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PETITIONER: ROHTAS & ANR.

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT:       02/05/1997

BENCH: M.K. MUKHERJEE,S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:       JU D G ME N T M.K. Mukherjee.J.      Rohtas and his father  Ram Mehar, the two  appellants before us,  andthree others were placed on trial before the 3rd AdditionalSessions  Judge,  Meerut  to  answer  common chargesunder Sections 148, 302/149 and307/149IPC. Against Ram Mehar  an alternative  charge under Section 302 IPC was also framed.  The trial ended in conviction ofRohtas under Section302 and307/34 IPC and acquittal of theother three. As theappeal filed  them  against  their  convictions was dismissed by  the HighCourt the  appellants have preferred this appeal after obtaining special leave. 2.   Briefly stated theprosecution case is as under: (a)  Inthe  year 1981 Mangat Singh (P.W.2) wasthe agent of Northern Railways  for Fakharpur  (Halt) Railway Station and he wasauthorised to  sell railway  tickets  to  passengers alighting there and collect  station and  check  passengers alighting thereand collect their tickets. On April 22,1981 at or  about 1.45  P.M when  apassenger  train  camefrom Shahdara and  stopped at  the station Rohtas, who is a Sepoy in Railway Protection Force, detrained in mufti. Shiv Charan (the deceased)a brother  of Mangat  Singh, demanded ticket from Rohtas  heabusedhis saying  hawcould he dare to ask for ticket fromhim. Tothis Mangat retorted and then Rohtas left the  placein  a huff.  A few minutes later Rohtassame back with  Ram Mehar  and three others (since acquitted). While both  theappellants  were armed with ballams (spears) the others had lathis with them. Rohtasstruck a blow on the right arm of Mangat andRam Mehar on the right of stomach of Shiv Charan  with their respective ballams as a consequence whereofthe  latter fell  down.The  other accused assaulted them with  their lathis.  The two brothers thenraised alarm and some  villagers reached  the spot.In the meantime, the accusedpersonsfled away. (b)  Sita Ram  (P.W.1),another brother of  Mangat andShiv Charan,then took the two injured to the hospital but on the way Shiv  Charan succumbed  to his  injuries. Sita  Ramthen went to KhekraPolice Station and lodged a report about the incident. On that information acase was registered andSub- Inspector Yogender  PalSingh (P.W.8) took up investigation.

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He first went to the Governmenthospital and held inquest on the dead body of Shiv Charan. He then recorded the statement of Mangat  Singh and  thereafter left  for Fakharpur Railway Station. Therehe prepared  a site plan and took possession of a  dhoti andkurta of Mangatwhich were blood stained. He also collectedsome blood  stained earth  fromthe spot. On completion of  investigation the  police  submitted  charge- sheet and,  in due  course, the case was  committed to the Court of Session. 3.   The  appellants  pleaded  not  guilty  tothe  charges Levelled against  them and  contended  that  they  hadbeen falselyimplicated  outof  enmity. In his examination under Section313  Cr.P.C. Ram Mehar stated that on April 22,1981 at or  about 10 A.M. while  hewas  working in his  field, Rajinder,  a  nephew  of  SitaRam.  trespassed  there and released his  cattle. He  (RamMehar)abusedand  slapped Rajinder and  removed him  and his cattle from his field. In the afternoon when he was on his way back to the field after railwaygate  Sita Ram, Mangat, Shiv  Charan  and  Rajinder attacked  him  with  it.  Ram  Mehar  also  gave  a  written statement to  the  above  effect.  Theplea  of  the  other appellant, namely,  Rohtas wasthat  at  the  time  of the incident he  was at  Safdar jung  Hospital,  New  Delhi for gettingmedicaltreatment. 4.   Insupport of its case the  prosecution examinednine witnesses of  whom Sita (P.W.1), Mangat  Singh(P.W.2) and Balbir Singh  (P.W.6) figured  as eye  witnesses. The  other witnesses were Dr.TilakRaj Sharma (P.W.3), whoheld autopsy on thedead body  of Shiv  Charan. Dr. Arun  Kumar  Saxena (P.W.9),  who  examined Mangat and  appellant Ram  Mehar; Yogendra Pal Sharma (P.W.8) andShahbuddin Chaudhary (P.W.9) and Hari  Singh(P.W.5)two formal witnesses. The defence in its turn examined two witnesses, namely, namely, Horam Singh (D.W.1)and  Mahinder Narain  Sharma (D.W.2)  to  prove the alibisof   Rohtas  and   Pratap  Singh  (since  acquitted) respectively.  Besides, the  defence  exhibited  the  first information  report   lodged  at  its  instance.  After the witnesses and  the accused  were examined  thetrial  Judge inspected the  site ofincident and  prepared an inspection note which is on record. 5.   On considerationof  the evidence  thetrial  Judge accepted  theprosecution  version   of  theincident  in preference to that of the defence and also the plea of alibi raisedby   Rohtas.  Accordingly   heconvicted   the two appellants in  the manner  mentioned earlier  but giving the other three  accused the benefit of doubt acquitted them. In appeal,the  High Court concurred  with  all  the  findings recorded by  the trialCourt and affirmed the conviction of the twoappellants. 6.   Mr.  Lalit,   appearing  for  theappellants,  firstly submitted that the testimonies of the eye witnesses that the incident took place on the railway platform stood completely belied as  no blood  was foundthere; and, on the contrary, the  presenceof  blood   outside   the   platform   fully corroborated  the   defence  version.In  repellingthis contention theHigh Court discussed the evidence of the eye witnesses in  the light of  the  siteplan  (Ext.  KA 13) prepared by  the InvestigatingOfficer(P.W.8) wherein the place where blood was found wasshown and observed thatwhen Mangat was  sorting the tickets attack was made on him and Shiv Charan  onthe platform itself andthe latter Downat a distance of  35feet  from  the platform  while  proceeding towardswest, writhing in pain.We havefor ourselves looked into the evidence on record on this aspect of the matter and find no justifiable  reason  to  interfere  with  theview

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expressed by the High Court. 7.   Mr. Lalitthen submittedthat having  regard  to the testimony of  Dr. Arun Kumar Saxena (P.W.9) whoexamined Ram Mehar on  the morning of April 23, 1981and found as many as seven  injuries  on  his   person  and the  fact  that  no satisfactory   explanation    was   forthcoming  from the prosecution ashow those  injuries were caused, the defence versionthat  Ram mehar was first  attacked by complainant party and  thathe  assaulted Shiv Charan in exercise of his right  of   private  defence  stood  established.  From the judgment of  the High Court we find that this contention was also raised  before theHigh Court and it negatived thesame with the following observations:      "According to  the  Doctor,  there      were 7  injuries on the body of Ram      Mehar. His medical examination was      done on 23.4.1981 at 7 A.M. In this      way,  wesee  that  this medical      examination has  been got done with      sufficientdelay,Moreover, if  we      see the  medical examination  , all      those injuries  were simple. So far      the  question   of explanation  is      concerned.  Sita  Ramin   his      statementstatedthat  they  also      defended themselves.  In his  cross      examination this witness has stated      that they also defended themselves.      In his   cross  examination   this      witness  has   stated  that  Mangat      taking out the  Ballam  which  has      struck inhis arm used  the  same      against the  accused persons in his      defence.  MangatSingh  has  also      stated inhis statement that in my      defence Isnatched the  Ballam  of      Rohtash and  in may  defence I used      the same  in all  the  four  sides.      P.W.6 Balbir  Singh has  also given      almost  the   same statement.  The      statementof   these  3  witnesses      given on  his  point,  can not  be      discarded only  onthis ground that      nothing has  been mentioned in this      regard inthe F.I.R.  Aswe  have      seen that the injuries of Ram Mehar      were so  simple that it may be that      noone  could  have  noticed  them.      Therefore, in   our  opinion,  the      explanation    given     by     the      prosecution  in   respectof   the      injuriesof    Ram    Mehar    is      believable."      Since the above finding ofthe High Court is also based on proper  appreciationof  evidence  we  do  not  find any substance in the contention of Mr. Lalit. 8.   Mr. Lalitlastly contended  that in  any view  of the matter the  conviction of the appellants under Section 302 & 302/34 IPC  forcausing the death  of Shiv  Charan,  could, under on  circumstances, be  justified for onlyone blow was inflicted uponhim and no  further  attempt  was  made  to assaulthim.  This apart,  Mr.Lalit  submitted  thatwhen considered  inthe  light  ofthe  surrounding  facts and circumstances it  couldnot  be said  that  the  appellants intended to  kill ShivCharan.We do not find any substance

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in this contention also. Once the evidence of the three eye witnesses is accepted as true -as has been rightly accepted by thelearned Courts belowon  a  detailed and  proper discussion of  their evidence  - there is no escape from the conclusion that the two appellants came fully preparedwith spears to  attack Mangat  as he had dared to ask for ticket from Rohtas  and attacked  the two brothers with spears. The blow that  was inflicted on thechest of Shiv Charan pierced his Lungs and heart andresulted in profuse bleeding, Mangat Singh also sustained two incised woundsone on the right arm and the other on  the right  side of the chest. Considering all these  facts and  circumstances we have no hesitation in concluding  that  the  appellants  intended  to commit the murders of   both  the  brothers  but fortunately  Mangat survived. 9.   Onthe conclusionsas above we do not findany merit in this appeal  and it is accordingly dismissed. The appellant, who are on bail, will now surrender totheir bonds to serve out their sentences.