Bhogi Lal and Others vs State of U.P.

G.D. Dube, J.—Bhogi Lal, Santram and Chinge have, each been convicted and sentenced to imprisonment for life u/s 302 read with Section 34 of the Indian Penal Code and also a fine of Rs. 10,000.00, in default to under go regorous imprisonment for 4 years by Second Additional Sessions Judge Jalaun at Orai. Aggrieved by this order they have preferred this appeal.

Prosecution case is that santram Appellant and Mansaram (deceased) Sons of Chidde were step brothers. Their mothers were different. It is alleged that on the evening of 1-7-1976 Baladin was going alongwith Ram Khelawan PW 2 from Korta to his village Goran. When they reached near Bhattawala field in village Goran they heard shrieks coming from the said field at about 6.00 P.M. They ran towards the field, panacham PW 4 who was present in his field also ran towards the place of occurrence. All the three witnesses saw Bhogi Lal armed with pharsa and of her two Appellants armed with axes assaulting Mansaram. They Chopped off the head of Mansaram. After committing the crime accused ran away.

Baladin came to the village and narrated the occurrence to Mansaram village Chaukidar PW 7. This Chaukidar then informed Chidde, father of the deceased, about the incident. Chidde brought the dead body and the chopped head on a bullock cart to his house. He was, however, not willing to lodge a report in the police station. Hence Mansaram Chaukidar went to the police station next morning and lodged a report at 6.15 A.M. on 2-7-1976.

The Station Officer PW 6 Ram Kishore Singh took up the investigation, and prepared the inquest report. He sent the dead body to the mortuary for post-Mortem. He interrogated the witnesses and after the usual investigation submitted charge-sheet against the Appellants.

The post-mortem of the dead body had been conducted by Dr. M.K. Goel PW 3 at about 5 P.M. on 3-7-76. He had found four incised wound on the person of the deceased;

(i) Incised wound at the root of the neck along the whole of the cir-cumsference of the neck.

(ii) Incised wound over face just below mouth transversely placed toward left, size 8 cm. x 2 cm. through and through.

(iii) Incised wound scalp occipital region going towards the left perietal region, size 10 cm. x 2.05 cm. x brain deep. Brain material is coming out of wound.

(iv) Incised wound over upper aspect of right shoulder size 5 cm. x 1.05 cm. x bone deep.

The occipital and left perietal bone had raptured and the brain material was coming out. The doctor had opined that the death has been caused about two days back due to the injuries noted above.

The prosecution had examined 7 witnesses in all, out of these PW 2 Ram Khelawan and PW 4 Pancham Lal were eye witnesses. The remaining were formal witnesses. The prosecution has also examined shyamsunder PW 5. The prosecution case is that during investigation the investigating Officer arrested Santram. On interrogation he had promised to handover exes used in the commission of crime, he handed over an exe Ext. 1 and a blood stained under wear in presence of PW 5 shyamsunder, pradhan of the village Goran and one another witness. PW 7 is head constable who had registered the ca�e on oral report of Mansaram PW 1.

The accused had pleaded not guilty to the charges. They had alleged in the statement u/s 313, Code of Criminal Procedure that they had been falsely implicated on account of enmity. They had not produced any witness in their defence.

The learned sessions judge had not relied upon the statement of PW 2 Ram Khelawan. He had admitted in his cross-examination that he alongwith balikaran had received Rs. 1200/- from the accused for putting marks on blank stamp papers to be used as affidavits in respect of this occurrence before the Magistrate concerned. The learned Sessions Judge held that the even though he held that this witness was present alongwith Baladeen at the time of occurrence he did not find it advisible to rely upon the statement of Ram Khelawan. However, the learned session judge relied upon the statement of Pancham and held the Appellants guilty of murder of Mansaram.

The learned Counsel for Appellant had urged that the statement of Pancham was not at all reliable. Our attention was drawn to the site plan prepared by Investigating Officer. It was pointed out that the field of pancham was situated at a distance of 150 yards from the place where Mansaram was killed. It was, therefore urged that firstly, the shrieks of Mansaram would have not gone to a distance of 150 yards, moreover, if it is presumed that pancham had heard the shrieks then he could not have arrived near the place of occurrence to see the assailants committing the crime. It was also urged that the prosecution was silent about the motive of murder. According to the prosecution, Santram and two other assaulants were close relatives. Mansaram deceased was a step brother of Santram. No motive has been stated by the prosecution for this ghastly murder. It was, therefore, urged that motive has not been alleged and there is solitory statement of eye witness pancham, which could not be held sufficient to prove the guilt of the Appellants.

The learned Counsel for the state urged that it was not necessary that there should be corroboration of evidence. Even a solitory witness can be sufficient to entail conviction. It was urged that pancham was a young lad of about 30 years age. He, therefore, could have rushed to the spot and witnessed the occurrence.

It is true that the Evidence Act does not state about the corroboration. In a catena of prouncements of the Supreme Court of India the evidence have been classified into three categories, first; wholly reliable; secondly, partly reliable partly unreliable and lastly; wholly unreliable. For the category of former, i.e. wholly reliable there is no need of corroboration.

In Vadivelu Thevar Vs. The State of Madras, the Hon''ble Supreme Court has observed that the court should not insist upon plurality of witnesses. In this case the above classification of witnesses was spelled out and it was held that if witness comes under the category of wholly reliable witness, his evidence is sufficient to prove the guilty of a person.

We agree with the learned Counsel for the Appellant that pancham can not be placed in the category of a wholly reliable witness. Whatever he has stated appears to be exaggeration. He had stated in cross-examination that as soon as Mansharam cried he ran for his help. He stated that when he was at a distance of 50 steps from Mansharam, he saw the Appellants killing the deceased. In further cross-examination he had stated that when he heard the shriecks, the accused were cutting the throat of Mansharam. This statement is per-se not believable, when the Appellant was cutting the throat of Mansharam, he would not have been able to raise alarm. If he could have raised only he was being overpowered and pulled down on the ground. There were three persons. We find that first three injuries were on the head region. The second injury was below the mouth. After receiving of any one of these injuries Mansharam would not have been in a position to raise an alarm.

After receiving alarm some time must have been taken by pancham to notice the direction of alarm and shriecks, some time would have been consumed in running from his field towards the field of Mansharam. By that time the whole act of killing would have been over and the assailants would have bolted away. There was no possibility of pancham seeing the actual act of crime.

According to the prosecution the assailants had run away towards west. In these circumstances there was no possibility of the assailants being recognised by pancham.

There is one more patent defect in this case. None of the witnesses had stated as to what happened to the bullocks and plough of Mansharam. Mansharam is said to have been ploughing his field when the occurrence took place. The prosecution is quite silent on this important aspect of the evidence. It is strange that his son was killed but chhidde, the father, had not taken the trouble to lodge the report. The prosecution has kept the motive part of the occurrence also a close secret.

In view of the above infirmities it was better for the trial court to have sought independent corroboration of the statement of pancham. It is really very striking that PW 2 Ram Khelawan had acted in a very irresponsible manner by accepting Rs. 1200/- from the Appellant and had affixed his thumb impression on the stamp paper to be used by the accused side in this case, in which he had stated that he had not seen any occurrence.

In view of what has been said above we find that the lower court had erred in holding the Appellants guilty of the offence u/s 302, IPC and convicting and sentencing them as stated above.

The appeal is allowed. The judgment of the lower court is set aside. The Appellants are acquitted of the charges levelled against them. Their bial bonds are cancelled and sureties are discharged.