JUDGMENT
R.C. Lahoti, J.
1. The accused has been held guilty of an offence punishable
under Section 302 IPC and sentenced to undergo imprisonment for
life by the Court of Sessions Judge, Bilaspur. An appeal preferred by
him was dismissed by the High Court. This appeal has been filed by
special leave.
2. Nathu Lal (PW-1) and Ram Ratan are two real brothers.
Appellant-Shyam
Baldau Ram (PW-2), Kamta (PW-1) and Radhey Shyam – thedeceased (who died in the incident) are all sons of Nathu Lal, the elderof the two brothers. Ram Ratan, the younger brother, had six sons ofwhom one had died earlier. Shyam Sunder, the accused-appellant, isthe third one out of the five surviving sons of Ram Ratan. At onepoint of time Nathu Lal and Ram Ratan were living together, alsohaving joint cultivation. Long before he incident, Nathu Lal and RamRatan had separated by effecting a partition of their residential houseas also of the agricultural land. They are living separately inadjoining houses and their agricultural lands are also situatedadjoining to each other. However, the partition had resulted into thefeelings between the two brothers and their respective familymembers being strained so much so that at about 4-5 years prior to thedate of this incident, there was another incident, which had resulted inproceedings under Section 107 Cr.P.C. being drawn up against boththe parties. Baldau Ram (PW-2), Kamta (PW-4), Radhey Shyam — thedeceased and their one more brother Jai Lal, in all the four brothers,were also facing prosecution under Section 325 IPC for causinginjuries to Shyam Sunder — the accused-appellant and his mother RamKali. A few days before the death of Radhey Shyam there was yetanother incident in which the accused-appellant and a few others onhis side were accused of throwing stones on the house of the deceasedand hurling abuses on the inmates of the house.
3. On 21.07.1985, at about 5.30 a.m., Baldau Ram (PW-2) hadgone to his field for grazing cattle. Sowing operation was going on.There were a few labourers on his field. He was returning at about7.30 a.m. through a path passing by the side of the field of theaccused-appellant. There Baldau Ram saw the appellant standingarmed with a ‘Tabbal’ and his father armed with an axe. On seeingBaldau Ram, the appellant tried to come close to him. Baldau Ramwas scared by the menacing attitude of the appellant andapprehending some danger, he returned back to his field. By this timehis brother Kamta (PW-4) had also reached the field to take workfrom the labourers. Baldau Ram narrated what had happened with himto his brother Kamta (PW-4). Kamta advised Baldau Ram not to go tothe village by the path which passes by the side of the field of theappellant and instead choose a different path. It appears that there isnot much of distance between the two paths which are available to beused for reaching the village from the field of Baldau Ram. It alsoappears that the path which leads to the field of Baldau Ram from thevillage and passes by the side of the field of the accused is crossed bya nala (culvert) before the path reaches the field of the accused.Baldau Ram while going from his field to the village, through thedifferent route which he had chosen saw the appellant Shyam Sunderjumping into the nala. He also saw his brother Radhey Shyam comingout of the nala. At this point of time the Appellant-Shyam Sunderdealt blows by ‘Tabbal’ on the person of Radhey Shyam. The firstblow landed at the upper region of right ear of Radhey Shyamwhereupon he fell down. The appellant dealt two further blowslanding on the shoulder and throat of Radhey Shyam.
4. Having dealt three blows on the person of Radhey Shyam, theappellant ran towards Baldau Ram. Baldau Ram ran for his life andentered the house of Kartik Mochi situated nearby. Baldau Ram hidhimself inside the house of Kartik Mochi. Kartik Mochi who waspresent there closed the door of the house and bolted the door fromoutside. The appellant then turned his back, returned to the place ofthe incident and ran away. This Baldau Ram could see from insidethe house of Kartik Mochi. On the appellant having escaped from thescene of the crime Baldau Ram requested Kartik Mochi to open thedoor. He came out and reached near his brother Radhey Shyam only tofind him dead. He raised an alarm whereupon a few villagerscollected from the fields situated nearby including Punni Bai (PW-6).Punni Bai (PW-6) told that he had also seen the assault from her ownfield situated close to the place of the occurrence.
5. The assault on Radhey Shyam had taken place at about 8.00a.m. First Information Report of the incident was lodged at 10.30 a.m.on the same day at P.S. Ratanpur situated at a distance of about 10kilometers from the place of the incident. An offence under Section302 IPC was registered and investigation commenced. The dead bodyof Radhey Shyam was sent to Civil Hospital, Bilaspur where autopsywas performed by Dr. A.N. Bajpai, Assistant Surgeon. The dead bodywas smeared with mud, water and blood at several places. Thefollowing external injuries were found on the person of RadheyShyam:
1. An incised wound on right face extending from lateral angle ofright eye 4 c.m. downward and laterally placed transversely 11 x 1x 6 c.m. Right external ear was cut at the level of triagesthroughout, underlying muscles and bone cut and fractured.Wound was curved downward below the right external ear.
2. Incised wound on left side of the cervical region extending fromthyroid cartilage from front to the back of neck and also extendingto right side of back of neck 25 x 13 x 8 c.m. in diameter. Therewas a big gap between skin flaps. All the structures includingmuscles, blood vessels, nerves, trachea, esophagus and cervicalvertebrae were cut and torn badly. Back end of the would was 9c.m. downward and back ward from right pinna.
3. On the front and on the back just above the wound No. 2 there wasan incised wound of the size of 5 x 0.5 x 05 c.m. and another 4 x05 x 1 c.m. respectively.
6. All the injuries were anti-mortem. On internal examination Dr.Bajpai found that cervical vertebrae, underlying bone on right facewas cut and fractured. Spinal cord was cut in cervical region.Esophagus was cut. Larynx and trachea were cut. The cause of deathin the opinion of Dr. Bajpai was shock and cutting of spinal cord,cervical vertebrae and all major and minor blood vessels and nerveson left side and right side in the cervical region. Injuries Nos. 1 and 2were individually sufficient in the ordinary course of nature to causedeath.
7. The appellant was arrested on the same day. On his informationcontained in a statement, admissible in evidence under Section 27 ofthe Evidence Act, a ‘Tabbal’ was recovered from a place near the nalawhere he had hidden it. The ‘Tabbal’ was seized and kept sealed. Itwas forwarded to Forensic Science Laboratory, Sagar. In the opinionof the Assistant Chemical Examiner, the ‘Tabbal’ was found stainedwith blood. The Assistant Serologist and Chemical Examiner lateropined that the blood found on the ‘Tabbal’ was human blood.
8. The conviction rests on the ocular evidence of Baldau Ram(PW-2) and Punni Bai (PW-6). We have, in the light of thesubmissions made by the learned Amicus Curiae, carefully examinedthe testimony of Baldau Ram. It is true that the relationship betweenthis witness and his family members on the one hand and the accused and his family members on the other was strained and criminallitigation was also pending between the two. The testimony,therefore, needs to be subjected to careful scrutiny. Having done so,we are satisfied to hold that Baldau Ram (PW-2) is a witness of truth.The factum of his having gone to his field for performing agriculturaloperations and engaging labour is something natural to do as he hadgone to his field from early morning, at about 5.30 a.m., accompaniedby his cattle to be left for grazing in or near the field. At about 7.30a.m., on the arrival of Kamta (PW-4) on the field he was returning tohis home. Having been intercepted by the appellant he returned backto his field and told his brother Kamta (PW-4) of what had happenedwith him. Kamta (PW-4) supports this part of the version. Thesubsequent part of the story of his having seen the assault on hisbrother Radhey Shyam and thereafter, that is, his having reached thehouse of Kartik Ram to save himself from a likely assault by theappellant on him finds support from the testimony of Kartik Ram(PW-3). The fact that Punni Bai (PW-6) has also her field close to theplace of the incident has not been disputed by the defence by makingany suggestion to the contrary during her cross-examination. Shecould have seen the assault on Radhey Shyam by Shyam Sunder fromher field situated near the place of occurrence. On alarm being raisedby Baldau Ram (PW-2), she reached near the place of the incident.
9. The testimony of Baldau Ram also finds corroboration from apromptly lodged FIR. The statements of both the eye witnesses findsupport from the medical evidence. The learned Sessions Judge hascarefully scrutinized the evidence of both the eye witnesses andfound it worthy of reliance. The High Court too has though in a verybrief judgment observed that the guilt of the accused was provedbeyond reasonable doubt by overwhelming evidence adduced by theprosecution, and in particular there was no reason to doubt the ocularevidence of Baldau Ram (PW-2) and Punni Bai (PW-6). In our opinionthe conviction of the accused-appellants is well founded and cannot beinterfered with. It is true that during the cross-examination of BaldauRam (PW-2) and Punni Bai (PW-6) the attention of the witnesses wasinvited to certain portions of the FIR and their police statements in aneffort to demonstrate that there were inconsistencies. We havecautiously examined all such contradictions and inconsistencies andwe find none of them to be material. When an incident is narrated bythe same person to different persons on different occasions somedifference in the mode of narrating the incident is bound to arise.However, such differences do not militate against the trustworthinessof the narration unless the variations can be held to be so abnormal orunnatural as would not occur if the witness would have reallywitnessed what it was narrating.
10. For the abovesaid reasons the appeal does not have any meritand is liable to be dismissed. It is dismissed accordingly. Theconviction of the accused-appellant along with the sentence passedthereon as recorded by the Trial Court and upheld by the High Courtare maintained.
11. Before parting we place on record our appreciation of theassistance rendered by Ms Neeru Vaid, the learned Amicus Curiae atthe time of hearing.