Ramvir & Ors vs State Of U.P

RAMVIR & ORS. .... Appellants

Versus

STATE OF U.P. .... Respondent

JUDGMENT

Dr. Mukundakam Sharma, J.

1. The appellants herein are the real brothers who have been convicted

and sentenced under Section 302 of the Indian Penal Code (in short "the

IPC") and sentenced to undergo life imprisonment. The Trial Court found

the appellant No. 1 herein, Ramvir guilty of the offence punishable under

Section 302 of the IPC whereas the appellant Nos. 2 and 3, namely, Ranpal

Singh and Chatar Singh respectively were found guilty of the offence punishable under Section 302 IPC read with Section 34 IPC and each of

them was sentenced to undergo life imprisonment.

2. The First Information Report (in short "the FIR") reveals that on

17.04.1978 at about 6.15 p.m. when the deceased Yashpal while going to his

Gher was surrounded by the appellants namely Ramvir, Ranpal Singh and

Chatar Singh near the field of Nek Ram. After surrounding the deceased,

Chatar Singh and Ranpal Singh embraced the deceased while Ramvir gave a

knife blow on the chest of the deceased. The deceased cried out upon

which the complainant and the witnesses reached the place of occurrence.

On seeing the complainant and the winesses, the appellants fled away from

the place of occurrence. Deceased Yashpal instantaneously died on account

of the injury received.

3. The prosecution proved the motive of the accused - appellant against

the deceased Yashpal stating it to be a case of election rivalry inasmuch as

election of the Society had taken place in the village in which three

candidates contested the election against the complainant. The deceased

Yashpal took active part in the election and during the campaign an

altercation had taken place between the deceased - Yashpal and the appellant

2 No. 1 Ramvir upon which Ramvir threatened to kill the deceased and since

then the appellants were having enmity with the deceased - Yashpal.

4. The aforesaid FIR was lodged immediately at the Police Station after

the occurrence. As already noted the incident took place at about 6.15 p.m.

whereas the FIR was lodged at 7.35 p.m.

5. On receipt of the aforesaid FIR the Police started the investigation

during the course of which the statement of the witnesses were recorded and

on completion of the investigation a charge sheet was submitted against all

the accused appellants. At the time of framing of the charge, the accused

pleaded not guilty and claimed to be tried.

6. The Sessions Judge framed the charge against appellant - Ramvir

under Section 302 IPC while the other two accused, namely, Ranpal Singh

and Chatar Singh were charged under Section 302 read with Section 34 IPC.

During the trial eight witnesses were examined including PW-1 (Giriraj

Singh), PW-2 (Rajpal), PW-3 (Nek Ram) and PW-4 (Deopal Singh), who

are stated to be the eye witnesses of the occurrence. All four of them in

their examination-in-chief have supported the prosecution version of the

case. The said witnesses were also cross-examined at length by the defence.

The other witnesses examined are of formal nature. PW-5 (Dr. Aqil

3 Ahmed) who conducted the post mortem examination of the deceased

Yashpal found the following antemortem injuries:-

"Star wound 1 =" X 1" (chest cavity) on right side chest 2' above right nipple at 12 O' clock position."

7. PW-6 (S.I. Mahendra Singh) and PW-7 (S.I. Ranvir Singh) are the

investigating officers whereas PW-8 (Jag Mohan) is the constable who had

taken the dead body for post mortem examination. The accused was

examined under Section 313 of the Code fo Criminal Procedure, 1973.

8. The defense also examined one witness on his behalf namely Sri

Krishna Kumar Bhardwaj as DW-1. The aforesaid witness was examined

by the defense with a plea that the FIR was ante timed and for that reason

the special report was sent late to the District Magistrate, Bulandshahr.

9. The learned counsel appearing for the appellant has raised many

submissions before us. His first submission was that the FIR is ante timed

and that the time of incident has also been changed by the prosecution to suit

their purpose. It was also submitted that all the witnesses examined by the

prosecution as eye witnesses are chance witnesses. It was further submitted

that the semi-digested and digested food was found in the stomach of the

deceased which indicates that the food was taken about 3-4 hours prior to

4 time of incident and therefore, the incident must have happened at about 11

p.m. in the night and not at 6.15 p.m. as alleged by the prosecution. We

have considered the aforesaid submissions.

10. We may state here that similar submissions were also made before the

learned Sessions Judge as also before the High Court which were considered

and were found to be baseless by both the courts below. So far the

contention that the FIR is ante timed, we find no reason to accept the said

contention. According to the prosecution, the incident happened at about

6.15 p.m. and the same was reported to the police at 7.35 p.m. which was

registered and therefore there was no question of ante timing of the FIR.

The eye-witnesses examined in the trial cannot be said to be the chance

witnesses as they were the residents of the same village and at about 6.15

p.m. these eye witnesses were moving around, some were going to their

agricultural field while some were coming from their respective agricultural

fields. The incident had happened near a sugarcane crop which is near to

the agricultural field. The time 6.15 p.m., being broad day light, the presence

of the eyewitnesses at the place of occurrence is quite natural. The

witnesses being the residents of the locality, their presence at the place of

occurrence could not be considered unnatural. They had no cause to give

false evidence. Accordingly, their testimonies cannot be discarded. So far as

5 stomach of the deceased containing semi-digested and digested food is

concerned, no suggestion was put by the defense to prove or elicit the

information regarding the exact time of taking the food by deceased

Yashpal. Even if it is assumed that the food was taken 3-4 hours prior to

the time of incident, it would be somewhere around 2-3 p.m., when also food

could have been taken by the deceased. The defense put up by all the three

accused that they were not present and they were present elsewhere is found

to be baseless. We find no reason to take a different view from what was

taken by both the trial court as well as the High Court.

11. The plea of the defense that the time of occurrence was solely to suit

the purpose and interest of the prosecution could also have not been proved

by leading any evidence to establish that the incident had happened during

night. Therefore, we find no reason to disbelieve the facts put up by the

prosecution that the incident had happened at about 6.15 p.m. at the place of

occurrence and deceased Yashpal had died out of a knife blow allegedly

being given by accused No. 1 Ramvir and the said knife blow itself caused

his instantaneous death and he died at the spot before he could be taken to

any hospital. The dimension and the nature of the injury also speaks for

itself.

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12. It was next submitted by the counsel appearing for the appellants that

presence of appellant Nos. 2 and 3 should have been held to be doubtful.

13. It was submitted by the prosecution that appellant nos. 2 and 3 caught

hold of the deceased Yashpal whereupon appellant No. 1 gave a knife blow

to the deceased Yashpal which proved to be fatal. We have analysed the

said evidence very carefully and very minutely and also appreciated the

contention raised on behalf of the counsel for appellant Nos. 2 and 3.

14. The evidence adduced to establish the guilt of appellant Nos. 2 and 3

are that appellant No. 1 had come to the place of occurrence alongwith a

knife in his hand and he came out of nearby bushes whereas the other two

accused came from another place. They allegedly came out of the field,

caught hold of the deceased and embraced him. If the appellant Nos. 2 and

3 were embracing the deceased, a knife blow could not have been given in

that manner by appellant No. 1 on the chest of the deceased. It is not stated

by the prosecution that the said two accused Nos. 2 and 3 were embracing

him from behind. Nature of the evidence adduced and role ascribed to them

appear to us to be highly improbable. They are, therefore, entitled to benefit

of doubt. The aforesaid attack with the help of the knife pierced through the

7 lung and went through the chest. All the three appellants are the brothers

and apparently there was some rivalry between the two groups in the village.

15. Considering the facts and circumstances of the case, we find that the

story put up by the prosecution regarding the role of the appellant Nos. 2 and

3 are exaggerated and improbable. There is no allegation that these two

persons i. e. appellant No. 2 and 3 were carrying any weapon in their hands.

It is also proved that they were coming to the place of occurrence from

another direction.

16. Therefore, the role ascribed to the appellant Nos. 2 and 3 are found to

be unbelievable. Their presence at the place of occurrence is also doubtful

and therefore we extend benefit of doubt so far as appellant Nos. 2 and 3 are

concerned.

17. However, the fact that appellant No. 1 had given knife blow which has

pierced through the chest and has also pierced the lung, the gravity of the

blow and the dimension of the injury clearly proves that appellant No.1 had

the intention and knowledge of killing the deceased Yashpal, and therefore,

the appellant No. 1 used knife at the most vital part of the body affecting

chest and lung with the knowledge that such injury will definitely cause

8 death to the deceased Yashpal in the ordinary course of nature. In that view

of the matter we are of the considered opinion that it is a clear case of

Section 302, IPC. The conviction and sentence awarded to the appellant

No. 1 by both the trial Court as well as the High Court is affirmed. The

conviction and sentence with respect to appellant No. 1 is upheld.

18. Accordingly, the appeal so far as appellant No. 1 is concerned, is

dismissed.

19. However, the appeal in respect of appellant Nos. 2 and 3 is hereby

allowed. The conviction and sentence of appellant No. 2 and 3 are hereby

set aside. They are set at liberty. They shall be released forthwith if they are

not wanted in any other case.

20. The appeal is disposed of in terms of aforesaid order.

................................J. [Dr. Mukundakam Sharma]

..................................J. [Dr. B.S. Chauhan]

New Delhi, July 6, 2009

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