Bachchan alias Abhai Kumar vs State of U.P.

K. Narain, J.—These two appeals by Ajai Kumar and Bachchan are directed against the judgment and order dated 20-12-1978 rendered by IVth Additional Sessions Judge Agra, in S.T. No. 258 of 1978 convicting the Appellants of the offence under Sections 302/34 IPC, in respect of an occurrence of the evening of 24-3-1978 in which Pramod Kumar alias Kallu was murdered.

Pappu alias Arun, Raju and Munna were also tried in the same trial and were acquitted with a benefit of doubt in respect of the same charge.

According to the prosecution, the contention as set forth before the trial court, one Nemi Chand, uncle of deceased Pramod Kumar alias Kallu runs a Halwai shop in Mohalla Bajria, Ferozabad. In the evening of incident, which took place around 9 a.m. his brother Chhotey Lal and his son Kallu deceased also had come to his shop. Chhotey Lal is in the business of goldsmith. Chhotey Lal and Kallu were just standing infront of the shop when accused Bachchan, Munna, Ajai Kumar, Raju, Pappu alias Arun came there and asked for 50 grams sweet for each, which was supplied. After eating the sweets, they began to leave the place, whereupon Nemi Chand asked for payment. They replied that they never paid anybody after eating and how could Nemi Chand dare ask for the same. The matter was then brought to the notice of Chhotey Lal and Kallu, who were standing infront of the shop. Since the accused had moved a few steps, Kallu went towards them and insisted that when they had eaten the sweet, they would have to pay for it. After some altercation Munna, Ajai Kumar and Arun held the deceased from back and Bachchan and Ajai who by that time had taken out knives, gave two stab blows. As the deceased began to fall, the accused made good their escape. Kallu was taken to the hospital where he died before any medical aid could be rendered.

A report of the incident was lodged by Nami Chand. There was some difference about the names and aliases which shall be considered below. It may, however, be made clear that the said difference could be in respect of Pappu alias Arun who already stands acquitted. After necessary inquest etc., the body of Kallu was sent for post mortem examination which was conducted at 9.45 a.m. on 25-3-78 by Dr. Prem Prakash PW 5. He found two stab wounds upon the person of the deceased one in the chest region and the other in the abdomen. From the latter, the omentum was protruding, which fact will be material in respect of bleeding inasmuch as a protruding omentum would be a cork from inside, which will more obstruct when pressure increases inside.

The prosecution had examined five witnesses in all in order to bring home the charge against the accused. They were PW 1 Nemi Chand. PW 2 Chhotey Lal, the witnesses of occurrence itself, PW 3 R.D. Tyagi S.I. of Police, who had investigated the case and PW 4 H.C. Moharrir Lal Bahadur Singh, who had prepared the chick on the basis of first information report and PW 5 Dr. Prem Prakash.

The testimony of PW 1 Nemi Chand and PW 2 Chhotey Lal has been vehemently challenged before us on behalf of the accused Appellants. The first ground of attack was that they were very interested persons, being uncle and father of the deceased. No body can deny that they were interested in the deceased but had they any interest against the accused also. The answer can be only ''No'' as there has been no such suggestion. The suggestion which we will deal below relates to different factors- which would not obtain. In order to be interested witness, one should have some perceivable interest for or against one or the other. The interest in the deceased was not an interest but a love and affection for the later generation. Would they get any tangible or intangible benefit by giving false evidence against the accused? Naturally they are not going to gain anything, and that interest could not be achieved by getting another man on the street hanged or convicted. The interest of such persons would weigh in their favour and cannot be a reason for discarding their testimony.

Both the above said witnesses had fully supported the case of the prosecution and stated about the occurrence in detail. The cross-examination of PW 1 Nemi Chand was directed to make out that there were several Pappus in the city. Firstly he did not know them and, secondly, the suggestion was in respect of Pappus having different parentage while the parentage of Pappu, who was accused in the case was given in the first information report itself. Similarly, Munna was also tried to be confused with another Munna son of Ochhey Lal owner of the house where Chhotey Lal and Nemi Chand are tenants. Even if there was some bad blood between Ochney Lal and Nemi Chand and they had reason to implicate Munna son of Ochhey Lal, how would Munna son of Radha Kishan get benefit of it. It will be too wide to imagine that because they were unhappy with Munna son of Ochhey Lal, they implicated another Munna just to satisfy themselves. Not only this, an effort was also made to cross-examine about Baburam Paliwal who happened to be the father of accused other than Munna and to show that there were several Baburams. How would it obtain. All this simply show that there was an effort to grope in the dark and create a confusion.

The other line of cross-examination was that on the date of the incident, there was Lunar Eclipse. The suggestion was since there was an eclispe sweepers were coming out of the houses to ask for alms. This used to be some 50 years back. It was rightly denied and all the more if it is assumed that there were such beggings, how does it affect the prosecution case. The shops of sweet-meats are not closed and people keep on selling even alter and during solar and lunar eclipse and vendors never get shy of selling what they have even if they may not like to eat themselves. It will be more so when the eclipse had taken place on the day of Holi. The sweets are prepared and eaten on the next day and onwards of Holi. They have to be prepared earlier and if all preparations were to be thrown to sweepers as suggested by the defence, no body would be able to serve sweets next day.

The other line of cross-examination was to show that there were many shops in the neighbourhood and those shop keepers had seen the occurrence, which has been admitted to be so. This plays a double role. If other shops were open and witnesses were there as has also been accepted by the witnesses, the shops would not be closed on account of eclipse. It will deny the above contention of the defence. On the other hand, as the defence had relied upon it but the witnesses of the locality though present would remain unexamined However does it make any defference? What is the difference between Nemi Chand and Chhotey Lal on one part and Dhananjai and Jai Narain on the other, who have their shops in the locality. As already said above, these witnesses have only an interest in the form of love for the deceased which would make them more eager to know as to what was happening and also become part of the happening. On the other hand, Dhananjai, Jai Narain and others would be getting an attention towards the incident only when some thing material has happened and thus became the witnesses of the later part of the incident only. Their evidence would not be anything more than multiplication of a part of the evidence already contained in the statement of two witnesses.

PW 1 Nemi Chand was also cross-examined in order to know as to how he has known Bachchan. It is nobody''s case that Bachchan and others were too well known to the witnesses, but at the same time, it is also clearly made out that he happens to be the son of Baburam who is a reasonably rich person in Ferozabad. This position of the father of Bachchan has not been controverted. The witness specifically stated that he was known from before as he had been going through the market off and on. It is difficult for any body to tell as to how in the first instance he came to known another person. Effort in this half was also made to PW 2 Chhotey Lal when he was asked to point out Bachchan amongsr the accused persons. This was the situation where Bachchan in all probablity was present in the line with three more brothers and he rightly pointed out the accused desired. This negatives the theory put forward by the defence that these persons were not known to the witnesses.

The only suggestion to PW 2 Chhotey Lal to challenge his verasity was that he was telling a lie because he happened to be the father of the deceased. The material aspect is not as to why he is giving evidence but is as to why he is deposing against the accused persons. Being father, he would be most interested in bringing the miscreants to law and ret them punished and that will be, as already observed above, the ultimate reason for giving evidence and not the reason for disbelieving him. As a near relation being father, he would not like the real assailants to go scot-free and his purpose will not be served by giving false evidence.

Arguments were also advanced on behalf of the Appellants with reference to confusion in respect of the names mentioned in the first information report. The names put in the written report were Bachchan Wa Pappu, Raju, Arun, Ajai son of Baburam Paliwal and Munna son of Radha Kishan as the persons who had come to the shop. Arun, Munna and Puppu were mentioned as persons who had said that they generally do not pay after eating and then again, Arun, Pappu, Raju and Munna were mentioned as persons who held Kallu and Baehchan and Ajai Kumar were named as persons who inflicted injuries. There can be no doubt that there has been some confusion in the names, specifically mentioning thereof, as it has been subsequently shown that Pappu and Arun are the same persons, and Bachchan also carries alias of Ajai Kumar, which name was never used in the first information report. The mentioning of these names continued in the statements u/s 161 Code of Criminal Procedure also. It is very clear that there was a confusion in the mind of the informant as well as the witnesses about the correct and exact names but was only in respect of Pappu whose name was at times mentioned twice as Pappu and Arun together and some times at a distance with another name intervening. The benefit of this aspect has already been availed by Pappu alias Arun who has been acquitted by the trial court. Though the main reason for acquittal recorded by the trial court has been the impression that three persons could not have held the deceased and we do not agree with that aspect but the fact remains that whatever was the confusion, it was in respect of one person and he has already been acquitted. Despite our disagreement with the main reason of acquittal mentioned above, we do not propose to go into any further discussion in that behalf as nothing is to turn upon it. The suggestion that since there was a confusion about alias of another person, the witness should be disbelieved, is not acceptable to us.

In result, these appeals have no force and should fail. Both the appeals are dismissed. The accused Appellants are on bail. They shall surrender to their bails and shall be taken into custody to serve out of sentence awarded by the trial court, according to law.