Kailash Chandra Joshi, J.@mdashAppellants, Babru, Labh Chand, Ram Niwas, Ganpat, Karu alias Kalu, Bhagwana alias Bhagwan Singh, Gopal Lal and Nana Lal alias Nanu Ram, had been convicted by the learned Addl. Sessions Judge and Special Judge , Prevention of Atrocities on SC/ST, Pratapgarh, in Sessions Case No. 17/2005 (227/2001) vide judgment dated 12.12.2005 for the commission of offence under Section 148, 302/149, 325/149, 323/149 and sentenced them as under:
1. For the commission of offence under Section 148 IPC sentenced to two years'' rigorous imprisonment,
2. For the commission of offence under Section 302/149 IPC, sentenced to life imprisonment and a fine of Rs. 1000/- and in default of payment of fine, to further undergo one month''s simple imprisonment,
3. For the commission of offence under Section 325/149 IPC, sentenced to five years'' rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine, to further undergo 15 days'' simple imprisonment,
4. For the commission of offence under Section 323/149 IPC, sentenced to six months'' rigorous imprisonment.
2. In addition to the above sentences, accused appellants Labhchand, Karu @ Kalu and Bhagwana @ Bhagwan Singh were also sentenced as under:
1. For the commission of offence under Section 450 IPC, sentenced to five years'' rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine, to further undergo 15 days'' simple imprisonment
2. For the commission of offence under Section 342 IPC sentenced to three months'' rigorous imprisonment.
All the sentences were ordered to run concurrently.
3. The accused appellants have filed this appeal against the above conviction and order of sentence.
4. Out of the above appellants, original accused No. 1 Babru, s/o Chena Rawat r/o Teen Manda, Police Station Chhoti Sadri, had died on 08.10.2007 and the appeal was ordered to be abated qua him, vide order dated 14.10.08.
5. The prosecution story, as unfolded during the trial was that, on 05.08.01 at about 08.30 AM Heera, w/o Mukund , b/c Banchhra r/o Kari, Police Station Mansa, District Neemach (M.P.), submitted an oral report to the Station House Officer, Police Station, Chhoti Sadri, stating interalia that on the previous night of 04.08.01 at 09.00 PM, she, along with her uncle (Fuffa) Radhey Shyam, and other family members of Radhey Shyam, i.e. son Ashok, daughter Lalita, sister of Radhey Shyam Munna, wife of Radhey Shyam Jani and mother of Radhey Shyam Sahibi, were taking their dinner at their residence. At that time Babru, Karu, Labhchand, Bhagwan Singh, Ganpat, Gopal, Nanu Ram and Ramniwas came and stood outside the house of Radhey Shyam and called out to Radhey Shyam. Radhey Shyam refused to come out , at which all the accused appellants entered the house of the deceased Radhey Shyam and forcibly took him out of the house and started beating him. When Sahibi and Jani intervened to rescue Radhey Shyam, they inflicted injuries on them also. After two hours of the incident, Radhey Shyam succumbed to the injuries and died. Due to the injuries inflicted by the above accused appellants, Sahibi also died. The accused appellants also prevented the complainant party from informing the police. On this report , Ex.P/30 a criminal Case No. 306/2001 under Section 147, 148, 149, 452, 302, 342 and 323 IPC was registered and investigation commenced.
6. During the course of investigation , the statements of the witnesses were recorded and the accused appellants were arrested , site memo was prepared and after recovery of the weapons of offence and usual investigation, a charge sheet under Section 148, 147, 149, 452, 302, 342, and 323 IPC was presented in the court of Judicial Magistrate, First Class , Chhotisadri, from where the case was committed for trial to the court of District and Sessions Judge, Pratapgarh and ultimately ,it was transferred to the court of Addl. Sessions and Special Judge , Prevention of Atrocities on SC/ST , Pratapgarh.
7. The accused appellants were charged for the commission of offence under Section 147, 342, 458, 302/149, 325/149, 323/149 IPC. They pleaded not guilty and claimed to be tried.
8. The prosecution examined as many as 21 witnesses , namely, PW/1, Gopal , PW/2,Govind Ram , PW/3, Manohar, PW/4, Dr.Jagdish Verma, PW/5, Shiv Singh , PW/6, Dr.Ramesh Chandra Maheshwari , PW/7, Ratan , PW/8, Jodha Ram , PW/9, Modsingh, PW/10, Ashok, PW/11, Indra , PW/12, Lalita , PW/13, Dinesh PW/14, Ganga Singh , PW/15, Narayan , PW/16, Khem Singh, PW/17 Munni Bai, PW/18,Nanu Singh, PW/19 Jani Bai, PW/20 Heera and PW/21, Puran Singh Bhati.
9. The accused were asked to explain the incriminating evidence adduced during the course of the trial against them under Section 313 Cr.P.C. and the accused produced two witnesses in their defence , namely, DW/1 Moti Lal and DW/2 Mohan.
10. Out of the total witnesses examined by the prosecution, PW/10 Ashok, PW/11 Indra, PW/12 Lalita, PW/13 Dinesh, PW/17 Munni Bai, PW/19 Jani Bai and PW/20 Heera were examined as eye witnesses to the occurrence .
11. PW/4 Dr.Jagdish Verma was the Medical Officer, who conducted the autopsy on the body of deceased Radhey Shyam and Sahiba and also examined the injuries on the person of Jani, Ashok, Munni and Lalita. He noticed following injuries on the bodies of deceased Radhey Shyam and Sahiba on autopsy:
Injuries on the body of Radhey Shyam -
(1) Lacerated wound - size- 5 cm x 1 cm x � cm at occipital region of scalp,
(2) Lacerated wound - size- 8 cm x � cm x � cm at L. parietal region of scalp.
(3) Multiple bruise with swelling of various size at back -- 5 cm x 1 cm - 4cm x 1 cm - 4 cm x 1 cm - 5 cm x 1 cm
(4)Lacerated wound with # of both L. tibia and fibula
(5) Lacerated wound 8 cm x 2 cm x 1cm x � cm - at L. thigh
All wounds were antemortem in nature.
Injuries on the body of Sahiba-
(1)A lacerated wound -size- 3cm x � cm x � cm at L. parietal region of scalp,
(2) A lacerated wound - 2cm x 1/2 cm x � cm at R. side of forehead,
(3) Multiple abrasion on R. side chest - just below nipple-size -3cm x 1cm, 4 cm x 1 cm, 2 � cm x 1cm.
(4) Lacerated wound with fracture at R. humour at middle of R. Arm,
(5) Lacerated wound with # of both tibia and fibula at upper end of R. leg present.
All wounds were antemortem in nature.
12. PW/6, Dr.Ramesh Chandra Maheshwari, prepared the X-ray report Ex.P/18, on the basis of X-ray plates Ex.P/19 and Ex.P/20.
13. PW/21 , Puran Singh Bhati , the Station House Officer of Police Station, Chhoti Sadri , had conducted the investigation and after it''s completion, had submitted a charge sheet against the accused appellants in the court.
14. The main contention of the learned Counsel for the accused appellants, while assailing the judgment of the learned trial court, is that there were serious contradictions in the statements of the eye witnesses and the learned Counsel had concentrated his arguments mainly on the fact of arms, which the accused were carrying at the time of incident. Learned Counsel further argued that PW/10 Ashok , in his cross -examination, had deposed that Kalu was armed with a ''kulhari'' and Bhagwan Singh was armed with a ''dhariya'' and further he deposed that he had sustained an injury on the shoulder, by a ''dhariya'' and also deposed that the injuries from the axe and ''dhariya'' were caused from both the sides of the weapon and further , other eye witnesses PW/11 Indra, PW/12 Lalita, PW/13 Dinesh PW/17 Munni Bai and PW/19 Jani Bai had deposed that all the accused were armed with ''lathis'' and they had not stated about any sharp edged weapon. This is a serious contradiction in the statement of the prosecution witnesses .
15. Further , the learned Counsel for the accused appellants contended that lodger of the First Information Report, PW/20, Heera, did not corroborate the prosecution story, therefore, she was declared hostile and looking to the above major contradictions in the statement of the witnesses , along with non-corroboration of the statement of other witness , by PW/20 Heera, was fatal to the prosecution and in the above circumstances, the prosecution story and the statement of the witnesses , could not be relied upon for convicting the accused appellants.
16. The learned Counsel for the accused appellants further contended that there was an unreasonable delay in lodging the FIR , and the prosecution witnesses, as deposed regarding delay in filing the FIR, could not be termed as a reasonable delay and the explanation submitted by the prosecution witnesses was not plausible.
17. The learned Counsel for the accused appellants relied on the following authorities in support of his submissions:
1.
2.
3.
18. The learned Public Prosecutor, strenuously defended the judgment of the learned trial court and argued that the witnesses were rightly relied on by the trial court and the judgment of the learned trial court, did not suffer from any infirmity, illegality or perversity and the presence of the witnesses at the scene of the occurrence, was natural one and the minor contradictions in the statement of the witnesses, were
19. The learned Public Prosecutor also argued that the injuries inflicted on the bodies of Sahiba and Radhey Shyam, were on their vital parts , i.e. on the left parietal region and right side of the forehead of the deceased Sahiba and the left parietal and occipital region of the deceased Radhey Shyam.
20. We have considered the rival contentions of the learned Counsel for both the parties and also scanned and evaluated the ocular evidence, as well as the other evidence, available on record.
21. As per the statement of PW/4 Dr. Jagdish Verma , in addition to conducting of autopsy of two deceased persons, he had examined the injuries on the bodies of Jani , who had five external injuries, Munni Bai who had two external injuries and Lalita who also had two external injuries. Further, as per the statements of PW/6 Dr.Ramesh Chandra Maheshwari, there was a fracture on the left tibia and right radius and ulna on the body of deceased Sahiba. Thus, the presence of these four eye witnesses, is proved beyond doubt.
22. While appreciating the ocular evidence of the eye witnesses in a criminal case, court''s approach must be whether the evidence of all the witnesses read as a whole, appears to have a ring of truth and when the eye witness is examined at length, it is quite possible for him to make some discrepancies. Minor discrepancies on trivial matters not touching the core of the case , hyper technical approach by taking sentences torn out of context here or there from the evidence, is an unrealistic approach for judicial scrutiny as the powers of observation differ from person to person, a witness cannot be expected to recall accurately the sequence of events which took place in a rapid succession or in a short time span.
23. Now, if we peruse the statement of these witnesses in the light of above principles, all the four eye witnesses deposed that there were deadly weapons with each of the accused appellants, although there is a minor contradiction regarding the nature of the weapon in the statement of PW/10 Ashok and the rest of the eye witnesses, PW/10 Ashok had deposed that sharp edged weapons a ''dhariya'' and an axe, were also there, whereas other witnesses deposed that only ''lathis'' were available with each of the accused.
24. But again , we need to appreciate or analyse the statements of the witnesses in the light of the medical report. The principle of ''falsus in uno falsus in omnibus'', does not apply as such in criminal trials in India and the duty of the Court is to separate the grain from the chaff.
25. We have to analyse the statement of the individual witnesses, in the light of the entirety of the facts and circumstances of the case. The entire prosecution story could not be thrown out or disbelieved, because of the presence of contradictions regarding the nature of the offence. As per the statement of PW/4 Jagdish Verma , there were five external injuries on the body of deceased Sahiba and the cause of death of Sahiba was excessive bleeding. Out of the five injuries, one injury was on the left parietal region, another one on the right side of the forehead, there were fractures in the right humorous bone and a fracture of the left tibia and fibula. There was also fractures on the right arm and further, there were injuries on the occipital region of the head and left parietal region on the body of Radhey Shyam. All these injuries had been inflicted by a blunt weapon. Further, the other injuries found on the body of the injured Jani , Ashok, Lalita and Munni, had also been caused by a blunt weapon. In view of the medical corroboration of the injuries caused by the accused appellants, the evidence of the eye witnesses, could very well be relied upon.
26. Some of the eye witnesses were neighbors of the deceased. PW/2 Gopal PW/3 Manohar, did not corroborate the prosecution story and were declared hostile. To hold that, even if the interested witnesses were examined by the prosecution , and if their statements remained unimpeachable and if the statement of the interested witnesses were found to be reliable one, then conviction could be held on the basis of such evidences also.
27. Regarding the argument of the learned Counsel for the accused appellants that the first information report had been lodged about 12 hours after the occurrence of the incident, we have perused the judgment of the learned trial court and the evidence available on record. All the eye witnesses deposed in their statements that at night they had been prevented by the accused appellants, to lodge the first information report. By virtue of the facts and circumstances as produced by the prosecution, that a dead body of a male member of the family was lying at their residence and eight accused had attacked the complete family of the complainant with deadly weapons, is in the evidence of all the eye witnesses that after witnessing the ghastly incident of attack by eight persons, they tried to start for Police Station but were prevented by accused appellants from this. We are unable to appreciate the criticism levelled by learned Counsel for the accused appellants. The response and behaviour patterns of individuals in such a situation, differs from person to person. All the eye witnesses being from the same family , were reeling under shock and nervousness. Thus, the evidence regarding the preventing of the complainant from filing the FIR, is on record and it could be relied on and the learned trial court appreciated this aspect, in a right perspective.
28. There was ample evidence on record regarding the enmity between the complainant and the accused party. Learned Counsel for the accused appellant also contended that PW/10, Ashok did not depose about the presence of Babru but the learned trial Judge in para No. 48 of the judgment analysed this point and came to the conclusion that with the lapse of time, it could be possible for the witnesses to forget his name.
29. From the five accused persons, Labhchand, Kalu, Bhgwana, Ram Niwas and Gopal, ''lathis'' had been recovered at their instance, on the basis of information recorded under Section 27 of the Indian Evidence Act. As per the ocular evidence also, the accused were armed with ''lathis''. As per injury reports and the post mortem reports, there were injuries on the vital part of both the deceased. The weapon of offence, i.e. ''lathis'' ,were certainly deadly in nature and the accused appellants had caused injuries on the vital parts of both the decease and injured the others, present at the site. The accused appellants must be knowing the consequences of inflicting bodily injuries on the vital parts of a person. It clearly establishes the intention on the part of the accused appellants to cause the death of deceased Radhey Syam and Sahiba. Coming together armed with deadly weapons and presence of all accused appellants at the place of occurrence , further prove the fact of sharing of common object to cause death of both the deceased and to cause injuries to injured persons.
30. The testimonies of the eye witnesses, coupled with the post mortem reports of Radhey Shyam and Sahiba, and the evidence of PW/4, Dr.Jagdish Verma, clearly establish the fact that the accused appellants had certainly caused bodily injuries, which were eminently dangerous and in all probabilities, have caused the death of the deceased. The intention to do so, is well established from the above facts. As per the statement of PW/4, Dr.Jagdish Verma, the injuries on the person of both the deceased were ante-mortem in nature. The number of injuries found on the body of the deceased , further establishes that the intention of the accused appellants was only and only to cause the death of Radhey Shyam and Sahiba. In criminal law, intention of a person is gathered with reference to the circumstances surrounding the actual act, and which in the present case, is well established.
31. The accused appellants, in their statement stated that there was an enmity between the families of Labh Chand and deceased Radhey Shyam. Therefore, a false case had been lodged. The defence witness DW/1 Moti Lal deposed about the enmity between the family of the deceased and the accused only.
32. There are, of course, some contradictions and improvements in the statements of all the eye witnesses but to the extent that Labh chand , Kalu and Bhagwana entered the house of Radhey Shyam and pushed him out and further Labh Chand inflicted first blow on the head of deceased Radhey Shyam, finds place in the statement of all eye witnesses. Further, the fact of causing fatal injuries to Sahiba, also finds place in the statements of all the eye witnesses. Even in the cross examination of these witnesses, they could not be shattered.
33. Thus, there were unimpeachable eye witnesses''s account , corroborated by other incriminating evidence, i.e. weapon of offence recovered at the instance of accused persons. The fact of recovery of ''lathis'' was corroborated by the evidence of PW/8 Jodha Ram and PW/21 Pooran Singh.
34. We do not find any perversity, illegality or infirmity in the finding of learned trial Judge, because appreciation of fact and evidence had been made on the basis of evidence on record and nothing is against the weight of evidence or altogether against the evidence.
35. The authorities relied upon by the learned Counsel for the accused appellants have different facts than the present one.
36. After scanning and evaluating the entire evidence available on record, we do not find any infirmity or illegality in the judgment under challenge.
37. Appeal filed by original accused No. 1, Babru had been ordered to be abated by this Court vide order dated 14.10.2008.
38. On the basis of discussion made herein above, the criminal appeal No. 42/2006, filed by accused appellants , Labh Chand, Ram Niwas, Ganpat, Karu alias Kalu, Bhagwana alias Bhagwan Singh, Gopal Lal and Nana Lal alias Nanu Ram, is devoid of merit and is hereby dismissed and the judgment and order of sentence passed by the learned trial Judge is maintained.
39. Hence , conviction and sentence of accused appellants, Labh Chand, Ram Niwas, Ganpat, Karu alias Kalu, Bhagwana alias Bhagwan Singh, Gopal Lal and Nana Lal alias Nanu Ram, is upheld. The accused appellants, who are on bail , are directed to surrender before the trial court for undergoing the sentences of imprisonment as awarded, failing which the trial court shall take steps for serving the sentence.
40. The record of the case be sent back forthwith to the trial court , for doing the needful.
