Foolbadan vs State Of U.P.
2021 Latest Caselaw 208 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										A.F.R.
 

 
						Reserved On 07.10.2020
 
						Delivered On 06.01.2021
 
Case :- CRIMINAL APPEAL No. - 3268 of 2015
 
Appellant :- Foolbadan
 
Respondent :- State of U.P.
 
Counsel for Appellant :- R.S. Ram,Akhilesh Kumar,Apul,Krishna Kumar Chaurasia,Mohd. Monis,Phool Chandra Singh,R.U. Rinki Renu,Ulajhan Singh Bind
 
Counsel for Respondent :- Govt. Advocate
 
				
 
					and 
 

 
Case :- CRIMINAL APPEAL No. - 3586 of 2015
 
Appellant :- Ramashankar
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Chandra Jeet Yadav,Akhilesh Kumar,Anjali,Mohd. Monis,Pramod Kumar Singh
 
Counsel for Respondent :- Govt.Advocate
 
						and
 

 
Case :- CRIMINAL APPEAL No. - 3601 of 2015
 
Appellant :- Gauri Shankar @ Bhuwar
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Chandra Jeet Yadav,Akhilesh Kumar,Anjali,Mohd. Monis,Pramod Kumar Singh
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Bachchoo Lal,J.

Hon'ble Subhash Chandra Sharma,J.

(Delivered by Hon'ble Subhash Chandra Sharma,J.)

1. These appeals emanate from the common judgment and order dated 25.07.2015 passed by learned Sessions Judge, Mau in Sessions Trial Nos. 110 of 2012 (State Vs. Rama Shankar and otehrs) and 203 of 2013 (State Vs. Gaurishankar @ Bhuwar) arising out of Case Crime No. 828 of 2011 under Sections 307, 302, 324 read with section 34, 352, 504, 506 IPC, Police Station Haldharpur, District Mau by which appellants have been convicted and sentenced under Section 302/34 IPC with life imprisonment and fine of Rs. 10,000/- for each, in default of payment rigorous imprisonment for a period of two months; under Section 307/34 IPC with rigorous imprisonment for the period of five years' and fine of Rs. 2000/- for each, in default of payment rigorous imprisonment for a period of one month; under Section 324/34 IPC with rigorous imprisonment for a period of one year for each; under Section 352 IPC with rigorous imprisonment for a period of one month each; under Section 504 IPC with rigorous imprisonment of three months' for each and under Section 506 IPC with rigorous imprisonment for a period of one year for each which are to run concurrently, therefore these appeals are heard and being decided together.

2. The prosecution case in brief is that on 06.11.2011 at 3.00 P.M. informant Anil Kumar s/o Yodhan r/o Bilaujha (Banati), Police Station Haldharpur, District Mau alongwith his brothers Sunil, Pappu and Arvind was cutting down the boundary line of his field located beside Saiyad Baba in SHEEVAN of Naseerabad Kala. His cousin Rama Shankar, Surjeet @ Loha, Gaurishankar @ Bhuwar and their brother-in-law Phoolbadan came there and assaulted them with sticks and spade. Surjeet @ Loha was armed with spade and others with sticks. Surjeet @ Loha exhorted to kill them. They fell down on the ground as a result injured-Sunil and Pappu became unconscious. Informant and his brother Arvind cried for help. Villagers came there. Then accused-appellants fled away from the spot but Pappu succumbed to injuries and Sunil was brought to the hospital with the help of villagers where he also succumbed to injuries.

3. On the same day at 4.15 P.M. informant Anil Kumar lodged the F.I.R. at Police Station Haldharpur against accused-appellants Rama Shankar, Surjeet @ Loha, Gaurishankar @ Bhuwar and Phoolbadan as Case Crime No. 828 of 2011 under Section 307, 302, 324, 352, 504, 506 IPC read with Section 34 IPC. Entry of F.I.R. was made in G.D. Report No. 27 and chitthi majroobi of injured Sunil Kumar was prepared and he was sent to the hospital for treatment. Investigation of the case was handed over to Station Officer S.I. Indrajeet.

4. Injured Sunil Kumar was medically examined on the same day at 6.15 P.M. at District Hospital, Mau. Following injuries were found on his person:

I. Incised wound 9.5 cm x 1 cm x bone deep on left parietal region of skull, 8 cm above from left ear. Advised for x-ray of skull.

II. Contusion 3 cm x 2 cm on right occipital region of skull 11 cm post to right ear. Advised for x-ray of skull.

III. Abraded contusion 3 cm x 2.5 cm on left side of forehead 2 cm from left ear.

IV. Contused swelling 11 cm x 12 cm on dorsum of left hand including fingers. Advised x-ray of left hand.

V. Abraded contusion 14 cm x 8 cm dorsum of right hand including fingers. Advised x-ray of right hand.

VI. Lacerated wound 3 cm x 1.5 cm x 40 cm on left leg, 11 cm below from left knee joint. Advised x-ray of left leg.

VII. Abrasion 2 cm x 1 cm on front of left leg 3 cm above the injury no. 6. Advised x-ray of left leg.

VIII. Contusion with swelling 9 cm x 7 cm around the injury no. 6 and 7. Advised x-ray of left leg.

IX. Contused swelling 9.5 cm x 5.5 cm on lateral aspect of left ankle joint. Advised x-ray left ankle.

Opinion: all injuries KUO except injury no. 3. Injury no. 3 is simple in nature. Injury no. 1 caused by sharp object. Other injuries caused by hard & blunt object. Duration fresh. Patient admitted in emergency.

On the same day Sunil Kumar succumbed to injuries at District Hospital.

5. Investigating officer Indrajeet alongwith S.I. Shri Ram Vishwakarma arrived at the place of occurrence on the same day at about 4.45 P.M. and got prepared inquest report about deceased Pappu and his dead body was sealed and handed over to constable and Head Constable Hari Ram with essential papers for carrying the dead body to mortuary for post-mortem.

6. On 7.11.2011 inquest report of deceased Sunil was also prepared by S.I Shri Ram Vishwkarma and dead body was sent for post-mortem.

7. On the same day autopsy of the dead bodies of Pappu and Sunil Kumar was done and post-mortem reports were prepared by Dr. Mahendra Kumar Gupta.

8. The post-mortem report of deceased Pappu shows that he was aged about 18 years. Average built body. Eyes and mouth closed. Rigor mortis was present in lower extremitis. Ante-mortem injuries:-(1) Lacerated wound 3 cm x 2 cm on forehead right side just above eyebrow x bone deep underlying frontal bone fractured. (2) Lacerated wound 2 cm x 2 cm on bone of index finger of right hand x bone deep.

In internal examination: membranes and brain were found lacerated, right & left lungs were pale, right chamber was full and left chamber was empty, semi digested food material 200 ml was present in the stomach, fecal matter and gases were present in small and large intestine, rectum was partially loaded, gall bladder was half filled weighing 11 gm, pancrease 300 gm, spleen 250 gm, kidneys 200 gm, urinary bladder was empty. Cause of death was coma due to ante-mortem head injury.

9. The post-mortem report of deceased Sunil Kumar shows that he was aged about 22 years. Average built body. Eyes and mouth closed. Rigor mortis was present in all limbs. Other natural orifice were NAD. Ante-mortem injuries:-(1) Stitched wound left side skull after removal 9 stitch length 8 cm x width 1 cm x bone deep, 8 cm above the left ear pinna underlying temporal parietal bone fractured. (2) Stitched wound left side leg 4 cm below left side knee joint on removal of stitch length 3 cm x width 1 cm x bone deep. Underlying tibia fibula fractured. (3) Stitched wound 1 cm x ½ cm x muscle deep on right hand dorsal surface.

In internal examination: membranes and brain were found lacerated. Ribs cartilages pleura larynx were NAD. Right & left lungs were NAD. Pericordium was NAD. Right chamber was full and left chamber was empty. Oesophagus was NAD. Vocal cavity teeth 16/16. Semi digested food contents about 200 ml in the stomach. Small intestine and large intestine were full with gases & fecal matter. Rectum was partially loaded. Lever weighing 1100 gm. Gall bladder was half filled. Pancrease 250 gm. Spleen 250 gm. Kidneys 300 gm. Urinary bladder was empty. Cause of death was coma due to ante-mortem head injury.

10. On 06.11.2011, Investigating Officer Shri Indrajeet visited the site of occurrence, he recovered a blood stained spade and three sticks (lathies) from the spot. Taking these items in his possession, he sealed them and prepared the memo in presence of witnesses. He also took plain and blood stained soil from the spot where incident took place and sent them to forensic science laboratory for analysis. He prepared the site plan and recorded the statements of witnesses. Having collected the evidence, he filed charge sheet against appellants under Sections 307, 302, 324 read with Section 34, 352, 504, 506 IPC before the court of Chief Judicial Magistrate, Mau.

11. The court concerned took cognizance of the offence and provided copies of papers to appellants in compliance of Section 207 Cr.P.C. The case was committed for trial to the court of session against appellants Rama Shankar, Gauri @ Bhuwar and Phoolbadan.

12. Accused-Surjeet @ Loha was found to be juvenile, therefore, case against him was sent to Juvenile Justice Board for inquiry.

13. The court of Session (hereinafter referred to as 'Trial Court') framed charges against appellants under Sections 307, 302, 324 IPC read with Section 34 IPC and 352, 504, 506 IPC. Charges were read over to appellants. They did not plead guilty but denied and claimed for trial.

14. In support of its case prosecution examined P.W.1 Anil Kumar (informant). P.W.2 Arvind as witness of fact. P.W.3 Dr. B.B. Singh who examined injured/deceased Sunil Kumar and prepared injury report. P.W.4 Dr. Mahndra Kumar Gupta who conducted autopsy and prepared post-mortem reports relating to deceased Pappu and Sunil Kumar. P.W.5 S.I. Indrajeet who investigated the case and prepared the charge sheet. P.W.6 Head Constable Rajendra Prasad Yadav who lodged the F.I.R. on the basis of tahreer (information) given by informant and made G.D. Entry. P.W.7 constable Siddheshwar Pandey as parokar.

15. After conclusion of prosecution evidence statements of accused-appellants were recorded under Section 313 in which they denied the prosecution version and said it to be false.

16. Appellants were given opportunity for defence. They examined D.W.1 Kamla Ram, D.W.2 Chhangur Rajbhar and D.W.3 Biggu and in defence they filed some papers form 55-kha to 58-kha through list of 54-kha.

17. Thereafter, arguments were heard for both the parties prosecution as well as appellants and they were found guilty as a result they were convicted and sentenced as aforesaid by judgment and order dated 25.07.2015 under challenge in these appeals before this Court.

18. We heard Mohd. Monis, learned counsel for appellants and Shri Ravi Prakash, learned A.G.A. for the State and perused the record.

19. Learned counsel for the appellants submitted that informant lodged the first information report after consultation which is ante-time. They have been falsely implicated. There is no motive to murder two real brothers by their cousin (appellants) and brother-in-law. P.W.1 and P.W.2 are real brothers. They are relative and interested witnesses. No any independent witness has been examined by the prosecution. P.W.1 is handicapped, he cannot reach the site of occurrence by jumping four feet high boundary wall of the field, so his presence and testimony becomes suspicious. P.W.2 is not reliable because he is not able to know whereabouts of the place of occurrence. Injuries have been said to be caused with spade which was in the hands of accused-Surjeet @ Loha who has been declared juvenile. So, these accused-appellants cannot be made liable for that. The injuries caused to deceased persons may happen by fall on edge of spade as opined by doctor, it creates doubt. Accused-appellant Phoolbadan was out in relation to employment. Inquest report has also not been testified by the witnesses. In this way whole prosecution story is not believable and trial court has erred in making proper appreciation of evidence on record. It has recorded the conviction and sentence only on the basis of surmises and conjectures which is liable to be set aside. Thus, accused-appellants are requested to be acquitted.

20. Learned A.G.A. opposed the argument advanced by learned counsel for appellants and submitted that there is no law which makes relative witness unworthy of credit. F.I.R. is not ante-time. There is no contradictions in the witness account. This is a case of direct evidence so absence of motive is of no effect. Informant and accused-appellants belong to the same family & village. Therefore, no person of the village dare to come as witness but testimony of witnesses inspires confidence. There is no iota of suspicion. Learned Trial Court has rightly convicted and sentenced to appellants for the charges, therefore, these appeals are liable to be dismissed.

21. From the submissions made by learned counsel for the parties and perusal of record, the following question emerge for consideration before this Court. Whether appellants are proved to be responsible for causing injuries to the deceased persons which later on, proved fatal to them and also as to whether the F.I.R. is anti-time; motive is absent; witnesses are relatives and credibility of their account; case of defense that deceased persons died of falling from a tree in which members of their family got monetary gain from the Government and accused/appellant Phoolbadan was not present at the time of occurrence but he was working for his livelihood in Benglore.

22. Before we deal with the contentions raised by learned counsel for the appellants, it will be convenient to take note of the evidence which has been adduced by the prosecution.

23. PW-1 Anil Kumar has deposed that on 06.11.2011 at about 3 o'clock, he alongwith his brothers Sunil, Pappu and Arvind was cutting down the boundary line of his field. Meanwhile his cousin Ramashankar, Sujit @ Loha, Gauri Shankar @ Bhunwar and Phoolbadan assailed with lathi, danda and spade. Sujit was equipped with spade and others with lathi. Sujit incited to kill. They all beat Sunil and Pappu with the help of lathi, danda and spade. Injured became unconscious then accused/appellants ran towards Arvind who was crying for help. Anyhow he managed to escape and informed the villagers who came there and appellants went away. Pappu succumbed injuries and Sunil was groaning due to injuries and was crying to rescue him. With the help of villagers Arvind brought him to the District Hospital where he also succumbed to injuries at 6:45 P.M.

24. PW-2 Arvind has deposed that occurrence took place at 3:00 P.M. on 06.11.2011. At the time of occurrence, he alongwith his brothers Anil, Sunil & Pappu was cutting down the boundary line of his field in the Siwan at Naseerabad Kalan. After a while appellants namely Ramashankar, Sujit @ Loha, Gauri Shankar @ Bhunwar and Phoolbadan having lathi, danda and spade came there. Sujit @ Loha exorted to kill and all the appellants started assaulting Sunil Kumar and Pappu. Sunil Kumar became unconscious and Pappu died on the spot. Anyhow he escaped and informed in the village. Villagers came on the spot then accused persons went away while abusing. He brought Sunil Kumar to District Hospital where he succumbed to injuries at 6:45 P.M.

25. Both these witnesses have been put through grueling cross-examination but they have categorically stated the names of these four accused/appellants for committing the murder of Pappu and Sunil Kumar. They have never said that they were not present on the spot though there are some contradictions in their testimony but they are of cosmetic nature so of no use.

26. There is no enmity between the parties. They belong to near relation. There is no dispute about identification of appellants. Occurrence took place at 3 o'clock in the day time. Appellants have also not disclosed any enmity with the informant as well as with prosecution witnesses which might adversely affect their reliability and become an excuse for implicating them falsely while absolving real culprits.

27. There is not even an iota of evidence on record which may even remotely suggest that PW-1 and PW-2 had any grouse against the appellants for any cause to implicate them falsely. In our opinion the evidence on record clearly establishes the case of prosecution against the appellants beyond any shadow of doubt.

28. Injuries on the person of deceased Pappu and Sunil Kumar were caused by spade, lathi and danda as stated by PW-1 and PW-2. Exibit Ka-2 is injury report of deceased Sunil Kumar which shows multiple injuries on his person. PW-3 Dr. B.B. Singh has proved the injuries and told that injury no.1 was caused by some sharp edged weapon and others were caused by some hard and blunt object. He also opined that injury no.1 might be caused with gadasa and others with lathi, danda. All the injuries were caused at about 3:00 P.M. on 06.11.2011. PW-4 Dr. Mahendra Kumar Gupta conducted post-mortem of the dead body of the deceased Pappu and Sunil Kumar. He stated that on the person of Pappu there was lacerated wound 3x2 cm bone deep on head above right side eye, frontal bone was fractured, other lacerated wound 2x2 cm x bone deep was on the base of index finger in right hand. Cause of death was ante-mortem injury on the head. He also opined that all these injuries might have been caused with lathi, danda and spade or by sharp edged weapon at about 3:00 P.M. on 06.11.2011. Likewise on the body of Sunil Kumar, he found temporal and parietal bone fractured. On left leg 4 cm below knee joint there was fracture in tibia and fibula bones. He opined that cause of death was coma as a result of ante-mortem head injury and all the injuries might have been caused on 06.11.2011 at about 3:00 P.M. by lathi, danda and spade like sharp objects.

29. In this way injuries found on the body of the deceased Pappu and Sunil Kumar are proved to have been caused with lathi, danda and spade at about 3:00 P.M. on 06.11.2011 and it corroborates the manner of causing injuries resulting into death as stated by PW-1 and PW-2. Thus, the eye witnesses account finds complete corroboration from the medical evidence on record.

30. There is no any inordinate delay in lodging the F.I.R. Occurrence took place at 3:00 P.M. and F.I.R. was lodged at 4:15 P.M. The distance between police station and village where the incident took place is 10 kms, therefore, F.I.R. is prompt.

31. PW-5 Sub-Inspector, Indrajeet Singh has proved investigation of the case. Exibit Ka-5 & Exibit Ka-6 are fard (recovery memos) of weapons lathi, danda and spade used in the commission of crime. He has also proved the bundles containing boxes of blood stained and plain soil. Exibit Ka-22 is report from Forensic Science Laboratory where lathi, danda and spade, blood stained and plain soil was sent for analysis and blood stains were also found on them. It proves that lathi, danda and spade were used in commission of crime and place of occurrence was the same as stated by PW-1 and PW-2.

32. It has been argued that PW-1 Anil Kumar has expressed in his cross-examination that he got tehrir written by Ashwani Kumar who met him at 6:00 P.M. on the place of occurrence but time of lodging the F.I.R. has been shown to be at 4:15 P.M. which is not possible. It clearly shows that F.I.R. was lodged ante-time. Not only this but PW-2 has also made similar statements.

33. In this regard the time mentioned in the F.I.R. is 4:15 P.M. when it was lodged at the police station on the basis of tehrir given by informant. G.D. Entry also shows the time of lodging the F.I.R. as 4:15 P.M. On inquest report of deceased Pappu Exibit Ka-11 time of lodging the F.I.R. has been mentioned by Sub-Inspector, Ramji Vishwakarma as 4:15 P.M. He has started inquest at 4:45 P.M. and concluded it at 5:00 P.M. This inquest report has been prepared in presence of witnesses Dashrath, Manoj, Vijay Kumar, Sunil Kumar and Anil Kumar. Chitthi Majrubi for injured/deceased Sunil Kumar was also prepared by Head Constable at police station concerned at the same time when F.I.R. was lodged and Sunil Kumar has been medically examined at about 6:20 P.M. at District Hospital. Medical Report prepared by the doctor is Exibit Ka-2 which is written on the back side of Chitthi Majrubi. It infers that F.I.R. was lodged at police station prior to 6:20 P.M. F.I.R. as well as medical report both cannot be said to be ante-time because Medical Officer might have no interest in preparing such report anti-time. In this way, the submission made by learned counsel for the appellants that tehrir was got written by Ashwani Kumar after 6:00 P.M. and F.I.R. was lodged ante-time i.e. at 4:15 P.M. does not get support. Discrepancies in the statements of PW-1 and PW-2 in this regard are immaterial and negligible. Thus, argument made by learned counsel that F.I.R. is ante-time is not sustainable.

34. Learned counsel has also drawn attention of this Court towards the absence of motive to commit murder. He urged that the prosecution has failed to prove any motive on the part of the appellants to commit the crime.

35. It is true that there is no mention of motive in F.I.R. about the commission of crime. Even PW-1 and PW-2 have also not disclosed anything that became the root cause of committing murder by the appellants. The instant cause of commission of crime cannot be said to be as cutting down of boundary line of their field by the deceased persons but there is no such principle or rule of law that where the prosecution fails to prove motive for commission of the crime, it must necessarily result in acquittal of the accused. Where ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of crime has not been proved.

36. In State of Himachal Pradesh Vs. Jeet Singh 1999 (38) ACC 550 SC, it was held that no doubt it is a sound principle to remember that every criminal act was done with a motive but it's corollary is not that no offence was committed if the prosecution failed to prove the precise motive of the accused to commit it as it is almost an impossibility for the prosecution to unravel full dimension of the mental deposition of an offender towards the person whom he offended.

37. In Nathuni Yadav and others vs. State of Bihar and others 1997 (34) ACC 576, it was held that motive for committing a criminal act, is generally a difficult area for prosecution as one cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act and such impelling cause unnecessarily need not be proportionately grave to grave crimes. It was further held that many a murders have been committed without any known or prominent motive and it is quite possible that the aforesaid impelling factor would remain undiscoverable.

38. In our opinion, in the facts and circumstances of the case the absence of an evidence on the point of motive cannot have any such impact so as to discard the other reliable evidence available on record which certainly establishes the guilt of the accused. In the case of Thaman Kumar vs. State of Union Territory of Chandigarh 2003 (47) ACC 7 the Hon'ble Apex Court has reiterated the same view after taking into consideration the aforementioned cases.

39. The next limb of argument of learned counsel for the appellants is that the prosecution had examined highly interested and relative witnesses and they have not produced any independent witness in support of its case. No doubt the witnesses of fact examined in the case are real brothers but both of them are clearly related to the deceased. Relationship itself is not a ground to reject the testimony of witness, rather he would be last person to leave the real culprit and falsely implicate any other person.

40. In the case of Brahm Swaroop and another vs. State of U.P. (2011) 6 SCC 288 the Hon'ble Apex Court in Para No.21 has observed as under

"merely because the witnesses were related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that affects the credibility of a witness, more so, a relation would not conceal the real culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases the Court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence."

41. The Court also referred cases of Dalip and others vs. State of Punjab A.I.R. (1953) SC 364; Masalti vs. State of U.P. (A.I.R.) 1965 SC 202.

42. In Masalti vs. State of U.P. (A.I.R.) 1965 SC 202, the Hon'ble Apex Court observed in Para No.14

"but it would, we think, be unreasonably 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 sole ground that it's partisan would inveriably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it's partisan cannot be accepted as correct.

43. It is common knowledge that village life is faction ridden and involvement of one or the other in the incidents is not unusual. One has also to be cautious about the fact that wholly independent witnesses are seldom available or are otherwise not inclined to comeforth. Lest they may invite trouble for themselves for future. Therefore, relationship of eye-witnesses inter se, cannot be a ground to discard their testimony. There is no reason to suppose the false implication of the appellants at the instance of the eye-witnesses. It would also be illogical to think that witnesses would screen the real culprits and substitute the appellants for them.

44. This Court has also made such observations in Para No.14 of Rameshwar and others vs. State 2003 (46) ACC 581.

45. Learned counsel for the appellants also argued that deceased persons were climbing on a tree and fell down on the spade kept thereunder as a result sustained injuries ensuing their death for which compensation was given to the dependents by the Government but owing to enmity they have been implicated in this case. To support this argument he has examined DW-3 Biggu who has stated in his examination-in-chief that there was no any dispute or marpeet between Ramashankar, Anil, Pappu and Sunil Kumar on 06.11.2011. In cross-examination he has stated that Sunil Kumar and Pappu were not murdered but they died of falling from a tree. They fell down from a tree at 12 o'clock in the day. He further stated that the tree from which Pappu and Sunil Kumar fell down is located at the site of Sayed Baba. They climbed on the tree for breaking woods and they fell down, he did not go there to rescue them. In the light of statement made by this witness, when we consider the evidence on record, it appears that the statements of appellants under Section 313 Cr.P.C. never spoke about such defense. Site plan Exibit Ka-7 shows that the site of Sayed Baba is located in the south at about 20 steps far from the place where the dead body of the deceased Pappu and injured Sunil Kumar were found lying as indicated by A & B. In between the two places there are bamboo shrubs in continuous like boundary wall. It can not be possible for the dead person and so grieviously injured person to go away from the place at Sayed Baba to the places A & B. Further, the witness said himself to be present in his field till 4:30 P.M. which was 10 to 15 steps far from the place of incident but he had not disclosed as to how dead body of deceased Pappu and injured Sunil Kumar reached on the place A & B. In addition to this no broken woods were found anywhere around the place of occurrence whether that be place A & B or near Sayed Baba site. In this regard no question has been put before the Investigating Officer on the part of appellants during his cross-examination before the trial Court. In this way the testimony of DW-3 is not reliable but appears to be totally false.

46. In this regard PW-1 and PW-2 have categorically stated before the Court that appellants assaulted Pappu and Sunil Kumar with lathi, danda and spade. Sujit @ Loha used spade. Medical report Exibit Ka-2 shows 8 injuries on the person of deceased Sunil Kumar; an incised wound Injury no.1 was found on the skull, 8 cm above left ear. Injury No.2 was on the right occipital region of skull; Injury No.3 abraded contusion was on the left side of forehead. Injury No.4 contused swelling on left hand. Injury No.5 abraded contusion on right hand including fingers. Injury No.6 lacerated would on left leg 11 cm below knee joint. Injury No.7 abrasion on left leg. Injury No.8 contusion with swelling around Injury Nos.6 & 7. Injury No.9 contused swelling on left ankle joint. Except Injury No.3 all injuries were kept under observation. Injury No.1 was caused by sharp edged weapon. Post-mortem report of deceased Sunil Kumar is Exibit Ka-4 in which ante-mortem injury shows fracture of parietal bone. Tibia and fibula in left leg was also fractured. Likewise post-mortem report of deceased Pappu shows fracture of frontal bone.

47. PW-3 Dr. B.B. Singh has stated that injury no.1 might be caused with sharp edged weapon and other injuries with lathi and danda. In his cross-examination he has expressed possibility that injury no.1 might be caused by falling on sharp edged weapon and likewise Injury no.2 to 9 might have also been caused by falling on the ground. PW-4 Dr. Mahendra Kumar Gupta who conducted post-mortem has stated in his cross-examination that Injury no.1 on the person of deceased Pappu might be caused by striking several times. He had also denied the possibility of death of deceased Pappu and Sunil Kumar by falling from any hill or highly situated place.

48. The nature of injuries on the person of Sunil Kumar shows that there are injuries all over his person. Usually a man falling from a free will get injury of fracture either on head or on legs but injuries (fracture) on both sides are not possible.

49. Exhibit Ka-7 is site plan. Investigating Officer has shown the place of occurrence as A & B where deceased Pappu and Sunil Kumar were found lying. There is no any tree on this place. There are trees of guavas, mullberries, neem and mangoes but far from that place. In this point of view also the arguments of learned counsel for the appellants is of no substance.

50. Learned counsel for the appellants has also argued that appellants Phoolbadan was not present on the spot at the time of occurrence but he was out in relation to his livelihood and was living at Benglore.

51. In the statement of Phoolbadan u/s 313 Cr.P.C. he has not made such statement. Suggestion in this regard has been placed before PW-1 but he has never acceded the absence of Phoolbadan. During his cross-examination he has asserted that appellant Phoolbadan was present with other appellants at the time of incident. PW-2 Arvind has also denied the suggestion regarding appellant Phoolbadan as not being present at the place of occurrence.

52. In defense appellants have examined DW-1 Kamla Ram who has stated that from 2008 to 2011 i.e. till December 2011 Phoolbadan worked at Benglore with him. For a period of one year Phoolbadan lived with him in a room thereafter Phoolbadan took his family and began to live in adjacent room. They, both, worked together. He got Phoolbadan admitted in hospital when he fell ill. At the time of coming home Phoolbadan fell ill and doctor advised him to take rest. He came back home in the last of month January, 2011. The hospital where Phoolbadan got admitted was called Municipal Hospital.

53. DW-2 Chhangur Rajbhar who was Village Pradhan of the village Pahdeva Jeet stated that on 06.11.2011 Phoolbadan was not in the Village Kharka. He had been living in Benglore from seven to eight months before and was working there. He came Kharka in the month of January, 2012. He has been implicated falsely in this case. His character is very good. In cross-examination he told that he is resident of village Kharka where Phoolbadan also lives. He was told by father of Phoolbadan that he is to witness in the case of Phoolbadan.

54. On considering the statements made by DW-1 & DW-2, it appears that there is nothing to support the defense version as stated by them. They have not narrated the specific place of work where he was employed. No any job card/duty card/attendance sheet has been filed to support his presence at that specific place at the time of incident. No any admission slip of hospital has been filed to show that on the date of occurrence appellant was not present. Even appellant Phoolbadan has not made any statement in this regard u/s 313 Cr.P.C. Paper nos. 58-kha/1 to 58-kha/4 are prescriptions of medicines but language used therein is not legible. Paper no. 59-kha is medical certificate in which appellant has been shown to be suffering from entric fever but the name & seal of the issuing authority is not legible. No any Authority/Officer has been examined to prove these papers and to support his defense version. So in lack of any such authentic evidence on record the bald statements made on behalf of appellant are of no help to him.

55. Having given our considerations to the submissions made by learned counsel for the parties, we are clearly of the opinion that the prosecution has succeeded in establishing its case against the appellants beyond any shadow of doubt and the view taken by learned Sessions Judge is right.

56. In the result the appeals lack merit and are hereby dismissed.

57. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within one month. Office is directed to keep the compliance report on record.

 
Order Date :- 6th January, 2021 
 
A. Singh
 

 
			(Subhash Chandra Sharma,J.)         (Bachchoo Lal,J.)