sudama Singh had come to rescue of informant, then he was also assaulted by knife and to the north it is shown place 'B' where his wife Radha Rani was thrown down by accused.

28. This witness has further stated that there is one electricity pole to the east of his quarter on the road and denied the suggestion that outside the quarters, there was no light of any kind. He has further stated that Suraj Singh, whose quarter is situated to the north of quarter of deceased Sudama Singh, used to hang one bulb by the Pakad tree in the light of which his son used to study. Whether the said bulb was taken by the I.O. in possession he does not know and he has denied that there was no such Pakad tree on which such a bulb used to glow and that there was no light, when this occurrence happened. He does not know that accused Guljari Lal had lodged any report against Balram Singh and Ravindra Singh under Section 323 and 506 IPC. He never met Balram Singh after this occurrence. He has stated it to be wrong that only with a view to giving serious colour to this case he has stated that accused had done mar-peet with Balram Singh.

29. He has stated that accused Ravi Shankar had come to call him to the quarter of Guljari Lal and when he reached the quarter of Guljari Lal, there were five accused and none else, who all were sitting outside their quarter on a cot. He had not gone inside. The accused, who were sitting on cot, did not have any weapon in their hand nor PW-1 had any weapon in his hand. As soon as he reached there, accused got up and started beating him by fists and kicks and when he raised alarm, five six men from the quarters came there. In this mar-peet, he had not fallen down nor his clothes had got torn. When Sudama Singh intervened, then accused Virendra took out knife and then he fled from there. Near the cot, mar-peet had taken place for about two to three minutes. He had stated about this fact that there was a cot, to the Investigating Officer and had also stated that Sudama Singh had come there empty handed and other persons, who had come there, were empty handed. Thus five-six men, who had come from the quarters, out of them, one was Ram Abhilakh Singh, who had come subsequently. Ishwari Prasad and Chandan returned home after having seen the knife. All the five accused caught hold of Sudama Singh and he was thrown down on the ground. Radha Rani (PW-3) was trying to catch hold of Madan Lal and Dori Lal and was saying that do not beat her husband-Sudama Singh. When the accused had thrown down Sudama Singh then Virendra Singh made a blow on his neck by knife. The knife injury had also been received by accused Ravi Shankar, but he had not seen the said injury being caused to him and on his own he stated that when accused Virendra was assaulting Sudama Singh by knife then PW-1 returned back to rescue Sudama Singh and then Ravi Shankar caught hold of his collar and Virendra saw that his real enemy was standing before him and then he made assault by knife upon him but he stepped aside to defend himself and in the process Ravi Shankar, who was holding him by collar, fell in front of the said blow and received injuries in his abdomen and, thereafter, the said accused injured fled from there yelling 'mere chaku lag gaya'. Thereafter, PW-1 also fled from there due to fear and then he again returned to the said place, by then, there was no accused and, thereafter, he went to his quarter for writing report in which he had not written as to how the accused Ravi Shankar received injury of knife. He had stated to the I.O. about this fact but he does not know as to why the I.O. did not write in his statement the said fact. Even in his examination-in-chief, he had not stated about this fact because the Government Advocate did not ask about it. He denied that on the basis of consultation, he has given false story of the occurrence.

30. This witness has further stated that it is wrong to say that on the date of incident, at about 9:00 pm, he and Sudama Singh had come to the tea shop of Dori Lal and went away from there without making payment of it and when they started going away without making payment then both of them abused and gave threat to the accused. It is also wrong to say that on the same night at about 10:00 pm, he and Sudama Singh entered the quarter of accused Guljari Lal abusing him and then accused Virendra and Ravi Shankar told not to abuse and both of these accused tried to throw them out of the house. It is also wrong to say that Sudama Singh told him to provide him knife saying "Isi se nipat lo yah bahut himayati banta hai". It is also wrong to say that he made a blow by knife in the abdomen of Ravi Shankar with a common intention to kill him. It is also wrong to say that when Ravi Shankar fell down then Sudama Singh stated that "Virendra aur Dori Lal ka Bhi kam tamam kar do"(let Virendra Singh and Dori Lal be also done to death), then the accused- Virendra in his defence made a blow upon Sudama Singh by knife which hit him. It is also stated to be wrong that when Sudama Singh received injury, he (PW-1) caught hold of him and asked him to take him to his quarter but before he could reach his quarter, in front of the same, Sudama Singh fell down. It is also wrong to say that Radha Rani was not beaten by anyone and that she had fallen while crying. It is also wrong to say that in collusion with police, he lodged a report mentioning wrong facts in the same. It is also wrong to say that blood had fallen in the house of Guljari Lal and it is also wrong to say that in collusion with the police, he did not show falling of blood in the house of accused Guljari Lal.

31. From the testimony of this witness which has been cited above, it is evident that genesis of this case is attributed by him to an earlier occurrence, which had taken place seven to eight months prior to the present occurrence, when sons of accused Guljari Lal had picked up row with Balram Singh, in which Balram Singh was beaten, who was of District of the informant and when PW-1 had counselled accused Guljari Lal not to indulge in high-handedness, since then accused Guljari Lal started harbouring enmity towards him. Because of this enmity, on the date of occurrence, in the night, when he was in his quarter, accused Guljari Lal sent one of his sons Ravi Shankar to call him at his quarter, with whom he went to the quarter of accused-Guljari Lal and there all the accused started beating him for making false allegation by Guljari Lal that his sons were being defamed by him, which was denied by PW-1 and on his raising alarm, the deceased (Sudama Singh), who was living in front of the house of Guljari Lal, in separate quarter, came out for his rescue, then when both the persons namely i.e. PW-1 and Sudama Singh fled from there seeing knife in the hand of main accused Virendra, they were chased and in front of the lane, to the south of quarter of Basant Lal, on the road, shown by 'A', the accused persons assaulted Sudama Singh. In this assault, it is stated by this witness that Virendra had made the blow by knife on the neck of Sudama Singh, while rest of the accused caught hold of him. This witness has denied the counter version of the accused side that at 9:00 pm, Sudama Singh and PW-1 had gone to the shop of accused Dori Lal to have tea and when they had left the place without making payment and simultaneously abused the accused and gave him threat also, the same night at about 10:00 pm, both PW-1 and Sudama Singh entered the quarter of accused- Guljari Lal abusing the accused side and when the accused Virendra and Ravi Shankar stopped them from abusing and tried to throw them out of their quarter, Sudama Singh gave knife to PW-1 and asked him to assault Virendra and Ravi Shankar and in pursuance of that PW-1 made a blow by knife at the abdomen of accused Ravi Shankar with an intention to kill and when he fell down, Sudama Singh was also asked by the PW-1 that he should finish Virendra and Dori Lal also, then accused Virendra in defence made a blow of knife upon Sudama Singh, whereafter PW-1 dragged Sudama Singh towards his quarter but he died in front of his quarter and that the wife of the deceased had also come there crying and fell down and that she was not beaten by any accused. It is also evident from the statement of this witness that he has, though not mentioned in the F.I.R. as to how injury was caused to one of the accused namely, Ravi Shankar, but he has given its clarification in cross-examination stating that when Sudama Singh was thrown down by all the five accused, wife of Sudama Singh i.e. Radha Rani was trying to catch hold of accused Madan and Dori Lal imploring them not to beat her husband, accused-Virendra Singh made a blow by knife on the neck of Sudama Singh. At that time, PW-1 had run away from there but he came back in order to save Sudama Singh and right then accused Ravi Shankar held his collar, then accused Virendra Singh shouted that, here was real enemy and then Virendra made assault by knife towards him but he stepped aside and in the process, the said blow fell upon accused Ravi Shankar, who was holding his collar and got hit in his abdomen, whereafter he ran from the spot yelling " mere chaku lag gaya".

32. It is also apparent from the statement of this witness that there was enmity between two sides i.e. between informant and accused and not between the deceased and the accused but the deceased happened to receive injuries, when he came for the rescue of informant. He has also given explanation of the injury to accused Ravi Shankar, which appears to be believable and the said explanation has also been relied upon by the trial court to be possible explanation and this much is apparent from the statement of this witness that occurrence took place, in which accused Virendra was the main accused, who actually made a blow upon the neck of deceased- Sudama Singh, while rest of the accused are stated to have caught hold of deceased in order to facilitate main accused- Virendra to cause his murder.

33. We may analyze it after considering full evidence as to whether it is an exaggeration on the part of this witness that all the accused other than Virendra were catching hold of the deceased so that Virendra could assault the deceased by knife, it appears to us a little exaggerated version. No evidence has come on record that the deceased was having any arms and when an unarmed person would be assaulted in order to commit his murder by any weapon, why so many people would be required to assist in his killing, renders the prosecution case to be little exaggerated version, in order to implicate the entire family of the accused- Virendra.

34. PW-2, Shivnath, has stated in examination-in-chief that he was living in quarter of his uncle Komil for last about 24 years in the said colony. He knows the accused person, who appeared in court since prior to the date of occurrence, who were all living in Railway quarters. He also knew deceased Sudama Singh, who was also residing in the same railway colony along with his wife Radha Rani. He also knows witness Deena Nath from the prosecution side, who also lives in the same colony. He has stated that at about four months ago, he was in the quarter of his uncle and at about 10:00 pm, he heard some noise coming from the western quarter and hearing the same he came out and saw that at the door of the house of Guljari Lal, about eight to ten men along with accused were assembled. When he went there he saw that apart from five accused persons in court, Abhilakh Singh, Chandan, Ishwari Prasad, Sudama Singh and Radha Rani were also there. Accused were beating Deena Nath (PW-1) and Sudama Singh was trying to rescue Deena Nath. Guljari Lal had shouted that "Yah Bahut Hamdard Banta Hai Ise Maro", at this accused Virendra took out knife to assault upon Sudama Singh, then Sudama Singh and Deena Nath fled from there. Sudama Singh was caught by all the five accused in front of the house of Basant, where he was thrown down and Virendra made a blow by knife at the neck of Sudama Singh. When Radha Rani came to his rescue, Guljari Lal told "Ise Sali Ko Bhi Maro", then accused Madan and Dori Lal leaving Sudama Singh, had thrown down Radha Rani and had beaten her with hand and fists by which, she received injury. Virendra Singh continued to assault Sudama Singh by knife. At the time of occurrence, in front of the house of Ram Surat, on the tree of Pakad one bulb was glowing in the light of which he had seen this occurrence. The blood had fallen there from the wounds of Sudama Singh and his clothes had also got wet by blood, he was wearing Baniyan and under-wear. He has further stated that accused Ravi Shankar was holding collar of Deena Nath. The accused Virendra made a blow of knife upon Deena Nath, which instead of hitting him, fell upon accused Ravi Shankar and, thereafter, the accused fled towards western side. He further has stated that he had taken Sudama Singh and Radha Rani to Sadar hospital by his rickshaw, where doctor pronounced Sudama Singh dead. Radha Rani was also medically examined.

35. In cross-examination, this witness has stated that Rama Shankar is son of Komil, who is his maternal brother. Guljari Lal had lodged the report against Rama Shankar and Aziz @ Munna in respect of assaulting by knife, whereon a case under Section 324 IPC was registered, in which both Rama Shankar and Munna were acquitted. Against PW-2 also accused- Guljari Lal had given an application on 5.7.1975, which was investigated by police and on his own he further explained that prior to the said application, PW-2 had made a complaint against accused- Guljari Lal and Madan etc., which was not investigated by police, because of this reason there were bad relations between two sides.

36. He has further stated that his statement was recorded two days after the occurrence by police. He does not do agricultural work. His father has agricultural land, which is located in Pipariya Gaon, which is looked after by his uncle and some times, he also takes care of it. On the day when this occurrence happened, he had gone to see his agricultural land. Pipariya village is three miles away from Railway colony and not five miles. He had returned on the said day late in the night. He had told Investigating Officer that accused Ravi Shankar was holding collar of Deena Nath and accused Virendra had assaulted Deena Nath by knife but he escaped injury and the said knife caused injury in the abdomen of Ravi Shankar, but he cannot tell as to why this was not recorded in his statement by the I.O.. He stated that he had not given such statement to the I.O. that he does not know as to how accused Ravi Shankar received injuries and how the I.O. had recorded the said fact in his statement. He had told I.O. that Virendra continued to assault by knife upon Sudama Singh but if the same is not written by I.O., he cannot tell its reason. He did not state before the I.O. that by the time, he along with others proceeded to rescue Sudama Singh, Virendra made knife blow upon Sudama Singh and all of a sudden, blood oozed out of the wound and then accused fled towards their quarters. He cannot tell as to how this has been recorded by the I.O. in his statement. It is wrong to say that he had stated this fact because of consultation that Virendra continued making blows by knife upon Sudama Singh. He had not given this statement to the I.O. that about 10:00 pm, from the western quarters, he heard noise............(dots) then he rushed there and saw that in the quarter L/4-B of Guljari Lal, Deena Nath was being assaulted by Guljari Lal and his sons Madan, Virendra and Ravi Shankar and his son-in-law Dori Lal. He cannot tell that noise was heard in his house coming from the quarter, how the I.O. had recorded about mar-peet being done in quarter, he cannot tell. He had stated to I.O. that on alarm being raised, Ishwari Prasad and Chandan had also come there but he cannot tell, why the same was not recorded by I.O. He has further stated that he had taken Sudama Singh to hospital on his rickshaw and Munna had come there on bicycle. He denied that at the time of occurrence he had gone to his village Pipariya with his rickshaw and it is wrong to say that Munna had taken his rickshaw to the hospital. It is also wrong to say that no bulb was glowing on the tree of Pakad and that because of enmity with the accused, he was making false statement under influence of police.

37. This witness, who has stated himself to be of village Pipariya, where some agricultural land is located of his but he has clearly stated that he had returned in the night and then he heard sound coming from the western quarters, hearing which, when he came out and he saw that all the five accused along with deceased Sudama Singh, Radha Rani and three others witnesses were there and the accused were assaulting Deena Nath, to his rescue, Sudama Singh came forward and then Virendra took out knife to assault him and then both Sudama Singh and Deena Nath fled from there towards quarter of Basant, where they were chased and Sudama Singh was thrown down on the ground. He saw that Virendra had assaulted Sudama Singh by knife and when his wife Radha Rani came to his rescue then she was beaten by co-accused Madan and Dori Lal, while Virendra continued to assault Sudama Singh by knife.

38. In cross-examination, he has also clarified that when Ravi Shankar was holding collar of Deena Nath and Virendra made a blow on Deena Nath by knife, Deena Nath escaped injury but Ravi Shankar got the said blow. He has further clarified that he had made statement to that effect before the I.O. but how I.O. skipped writing the same, he cannot disclose. His testimony appears to be believable as stated above because he is resident of the same colony, where he was staying since long in the house of his maternal uncle Komil, therefore, it is very natural that when he heard the noise of this occurrence, he reached the place of incident and has distinctly proved that initially he had gone to the house of accused Guljari Lal, where informant was seen by him being assaulted and when the deceased reached there for his rescue, seeing the knife in the hand of one of accused i.e. Virendra, they fled towards quarter of Basant Lal, where they were chased by the accused and ultimately Virendra made a blow of knife upon deceased- Sudama Singh, while other accused were holding the deceased. Since, the testimony of a witness needs to be assessed in totality and we find after having read the whole statement of this witness that he appears to have exaggerated a little over the prosecution version given in the F.I.R. that four accused namely, Guljari Lal, Madan and Ravi Shankar and Dori Lal were catching hold of the deceased, while Virendra made blows by knife. It appears to be exaggerated because of the same logic, which was given by us while dealing with the statement given by the PW-1. This is a witness, who carried the deceased to hospital along with his wife in his rickshaw, soon after the occurrence.

39. Radha Rani, wife of the deceased- Sudama Singh, has stated in examination-in-chief as PW-3 that about one and half year ago, at about 10:00 pm, she along with her husband were in their quarter. She heard some noise at the door of Guljari Lal, hearing which, she and her husband went there and saw that in front of quarter of Guljari Lal, all the five accused were beating Deena Nath. There apart from them, Shivnath (PW-2) and Ram Abhilakh were also present. Her husband tried to intervene saying that do not beat him, at this accused Guljari Lal stated that he (deceased) was showing too much sympathy, therefore, he should be taken care of also and then accused caught hold of her husband and all of them had beaten her husband by kicks and fists and, thereafter, Virendra took out knife and assaulted at the neck of his husband. Prior to this, when Virendra had taken out knife, she and her husband along with Deena Nath had fled from there, who were chased by Virendra and also by all other accused and when he (deceased) reached in front of the lane of Basant and thereafter stated that in front of the door of Basant, the accused caught hold of her husband, throw him down and Virendra made assault by knife on her husband's neck. He made many blows upon him. All the accused were catching hold of her husband when Virendra was assaulting her husband by knife. When she had told, do not assault him, then accused Madan and Dori Lal had caught hold of her and threw her down, by which she fell down on the floor of bricks, which resulted in injuries to her. The accused had also beaten her with kicks and fists. At the time of occurrence, there was light of bulb, which was hanging by Pakad tree and there was also an electricity pole and in the light of these and also in the light emitting out of the quarters, she had seen the occurrence and after giving effect to the occurrence, the accused fled towards west. Shivnath (PW-2) had taken her husband to hospital along with her. After getting injuries her husband had become unconscious, her own medical examination was also done and her Sari and blouse, which had blood stains, were also handed over to the police, which were taken by the police and its Fard Ext. Ka-2 was also prepared.

40. In cross-examination, this witness has stated that soon after the accused having fled from scene of occurrence, her husband was taken in a rickshaw by Shivnath (PW-2), in which she was also sitting.

41. As regards bad antecedents of the deceased, this witness has been examined at length by defense side in which she has stated that her husband Sudama Singh along with Ram Ashre and Prem Singh were not arrested at Bhojipur Station in respect of possessing illegal liquor. She has denied that at the time of this occurrence, one case of Excise Act was going on ahead against Sudama Singh. She has further stated that after fourth day of the occurrence, I.O. had recorded her statement. She had not given this statement to I.O. that three days ago on Tuesday, in the night, in the quarter of Guljari Lal, noise was being made and after going there, she saw that Guljari Lal was beating Deena Nath at 10:00 pm. Further she has stated that she cannot tell as to how the I.O. had recorded in her statement in respect of mar-peet having taken place in the quarter of Guljari Lal. She had not given any statement to the I.O. that her children were studying out of her house in the light of bulb and how the same was written by I.O., she cannot explain. She cannot tell how I.O. has referred in her statement that her children used to study in light of bulb. On the date of occurrence, they were not studying but the bulb used to be glowing in the night, which has hung by Pakad tree. The said tree was near her house. She had also stated to the I.O. that near her house, there was an electricity pole, by which, there was light on the place of occurrence and that from the quarters situated nearby, the light was emitting. She cannot tell why these facts were not recorded by him in her statement. She had also stated to I.O. that Virendra had made many knife blows upon her husband. She cannot tell the reason why the I.O. had recorded in her statement that blow of knife was made only on neck. She had also stated to the I.O. that she had heard the noise coming from the side of quarter of Guljari Lal but cannot tell its reason why the same was not recorded by the I.O.. She had not embraced her husband, rather had fell down on the floor of bricks i.e. had fallen down on half part of the brick, which was lying there. She has stated it to be wrong that she was not beaten by anyone nor was she pushed by anyone nor was she thrown down by anyone and it was also wrong to say that on her own having seen her husband in injured condition, she fell down on him and, thereafter, on the bricks. It is also wrong to say that the blood which was found on her clothes was that of her husband. It is also wrong to say that she had not accompanied her husband to the house of Guljari Lal and that when she came out of her quarter, near the same, she found Sudama Singh in injured condition and that under influence of police, she was making false statement.

42. The testimony of this witness is found to be believable as regards her having seen her husband being assaulted by accused Virendra, who, she has clearly stated, had made repeated assault by knife and this occurrence she has seen in the light of bulb as well as the light which was emitting out of the quarters there. The discrepancies, which are stated to be there in respect of her statement made before the I.O. and that given before the court, do not go to the route of the matter and her presence on the place of occurrence is found very natural because she at the time of occurrence with her husband was in her quarter, as it was night time and when she heard sound coming out of the house of Guljari Lal, where informant was being beaten, both of them had gone there, where her husband tried to rescue Deena Nath and then the accused persons tried to make assault upon him and then informant and her husband fled from there towards house of Basant, where Virendra had made blows upon her husband in her presence. She also has stated that when she tried to intervene in order to save her husband, the other accused Madan and Dori Lal had assaulted her, in which she also fell down on the floor. She was also beaten by fists and kicks but her testimony to this effect will have to be seen in the light of medical evidence, whether she had actually received any palpable injuries or not, but so far as her statement with respect to the accused Virendra having assaulted her husband is concerned, that is found to be absolutely believable. She has also stated that other four accused were catching hold of the deceased, while Virendra had assaulted by knife, also seems to be exaggerated version because all of them belong to the same family. It cannot be ruled out that false implication could be there for the same reasons, which have been cited by us, while dealing with statement of PW-1 and PW-2.

43. Before taking up the cross-examination of PW-4, we would like to consider evidence of PW-5, who is Dr. M.K. Gupta, who had conducted medical examination of injured Radha Rani, wife of Sudama Singh on 28.7.1981 at about 11:15 pm. He has stated in examination in chief that he had found following injuries on her person.:-

(i) Contusion 2.5 cm X 1.5 cm on the outer side under the left eyebrow.

(ii) Lacerated wound 1.5 cm X 0.5 cm X muscle deep on the left side of face, 1.5 cm below the left lowrer eye-lid.

44. Both the injuries were found to be simple in nature caused by some blunt object such as Lathi-Danda. The duration was fresh. He has proved the report as Ext. Ka-8 in his hand writing and has stated that these injuries were possible to be received by her on 28.7.1981 in the night at about 10:00 pm.

45. In cross-examination, this witness has stated that on 28.7.1981 at 11:35 pm, accused Ravi Shankar aged about 13 year S/o Guljari Lal, was brought for his medical examination, which was conducted by him and found on his body following injury:-

(i) Incised wound 4 cm X 1.5 cm. Depth no probed, 2 cm lateral to umblicus on the left side of the abdomen at 3"O clock position.

46. This injury was kept under observation, which was caused by sharp edged weapon and duration was fresh, the original of which is annexed in file of S.T. No. 282 of 1982 (State Vs. Deena Nath), under Section 452 and 307 IPC, P.S. Premnagar. The statement is being given by him after having perused the said original report. This injury was possible to be caused by knife, which would have been caused on 28.7.1981 at 10:00 pm. The constable, who had brought the said injured with Majroobi chitthi, on the back of it, medical examination report was prepared but its supplementary report is not before him. Only after perusing the record, he would be able to tell whether the same could prove fatal for the victim or not, true copy of which after being signed by him, has been filed, which is Ext. Kha-3. Further he has stated that he does not have supplementary report in front of him nor bed head ticket of the patient, after perusal of which only he could tell as to under which doctor he was getting treatment but it was possible that Dr. M.C. Sharma, Sr. Surgeon, might have treated him.

47. This witness has found only two simple injuries upon the person of the injured Radha Rani, who is stated to have got hit in the present occurrence, which are stated to have been caused by Lathi and Danda, although in the present case none of the accused were stated to be armed with Lathi and Danda, hence these injuries could be taken to have been caused to the said victim due to her falling down on the ground. Testimony has come on record that she was thrown down on the ground by accused, while she tried to interfere in order to save her husband but there are not very serious injuries, but certainly we cannot rule out that she would have seen the occurrence and in the process she might have received injuries in scuffle or because of falling down on the ground.

48. This witness has also proved incised wound of the accused Ravi Shankar but its nature could not be disclosed because its supplementary report was not placed before him, hence it cannot be ascertained whether the same was a simple injury or a grievous one. But for want of supplementary report we can certainly hold that the same was simple injury.

49. PW-6, Dr. V.K. Endley, has stated in examination-in-chief that on 29.7.1981 at 3:00 pm, he had conducted post mortem of the deceased Sudama Singh, whose dead body was brought by two constables and was identified by them. The following injuries were found on his person:-

(i) Incised wound 2 ½ cm x 1 cm x 2 cm deep on the right side neck. Five cm below lobule of right ear horizontally, underneath large vessels cut.

(ii) Incised wound 2 cm x 0.5 cm x muscle deep on the right side neck x 2 ½ cm below the injury no. 1 horizontally placed.

(iii) Incised wound 2 cm x ½ cm x 2 cm on the right side neck 3 cm above the middle of right clavicle obliquely placed underneath. Vessels cut.

(iv) Incised wound 1 cm x ½ cm x 2 cm on the left side neck 4 ½ cm below lobule left ear obliquely placed underneath. Vessels cut.

(v) Incised wound 2 cm x 1 cm x abdominal cavity deep on the right side abdomen 3 cm below umbilicus, vertically placed, cutting stomach.

(vi) Abrasion 0.5 cm X 0.5 cm middle left leg in front.

50. In cross-examination, this witness has stated that he had found veins cut under injury no. 5. The cause of death was excessive loss of blood. The deceased had died on account of injuries except injury no. 6, as the other injuries were caused to him by some sharp edged weapon such as knife. These injuries were sufficient in the ordinary course of nature to cause death. He has proved his report as Ext. Ka-9 in his hand writing. Nothing has been asked from this witness in cross-examination from the side of defense.

51. PW-4, I.O. S.P. Singh, has stated in cross-examination that Deena Nath (PW-1) had not stated to him that there was light emitting out of the quarters. he has stated that he was got called by one child. He did not state that he was called by Ravi Shankar, nor his name was disclosed by him. Deena Nath had also not stated to him that Guljari Lal etc. (accused) were sitting near his quarter on a cot, nor did he state that he had seen accused Ravi Shankar (accused) getting injury of knife. He had also not stated to him that when he came to rescue Sudama Singh then Ravi Shankar caught his collar then Virendra saw that his enemy was standing in front of him and then in front of him, he made a blow by knife and to save himself, he stepped aside and the said blow hit Ravi Shankar, who was holding his collar and he fell down as knife blow had hit his abdomen. He (injured) holding his abdomen fled from there saying 'mere chaku lay gaya'. Further this witness has stated that Shivnath (PW-2) has not stated to him that accused Ravi Shankar was holding collar of Deena Nath and accused Virendra assaulted Deena Nath by knife but Deena Nath escaped and that blow caused injury to Ravi Shankar. Shivnath has stated to him that he does not know as to how he got injured. Shivnath has not stated in his statement that Virendra continued to assault Sudama Singh by knife. Shivnath had not stated to him that by the time they came to his house, Virendra had made blow by knife on the neck of Sudama Singh. All of a sudden blood oozed out of the wound and accused fled towards their quarters. Shivnath has not stated that at about 10:00 pm, from the western quarter he heard some noise, hearing which, he came out..........(dots) he lept in that direction and saw that in the quarter of Guljari Lal No. L/4-B, Deena Nath was being beaten by his sons Madan, Virendra, Ravi Shankar and his son-in-law Dori Lal. This witness has further stated that the said witness i.e. Shivnath had stated names of Ishwari Prasad and Chandan in among the witnesses. First time when he had gone to Loco Colony, he did not find witness Shivnath. Smt. Radha Rani had stated that just three days ago on Tuesday, in the night, in the quarter of Guljari Lal, commotion was there and then she went there and saw that Guljari Lal and his sons were beating Deena Nath. It was night time of 10:00 pm. She had also stated that her children were studying outside in the light of bulb. She had not stated that there was some electricity pole due to which there was light. She also did not tell that Virendra made many blows by knife upon her husband, rather had stated that blow was made on his neck. She had also not stated that she had heard noise coming out of the house of Guljari Lal. This witness has further stated that Dori Lal may have given one written report coming at the P.S. in his absence. The copy of the same was prepared by H.M. Rishipal Singh, which bears crime no. 240-A in which, informant is Dori Lal and accused is shown to be Deena Nath. The said chik report is in front of him in the file of S.T. No. 282 of 1982 (State Vs. Deena Nath), a true copy of the same is being filed comparing it with the original which is Ext. Kha-1. On the basis of this chik report, at report no. 40, case, State Vs. Deenanath, under Section 307 IPC was instituted, G.D. of which is Ext. Kha-2 being filed today. The said report which was lodged by Dori Lal was investigated by him and he had prepared the site plan also of the place of occurrence, which is in front of him, in which a bulb is shown on the tree. He cannot tell whether the same was in front of the house of Sudama Singh or in front of some other quarters. The bulb and wire after being taken in possession, was not given in Supurdgi of anyone. During investigation, he came to know that the said wire and bulb were of Sudama Singh. He did not inquire about it from Smt. Radha Rani, as he did not consider it important. He denied that he had mentioned about this wire and bulb falsely. He had submitted charge sheet after investigation in State Vs. Deena Nath, which case is also pending in this Court. It is wrong to say that Dori Lal and Ravi Shankar (injured) had come at the P.S. in his presence. It is also wrong to say that report of Dori Lal was registered subsequently even though he had come first. The chik report and G.D. of the case of State Vs. Deenanath were received by him in Loco Colony by constable but he cannot tell the time when the same were received by him. He further stated it to be wrong that blood was there in the quarter of Guljari Lal but he did not collect it. Dori Lal was arrested on the P.S., about which he came to know subsequently. Deena Nath (informant) was arrested on 29.7.1981, soon after lodging his report but it is wrong to say that he was detained in Hawalat for two days and thereafter, he was sent to jail.

52. From the side of accused, Dr. M.C. Sharma, has been examined as DW-1, who has stated in examination-in-chief that on 28.7.1981, he was Sr. Surgeon. On that date Ravi Shankar (accused) had appeared before him, who was admitted at 11:30 pm by Emergency Medical Officer, as his condition was bad. His blood pressure was 90/60. On his abdomen one punctured wound was found and blood was coming out of it and soon after first aid, his wound was recommended to be operated. On 29.7.1981, he had conducted the operation, layer of abdomen was found cut and beneath that about 200 cc blood was found, thereafter, his treatment was continued and was discharged on 15.8.1981. The said injury of the accused was dangerous to life, which was possible to be caused by knife.

53. In cross-examination, this witness has stated that this injured was given treatment by Dr. S.K. Gupta, right from the beginning. This injury was dangerous to life was not noted in bed head ticket, nor such kind of endorsement is made.

54. This witness has sought to prove the said injury to be dangerous to life, although he did admit that no such endorsement was made by treating doctor in bed head ticket but he clarified that no such endorsement is ever made in bed head ticket ultimately.

55. As per F.I.R. the prosecution case is that on 28.7.1981, the occurrence took place at about 11:00 pm initially in the house of accused- Guljari Lal, who was living in the Railway quarter, which was very close to the quarter of informant and on account of of earlier occurrence, which had happened about 7-8 months ago, in which one Balram Singh was beaten by Guljari Lal and his sons, at that time informant had counselled them not to indulge in such kind of high handedness and because of that, enmity was existing between them. The accused-Guljari Lal was under the impression that sons of accused Guljari Lal were being defamed by the informant as being goons, therefore, the informant was got called by the accused Guljari Lal at his quarter by sending one of his sons namely Ravi Shankar with whom the informant went to the quarter of Guljari Lal, there all the accused named above which included Guljari Lal and his three sons and son-in-law asked as to why the informant was defaming his sons, whereon informant rebutted and then all the accused started beating him and on alarm being raised by the informant the deceased Sudama Singh, who was residing across the road, on the other side in the same colony, came there for the rescue of informant and when the deceased Sudama Singh tried to intervene, leaving the informant Deena Nath, the accused Virendra tried to assault him by knife, thereafter, both i.e. informant and the deceased ran from there towards house of Basant to save their life but the accused appellants chased them and deceased was assaulted by accused Virendra by knife in front of the house of Basant by the side of the road and while he was being held by Guljari Lal, Madan, Ravi Shankar and Dori Lal. At that time, wife of the deceased namely, Radha Rani also reached there and tried to save her husband and thereupon two of them Madan and Dori Lal pushed her so that she fell down but the accused Virendra continued to assault the deceased by knife by which he died while being taken to hospital by PW-2 on his rickshaw.

56. This prosecution version has been proved by PW-1, who is witness of the fact, as he was residing in the same colony, in which the accused and the deceased reside and in fact initial incident happened with PW-1 but he did not suffer any manifest injuries but we do find proved on the basis of evidence cited above that he was present on the spot and has seen the occurrence being natural witness and his testimony is partly believed by us in respect of Virendra having assaulted the deceased with knife, which caused injuries at his neck, which resulted in his death.

57. PW-2, Shivnath, who was also an eyewitness, who was living in the same colony in which this occurrence took place, his presence we find proved because he had returned from his village in the night and upon noises being heard emanating from the house of Guljari Lal, he had reached there and had witnessed the occurrence in which the deceased had died. He is more importantly a witness, who has carried the deceased to hospital, soon after he was assaulted by the accused Virendra. Therefore, his presence was also found proved beyond doubt except with little exaggeration made by him in respect of which, we have already noted above.

58. PW-3, Radha Rani, who is the wife of the deceased, though is an interested witnesses, she has claimed to be an injured witness also as she is found to have received two injuries, which are proved by the doctor (PW-5) but they are simple injuries and are stated by the doctor to have been caused by danda but we do not find any of the accused wielding danda, hence we are of the view that she might have received the said injury because of having fallen on the ground during the said occurrence. Her testimony is found to be believable to the extent that she was present on the place of incident in order to save her husband. Her testimony was also found to be little exaggerated, as she has implicated all the accused, who belong to the same family, although in evidence it has come that it was actually Virendra, who had made fatal blows by the knife on the deceased, therefore, on the strength of testimonies of above three witnesses, we come to the conclusion that the trial court has rightly held the accused- Virendra guilty under Section 307 IPC, but we find that the trial court has also held the other accused Guljari Lal, Madan, Ravi Shankar and Dori Lal also guilty with the aid of Section 149 IPC, but in our opinion the involvement of all these four accused appears to be an exaggeration on the part of the prosecution witnesses because it was actually Virendra, who was responsible to cause fatal blows on the deceased by knife, which resulted in his death and which also stands corroborated by the statement of doctor (PW-6), who had conducted the post-mortem of the deceased. The ocular testimony of all the three eye-witnesses stand corroborated by the post-mortem report.

59. One most important aspect, which is required to be dealt by us, is that the accused- Ravi Shankar had also sustained one injury with respect to which a criminal case has been registered against informant being S.T. No. 282 of 1982, which I.O. has stated in cross-examination to be pending, which has not been brought to our notice during arguments as to what was the outcome of the said sessions trial. Normally as per established legal position, when there is a cross case of a particular case, it is mandatory that both the cases should be decided together so that there is no ambiguity left in appreciating the versions of both the sides and a clear view may be made by the trial court, as to which version was correct and accordingly pass appropriate judgments, but in this case, we are at a loss to understand, as to how, alleged cross case of this case was not decided by the trial court simultaneously, but be that as it may, we have to decide on the basis of evidence before us with respect to the present matter. The defence version is that the informant and deceased had come to the tea shop of Guljari Lal for having a cup of tea and after having taken the same, they left the place without making payment and also abused Guljari Lal on asking for the payment and, thereafter both these accused entered the quarter of Guljari Lal abusingly and when accused and his sons tried to throw them out of their quarter, the deceased Sudama Singh gave a knife to the informant and told him that Virendra and Ravi Shankar were placing too much sympathy with the Guljari Lal and then the informant tried to assault Ravi Shankar by knife. Thereafter, Sudama Singh told PW-1 that he should finish of Virendra and Dori Lal also and then Virendra made a blow on deceased Sudama Singh by knife.

60. This version is denied by the prosecution side in this case and the explanation of the injury having been received by accused Ravi Shankar, has also been given from the side of prosecution that when informant came to the rescue of deceased Sudama Singh, accused Ravi Shankar held his collar and when accused Virendra saw his enemy i.e. Deenanath in front of him, he tried to assault him by knife but he stepped aside and the said knife hit Ravi Shankar in his abdomen. The said explanation appears to be only possible explanation in these circumstances, because there was no blood found in the house of accused Guljari Lal, where as per defense version the informant and deceased are stated to have gone, abused them and made assault by knife, which caused injuries to Ravi Shankar. I.O. has clearly stated that no blood was found in the house of Guljari Lal, moreover, we find that defense version says that occurrence took place in the house of Guljari Lal, while according to prosecution, occurrence happened, in which the deceased died, in front of the lane, which was to the south of house of Basant Lal by the side of the road which is shown in the site plan as well, where blood was also found by the I.O.

61. In view of above explanation, we are of the opinion that conviction of the accused appellant- Virendra needs to be upheld for having caused murder of the deceased Sudama Singh, while rest of the accused need to be given benefit of doubt, as we find it likely that their false implication may not be ruled out.

62. We find that the trial court has misread the evidence as regards the involvement of four accused i.e. Ravi Shankar, Guljari Lal, Dori Lal, Madan and their implication in the present case is found to be suspicious and, hence they deserve to be given benefit of doubt. Therefore, their conviction under the above mentioned Sections is set aside, however, we uphold the conviction of Virendra for an offence u/s 302 IPC simplicitor.

63. As regards Virendra, it may further be mentioned that he has been found to be juvenile, as per report dated 20.10.2018 sent by the Principle Magistrate, Juvenile Justice Board, Bareilly, wherein he has enclosed a copy of the order passed by Juvenile Justice Board in respect of holding him to be 16 years five months and 27 days old on the date of occurrence i.e. on 28.7.1981, on the basis of High-school certificate in which his date of birth was recorded as 1.2.1965. We are in agreement with the view expressed by the Juvenile Justice Board and we hold him to be juvenile on the date of occurrence and hence, as per Provision given in Section 7(A) of the Juvenile Justice (Care and Protection) Act, 2000, we forward the accused Virendra to the Juvenile Justice Board for passing appropriate orders regarding punishment in accordance with law.

64. Since accused Madan, Ravi Shankar are on bail, hence they need not surrender. Their bail bonds and personal bonds stand discharged. The trial court shall take bonds from them in terms of Section 437 -A Cr.P.C.

65. Let a copy of this order be transmitted forthwith to the trial court along with original record for immediate compliance.

66. The appeal stands partly allowed.

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

Dated: 30.5.2019/A.P. Pandey