& Ors Vs. State of U.P  Insc 533 (28 October 2003)
Raju & Arijit Pasayat Arijit Pasayat, J.
having unsuccessfully challenged their conviction before the Allahabad High
Court have filed this appeal.
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
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
case as unfolded during trial is as follows:
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.
Singh who had suffered injuries lodged FIR against Mahesh, Veer Bhadra and his
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 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.
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.
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.
appeal filed by the State was held to be without merit and was dismissed.
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.