10 September 2004
Supreme Court
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RAM KISHAN Vs STATE OF U.P.

Bench: K.G. BALAKRISHNAN,DR. AR. LAKSHMANAN
Case number: Crl.A. No.-000229-000229 / 2002
Diary number: 22211 / 2001
Advocates: Vs JATINDER KUMAR BHATIA


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CASE NO.: Appeal (crl.)  229 of 2002

PETITIONER: Ram Kishan & Ors.                                                

RESPONDENT: State of Uttar Pradesh                                   

DATE OF JUDGMENT: 10/09/2004

BENCH: K.G. Balakrishnan & Dr. AR. Lakshmanan  

JUDGMENT: J U D G M E N T

K.G. BALAKRISHNAN, J.

       These five appellants were found guilty of  murder by the District and  Sessions Judge, Varanasi, for having caused the death of one  Shiv Shankar  Singh.   They preferred an appeal before the High Court of Allahabad.  The  appeal was dismissed and the conviction of the appellants  under Section 302  read with Section 149 and under Section 323 read with Section 149 IPC was  confirmed.   The findings of the High Court are challenged before us.

       Deceased Shiv Shankar Singh was a resident of Phoolpur village in the  Varanasi district.   On 11.10.1979,   there was a  Bharat Milap ’mela’ at Mangari  Bazar.   Deceased Shiv Shankar Singh had gone to witness the said ’mela’.    There, he met PW-1 Moti Chand.    Moti Chand and Shiv Shankar Singh spent  some time  at the  venue of the ’mela’  and during night they came to the house  of the father-in-law of deceased  Shiv Shankar Singh, which was very close to  Mangari Bazar.    On the next day,  i.e. 12.10.1979, at about 8.00 A.M., both Moti  Chand and Shiv Shankar  Singh left the house on a motorcycle.   Moti Chand  was driving the motorcycle while deceased  Shiv Shankar Singh pillion-riding the  same.    When they reached near the pumping house of one  Bhaggan Singh @  Vibhuti Narain Singh, the appellant Bansh Narain  Singh came all of a sudden  and intercepted the motorcycle.     Bansh Narain Singh shouted that Shiv  Shankar Singh shall not be spared.  The other appellants, who were hiding in the  nearby ’Arhar’ field armed with ’Lathis’ fitted with iron rings, came out and   assaulted Moti Chand who fell on the ground.   Then they started assaulting Shiv  Shankar Singh with ’Lathis’.   Shiv Shankar Singh sustained various injuries and  died on the spot.     Hearing the alarm raised by the injured, the other witnesses  came  there  and  the appellants fled the place immediately.

       Injured Moti Chand proceeded to the nearby Phoolpur  Police Station and  gave the F.I. statement at about 9.45 A.M. on 12.10.1979.  Moti Chand was sent  for medical examination by the S.H.O., who  then  immediately proceeded to the  scene of occurrence.    He recorded the statements of Moti Chand and other  witnesses, namely,  Jagdish, Satya Narain, Rama Shankar Singh and Matter @   Raj Narain and Ram Murat.   He held an inquest over the dead body  and also  prepared a scene ’mahzar’ and  took custody of the motorcycle.    Later, the dead  body was sent for post mortem.   On 15.10.1979, the Investigating Officer  arrested the appellants and filed the final report.

       The learned Sessions Judge as well as the High Court relied on the  evidence of PW-1 Moti Chand and PW-2 Rama Shankar Singh and PW-6 Satya  Narain Singh and convicted the appellants.

       Learned counsel for the appellants challenged the findings of the Sessions  Judge as well as  the High Court on various grounds.   It was submitted that the

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three eye witnesses on whom the courts placed reliance  were all interested  witnesses as they were close  friends of deceased Shiv Shankar Singh.   The  learned counsel pointed out the various facts to indicate that these witnesses  were very strong supporters of deceased Shiv Shankar Singh.   It was argued  that Moti Chand must have been a very close friend of the deceased as both of  them had spent a lot of time together at the ’mela’ and   later the deceased took  Moti Chand to his father-in-law’s house and both of  them stayed in that house  for the night.   These facts, according to the counsel for the appellants, proved  that Moti Chand was not an independent witness.   It may be noticed that Moti  Chand was an injured witness.   According to the prosecution, deceased and   Moti Chand travelled on a motorcycle and the same was recovered from the  place of the incident by the Investgating Officer, who prepared a ’mahzar’  immediately after the incident.   Moreover, Moti Chand gave the F.I. statement  within hours after the incident.   Therefore, the presence of Moti Chand at the  place of  incident cannot be doubted.    Mere acquaintance or friendship of Moti  Chand  with the deceased by itself cannot be treated as a reason to discard the  evidence of the eye witness if it is proved by other satisfactory evidence that the  witness was very much present at the time of  incident.

       The counsel for the appellants strongly urged before us that the evidence  of the other two witnesses, namely,  PW-2 and PW-6, cannot be accepted as  they were also  not independent witnesses.    It was pointed out that these  witnesses were so close to  deceased  Shiv Shankar Singh that they even filed  an affidavit before the court in support of the plea for the cancellation of the bail  of these appellants.   The incident allegedly happened at 8’ o clock in the  morning.   These witnesses are persons residing in the locality.   PW-1 also  deposed that these witnesses were present at the time of the incident.    The  courts  below have relied on the evidence of these two witnesses.  We do not   find  any strong reason to discard their evidence.

       The counsel for the appellants further contended that the medical  evidence   adduced   in    this    case   disproved the  prosecution case.  PW-8,  Dr. B.B. Subramaniya  conducted the post-mortem on the dead body of the  deceased Shiv Shankar Singh.   He deposed that the injuries found on the body  of Shiv Shankar Singh may have been caused by a sharp, heavy cutting weapon.     Injury Nos. 3, 4 and 6  are  injuries which must have been caused by such a  weapon.   Injury No. 3 is a  chop wound  on the left forehead 18 cm. x 4  cm.   brain deep; injury no. 4 is a  chop wound 10 cm. x 3.5 cm.  and  injury  no. 6 is a  chop wound 6.5 cm. and 5 cms.     All these  three injuries are on the head and  the  brain was exposed.    Counsel for the appellants contended that  according  to the prosecution, the appellants were armed with ’Lathis’ fitted with iron rings  and there was no case that  any one of the appellants was having any sharp  cutting weapon.   It is important to note that the ’Lathis’ were fitted with iron rings  and a heavy blow with such a weapon  on  the head would  have caused the  skull to break.   The doctor was of  opinion that there were multiple fractures of  the skull.   Except the witnesses saying that ’Lathis’ were fitted with iron rings,   there  is no evidence as to the  nature of the  weapons.   During the course of the  investigation,  these weapons were not examined.    What was the width of the  ring with covered the ’Lathis’  is not known.   Under the circumstances, the  Sessions Court and the High Court were justified in accepting the medical  evidence.

       Another contention urged by the appellants’ counsel is that the post- mortem showed that the stomach of the deceased was empty.   According to the  learned counsel, PW-1 and the deceased had left the house in the morning and  they must have taken food and that the prosecution story must be false, for the  reason that the incident must have taken place somewhere during the night and  that is why the  post-mortem  evidence is to the effect that the stomach of the  deceased was empty.   There is no direct evidence as to whether the deceased  had taken any food in the morning.   The counsel for the appellants pointed to   the statement given by the Investigating Officer  during  the cross-examination in  which he had admitted that the father-in-law had stated to him that the deceased  had taken breakfast in the morning and thereafter  left the house.  The father-in- law  of the deceased  was not examined as a witness.    Therefore, the statement  given by the Investigating Officer must have been based on   the statement of the

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father-in-law  of the deceased  recorded under Section 161 of the Code of  Criminal Procedure.   The   statement given by the Investigating Officer regarding  this fact is not directly admissible in law.   In the absence of any evidence to the  effect as to whether the deceased had taken food or not before leaving the house  on 12.10.1979, the findings of the doctor  to the effect that the stomach of the  deceased was empty are of no consequence.         Counsel for the appellants lastly submitted that in view of the various  incongruities   in the prosecution’s evidence, the appellants should have been  acquitted in this case.    We are not inclined to accept this argument.   The  Sessions Court as well as the High Court have taken a reasonable view of the  evidence and found the appellants guilty.     We  are not  inclined to interfere   with the impugned judgment.   The appeal is without any merit and is dismissed  accordingly.