Damodar vs State of U.P.

G.S.N. Tripathi and P.K. Jain, JJ.—The learned Vth Additional Sessions Judge, Azamgarh vide his judgment and order dated 12.8.80 convicted accused Ram Dhani, Raj Nath, Lalji and Damodar u/s 302, read with Section 34, I.P.C. for committing the murder of Ram Dhani alias Bachcha Singh and sentenced them to undergo life imprisonment. Co-accused Chander was acquitted by giving benefit of doubt.

The prosecution case as contained in the F.I.R. Exhibit Ka-1, lodged by Jai Prakash Singh, P.W. 1 at the police station on 28.5.79 at 21.00 p.m. states that the incident took place on 28.5.79 at 19.00 p.m. in the same night. The distance of the police station is 6 miles (10 Kms.) from the place of occurrence. It has been alleged that Ram Dhani Yadav, accused had a criminal litigation with brother of Sahdeo Yadav, P.W. 2 pending in the Court of J. M. Lalganj, district Azamgarh. The deceased Bachcha Singh alias Ram Dhani, the uncle of the complainant, was a witness in a case against Ram Dhani, accused. Ram Dhani Yadav was also a Pradhan of the village. He repeatedly requested the deceased Bachcha Singh not to appear as a witness against him in the criminal case on behalf of Sahdeo Yadav aforesaid. But the deceased did not relent. The next date for evidence fixed was 29.5.79 and the deceased was bent upon going to appear as a witness against Ram Dhani aforesaid. On account of that enmity, this incident took place. The deceased was returning home from Lalganj Bazar at about 7 p.m. on 28.5.79. He alighted from the bus and was on the Chak Road connecting his village, which was just near the hamlet of Kaharan community. The accused Ram Dhani Yadav, Lalji Yadav, sons of Raj Deo Yadav, Chander (acquitted) and Raj Nath Singh, all residents of the same village and Damodar Gupta r/o district Jaunpur, who were friend to Ram Dhani Yadav, were lying in an ambush. They appeared all of a sudden. They surrounded the deceased. Ram Dhani Yadav, Chander and Damodar Gupta caught hold of the deceased. Thereupon, Lalji Yadav and Ram Dhani Yadav started assaulting the deceased with Gandasa. The deceased raised an alarm, hearing which, the complainant Sahdeo and Ramdeo, apart from Bhola Singh and Kalp Nath Singh, sons of Parsan Singh of the village assembled there. Thereafter, Raj Nath Singh fired from a close range with a pistol at the deceased, resulting in his instantaneous death. Thereafter, the accused made good their escape.

On the basis of the written F.I.R., a case was registered at the police station in the G.D. in the same night at 21.30 p.m. and thereafter, procedural actions started.

The I.O. Sri Omkar Singh Rana was present at the time of registration of the case and has proved the writings of the Head Constable. He immediately took the investigation in his hands and interrogated the complainant at the police station and reached the spot in the same night at 23.30 p.m. For want of adequate arrangement of light, nothing could be done in the night with regard to the investigation.

Next day at 6.30 a.m., the investigation proceedings started. The dead body was taken into possession by him and after inquest report, he prepared the Panchayatnama and other relevant documents and got the dead body sealed and, thereafter, he entrusted the same to the Constable on duty, for conducting the post-mortem examination. He interrogated the witnesses Ram Deo and Sahdeo also, inspected the spot and prepared the site-plan Exhibit Ka-8. He collected the blood-stained and simple earth from the spot and kept them in separate containers and prepared the memo Exhibit Ka-9. On the same day, accused Chander (acquitted) was arrested by him. On 30.5.1979, the witnesses Bhola Singh and others were examined by him. Efforts were made for arresting other accused. The accused Lalji, Ram Dhani and Raj Nath surrendered in the Court on 6.6.79. process under Sections 82 and 83, Cr. P.C. started against the accused Damodar, who had appeared at a later stage. The charge-sheet was submitted by him on 21.8.79.

In order to prove its case, the prosecution relied upon the statement of P.W. 1 Jai Prakash, complainant, who has narrated the entire prosecution story as contained in the F.I.R. He has further described the enmities existing between the parties.

P.W. 2 Bhola Singh is a witness named in the F.I.R. At the time when he heard the alarm, he was nearby his sugarcane field at a distance of about 50 paces from the spot. He rushed to the spot and saw that Damodar, Chander and Ram Dhani first held the hands of the deceased. Thereafter Ram Dhani and Lalji cut his body with a Gandasa and finally Raj Nath fired from his pistol, resulting in the immediate death of the deceased.

D.W. 3 Ram Deo states that it was an evening, little before sun set when he was at his house cleaning grass. When he heard the alarm coming from the northern side of his house, from near the Chak Road, he at once rushed to the spot and saw the incident with his own eyes and has narrated the same as done by the other witnesses.

P.W. 5 Dr. S. D. Gupta, then posted in the District Hospital, Azamgarh, conducted the post-mortem examination on the dead body of the deceased and found the following injuries on his person:

Incised wound 7 cm. ? 1 cm. ? bone deep. Bone under cut into pieces. The wound extending from upper part of right ear to right angle of mouth, oblique in direction.

Incised wound 7 cm. ? 1 cm. ? bone deep cutting through bone, oblique in direction, 1 cm. below injury No. 1 on right cheek.

Incised wound 14 cm. ? 1 cm. ? bone deep cutting through bone infront of chin.

Incised wound 13 cm. ? 1.25 cm. ? bone deep, cutting through bone, 2.5 cm. below injury No. 3 in upper part of neck and chin horizontal.

Incised wound 9 cm. ? 1.5 cm. ? bone deep left side head just above left ear, cutting also the upper part of left pinna.

Incised wound 8 cm. ? 1 cm. ? bone deep, cutting through bone back of top of head.

Incised wound 3 cm. ? 0.75 cm. ? bone deep of head, 3 cm. left to injury No. 6, oblique in direction.

Incised wound 2 cm. ? 1 cm. ? bone deep, cutting through bone, 2 cm. right to injury No. 6.

Firearm wound of entry circular in shape 2 cm. ? 2 cm. ? cavity deep tattooing and blackening present, 2 cm. area, and the around on right side back or right shoulder.

On internal examination, he found two wounds perforating the heart. The 27th rib on the left side was fractured. Both the lungs under the gunshot wound had holes through and through and clotted blood was present in both sides chest cavity. 2 metallic shots were found from left side chest and right lung tissues. They were kept in a sealed cover and sent to the S. P. along with post-mortem report. In his opinion, 7 p.m. on 28.5.79 could be the probable time of death.

According to the opinion of the Doctor, injury Nos. 1, 2 and 8 could have been caused by Gandasa (a sharp cutting weapon) and injury No. 5 could have been caused by a firearm. As a cumulative effect of all the injuries, the deceased would have died almost immediately after the incident.

The accused in their statements u/s 313, Cr. P.C. have generally denied the allegations made against them. However, they have not disputed the fact that there was an enmity between the two camps.

Ram Dhani, accused in his statement u/s 313, Cr. P.C. has admitted that he and accused Lalji are real brothers. Chander (acquitted) is his uncle. But he had denied his affinity with accused Raj Nath and Damodar. He has admitted that there was a litigation between him and Sahdeo Yadav. A Criminal case was ending in the Court of J. M., Lalganj. He further admitted that in that case, the deceased Bachcha Singh alias Ram Dhani was a witness against him on behalf of Sahdeo Yadav and 29.5.1979 was fixed for evidence of the deceased. But he denies that he ever requested the deceased not to appear against him as a witness in the case. Other allegations have been denied by him. However, he further admits that on knowing the fact that a F.I.R. has been lodged against these accused, they disappeared from the village and, thereafter, surrendered before the Court subsequently. Additionally, he has said that there was enmity between him and the deceased. On the date of incident, some times during dark hours, Ram Dhani was murdered by certain miscreants and, thereafter, a fictitious case has been launched against these accused at the behest of Bhola Singh, P.W. 2 Ram Deo, P.W. 3 and Sahdeo and others.

Accused Lalji has totally adopted the statement made by Ram Dhani, co-accused (supra).

Accused Raj Nath has also made admissions as done by the accused Ram Dhani, (supra). He has additionally said that there was a litigation between his father and the deceased, Bhola, P.W. 2, Sahdeo and others for the last about 15-20 years. On account of that enmity, he has been falsely implicated.

Chander (acquitted) accused has denied everything including his affinity with the co-accused Ram Dhani Yadav.

Accused Damodar has denied everything and has made an additional statement that he had purchased jaggery (Gur) from the deceased on credit. When subsequently he went to pay the money, the deceased demanded higher rates from the one agreed upon at the time of the purchase because in between the price had inflated @ Rs. 8 to 10 per maund. He refused to pay the money at the enhanced rate. But paid at the rate agreed. Thereafter, he went to Bombay. On account of this enmity, he has been falsely implicated.

The accused had led no evidence in their defence, but had filed some documents to show the previous enmity between the two camps.

Exhibit Kha-2 is the order of the Assistant Consolidation Officer dated 12.12.67. There was a case registered against Jimmi and others. From 80/2 and 76/2, the names of the cultivators noted in the paper, were scored off and it was ordered to be registered as an abadi. Exhibit Kha-4 shows that Bhola Singh, Sahdeo Ahir, Ramdeo, P.W. 3, Sukhan and Jimmi Singh, referred to in Exhibit Kha-3 (supra), were ordered to pay a fine of Rs. 50 each in criminal case u/s 379, etc. In absence of any oral evidence the connection of these accused to the present names, has not been established technically. However, the factum of enmity of long-standing nature, is established. Kedar Singh was the father of Ram Nath Singh, accused. Exhibit Kha-5 is an extract of a Criminal Register showing that Ramdeo Ahir (father''s name not known) was ordered to pay a fine of Rs. 30 on a charge under Sections 323 and 451, I.P.C., read with Section 24 Cattle Act, on the complaint of Kedar Singh, (supra) on 19.12.1952. Exhibit Kha-6 is the copy of Gowsara, (Criminal Register) showing that Jai Karan Singh, Hari Karan Singh and Kedar (supra) along with others had been acquitted in the criminal case under Sections 147, 379, 323, 149, I.P.C. launched by Bhola Singh (father''s name unknown and not mentioned). Exhibit Kha-7 is the statement of Bhola Singh, P.W. 2 recorded on 23.11.1978, in which he has admitted that he had a litigation with Kedar Singh (supra) with regard to an agricultural land. He was appearing on behalf of Ramdeo, P.W. 3 Exhibit Kha-8 is the order of the Deputy Director of Consolidation dated 19.10.70 in Consolidation Revision Nos. 52, 57, 74 and 75 of that year, Ramdeo P.W. 3 v. Rajdeo and Ors. and Sahdeo, Ramdeo, P.W. 3 v. Rajdeo and Ors. belonged to the same family of Zistu and others. Rajdeo was the father of the accused Ram Dhani. Exhibit Kha-9 is the copy of the complaint lodged by Ram Dhani accused against Munnar, Jukhan, Bujhus s/o Ramdeo, P.W. 3 and Sahdeo relating to an incident dated 17.6.1979, in which Ram Dhani (father''s name unknown) was cited as a witness. Effort is made to show that Ram Dhani was the same person as Ram Dhani deceased. Exhibit Kha-10 is the copy of the complaint lodged by Jhulan Yadav, s/o Sahdeo Yadav against Ram Dhani, Lalji and Chander (acquitted) apart from Kashi Nath and Lallan s/o Chander (acquitted) relating to an incident dated 17.6.1976, in which Ramdeo, P.W. 3 and Ram Dhani (deceased) were cited as witnesses. Exhibit Kha-11 is an extract of C.H. Form 2-Ka showing that Plot Nos. 112 and 534 were originally owned by Bhola and others. Their names were struck off by the Consolidation Officer and the plots were recorded as an Abadi. So is the case with plot Nos. 415-Kha and 534. So this document is co-related and read with Exhibit Kha-8 (supra).

These documents as noted above, although have not been technically connected by leading oral evidence and they are liable to be rejected as being disconnected, but the learned Additional Sessions Judge has taken them into consideration and were are also prepared to take them into consideration. They prove one thing unhesitatingly that there was a history of long litigations and enmity between the two camps. The village was thus not a cohesive society. Rather, it had turned into a friction-torn assembly of persons, divided on multiple lines. The accused Ram Dhani was the Pradhan of the village at the relevant time. It necessarily means that the members of the other camp must have voted against him. This political tinge further flared up the enmity and had torn the feeling of oneness beyond repair. Unfortunately the recent village elections has introduced dirty politics and the relations between the villagers have deteriorated to such an extent that several murders and criminal offences have come routine occurrences these days. Suffice it to say that the present village, on the date of the incident was divided into two camps one led by Ram Dhani Pradhan, accused and the other by the deceased and other cohorts of his, resulting into loss of peace of the village.

In this background, the documents filed by the accused, read with the statement of others, as noted above, clearly indicate one thing that this was a friction-torn village and was totally faction-ridden not only in the near past but had a history of enmity since 1952 onward. Therefore, it is difficult to search for independent witnesses to appear in a case like this.

It is well-known and repeatedly emphasised by the Hon''ble Supreme Court in several decisions that when village politics has cropped in and the village is divided into two different camps, it is wild goose chase to search for independent witnesses. Because, firstly, few persons are left, who may not be influenced by the village politics and secondly, because nobody will turn out to be a witness for either side because of the fear of the enmity, which is likely to be created between him and the persons against them he deposes. So the earlier standard of search of independent witnesses, has to be modified with the advancement of the society, which is going on political lines, which further deteriorated recently on account of introduction of caste in the village politics. The learned lower court has rightly taken this factor into consideration.

The recent standard of judgment has to be on these lines. Therefore, we have to see whether the witnesses who have appeared before the Court, was natural witnesses or whether they are telling the truth. Their statements should not be discarded simply because they, are one way or the other, related to the either camp.

The injuries noted by Dr. Gupta (supra) in his statement, have been recorded earlier in this part of the judgment. The statement of Dr. Gupta, P.W. 5 both in the Examination-in-Chief as well as in the cross-examination, coupled with the statement of accused Ram Dhani, does not leave any doubt in our mind that the incident took place on 28.5.79 in the evening not during dark hours, because Ram Dhani (accused) clearly admits in reply to question No. 17 that Ram Dhani (deceased) was done to death by the miscreants in the same night in dark hours. He does not dispute the place of occurrence in his statement. Similarly the statement made by the I.O. that he recovered the dead body from the spot along with blood-stained earth and simple earth and collected other things of importance from the place of occurrence, has not been challenged seriously to the I.O. either. So is the case with the statements of other two P. Ws., Rai Prakash, Bhola Singh and Ramdeo, to which we shall be referring in detail later on.

This way, the place of occurrence, time and date are not seriously challenged in this case Dr. Gupta''s statement further puts a seal on this fact that injuries 1 to 8 were caused by pharsa and injury No. 9 was caused by a firearm. These are the weapons mentioned by the complainant, as the weapons of attack, in the present case. Dr. Gupta has further opined that these injuries were sufficient in the ordinary course, to cause death and the death could have been instantaneous and the death could have been possible on 28.5.79 at about 7 p.m. also. On these points, Dr. Gupta has not been challenged. The family challenge to his evidence is as to whether the injuries could have been caused from right side or left side or as to whether the deceased was standing at that time and so on. Nay some minor discrepancies appearing in the statement of this witness, have been highlighted on this basis. But one thing is forgotten by the learned Counsel that the entire statement made by the Doctor, has not been sought to be read and, secondly, it has been forgotten that the deceased before death was not a lifeless statute but a living creature of nature. When injuries would be caused, he shall cry and make physical movements, resulting in the actual strikes at the places originally targetted and aimed at were missed.

In paragraph 8 of the cross-examination, of Dr. Gupta it has been put to him and answer obtained that injuries 3 and 4 were caused from front and injuries 6, 7 and 8 were caused on the head. They would not have been necessarily caused from right or left side. The Court naturally interfered and in the interest of justice, put a question as to whether the deceased might have been moving his neck either way and in that case, injuries would have resulted. The Doctor replied in the affirmative. This simply shows that natural happening of the incident. As the strikes shall fall upon the body of the deceased, he will try to avoid, although helplessly but he would be certainly moving his organs head, neck etc. Again the counsel tried to mislead the Doctor by putting question as to whether it was necessary for causing injuries 1 to 6, by complete turn of neck either way. He said that it was impossible to say as to whether the neck and head completely or partially were turned. Then another question was put as to whether after receiving the injuries No. 1 to 6, the deceased would have remained in a standing position. The Doctor says that it was possible either way, i.e., he could have fallen or he could have remained standing for some time. It was also possible that after receipt of some injuries, the deceased might have fallen down. He says that normally horizontal injuries could not have been caused while the deceased remained standing. This way, the medical evidence on the record, does not help the accused in either way.

Rather, the post-mortem report, as prepared by Dr. Gupta, clearly supports the prosecution story regarding the date and time of occurrence.

According to the prosecution, the death was caused on 28.5.79 at about 7 p.m. The post mortem was conducted on 29.5.79 at 4 p.m., i.e., within about 21 hours of the death. Rigor mortis was absent from the upper limbs and present on the lower limbs. That clearly shows that the incident took place about 23 hours earlier. That is why the Doctor says that the death might have taken place about 1 day earlier and a difference of 3-4 hours either way, was just natural. There was another confirmation. The stomach was empty and the faecal matters and gases were present in the intestines. According to the prosecution, the deceased had started from the village at 2.30 p.m. for Lalganj. There is no evidence on the record to show that he had taken anything in between. But he must have taken some food during the lunch hours before leaving for Lalganj. So the time of incident is also proved from this fact. One thing is also clear that he had not eased out before death. Thus, the post-mortem report prepared by Dr. Gupta, coupled with flimsy or peripheral cross-examination and the statement obtained therein, simply prove that the prosecution case regarding the time of occurrence, i.e., about 7 p.m. on 28.5.1979, has not been seriously doubted. Rather, it is proved that the incident took place on the date, time and place as mentioned by the prosecution. As per Panchang, the sun set on 28.5.79 at 6.45 p.m. It is a common knowledge that even after sun set, there remains sufficient light in the nature of twilight for another 40-50 minutes.

Another important factor is that the accused are of the same village and they were well-known to the witnesses from before. Therefore, even scanty light, they can be easily identified. This is a plus factor in favour of the prosecution and the accused cannot escape the consequences of their act by saying that the accused could not have been easily identified and benefit of doubt of this fact should go to them. We do not agree with the arguments advanced by the learned Counsel.

Enmity is a double-edged weapon. It cuts either way. It has to be seen in the light of the evidence on the record as to whether this cuts on the side of the accused. We do start with this admitted fact that there was a long-standing enmity between the parties. So the accused could have committed the murder, whose enmity was further aggravated by the fact that in a criminal case, the deceased was to appear as a witness on 29.5.79 against accused Ram Dhani and others. The deceased was cited as a witness of fact. Therefore, his statement would have put a seal on the fate of the accused, including Ram Dhani, Pradhan, accused. Accused Ram Dhani, Lalji and Chander belonged to the same family. Accused Raj Nath Singh and Damodar were closely affiliated with Ram Dhani Pradhan. Not only this, even Damodar, who is a resident of the adjoining district does not say that to the witness he was not known from before. He accepts the case of enmity with the deceased alleging that the deceased was demanding a higher price for the jagerry (Gur) sold by him earlier, on account of inflation of price. Therefore, although he may be belonging to a different and adjoining district but his visit to the village in dispute, is not disputed by him, nor he says that the witnesses did not know him. This way, all the accused had a common platform to unite and assemble and this platform was certainly directed against the deceased. They had multiple grievances against him, may be rightly or wrongly, justly or injustly, sufficiently or insufficiently. But they had a grouse against him and this way, they committed the murder of the deceased. Hence the argument that they have been falsely implicated, does not stand to reason and the enmity is going to cut towards the accused''s side and not against the other side.

The factum of murder is admitted. The time of occurrence is proved to be around 7 p.m. So it was natural for the witnesses of the nearby locality, including, those who have been examined in the Court, to have seen the occurrence and identified the culprits. Under these circumstances, it is difficult to believe that instead of naming the actual culprits, who were seen and known, while committing the crime, the real culprits would have been left scot-free and in their place, the present accused have been implicated on account of sheer enmity. It is against human nature. There is no evidence on the record to prove that the P. Ws. would have done so or they had any special love for the real culprits, who have been allowed to go and the present accused have been implicated in their place. It has come in the knowledge of the Courts that along with actual culprits, some innocent persons are also roped in on account of some ulterior motives. But those cases have yet to see the light of the day, where instead of known and actual culprits, somebody else has been surrogated. Therefore, the arguments advanced by the learned Counsel has been rightly rejected by the learned Additional Sessions Judge that the real culprits have been left scot-free and substituted by the present accused, on account of sheer enmity.

After ignoring this argument advanced by the learned Counsel, we agree with the learned trial court''s view that the real culprits alone can be implicated in such a case and, therefore, the long-standing enmity between the two camps had resulted in the murder of the deceased at the hands of the present accused alone. Therefore, the argument that on account of enmity the accused had been falsely implicated, does not cut much ice. We also ignore this argument.

Thereafter, we proceed to analyse the prosecution evidence on the record very critically.

Another important fact in this case is that the F.I.R. was lodged without delay and waste of time. The incident took place around 7 p.m. After that a commotion would have started. Several other persons would have reached there. Ladies of the families might have started crying. Several lip sympathisers would have arrived and enquired about the incident. The witnesses would have been forced to repeat their story to them again and again and this way, a lot of valuable time could have been wasted. Thereafter, good sense would have prevailed and the thought would have come to the mind of the complainant and others that the machinery of law should be moved and thus the marathon journey of the complainant from the place of occurrence to the police station had started. He had to cover a distance of about 10 kms. on cycle. He says that he orally narrated the incident to the I.O. but he was asked to bring a written F.I.R. although the I.O. has denied it but it has become a natural conduct these days. Allegations are made that the police did not faithfully record the F.I.R. and did not include the names of all the accused or the facts the complainant wanted to say. Rightly or wrongly, the police officers have been facing enquiries on this point. Therefore, they have been insisting upon in order to bind the complainant, to the allegations made by him. They should bring their version in writing so that at a later stage they may not say that whatever they wanted to say and indicate in the F.I.R., was not done by the police officer, whosoever, he might be, the learned Additional Sessions Judge has taken this factum into consideration and has rightly observed that the complainant''s version is correct that first orally he narrated the version to the I.O. and thereafter, he was asked to bring a written F.I.R. and he wrote the same and thereafter the investigation started. We find no force in the argument of the learned Counsel that much should be read in between the lines and the complainant''s version can be ignored on this ground alone.

P.W. 1 Jai Prakash Singh states that all the three accused Ram Dhani Pradhan, Chander and Lalji are of the same village. Raj Nath Singh is a friend of these persons. Accused Damodar has married his daughter in this village with Bhujarath and he is very friendly to Ram Dhani Pradhan and was on visiting terms with the Pradhan, somuchso he visited Ram Dhani Pradhan for 4-5 days every month. This statement has not been challenged. Thereafter, he describes the prosecution case as it happened. He further says that he went to the police station on a cycle and lodged the F.I.R. in paragraph 5 of the cross-examination on behalf of Damodar, he says that Budharath had got some land allotted by the Pradhan of the village. It adds further his affinity towards Ram Dhani Pradhan. In paragraph 6, he says that the distance between his village and the village of Damodar is only 6-7 kose, i.e., only 20 kms. He denies that the deceased had any dealing with regard to jaggery (Gur) with Damodar and there was an incident of quarrel between them on the price to be paid. In absence of any other evidence on the record this version of Damodar is rejected by us as totally false and fake tantord just to escape the consequences of the crime.

In paragraph 8 of the cross-examination advanced on behalf of other accused details have been put regarding enmity existing from 1952 onward. The reply has been confusing or totally denied at times. We do not want to enter into this episode because we admit that there was a strong enmity between the parties and that has resulted in the unfortunate murder of the deceased at the hands of the accused.

Regarding refusal by the deceased to appear as a witness against Ram Dhani Pradhan, this witness has been cross-examined. He admits that Ram Dhani Pradhan had asked another witnesses Sarju to desist from appearing against him in the criminal case. But as yet, Sarju has not been attacked. On this basis, it was argued that if Sarju had not been attacked, the deceased would also not be made a victim of the crime. We do not agree simply because we do not have the plan of the accused before us, which was cloistered in their bosom, that might have trapped Sarju. Secondly, there might be a situation that once the deceased went to appear, Sarju was himself avoiding to appear in the Court. There may be several other cases. The killing of the deceased might have sent proper signal to Sarju also. We do not want to go into this episode. But we are simply rejecting the same on the basis of the aforesaid reasoning.

In paragraph 11, he says that in his presence, Ram Dhani twice or thrice requested him not to appear as a witness against him. But he repeatedly declined his requests. In paragraph 12, he says that about 11/2 days prior to the incident on his refusal not to appear as a witness, accused Ram Dhani had told him that it was his last warning to him. If he did not abide by his request, he shall reap the consequences thereof, upon which the deceased had told that he shall appear as a witness and the accused might do whatever he liked. At the time of giving this warning, several other persons, including the ladies would have been present, who might have heard the warning. This statement was challenged as it was not clearly specified in the F.I.R. nor detailed u/s 161, Cr. P.C. by this witness. We want to make it clear that the F.I.R. is not an encyclopaedia of all things, nor the statement to the I.O. is final as justice. The I.O. puts question according to his knowledge and experience, which is certainly of much lower standard than that of a senior counsel, who cross-examines him. Hence the standard of discretion with both the persons, cannot be the same. At the time of lodging the F.I.R., the complainant is normally confused as very heinous crime against his near and dear one had been recently committed. Therefore, he does not give the details. So is the case with the I.O., who puts questions u/s 161, Cr. P.C. The learned trial court has observed that the I.O. had a soft corner towards the accused in this case. We find force in the observations of the learned trial court. Therefore, much could not be expected from the I.O. Even if we hold that the I.O. had no soft-corner towards the accused, we cannot equate his wisdom with that of the learned Counsel, who has cross-examined the witnesses and has argued the case, before the trial court. Shorn of all these minor and insignificant details, we find that the statement of the complainant on this point cannot be rejected on such a flimsy ground.

The details of cross-examination has been challenged on the ground that several other persons of the locality, who might have witnessed the occurrence, have not been examined. Therefore, adverse inference should be drawn against the prosecution. We have already observed above that in the so-called faction-ridden village, the witnesses would try to avoid visiting Court hearings in order to avoid the give of culprits. Therefore, their non-examination by the prosecution, does not make the prosecution case less credible. Nay, law is that the evidence of the prosecution witnesses cannot be rejected simply because some others, who had also seen the occurrence, have not been examined. The words of the witnesses have to be examined on their own worth and not on the basis of the fact that several other persons could have also supported the prosecution case but were not examined. The learned lower court has rightly taken into consideration this fact.

It was further argued that when the complainant and witnesses were present, the accused might have tried to harm them as well. P.W. 1 Jai Prakash states at page 7 in paragraph 17 that all these witnesses were empty-handed. Therefore, no effort was made by them to attack the accused. It simply shows that these empty-handed persons would have kept themselves at a sufficient distance from the accused so that they might not be victimised at their hands. But that does not mean that the witnesses would not have seen the occurrence. Because the deceased was his very near and dear one, so he will take double precaution. Firstly, he will ensure that he sees the incident clearly but at the same time he shall also try to keep himself away from the accused. So that he might not be attacked in addition to the victim, and he could have escaped if need arose.

Another ground of attack was that only Lungi and Bandi were found on the person of the deceased by the I.O. as well as the Doctor. Therefore, it was argued that the deceased had not gone to Lalganj market otherwise he would not have been so shabbily dressed. In reply to this question, the complainant points out in paragraph 20 that his uncle deceased was uneducated. Therefore, he lacked sophisticated sense of sartorial virtues. Secondly, he says that since the patras (wooden planks) used for slabbing the roof were to be returned by the deceased at Lalganj, therefore, he did not dress properly, as it was likely to soil his clothes. We find that this explanation is correct and acceptable. Not only this, the standard of reaction or behaviour of the villager, specially uneducated, cannot be the same as that of an urbanite.

Another point of attack launched against this witness was that he did not show the place of his sugarcane field to the I.O. nor the I.O. has shown in his map. Therefore, his evidence should be rejected. We do not find any substance in this argument. The learned trial court has also rejected this argument and has given cogent reasons for the same. We are in total agreement with the learned trial court''s view. Much importance could not be given to the fact that the deceased had gone to the market because, admittedly his murder was committed near his village.

In paragraph 24, he has rightly said that hearing the alarm raised by the deceased, he and other witnesses proceeded towards the place of occurrence and saw the incident. But it was not correct to say that the moment Damodar and Chander (acquitted) caught hold of the deceased, he reached the spot. It would have taken some time to arrive at the place of occurrence--even a minute or so, by the witnesses that is quite natural. It is not a case of hit and run. Rather, several assaults were made frompPharsas, including attack by firing. Therefore, it cannot be said that the witnesses would not have seen the occurrence with their own eyes. Not only this, the fact is that alarm was heard by the witnesses so, they would have certainly rushed to the place of occurrence. So this way, as there was the incident originating from the place of occurrence while proceeding towards the victim they witnessed the assault. Therefore, it is not a case where the witnesses have said that they had seen the incident from a fixed place while others reached the place when they heard the alarm raised by the deceased. Even while running towards the place of occurrence, the witnesses could easily see the assault with their own eyes.

As observed earlier, the accused were known to the witnesses from before. Much ado was expressed by saying that the complainant would not have gone to the police station all alone. Rather he must have been accompanied by others. We do not find any force in this argument. A person, who had lost his real uncle, should certainly not wait for the others to accompany him before he proceeded to the police station. Rather, he would try to move the machinery of law at the earliest opportunity available to him without such wait. Therefore, the imaginative argument of the learned Counsel is not of much help to the accused. It is categorically stated by him that no person advised him not to go to the police station in the dark hours alone. He has denied the allegation that the F.I.R. was lodged on the following day at the behest of the I.O. He says that he has also written several F.I. Rs. regarding the incidents in many other cases by the village. That appears to be quite natural. He says that he was studying in the Secondary Classes at that time. However, he refused to rewrite the F.I.R. in the Court. But it does not mean that he could not write the F.I.R. as he was studying in Class X Ith at the time of incident.

It was finally argued that when Chander and Damodar had caught hold of the deceased by his hands, the other accused might not have assaulted with pharsa as it was likely to cause harm to these accused as well. We do not agree. Moreover, initial overpowering by the accused, would have quite shortly prevented yet several other blows which were inflicted upon the deceased with pharsas making him immobile. Then these accused, who are catching hold his hands, could have left him and making the field quite open and wide to the accused, who were wielding pharsas upon the deceased. He further states that Raj Nath fired from the pistol towards the deceased in this marpit. This statement of the witness finds support from the post-mortem report prepared by Dr. Gupta, Injury No. 9 in the post-mortem report, is a fire-arm injury of entry circular in shape 2 cm. ? 2 cm. ? cavity deep tattooing and blackening were present around the wound also on the right side back of right shoulder. Therefore, the statement of Jai Prakash Singh that Raj Nath accused fired from a close range at the deceased, stands corroborated. In paragraph 42, the complainant has stated that Raj Nath fired at the deceased from a distance of 11/2 feet. This may be a little more even. But at least not more than 4-5 feet. Because blackening and tattooing would not have resulted around the injury No. 9 if the injuries were caused from a longer distance. Thus, the medical evidence supports the statement of the complainant. It also proved that he saw the incident with his own eyes.

In paragraph 42, he says that he and other witnesses did not chase the culprits while running away because they were all empty-handed. Whether the chase was for 12-15 yards or a little more or less, as it has come in the evidence of other witness, that is quite immaterial. But the learned Counsel cannot be allowed to make a mountain of a mole hill because photogenic and pictorial evidence cannot be expected from a living person. Nay, Courts showed discourage parrot like version.

Strangely enough, a suggestion was made to P.W. 1 in paragraph 43. In this paragraph, he says that it was not correct to say that the accused caught hold the deceased from behind. At that time Ram Dhani and Lalji had pharsa and Raj Nath Singh had a katta. This way, the presence of the accused on the spot is admitted. In paragraph 44, it was suggested that the deceased was returning from his field around 8.30-9.00 p.m. and at that time in the dark some miscreants killed him. This way, impliedly the time of the occurrence between 8.30 and 9 p.m. on that date and place is admitted. He has also denied the suggestion that he did not see murder being committed with his own eyes. The statement of the witness has to be read as a whole, containing admissions as well as denials. This way, from the suggestions put to P.W. 1, the prosecution case is almost admitted regarding the date, time and place of the occurrence. After a close analysis of the statement of P.W. 1 Jai Prakash Singh, which finds corroboration from prompt F.I.R. and post-mortem report, the prosecution case is established and no further corroboration is needed. The statement of Jai Prakash is singly sufficient for recording conviction in this case as his presence of the spot has been proved. We have taken precaution while appreciating the evidence of the P. Ws. that the witnesses are inimical to the accused. Therefore, closure watch and scrutiny were made by us. We find ourselves in agreement with the learned trial court.

P.W. Bhola Singh also at his sugarcane field. When he heard the alarm by the deceased, he reached the spot without loss of time and saw the incident with his own eyes. He says that he was in the Army in the First World War in 1914-18 A.D. He admits that he is not literate. Some documents suggest his enmity towards the accused. He has denied the allegations. But taking the worst case, his statement on this point of enmity, is not correct, we hold that since his presence is established and his statement finds corroboration from other evidence, the same cannot be rejected simply on the ground of minor discrepancies here and there. Not only this, we have started the scrutiny from this angle also that although he is inimical to the accused, he has given correct version of the prosecution case, which finds corroboration from the medical evidence of Dr. Gupta, P.W. 5. In paragraph 13, he admits that it is correct to say that the place of occurrence was not visible from his house. But his presence at his sugarcane field, which is about 50 paces, is established by his evidence. It is common knowledge that the villagers go to their fields to watch their crops from being damaged by animals. He has clearly stated in paragraph 14 that he had no fixed programme about his visits to his fields. But it was quite usual for him to go there. He cannot be termed as a chance witness as argued by the learned Counsel. In paragraph 16, he says that the wife of the deceased did not come to the spot because she had recently delivered a child and was in the state of convalescence. It is quite natural. He further states in para 16 that he repeated his visits several times in the night.

Thus, we find ourselves in agreement with the observations of the learned trial court that despite of his being partisan and inimical his presence cannot be doubted on the spot. Therefore, he could have seen the occurrence from his field quite easily, and also while running towards the place of occurrence.

P.W. 4 Ramdeo has also stated that a little before the sun set on that date the occurrence took place. Sahdeo is his real brother. He was cleaning grass at his house when he heard the alarm. It is quite natural, as admitted by him in paragraph 8, that the place of occurrence was not visible from his house. But after hearing the alarm, he would certainly have moved towards the place of occurrence. So, the place of occurrence was visible from his house or not lacks total significance. It is a common knowledge that after hearing the alarm, he would rush towards the place from where the alarm was coming. There is nothing unnatural in it. The learned Counsel has argued on a premise that even after hearing the alarm, the witness did not move for the place of occurrence. Therefore, his evidence is inadmissible. This is not correct and has rightly been rejected by the learned trial court. We also ditto that conclusion. In paragraph 10, he has denied the suggestion that his eye sight was weak. In para 10, he further says that he had no preconceived plan for proceeding to the place of occurrence empty-handed. In the hamlet of Kahars, no man was available at that time. In para 12, he says, that a little after the murder, a lantern was brought from the house of victim. Thereafter, he left the spot. He repeated his presence on the spot in the night of occurrence. It was equally relevant and natural. There was always an apprehension that the dead body might be removed from the place of occurrence by the accused or their family members in order to blunt the death of the prosecution case. It always happens that after committing the crime, the culprits try to destroy the evidence against them. In a murder case, the corpus is, the most important evidence to prove the prosecution version. That is why attempts are made by the culprits to remove the dead body from the place of occurrence. That is why the members of the family of the deceased try to secure the dead body till it is taken in possession by the I.O. and other police officers. In paragraph 13, he says that he went to the place of occurrence again in the night. There was no light and Jai Prakash had already left for the police station. This way, it supports the prosecution case. Jai Prakash rushed to the police station reasonably after some time after the occurrence. In paragraph 14, he says that the dead body left the place of occurrence on the following day at about 10 p.m. On this point, there is minor difference between him and other witnesses. But that has to be ignored because the post-mortem was conducted on 29.5.79 itself at about 4 p.m. In paragraph 16, he has denied that there was any eye-witness of the occurrence. In paragraph 17, he says that he knows none except Damodar in his family, because he had married his daughter in the same village. So, naturally he might be coming off and on enabling the witnesses to correctly identify him as also on account of the fact that the witnesses knew him from much before from the date of occurrence. He candidly admits that to his knowledge there was no direct enmity between Damodar and the victim. On this ground, the learned Counsel urged that his evidence should not be accepted. We do not agree. If the witness to implicate other persons of the family of Damodar, he could have easily done so. But he has stuck to the truth and said that Damodar did participate in this marpit. That again shows that the witness is not trying to eschew the truth.

Thus, after a critical analysis of the evidence of the P.W. 3, Ramdeo, after taking into consideration the factum of enmity, we find ourselves in agreement with the learned trial court''s observation that the presence of Ramdeo at the place of occurrence, was correct and natural. This way, the prosecution has successfully proved its version and involvement of the accused in this crime.

Certain omissions and contradictions occurring in the statement of this witness u/s 161, Cr. P.C. and his version in the trial court, have been unnecessarily highlighted. They are being ignored as done by the learned trial court.

The I.O. Sri Rana, P.W. 4 states in para 9 that the distance of the village of occurrence (Deogaon) is about 45 kms. from Azamgarh and occasionally buses ply on that route. In paragraph 10, he says that he directed to take the dead body from the place of occurrence on 29.5.79. But he could not remember as to the exact time actually when the dead body left the place of occurrence. The I.O. had to do a lot of work in the investigation process. Therefore, after entrusting the dead body to the constable concerned, he involved himself in other parts of the investigation process. He had to search for the accused also. Therefore, it cannot be said on account of the fact as to when the dead body left from the place of occurrence and slight contradiction occurring in the I. Os. statement, the case should be ignored. His statement cannot be helpful to the accused. Regarding the fact that the documents reached the office of the Circle Officer on 30.5.79, he pleads ignorance. But he says that they might have been produced before the Circle Officer at that time on 30.5.79. The Circle Officer had a lot of work to do. But it is not proved that at the time of receipt of the documents in his office, he was personally present. The Circle Officer has to visit several places in his zones. Therefore, his presence all the 24 hours in the office, cannot be expected. In para 11, he says that he learnt that the deceased had gone to Lalganj on account of some demestic work. But what was that specific domestic work, was not known to him. On this point, the learned Counsel has urged that the I.O. is not telling the truth and the prosecution case is not correct because the actual domestic work has not been ascertained or proved, regarding which the deceased had left his village for Lalganj. He says that he did not deem it essential to enquire into this point and we think rightly so. The actual work with the deceased at Lalganj was not known to him nor to other persons of the family. This is not a fatal defect in the prosecution case. In para 11 at page 3, he says that the complainant did not show his sugarcane field to the I.O., which he had gone to see and supervise on the date of occurrence. The I.O. should have specifically shown that place in his site-plan. But he did not do that. For this fault of the I.O., the prosecution cannot be punished by acquitting the accused.

Whether some constables had reached the spot before the arrival of the I.O., or not, was again another point of attack by the learned Counsel. The constables might have come and taking rest somewhere near the place of occurrence and they might not have been specifically seen by the I.O. in that light. But this is an insignificant circumstance resulting into nothing in favour of the accused. For how many paces the culprits were chased by the witness, is another question of attack. It was crying over a spilt milk. Hence of no relevance to the accused. Hence rejected. In para 21, he says that the dead body was placed on an Ekka at about 7.30 a.m. Some witnesses have said that it left at about 10 a.m. We find no force in this argument because as observed earlier, after entrust in the dead body, the I.O. busied himself on other parts of to investigation. The dead body was, thereafter, entrusted to the custody of the constables, who were directed to take the same for post-mortem examination.

In Challan Lash, Exhibit Ka-6, the I.O. has not shown the actual time of the despatch of the dead body from the place of occurrence. That is of no significance. In para 25, he says that in the morning at about 5.40 a.m. Dak from the police station was normally sent to the Head Office at Azamgarh. The actual time has not been noted by him in Exhibit Ka-6. That might be due to inadvertence or negligence on the part of the I.O. Special report might have also been received in the police office on the same day. He cannot say as to whether the copies of the G.D. and G.D. were received at the office of the Circle Officer.

It was urged by the learned Counsel that the criminal case, in which the deceased had to appear on 29.5.79, was not a very serious case. Therefore, the accused would not have committed such a serious offence like murder. We do not find any force in this argument. The reason is simple. In the long history of litigation and enmity right from 1952, even an insignificant incident could have flared up into a serious offence. Every criminal case involves sending of the accused to the Jail. Therefore, every accused tries his best to see that even minor jail punishments are not awarded. And, lastly, gravity and seriousness of the offence is judged by the person concerned, which is based on his own perception of the case. The accused try to avoid the minimum punishment for the crimes committed by them. That is why, they wanted that the deceased should not appear as a witness against them. We do not see any reason to disbelieve the observations of the learned trial court on this score. Not only this, in a case based on ocular testimony, importance of motive is historic in nature. Even without motive being proved, the occurrence could take place and the prosecution case might be believed, as it has been abundantly proved from the oral, documentary as well as circumstantial evidence noted above. It has been rightly observed by the learned trial court, in para 13 of its judgment, as follows:

It was evening time and their presence at the fields and in front of the houses appears to be very natural and probable.

Hence they cannot be branded as chance witnesses. When motive is proved, its (adequacy) is not relevant.

In paragraph 36 of the judgment, the learned trial court has observed that the copy of the statement of deceased Bachcha Singh dated 11.4.77 filed by the prosecution shows that he was examined in that case u/s 202, Cr. P.C. The case was listed for further evidence on 29.5.79, i.e., the following day of the occurrence of the murder. Jai Prakash has also stated that except that Bachcha Singh was to appear as a witness in that case, there was no enmity between him and the accused''s family. This may be an attempt to minimise the importance of occurrence. Since the deceased was a witness of fact, therefore, his statement in the Court on 29.5.79 might have sealed the fate of the accused in their case. Hence they would take every possible precaution to ensure that the deceased did not appear against them in the criminal case on 29.5.79 and when the deceased did not relent, they thought of eliminating him altogether as they anticipated that with the absence of the sole independent witness in the case, they are bound to be acquitted. That is why, they ensured the liquidation and elimination of the deceased on 28.5.79.

Thus, after a thread-bare analysis of the prosecution evidence, statements of the accused u/s 313, Cr. P.C. and appraisal of very intelligent arguments advanced by the learned Counsel, we find that the prosecution case is established beyond a shadow of reasonable doubt against all the accused.

At this very juncture, we may examine the order of acquittal passed by the learned trial court of accused Chander, which is contained in paragraph 44 of the judgment of the learned trial court, which runs as below:

However, the participation of accused Chander in the case is a bit doubtful. According to him, he is 70-80 years of age. Though it may be an over-statement, but I think that he is too old to participate in such a murder. It is not alleged that he used any weapon in the commission of the murder. All that is said is that he and accused Damodar caught hold of the deceased. He was arrested the next date. This makes his statement acceptable that he did not abscond and remained at his house. Therefore, his participation in the commission of the murder, is not fully convincing.

The learned trial court has observed that the participation of Chander is a bit doubtful because he gave his age as 70-80 years on 14.7.80. The learned Court did not believe his age to be 70-80 years by saying that it may be an over-statement. On this laconic ground, the learned trial court found that he did think Chander as too old to participate in such a manner. It is not alleged that he used any weapon in the commission of the murder. All that is said is that he and accused Damodar caught hold of the deceased. He was arrested on the next day. This makes his statement acceptable that he did not abscond and remained at his house. Therefore, his participation in the commission of the murder, is not fully convincing. The learned trial court has acquitted him on his flimsy ground. He has not recorded a categorical finding that Chander was not present on the spot. Catching hold of the hands of the deceased, is not less important than committing the murder itself because if Chander and Damodar had not caught hold of the deceased, he might have tried to run away and might have saved his life. This way, simply because Chander had merely caught hold of the hands of the deceased, it cannot be said that his action was less serious than that of the actual assailants. Hence on this ground Chander could not have been acquitted. It is not the age but the actual health condition of a person that shows whether he could have committed the crime. A young man ailing and suffering from several diseases may be much less effective than an old man of 70 years, in good health, in actual commission of the crime. Moreover, the general health of the village people is quite sound because they live in natural environment, take unpolluted food and water and breathe in unpolluted air and always do physical work, which keeps them fit. Thus, we find that Chander''s participation in the crime, is very much established and he should not have been given benefit of doubt, resulting in his acquittal. Since about two decades are going to pass between the date of occurrence and date of this judgment, therefore, we do not deem it proper to issue notice to the accused Chander as to why his unjustified acquittal should not be quashed.

After taking into consideration the entire evidence and circumstances on the record, we conclude that the prosecution case has been proved to the hilt against all the accused persons and the order of conviction has rightly been passed by the learned trial court, which is upheld by us.

Thus, both the appeals fail and the judgment and order passed by the learned trial court is upheld and confirmed.

The appeal of the accused-Appellants Ram Dhani and Lalji is abated on account of their death. But the remaining Appellants, namely, Raj Nath and Damodar shall be taken into custody at once to serve out the sentence. Their bail bonds and surety bonds are cancelled. The learned C.J.M. shall ensure arrest of the aforesaid Appellants by issuing non-bailable warrants against them and intimate this Court as to whether these accused-Appellants were sent to jail by him.