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PETITIONER: BHARAT SINGH

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT:       17/12/1998

BENCH: G.B.PATTABAIK, M.B.SHAH

ACT:

HEADNOTE:

JUDGMENT:  JUDGMENT PATTANAIK.J. These  two appeals are directed against the Judgment and Order 30th January, 1997 of Allahabad High Court arising out Sessions Trial No.  213  of  1978  before  the  Sessions Judge, Manipuri.    Five  appellants were tried for offenccs under Section 302/149 and Section 148 IPC on the  allegation that  all of them came armed and surrounded the deccased Jai Dayal Singh, while he was  busy  with  cultivation  work  on 15.10.77 at 1.00  P.M.   and opened fire at him.  On account of such firing the deccased died.  The  further  prosecution case  is  that  on  account  of previous rivalry between the parties the decased had been given police guards  and  those police  guards  arrived  at the scene of occurrence and even chased  the  assailants  and  fired  at  them  but  all  the assailants escaped.    While  the deceased was on the field, PWI Jai Prakash and PW2 Satyapal Singh were also  there  but they  ran  for their lives to a certain distance and came to the place of occurrence only after the assailants  left  the place.   Jai Prakash PW1 gave a written report at the Police Station at 3.05 P.M.  which  was  treated  as  FIR  and  the police then  started  investigation.    After  completion of investigation  charge-sheet  was  submitted  and  on   being committed the  appellants  stood  their  trail.  The learned Sessions Judge relying upon the  evidence  of  the  two  eye witnesses  PW1  and  PW2,  came  to  the conclusion that the appellants  formed  an   unlawful   assembly   and   started indiscriminately  firing  at  the  deceased,  as a result of which, the deceased died.  Consequently, the Sessions  Judge convicted the appellants for the offences as already stated. On  appeal,  the High Court also re-appreciated the evidence of the two eye witnesses and agreed with the  conclusion  of the   learned   Sessions   Judge   that  the  witnesses  are trust-worthy and reliable and, therefore, the conviction  of the appellants on the         basis  of  those two witnesses was upheld. Since the conviction of the appellants is based upon the  evidence  of the  aforesaid two eye witnesses, Mr. U.R.Lalit, the learned Senior Counsel, appearing for the appellant’s contended that the said two eye witnesses admittedly being enemical towares

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the accused  persons,  they  cannot  be  hold  to  be  fully reliable  witnesses  and  therefore  corroboration  from the independent sources,  thouth  was  available  the  same  not having  been  made  available in Court, the prosecution case must be held to have been vitiated. According to Mr.  Lalit, the  police  guards  having  reached the seene of occurrence while the accused persons were  there  and  the  prosecution evidence  being  that  the  police guards chased the accused persons and there was an exchange of  fire,  non-examination of  those police guards must be construed to be an infirmity which impeaches the reliability  of  the  two  enemical  eye witnesses  PW1  and  2.  Mr.  Lalit  also contended that the occurrence having taken place at  1.00  P.M.  in  broad  day light  in  an  open  field  and very near the Village Basti, normally one would expect several villagers as witnesses and non-availability of  such  witnesses  must  be  viewed  with suspiction.   Mr.Lalit   also   further   argued   that  the investigation in the case has not been made in a fair manner and the true story has not been placed before the Court,  as a  result  of which the conclusion becomes irresistible that the genesis of the case and the manner in which the deceased met his death is not  coming  forth  before  the  Corut  and therefore  the  accused  is  entitled  to  benifit of doubt. According to Mr.Lalit, the fact that only  three  cartridges were  found,  two  of  which  from  12 bore gun and one from riffle, the prosccution case that all the appellants started indiscriminately firi ng at the deceased cannot be accepted. Learned   counsel   also   pointed   out   some    intrinsic inconsistency  between the evidence of the witnesses of PWs1 & 2 and contended that the evidence of such witnesses cannot from  the  basis  of  conviction  in  a  charge  of  murder, particularly  when  they  had poistive animosity against the accused persons. In view of the contentions  raised  by  the  learned counsel,  we  have carefully scrutinised the evidence of the two eye witnesses PW1 & 2. On going through the same, we  do not   find  any  intrinsie  inconsistency  or  contradiction between them,  so far  as  the  basic  prosccution  case  is concerned.  It is apparent that all three of them namely the deceases and PWs 1 & 2 went to the field together  and  were doing agricultural operation when these accused persons came in a group being armed and started firing. The two witnesses left  ht  efield  to  save  their  lives  but  could scc the occurrence from the nearby field keeping  themselves  hidden but the deceased could not urn away and was made a vietim of the  brutal  action of the appellants. That the deceased had died of gun-shot injury is castablished through the evidence of doctor who had conducted the post-mortem  examination  on the   dead   body  of  the  deceased.  The  so-called  minor inconsistency int he evidence of the two  witnesses  pointed out  to  us  by  Mr.  Lalit, in out view, do not detract the intrinsic worth of the evidence of the two witnesses  so  as to  dub  them as unrcliable. On the other hand, a reading of the evidence of these two witnesses makes it  crystal  clear that they were on the field along with the deceased and they did  scc  the occurrence as narrated by them. It is tru that the poilce guards who had been costed  to  provide  sccurity for  the deceased on account of previous rivalry between the parties chased the accused persons as told by PWs 1 & @  and if  any  of  them  would  have been examined they would have unfolded the fact of their chasing the accused  persons  and escape  of the accused persons. But by the time they reached the scene of occurrence, the accused had already shot at the deceased and have tried to escape from the place.  On  going through  the  materials on record, it is difficult for us to

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come to the conclusion that the police people  have  seenthe fact of the accused appellants, shooting at the deceased and therefore,  non-examination of such police guards who cannot be termed as eye witness to the occurrence with not be fatal to the prosecution. Mr. Lalit, in course  of  his  arguments had  also  pointed  out from the evidence of the doctor that the fact that there has been no  scorching,  blackeming  and tattoing injury on the body of the deccased is because of te the  fact  that shooting has not been from a close range and therefore, the coiceincc of eye witnesses cannot be hold  to But  in  the absence of any positive opinion from the doctor and in the absence of the  exacl  distance  from  which  the accused  persons started shooting at the deceased, it is not possible to accept this contention of  the  learned  counsel for  the appellants. The evidence of eye witnesses have been scrutinised by the learned Sessins Judge as well as  by  the High  Court  in  appeal and both the courts have relied upon the same. Ordinarily, therefore, this court would  not  have re-appreciated  the  evidence  unless  any glaring defect is pointed out. But in view of the arguments  advanced  by  the learned  counsel for the appellants, we have also thoroughly scrutinised the evidence of the two  witnesses  for  finding out  whether there is any justification for not relying upon the testimony of those two witnesses.  But  we  do  not  and anything  in  their  evidence  so  as  to  discard then from consideration. In our considered opinion  the  courts  below rightly  relied  upon  the  evidence  of  the  aforesaid two witnesses in basing the conviction  of  the  appellants.  We agree  with  the  conclusion  arrived  at  and hold that the prosccution case has been proved beyond reasonable doubt. We therefore do not find any merit in these appeals, which  are accordingly dismissed.