Bhikari Pasi vs State Of U.P.
2022 Latest Caselaw 22175 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

						  Reserved on 12.10.2022		
 
                                                              Delivered on 21.12.2022
 
Court No. - 1
 
Case :- CRIMINAL APPEAL No. - 453 of 1993
 
Appellant :- Bhikari Pasi
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Vinod Kumar Singh,Pradeep Kumar Singh
 
Counsel for Respondent :- G.A.,Ram Kewal Tripathi
 
Connected with
 
Case :- CRIMINAL APPEAL No. - 471 of 1993
 
Appellant :- Changur And Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Vinod Kumar Singh
 
Counsel for Respondent :- G.A.,B.M.Sahai
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Mrs. Renu Agarwal,J.

(Delivered by Hon'ble Ramesh Sinha, J.)

INTRODUCTION

1. Three accused persons, Bhikhari Pasi, Changur Pasi and Jogi Darji, were tried in Sessions Trial No.76 of 1988 (State Vs. Changur Pasi & others), arising out of Case Crime No. 186 of 1987, under Section 302/34 I.P.C., Police Station Kotwali Mankapur, District Gonda, by the First Additional Sessions Judge, Gonda.

2. Vide judgment and order dated 22.10.1993, the learned First Additional Sessions Judge, Gonda, convicted and sentenced the accused, Bhikhari Pasi, Changur Pasi and Jogi Darji, in the manner as stated hereinbelow :-

"Under section 302 read with section 34 of the Indian Penal Code to undergo life imprisonment and a fine of Rs.1,000/- each. In default of fine to undergo three months' additional rigorous imprisonment."

3. Feeling aggrieved by the aforesaid judgment and order dated 22.10.1993, convict/appellant-Bhikhari Pasi has preferred Criminal Appeal No.453 of 1993, whereas convict/appellants, Changur Pasi and Jogi Darji, have preferred Criminal Appeal No. 471 of 1993.

4. It is pertinent to mention here that during pendency of the above-captioned appeals, convict/appellant no.1-Changur Pasi of Criminal Appeal No. 471 of 1993 died, hence, Criminal Appeal No. 471 of 1993 filed by him stood abated vide order dated 19.04.2022.

5. Since the above-captioned appeals arise out of a common factual matrix and impugned judgment, this Court is disposing of the same by a common judgment.

FACTUAL MATRIX

6. The prosecution case, in nutshell, is that complainant-Hazari Ram (P.W.1) is the resident of village Kaupa, hemlet of Katnu Raza, Police Station Mankapur. His uncle, namely, Dwarika Prasad Tiwari, was a Teacher in Jigna Junior High School, Jigna, who, on 24.11.1987, went to teach at the school and also asked the complainant (P.W.1) and others to come at Jigna for purchasing fertilizers. For this purpose, on the aforesaid date, at about 2:00 P.M., the complainant-Hazari Ram (P.W.1) and his father Badri Prasad Tiwari were going to Jigna and when they reached northern side of Jigna market, then, they heard hue and cry coming from the southern side of the shop of Dr. Dhanlal. On hearing the hue and cry, when they (P.W.1 and his father) ran and reached there, then, they saw that complainant's uncle Dwarika Prasad Tiwari (deceased) was being assaulted by the convicts/appellants, Changur Pasi, Bhikhari Pasi and Jogi Darji, with knife, tangari and danda. Upon seeing it, when complainant (P.W.1) and his father moved ahead while challenging them, then, convict/appellant-Bhikhari Pasi fired with a countrymade pistol. On hue and cry, Amar Nath Shukla (P.W.2), Om Prakash (son of complainant) and Ramesh Kumar (brother of complainant), who came to study in the school of his uncle (deceased-Dwarika Prasad Tiwari) and many other people reached at the place of occurrence while challenging the accused persons, then all three convicts/appellants fled away towards the eastern side. Thereafter, complainant (P.W.1) carried his injured uncle on cot and brought him to the road (iDdh lMd), wherein they arranged a vehicle and were taking his injured uncle (deceased-Dwarika Prasad Tiwari) to Gonda Hospital, however, on the way, his injured uncle Dwarika Prasad Tiwari succumbed to his injuries.

7. According to the complainant (P.W.1), at the time of occurrence, Changur Pasi was armed with Tangari; Jogi Darji was armed with knife; and Bhikari Pasi was armed with lathi and countrymade pistol. His uncle (deceased Dwarika Prasad Tiwari) was having enmity in respect of a house with Jogi Darji and others, because of which convicts/appellants had murdered his uncle Dwarika Prasad Tiwari.

8. After the death of his uncle Dwarika Prasad Tiwari on the way to Gonda Hospital, the complainant-Hazari Ram scribed the written report (Ext.Ka.1) of the incident and went along with the dead body of his uncle Dwarika Prasad Tiwari to Police Station Mankapur, District Gonda and submitted it on the date of occurrence i.e. 24.11.1987 at 04:25 p.m. at police station Mankapur, District Gonda.

9. On the basis of the aforesaid written report (Ext. Ka.1), Head Moharrir Baburam Tiwari of Police Station Mankapur, District Gonda had prepared a chik F.I.R. (Ext. Ka.4) on 24.11.1987 at 04:25 p.m.

10. A perusal of the chik FIR (Ext. Ka.4) shows that the distance between the place of incident and Police Station Mankapur was 12 kilometers. It is significant to mention that a perusal of the chik FIR (Ext. Ka.4) also shows that on its basis, a case under Sections 302 I.P.C. was registered against convicts/appellants, Bhikari Pasi, Chagun Pasi and Jogi Darji.

11. The investigation of the case was conducted by Inspector Parmatma Nand Ram (P.W.5). His evidence shows that in November, 1987, he was posted as Inspector in police station Mankapur, district Gonda. On 24.11.1987, on the basis of written report, Head Moharrir Babu Ram Tiwari had lodged the F.I.R., bearing Case Crime No.186 of 1987, under Section 302 I.P.C. at 04:25 p.m. in his presence. He recognized the handwriting and signature of Head Moharrir Babu Ram Tiwari on the F.I.R. and also proved the F.I.R. (Ext. Ka. 4). He further stated that when the complainant (P.W.1) came to lodge the report of the incident at police station Mankapur, then, he also brought the dead body of the deceased on a jeep but as the dead body of the deceased was at the gate of the police station, therefore, he, first of all, conducted the ''panchayatnama' of the dead body of the deceased in the presence of the witnesses present there. During ''panchayatnama' of the dead body of the deceased, he recovered a wrist watch, a pen and Rs.81.50 from the body of the deceased and handed it over to complainant (P.W.1) in the presence of witnesses Ram Bahadur and Kamla Kant under recovery memo Ext. Ka.2. He prepared the panchayatnama of the dead body of the deceased at the same time. After that dead body of the deceased was wrapped with floral cloth and sealed it. Thereafter, the dead body of the deceased was sent for post-mortem examination through Constable-369 Tej Pratap Singh and Constable-623 Mahendra Singh. He further stated that he started the proceeding of ''panchayatnama' at 16:55 hour and it was concluded at 18:30 hour. He proved the ''panchayatnama' (Ext. Ka. 6). He also prepared challan lash, sample seal, letter of CMO under his hand-writing (Ext. Ka.7 to Ext. Ka. 11).

P.W.5 has further deposed before the trial Court that he recorded the statements of witnesses present at the police station viz. complainant Hazari Prasad Tiwari (P.W.1), Badri Prasad Tiwari, the witnesses of the ''panchayatnama', namely, Kamla Kant, Rajbahadur Aditya Prasad, Sukuru, Sarju Prasad, Swami Nath Tiwari and Rajendra Prasad Tiwari. Thereafter, he proceeded to the place of occurrence. Upon reaching the place of occurrence, he met with Constable Narsingh Bahadur Singh and Ram Samujh Pandey, who were sent by him there earlier. On being inquired from them, they informed him (P.W.5) that they got information that the accused have fled from the place of occurrence and due to panic, the market was closed and the people had shut themselves inside their houses. Thereafter, he searched the accused but he did not find them. By that time, it was night and proper source of light was not arranged, therefore, he did not inspect the place of occurrence, however, he stayed there.

P.W.5 had deposed before the trial Court that on the next day i.e. on 25.11.1987, he recorded the statements of the witnesses of FIR, namely, Om Prakash and Ramesh Kumar and also in their presence and in the presence of other witnesses, he inspected the place of occurrence and prepared the site plan (Ext. Ka. 12) under his handwriting and signature. He deposed that the deceased was killed at place ''A' mentioned in the site plan, wherein plenty of blood was lying and spangle (fVdyh), shrapnel (NjsZ) and cork (dkdZ) were also found, which were taken into custody and sealed. He also took the blood stained and plain soil in different containers and sealed it. He also recovered a blood stained danda (stick), which was broken into two parts and said to have belonged to the accused, from the place of occurrence and the same was also taken into custody. He prepared the recovery memos of the cartridges & pellets, soil samples, the blood stained stick in his handwriting and signature under recovery memos Ext. Ka-13 to Ext. Ka-15. He further deposed that he found the stains of blood on the doors and wall of the shop of Jagdish Pasi, which was situated at the western side of place where the deceased was killed. This fact was mentioned by him in the investigation report and general diary. Thereafter, he went to the house of the convicts/appellants Jogi and conducted search of his house in the presence of witnesses Gulam Hussain and Vijay Shukla but he neither found the accused nor recovered any articles from there. In this regard, he prepared search memo under his signature and handwriting exhibited as Ext. Ka-16. After that, he went to the house convicts/appellants Bikhari Pasi and Changur and conducted search of their house in the presence of witnesses Moti Lal Mishra and Kedarnath but he neither found them nor recovered any articles therefrom. In this regard, he prepared the search memo under his handwriting and signature exhibited as Ext.Ka-17 and Ext.Ka-18. Thereafter, again he went to the place of occurrence, wherein witness Amar Nath Shukla (P.W.2) met with him and he recorded his statement. He, thereafter, recorded the statements of witnesses present nearby vicinity of the place of occurrence, namely, Dr. Dhanlal Pandey, Pateshwari Prasad, Lalman, Hari Baniya, Ram Abhilakh, Daddan Prasad, Satya Narayan, Chavi Lal, Bhavani, Ram Autar, Smt. Malti, Mahangu, Manjanu, Barkat, Madghiluk, Rajdutt Pandey etc. However, as the school of the deceased was closed, therefore, he could not record the statement of teachers etc. of the school. On 25.11.1987, he again searched the convicts/appellants but he did not find them. On 26.11.1987, he again went to School but he could not find any teacher etc. of the school because school was closed. Thereafter, he recorded the statement of driver of Jeep, namely, Kallu, who brought the injured (deceased) to Gonda hospital and later on he (deceased) died. On 27.11.1987, he again went to the Junior High School, Jigna Market, wherein he recorded the statements of Principal Ram Naresh Dubey, Assistant Teacher Keshav Ram. On 30.11.1987, information regarding surrender of convicts/appellants Changur and Bikhari before the Court was received at the police station and on 01.12.1987, he recorded their statements after taking permission from the Court. He also made application of their police custody but the same was not granted to him. He further stated that there was injury on left thigh of convict/appellant Changur Pasi and on being informed by him about the same, the medical examination of Changur Pasi was conducted on 05.12.1987. On 05.12.1987, information regarding surrender of convict/ appellant Jogi in the Court was received and thereafter, he recorded the statement of appellant Jogi in jail after taking permission from the Court. He received a copy of the medical examination of Changur Pasi on 08.12.1987 and the same was mentioned in the case diary. Thereafter, on 16.12.1987, all the articles along with the seal relating to the case were sent to the Court of Chief Judicial Magistrate, Gonda through Constable Teerth Raj Sonker and on the same date after obtaining docket from the Court, the said Constable proceeded to Lucknow. After concluding the investigation, on 23.12.1997, he filed a charge sheet against three convicts/appellants under his handwriting and signature exhibited as Ex.-Ka 20.

In his examination-in-chief, P.W.5 deposed that on 24.11.1987 at 18:30 hour, he handed over the dead body of the deceased to the Constable for the post-mortem. He further deposed that there was no paved road from Jignaa Bazar to Gonda Sadar nor any conveyance was easily available on it for commute. After that he deposed that somewhere the road was unpaved, somewhere there was kharanja and somewhere it was paved. There was paved road from police station Mankapur to Gonda Sadar and Mortuary.

P.W.5, in his cross-examination, has further deposed that the distance from Mankapur to the mortuary was about 30 kms. The private buses were running from police station Mankapur to Gonda but no taxi is running between them. He further deposed he did not inquire from the Constables as to when they reached with the dead-body as he did not deem it to be necessary. He further deposed that when he proceeded from police station to place of occurrence, till that time, the dead body of the deceased was not sent for post-mortem. He could not tell that if the dead-body was sent for postmortem on 25th through Jeep. The body of the deceased was brought by a Jeep bearing No. URV8550. However, he could not see the persons who came along with the said jeep to police station because the Jeep was stopped at the gate of the police station. He did not try to know that when the body of the deceased was sent to the mortuary for the post-mortem. In the post-mortem, the time of conducting post-mortem was written. In the challan lash, reaching of dead-body was written. In the challan lash (Ext. Ka.7), the time of dead body reaching the mortuary was mentioned as 10:35 a.m. on 25.07.1987. He further deposed that it takes about an hour to reach the mortuary from the station by Jeep. He denied that the same Jeep was used for transporting the body of the deceased to the mortuary as when he started to conduct ''panchayatnama', the Jeep had already gone therefrom. He denied the suggestion that he dictated the written report to the complainant at the police station. He also denied that the written report was submited at sometime in the night or the incident was happened in the late hour of night and the report was lodged by making anti-timed. In the Ext. Ka. 12 (site plan), the deceased was shown to be killed at place ''A' in the eastern side of the ruins to the shop of Jagdish Pasi. He further deposed that Ram Abhilakh, Daddan, Satya Narayan, Smt. Malti, Rajdutt Pandey were the eye-witnesses as they were living nearby the place of occurrence. He did not show their houses in the site plan, however, their houses were situated nearby. He also not mentioned their names as eye-witnesses in the charge-sheet because as they were not willing to give their statements due to fear and these facts were mentioned in the statement of Rajdutt Pandey. He further deposed that he was not aware that the deceased was the person of criminal mindset or number of cases were lodged against him. He was also not aware that a case was registered against deceased Dwarika Prasad in Mankapur Police Station in connection with the murder of Moti Bakhar.

12. The postmortem of the dead-body of deceased Dwarika Prasad Tiwari was conducted on 25.11.1987, at 04:00 P.M., at District Hospital, Gonda by Dr. O.P. Srivastava (P.W.4), who found the following ante-mortem injuries on his person :-

1. Seven incised wound spread on an area of 16 cm x 15 cm extending from Rt. Side forehead to Rt. Side face including zygomatic ray varying direction margin clean cut gaping, tailing in three injuries present largest injury 3 cm x 2 cm x bone deep with incised periosteum & smallest injury 1 cm x 1/2 cm x muscle deep.

2. Five Lacerated wound spread on the area as injury no. 1 varying direction, largest inj 2½ cm x ½ cm x bone deep & smallest inj 1 cm x 1/4 cm x muscle deep.

3. Contusion 5 cm x 3 cm extending on both lips with multiple laceration on corresponding mucous membrane with fracture of Rt. maxilla, nasal bone & extraction of two left upper & three lower teeth.

4. Two Lacerated wound 2 cm x 1/2 Cm X bone deep oblique and 2 cm x 1 cm X bone deep vertical 2 cm apart just behind Rt. ear

5. Lacerated wound 2 cm x 1/2 CM x bone deep oblique, on left side head 7 cm above left eyebrow.

6. Lacerated wound 2 cm x 1 cm x scalp deep vertically placed on middle of head 13 cm above root of nose.

7. Lacerated wound 1½ cm x ½ cm x bone deep oblique on Rt. side head 10 cm above Rt. ear.

8. Lacerated wound 3 cm x 1/2 Cm x bone deep vertical on sub- occipital area 11 cm behind left ear.

9. Abraded contusion 3 cm x 2 cm vertical on dorsum of left hand.

10. Contusion 3½ cm x 1 cm oblique on left scapular..

11. Two contusion 11 cm x 2 cm and 8 cm x 2 cm 5 cm apart parallel to each other and underneath of left thigh oblique.

12. Multiple Abraded Contusion on an area of 17 cm x 7 cm on posterolateral aspect of Rt. Forearm.

13. Multiple contusion on an area of 30 cm X 10 cm on posterolateral aspect Rt. arm.

14. Contusion 6 cm x 2½ cm oblique posterolateral aspect of lower part Rt. thigh.

15. Abraded contusion 9 cm x 4 cm oblique anterolateral aspect of Rt. knee.

16. Abraded contusion 4 cm x 1 cm oblique on middle of Rt. Chin.

As per the opinion of Dr. O.P. Srivastava (P.W.4), the deceased died due to shock and hemorrhage as a result of ante-mortem injuries Nos. 1, 2, 3, 4, 5 and 7.

13. It is significant to mentioned that Dr. O.P. Srivastava (P.W.4), in his examination-in-chief, has reiterated the aforesaid ante-mortem injuries and cause of death of the deceased. He deposed that on 25.11.1987, he was posted as Senior Medical Officer in District Hospital Gonda. On the said date at 04:00 P.M., he conducted the post mortem of the deceased Dwarika Prasad Tiwari, who was brought in the sealed cover by Constable C.P No. 623 Mahendra Singh and C.P. No.369 Tej Pratap Singh. He deposed that on external examination of the dead body of the deceased, he found that his physique was average; he was aged about 45 years; rigor mortis was present on his upper limb (++) and on his lower limb (+++); and duration of his death was about one day's ago. He further deposed that on exernal examination of the dead-body of the deceased, he found that his right temporal, maxilla and nasal bone were fractured; clotted blood was present on right temporal and frontal hemisphere; his teeth were 6/13; five ounce of digested food was present in small intestine; partial faecal mater was present in large intestine; liver, spleen and kidneys were pallor; urinary bladder was partially filled. He proved the post-mortem report (Ext. Ka. 3). He further deposed that injury no. 1 could be attributed by knife, however, if tangari was light and small, then, injury no.1 could also be attributed from it. Injuries no. 2 to 16 could be attributed by some weapon like lathi, however, injuries no. 2 to 16 could also be caused by a fall in a standing condition. Injury no.1 could also be caused in standing and falling condition. He further deposed that the death of the deceased could be caused on 24.11.1987 at 3-4 p.m. The deceased could have died on account of injuries sustained by him immediately or he could have died after 1-2 hours. He deposed that as digested food was present in the small intestine, therefore, the deceased died after 4-6 hours from taking the food.

In cross-examination, P.W.4 had deposed that document sent by the police to Sadar Hospital, Gonda was received on 25.11.1987 at 01:00 p.m. He deposed that the death of the deceased is not possible in the intervening night of 24/25.11.1987. There is possibility of occurring difference of 4-6 hours in both side in the time of death of the deceased and as such death could be possible between 10:00 a.m. to 10:00 p.m. on 24.11.1987.

14. The case was committed to the Court of Sessions by Chief Judicial Magistrate, Gonda on 12.02.1988, wherein convict/ appellants, Chhangur Pasi, Bhikhari Pasi and Jogi Darji were charged for the offences punishable under Section 302 read with Section 34 I.P.C. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial.

15. During trial, in all, the prosecution examined five witnesses viz. P.W.1 - Hazari Ram, who is the complainant of the case, P.W.2 - Amar Nath Shukla, who is relative of the complainant (P.W.1), P.W.3 - Om Prakash Tiwari, who is the eye-witness and son of the complainant (P.W.1), P.W.4-Dr. O.P. Srivastava, who conducted the post-mortem of the deceased and P.W.5 - Parmatma Nand Ram, who is the Investigating Officer of the case.

16. The complainant-Hazari Ram (P.W.1), who is the nephew of the deceased, in his examination-in-chief, had deposed that the deceased was his real uncle, who was a teacher in Junior High School, Jigna which was situated at a distance of one mile from his house. The said School was at a distance of about 200 yard (गज़) to the Northern side of Jigna Market. He deposed that he knew all the three accused, Changur Pasi, Bhikari Pasi and Jogi Dariji. Accused Changur Pasi and Bhikari Pasi were real brothers, whereas Jogi was their friend and helper. Changur Pasi and Bhikari Pasi were the residents of Pasin Purwa hemlet of Jigna Bazar, whereas accused Jogi Darji was the resident of the Ghowha hemlet of Jigna.

P.W.1 had further stated that all three accused had enmity with the deceased because his uncle had purchased a land in Jigna market. The widow Sabia had lodged a case in respect of the said land and pairvi of the said case was made by accused Jogi and Changur and Bhikari had helped the accused Jogi. Apart from this, a case under Section 107 Cr.P.C. was also initiated against accused persons and his uncle was doing the pairvi of the case on behalf of Vikrma, which was lodged on the report of accused Jogi against Vikrma Master and Ram Naresh, because of which, accused were annoyed with his uncle Dwarika Prasad (deceased). Accused also used to threaten his uncle to kill.

P.W.1 had further deposed that about 41 months ago, at about 09:00 a.m., his uncle went to Junior High School Jigna for teaching and his uncle called him and his father Badri Prasad Tiwari at Jigna market for purchasing fertilizers and also asked him to come in School between 12:30 p.m.-01:00 p.m. Thereafter, he (P.W.1) and his father reached in Jigna Market at about 1:30 p.m. wherefrom he and his father went towards market as his uncle did not meet him in School because of being interval. However, he (P.W.1) came to know that his uncle went to drink tea in the market. At about 2:00 p.m., when he (P.W.1) and his father reached near the shop of Dr. Dhanlal, then, they heard noise coming from southern side. On hearing the noise, he (P.W.1) and his father ran and reached near the shop of Jagdish Pasi and saw that accused Jogi armed with knife, Changur armed with tangari, Bhikhari armed with countrymade pistol and lathi were assaulting his uncle, as a consequence of which, his uncle fell down on ground near the doors of Jagdish Pasi. He further stated that they saw the assault upon his uncle by tangari, lathi and knife by the accused persons. After that they (P.W.1 and his father) raised alarm, upon which, Amar Nath (P.W.2), Ramesh Kumar, Om Prakash (P.W.3) and other people reached there. After that when they (P.W.1 and his father) and witnesses, while challenging, moved ahead, then, accused Bhikhari fired in air from countrymade pistol. Thereafter, the accused ran towards the northern side of the house of Warkat Mali. After that they went near his uncle and saw that his uncle had sustained multiple injuries and there was lot of blood. Thereafter, they arranged a cot, brought his uncle (deceased) to the paved road and carried him to Mankapur by a tempo, wherefrom they went to District Hospital, Gonda by a Jeep and when they reached near Jhilahi market, his uncle succumbed to his injuries. After that he (P.W.1) got paper from the market and scribed the written report (Ext. Ka.1) and through the same Jeep brought his uncle (deceased) to Mankapur Police Station and lodged the report, on the basis of which, FIR was registered at around 4:30 p.m.. at Mankapur Police Station. He proved the written report (Ext. Ka-1).

P.W.1 had further deposed that when he reached at the Police Station, the Inspector was not present there and he arrived after 10-15 minutes. After that the Inspector had recorded the statement of him (P.W.1) and his father and saw the dead body of his uncle and conducted its panchayatnama at police station itself. The Inspector had handed over a wrist watch, one ball-point pen and cash of Rs.81.50 which were in the pocket of jacket (सदरी) of his uncle (deceased) by preparing a recovery memo in the presence of Rajbahadur and Kamla Mishra. He proved the said recovery memo (Ext. Ka-2). He further deposed that after conducting panchayatnama of the dead body of his uncle (deceased), the dead body of his uncle was sealed and sent for post-mortem. On the next day, the Inspector visited the place of occurrence on the pointing out of (P.W.1), Ramesh and Amar Nath (P.W.2). A piece of lathi, empty cartridge, pellets and tikli were found lying on the spot. Apart from this, Inspector collected blood stained soil and plain soil in separate containers and sealed it.

In cross-examination, P.W.1 had deposed that he was the nephew of the deceased Dwarika Prasad. He and his uncle Dwarika Prasad were living in the same house. Badri Prasad was his father; Om Prakash (P.W.3) was his son; Ramesh Kumar was his brother; Amarnath Shukla was the resident of Murli Datauli, which was situated three kilometer in north-eastern side from Jigna Market. He further deposed that Dwarika (deceased) was the defendant in the case lodged by widow Suviya, however, he did not know that the case was of which boundary of land and where it was going on. The house in dispute was situated in the middle of Jigna market. Dwarika (deceased) won the case. He denied the suggestion that Suviya won the case and Dwarika (deceased) lost the case. Accused Jogi and Changur were doing pairvi of the case from the side of Suviya. He denied the suggestion that Vikarma Master was doing the pairvi from the side of Dwarika (deceased). He further stated that he was neither doing pairvi of the case of Dwarika (deceased) nor witness of case.

P.W.1 had also deposed that he had to get a sack of fertilizer, however, it was not told from which shop he had to get the fertilizer. He and his father left the house at 1:00 p.m. by foot. After leaving home, he and his father firstly went to Junior School, where they came to know that Dwarika (deceased) had gone to have a cup of tea in the market in interval. The tea shop of Ram Autar was 30-40 steps away on the south side from the place of occurrence. He denied the suggestion that deceased was killed in the night and the witness did not see any incident. He also denied the suggestion that he did not saw the murderers and on the advice of Vikrama and Naresh, Jogi and other accused were falsely implicated. No one was injured by the country-made pistol in this incident.

17. Amarnath Shukla (P.W.2), in his examination-in-chief, had deposed that he knew the accused persons Changur Pasi, Jogi Darji and Bhikhari Pasi as well as deceased Dwarka Prasad Tiwari. About 53-54 months ago, at about 02:00 p.m., he was at Jigna market for purchasing some articles. On hue and cry, he ran from the south side and reached near Mahgu's house, where he saw accused Jogi, Changur and Bhikari were assaulting Dwarika Prasad (deceased) about one steps away from the house of Jagdish Pasi. At that time, Jogi was armed with knife, Changur was armed with Tingari and Bhikhari was armed with lathi. He further deposed that when he reached there, Dwarka Prasad (deceased) fell down when the accused were assaulting him. He also deposed that he saw Ramesh, Om Prakash (P.W.3) and many others at the place of occurrence also, who came there after listening the hue and cry. Hazari Ram (P.W.1) and Badri Prasad had also come from the north side and saw the assault on deceased. When they ran towards the accused while shouting, accused Bhikhari Pasi opened fire with a country-made pistol/gun in air and accused fled away towards the north side, passing through Barkat's house from the east. When the accused ran away, they saw that Dwarka Prasad (deceased) had sustained multiple injuries and his condition was serious. He also deposed that the stick with which Bhikhari (accused) was assaulting, was broken and they left the broken piece of lathi on the spot.

P.W.2 had further stated that Hazari Ram (P.W.1) brought the cot. He, Badri Prasad, Hazari Ram (P.W.1) and one another man brought Dwarka Prasad (deceased) on the cot and took him to Andhiyari by foot and reached to Andhiyari at about 03:00 p.m. and from there Hazari Ram (P.W.1) and Badri Prasad brought Dwarika Prasad (deceased) on a tempo to Mankapur and after that he returned back to home. In the morning, he came to know that Dwarka Prasad (deceased) died on the way to Gonda from Mankapur. The Inspector recorded his statement on the next day of the incident at 10:00-11:00 a.m. in the Jigna Market. Blood had fallen on the spot and there was blood splattered on the wall of Jagdish Prasad's house.

In the cross-examination, P.W.2 had deposed that his house was two miles away from the place of the incident. He denied that the distance from his house to the place of incident was of 4 miles. He went to the market for purchasing household items. When he reached market for purchasing items, incident had occurred because of which he could not purchase articles. He knew Dwarka Prasad (deceased) for the past 2-3 years. He used to visit the house of deceased. The name of his father was Satya Narayan.

P.W.2 had further deposed that he was not aware from where Hazari Ram (P.W.1) arranged the cot. The deceased was put in tempo by Hazari Ram (P.W.1), Badri Prasad and others. The witness did not know the names of any other person. There were four or five men in all. The tempo came from the north, however, he did not know the owner of the tempo. He further deposed that he reached home at 5:30 p.m. on foot via Kodasan, which was situated at a distance of 3-4 kms and from there his village was at a distance of half a kilometer.

18. P.W.3-Om Prakash Tiwari, who is the son of the complainant-Shri Hazari Ram Tiwari, had deposed in his examination-in-chief that the deceased Dwarika Prasad Tiwari was his grandfather and was a teacher in Jigna Junior High School in Jigna Bazar. At the time of the incident, he was studying in Class-7 in this school. He further deposed that about 5½ years ago, at about 01:45 p.m., he along with Ramesh Kumar came to Jigna market to drink water. At that time, he heard the noise coming from southern side of the market. On hearing the noise, he (P.W.3), Ramesh and Amarnath reached there and saw that Changur (convict/appellant) armed with tangari, Jogi armed with knife and Bhikhari armed with lathi and countrymade pistol were assaulting his grandfather Dwarka Prasad Tiwari (deceased) in front of the house of Jagdish Pasi. His grandfather Dwarika Prasad Tiwari after sustaining injuries fell down on earth. Apart from them, his father Hazari Ram (P.W.1), Badri Prasad and other people of the market also came there in northern side and when they challenged the accused, then, Bhikhari Pasi had opened fire with countrymade pistol in air and fled away towards eastern side of the house of Warkat Mali. Thereafter, all of them went near to his grand-father and saw that his grand-father sustained multiple injuries in his hands, feet and mouth and he was unconscious. His father (P.W.1) arranged a cot and brought his grand-father to the hospital. Later on, his grand father died. His statement was recorded by the Inspector. He also deposed that since at the time of the incident, there was no system of water in the school, therefore, they went to the market for drinking water.

In cross-examination, P.W.3 had deposed before the trial Court that at the time of the incident, he used to go to school around 10-11 am. On the date of the incident, about 40-50 boys went to drink water. He stayed about 10-15 minutes at the place of the incident after the incident. After that he returned to the house straightaway. On the date itself, he came to know at about 07:00 p.m. that Dwarika Prasad Tiwari succumbed to his injuries. He further deposed that on the next day, his father brought him to Jigna market at about 09:00-10:00 a.m., wherein he met with Inspector. After about one month from the date of the incident, he went to school. His house was at a distance of one mile from the place of occurrence. He denied the suggestion that he was not at the place of occurrence nor saw the incident.

19. The statement of all convicts/appellants were recorded under Section 313 Cr.P.C., wherein convict/ appellant Changur Pasi had stated that the evidence produced by the prosecution are incorrect and they have been falsely implicated in the present case. The prosecution witnesses are close relatives of the deceased and they have deposed against the appellants on account of previous enmity.

Convict/appellant Bhikhari Pasi had stated in his statement recorded under Section 313 Cr.P.C. that he has been falsely implicated in the present case due to enmity as the prosecution witnesses are close relatives of deceased. As the incident took place at night, therefore, no one saw the incident.

Convict/appellant Jogi Darji has stated in his statement recorded under Section 313 Cr.P.C. that he has been falsely implicated in the case on account of previous enmity and the prosecution witnesses being members of one family have falsely deposed against him.

20. The trial Court believed the evidence of the prosecution witnesses and convicted and sentenced them in the manner stated in paragraph-2.

21. Hence the above-captioned appeals.

ARGUMENTS

22. Heard Shri Pradeep Kumar Singh, learned Counsel for the appellants, Shri Ram Keval Tripathi, learned counsel for complainant and Ms. Meera Tripathi, learned A.G.A. for the State.

ARGUMENTS ON BEHALF OF THE CONVICTS/ APPELLANTS

23. Challenging the impugned judgment and order, Shri Pradeep Kumar Singh, learned Counsel for the appellants has made the following submissions :-

I. that the convicts/appellants have falsely been implicated in the instant case by the complainant Hazari Ram (P.W.1) as the deceased was a man of criminal antecedents and, therefore, he had many other enemies, who was done to death at somewhere at some point of time in the night and by concealing these facts, the complainant Hazari Ram (P.W.1) had falsely lodged the F.I.R. against the convicts/appellants only just because of their enmity with the deceased.

II. that the F.I.R. of the incident was ante-time. To substantiate his submission, it has been argued that the dead-body of the deceased were sent for post-mortem in mortuary on 24.11.1987 at 06:30 p.m. through Constable Tej Pratap Singh and Mahendra Singh, however, the dead body of the deceased had reached in mortuary on the next day i.e. on 25.11.1987 at 10:35 a.m. According to him, the delay in reaching the dead-body of the deceased in mortuary shows that the incident happened in the night and in the morning at about 05:00-06:00 a.m., the dead-body of the deceased was sent to mortuary. Furthermore, Dr. O.P. Srivastava (P.W.4) had stated before the trial Court that digested food was present in the small intestine of the deceased, which itself shows that the deceased died after 4-6 hours from taking food. As the deceased was a teacher, therefore, he ought to go school after taking food about 09:30 a.m., therefore, time of the alleged incident shown in the F.I.R. is doubtful.

III. that the place of occurrence as alleged by the prosecution is disputed. Though the panchayatnama of the dead body of the deceased was conducted at the police station, where the complainant had brought the dead body of deceased after he died on account of injuries sustained to him. According to him, the witness of the panchayatnama are of far places who had no occasion to be present at the police station, where the panchayatnama was conducted. Thus, it appears that when the information about the death of the deceased was received by the complainant (P.W.1) and his family members, the witness arrived at the police station and they were shown as witness of panchayatnama by the police.

IV. that there was no motive on the part of convicts/ appellants Changur and Bhikhari to commit the murder of the deceased.

V. that P.W.1-Hazari Ram (complainant) and P.W.3-Om Prakash are the nephew and grand son of the deceased, whereas P.W.2-Amar Nath Shukla is the relative and also the chance witness. Therefore, they are highly interested and partisan witnesses, their testimonies are unreliable.

VI. that the presence of P.W.2-Amar Nath Shukla and P.W.3-Om Prakash at the place of occurrence is doubtful. To substantiate his submission, he argued that P.W.2 happens to be the relative of the deceased and the complainant (P.W.1) and his residence i.e. Village Datauli was situated four kms. away from the place of occurrence, therefore, his presence at the place of occurrence is doubtful. Similarly, P.W.3-Om Prakash is the son of complainant P.W.1-Hazari Ram and his presence at the place of occurrence is also doubtful as he had no occasion to be present at the place of occurrence i.e. Jigna Bazar as he was the student of the same school where the deceased was teaching.

VII. that the trial Court had misread the evidence on record and has erred in convicting and sentencing the appellants, therefore, impugned judgment passed by the trial Court is liable to be set-aside.

ARGUMENTS ON BEHALF OF STATE AND COMPLAINANT

24. Learned A.G.A. has vehemently opposed the arguments of learned Counsel for the convicts/appellants and argued :-

I. that the deceased was a Teacher and had gone to school at 9:30 a.m. for teaching and while going to school, the deceased had asked his nephew/ complainant (P.W.1) and his father to come at Jigna Bazar for purchasing fertilizer at about 2:00 p.m. and when P.W.1 and his father had gone to school where the deceased was teaching, they did not find his uncle (deceased) as there was a lunch hours, however, P.W.1 and his father came to know in the school that the deceased had gone to Jigna Bazar to drink tea and therefore, P.W.1 and his father went to Jigna Bazar and while going there, they heard the hue and cry raised at Jigna Bazar, P.W.1 and his father rushed to the place of occurrence and saw that appellants Changur Pasi armed with Tangari, Jogi Darji armed with knife and Bhikari Pasi armed with lathi and a countrymade pistol were assaulting the deceased mercilessly and at that moment P.W.2 - Amar Nath Shukla, who was also present there at Jhinga Bazar to purchase some articles and P.W.3 Om Prakash Tiwari who is son of P.W.1 and a student of school where the deceased was working, were also present on hearing the shrieks of the people present at Jigna Bazar when the incident took place.

II. The testimonies of P.W.1, P.W.2 and P.W.3 fully corroborates the post-mortem report of the deceased. The deceased received as many as 16 injuries with the weapon which the convicts/appellants were armed with.

III. P.W.4 - Dr. O.P. Srivastav has categorically deposed that on internal examination of the dead body of the deceased, he found that small intestine five ounces of food was present and in large intestine fecal material was present. Thus, the argument of learned Counsel for the appellants that the incident took place in the night and the deceased was done to death by some unknown miscreants, is fallacious one.

IV. that the place of occurrence where the incident took place, was fully proved by the prosecution as the incident took place in front of the house of Jagdish where the blood stain was found. As per the forensic science laboratory report dated 16.12.1987, blood was found on the earth soil which was collected from the place of occurrence. Moreover, on the lathi which was recovered from the place of occurrence, blood was also found on it.

V. P.W.1 had proved the written report Ex.Ka-1 which was lodged by him on the basis of which the FIR of the present case was registered. The prosecution has been able to establish its case beyond reasonable doubt against the convicts/appellants and as such, convicts/appellants have rightly been convicted and sentenced by the trial Court, hence the appeals are liable to be dismissed.

25. Learned Counsel for the complainant has supported the arguments advanced by the learned Additional Government Advocate and argued that the trial Court has rightly convicted and sentenced the appellants by means of the impugned order and there is no illegality or infirmity in the impugned order, hence the criminal appeals filed by the convicts/appellants are liable to be dismissed.

ANALYSIS

26. This Court has examined the submissions advanced by the learned Counsel for the parties and have carefully gone through the impugned judgment and order of conviction and sentenced passed by the trial Court as well as lower Court record.

27. It would become manifest from the impugned judgment and order passed by the trial Court that the trial Court has based the conviction of the convicts/appellants on the ocular account furnished by P.W.1-Hazari Ram, P.W.2-Amar Nath Shukla and P.W.3-Om Prakash Tripathi.

28. This Court would first like to deal with the evidence of complainant P.W.1-Hazari Ram. In short, his evidence shows that convicts/appellants and complainant's family are well acquainted with each other. There was enmity between the deceased and the convicts/appellants (in paragraph 16, hereinabove, it has been furnished in respect of it). P.W.1-Hazari Ram is the nephew of the deceased. On 24.11.1987, at about 09:00 a.m., his uncle (Dwarika Prasad Tiwari deceased) went to teach in school as he was a teacher and while going to school, his uncle (deceased) asked the complainant (P.W.1) and his father to come to School about 12:30-01:00 p.m. for purchasing fertilizer from Jigna Bazar which was situated near to his school. Thereafter, when he (P.W.1) and his father Badri Prasad reached to the school at 01:30 p.m., then, lunch period was going on and they were informed that Dwarika Prasad Tiwari (deceased) went to Jigna Market to drink tea and as such, he (P.W.1) and his father went towards Jigna Market and when they reached near the shop of Dr. Dhanlal at about 02:00 p.m., then, they heard the noise of hue and cry. On hearing the hue and cry, he (P.W.1) and his father ran and reached the place of occurrence and saw that appellant Jogi armed with knife, appellant Changur armed with tangari and appellant Bhikhari armed with countrymade pistol and Lathi were assaulting his uncle (Dwarika Prasad Tiwari). At that moment, Amar Nath Shukla (P.W.2), Ramesh Kumar, Om Prakash Tiwari (P.W.3) and other people were also arrived hearing hue and cry and all of them were challenging the convicts/appellants, upon which appellant Bhikhari opened fire in air with countrymade pistol and all the convicts/appellants fled away from there. Thereafter, all of them went near to the deceased and saw that Dwarika Prasad Tiwari (deceased) had sustained multiple injuries. After that P.W.1 had arranged a cot and brought Dwarika Prasad Tiwari to paved road on a cot, from where he (P.W.1) had arranged a tempo, upon which he went along with Dwarika Prasad Tiwari to Mankapur, from where he along with Dwarika Prasad Tiwari went towards the District Hospital, Gonda through a Jeep but in the way, Dwarika Prasad Tiwari succumbed to his injuries. Thereafter, P.W.1 scribed the report of the incident at Jhilahi market and proceeded along with his father and other persons as well as dead body of the deceased to police station Manakpur and lodge the F.I.R. on the date itself i.e. 24.11.1987 at 04:25 p.m., on the basis of which, F.I.R. of the incident was lodged.

29. Now, this Court has gone through the statement of P.W.2-Amar Nath Shukla, whose evidence shows that on the date of the incident i.e. on 24.11.1987, he went to Jigna market for purchasing household items and when he reached at Jigna market, then, he heard the noise of hue and cry, upon which he ran and reached the place of occurrence, wherein he saw that appellant Jogi armed with knife, Changur armed with tangari and Bhikhari armed with lathi were assaulting Dwarika Prasad Tiwari (deceased) near the doors of Jagdish Pasi. At that moment, Hari Ram (P.W.1), his father Badri Prasad, Om Prakash Tiwari (P.W.3), Ramesh and other people were also came and all of them challenged the convicts/appellants, upon which convict/appellant Bhikhari opened a fire in air with countrymade pistol and after that convicts/appellants fled away from there. After that all of them went near to Dwarika Prasad Tiwari and saw that Dwarika Prasad Tiwari sustained multiple injuries. After that Hari Ram had arranged a cot and after loading Dwarika Prasad Tiwari on a cot, he, Hari Ram, Badri Prasad and one another person brought Dwarika Prasad Tiwari (deceased) to the paved road by foot at about 03:00 p.m., whereupon Hazari Ram (P.W.1) and his father Badri Prasad loaded Dwarika Prasad Tiwrai on a tempo and brought to Mankapur and after that he (P.W.2) went to the house.

30. The evidence of P.W.3-Om Prakash Tiwari shows that he was the student of Class-VII and studied in the school, wherein his grandfather, namely, Dwarika Prasad Tiwari was teaching. On the date of the incident i.e. on 24.11.1987, he went to school and at about 01:45 p.m., he went to drink water in Jigna Market from school as there was no source of water in the school. In the Jigna Market, he heard the hue and cry and on hearing it, he ran and reached the place of occurrence and saw that Jogi armed with knife, Changur armed with tangari and Bhikhari armed with lathi were assaulting his grandfather Dwarika Prasad Tiwari (deceased) and his father Hazari Ram (P.W.1), his grandfather Badri Prasad and other persons were there. All of them challenged the convicts/appellants, upon which appellant Bhikhari Pasi had opened fire in air from countrymade pistol and after that all the convicts/appellants fled away from there. After that all of them went near to Dwarika Prasad Tiwari (deceased) and saw that Dwarika Prasad Tiwari sustained multiple injuries and he was unconscious. After that his father Hazari Ram (P.W.1) arranged a cot and after loading the decased on the cot, his father brought Dwarika Prasad Tiwari towards hospital, however, later on Dwarika Prasad Tiwari succumbed to his injuries.

31. Having gone through the entire depositions of PW1, PW2 and PW 3 even their cross-examination, this Court is of the firm opinion that P.W.1, P.W.2 and P.W.3 are trustworthy and reliable witnesses. Their presence at the time and place of incident has been established and proved by the prosecution.

32. It is trite law that minor contradictions which do not go to the root of the matter and/or such contradictions are not material contradictions, the evidence of such witnesses cannot be brushed aside and/or disbelieved.

33. In the present case, P.W.1, P.W.2 and P.W.3 were thoroughly cross-examined on each and every aspect pointed out by the defence, however, they have fully supported the case of the prosecution. Thus, considering the entire deposition of P.W.1, P.W.2 and P.W.3 as a whole, this Court is of the opinion that the prosecution has been successful in proving the presence of PW1, P.W.2 and PW3 at the time and place of incident. They are found to be trustworthy and reliable.

34. PW1, PW2 and P.W.3 have categorically stated that convict/appellant Jogi armed with knife, Changur armed with tangari and Bhikhari armed with lathi were assaulting the deceased. From perusal of the ante-mortem injuries sustained by the deceased, it transpires that the aforesaid testimonies of P.W.1, P.W.2 and P.W.3 is supported by the medical evidence. As per the ante-mortem injuries, 16 injuries viz. incised wound, lacerated wound, contusion, multiple abraded contusion, multiple contusion were sustained by the deceased. Dr. O.P. Srivastava (P.W.4), who conducted the post-mortem of the deceased, had stated before the trial Court that injury no.1 could be attributed by knife or by tingari as it is light and small, whereas injury nos.2 to 16 could be attributed by lathi or if someone fell from the standing position. Furthermore, as per the report of forensic science laboratory (Ext. Ka.21), soil collected from the place of the occurrence was having human blood.

35. It also transpires from the ante-mortem injuries of the deceased that all the injuries are on different parts of the body which show the intention and conduct on the part of the appellants/convicts. Therefore, they are rightly convicted for the offence punishable under Section 302 IPC with the aid of Section 34 IPC. Their presence and participation have been established and proved by the prosecution by examining PW1 PW2 and P.W.3, who are found to be reliable and trustworthy witnesses.

36. The prosecution has also successfully proved the motive. It is borne out from the evidence on record that there was a prior enmity between the deceased and the convicts/appellants. The convicts/appellants have failed to prove any circumstances by which it can be said that they are falsely implicated in the case.

37. So far as submissions of the learned Counsel for the appellants that the F.I.R. is ante-timed as the autopsy of the body was conducted on the next date of the incident i.e. on 25.11.1987 at 04:00 p.m. and as per the prosecution, panchayatnama of the dead body of the deceased was made on 24.11.1987, this Court may, at the outset, observe that there are no formulae to determine whether an FIR is ante-timed or not. An inference with regard to the FIR being ante-timed is to be drawn only after careful scrutiny of the evidence and material on record. The most common test adopted for the purpose is to find out from the evidence and material on record whether the existence of case details, such as case crime number, etc, that arise on registration of FIR, are reflected in police papers prepared subsequent to the registration of the FIR. Delayed dispatch of the body for autopsy, where autopsy is required, is also a circumstance, in the facts of a case, if unexplained, and it may create a doubt with regard to the existence of the FIR at the time specified.

38. In the instant case, upon a careful perusal of the record, this Court finds from the statement of PW-5-Parmatma Nand Ram, who is Investigating Officer of the case, that the proceedings of panchayatnama was started by him at 16:55 hours and it was ended on 18:30 hours and after that he (P.W.5) sent the dead-body of the deceased for post-mortem along with the requisite documents through Constable Narsingh Bahadur Singh and Ram Samujh Pandey. P.W.1, in his deposition, had stated before the trial Court that after lodging the report, he proceeded to home from police station at 09:00 p.m. and by that time, the dead-body of the deceased was not sent for post-mortem.

39. From the testimony of P.W.5-Parmatma Nand Ram, it transpires that no suggestion has been put to the investigating officer with regard to they bearing any ill motive against the convicts/ appellants or being under any kind of influence of the complainant party to manipulate the records, therefore, the above mentioned circumstances, by itself, are not sufficient to enable this Court to record a finding that the FIR is ante-timed. Thus, from the facts and circumstances of the case, this Court is of the view that appellants/convicts has failed to establish with certitude that the FIR is ante-timed.

CONCLUSION

40. In view of the above and for the reasons stated above, no interference of this Court is called for. The trial Court has rightly convicted and sentenced the convicts/appellants for the offence punishable under Section 302 read with Section 34 of the IPC by means of the impugned order.

41. Under these circumstances, the above-captioned appeals fail and deserves to be dismissed and are, accordingly, dismissed. The convict/appellant Bhikari Pasi in criminal appeal No.453 of 1993 and convict/appellant Jogi Pasi in criminal appeal No. 471 of 1993 are stated to be in jail. They shall serve out the sentence as awarded by the trial Court by means of the impugned judgment and order dated 22.10.1993.

42. Office is directed to transmit the lower court record along with certified copy of this order to the court concerned forthwith for necessary information and compliance.

(Mrs. Renu Agarwal, J.) (Ramesh Sinha, J.)

Order Date :- 21st December, 2022

Anand Sri.