JUDGMENT
Mukteshwar Prasad, J.
1. Two accused, Kolahal and Ram Chandi alias Chandi have preferred this appeal against the judgment and order dated 4.11.1981 passed by Sri Khem Karan, the then Additional Sessions Judge, Deoria in S.T. No. 275 of 1979. Accused Ram Chandi has been convicted under Sections 302 and 323/34 of Penal Code and was sentenced to undergo imprisonment for life and rigorous imprisonment for a period of two months respectively. Accused Kolahal has been convicted under Sections 302 and 323 both read with Section 34 of Penal Code and was sentenced to undergo imprisonment for life and rigorous imprisonment for two months respectively The sentences passed against both the appellants were ordered to run concurrently.
2. Briefly stated, the facts, which led to the trial of the appellants, are as under: –
3. There was a long standing enmity between the parties on account of several litigations in civil and criminal courts. It was said that a murderous assault was made on Dr. Nehru Lal in the year 1971 by firearm and Ram Jatan, Ram Chandi, Kolahal and Dhunmun were prosecuted for committing the offence Ultimately, accused Ram Jatan was convicted who happened to be the son of the sister of mother of accused Ram Chandi. The parties litigated in consolidation courts also and as such, they were having strained relations since long.
4 Dr. Nehru Lal (deceased) father of P.W. 1 Brijesh Kumar, the informant had his clinic in village Bakhara Bazar in the year 1979. P.W. 1 Brijesh Kumar used to sit in the clinic along with his father and assisted him On 10.8 1979, Dr. Nehru Lal accompanied by his two sons, Brijesh Kumar and Brijendra Kumar was returning home from the aforesaid clinic. At about 7 p.m., the trio (father and sons) arrived near the culvert built towards east of village Harpur Police Station Gauri Bazar. When they reached near the sugar cane field of Sukai, they found four persons standing there. One of the assailants gave a lathi blow to Dr. Nehru Lal, as a result, of which, he fell down. Accused Om Prakash exhorted his associates to kill Dr. Nehru Lal with bomb. Whereupon Ram Chandi burst hand grenades with a view to kill Dr. Nehru Lal. Dr. Nehru Lal was seriously injured and a number of witnesses including Ram Lakhan, Ramji, Khajanchi, Ram Raksha and Algoo arrived there and saw the incident. The sons and witnesses identified the assailants in the light of torches. Brijendra Kumar was also assaulted by lathi by one of the miscreants. The deceased disclosed the names of the assailants to all the witnesses. The informant and his brother identified the assailants. Looking to the critical condition of Dr. Nehru Lal, he was shifted to the District Combined Hospital, Deoria for treatment, where he succumbed to his injuries at about 10.00 p.m.
5. The Emergency Medical Officer of the District Hospital sent a memo to Station House Officer, Kotwali, Deoria mentioning therein that Dr Nehru Lal was admitted in the hospital at 9.45 p.m. and he expired at 9.52 p.m. on 10.8.1979.
6. This intimation was received at Kotwali at 6.30 am. On 11.8.1979. S.I. Ram Dhiraj Singh, P.W. 6 accompanied by Constable Dharma Deo Singh reached District Hospital and took the dead body in custody and prepared inquest report and completed necessary formalities He sent the dead body for post mortem examination.
7. On 11.8.1979, at 7.15 a.m. P.W. 1 Brijesh Kumar Gupta handed over a written report at the Police Station Gauri Bazar and the local police registered a case at Crime No. 183 under Section 302 I.P.C. against four persons, namely, Kolahal, Om Prakash and Ram Chandi Yadav and one unknown person.
8. P.W. 5 Dr. Chandra Prakash of District Hospital, Deoria performed the autopsy on the dead body of Dr. Nehru Lal on 11.8.1979 at 3.30 p.m. He found the following ante mortem injuries; –
1. Lacerated wound 10 cm. x 6 cm. x bone deep on left side of face Mandibular bone and membranes were visible. Teeth exposed. Margins blackened and scorched.
2. Lacerated wound 2 cm. x 1 cm. on tip of nose bone deep. Margin blackened and scorched.
3. Lacerated wound 10 cm. x 4 cm. x bone deep just below the lateral part of hip below the iliac crest on left side skin surrounding wound was blackened and scorched.
4. Multiple lacerated wound 5 cm. x A cm. on left side of abdomen just above the iliac crest. Surrounding skin was blackened and scorched.
5. Lacerated wound 7 cm. x 6 cm. bone deep on medial aspect of left thigh skin surrounding the wound was blackened and scorched.
6. Lacerated wound 14 cm. x 10 cm. x muscle deep on front of genital portion. Penis and scrotum are ruptured. Surrounding skin blackened and scorched extending from pubic symphysis, upto anal. Femoral artery ruptured.
7. Lacerated wound 7 cm. x 4 cm. x bone deep on Ventral aspect of left fore-arm lower 1/3 part on medial side. Skin scorched. Wound blackened and scorched.
8 Lacerated wound 4 cm. x 1.5 cm. on media! aspect of left wrist-joint on front.
9. Lacerated wound 3 cm. x 1.5 cm. x muscle deep, 1.5 cm. below injury No. 8. Skin surrounding wound was blackened and scorched.
10. Lacerated wound 7 cm. x 1.5 cm. x bone deep on head, 4 cm. from the root of the nose in the mid-line.
9. The doctor found semi digested whitish liquid in the stomach of the deceased. In the opinion of Dr. Prakash, the death was caused due to shock and haemorrhage resulting from ante mortem injuries, which were sufficient in ordinary course of nature to cause death. 10 P.W. 8, Dr. R.K. P. Misra, the then Medical Officer, Primary Health Centre, Gauri Bazar, examined P.W. 2 Brijendra Kumar on 11.8.1979 but he found no external injuries on his body except complaint of pain on lower outer part of right side buttock.
11. P.W 9 S.I. R.S Yadav took up investigation of the case, interrogated the informant at the Police Station itself and reached the scene of occurrence. He interrogated Ram Lakhan, Ram Raksha and Ramji on the same day. After inspection of the site prepared a site plan and collected blood strained earth and pieces of bomb etc. and prepared Fard. He saw torches of the witnesses and informant and prepared Fard supurdagi. S.I. Paramhans Pandey completed the investigation and submitted charge sheet against Kolahal and Ram Chandi only.
12. Both the accused were charged under Sections 302 and 323 read with Section 34 of Penal Code to which they pleaded not guilty.
13. At the trial, the prosecution examined nine witnesses in all including P.W. 1 Brijesh Kumar, who is informant as well as an eyewitness and P.W. 2 Brijendra Kumar who is another son of deceased and was accompanying him at the time of incident in question. P.W. 3 Ram Lakhan is also said to be an eyewitness, P.W. 4, H.C. Vikrama Singh had prepared the Chik Report and made entry in the G.D. on 11.8.1979 at P.S. Gauri Bazar, P.W. 5 Dr Chandra Prakash conducted autopsy on the dead body on 11.8.1979, P.W. 6 S.I. Ram Dhiraj Singh prepared inquest report, P.W. 7 S.I. Paramhans Pandey is the IInd Investigating Officer of the case, who interrogated the witnesses of inquest report and questioned the accused, P.W. 8 Dr. R.K.P. Misra had examined P.W. 2 Brijendra Kumar at Primary Health Centre Gauri Bazar, and P.W. 9 S.I. R.S. Yadav is the Investigating Officer of the case.
14. Both the accused in their statements totally denied all the accusation levelled against them. They attributed their false implication on account of enmity. They examined D.W. 1 Ashfaq Ahmad, the then Reader in the court of Additional Chief Judicial Magistrate, Deoria and D.W. 2 Rajendra Singh, the then A.P.O. who was attached to the court of Additional Chief Judicial Magistrate, Deoria in the month of August, 1979. Both the witnesses were examined to prove that an application for holding identification of the accused was moved on their behalf, which was given to A.P.O. for necessary action by the court on 30.8.1979.
15. After having heard learned counsel for the parties and considered the entire oral as well as documentary evidence on record led by them, learned Judge found both the accused guilty and convicted and sentenced them, as indicated above.
16 We have heard learned counsel for the appellants, learned A.G.A. at length and perused the record carefully.
17. Learned counsel appearing for the appellants has assailed the impugned judgment mainly on the grounds that admittedly, the parties were at daggers drawn and as such, the possibility of false implication of the accused cannot be ruled out. According to him, the incident of murder took place in the night and Dr. Nehru Lal was done to death by unknown assailants and prosecution version is highly improbable. The memo sent by the Emergency Medical Officer does not indicate as to who got the deceased admitted in the hospital. The deceased had several enemies and inordinate delay took place in lodging the F.I.R. It was further submitted with vehemence that the appellants claimed identification by the witnesses but no identification parade was held. Lastly, it was urged on behalf of the appellants that the provisions of Section 34 of Indian Penal Code are not attracted and Kolahal did not know that co-accused Ram Chandi was carrying hand grenades/bombs in his bag. 18 Reliance was placed by the learned counsel for the appellants on the following four decisions of the Apex Court: –
1. Kashmira Singh v. State of Punjab 1994 CRI.L.J. 1974
2. State of Rajasthan v. Shri Teja Singh and Ors. 2001 (1)U.P Cr. R. 343
3. Harijan Thirupala and Ors. v. Public Prosecutor, High Court of A.P. Hyderabad, 2002 S.C.C. Criminal 1367
4. Meharaj Singh v. State of U.P. 1994 SC (31) ACC 437
19. On the other hand, learned counsel appearing for the State submitted that both the appellants were named in the F.I.R, as actual assailants and on the basis of direct testimony of three eyewitnesses, the trial Judge found the prosecution version proved and he rightly convicted and sentenced the appellants. In his opinion, the appeal has no merit and is liable to be dismissed.
20. After having gone through the decisions relied upon by the learned counsel for appellants and on a careful consideration of the entire submissions made on behalf of the parties and oral as well as documentary evidence on record led by them, we are clearly of the opinion that this appeal lacks merit and is liable to be dismissed.
21. In the instant case, the prosecution not only alleged motive for commission of the crime but proved the motive by reliable evidence also. There is overwhelming evidence on record that litigation took place between the parties in different courts. In the year 1971, both the appellants along with Ram Jatan and others made an attempt to kill Dr. Nehru Lal and were prosecuted Ram Jatan who happened to be the Mausera brother of Ram Chandi was convicted and was undergoing imprisonment at the time of murder of Dr. Nehru Lal. We find that nothing material could be elicited in the cross examination of two sons of deceased to show that they have not spoken truth on this point, in our view, the appellants had a motive to commit the murder of the informant’s father It may be mentioned here that motive in the present case does not have much significance because the prosecution case rests on the direct evidence of alleged eyewitnesses.
22. Admittedly, the parties were at daggers drawn from before and they were on term of animosity. Enmity is a double-edged weapon and it cuts both ways. Therefore, prudence enjoins that the courts should scrutinize the evidence with great care and caution.
23. We were taken through the entire oral evidence of three eyewitnesses Brijesh (P.W. 1), Brijendra Kumar (P.W. 2) and Ram Lakhan (P.W, 3) by the appellants learned counsel who made an unsuccessful attempt to show that the incident of murder, in fact, was committed in the odd hours of night by unknown assailants and appellants were nominated in the F.I.R. on account of enmity. There was no source of light at the scene of occurrence and no witness arrived there. Moreover, no independent witness of nearby villages was examined on behalf of the prosecution and as such, the trial Judge erred in placing reliance on the testimony of related and interested witnesses
24. It is true that P.W. 1 Brijesh Kumar and P.W. 2 Brijendra Kumar are sons of deceased and P.W. 3 Ram Lakhan is uncle of deceased. It was held by the Supreme Court in Angnoo v. State of U.P. that in a murder case when brother of deceased is examined by the prosecution as a witness, the fact of his relationship would add to value of his evidence because he would be interested in getting the real culprit punished rather than innocent persons. The Apex Court in Balwant Singh v. State of Haryana held that the mere fact that the injured witnesses are related to each other would not be a sufficient ground for discrediting their testimony. It is also most difficult to believe that the injured witness would spare the real culprit and falsely involve innocent person. There are a catena of decisions rendered by the Apex Court that evidence of a witness who is inimical, interested or related should not be discarded / rejected outright What is required under the law is that testimony of such witnesses is to be scrutinized with care and caution.
25. When we scrutinize the evidence of two sons of deceased in the aforesaid back ground, we find that both deposed in clear words that on the impugned date and time they alongwith their father were returning home on foot from clinic situated at village Bakhara. When they were proceeding towards their village and reached near the sugar cane field of Sukai, they found four persons standing there. According to them accused Kolahal gave a lathi blow to Dr. Nehru Lal, who fell down. One Om Prakash (who was not charge-sheeted) exhorted Ram Chandi to kill Dr. Nehru Lal by hand-grenades, whereupon he burst two hand-grenades. The deceased sustained serious injuries on different parts of his body. The fourth accused wielded his lathi on P.W. 2 Brijendra Kumar. Both the brother further testified in clear words that on the hue and cry raised by them, P.W. 3 Ram Lakhan, Khajanchi, Ramji and others arrived there flashing their torches. It is noteworthy that P.W. 1 Brijendra Kumar was also flashing his torch at the time of alleged incident. It has also come in the evidence that when the witnesses assembled there, the assailants took to their heels towards west and south. All the three eyewitnesses have given out that two hand-grenades were exploded on the spot with a view to kill Nehru Lal.
26. P.W. 1 Brijendra Kumar was an Intermediate in the year 1979 and used to assist his father in his clinic. Both the brothers and P.W. 3 Ram Lakhan categorically stated that the deceased used to go daily to his clinic at Bakhara and come back home in the evening. Both brothers were cross examined effectively and extensively on behalf of the appellants but their testimony could not be shattered or shaken and they, in our opinion, have withstood the test of cross-examination.
27. P.W. 2 Brijendra Kumar was a student of High School and studied at Bakhara, He, therefore, used to go to his school daily and come back along with his father. There is, therefore, no reason to disbelieve his presence at the place of occurrence.
28. We find ourselves in agreement with the observation of the trial court that P.W. 3 Ram Lakhan was a chance witness and the trial Judge rightly did not place reliance on his testimony.
29. We find that there is reliable and direct testimony of two brothers on record to the effect that on the impugned date at about 6.00 p.m. – 7.00 p.m. both the appellants along with two others in furtherance of common intention committed murder of their enemy Dr. N. Lal in the manner as mentioned above. At the risk of repetition, it may be noted here that both the brothers were subjected to lengthy cross-examination but they remained successful in the test. We are not inclined to reject their testimony merely on the ground that they are sons of the deceased.
30. There is direct, reliable and cogent evidence of the sons of deceased that Dr. Nehru Lal was taken to the District Hospital, Deoria for treatment with a view to save his life and he was admitted there at about 9.30 p.m. and succumbed to his injuries at about 10-00 p.m. The place of occurrence is situated at a distance of more than 20 kms. from the hospital and as such, the possibility that the incident of murder took place in the odd hours of night is totally ruled out.
31. Learned counsel appearing for the appellants further assailed the judgment under appeal on the ground that there was inordinate delay in lodging report to the police and F.I.R. was lodged after consultation. It is correct that incident took place on 10.8.1979 at about 7.00 p.m. and F.I.R. was lodged by one of the sons of the deceased on 11.8.79 at 7-15 a.m. Thus, we find that the F.I.R was lodged after about 12 hours. However, we hold that in fact, no delay took place in lodging the F.I.R. at the Police Station and delay, if any, was satisfactorily explained by the prosecution. As indicated above, the deceased had a number of injuries which were caused by the hand-grenades and he was lying in critical condition on the spot. Therefore, sons of deceased who were accompanying him had every reason to save his life first and then lodge a report at the Police Station. With this end in view, the sons took the victim to the District Hospital, Deoria for providing him medical aid first but unfortunately, he succumbed to his injuries at about 10 p.m. In our opinion, the conduct of the sons of the deceased and others was quite natural and reasonable in the circumstances of the case. It is true that the Police Station Gauri Bazar is well connected from Deoria by bus as well as train. However, in view of the facts that the dead body of the father of the informant was lying in the hospital in the night and mental condition of sons of deceased, we are inclined to hold that actually there was no delay in reporting the incident to the local police. It is correct that a report could be lodged at Kotwali Deoria also but no report was lodged there. In view of the explanation furnished by the informant, we find no force in the contention of learned counsel for the appellants on this point.
32. The incident happened on 10.8.1979 at about 6.00 p.m. -7.00 p.m. The sun set took place at about 6.30 p.m. In view of the month and timing of sun set, there must have been sufficient natural light also at the time of murder in which the assailants could be identified A perusal of the written report shows that both the sons of deceased saw and identified the assailants at the scene of occurrence and both knew them from before. The relevant portion of the report is extracted below for proper appreciation: –
” HAM LOG BHI KOLAHAL YADAV, OM PRAKASH YADAV, RAM CHANDI YADAV UPROKT KO ACHGHI TARAH DEKHAY PAHCHANAY TATHA JANTEY HAI THATHA EK ADAMI AUR JISKA NAM NAHIN MALOOM HAI (.) SAMNAY ANAY PAR DEKH KAR PAHCHAN SAKTEY HIAN (.) MERAY PITA KO MARAY HAI (.) KOLAHAL YA MERAY PITA KO LATHI SAY MARA VA OM PRAKASH KAY LALKARNEY PAR RAM CHANDI YA UPROKT BAM SAY MERAY PITA KO MARAY HAI”
From the aforesaid averments made in the report itself, it is quite obvious that both the brothers saw and identified the actual assailants at the time of murder and assailants were well known to them, in this view of the matter, the contention of the appellants counsel that the murder was committed in night by unknown assailants has no legs to stand and cannot be accepted.
33. It was urged on behalf of the appellants that doctor who sent the memo to Kotwali Deoria regarding death of Dr Nehru Lal in the hospital did not indicate as to who took the deceased to the District Hospital from the scene of occurrence. First of all, it may be mentioned that doctor who prepared the memo was not produced by the prosecution and memo was not proved. P.W. 6 S.I. Ram Dheraj Singh testified that on 11 8.1979 at 6.30 a.m. an intimation regarding death of Dr. Nehru Lal was received at Kotwali and thereafter, he was deputed for preparing the inquest report etc P.W. 1 Brijesh Kumar and P.W. 2 Brijendra Kumar testified in clear words that after the incident in question, they and others took their father to Deoria Hospital in injured condition where he expired at about 10 p.m. In our opinion, non-mentioning of the name of person who took the deceased to the hospital and got him admitted there does not in any manner weaken the prosecution case.
34. It was urged on behalf of the appellants that accused moved an application for holding the identification parade and they claimed that the witnesses did not know them from before. However, this request of the accused was not acceded to by investigating agency. Both the appellants are, therefore, entitled to be acquitted on this ground alone. We find that this point was raised vehemently in the court below also but the contention of the learned counsel for the appellants was repelled. The trial Judge has referred several decisions on this point and rightly concluded that non-holding of identification parade by the investigating agency is not fatal. We find no infirmity in the judgment of the court below on this point particularly in view of the aforesaid facts and averments in the written report itself that the assailants were seen and identified by the witnesses on the spot and they were well known to them since long.
35. Lastly, it was contended on behalf of the appellants that the trial Judge erred in convicting Kolahal with the aid of Section 34 I.P.C. According to the appellants learned counsel Kolahal did not know that co-accused Ram Chandi was having hand-grenades in his bag. In our considered opinion, this contention of learned counsel for the appellants is also devoid of substance. A perusal of the written report itself would show that Kolahal was first man who wielded his lathi on the deceased and as a result of lathi blow, he fell down. Thereafter, co accused Om Prakash instigated Ram Chandi to kill Dr. Nehru Lal by bursting hand-grenades and then, he burst two hand grenades with a view to kill him. It is, therefore, obvious that co accused knew this fact very well that Ram Chandi was carrying hand-grenades in his bag and the appellants shared common intention to kill Dr. Nehru Lal on the impugned date and time. We are, therefore, of the opinion that learned Judge rightly found the accused guilty and was justified in convicting Kolahal also under Section 302 I.P.C. with the aid of Section 34 of Penal Code. He was further justified in convicting both the appellants under Section 323 read with Section 34 of Penal Code also
36. In view of the aforesaid close scrutiny and scanning of the evidence on record led by the parties and arguments advanced on their behalf, we have arrived at a conclusion that the learned Judge took into consideration all aspects of the case and has correctly appreciated the evidence led by the parties and thus, rightly held that both the appellants in furtherance of their common intention committed murder of Dr. Nehru Lal and voluntarily caused hurt to his son Brijendra Kumar on the fateful day, time, place and in the manner, as alleged by the prosecution. We, therefore, hold that the conviction recorded under both counts against the appellants and sentence imposed by the court below are sustainable and there is no reason to reduce the sentence further. The appeal is, therefore, liable to be dismissed.
37. The appeal filed by Kolahal and Ram Chandi is hereby dismissed. The conviction and sentence recorded under both counts against both the appellants are hereby affirmed. Both the sentences shall run concurrently.
38. Both the appellants are on bail. Their bail is cancelled. Let a copy of this judgment be sent to the Chief Judicial Magistrate concerned, who shall cause them to be arrested and lodged in Jail to serve out the sentence.
39. A copy of the judgment along with lower court record shall be transmitted to the court concerned for compliance and compliance report be submitted to this Court within two months from the date of receipt of a copy of this judgment.