Narain And Others v. State Of U.P .

U.K Varma, J.:— Sri Ranbir Singh, II Additional Sessions Judge, Deoria by his judgment and order dated 28.11.87 had convicted Narain, Gopi and Dulary under Secs. 302 and 307 read with Section 34 of the Indian Pena Code and sentenced each of them to death on the first count and to seven years rigorous imprisnment on the second with both the sentences running concurrently. He had also made a reference for confirmation of the death sentence awarded by him to the three appellants aforesaid.

2. Some facts which have not been assailed are as hereunder:

3. Smt. Gunjeshwari had first been married to Ganesh. A son named Ram Chandra was born to them. Ganesh died thereafter, Gunjeshwari remarried Heera, from this wedlock her sons Narain and Gopi who are two of the three accused were born. Ram Chandra, the son of Gunjeshwari from Ganesh, her first husband, had married Smt. Tijia who gave birth to a daughter named Shanichari. After the death of Ram Chandra, the husband of Shanichari named Janmejai (P.W.D and his father Moti Chand (P.W 3) had been looking after the cultivation of Smt. Tijia from a few years before the incident. Smt. Tijia during the consolidation operations in the village challenged the sale-deed on the basis of which Narain and Gopi asserted their rights to 12 katahas of land. The Assistant Consolidation Officer did not uphold the sale-deed to have been executed by the predecessor-in-interest of Smt. Tijia. Narain and Gopi did not acquiesce in the verdict of the A.C.O They preferred an appeal before the Consolidation Officer, Padrauna. Janmejai the husband of Smt. Shanichari and her father-in-law Moti Chand had been looking after he interest of Smt. Tijia who wanted to give her agricultural land to her daughter Smt. Shanichari. They were assisted by Beni, the husband of Smt. Prabhawati (P.W 2) who had his own litigation going on with Dularey the third accused. The prosecution case is that about 5.30 p.m on 9.3.86, the three accused Gopi, Narain and Dularey who are the appellants before us started up-rooting the cattle pegs fixed near the cattle troughs of Smt. Tijia and Smt. Shanichari. When the latter objected there on started an altercation. Janmejai fend Moti Chand who were nearby in the field wherein they had put up their Khalihan on listening to the hue and cry rushed towards the scene of quarrel. The accused Gopi who was armed with Daon (cutting weapon) on noticing Janmejai and Gopi Chand, instiqated Dularey who had a Pharsa (spade) and Narain who had a Talwar (sword) to kill them will so that there was an end to all the ??? between them. The three accused first assaulted Smt. Shanichari. As Smt. Prabhawati intervened to save her, they also inflicted injuries on her. They chased and inflicted blows on Smt. Tijia who too had resented the conduct of the accused. When Janmejai and Moti Chand tried to stop the three accused, they made an assault on them also with a view to murder them. In the meantime, Bhulai, Domari, Jokhu and many other persons of the village arrived and the accused fled away towards north. Smt. Shanichari and Smt. Tijia succumbed to their injuries at the spot. The injured Janmejai went to the police station Naurangia situated at a dlstnace of 3 kms. and lodged the F.I.R Ex. Ka-1 which he had dictacted to the Head Constable on duty Ram Suchit Vaday (P.W 7). By the G.D Entry Ex. Ka-7, he registered this case against the accused under Section 307/302 I.P.C although in the body of the F.I.R he had not noted that attempt on the file of Smt. Prabhawati, Janmejai and Moti Chand had been made and they also sustained injuries. He had mentioned about the same only in the G.D and later in the letters Exs. Ka-8 and 9 and Ka-10 which he had written to the Medical Officer, Padrauna Ramkola for examining Janmejai, Moti Chand and Smt. Prabhawati. The investigation of the case was taken up by the Station House Officer, Manager Singh (P.W 8). Talked to the informent Janmejai and reached the place of the incident with him on the jeep. At his direction the injured Janmejai, Moti Chand and Smt. Prabhawati were sent for medical examination to the Primary Health Centre, Ram Kola. The injury reports of Smt. Prabhawati, Moti Chand and Janmejai are Exs. Ka-4, Ka-5 and Ka-6 on record. Moti Chand had been examined at 10:25 p.m on the date of the incident and the following injuries were found on his person:

1. Lacerated wound 2.5 cm × 0.5 cm× bone deep just over the right eye brow. Bleeding from the wound.

2. Incised wound 14 cm × 2 cm × bone deep lower part of right forearm upto the palm bleeding, margins clean cut.

3. Contusion (red) 6 cm × 2 cm over the left side of the neck.

4. Abrasion 3 cm × 1 cm over the left arm.

5. Incised wound 2 cm × 0.5 cm × 0.5 cm just over the lateral parts of right eye brow.

6. Incised wound 3 cm × 0.5 cm × 0.5 cm (2 cm below lower eye lid).

7. Incised wound 13 cm × 7 cm × bone deep just above right knee joint bleeding, margins clean cut.

Opinion: Injuries Nos. 2 and 7 dangerous to life, rest of the injuries simple.

4. Injuries Nos. 2, 5, 6, 7 caused by sharp weapon, rest by blunt and hard object.

Duration: Fresh.

5. Referred to District Hospital, Deoria for treatment.

6. Smt. Prabhawati had been examined at 10.55 p.m i.e, half an hour later and the following injuries were found on her person:

1. Incised wound 4 cm × 0.5 cm × 0.5 cm 1.5 cm above the left eye brow. Margins clean cut, bleeding from the wound.

2. Complains of pain over the left arm but no visible injury/scar.

3. Complains of pain over the right hip joint but no visible injury/scar.

Opinion: Injuries are simple caused by blunt and hard object excepting the injury No. 1 which has been caused by sharp weapon.

Duration: Fresh.

7. Janmejai had been examined twenty five minutes later at 11.20 p.m The following injuries were found on his person:

1. Incised wound 6 cm × 0.5 cm × bone deep just over the middle part of head. Marg'ns clean cut, bleeding.

2. incised wound 7 cm × 1.5 cm × 1.5 cm 7 cm below right shoulder joint, marjlns clean cut, bleeding.

3. Incised wound 10 cm × 0.25 cm just over the lower part of right arm.

4. Lacerated wound 2.5 cm × 0.5 cm × bone deep 14 cm above the left ankle joint.

8. Injuries Nos. 1 and 2 are grievous, Nos. 3 and 4 are simple

9. Nos. 1, 2, 3 caused by sharp weapon. No. 4 caused by blunt and hard object.

Duration: Fresh.

10. The inquest on the dead bodies of Smt. Tijia and Smt. Shanichari had been performed on the following day at 6 a.m and 8.15 am respectively. Their inquest reports are Exs. Ka-11 and Ka-19. The postmortem examination of smt. Tijia and smt. Shanichari had been done at 3.45 p.m and 4.15 p.m respectively on 10.3.86 by Dr. R.P Singh (P.W 5). Their postmortem reports are Exs. Ka-3 and Ka-2 From the postmortem report Ex. Ka-3 it appears that Smt. Tijia had sustained the following postmortem injuries.

1. Incised wound 10 cm × 6 cm × 5 cm placed horizontally across the neck, above thyroid cutting larynx, traches, muscies, big vessels, nerves, oesophagus, margins of the wound are clean cut and sharp.

2. Multiple abraded bruise in the area of 6.5 cm × 1.5 cm on the lateral and posterior aspect of the right elbow joint. The colour is reddish.

3. Incised wound 4.5 cm × 1 cm on the posterior area of the right shoulder. The margins of the wound are sharp and welt defined.

4. Incised wound 6 cm × 3 cm × bone deep on the right occipital parietal region of the head, margins sharp and well defined.

11. The postmortem report of Smt. Shanichari Ex. Ka-2 reveals that she had sustained the undermentioned ante-mortem injuries:

1. Incised wound 5 cm × 1 cm × bone deep on the left side neck.

2. Incised wound 4 cm × 2.5 cm × bone deep on the chin.

3. Incised wound 8, cm × 2.5 cm × bone deep on the posterior aspect and right shoulder back.

4. Incised wound 22 cm × 5 cm × bone deep on the neck, clavicle, vertebra, spinal cord cut.

5. Incised wound 4 cm × 1.5 cm × bone deep behind right ear.

12. The cervical 4 and 5 are cut and fractured, spinal cord cut at C-4 and C-5 level. Incised wound in right scapula 4 cm × 5 cm on the upper part, vessels on the right side neck cut.

13. The doctor opined that both Smt. Tijia and Smt. Shanichari had died as a result of the above injuries.

14. The prosecution examined Janmejai (P.W 1) Smt. Prabhawati (P.W 2) and Moti Chand (P.W 3) as the witnesses of I the occurrence. They are the three on whom the accused had allegedly inflicted injuries besides the deceased. Samaidhari Pandey (P.W 4) pointed out that he had taken the dead body from the place of the incident to the mortuary at the headquarters for examination in a sealed cover along with documents in two separate sealed envelopes. Dr. R.P Singh (P.W 5) proved his postmortem reports dealt with above. Kashi Nath Dubey (P.W 6) proved the injury reports of Smt. Prabhawati, Janmejai and Moti Chand. The H.C Ram Suchit Yadav (P.W 7) proved the F.I.R the G.D entry Ex. Ka-7 and the letters Exs. Ka-8, Ka-9 and Ka-10 in connection with the medical examination of the injured aforesaid. Manager Singh (P.W 8) narrated as to how he had investigated the case.

15. The accused had pleaded not guilty. They denied their complicity in the crime. Narain pointed out that there was enmity with regard to agricultural land and Janmejai had falsely implicated him in order to grab his field. Gopi pointed out that he had been roped in this case on account of enmity. Dularey stated that he could not have taken sides with Narain as he had enmity with him. Prabhawati and Beni were shown to have involved him in this case when they lost their case against him regarding land.

16. The accused had merely examined the criminal Ahalmad of the court of the Chief Judicial Magistrate Deoria to prove that the copy of the first information report of this case had not been received from the police station concerned by the Chief Judicial Magistrate.

17. We have gone through the entire evidence on record and also the impugned judgment. The counsel for the appellants laid stress on the following points:

(i) The first information report of this case was a highly suspicious document and had been ante-timed.

(ii) Janmejai (P.W 1), Smt. Prabhawati (P.W 2) and Moti Chand (P.W 3) were not to be believed simply because they were stated to have received injuries during the Incident. The above three could as well have been injuries by the dacoits. The prosecution could not derive any benefit from the circumstances that the accused had not set up a counter case explaining the injuries of the deceased and the above witnesses for it has to stand on its own legs.

(iii) The prosecution was not led independent and reliable evidence although the same was available.

(iv) The contradictions between the statements of the prosecution witnesses are numerous and they being on vital points, it would not be safe to place reliance thereon for maintaining the conviction of the appellants.

(v) The investigation is tainted.

18. So far as the first information report is concerned, at the first sight there springs up this puzzling question as to how the case was registered under Sec. 307 I.P.C without there being any reference in it to the alleged attempted murder of Moti Chand (P.W 3), Janmejai (P.W 1) and Smt. Prabhawati (P.W 2) and the injuries sustained by then. With a deeper probe, however, the point does not detain us and is easily resolved inspite of this circumstance also in favour of the accused that the copy of the first information report had not been received by the Chief Judicial Magistrate, Deoria from the police station concerned.

19. The first information report had not been submitted as a written document scribed by some one in the village on the dictation of Janmejai (P.W 1). On the other hand, it had been taken down by the Head Constable Ram Suchit Yadav (P.W 7). The fact that in the G.D while recording the summary of the prosecution case, the injuries of all the above three had been mentioned and in each of the letters addressed to the Medical Officer, the respective wounds of the injured had been noted, clearly shows that before their medical examination it had been decided to launch prosecution in their respect and the omission in the first information report with regard to the above was only on account of inadvertence. The investigating officer it may next be noted in this connection had sent copy of the F.I.R Ex. ka-13 to the Medical Officer who was to conduct the postmortem examination of Smt. Tijia and Ex. Ka-26 another copy of the same F.I.R to the Medical Officer who was to conduct the postmortem-examination of Smt. Shanichari. Both the copies of the F.I.R Exs. Ka-18 and Ka-26 bear the signatures of the Medical Officer dated 10.3.86 The case, thus, had not remained without first information report because of any uncertainty about the manner. In which the incident had taken place.

20. The contention of the counsel for the appellants that Janmelai and Moti Chand Could not have reached at the time when Smt. Shanichari and Smt. Tijia were assualted also does not carry conviction with us. It is not the prosecution case that all the three accused suddenly started assaulting Smt. Shanichari and Smt. Tijia. They were stated to have inflicted the injuries only when the two protested that their cattle pegs be not up-rooted. The protests would naturally have been made in loud voice. The up-rooting of the cattle pegs, the protests and the counter-allegations must have consumed some time and in the meantime Janmejai and Moti Chand would have arrived. Had they reached the scene of the occurrence after any lapse of time, they would not have sustained the injuries. Smt. Prabhawati (P.W 2) did state in her cross-examination that Moti Chand was the first to arrive and at that time the dead bodies of Tijia and Shanichari were lying on the ground. The question is as to what is the weight to be attached to this part of the statement of this illiterate rustic woman. In her examination-in-Chief she had given out that she was assaulted when she rushed to save Shanichari. She fell down due to her head injury. Tijia on seeing the assault on Shanichari ran 22 to 25 steps eastward. The accused gave her a chase and assaulted and when Moti Chand rushed to save her; and Janmejai followed Moti Chand, the accused assaulted Moti Chand and Janmejai also. The witness Prabhawati had not been confronted with this statement of hers in the examination-in-Chief. Besides having herself sustained an injury on her left eye brow while trying to save Shanichari, she was not has position to know as to whether Shanichari and Tijia were alive or not at the time of the arrival of Moti Chand and Jjjnmejai. The cries attributed by Smt. Prabhawati to Moti Chand on his arrival that the incident had been perpetrated also is a figment of her imagination or what Moti Chand would have given out to others who had not seen the incident long after. Janmejai (P.W 1) and Moti Chand (P.W 3) affirmed on oath that they had reached the scene of occurrence while Smt. Shanichari and Smt. Tijia were being assaulted. There is no improbability in both of them having arrived for they were not far away at the time of the incident. The injuries which they sustained and which have been dealt with above are not self-inflicted, it would be absurd to persume that they could have been sustained during a dacoity wherein Shanichari and Tijia had been killed and Smt. Prabhawati also injured when nothing was shown to have been looted or found scattered by the investigating officer who had arrived at the scene of occurrence soon after. The mere fact that the police station concerned had sent the injured for medical examination to the Primary Health enter Ram Kola and not to the Primary Health Centre Padrauna, could not show that it was for any ulterior motive. The Station House Officer Manager Singh who had also investigated the case pointed that Ram Kota Primary Health Centre was 12 to 13 kms. from the scene of occurrence whereas Padrauna Hospital was at a distance of 19 kms. therefrom. It was, thus, not unnatural of him to have arranged to send the injured to the nearest hospital for immediate medical attention. Dr. Kashi Nath Dubey (P.W 6) had expressd inability to answer whether Padrauna or Ram Kola was nearer the place of the incident. Even if Ram Kola was presumed to be farther than Padrauna by a few kilometres, no presumption can legitimately be draw that the injury reports of Smt. Prabhawati, Moti Chand and Janmejai were fictitious. Mott Chand (P.W 3) in his cross examination had given out that the injured had reached the Ramkola Primary Health Centre at about 10 p.m and he was admitted in the hospital and remained there during the night and went to the District Hospital, Deoria next day in the morning. Janmejai (P.W 1) had also stated that all the injured had gone to the Ramkola Hospital where he and his father had stayed on. Dr. Kashi Nath Dubey did not corroborate the testimony of Moti Chand and Janmejai that Moti Chand was admitted in the hospital. This, however, cannot discredit Moti Chand and Janmejai for when Moti Chand and Janmejai would have remained in the hospital as was likely, it did not matter whether they were shown as indoor patients of the hospital or not. Janmejai had been examined at 11.20 p.m and with Moti Chand bleeding from a number of injuries it was unlikely that they could have started for the district hospital during the mid night itself. Moti Chand had reached the district hospital next day and was admitted in it for a number of days. His transfer to the district hospital was indicative of the seriousness of the injuries sustained by him.

21. The next point to be seen is as to whether there is any contradiction between the medical evidence and the oral evidence regarding the weapons used. The one lacerated wound on the person of Janmejai, two lacerated wound and one abrasion on the person of Moti Chand and ante-mortem multiple abraded bruise on the elbow of Smt. Tijia could not lead to the conclusion that the prosecution had not given a correct account of the weapons employed or when a spade was being used, there was no improbability in the wooden part, or the flat iron portion of the spade around the wooden part striking the injured as a result of deflection or due to the injured moving their bodies during assault or the wooden part simultaneously hitting the body along with the cutting part. The medical reports of the injured and also the post-mortem reports of Smt. Shanichari and Smt. Tijia deceased indicate that Tabal, sword and spade had been used in the assault as is the prosecution case. We are unable to find that the medical report is in any manner discrepant with the oral evidence or could not be fully relied upon.

22. The counsel for the applicants attacked the evidence on the ground that independent witnesses had not been examined though the first information report itself should that Bhulal, Damri, Jokhu and many others had arrived and seen the occurrence. The argument of the appellant's counsel did not appeal to us for what was really material was not the effect of the non-examination of certain witnesses but the fact whether the witnesses examined ought to be believed dr not and if the witnesses examined were trust worthy the non-examination of others would not affect the credibility of the prosecution story. The non-production of independent witnesses cannot also shake the otherwise sound frame of the prosecution case for the oral testimony of Moti Chand, janmejai and Prabhawati cannot be treated to be tainted or like that of an approver so as to require corroboration as a matter of necessity. While appreciating the evidence of interested witnesses the approach is not to treat the same as suffering from any infirmity. The court requires only as a rule of prudence and not as a rule of law that the evidence of such witnesses should be scrutinised with more are and when that has been done and there appears to be a ring of truth in such evidence it could be relied upon even without corroboration. There is no such rule that partisan witnesses cannot be relied upon if their presence cannot be doubted and their evidence is consistent with the surrounding circumstances and strikes the court as true. The account given by the prosecution witnesses Janmejai (P.W 1), Smt. Prabhawati (P.W 2) and Moti Chand (P.W 3) so far as the broad spectrum of the case is concerned has been found to be fully consistent. There is no contradiction in between their statements with regard to the facts that the incident took place when the accused Narain and Gopi tried to uproot the cattle pegs, that firstly Smt. Shanichari had been assaulted and thereafter Smt. Prabhawati, Smt. Tijia Moti Chand and Janmejai by all the three accused, that Smt. Tijia after the assault on Smt. Shanichari had run some distance away to save herself out the accused gave her a chase and inflicted fatal injuries on her which finds corroboraion from the statement of the Investigation Officer Manager Singh who had found the dead body of Tijia at some distance from that of Shanichari as shown by him in the site plan, that after the incident Janmejai went to lodge the first information report and came to the place of incident along with the Investigating Officer and the Court Muharrir, that the injured from the scene of occurrence were sent to the Primary Health Centre, Ramkola and that Moti Chand on the next day was shifted to the district hospital. There is little to doubt that Smt. Shanichari and Smt. Tijia had died as a result of the injuries inflicted by the accused which were sufficient in the ordinary course of nature to cause their death and this can safely be taken to be established on the basis of the testimony of Smt. Prabhawti alone. Some of the injuries on Moti Chand were also on the vital part and the circumstances and facts of the case do show that the accused would have killed him if the persons of the village would not have arrived. The minor contradiction on non-vital points create no doubt about the participation of the three accused in the crime in question. We are also unable to hold that Dularey could not join Narain and Gopi in the assault when evidence has been led to show that the three were friendly. The Investigation Officer has explained as to why he did not prepare the inquest report soon after the incident and why he had not recorded the statements of Janmeja and Smt. Prabhawati and Moti Chand soon after the incident. All the three of them had sustained injuries and could not be presumed to be get up. There is nothing to show that the investigation is tainted. The fact that the blood stained earth or the clothes of the injured and the deceased had not been sent to the Chemical Examiner and Serologist for report are not of consequence in this case. The charge under Sec. 302 as against all the three accused is held to be established. The charge under Sec. 307 I.P.C is also held established so far as the assault on Moti Chand is concerned but not against Janmejai and Prabhawati the appellants had been rightly convicted under Secs. 302/307 of the Indian Penal Code. The award of death sentence, however, does not appear to have been justified in the circumstances of the case as it is certainly not one of the rarest of the rare cases calling for the extreme punishment of death.

23. The appeal is partly allowed. The conviction of the appellants is maintained under Secs. 302/307 read with Section 34 of the I.P.C but the sentence of death awarded to them is modified into one of life. The sentence of seven years R.I awarded under Sec. 307 I.P.C is also reduced to four years thereunder. Both the sentences shall run concurrently. The reference for confirmation of the death sentence awarded to the appellants is turned down in view of our observations made above. The appellants are in jail. They shall serve the sentence awarded to them.

24. Appeal Partly Allowed.