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PETITIONER: RAM LAKHAN & OTHERS

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT:       11/07/1996

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) KURDUKAR S.P. (J)

CITATION:  JT 1996 (6)   629        1996 SCALE  (5)150

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.P.KURDUKAR,J.      On 17-9-1975  at about  5.00 p.m.  in a  small  village called Baddapur, under Police Station Loni Katra in district Barabanki, three  gruesome murders of Ram Sewak, Hari Prasad and Bhola  took place.  Ram Sewak  and Hari  Prasad. On  the fateful day,  Ram Sewak  had gone to Haidergarh market while complainant Jang Bahadur (PW 1) had gone to Tejwapur market. Jang Bahadur  after finishing  his work  in the  market  was returning to his village alongwith Devi Dayal and Hanuman on the Canal  Patri and  when they  reached near  the grove  of Jagdamba Singh,  they heard a big sound of explosion of hand grenade. They  also heard  cries coming from the side of the field of  Gaya Prasad.  When  Jang  Bahadur  (P.W.1)  looked towards the  said field, he noticed Ram Sewak being attacked by accused  persons, namely,  Bishambhar, Maharaj Din, Deoki Nandan, Rameshwar,  Ram Lakhan,  Sri Chand,  Jagat and  four unknown persons. Due to murderous assault, Ram Sewak died on the spot.  Within a  short time,  they heard  another  alarm coming from  western side  of the  well of  Hair Prasad  and therefore they  went in  that direction. It was then noticed that Hari  Prasad and  Bhola were  lying dead on the ground. Bindeshwari and  Sursa daughters  of Ram Sewak were near the place of  incident and these two daughters told Jang Bahadur that Shambhu, Maharaj Din, Rameshwar, Ram Lakhan, Sri Chand, Jagat and  four other  persons had assaulted Hari Prasad and Bhola. Jang  Bahadur after  seeing the  gruesome murders  of three persons  immediately rushed  to the  abadi of Baddapur which is  at a  distance of  two and  a half  furlongs. Jang Bahadur (PW  1) then  with to  the Police Station Loni Katra which is  about three  miles away  from the village Baddapur and lodged  the FIR  at about 8.30 P.M (FIR Ex.KA-16). After registering the  crime, the  Investigating Officer  went  to village Baddapur  and  commenced  the  investigation.  After completing the  investigating he  submitted the charge sheet against seven  accused persons for offences punishable under

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section 147,  148, 302  read with  section 149 of the Indian Penal Code. The accused were put up for trial before the Ist Addl. District and Sessions Judge, Barabanki. 2. The  accused denied  the charges and claimed to be tried. According to  them, they  are innocent  and they  have  been falsely implicated due to enmity. 3. The  prosecution in  support of its case examined as many as eight  witnesses  out  of  which  Jang  Bahadur  (PW  1), Bindeshwari (PW  2), Ganga  Ram (PW 4) and Devi Dayal (PW 8) are eye witnesses. One Layak Ram (PW 3) was also examined by the prosecution  but during  the course  of recording of his evidence, he  was found not supporting the prosecution fully and, therefore,  he was  allowed  to  be  cross-examined  by Public Prosecutor.  Prosecution also  examined other  formal witness to  prove various  panchnamas. Dr.  Beni Madho Gupta (P.W.17) was  examined to  prove the post-mortem examination reports (Exs.KA 20, KA 21 and KA 22). 4. The  Ist Addl.  District and  Sessions Judge,  Barabanki, after appraisal  of oral  and documentary evidence on record vide his judgment and order dated 2-7-1977 acquitted all the accused. 5. State  of Uttar  Pradesh being  aggrieved by the order of acquittal passed  by the  Trial Court preferred an appeal to the High  Court on  re-appraisal of  the evidence  on record vide its  judgment and  order dated  16-5-1988  allowed  the appeal  partly.   The  High  Court  reversed  the  order  of acquittal of  Bishambhar Dass,  Ram Lakhan, Sri Chand, Jagat Narain and  Rameshwar but,  confirmed the order of acquittal in respect  of remaining accused. It was then brought to the notice of  the High Court that Bishambhar Dass and Rameshwar (accused) died   during  the  pendency  of  the  appeal  and accordingly the appeal stood abated against them and came to be dismissed.  The High  Court found  that Ram  Lakhan,  Sri Chand and  Jagat Narain  were responsible for murders of Ram Sewak, Hari  Prasad and Bhola and accordingly convicted them under section 302 read with 149 of the Indian Penal Code and sentenced them  to suffer  life imprisonment. They were also convicted for  rioting under section 147 of the Indian Penal Code and  sentenced to  suffer rigorous imprisonment for one year. The  High Court  directed the substantive sentences to run concurrently. It is against this order of conviction and sentence passed by the High Court, the three appellants have filed this appeal to this Court challenging the legality and correctness thereof. 6. We  have carefully  gone through  the  judgments  of  the Courts below  as will  as the  materials on record. Mr. J.M. Khanna, learned  counsel appearing in support of this appeal firstly assailed  the judgment  of the  High  Court  on  the ground that  the impugned order of conviction is illegal and wholly  unjustified.   Counsel  urged   that  the  order  of acquittal passed  by the  trial court  was  quite  justified inasmuch as  the trial  court,  which  had  an  occasion  to observe the demeanour of the eye witnesses, preferred not to accept their  evidence as trustworthy. The view taken by the trial court was a reasonable view and no justifiable grounds were given  by the  High Court  while interfering  with  the order of  acquittal. If  two views  are possible, the one in favour of  the accused taken by the trial court ought not to have been  upset by  the High  Court. We see no substance in this contention.  On perusal  of the  judgment of  the  High Cour, we  find that the High Court has given cogent and well founded reasons  on the basis of materials on record and has pointed out  in its  judgment how  the order of acquittal is perverse and  unsustainable.  The  Trial  Court  principally acquitted all the accused on the ground that the prosecution

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has not  examined the  independent witnesses.  All  the  eye witnesses  are   close  relatives   of  the   deceased  and, therefore, their  evidence is  untrustworthy. This reasoning of the  Trial Court  is exfacie  unsustainable. It  is  well settled that  the evidence  of  close  relatives  cannot  be excluded solely  on the  ground  that  they  are  interested witnesses. In  such a  sitution, it is the duty of the Court to scrutinise  the evidence of such witnesses very carefully and if  there is any doubt as regards their trustworthiness, the Court may discard their evidence. The Higt Court, in our opinion, therefore,  was fully  justified in  accepting  the evidence of the four eye witnesses, namely, Jang Bahadur (PW 1), Bindeshwari  (PW 2), Ganga Ram (PW 4) and Devi Dayal (PW 8). The evidence of these eye witnesses was found acceptable by the  High Court, and, therefore, the High Court was fully justified in reversing the order of acquttal. 7. Mr. Khanna, learned counsel for the appellants then urged that the  medical evidence  adduced by  the  prosecution  is again wholly  inconsistent with  the ocular  evidence of the eye witnesses  and if  this be  so, the  ocular evidence was righted by  the Trial Court. This submission is again devoid of any  merits. The  learned counsel  for the appellants was unable to  point out  any inconsistency  between the medical evidence and the evidence of eye witnesses. 8. It  was then urged by Mr. Khanna that the prosecution has no led  any evidence  to prove the motive behind the murders of three  persons. In  the absence of any such motive having been proved  by the  prosecution,  counsel  urged  that  the entire prosecution case becomes doubtful. We are afraid that such a  contention   is totally untenable especially in view of the fact that there are as many as four eye witnesses who have actually seen the assault on these three victims. 9. Mr.  Khanna took  us through the evidence of Jang Bahadur (PW 1),  Bindeshwari (PW 2), Ganga Ram (PW 3) and Devi Dayal (PW 8).  He also  took us  through the evidence of Layak Ram (PW 3),  who did  not support  the prosecution  case and was cross-examined by the public Prosecutor. While assailing the evidnce of  Jang Bahadur  (PW 1), counsel urged that he is a chance witness  and it is not safe to rely upon the evidence of such witness. Secondly, it was submitted due to explosion of the  grenades, there  was a  smoke in the atmosphere and, therefore, it  was impossible  for Jang  Bahadur to identify any of  these accused  persons. We  are unable to accept the criticism as regards the evidence of Jang Bahabur (PW 1). It is the  positive case of this witness that when he returning from the  market and  reached near the place of incident, he heard  the   direction  of   the  place   of  incident.   He emphatically denied that he was unable to see because of the smoke eminating  from the  explosion of the grenades. At the very earliest  opportunity, he  disclosed the  names of  the appellants/accused in  the FIR  lodged on  the same  day  at about 8.30  p.m (Ex.KA-16). In our opininon, his evidence is trustworthy and can safely be accepted. 10   Bindeshwari (PW  2) is a child witness who was about 14 years of age at the time of incident. She is the daughter of Ram Sewak  and sister  of Bhola (since deceased). Mr. Khanna submitted  that  the  evidence  of  Bindeshwari  is  totally unreliable firstly,  on the  ground that  she  was  a  child witness at  the time  of incident and secondly, her presence at the  place of  incident at  about 5.00 p.m. was extremely doubtful. He  also urged that it is difficult to believe the evedence of  Bindeshwari when  she asserted  that she waited for some time near the dead body of Ram Sawak and thereafter went to  the place  where the dead dodies of Hari Prasad and Bhola were lying. He further urged that the reason for going

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to the  field at  about 5.00  p.m. given  by the  witness is totally unbelievable.  We have  gone through  the evdence of Bindeshwari (PW  2) and  in out opinion, she has very firmly stood to  the cross-examination  of the  defence. We also do not see  any substance in the submission that the conduct of Bindeshwari was in any way unnatural leaving the deay of her father Ram  Sewak and  going to  the place where dead bodies Hari Prasad  and Bhola  were lying.  She in her evidence has clearly indicated  how the  appellants assaulted  Ram  Sewak (deceased) near  the field  Gaya Parsad  and thereafter Hari Prasad and  Bhola near  tubewell of Hari Prasad. She further stated that she had gone to the field for cutting the grass. The evidence  of Bindeshwari  is totally  free free from any doubt and  we see  no reason  to reject  the same.  The High Court has elborately discussed the evidence of Ganga Ram (PW 4) and  Devi Dayal  (PW 8) which in all matreial particulars corroborate the evidence of Bindeshwari (PW 2). 11.  We have  also gone  through  the  medical  evidence  on record  and   in  our   opinion,  the  medical  evidence  is consistent with  the ocular evidence of these eye withesses. The High  Court has  very carefully considered the materials on record  and has  rightly held  that  the  appellants  are guilty of  offences for  which they  were tried.  we are  in agreement with  the reasons  given by  the High  Court while convicting the  appellnts for  the offences punishable under section 302  read with  sections 149  and 147  of the Indian Penal Code.  There is  no substance  in the appeal and it is accordingly dismissed.  The appellants,  who  are  on  bail, shall  surrender   to  their  bailbonds  to  serve  out  the remainder of their sentences.