& Anr Vs. State of U.P  Insc 392 (17 September 2002)
Raju & H.K. Sema. Sema, J
Appeal (crl.) 787 of 2000
two appeals arise out of a common judgment and order passed by the High Court
of Judicature at Allahabad dated 15th May, 2000 in Criminal Appeal No. 1659 of 1979 and Government Appeal
No. 2819 of 1979. Criminal Appeal No. 1659 of 1979 had been preferred by Baljore
(the appellant before us in Criminal Appeal No. 787/2002), who was convicted
under Section 302 IPC and sentenced to life imprisonment by an order dated Ist
May, 1979 passed by the VIth Additional Sessions Judge, Azamgarh, in Sessions
Trial No. 533 of 1977. Government Appeal No. 2819 of 1979 had been preferred by
the State of U.P. against the acquittal judgment by the Trial Court acquitting Mohar,
Tikori and Tapsi (Mohar and Tikori are appellants before us in Criminal Appeal
No. 658 of 2000) for the offences punishable under Sections 302, 324 and 323
read with Section 34 IPC. By the impugned judgment the High Court, after
examining the evidence on record, dismissed Criminal appeal No. 1659 of 1979
preferred by Baljore and he was convicted and sentenced to imprisonment for
life under Section 302 read with Section 34 instead of Section 302 IPC simpliciter,
as recorded by the Trial Court. The High Court also allowed the Government
Appeal No. 2819 of 1979 by reversing the acquittal of accused Mohar, Tikori and
Tapsi, as recorded by the learned trial Judge and convicted each of them under
Sections 302, 323 read with Section 34 IPC and sentenced them to undergo
imprisonment for life and RI for a period of one year under Section 323 read
with Section 34 IPC. The substantive part of sentences were directed to run
concurrently. It appears that during the pendency of appeal accused Tapsi
expired and the appeal preferred by him stood abated. Now only the appellants Mohar
and Tikori (in Criminal Appeal No. 658/2000) are before us.
the accused and the complainants are residents of village Ultahawa Dewara, P.S.
Maharajganj, District Azamgarh. Ramraj P.W.-1 and deceased Ram Awadh were also
residents of the said village. Towards the north of the houses of Ram Raj and
Ram Awadh, there was an agricultural field of accused - Baljore. There was also
an agricultural field of deceased Ram Awadh near by. It is stated that in the
year 1977 peas crop was existing in the filed of Ram Awadh and wheat crop was
existing in the field of Baljore.
murder of deceased Ram Awadh and Hansraj is a sequel to the quarrel between Km.
Kamli, daughter of deceased Ram Awadh and Tufania, son of accused Baljore on
29.1.1977 while they were picking akri and collecting grass adjoining their
fields. It is stated that the quarrel between the two children was pacified by Balli
(PW-3) and the children retired to their respective houses. When Ram Raj (PW-1)
and his brother deceased Ram Awadh were present in front of their houses and Jagarjit
(Jagdish)PW-4 son of deceased Ram Awadh was milching cow in front of his door,
it is said that accused Tapsi armed with lathi, Baljore, Mohar and Tikori armed
with spears appeared in front of the house of Ram Raj and on being exhorted by
accused Tapsi (since expired)) Baljore attacked deceased Ram Awadh with spear,
accused Tapsi attacked Jagarjit(Jagdish) with lathi.
arrival of deceased Hansraj accused Tikori and Mohar attacked Hansraj with
spears. Thereafter, the said accused started causing injuries on the deceased
Ram Awadh and deceased Hansraj with their respective weapons.
(PW-4) and Ram Awadh (deceased) tried to save themselves by plying Hasuwa
(sickle) and lathi respectively. It is stated that the deceased Ram Awadh
sustained injuries inflicted by spear caused by Baljore and deceased Hansraj
sustained injuries caused by Mohar. Jagarjit (PW-4) sustained lathi injuries.
On an alarm being raised by Ramraj (PW-1) and injured persons, Vibhuti (PW-2), Balli
(PW-3) and Ayodhya came to the spot and witnessed the occurrence. After the
incident, both the injured Ram Awadh and Hansraj were taken to Police Station, Maharajganj,
at a distance of about five miles from the place of occurrence, and Ram Raj
(PW-1) lodged the First Information Report at about 8.50 p.m. Head Constable, Yadunandan
Singh (P.W.6) prepared the First Information Report (Ex.Ka-1) and registered
the case vide extract G.D. (Ext. Ka-2) under Sections 323, 324 and 307 IPC.
Baljore also lodged written first information of the incident at the Police
Station and PW-6 Head Constable Yadunandan Singh prepared the FIR (Ex.Ka-17).
30.1.1977, injured Ram Awadh succumbed to his injuries at P.H.C. Maharajganj
and on information being received of the death of Ram Awadh, Head Constable Yadunandan
Singh, made entries in the General Diary and converted the offence from Section
307 IPC to 302 IPC. Sarvdeo Singh (PW-7), the Investigating Officer visited the
hospital and prepared panchnama ( Ex.Ka-6). Thereafter, constable Suresh Prasad
(PW-9) took the dead body of Ram Awadh to Azamgarh and on the same day at about
4.00 p.m. Dr. O.P. Khattri PW-11 , Medical Officer District Hospital, Azamgarh, conducted post mortem
and found the following injuries on his person :
Abrasion cm x cm on the right side nose middle.
stitched wound 2.5 cm long with one stitch on the left of chest lower part 22
cm from anterior axillary fold.
distended under ante-mortem injuries.
punctured on left side as described by ante- mortem injuries.
on the left side is punctured underneath injury No.2 Paritoneum punctured below
injury No.2 Cavity contains about one pint blood material with food material.
wall perforated (1" x " x cavity deep) 5" from the pylorous.
contains digested material about 4 oz.
deceased was average built. Rigor mortis was present on the dead body. In the
opinion of the doctor the injury No.2 was caused by pointed sharp edged weapon
like spear. The injury was sufficient to cause death in ordinary course of
nature. The death occurred as a result of shock and hemorrhage due to said
injuries. The doctor prepared post-mortem report Ext. Ka-15" As noticed
above accused-Baljore had also filed a cross complaint and he also sustained
injuries. On examination by Dr.V.Pandey (PW-10), the accused sustained the
following injuries on his person:
Punctured Wound 2/10" x 1/10" x 1/10" at the back of left little
finger, 1.1/2" below the top of the same finger.
Contusion with swelling 2.1/2" x 2", 8" below the left elbow, on
the left fore-arm, lateral aspect.
Contusion with swelling 2.1/2" x 1.1/2" on the right upper and outer
surface 2.1/2" above the right elbow joint.
Complaint of pain on the right knee joint.
Punctured wound 2/10" x 2/10" on the right of the back of chest
6.1/2" from the right nipple. Wound was not bleeding. " It is also
noticed that the counter complaint lodged by accused-Baljore was found to be
false by the Trial Court as the First Report lodged by accused Baljore, on
29.1.1977, was stated to be oral. Complaint by the accused was disproved by
Ex.Ka-17. It may be noticed that in Exh. Ka-17, the complainant did not mention
the place of incident. In the subsequent F.I.R. , in April, 1977, the accused
stated that the incident had taken place in his wheat field. The learned trial
court disbelieved the defence put up by the accused on the basis of subsequent
FIR dated 7.4.1977 (Ex. Ka-2), filed by Baljore. The Trial Court found that the
said application had been filed after a lapse of two months of the incident
which was highly belated and the allegation made therein was highly improbable
and well an after-thought to set up the plea of right of private defence.
appreciation of the evidence the Trial Court acquitted the appellants Mohar and
Tikori by assigning the following reasons:-
the evidence of Ramraj (PW-1) and Balli (PW- 3) the presence of one Jagdish
PW-4 at the place of occurrence is mentioned but the name of Jagarjit does not
find place in the FIR.
(PW-2) explained that Jagdish has his alias(names) as Jagjeet and Jagarjeet,
but this statement was not supported by Ramraj (PW-1).
(PW-1), Balli (PW-3) and Jagdish (PW-4) gave different versions regarding colour
of cow which Jagdish PW-4 was said to have been milching at the time of
(PW-4) stated that the prosecution party plied sickle in order to save
themselves but this fact has not been mentioned in the FIR and that the
punctured wounds of the accused Baljore and Tapsi could not have been caused by
The injuries sustained by Jagdish (PW-4) were not examined on the same day but
the next day and the doctor opined that his injuries could be self - inflicted.
for the appellants strenuously urged that the appellants have acted in a right
of private defence and that for the reasoning as noticed above, the Trial Court
has rightly recorded the acquittal of the two appellants but the High Court was
in error in reversing the acquittal of the accused on appeal.
will now proceed to examine the evidence on record. According to the
prosecution story Jagdish(PW-4) alias Jagarjit was at the place of incident milching
cow. In FIR Ramraj (PW-1) stated that at the time of occurrence, Jagarjit
nephew of PW-1 was milching cow at the door of the house. The learned trial
court disbelieved the presence of Jagarjit at the place of occurrence as in the
cross examination PW 1 stated that PW-4 is also known as Jagdish alias Jagjit.
It is to be noticed that PW-4 Jagdish has received injuries on his body in the
testimony of an injured witness has its own efficacy and relevancy. The fact
that the witness sustained injuries on his body would show that he was present
at the place of occurrence and had seen the occurrence by himself. Convincing
evidence would require to discredit an injured witness. Similarly, every
discrepancy in the statement of witness cannot be treated as fatal. The discrepancy
which do not affect the prosecution case materially cannot create any
infirmity. In the instant case the discrepancy in the name of PW-4 appearing in
the FIR and the cross examination of PW-1 has been amply clarified. In cross
examination PW-1 had clarified that his brother - Ram Awadh had three sons: (1)
Jagdish PW- 4 (2) Jagarnath and (3) Suresh. This witness, however, stated that Jagarjit
had only one name. PW-2 - Vibhuti, however, stated that at the time of
occurrence the son of Ram Awadh Jagjit @ Jagarjit was milching cow and he was
also called as Jagdish. Balli (PW-3) mentioned his name as Jagjit and Jagdish.
PW-4 also gave his name as Jagdish.
injury report he has also given his name as Jagdish. It is noted that PW-4 has
been given different names as Jagdish, Jagarjit and Jagjit but it is not
disputed that he is the son of deceased Ram Awadh. Calling PW-4 as Jagarjit, Jagjit
and Jagdish leads to only one conclusion that he is the son of deceased Ram Awadh.
It is the specific case of the prosecution that son of deceased Ram Awadh and
the nephew of Ramraj (PW-1) was milching cow near the door of the house at the
time of occurrence. It is nobody's case that PW-4 Jagdish was not the son of
deceased Ram Awadh. It is a common knowledge that in the village one name can
be called by different nicknames and by different pronunciations and solely on
the ground that the name of PW-4 appeared differently in the FIR and during the
prosecution evidence, his presence at the place of occurrence cannot be
disputed, more so, because hs is the one who received injuries on his body as
other reason assigned by the Trial Court, dis-believing the presence of PW-4 at
the place of occurrence, was the colour of the cow said to have been milching
by PW-4. PW-1 Ramraj stated that the colour of cow was white, Vibhuti - PW-2
stated that the colour was 'dhawar' and Balli - PW-3 however, stated its colour
as 'sokan'. The different versions of colour of the cow assigned by PWs cannot
be a ground to throw away the presence of PW-4 on the spot because from the
evidence of PWs 1-3, the factum of PW-4 milching cow at the place and time of
occurrence has been clearly established. In such a melee, witnesses may not be
mindful of the colour of the cow.
other ground, on which the learned Trial Court disbelieved the statement of
PW-4, is the injuries sustained by the appellant Baljore. In the prosecution
evidence it is stated that PW-4 Jagdish plied sickle in his defence. Admittedly
accused Baljore and Tapsi (since dead) sustained injuries and also the deceased
Ram Awadh, Hansraj and Jagdish (PW-4).
Baljore was medically examined by PW-10 Dr. V.P.Pandey and found five injuries
on his body, as noticed earlier. The Doctor opined that all the injuries on Baljore
were simple. Injury Nos. 1 and 5 were caused by pointed sharp edged weapon and
rest by blunt weapon. Counsel for the appellants submits that sickle is not a
pointed sharp edged weapon and such injuries cannot be caused by sickle and
therefore ocular evidence is contrary to the medical evidence and the evidence
of prosecution cannot be relied upon. We are not persuaded to accept the
contention made by the learned counsel for the appellants, firstly because
whether such injuries could be caused by sickle or not will depend upon the
shape and size of the sickle and secondly, because Dr.Pandey PW-10 in his cross
examination has clearly stated that injury Nos. 1 and 5 of accused Baljore
could be caused by sickle.
it is contended by the learned counsel that Jagdish PW-4 admittedly received
injuries on 29.1.1977 but he was examined on 30.1.1977 and the injury said to
have been sustained by PW-4 is manufactured, apart from, according to the
evidence of PW-10 such injury could be self inflicted.
contention is far-fetched and does not appeal to us at all and deserves
was lodged on 29.1.1977 itself and it is mentioned in the FIR that Tapsi
attacked Jagarjit with lathi. It is noticed that FIR was lodged with no loss of
time and, therefore, it cannot be said that since injured PW-4 was examined on
30.1.1977, it is manufactured by the prosecution subsequently.
High Court, on re-assessment of the entire evidence, has come to the conclusion
that the presence of PW-4, at the place of incident is clearly established. The
whole case, as already noticed, set up by the accused side, was rejected by the
trial court as highly improbable and the said finding was confirmed by the High
Court. Both the Trial Court and the High Court also found that the accused
party was the aggressor.
High Court, also on re-appreciation of evidence, convicted Mohar and Tikori. It
may be noticed that while acquitting the accused Tikori, the Trial Court was of
the view that P.W.-1 Ram Raj has not mentioned Tikori in his
examination-in-chief, instead he mentioned one Kishori. However, P.W.-1, in his
cross-examination denied the suggestion that he had not mentioned the name of Tikori
in the FIR. He has also denied the suggestion that the name of the accused Tikori
was subsequently added. The other ocular evidence of P.Ws., namely, Vibhuti
PW-2, Balli PW-3 and Jagdish PW-4 have also specifically stated the name of
accused - Tikori and they have not named any accused as Kishori. This apart, in
the FIR, PW-1 Ram Raj has specifically stated Tikori as one of the accused. So
also the ocular evidence of PWs. 1, 2, 3 and 4 stated the presence of accused
persons at the spot with arms and participation of accused Mohar in causing
spear injuries to deceased Hansraj. The benefit of doubt rendered by the Trial
Court, in respect of accused Mohar, Tikori and Tapsi (since deceased) runs
straight to the teeth of ocular evidence. The High Court on appreciation of
ocular evidence of PWs. 1, 2, 3 & 4 and materials on record has rightly
come to the conclusion that the prosecution has been able to prove the presence
and participation of the accused Mohar, Tikori and Tapsi (since deceased)
beyond reasonable doubt. The Trial Court acquitted them on the benefit of doubt
on tenuous ground.
perusal of the evidence and materials on record, we have no reason to take a
contrary view than the view taken by the High Court.
right of private defence put up by the accused, as already noticed, the trial
court on appreciation of the evidence particularly after considering Ext.K-17;
FIR lodged on 29.1.1977; Ex. Kha-2 and FIR filed on 7.4.1977, has come to the
conclusion that occurrence originated in front of the house of deceased Ram Awadh
and found that the accused party was the aggressor and the prosecution
witnesses acted in self defence.
regard to Criminal Appeal No. 787 of 2000, preferred by Baljore, learned
counsel for the appellant fairly submits that there is concurrent finding of
facts. The only contention of the counsel is that there is no intention on the
part of the accused Baljore to cause the death of the deceased and he submits
that the conviction of the appellant under Section 302 IPC may be converted to
the one under Section 304 Part I. On perusal of the evidence on record, we are
of the view that this concession is not available to the appellant.
the aforestated reasons these appeals are devoid of merit and they are,