PETITIONER: MATAPRASAD Vs. RESPONDENT: STATE OF U.P. DATE OF JUDGMENT08/02/1994 BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) REDDY, K. JAYACHANDRA (J) CITATION: 1994 SCC Supl. (2) 19 JT 1994 (1) 515 1994 SCALE (1)412 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
RAY, J.- This appeal is directed against the judgment dated
October 22, 1982 passed by the Lucknow Bench of the
Allahabad High Court in Criminal Appeal Nos. 544 of 1976 and
545 of 1976 modifying the conviction and sentence passed by
the learned Additional Sessions Judge, Gonda in Sessions
Trial No. 222 of 1974. Nine accused persons including the
six appellants in this appeal faced trial in the said
sessions case on charges under Sections 120-B, 148, 302 read
with Sections 149 and 147 IPC for murdering one Radhey Shyam
on April 23, 1974. The learned Sessions Judge convicted
accused 1, 5 and 6 namely, Amrika, Nauranglal and Raja Ram
under Sections 120-B, 148, 302 read with Section 149 IPC and
sentenced them to suffer two years’ rigorous imprisonment
under Section 148 and the imprisonment for life under
Section 302 read with Section 149 IPC. No separate sentence
was, however, awarded under Section 120-B IPC. The learned
Sessions Judge also convicted accused 3 Mata Prasad, accused
4 Bachcha Lai and accused 2 Ambar, under Sections 147, 302
read with Section 149 IPC and awarded sentence of one year’s
rigorous imprisonment for the offence under Section 147 and
life imprisonment under Section 302 read with Section 149
IPC. Accused 3 and 4 were also convicted under Section 120-
B but no separate sentence was passed on that count.
Accused 7 Kapil Deo, was also convicted under Sections 147,
120-B and 302 read with Section 149 IPC and one year’s
rigorous imprisonment was awarded for the offence under
Section 147 and imprisonment for life for the offence under
Section 302 read with Section 149 IPC. No separate sentence
was awarded under Section 120-B IPC. Accused 8 Hara Prasad
and accused 1 Amrika were convicted only under Section 302
read with Section 149 IPC and the learned Sessions Judge
awarded life imprisonment for the said offence. The said
accused persons preferred two appeals before the Lucknow
Bench of the Allahabad High Court being Criminal Appeal Nos.
544 of 1976 and 545 of 1976. Both the said appeals were
heard analogously and were disposed of by a common judgment.
Both the said criminal appeals were partly allowed. So far
as accused 4 Bachcha Lai is concerned, the High Court set
aside the conviction under Section 120-B IPC but upheld the
conviction under Sections 147, 302 read with Section 149 IPC
but on consideration of the facts that at the time of
commission of the offence he was aged only 16 years, the
High Court suspended the sentence by giving benefit of
Section 30 of the U.P. Children Act and directed to furnish
personal bond of Rs 5000 and two sureties of like amount
one of such sureties to be furnished by an elder member of
the family. The conviction under Section 120-B IPC was set
aside in favour of all the appellants. In both the said
appeals the conviction and sentence passed by the learned
Sessions Judge against Mata Prasad, Naurang Lai, Amrika and
Raja Ram under Sections 148, 302 read with Section 149 IPC
were upheld by the High Court. Accused 8 Hara Prasad and
accused 9 Babu La], were acquitted in view of setting aside
the conviction and sentence under Section 120-B IPC. The
conviction and sentence of accused 7 Kapil Deo, under
Sections 147, 302 read with Section 149 IPC were upheld by
the High Court. As aforesaid, the instant appeal has been
preferred by accused 1, 2, 3, 5, 6 and 7, namely, Amrika,
Amber,Mata Prasad, Naurang Lai, Raja Ram and Kapil Deo.
2. The prosecution case in short is that the appellants
Amber and Amrika are real brothers and Naurang Lai is
collateral of Amrika while Raja Ram is
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servant of Amrika and Kapil Deo was in the gang of Amrika
because he used to borrow money from him. Mata Prasad and
Bachcha Lai were cousins and they were also close to Amrika
who was an influential man in the locality. Hara Prasad and
Babu Lai were also the friends of Amrika. Amrika was a
chaukidar of the Police Station, Kotwali, Gonda. The
deceased, Radhey Shyam, had taken three bighas land in the
village from Radhika and Radhey Shyam had been put in
possession of the said land and although Radhika had
promised to execute the sale deed after consolidation, it
was not done. Radhika later on sold the said land to the
accused Hara Prasad about three years prior to the date of
occurrence. The said Hara Prasad after one and a half years
from the date of the said purchase had tried to take
possession of the said land but such attempt was resisted by
the deceased Radhey Shyam. In view of such purchase and
attempts for dispossession, there was enmity between the
deceased and Hara Prasad. It is the prosecution case that
Hara Prasad and Babu Lai planned to kill Radhey Shyam and on
the evening of April 22, 1974, the accused Mata Prasad,
Ambar, Naurang Lai, Raja Ram and Kapil Deo, Hara Prasad and
Babu Lai conspired that Kapil Deo would bring Radhey Shyam
and he would be killed. On April 22, 1974, Radhey Shyam had
gone to Gonda but had not returned by 10 o’clock at night
and the family members had gone to sleep. Next morning on
April 23, 1974, at about 7.00 a.m. Radhey Shyam and Kapil
Deo were seen coming from the east of the shop of Amrika by
PW 3 Muni Ram. The said witness Muni Ram, had also seen
Radhey Shyam and Kapil Deo entering the shop of Amrika where
Mata Prasad, Bachcha La], Amber, and Kapil Deo were armed
with lathis, Amrika had a gun, Naurang Lai had a ballam and
Raja Ram carried a pharsa and all of them started assaulting
Radhey Shyam with their respective weapons. On seeing the
assault on Radhey Shyam, PW 3 rushed to the house of
Baijnath which was at a distance of 1 1/2 furlongs and
informed them that Radhey Shyam was being assaulted by the
said accused persons. On hearing of the said assault, PW 1
Ballu, who is the sister of Radhey Shyam and PW 2 father of
Radhey Shyam, rushed towards the shop of Amrika along with
PW 3 Muni Ram, and on the way they met one Nakched who had
also accompanied them. They, however, could not find anyone
in the said shop but on moving little further they saw that
the body of Radhey Shyam was being dragged on by means of
electric wire which was tied on the waist of Radhey Shyam.
The accused, Kapil Deo and Amber held the hands of Radhey
Shyam and Mata Prasad and Bachcha Lai held his legs. Amrika
was found armed with the gun, Naurang Lai had ballam and
Amber and Kapil Deo carried lathis. The body was being
carried towards the chak road which was to the north of the
shop of Amrika. On the cry being raised, the appellants and
other accused ran leaving the body of Radhey Shyam. When
Ballu, Baijnath and Muni Ram reached, they found that Radhey
Shyam was already dead.
3.A written report about the incident was dictated by
Baijnath to Muni Ram who transcribed the same and Baijnath
lodged the report at the Police Station, Kotwali and the
case was registered by the Head Constable Baldeo Prasad
Pathak at about 11.00 a.m. on April 23, 1974. Kalika Singh,
Station Officer, Kotwali, was present at the time of lodging
the report. He interrogated Baijnath and prepared the
inquest of the body of Radhey Shyam being Ext. Ka-3 and
despatched the body for postmortem examination. The
Investigating Officer found blood in the field of Samokhan
where the body was lying and the
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Investigating Officer collected the same and prepared the
recovery memo. He also noticed the blood in the shop of
Amrika and also from the chak road up to the shop of Amrika.
The bloodstained earth and plain earth from the respective
places were collected and the recovery report was prepared.
In the shop of Amrika, he found a pair of Kharaon blades of
pharsa, a gunny bag and wooden part of gun which connects
the barrel to the butt of the gun and the said articles were
also seized and sealed by preparing the memos. The
Investigating Officer searched the house of Amrika and Ambar
and seized the gun after such search. PW 5 Dr Narendra
Verma performed the postmortem examination and prepared a
report being Ext. Ka-7 and he found 17 injuries including
incised wounds, punctured wounds and lacerated wounds. At
about 11.45 a.m. on the date of occurrence, namely, on April
23, 1974, an information was received from the district
hospital through memo Ext. Ka-9 that the accused Mata
Prasad was present there and the police constables were sent
to the hospital to keep watch and arrest him after making
G.D. entry being Ext. Ka-21. The said Mata Prasad was
arrested and locked up in the police lock-up at about 15.55
hrs on the same date. The accused Amrika was arrested and
was locked up at about 17.30 hrs on the same day and the
other accused persons surrendered in court. The
Investigating Officer interrogated prosecution witnesses and
also the accused persons and prepared a site plan of the
scene of occurrence. Later on, further investigation was
taken up by the Circle Officer Ram Nagina Singh, PW 9.
4.Twelve witnesses were examined on behalf of the
prosecution including PW 1 Ballu, PW 2 Baijnath and PW 3
Muni Ram. PW 3 Muni Ram, is the eyewitness of the assault
at the shop of Amrika and also an eyewitness of the dead
body being carried to the field of Samokhan. The other two
witnesses, namely, PW 1 Ballu and PW 2 Baijnath had only
seen the dead body being carried out by the said accused
persons. The other witnesses proved the inquest, postmortem
report, search of the house of Amrika and Amber and other
details of various steps taken by the police.
5.All the accused denied the prosecution story and had
pleaded that they had been falsely implicated on account of
enmity. Each of the accused persons gave their respective
version in support of the contention that Radhey Shyam, his
father, Baijnath, PW 2 and the said eyewitness Muni Ram were
inimical to the accused persons for different reasons. It
was also contended on behalf of the accused persons that
Radhey Shyam was a man of desperate character and was
challenged on the charge of dacoity on a few occasions. The
said Radhey Shyam was highly cross because of the purchase
of the said land by Hara Prasad and he with his associates
wanted to assault Hara Prasad and his friends. Mata Prasad
stated that the deceased Radhey Shyam along with three or
four persons came to the shop of Amrika and fired with a
pistol at Mata Prasad and on his alarm, several persons
arrived there and there was a ‘mar pit’. It was the case of
the accused that the villagers came to the scene of
occurrence on hearing the noise of ‘mar pit’ and Radhey
Shyam was assaulted by the villagers causing his death and
his body was thrown in the field of Samokhan. A number of
witnesses were examined on behalf of the accused persons.
DW 1 Dr R.S. Pandey proved the injuries of Mata Prasad which
were examined by him on April 23, 1974 at about 10.45 a.m.
The said doctor noted four lacerated wounds on the hands of
said Mata Prasad and he also advised for X-ray. He also
stated that on examination
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of X-ray report, he found some metallic pieces around the
injuries. DW 2 Ram Lakhan Singh stated about the search of
the house of PW 3 Muni Ram at the instance of Kapil Deo.
The said DW 3 Tej Bahadur Singh is Station Officer of
Kotwali, Gonda, and he also stated that Radhey Shyam was
charge-sheeted in the case of dacoity in which Kapil Deo and
Naurang Lal were witnesses. DW 4 Dr V.B. Singh examined the
injuries of Amrika at about 9.15 a.m. on April 24, 1974 and
he found contusions on his person and proved the report
prepared by him being Ext. Ka-10. DW 5 Ram Shanker was a
Constable, who proved the report lodged by one Smt Banana
against PW 3 Muni Ram. DW 6 Kesari Nandan Singh stated
about the special report sent in the office of
Superintendent of Police.
6.The learned Additional Sessions Judge did not accept
the defence case that Radhey Shyam was aggressor and he
assaulted Mata Prasad and being a man of desperate character
he suffered injuries during the ‘mar pit’ and being severely
assaulted by the angry villagers who reached the spot, he
had died. On the contrary, the learned Additional Sessions
Judge believed the prosecution case that the said accused
persons hatched a conspiracy to kill Radhey Shyam and also
assaulted him with deadly weapons causing his death as
alleged by the eyewitness PW 3 Muni Ram.
7.Accordingly, the learned Additional Sessions Judge
convicted all the said accused persons and awarded sentences
under different counts as indicated hereinbefore.
8.During the hearing of the appeal before the High Court,
it was contended on behalf of the accused-appellants that
the evidence of the alleged eyewitnesses, namely PWs 1, 2
and 3 should not be believed because they were all
interested witnesses and were inimical for various reasons
against the accused persons. It was contended that PW 3
Muni Ram was the only eyewitness of the alleged assault on
the deceased but the said Muni Ram was himself implicated in
criminal case where some of the accused persons were
witnesses. He, therefore, made a false statement to
implicate the accused. In any event, lone testimony of PW 3
not being corroborated by any independent witness should not
be believed.
9.The High Court, however, did not find that the charge
under Section 120B was proved against any of the accused
persons. The High Court, therefore, acquitted all the
accused from the charge under Section 120-B IPC. The High
Court, however, indicated reasons as to why the defence case
could not be accepted and the prosecution case was
acceptable and by indicating such reasons upheld the
conviction of the appellants in the instant appeal with some
modifications as indicated hereinbefore and awarded the
aforesaid sentences against the aforesaid appellants.
10.At the hearing of this appeal, Mr Sushil Kumar, learned
Senior Counsel, very strongly contended that the case of the
prosecution could not have been accepted by the courts below
and it was practically on surmise and conjectures, the High
Court had found that the accused persons had committed the
offences alleged against them. It was contended by him that
although it was the case of the prosecution that when PWs 1
and 2, namely, the sister and the father of the deceased
were going with Muni Ram PW 3 towards the shop of Amrika,
they met one Nakched who also accompanied them but the said
Nakched, who was
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an independent witness, was not examined by the prosecution.
Mr Sushil Kumar also contended that immediately after the
incident Mata Prasad has to be admitted in the Government
Hospital, Gonda, with injuries on his person and he was
advised for an X-ray report and such X-ray report revealed
that he had suffered gunshot injuries because metallic
pieces were found at the place of injury. The said fact
clearly established the truth of the case of the accused
that Radhey Shyam assaulted Mata Prasad because of the old
enmity and later on he suffered injuries when ‘mar pit’
followed such assault on Mata Prasad. Mr Sushil Kumar has
also contended that it has been proved not only by the oral
evidences adduced on behalf of the accused persons but also
on the basis of the documents proved on behalf of the
accused persons that the deceased was a man of desperate
character and he was involved on charge of dacoity on a
number of occasions. He has also submitted that the only
eyewitness Muni Ram was also involved in a criminal case in
which some of the accused persons were witnesses. He has
submitted that it does not require any imagination to hold
that the said Muni Ram bore definite grudge against the
accused persons and he falsely implicated the said persons.
Mr Sushil Kumar has also contended that normally Muni Ram
was not expected to be present at the place of occurrence
because he belongs to a different village and he was only a
chance witness. The explanation given by the said Muni Ram
as to why he came to that place should not have been
accepted by the courts below particularly when he was a
highly partisan witness. Mr Sushil Kumar has contended that
both Mata Prasad and Amrika suffered injuries at the time of
occurrence which clearly established the case of the accused
that because of the aggressive action taken by the deceased
there had been a ‘mar pit’ for which both Mata Prasad and
Amrika had to suffer injuries. The prosecution has
absolutely failed to explain the injuries on the person of
Mata Prasad and Amrika. Mr Sushil Kumar has contended that
although in a broad daylight the alleged gruesome murder had
taken place and a gun was fired thereby attracting the
attention of the villagers and although the body of the
deceased was carried by a number of persons up to the field
of Samokhan, no independent witness from amongst the
villagers had come forward to depose on behalf of the
prosecution in support of the prosecution case. Mr Sushil
Kumar has contended that in an appropriate case, for good
reasons, the evidence of an interested witness may be
accepted by the Court but in the facts and circumstances of
the case, the evidence of PW 3 Muni Ram cannot be accepted
and in the absence of any corroborative evidence about the
assault made on the deceased, no conviction was warranted.
He has submitted that the other two eyewitnesses, namely, PW
1 and PW 2, namely, the father and the sister of the
deceased had no occasion to see the assault and they had
deposed only about the dragging of the deceased up to the
field of Samokhan. Hence, they had no occasion to
corroborate the testimony of PW 3 Muni Ram about the actual
assault made on the deceased Radhey Shyam. Mr Sushil Kumar
has also submitted that in any event, Mata Prasad having
suffered serious injuries including the gunshot injuries had
ample justification to assault the deceased to save his
life. He has contended that if a person was attacked with a
pistol, the person concerned was bound to immobilise the
assailant in order to save his life. In such circumstances,
it is very difficult to weigh the force to be applied by way
of self-defence in a golden scale and in the facts and
circumstances of the case, Mata Prasad is entitled to get
the benefit of right to
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self-defence. In any event, he could not be punished on a
charge of murder even if it is accepted that he had exceeded
the right of self-defence. Mr Sushil Kumar has contended
that the salient features of the case which clearly
demonstrated the falsity of the prosecution case have been
lost sight of by the courts below and on the surmises and
conjectures the conviction and sentences were imposed on the
appellants. He has submitted that it is pre-eminently a fit
case where a judgment of acquittal is warranted and the
appeal, therefore, should be allowed by setting aside the
conviction and sentences imposed on the appellants and they
should be acquitted by this Court.
11. Such contentions were , however, disputed by the learned
counsel for the State and it was contended by the said
learned counsel that the falsity of the case of the accused
was clearly established and the High Court has given
elaborate reasoning as to why the case sought to be made out
by the accused persons cannot be accepted. He has submitted
that the time and place of occurrence have been admitted by
the accused. Bloodstains were noted in the shop of Amrika
and trail of blood was also noted on the road through which
the dead body was dragged. He has submitted that it has not
been established by any cogent evidence that there was a
‘mar pit’ at the shop of Amrika and the villagers assaulted
the deceased causing his death. Such allegation, according
to the learned counsel for the State, is a fanciful
imagination without any basis and such case has been rightly
rejected by both the courts below. The learned counsel has
submitted that both the learned Sessions Judge and the High
Court have concurrently found that the accused-appellants
committed the offence alleged against them. There is no
occasion for this Court to set aside such concurrent
findings based on proper reasons and evidences adduced in
the case. He has, therefore, submitted that the appeal
should be dismissed.
12.After giving our careful consideration to the facts and
circumstances of the case and the evidences adduced in the
proceeding, it appears to us that although actual assault on
the deceased had not been seen by the other two eyewitnesses
and PW 3 Muni Ram is the only witness for such assault on
the deceased, the evidence of Muni Ram appears to be quite
convincing and does not deserve to be discarded as sought to
be contended by Mr Sushil Kumar. PWs 1 and 2 on receiving
the information that the deceased was being assaulted by the
accused persons rushed to the shop of Amrika and they could
not see the deceased and the accused persons there but only
on proceeding little further from the said shop, they could
see some of the accused persons dragging the dead body and
thereafter leaving it in the field of Samokhan. The place
of occurrence and the time of occurrence as stated by PW 3
Muni Ram is amply corroborated by the presence of bloodstain
in the shop and also trail of blood on the road and also by
the very fact that Mata Prasad got examined in the
Government Hospital shortly after the incident and it has
been admitted by Mata Prasad that there had been an incident
in which the deceased was assaulted in a ‘mar pit’ in which
he also received injuries. Although it was not admitted by
him that he and his associates had assaulted the deceased
but the factum of incident at the time stated by PW 3 stands
admitted by Mata Prasad. It has been explained by PW 3 as
to why he was coming near the place of incident and such
evidence does not deserve to be discarded. It is also the
case of the accused that pistol was used at the time of
occurrence. Hence, if the injuries were caused to Mata
Prasad by pellets, such injuries do not appear to be
inexplicable and a
26
plausible explanation of such injuries as given by the High
Court does not appear to be fanciful or strained. The
existence of enmity and bad relation between some of the
accused and the deceased furnishes the motive for the said
incident. Absence of independent witness and absence of
corroboration of the assault by other independent witness
require close scrutiny of the facts and circumstances of the
case. In our view, the High Court has given cogent reasons
as to why the prosecution case should be accepted.
Excepting on the question of offence under Section 120-B,
the High Court has upheld the conviction of the accused by
concurring with the learned Sessions Judge. We do not find
any reason to upset such concurrent findings. The deceased
suffered multiple injuries on his person which resulted in
his death immediately after the assault. Such injuries do
not support any case for right to self-defence. We,
therefore, find no reason to take any contrary view. The
appeal, therefore, fails and is dismissed. The appellants
were granted bail during the pendency of this appeal. In
view of the dismissal of the appeal, the appellants should
be taken into custody to serve out the sentences.