JUDGMENT
M.C. Jain, J.
1. The two brothers, namely, Rajendra and Narpat sons of Ram Phool have preferred this appeal against the judgment and order dated 20.1.1982 passed by Sri G.K. Verma, the then V Additional Sessions Judge, Ghaziabad in Sessions Trial No. 183 of 1981. Both of them have been convicted under Section 302 read with Section 34 I.P.C. and sentenced to life imprisonment. There was another accused Richhpal son of Bhika Singh who was acquitted.
2. The incident took place on 27.5.1981 at about 7.30 A.M. in village Khari Kuan of Town Dadari within P.S. Dadari. District Ghaziabad and the report was lodged the same day at 7.50 A.M. by Phoolwati PW 1 wife of the deceased Ratiram who was murdered in this incident. They allegedly committed his murder by throwing him in a well.
3. The broad essentials of the Prosecution case should be set forth. The deceased Ratiram used to live in Kheri Kuan of Town Dadari. He had an elder son Govinda and a younger one named Jahangir Ram. He used to carry on the profession of goldsmith (Sunari) having a shop in village Kheri Kuan. The accused were residents of village Kheri. Some transactions of ornaments took place between Ratiram deceased and accused Narpat, Rajendra and Richhpal- Pradhan. In that connection, they used to visit the house of Ratiram in Kheri Kuan. As the professional work of the deceased was not going on well, he and his elder son Govinda went outside in pursuit of new field of engagement. The accused Narpat and Rajendra had also ill-treated him and due to this reason also, he had to go out. In the absence of the deceased Ratiram, the accused Narpat and Rajendra visited his house, making enquiries about him from Ins wife Phoolwati PW 1. Eight days before the incident Govinda returned to his home. Phoolwati told Richhpal Pradhan that if she was assured of the safety of her husband, she would call him back. Richhpal assured Phoolwati PW 1 that he would not ill-treat the deceased Ratiram. Then Govinda with accused Narpat and Rajendra went to Kanpur and it was in the morning of 27.5.1981 that Ratiram returned home On that day at about 7.30 A.M., the three accused had also come alongwith Ratiram Accused Narpat and Rajendra asked Ratiram to return their ornaments threatening that he would be beaten up otherwise Ratiram replied that he would give their ornaments by making gradual earnings. On his such reply, the three accused started assaulting the deceased Ratiram. At that time, Phoolwati PW 1, Suraj bhan PW 3, Jahangir Ram PW 4 (younger and minor son of Ratiram) and Smt. Sharbati mother of the deceased were present there. They tried to come to the rescue of the deceased, but the accused Narpat and Rajendra pushed them back. In order to save himself, Ratiram caught hold of the door-frame which was up-rooted. One of the accused throttled Ratiram by neck and the other threw him in the well. A number of persons had collected there including Munna PW 2 and Birju. By being thrown in the well by the accused, Ratiram died. Phoolwati PW 1 went running to the police station and lodged the F.I.R. by or narration. The distance of the police station was only three furlongs. A case was registered in the presence of S.I. Ramveer Singh PW 6 to whom the investigation was entrusted He recorded the statement of Phoolwati PW 1 at the police station and went to the spot. The dead body of Ratiram was taken out from the well and the Investigating Officer prepared the inquest report as also other relevant documents. After being sealed, the dead body was sent for post-mortem through Constable Brahma Pal PW 8 and Constable Ram Prakash.
4. The post-mortem over the dead body of the deceased was conducted by Dr Sarvesh Mathur PW 7 on 27.5 1981 at 6.30 P.M. The deceased was about 45 years of age and about half day had passed since he died. The eyes were half open Cornea was hazy. No mark of external injury was seen. Liver spleen and both kidneys were congested. Both lungs and pericardium were also congested. Air bubbles with small quantity of water were present in both the lungs. Membranes were congested. Small particles of sand were present in larynx, trachea and bronchi, in the abdomen, 100 Ml. water alongwith sand and small particles of mud had been found. In small intestine, small quality of water, mud and gases were present In large intestine faecal matter and gases were present Bladder was half full The death had taken place about half day back due to the asphyxia as a result of drowning.
5. All the three accused pleaded not guilty before the trial court While the accused appellants admitted that there were transactions between his wife and deceased Ratiram and the other accused Rajendra and Narpat denied that there was any transaction between them and the deceased. False implication was pleaded due to enmity.
6. The prosecution in all examined eight witnesses Phoolwati PW I, informant (wife of the deceased), Munna PW 2. Suraj PW 3 and Jahangir Ram PW 4 (minor son of the diseased)were examined as eyewitnesses, out of whom Munna and Suraj turned hostile No evidence was adduced by the accused in defence.
7. The evidence led by the prosecution having been found convincing and satisfactory against the present two accused appellants, they were convicted as stated above by the trial court while the third accused appellant Richhpa) was acquitted.
8. None responded for the accused appellants when the appeal came on Board on 30.7.2004 though they were represented on record by Sri V.M. Zaidi, Advocate The appeal was then listed for hearing on i 7.8.2004 as per the decision of the Supreme Court in the case of Bani Singh and Ors. v. State of U.P. AIR 1996 SC 2439. The appeal came up for hearing next time on 24.8. 2001 On that date also, none appeared for the accused appellants.
9. We have heard the arguments of Sri A.K. Dwivedi, learned A.G.A. and have perused the record We propose to decide the appeal on merits dealing with the relevant aspects of the matter
10. Taking up the question of motive first, it is there in the testimony of Phoolwati PW 1 wile of the deceased that some transactions between the accused and the deceased had taken place when the latter was carrying on goldsmith’s profession at Kheri of which place the accused were also the residents. Due to slump in his trade and owing to some excesses indulged by the accused against him, he had gone out to earn his livelihood It was also there in her testimony that the accused appellants used to come to her house to enquire about her husband, Her elder son Govinda had also gone out of the village with her husband to earn livelihood. Her son had returned to the village eight days before the incident. She had then talked to third accused Richhpal that he was Pradhan of the village and she would call her husband if he could assure her against his ill treatment The third accused Richhpal had given an assurance to her that her husband would not be ma-treated and had thus encouraged her to call him back to the village She also staled that she sent her son Govinda with the accused appellant Narpat to call back her husband Her statement goes on that, on the day of the incident at about 7 A.M., the accused Narpat and Rajendra as also one unknown person reached her house alongwith her husband Ratiram. Narpat and Rejendra demanded back their ornaments from her husband. When her husband Ratiram replied that in due course of time he would return the ornaments out of his earnings gradually., they and unknown person stalled assaulting him. When she and her mother-in-law tried to come to his rescue they pushed them aside. He was thrown by them in the well. So. there was clear motive on the part of the accused appellants in committing this crime that they were enraged and were nursing grudge against the deceased for having deprived them of their ornaments. The background of the transactions was related by Phoolwati PW I in the F.I.R. itself winch was lodged by her by oral narration immediately alter the incident without any time gap, obliterating possibility of any consultation or deliberation. The prosecution established clear motive OH the part of the accused appellants for the commission of this crime, though the question of motive could not be very material in the present case of satisfactory eyewitness account.
11. Secondly, the F.I.R. of the case as a prompt one. The incident took place at about 7.30 A.M. and the F.I.R was lodged by the eyewitness Phoolwati PW 1 wife of the deceased merely 20 minutes later by oral narration. The distance of the police station was about 3 furlongs and keeping this fact in view there was hardly any delay in lodging the F.I.R. The factum of the F.I.R having been lodged by oral narration further ensures its spontaneity
12. We may now switch over to the aspect of the ocular version of the incident. Though Phoolwati PW and her son Jahangir Ram PW 4 stated nothing to show that the third accused Richhpal also took part in the murder of Ratiram, but the testimony of both these witnesses against the present accused appellants Rajendra and Narpat is of sterling character. The trial court has rightly observed that for certain reasons the eyewitness seemingly shielded the third accused May be that being Pradhan, he was an influential person and the eyewitnesses were persuaded not to give evidence against him. But the absence of evidence against the third accused Richhpal does not at all affect the testimony of the two eyewitnesses Phoolwati PW 1 and Jahangir Ram PW 4 against the present two accused appellants. The statement of Phoolwati PW 1 is emphatic that on the fateful day and time, the two accused appellants Narpat and Rajendra and one unknown person had come to her house and demanded back their ornaments from her husband and that when latter replied that he would return the same by making gradual earnings, the accused ,appellants Narpat and Rajendra started assaulting him She, Suraj Bhan PW 3 Jahangir Ram PW 4 and Smt. Sharbati (mother of the deceased) died to defend Ratiram, but the accused appellants Rajendra and Narpat pushed them aside She further deposed that her husband caught hold of the door-frame which was even up-rooted. It is also there in her testimony that one of them throttled the neck of Ratiram .and the other caught his legs and threw him in the well Her son Jahangir Ram PW 4, though a child witness of about 12 or 13 years, corroborated her testimony in material particulars. His competence to testify was tested by the trial court by preliminary examination His statement was that on the fateful day at about 7.30 A.M., his father was brought by accused Narpat and Rajendra and one unknown person who demanded back their ornaments from him; that his father replied that he would return the same by and by from his earning, that Narpat and Rajendra did not agree it; that they and the third unknown companion assaulted his father and when his mother and grandmother wanted to defend him, they were pushed aside, that his father caught hold of Chaukhat which was up-rooted; that his father was thrown in the well by the accused Narpat and Rajendra and one unknown person His testimony sounds to be natural. So far as the present accused appellants were concerned, he remained unshaken despite searching cross-examination The benefit could only accrue to the third accused Richhpal which had already been given by the trial court
13. We need not labour much on the point that principle of ‘falsus in uno falsus in omnibus” is not applicable in our country In each case the court has to appraise the evidence to see to what extent it is worthy of acceptance. It is the duty of court to sift the evidence with care separating the grain of acceptable truth from the chaff.
14. It is to be taken note of that the incident took place at the door of Phoolwati PW 1 and Jahangir Ram PW 4 and they are the most natural witnesses of the incident. ‘There was hardly any reason for them to depose against the accused Narpat and Rajendra as the culprits of this crime.
15. No doubt, the other two eye witnesses Munna PW 2 and Suraj Bhan PW 3 did not support the prosecution case, but that would not affect the credibility of Phoolwati PW I and Jahangir Ram PW 4. Justice cannot be defeated simply because these witnesses choose not to support the hapless widow of the deceased and his minor son. The testimony of the wife and son of the deceased as against the accused appellants has the ring of truth
16. The testimony of Phoolwati PW 1 and stated that the accused Ram PW 4 was also supported by medical evidence Phoolwati PW 1 stated that the accused Narpat and Rajendra and unknown person had assaulted her husband with kicks and fists and her husband was pressed by one of them on his neck. The statement of Jahangir Ram PW 4 is also to the effect that the assailants were beating his lather by kicks and lists. Dr Sarvesh Bihari Mathur PW 7 who conducted autopsy on the dead body of the deceased did not find any external mark of injury on the dead body which is consistent with his beating by kicks and fists. Beating by kicks and first was not likely to cause any external mark of injury The evidence of the eyewitnesses that neck of the deceased was pressed in an attempt to throttle him would not mean that there should have been an injury on the neck of the deceased. He did not die of throttling. As the Doctor has opined., the death look place due to asphyxia as a result of drowning. So, the absence of external injury on the person of the deceased does not am counter to the version of eye witnesses.
17. The trial judge has rightly ignored the slight difference in the evidence of the Investigating Officer Ramvir Singh. S.I. PW 6 and 1. Constable Brahmapal PW 8 as to the time when the dead body was taken out from the well. The Investigating Officer gave out the time of taking out the dead body from the well as 10 A.M. whereas Constable Brahmapal PW 8 ( who earned the (Scat! body for post-mortem) staled that it was taken out from the well as about 7-8 A.M on 27.5,1981. The incident took place on 27,51981 and Constable Brahmapal PW 8 was examined in the Court on 22.12.1981 It could be due to lapse of time and consequent failure of memory that Constable Brahmapal PW 8 gave out the time of taking out of She dead body from the well as about 7 or 8 A.M. The F.I.R. it self having lodged at 7.50 A.M. and the Investigating Officer having reached the spot there after after recording the statement of the informant at the police station itself, the truth seems to be that the dead body was taken out from the well at about 10 A.M. The inquest report was prepared at about prepared at about 10 A.M. which would have immediately been after the taking out of the which would have immediately been of the taking out of the dead body from the well. So, the time discrepancy as to the taking out of the dead body from the well surfacing from the statements of the Investigating Officer and Constable Brahmapal PW 8 is inconsequential and is liable to be ignored.
18. To conclude dealing with all relevant aspects of the case, we find no merit in this appeal We have cross-checked the evidence on record with the reasoning and lindens given by the lower court. We find ourselves in agreement with the reasoning and findings of the lower court that the case was proved to the hilt as against the accused appellants Narpat and Rajendra. They were acting in concert with the previous meeting of minds nursing a common grudge against the deceased. The intention to cause Ins death was very much there on then pan. After assaulting him with kicks and fists, they threw him in the well to translate their intention into reality.
19. We hereby dismiss this appeal, T he accused appellants Rajendra and Narpat are on bail The Chief Judicial Magistrate, Ghaziabad shall cause them to be arrested and sent to jail to serve out the sentence of life imprisonment passed against each of them under Section 302 read with Section 34 I.P.C.
20. The Chief Judicial Magistrate. (Ghaziabad shall send the compliance report within two months from the date of receipt of copy of this order.