JUDGMENT
M.P. Varma, J.
1. This is a case of family-fued, in which one life has been lost. Three accused persons of Criminal Appeal No. 390/83 and the members of the prosecution party are agnates. Their common ancestor, Baijnath Pd. had five sons from his first wife and two sons from his second wife, accused namely, Rameshawar Pd. He too was charge-sheeted but he died before the trial could begin. He belongs to a different family. The geneological table given below shows the relationship between the parties,
Baijnath Prasad
|
Two Wives
|
——————————————
| |
1st Wife 2nd Wife
| |
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Gaiadhar Permeshawar Rameshawar Beni Badri
(P.W 4) (accused) (accused Nandji Lal Babo
now dead) P. W. 1 (Killed
| (informant) in the
| occurrence)
| |
| Daughter
| Kukumbala
| (P. W. 3)
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| |
Udai Behari
(accused) (accused)
2. Thus, we find that accused Permeshawar is the brother of Late accused Rameshwar both sons of Late Baijnath Pd. Accused Udai and Behari are sons of Late Rameshawar.
3. Badri was another son of Baijnath Prasad. Lal Babu killed in the present occurrence was son of Badri. The informant (P. W. 1) Mandji is the son of Beni, another son of Baijnath Prasad. The prosecution witness P. W. 4 Gajadhar Pd. is also the son of Baijnath Pd. Both the parties are closely related to each other except accused appellant Sbibji Pd. of Criminal Appeal 382/83. He was inducted in the house of deceased Lal Babu as a tenant The house is located in Mohalla-Shishmahal Chowk in in the town of Arrah.
4. Baijnath Pd. had self acquired properties. He, in his life-time made a division of his properties among his sons. It was a family arrangement. The northern part of the two shops in the ground floor in the house at Shish Mahal was gifted to Badri and Baijnath had gifted the northern portion of it to his son Badri, and other part of it was gifted to Gajadhar (who figures as a prosecution-witness No. 4) and to Beni Pd. as pointed out above. The informant P. W. 1 is the son of this Beni Pd.
5. We find that the accused Permeshawar and Rameshawar were not satisfied with the partition of the property made by their father. A probate case was also filed. It has also come in evidence that the residential portion of the house where Rameshawar lived had fallen in the share of deceased Lal Babu. Rameshawar had tenanted the lower portion of the house in the ground floor to Shibji Prasad. Lal Babu had asked Shibji to vacate Shibji did not oblige him. Therefore, a suit for eviction was filed against Shibji Pd. the case went up to Supreme Court. Finally the suit was decreed in favour of Lal Babu. It is said that accused Shibji had given a date by which he was to vacate the premises, but having not done so, Lal Babu took steps for execution of the decree.
6. It was on 5 April, 1980 that Nazir and peons of the Civil Court were deputed to effect the delivery of possession (D. P.). The execution of the D. P. was objected to on the spot on the plea that one Dharikshan Sao, another tenant was occupying that portion of the house. He had taken it on lease from Rameshawar. On getting this information the Officers of the Civil Court left the the place without taking steps in execution of the decree and in effecting the D. P. So a commotion arose on the spot and altercation developed. Prosecution alleges that accused had taken up the cause of judgment debtor Shibji Pd. It was also the case of the prosecution that Dharikshan Sao was set up by all the assused to take a false plea of tenancy. It was wrong on the part of the Civil Court Officials to leave the place without affecting D. P. Shibji Sao did not vacate the premisses in question.
7. It is the case of the prosecution that soon after the departure of the Nazir and the Peons of the Civil Court, Shibji took a different attitude and all the accused present at the spot resorted to assaulting Lal Babu and his man. Rameshwar assaulted Nandji (P. W. 1 the informant) with a rod and accused Shibji assaulted him with a hockey stick, Rameshawar assaulted one Badri Prasad also (P. W. 2) who is said to be the father-in-law of deceased Lal Babu. Further case of the prosecution is that, accused Behari and Rameshawar had caught hold of Lal Babu and on the behest of accused Parmeshwar, accused Badri (sic) his gun (sic) Lal Babu and accused Rameshawar also assaulted him on his bead with iron-rod. This incident happened in front of the disputed premises. On hulla many people came running and looking at them the accused persons fled away. The injured persons were soon taken to hospital but Lal Babu could not survive. He succumbed to his injury. Within half an hour of the incident, police reached hospital and there recorded the Fardbeyan of P. W. 1 Nandji Prasad. The Fardbeyan is Ext. 1. It was recorded at about 14.05 P.M. and on the basis of which formal F. I. R. was drawn up. Police took up investigation, prepared inquest report over the dead body of Lal Babu and got postmortem done, examined other ‘witnesses, inspected the place of occurrence and after completing, investigation, submitted charge-sheet. Thus, the accused were put on trial.
8. In the trial court, the prosecution examined eight witnesses. P. W. 1 the informant and P. W. 2 Badri Prasad of the two eye witnesses who had received injuries in the said occurrence. P. W. 3 Kumkum Bala, the daughter of deceased Lal Babu also claims to be an eye witness. She has said that it was just for curiosity that she had gone to the shop to see as to how the delivery of possession was to be effected by the officials of the Civil Court. P. W. 4 Gajadbar full brother of accused Permeshawar also claims to be another eye witness of the occurrence. He too had gone to the place to witness the delivery of possession.
9. P. W 6 and 7 are the two doctors. P W. 6 had conducted the postmortem examination and the P. M. report is Ext. 2. P. W. 7 Dr. Madan Mohan Verma is another medical officer who was in the Arrah Sadar Hospital and had examined the injuries on P. W. 1 Nandji and P. W. 2 Badri.
10. P. W. 5 Ashok Kumar Gupta, has been tendered and P. W. 8 is a formal witness.
11. In the court below the manner of occurrence was disputed by the accused and that all happened in a different manner and not in a manner as alleged by the prosecution. The Nayab Nazir of the court Rajib Ranjan Prasad, who had gone to effect the delivery of possession has been examined as D. W. J.
12. The trial court on consideration of the evidence held the accused persons guilty of the charge of committing murder of Lal Babu. Accused appellant Udai has been held guilty of the charge under Section 302 of the Indian Penal Code (hereinafter referred to as “the Code”) and also of the charge under Section 302 read with Section 34 and also Section 302 read with Section 109 and 148 of the Code and also under Section 27 of the Arms Act. He has been sentenced to suffer imprisonment for life on the charge under Section 302 of the Code, but no separate sentence has been awarded on others charges. Accused appellant Permeshawar and Behari have been held guilty of the charge under Section 302 read with Section 149 and also under Section 302 read with Section 34 and under Section 302 read with Section 109 of the Code. The too have been sentenced to suffer imprisonment for life under Sections 302 and 149 of the Code, but no separate sentence has been passed under other heads of the charges. Similarly, accused Shibji of Cr. Appeal No, 382/83 has been held to be guilty of the charges under Section 302 read with Section 149 and 302 read with Section 34 and 147 of the Code and has been sentenced to imprisonment for. life on the charge under Section 302 read with 149 of the Code, but no separate sentences has been passed by the trial court on other charges.
13. In appeal before us, instead of attacking the credibility of the evidence led by the prosecution, more emphasis has been laid on the defence plea and statement of P. W. 1, the Nazir, who had gone to effect the delivery of possession carrying the writ of the Civil Court. It has been argued that all the accused have been falsely implicated on account of bickering over partition among the members of the family. They were on litigating terms. The Nazir P. W. 1 said in court that one Dharikshan Sao had submitted a petition before him claiming that the shop in question, from which Shibji was sought to be dispossessed under the writ of delivery of possession, had been in his possession, by virtue of a Kirayanama executed by Remeshawar Prasad (since dead) and that Shibji had no concern with that shop. It is, therefore, asserted that whatever happened was consequent to the dispute between said Dharikishan and the deceased Lal Babu. It has been submitted that the accused persons named in the F.I.R. have been falsely implicated due to conflict and the scuffle among themselves on account of dis-satisfaction over partition of the property.
14. It has next been contended that the witnesses being deeply interested in the prosecution on account of the relationship are narrating a false story of assault by these accused persons. The informant P. W. 1 has admitted his enimosity with accused Permeshawar (appellant No. 3) and that a criminal case was brought against P. W. 1 had ended in his conviction, and therefore, P.W.1 has lodged a false case implicating all the accused persons. It has also been argued that P. Ws. 3, 4 and 5 are not named in the F.I.R. P. W. 3 is the daughter of deceased Lal Babu who was then student of Class VI-VII, P. W. 4 is the uncle of deceased Lal Babu and P. W. 5 is the son of P. W. 2 whose sister was married to deceased Lal Babu and so their statements should be totally rejected. Farther contention of the learned advocate is that about 100 to 125 persons assembled at the scene of occurrence but no independant witness has been produced, and three of them named in the F. I. R., namely, Battan Yadav, Hirdya Singh and Ramji Singh were also kept out of court. ‘
15. In the last, an attempt has been made to show some improbabilities in the manner of occurrance and in this connection it has been argued that it is quite absurd to believe that two of the appellants Behari and Permeshawar (appellant No. 2 and 3; kept catching hold of the two arms of Lal Babu and it was, thereupon, that appellant No. 1 Udai fired at him resulting in the death. The evidence of assault on deceased Lal Babu by Rameshawar (now dead) with a rod on head is not correct as the doctor did not notice any such injury and all these circumstances indicate that the occurrence took place in a manner altogether different and not as alleged by the prosecution. Learned Advocate has further contended that non-examination of the Investigation Officer has also caused serious prejudice in the defence of the accused persons, and at best adverse inference must be drawn against the prosecution.
16. I have given due consideration to the points raised and I find and hold that in the instant case the relationship of the witnesses either with the informant or the deceased cannot at all be a ground for rejecting their evidence. Relationship cannot itself be a compelling reason to discard the statement of any witness. The court is only to look to the probablities and the circumstances of such a witness being present on the scene of occurrence or have had occasion to know the fact relating thereto If the process of scrutiny of the evidence satisfies the test of acceptability on the other score, then the statements should not be rejected on the ground of relationship. So far, this case is concerned, the geneological table, in the foregoing paragraphs, has shown that the parties are closely related to each other and they have been quarreling over the possession of the disputed shop. There was an eviction suit against tenant Shibji Prasad (the appellant in Cr. Appeal No. 382/83) and the matter went up to Supreme Court. Accused Shibji Prasad had finally agreed to vacate the premises which he did not do. His maniupulation to frustrate the decree of the court in executing the D. P. was the immediate cause which led to this incident. The evidence leads to hold that Dharikishan was set up by Shibji Prasad through accused Rameshwar (now dead), to put an independant claim of tenancy and thereby to defeat the writ of D P. to be executed against him. In these attending circumstances, the relationship of the witnesses with the deceased and the informant can hardly be a ground to reject their statements. They had good reasons to be present at the scene. No intrinsic or inherent contradictions have been shown in their evidence and in my opinion, the trial court has rightly accepted their version to hold the accused persons guilty of the charges made against them.
17. It is true that 3 persons Bhuttan, Hirdya and Ramji named in the F. I. R. have not been examined, but non-examination of a witness in every case, would not generally lead a court to hold that story narrated by other witnesses is a false story. If circumstances do indicate that a material witness who could have unfolded the truth has been suppressed and a few others have been set up to support a charge, then adverse inference may be drawn, but this is not a general rule of law. It cannot be said that the prosecution be compelled to examine all the witnesses in every case. Duplicity or multiplicity of the same set of evidence does not add any gravity to the charge. To examine several witnesses on the same point is the rule of prudence to have sufficiency of evidence and comparison of the statements is a process of scrutiny for ascertainment of truth. Insufficient evidence or paucity of evidence at times might be a cause to ask the prosecution to examine all material witnesses and to place all the cards before the court. Suppression of necessary material evidence must be discarded and occassions might be to hold adverse inference for such suppression, but at the same time there may be compelling reasons for non-examination of a particular witness and at times even non-availability might be the cause of non-examination and no adverse inference is to be drawn in such a circumstance. Prosecution may not examine particular witness if he has been gained over. It is of course, for the court to feel satisfied that a particular witness was gained over and non-examination might not cause an adverse effect on the prosecution. In the present case, some explanation has been given for non-examination of those witnesses. P. W. 2 has said that Raroji (a witness named in the F. I. R.) was won over by the other side and the other two Buttan and Hirdya had only accompanied the deceased Lal Babu to hospital and they do not appear to be eye witness and so, their non-examination does not appear to be material and it does not provide any ground for rejection of the whole case of the prosecution.
18. Eight witnesses have been examined on behalf of the prosecution. The investigating officer did not turn up inspite of several adjournments and steps taken. In order to avoid any prejudice, the case diary was brought on the record and proved in evidence as Exhibit of the case. The accused persons in the trial were at liberty to take advantage from the admissible part of the evidence appearing in the diary and to point out descripencies or contradictions in the statements of the witnesses or in the inspection of the place of occurrence or any such infirmities in the investigation. The counsel for the appellant did not point out any such descrepancy short coming which might have caused prejudice in view of non-examination-of the investigating officer. Another criticism has been raised that the prosecution witnesses no. 3, 4 and 5 are not named in the F. I R. and so their evidence gets shaky. I do not agree and here again I will say that non-mentioning of their names in the F. I. R. cannot be a reasonable ground to reject their evidence.
19. P. W. 3 is the daughter of deceased Lal Babu. She was then aged about 14 years and was a school going student. She knew that the Civil Court officials would come to effect delivery of possession. She out of curiousity went to see how D. P. is to be effected. There is nothing unusual about it. The informant P. W. 1 has given some explanation for not naming the members of his family in the F. I. R. and I do not find anything wrong in the explanation. So is P. W. 4 Gajadhar another eye witness of the incident. P. W. 5 has been tendered. P. W. 5 is the son of P. W. 2. This witness P. W. 2 is also an eye witness. He too have received injuries in occurrence. He was examined by the doctor P. W. 7, who had found bruise 2″ X 1 1/2″ associated with swelling and there is no ground to reject the evidence. He appears to be a more probable and natural witness to be present at the spot with deceased Lal Babu. In fact the appellant’s counsel could not assail his evidence on any other score. The contention of the appellant’s counsel to discard the evidence of these witnesses particularly of 3 and 4 as they are a relations of the deceased is rejected. They have narrated the incident of rioting, assault and killing of Lal Babu in good sequence. I agree with the findings of the trial court that these witnesses had gone to the place of occurrence and had occassions to witness the whole scene in which Lal Babu was done to death. The informant P. W. 1 is himself an eye witness to the occurrence. He too have received injuries at the spot and his injuries were examined by doctor P. W. 7. The doctor found two lacerated wound on his scalp, one was 3″ X 1/4″ X scalp deep over the front rigion and the other was 1/2″ X 1/4″ x scalp deep obliquely over the right frontal region and according to the doctor these injuries were possible by an iron-rod. His statement was recorded by the police only after half an hour of the incident in the hospital when he had taken Lal Babu for immediate medical aid. The injuries on the body of P. W. 1 is a corroborative circumstance of his being present at the scene and nothing material has been shown to us in his evidence to discard his testimony. The evidence of the aforesaid witnesses establishes the guilt against the accused persons.
20. Now, I proceed to examine the other part of the argument. P. W. 6 is the medical officer who had held postmortem examination over the dead-body of deceased Lal Babu. The P. W. report is Ext. 2. He found two antemortam injuries on the person of the deceased. The first injury was an abraison on the right side of the back 3″ X 1″ situated x below the right scapula. According to the doctor, this injuries could have been caused by a rod. The case of the prosecution is that, accused Rameshwar (dead) had hit him with an iron-rod. The other injury found on the deceased was of a gun shot, fired from a close range. The injury had penetrated both the lungs causing profuse bleeding. Argument was advanced on behalf of the appellant that there could not have been any such firing by appellant Udai when the deceased Lal Babu was over-powered by accused appellants Behari and Permeshawar, each holding the two arms of Lal Babu, I do not find any absurdity in it. The firing was from a close range. Apart from it, there is no evidence that other two accused continued holding Lal Babu till the gun was fired. The evidence is rather otherwise. All that has been submitted that the pellets must have hit the two appellants Behari and Permeshawar as well. It is not known whether pellets had hit these two appellants as well and it was for them to have come out with the denial of any such injuries forthwith. They were arrested long after. The plea does not hold good at this stage. Nonetheless, I have said that I could not see any absurdity in the narration of the sequence of the story as given by witnesses. But so far this case is concerned, there is cogent explanation given by P W. 2 that accused Permeshawar, Behari had no doubt caught hold of Lal Babu so that he could not run away, but at the time when accused Udai reported to firing both the accused persons had left the arm and freed Lal Babu and by that time the gun shot was fired at, effectively leading to his death.
21. In the light of the discussions made above, the complicity of the accused appellant in the crime stands well proved. All the four appellants along with Rameshwar Prasad (since deceased) form an unlawful assembly having common object of causing the death of Lal Babu and with that intention one of the accused appellant Udai shot him dead. I therefore, do not find any merit in this appeal The same is accordingly, dismissed. The order of conviction and sentence as is imposed by the court below is up-held.