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CASE NO.: Appeal (crl.)  1262 of 2002

PETITIONER: Jai Karan and Ors.                                               

RESPONDENT: State of U.P.                                                    

DATE OF JUDGMENT: 28/10/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.          

       Appellants having unsuccessfully challenged their conviction  before the Allahabad High Court have filed this appeal.  

       They along with two others, namely, Mahesh and Bhan Chand faced  trial for alleged commission of offence punishable under Sections 148,  302 read with 149 and 307 read with 149 of the Indian Penal Code, 1860  (in short the ’IPC’). The trial Court acquitted Mahesh and Bhan Chand on  all counts, but convicted the present appellants. So far as accused Jai  Karan and Babu were concerned, they are convicted under Sections 148,  302 read with 149 and 323 read with 149 IPC and accused Veer Bhadra was  convicted under Section 148, 302, 302 read with 149 and 323 read with  149 IPC. They were each awarded life sentence for the offences  punishable under Sections 302 and 302 read with 149 IPC as the case may  be, and two years and six months for the offence under Sections 148 and  323 read with 149 IPC respectively.

       The convicted accused persons preferred appeal against their  conviction, while the State preferred appeal against the acquittal. Both  the appeals were heard together in view of the common factual matrix and  were disposed of by the impugned judgment.  

       Prosecution case as unfolded during trial is as follows:

       The informant-Ashok Kumar Singh (PW-1) is the son of Surya Prakash  Singh (hereinafter referred to as the ’deceased’). At the time of the  incident the informant, deceased Surya Prakash Singh and another  deceased Ram Lal, injured Ram Chandra Singh (PW-2) and appellants Jai  Karan, Veer Bhadra and Babu were living in village Alaipur within the  limit of police station Sidhauli district Sitapur. Appellants Veer  Bhadra and Jai Karan  are real brothers and appellant Babu is son of  their maternal uncle. There was enmity between Veer Bhadra and Jai Karan  on one side and deceased Surya Prakash Singh on the other.  Few months  before the incident, Veer Bhadra, Jai Karan, their brother Pyarey Lal  and a relative had attacked Surya Prakash Singh with pistol and bhala.  Surya Prakash Singh who had suffered injuries lodged FIR against Mahesh,  Veer Bhadra and his others.

       On the date of the incident i.e.17.12.1978 at about 4.00 p.m.  deceased Surya Prakash Singh was sitting on a cot in his courtyard  situated at a short distance from the door of his house. His servant  deceased Ram Lal was weeding potato crop in the field situated to north  of the said courtyard. Informant Ashok Kumar Singh (PW-1) Ram Chandra  Singh (PW-2) Vishwanath Shukla and Narendra Singh (PW-3) were sitting

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near the door of his house. Suddenly, appellants Veer Bhadra, Jai Karan  and Babu armed with guns along with two unknown persons, one of whom was  armed with a kanta and the other with a banka came. Immediately,  appellant Veer Bhadra fired at deceased Surya Prakash Singh, as a  consequence of which he fell down. When informant Ashok Kumar Singh  (PW1), deceased Ram Lal and others rushed to rescue deceased Surya  Prakash Singh, appellants Jai Karan and Babu fired; the former on Surya  Prakash Singh and the latter on Ram Lal. Jai Karan also assaulted Ram  Chandra Singh (PW2) with the barrel of gun. The two unknown persons  assaulted Surya Prakash Singh with kanta and banka. After murdering  Surya Prakash Singh and Ram Lal and injuring Ram Chandra the appellants  and the unknown persons ran away.   

       The first information report was lodged by Ashok Kumar Singh  (PW1). Two others namely Ramchandra Singh (PW2) and Narender Singh (PW3)  were stated to be the eye-witnesses of the occurrence.  Investigation  was undertaken and on completion thereof charge sheet was placed. It has  to be noted that the accused persons had also lodged an information in  the police alleging that the deceased Surya Prakash Singh and his  relatives assaulted some of the accused persons.  During trial, they  denied the allegations and claimed that they had been falsely  implicated.  

       Sixteen witnesses were examined to further the prosecution  version. Three of them i.e. PWs 1, 2 and 3 were claimed to be  eyewitnesses. Accused Bhan Chand and Mahesh examined one witness. No  other oral evidence was led by any of the accused. Placing reliance on  the evidence of the prosecution witnesses, more particularly the injured  witness and other eyewitnesses, the present appellant accused persons  were found guilty, convicted and sentenced as afore noted. The plea of  innocence raised by the accused was held to be full of holes and as  indicated supra the conviction and sentence as awarded stood confirmed.  The appeal filed by the State was held to be without merit and was  dismissed.

       Learned counsel for the appellants submitted that it is doubtful  whether PW2 was injured in the incident as claimed. The trial Court and  the High Court have lost sight of the fact that in view of the admitted  animosity between the accused and the deceased Surya Prakash Singh, the  evidence of so-called eyewitnesses should not have been acted upon.  Improvements were made by witnesses in Court to bring the medical  evidence in line with the ocular evidence. That itself rendered the  authenticity of medical evidence inapplicable. As improvements were made  on material points, the Courts below should not have held that the  medical evidence was in consonance with the oral evidence. The statement  of the so-called injured witness (PW2) was recorded after a day in the  afternoon. He had suffered some minor injuries and a non-examination for  a day casts grave doubt on the authenticity of his evidence. The  Investigating Officer in order to explain the delayed examination stated  that the witness was in a dazed state; but the injured does not say so,  and this is nothing but a lame explanation. There is grave doubt about  PW2’s presence because of his sudden appearance at the place of  occurrence. He stated that he came to the house of Madan Lal and then to  the house of deceased Surya Prakash Singh. Though, he was sent for  medical examination on the alleged date of occurrence, his statement was  recorded on the next day and there was ample time to make improvements.  Though in the statement during investigation it was not stated that  Surya Prakash Singh had stood up on seeing the accused persons, it was  so stated in Court.  It was done tactfully as the injuries found on his  body were possible only if he was standing.  The object was to bring  ocular evidence at par with the medical evidence. These improvements  should have been noticed by the courts below to render prosecution  version vulnerable. In the FIR, there was no mention about assault by  barrel of gun. PW2 stayed in the house of deceased for about 35 years  and he was friendly with him. The time of injury as stated by Doctor

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does not fit in with the alleged time of occurrence. The reaction of the  witnesses was most unnatural when considered in the background of their  claim that they were eyewitnesses and when a known person who is closely  related and friendly with them was being assaulted; their reaction would  have been certainly different. Prosecution has tried to introduce the  presence of two other persons just for the purpose of bringing in  application of Section 149 IPC and acquittal of the two persons clearly  shows how unauthentic prosecution version is. Merely because the FIR was  lodged immediately as claimed, that does not strengthen the prosecution  case because of admitted hostility. In view of the fact that the  evidence of PW-3 has not been held to be reliable, it is clear that the  prosecution has not come to Court with clean hands.  

       In response, learned counsel for the State submitted that there is  no infirmity in the conclusions arrived at by the trial Court and the  High Court to warrant any interference. The evidence has been analysed  in great detail and with great care and circumspection in view of the  fact that the accused and deceased were in inimical terms; and the  witnesses were either relatives or known to the deceased-Surya Prakash  Singh. There is no doubt about the presence of PW2 who was an injured  witness and the hypothetical scenario as projected by the accused  appellants does not have any leg to stand.  The doctor (PW4) has clearly  stated as to the time of injury and it rules out the possibility that he  sustained injury at the time of incident.   

       The High Court has found the evidence of PW-2 to be cogent,  credible and trust-worthy. His evidence shows that on the date of  occurrence he along with A.K. Singh (PW-1) and Narendra Singh (PW-3) and  one Vishwanath (not examined) were sitting near the door of deceased. At  that time Ram Lal was weeding potato crops sown in the field near the  house of deceased-Surya Prakash Singh who was sitting on cot and reading  the newspaper. At this juncture, the three accused appellants armed with  guns and two unknown persons also armed with various weapons came to the  place. Veer Bhadra fired a shot at Surya Prakash Singh and thereafter  Jai Karan and Babu fired; which hit the two deceased persons.  Thereafter, the accused Jai Karan assaulted Ramchandra Singh (PW2) with  the barrel of a gun and those unknown persons also assaulted deceased  Surya Prakash Singh with kanta and banka. Thereafter the accused persons  ran away.

       After considering his evidence in toto, the High Court found the  evidence to be implicitly truthful and reliable. Though his presence was  attempted to be shown as doubtful, we do not find any reason to accept  the plea. His presence at the place of incident was explained and his  evidence cannot be thrown out as unreliable or tainted, merely because  in some cases he was a co-accused with the deceased Surya Prakash Singh.  This circumstance would not warrant mechanical rejection of his  testimony. Evaluation with caution was needed, which has been done. The  manner of assaults as described by him is also corroborated by medical  evidence. The plea that improvements were made to bring the ocular  evidence in line with the medical evidence is clearly without substance.  We have read the evidence and found that whatever was stated was by way  of a clarification and certainty cannot be termed to be an improvement.  Therefore, the evidence of PW2 alone was sufficient to fasten guilt on  the accused appellants.  But, added to that is the evidence of PW1, the  informant, which  further strengthens the prosecution version. The First  Information Report was lodged with promptitude. Merely because PW2 was  examined after some time, the reason thereof has been clearly explained  by the investigating officer who stated that after the information was  lodged by PW1 at the police station he interrogated him and thereafter  left for the place of incident which he reached at 8.45 P.M.  So far as  time of injury on PW2 is concerned, the opinion of PW4 (doctor) is  clearly hypothetical.  He himself has stated that there can be a margin  of 2-3 hours. That being so, credible evidence of eyewitnesses does not  become tainted.  

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       Great emphasis was led on the approximate time of injury. That in  no way affects the credibility of PW2’s evidence. Though evidence of PW1  does not specifically indicate the injury on PW2 that is but natural.  Before a young person two murders were committed and it is quite natural  to create a sense of shock and minor variations in his evidence do not  affect his testimony which is otherwise credible. Unless the medical  evidence in its turn goes so far that it completely rules out all  possibilities whatsoever of injuries taking place in the manner alleged  by eye-witnesses, the testimony of the eye-witnesses cannot be thrown  out on the ground of alleged inconsistency between it and the medical  evidence. (See Solanki Chimanbhai Ukabhai v. State of Gujarat (AIR 1983  SC 484). To similar effect is the decision in State of U.P. v. Krishna  Gopal and Anr. (AIR 1988 SC 2154).

       That being the position, the High Court was justified in  dismissing the appeals filed by the accused appellants before it. We  find no reason to take a different view. The appeal is dismissed.