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CASE NO.: Appeal (crl.)  974-975 of 1998

PETITIONER: Jagdish Narain

RESPONDENT: Krishna & Ors.

DATE OF JUDGMENT: 04/10/2005

BENCH: H.K. SEMA & G.P.MATHUR

JUDGMENT: J U D G M E N T                                  

H.K.SEMA,J

               Accused Shri Krishna, Lakhan Lal, Ram Shanker and Kailash  Nath were put to trial before the IV.Addl. Distt. & Sessions Judge, Kanpur,  for the murder of the deceased-Radhey Shyam.  The Trial Court convicted  accused Shri Krishna under Section 302 IPC and Lakhan Lal, Ram Shanker  and Kailash Nath were convicted under Section 302 with the aid of Section  34 IPC and were sentenced to rigorous imprisonment for life.   Aggrieved  thereby two appeals were preferred before the High Court.  Criminal Appeal  No. 1123 of 1980 was preferred by Lakhan Lal  & ors.  Criminal Appeal  No.1126 of 1980 was preferred by accused Shri Krishna.  Both the appeals  were heard together by the High Court of Allahabad and by the impugned  judgment and order the appeals were allowed and the accused were acquitted  of all the charges against them.  Hence these appeals by special leave.   Briefly stated the facts are as follows:-         The complainant-party and the accused are inter-related.  Kalicharan  had five sons (1) Satya Narain  (2) Ram Gopal @ Moora, (3) Chhanu Lal  (the informant) (4) Munnulal and (5) Shri Krishna(Accused No.4).  The  deceased-Radhey Shyam was the son of Chhanu Lal.  A-1 Lakhan Lal, A-2  Ram Shanker are sons of Munnulal.  A-3 Kailash Nath is the son of A-4 Shri  Krishna.  The motive of the murder appears to be that the field belonging to  Kalicharan was cultivated by the accused and no share was given to  Chhanual and his son Radhey Shyam(deceased).  The deceased-Radhey  Shyam appears to have forcibly cultivated the portion of land, culminated to  his murder.         The prosecution story in brief is that on 22.7.1979 at about 2 P.M.  P.W.1-Chhanu Lal (the informant) stated that on the fateful day both he and  his deceased son were present at the plot when he was taking grass out of his  paddy plot in which the plants for transplantation had been grown.  His son  Radhey Shyam at that time was sleeping under the Chhekur tree after taking  his meal. At about 2 P.M. four accused came there.  Accused Lakhan Lal,  Ram Shanker and Kailash Nath pressed Radhey Shyam on the ground and  accused Shri Krishna cut the neck of Radhey Shaym by a gandasa.  Radhey  Shyam made a shriek by which the complainant was attracted and saw the  occurrence.  The complainant raised an alarm, which attracted PW.3-Desh  Raj and PW.5-Smt.Jai Shri Devi wife of the deceased, who came with water.   After seeing the arrival of the witnesses the accused fled away.  After the  accused left the place the informant and other went to near Radhey Shyam  and he was found dead with his neck cut.  A written report was lodged at the  police station Sheroajpur on 22.7.1979 itself at 6.30 p.m.   The place of  occurrence was at a distance of six miles from the police station.          The prosecution examined three eyewitnesses, P.W.1-Chhanu Lal(the  informant), PW.3-Desh Raj is an independent witness and P.W.5-Smt. Jai  Shri Devi, who was declared hostile.  The Trial Court after considering the  eyewitnesses and documents on record came to the conclusion that the

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prosecution had established its case beyond all reasonable doubts and  recorded conviction as aforestated.          Learned counsel for the appellant contended that the Trial Court  findings do  not  suffer from any infirmity and the High Court should not  have interfered with the findings recorded by the Trial Court.  According to  him, the High Court’s reversal of conviction is solely based on perverse  finding.             Per contra learned counsel for the respondents supported the acquittal  recorded by the High Court.  As according to him, there were discrepancies  and contradictions in the evidence of eyewitnesses and accused were entitled  to acquittal.  He further contended that P.W.5-wife of the deceased has  turned hostile and no reliance can be placed on her testimony.  According to  him, the High Court was justified in recording acquittal and the same should  not be disturbed.  We will straightaway deal with the findings of the High  Court, which in our opinion, are contrary to the evidence on record and  perverse.          P.W.1 has stated in-chief as under:-

"Chhunnu Lal P.W.1 stated in para 4 that at the time of  occurrence, he was taking grass out of his paddy plot in  which the plants for transplantation had been grown. His  son Radhey Shyam at that time was sleeping under the  Chhekur tree after taking his meal.  At about 2.00 p.m.  four accused came there.  Accused Lakhan Lal, Rama  Shankar and Kailash Nath pressed Radhey Shyam at that  very place and accused Sri Krishna cut the neck of  Radhey Shaym by a Gandasa.  Radhey Shyam made a  shriek, at which this witness was attracted and saw the  occurrence.  The witness also raised alarm which  attracted Ram Saran, Desh Raj, Thakur Din and the wife  of the deceased, who had come with water.  The witness  further stated that after arrival of the witnesses the  accused went away.  Thereafter this witness and others  came to Radhey Shyam."           

P.W.2-Dr.P.C. Chaurasia, Medical Officer, conducted the postmortem  examination on 24.7.1979 at 2 P.M. and found the following injuries:  

"Incised wound 17 cm  X  2.5 cm   bone deep in front of  neck in its middle part over thyroid cartilage.  Margins of  wound were sharp cut tailing on left side of the neck,  Muscle tissue, Tracheas, Oesophagus were cut through  and through.  Carotid artery and Jugular veins on both  sides of the neck were found cut under the injury.  Fourth  cervical vertebra was found cut partially underneath."           

       The High Court after noticing the statement of P.W.1 and medical  evidence as referred to above recorded its findings as under:-

"If the statement of the informant as mentioned in para  17 is accepted, then it appears that the deceased Radhey  Shyam had shrieked while he was being pressed by these  three appellants, which means that he had woken up by  then and then he had made a cry.  In such situation, it was  expected of the deceased Radhey Shyam to save himself  from the clutches of the accused persons.  But this has  nowhere mentioned in the prosecution case.  It is alleged  that Shri Krishna gave a gandasa blow which cut this  neck. In his port mortem report, the doctor has also  mentioned only one injury of 17 cm x 2.5 cm bone deep  in front of the neck in its middle part over thyroid  cartilage; margins of wound were sharp cut, tailing on  left side of the neck.  Muscle tissue, trachea, Oesophagus

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were cut, carotid artery and Jugular veins on both sides of  the neck were found cut under the injury.  Fourth cervical  vertebra was found cut partially underneath.  All this  goes to show that gandasa had hit in the middle portion  of the neck.  

       If prior to the gandasa blow the deceased had woke  up, then it would not be natural to receive such injuries in  the middle portion of the neck.  It is also not natural that  the killer, instead of hitting straightaway, would first  press the body of the deceased so that he could wake up  from his sleep and make protest to save himself or escape  unhurt.  In such a situation, it would be difficult to hit the  person. Thus the manner in which the informant has  narrated the incident is not very natural."  

                                          ( emphasis supplied )

In our view, the finding recorded by the High Court, is not only  contrary to the evidence of P.W.1 and medical evidence but also farfetched  and imaginary. It is nobody’s case that the deceased Radhey Shyam woke up  before a gandasa cut was given on his neck.  It is the specific case of P.W.1  that accused Lakhan Lal, Ram Shanker and Kailash Nath pressed Radhey  Shyam on the ground and the accused Shri Krishna cut the neck of the  deceased-Radhey Shyam by a gandasa.  The statement of P.W.1 is well  corroborated in material particular with the evidence of P.W.2-Dr.P.C.  Chaurasia. The other contention raised before the High Court was that in the FIR  P.W.1 stated that at about noon the deceased-Radhey Shyam had taken his  food and slept under the Chhekur tree, while in the witness box P.W.1 stated  that at about 11 A.M. Radhey Shyam had taken his meal.  It was also raised  before the High Court that the occurrence at noon time has been changed as  11 A.M. to suit the doctor’s evidence because the doctor found semi- digested material in the stomach.   It was also raised that the statement of  P.W.1 was highly unnatural on the ground that he would not touch the body  of his son after his murder.  All these minor discrepancies occurring in the  statement   of P.W.1 were considered by the Trial Court and rejected by  recording sound reasons for rejecting the same in paragraphs 19, 20, 21, 22,  23 as under:-

"19.  Chhannu Lal P.W.1 stated in para 4 that at that time  of occurrence he was taking grass out of his paddy plot in  which the plants for transplantation had been grown.  His  son Radhey Shyam at that time was sleeping under the  Chhekur tree after taking his meal.  At about 2 P.M. four  accused came there.  Accused Lakhan Lal, Ram Shanker  and Kailash Nath pressed Radhey Shyam at that very  place and accused Sri Krishna cut the neck of Radhey  Shyam by a Gandasa. Radhey Shyam made a shriek at  which the witness was attracted and saw the occurrence.   The witness also raised alarm which attracted Ram Saran,  Desh Raj, Thakur Din and the wife of the deceased who  had come with water.  The witnesses the accused went  away.  Thereafter this witness and others came to Radhey  Shyam, who had died instantaneously.     

20. The learned counsel for the defence challenged the  statement of P.W.1 firstly on the ground that he could not  go for removing the grass from the paddy plot.  In this  connection some circumstances were brought to my  notice.  Firstly it was stated that Chhannu Lal never  cultivated any plot himself and his land is cultivated by  others, vide his admission in para 12.  Hence it was  argued that there was not any question of his growing  paddy seedling or transplantation.  In para 12 P.W.1

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stated that about 5-6 years back Radhey Shaym was  implicated in case.  Even prior to that this witness used to  give his land on batai to others but after that he himself  cultivated on batai.  According to him two years back he  had purchased a buffalo and  thereafter started cultivation  himself.  He further admitted that when some land was  given on batai he had nothing to do with growing of crop.   Even from these admission it cannot be said that the  witness never personally did cultivation, rather he has  specifically stated that about 2 years back he had  purchased.  He had buffalo and did cultivation himself.   Hence there is possibility of his having grown paddy  seedling for transplantation.   

21. In this very connection it was argued that it was  improbable that he would take out grass from the paddy  plot of 2-3 Biswas for two days and even the work would  be left for the third day.  There is nothing unnatural in it.   It has not gone in the evidence that for two full days  work of taking out of the grass from paddy lot was done.   If it was being done for a few hours daily it is quite  possible that even on the third day some work was left,  so that P.W.1 and his son had gone there to complete it.

 22.  Thirdly it was argued that the work of taking out the  grass for seedling cannot be done by khurpi.  On this  very point also P.W.1 has been cross examined.  He  stated that if the seedling is very thick, the grass cannot  be taken out by khurpi otherwise it can be done by  khurpi.  On this point his statement in para 15 may be  seen. In view of this positive statement in para  15 may  be seen.  In view of the positive statement it cannot be,  said that khurpi is not used in the aforesaid work.  

23.  It was thereafter argued that no khurpi or weeded  grass was found at the spot, by the Investigating officer  which can only go to show the story narrated by P.W.1 is  incorrect.  I am not impressed by this argument.  The  Investigating Officer did not say that he tried to find out  khurpi and weeded grass but did not find.  He (P.W.6)  stated that he did not remember if he saw khurpi or  weeded grass at the spot or not.  These things were not so  much important that the Investigating Officer should  have tried to find them out unless and until some body  disclosed about the same to him.  The absence of khurpi  or weeded grass cannot affect the story of prosecution.   Hence I am not prepared to disbelieve the evidence of  P.W.1 that he was present at his plot at the time of  occurrence.  It therefore means this witness could see the  occurrence as stated by him."   

       The High Court, however, by the impugned judgment rejected the  well reasoned findings recorded by the Trial Court by cryptic observations  as under:-   "Thus the findings of the Learned Additional Sessions  Judge that all these infirmities and contradictions are not  important and it does not adversely affect the prosecution  case is not reasonable.  The reasons given by the Learned  Additional Sessions Judge are not in conformity with the  human nature. From the evidence of the informant, the  cultivation of land by him is not clear.  The occurrence  has been alleged to have taken place seven months ago  and the informant, in para 12 of his evidence, has stated

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"Today also my fields are being cultivated by bataidars."   This statement has been recorded on 20.3.80, which also  covers the date 22.7.79.  Thus the statement of the  informant as made in para 12 is quite opposite that on  22.7.79, i.e, the date of occurrence, he had himself  cultivated his land.  If he had not himself cultivated his  land, there was no need for him to remove grass from his  field. Thus the nature of this incident itself appears to be  quite doubtful."  

           The High Court also found fault with the prosecution case that  incident had happened on 22.7.1979 but the postmortem examination was  held only on 24.7.79 at 11 A.M. after 48 hours.   According to the High  Court, no explanation was offered by the prosecution.  This finding is also  belied by the record.  There is an affidavit filed by the constable that the  dead body was handed over to him on 22.7.1979 at 10.30 P.M. and the dead  body reached Kanpur in the morning on 23.7.1979.  As there was no doctor  available to conduct the postmortem, the body was kept in mortuary and the  postmortem was conducted on 24.7.1979.  In our view, this is a good reason  to have rejected the contention that the postmortem was conducted at a  belated stage. Be that as it may, these facts have nowhere shaken otherwise  reliable eyewitnesses of the prosecution with regard to factum of the  incident.  This was one of the grounds considered by the High Court while  acquitting the accused.                  Regarding the evidence of P.W.3-Desh Raj, the Trial Court recorded  in paragraph 28 as under:- "The statement of Desh Raj P.W.3 was also challenged  on the ground that he stated at page 4 that P.W.1 continue  to raise alarm for about half an hour.  It shows that the  witness had no ideas of time.  He is an illiterate person  and simply because he deposed that when he reached the  spot P.W.1 stopped raising alarm, which he did for half  an hour, his evidence cannot be discarded. In the  materials particulars I do not find any contradiction in the  evidence of P.W.1 and P.W.3.  In any case for purpose of  corroboration to the statement of P.W.1 the statement of  Desh Raj P.W.3 is sufficient."                   

We entirely agree with the reasoning recorded by the Trial Court.  

             P.W.5-Smt. Jai Shri Devi, wife of the deceased turned hostile. It is  on record that she is having five children and now residing with her parents  along with her children.  Considering this fact the Trial Court held in  paragraph 16 as under:- "Smt. Jai Shri Devi is a young lady of 25 years.  She  admitted to have 5 small children from her deceased  husband.  She further admitted that after this murder she  has been living at her father’s place with her children.   She denied the suggestion of the prosecution that the  accused threatened her of dire consequences if she  deposed against them but in the above circumstances I  feel that this suggestion of the prosecution is not without  force.  The fact that this young lady having 5 small  children is living with her father, in another village is the  clear indication of the fact that she did not find it safe to  live in the house of her father-in-law.  Hence the defence  cannot get any advantage, of admission, of Smt. Jai Shri  Devi, who definitely tried to conceal the truth probably  because of fear of the accused."

          In normal Hindu family it is unthinkable that the daughter-in-law  would desert the in-law’s house with 5 of her minor children after the death  of her husband and would live with her parents, unless driven by the  compelling circumstances to do so.                      

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          In our view, the reasoning recorded by the Trial Court is quite  justified in the facts and circumstances of the case and the High Court has  erred in rejecting the said finding.                For the reasons aforestated, the appeals are allowed.  The acquittal  recorded by the High Court is set-aside.  The conviction recorded by the  Trial Court is restored.  The respondents are on bail.  Their bail bonds and  sureties are cancelled and they are directed to be taken back into custody  forthwith to serve out the remaining part of sentence.  Compliance report  should be sent to this Court within one month.