Bhikham v. State — 1980 DIGILAW 797 (ALL)

JUDGMENT H. N. Kapoor, J. 1. This appeal has been filed by Bhikham, Surendra, Ram Sewak and Jagdish against the order and judgment dated 14-7-1975 of II Addl. District and Sessions Judge, Shahjahanpur in Sessions Trial No. 87 of 1975 convicting them under Sections 302/34, 201/34 and 323/34 IPC and sentencing each of them to life imprisonment, seven years R. I. and one year's R. I. respectively on each count. All the sentences have been made to run concurrently. 2. The prosecution story, as revealed in the F. I. R. and by the prosecution evidence, briefly stated is as follows. The deceased Ram Chandra Lal was the head master in the Primary School, Shankarpur. He was the resident of village Bharai, P. S. Jaitpur district Shahjahanpur. The four accused persons too were the residents of the same village. Surendra and Bhikham are the first cousins, while the other two accused persons are said to be their associates. There was old enmity between the deceased and the fathers Of Bhikham and Surendra. Criminal proceedings in a riot case were started between the two parties in 1955. That criminal case was compromised, but their relations were strained. About one and half years prior to the occurrence a dacoity was committed at the house of Ramnath in a different village. Ramnath is the resident of village Lakhanpur. Cousin sister of Ram Chander Lal-deceased was married to Ramnath. In that dacoity case Nanku brother of Bhikham and Kailash brother of Surendra were accused. That case was still pending at the time of occurrence. Ram Chander Lal used to do pairvi in that case on behalf of Ramnath. This had strained the relatio ns between the family members of Nanku and Kailash further as they thought that Ram Chander Lal was responsible for getting them implicated in that dacoity case. On 29-8-1974 Ram Chander Lal had gone to his school as usual. His son Ram Niwas (PW 1) along with Rampal (PW 4) who was sala of first cousin of Sriniwas had gone to village Jalalabad on the previous day as Sriniwas wanted to see his wife's brother who was lying seriously ill there. Both of them returned from Jalalabad, School at Sikanderpur lay in the way and so they both went to the school. Both of them returned from Jalalabad, School at Sikanderpur lay in the way and so they both went to the school. It was about 11.30 P.M. At that time the school was closed and Ram Chander Lal was locking the school building and registers etc. Ram Chander Lal then also accompanied both these persons and they all proceeded towards their village Bharai. At about 12 noon when they reached the outskirts of village Shankarpur and were near the field of Ganga Prasad (DW 1) they saw that all the four accused persons armed with lathis emerged from the sugarcane field towards south. They went in front of the deceased. Bhikham and Surendra then said "Isi sale ne hamare bhaiyon ko dacoity men faswaya hai". All the accused persons then started assaulting Ram Chander Lal with lathis. Ram Chander Lal, Sriniwas and Rampal raised alarm. Sriniwas also moved forward to save his father but he was unarmed. He was also given a beating with lathis. He and Rampal then both reiterated and stood at some distance. Ram Chander Lal tried to run away towards south in the paddy field. All the four accused persons chased him and gave several lathi blows on his person till he died on the spot. They then lifted the dead body and took it in the direction of the pond which was full of water with a view to throw it there. When they had moved at a distance of about 100 yards from the place of the occurrence and were by the side of the road near that pond (Dabri) they found two persons coming on bicycles. On seeing those persons they threw the dead body there and ran away. The names of these two persons could not be given in the F. I. R. as they were seen from a long distance by Sriniwas and Rampal. During the investigation their names were known. They are Babu Ram (PW 5) and Gaya Ram (PW 6). Gaya Ram was carrying a gun. Both these persons had recognised accused persons. They were in hurry and so they did not stop there. Many persons from villages Shankarpur and Arsia also arrived there. But the accued persons had run away before these persons could go near them and recognise them. Gaya Ram was carrying a gun. Both these persons had recognised accused persons. They were in hurry and so they did not stop there. Many persons from villages Shankarpur and Arsia also arrived there. But the accued persons had run away before these persons could go near them and recognise them. Sriniwas had also received injuries and had pain and so he himself did not go to the police station but sent Rampal to the police station to lodge the F. I. R. Rampal lodged oral report at the police station Jaitipur on the same day i.e. 29-8-1974 at 4.15 P. M. The police station was at a distance of about five miles from the place of occurrence. It was taken down by H. C. Ramnath Gaur (PW 8) who registered a case under Sections 302/201 and 323 IPO against all the four accused persons. 3. S. O. Jagvir Singh took up the, investigation of the case. He himself could not be examined in this case. But the investigation done by him has been proved by S. I. Bhim Singh Pauriya (PW 7) who was with Jagvir Singh throughout. The Investigating Officer interrogated Rampal. He then went to the site and reached there at about 6 P. M. He found the dead body of Ram Chander Lal lying on the roadside near the Dabri. Under the instructions of the I. O., S. I. Pauriya conducted inquest on the dead body and prepared the relevant papers. The dead body duly sealed was sent to mortuary. The Investigating Officer recovered the blood-stained and ordinary earth from the spot where the dead body was lying. An umbrella was also lying near the dead body which was taken in his possession. At a distance of about 100 yards from the spot, where the dead body was found, some blood was found near the berry tree; It was the spot where the deceased was first beaten. The Investigating Officer recovered the blood stained and ordinary earth from that place as well. He also found some blood lying in the paddy field of Ram Prasad. He recovered blood stained and ordinary earth from that place as well. The Investigating Officer inspected the site and prepared the site plan Ex. Ka. 14. He then gave a letter of request to Sriniwas who had injuries on his person and sent him through constable Raj Kumar for medical examination. He recovered blood stained and ordinary earth from that place as well. The Investigating Officer inspected the site and prepared the site plan Ex. Ka. 14. He then gave a letter of request to Sriniwas who had injuries on his person and sent him through constable Raj Kumar for medical examination. The Investigating Officer then interrogated some persons of Arsiya and Shankarpur. He then learnt about the name of Gaya Ram who was one of the persons on cylce. He made a search for the accused persons but they were not available. 4. On 30-8-1974 he tried to contact Gaya Ram. But he was not avilable. ON 1-9-1974 he interrogated Gaya Ram. ON interrogating him he learnt the name of the other person who was on the cycle. ON 3-9-1974, he intrrogated Babu Ram. The accused persons surrendered in the court on 4-9-1974. The Investigating Officer was then transferred and the investigation was taken over by S. O. Harbux Singh (PW 11) w. e. f. 17-10-1974. ON 23-10-1974 he took an exercise-book of a boy Ram Prasad (PW 10) in his possession. It bore the signature of Ram Chander Lal with the date 29-8-1974'. He then interrogated Ram Prasad and other witnesses. After completing the investigation he submitted the chargesheet against all the accused persons. The injuries of Sriniwas were examined by Dr. U. C. Agrawal, Medical Officer, Incharge Civil Dispensary, Katra on 30-8-1974 at about 11.40 A. M. The doctor found the following injuries on his person. (Injuries quoted-Editor). In the opinion of Dr. Agarwal all the injuries were simple and caused by blunt weapon. 5. Post mortem examination on the dead body was conducted by Dr. S. K. Mehrotra on 31-8-74 at 11.30 A. M. The post. mortem examination report is Ex. Ka. 3. The doctor found the following ante morten external injuries on the dead body. (Injuries quoted-Editor). 6. On internal examination the doctor found 7th and 8th rib fractured on right side of chest, peritoneum was lacerated through liver. Stomach was empty. The right side of liver was also lacerated. The bones of left wrist were also fractured. The death was due to shock and haemorrhage as a result of injuries received. The accused persons were duly tried laving been committed to the court of sessions. They denied the prosecution allegations and stated that they were falsely implicated on account of enmity. The right side of liver was also lacerated. The bones of left wrist were also fractured. The death was due to shock and haemorrhage as a result of injuries received. The accused persons were duly tried laving been committed to the court of sessions. They denied the prosecution allegations and stated that they were falsely implicated on account of enmity. Bhikham stated that he was a member of Bharai Gram Samaj. He had . moved no confidence motion against Darbari who was the Gram Pradhan and Darbari was suspended. He was an associate of Ram Chander Lal. Darbari, therefore, got Mm falsely implicated in this case. Jagdish also stated that he was Up Pradhan of Gram Samaj and was instrumental for carrying the no-confidence motion against. Darbari and so Darbari got him falsely implicated. Ram Sewak stated that his brother Rampal had purchased a house in the neighbourhood of the house of Ram Chander Lal. Ram Chander Lal himself wanted to purchase that house and so has family members became inimical to Ram Sewak. Surendra Stated that his house was adjacent to the house of Ram Chander Lal. Ram Chander Lal wanted to open a door in his land which he did not permit; hence the family members of Ram Chander Lal became inimical to him. It was also stated in defence that the occurrence took place sometime early in the morning when Ram Chander Lal was going towards the school and that nobody had seen the occurrence. According to defence, Ram Chander Lal had not even attended the school that day and had not signed the attendance register. In defence four witnesses were examined. Ganga Pd. (DW 1) stated that the occurrence took place early in the morning at about 6.30 A. M. on his field. But he was not able to see the assailants. Sripal (DW 2) gave evidence that Ram Chander Lal had some other enemies. Laxmi Narain (DW 3) was a teacher in that school and became the headmaster after the death of Ram Chander Lal. He stated that it was the practice that the teachers used to sign the attendance register as soon as they reached the school and that that day there was no signature, on the attendance register of Ram Chanden Lal. A. K. Chatterji (DW 4) is the handwriting expert. He stated that it was the practice that the teachers used to sign the attendance register as soon as they reached the school and that that day there was no signature, on the attendance register of Ram Chanden Lal. A. K. Chatterji (DW 4) is the handwriting expert. He has tried to show that there was some iterpolation on the date 29-8-74' on the exercise book Ex. 1 of Ram Prasad (PW 10) under the signature of the deceased. The learned Sessions Judge, after considering the entire evidence on record, found the prosecution case proved against the appellants and convicted and sentenced them as stated above. Feeling aggrieved they have filed this appeal. 7. In support of its case the prosecution has examined Sriniwas (PW 1) and Rampal (PW 4) as eye-witnesses of the occurrence. Babu Ram (PW 5) and Gaya Ram (PW 6) have stated that they were coming on the bicycle when they had seen the dead body being carried by the four accused persons towards Darbari and that they had run away on seeing them throwing the dead body on the roadside. Ram Prasad (PW 10) has been examined as he was the student of class V. He stated that Ram Chancer Lal had attended the school that day and had signed his exercise book and put the date. That very day he learnt that Ram Chander Lal had been murdered. 8. Since much emphasis has been laid on the fact that the deceased had not attended the school that day and that he had been actually murdered while going to the school at about 6.30 A. M. it appears to be proper to examine the evidence on this point. If this defence suggestion is found to be correct there can be no doubt that it would not be possible to place reliance on the evidence of the witnesses of fact, all of whom have stated that the occurrence had taken place at about 12 noon. It is true that on that particular day i. e. 29-8-74 Ram Chander Lal had not signed the attendance register. Ganga Ram (P. W. 6) who had been a teacher of the school stated that the attendance register was, no doubt, signed by the Headmaster daily, as soon as he: attended the school. It is true that on that particular day i. e. 29-8-74 Ram Chander Lal had not signed the attendance register. Ganga Ram (P. W. 6) who had been a teacher of the school stated that the attendance register was, no doubt, signed by the Headmaster daily, as soon as he: attended the school. But he stated that sometime when he forgot to sign that day it was signed on the next day. Laxmi Narain (DW 3) who was a teacher in that very school, at the time of occurrence, stated that he used to sign the attendance register each day as soon as he reached the school. He proved the signature of Ram Chander Lal on the attendance register of all the dates on which he was present from 3-10-72 till 28-8-74. He also proved his signatures. It appears that he himself was not present on 29-8-74 as he has not proved his signature of that date. He has not specifically stated that Ram Chander Lal was not present at the school on 29-8-74. Ram Prasad (PW 10), though a child witness aged about 12 years, has stood the test of cross-examination very well. He categorically denied the suggestion to the contrary and stated that the deceased had attended the school on 29-8-74 and had signed his exercise book on that very day. The handwriting expert A. K. Chatterji (DW 4) gave his reasons for his view that there was interpolation on 9' and it appears that 8' was overwritten as 9'. We have carefully examined the date 29-8-74 which is alleged to be in the handwriting of the deceased It appears that the deceased was in the habit of writing 9' in this very manner.. In fact, even the digit 8' indicating the month has the same similarity. On another page, we found that he had written 8' in that very manner. The word 9' is; in the same ink and is of the same pen and the flow shows that it was in the hand of one person. On this point we agree with the reasonings given by the learned Sessions Judge in disbelieving the opinion of the handwriting expert. It is true that the exercise book of Ram Pra sad was taken in his possession by the IInd Investigating Officer on 23-10-73 when Ram Prasad was examined. On this point we agree with the reasonings given by the learned Sessions Judge in disbelieving the opinion of the handwriting expert. It is true that the exercise book of Ram Pra sad was taken in his possession by the IInd Investigating Officer on 23-10-73 when Ram Prasad was examined. But this delay is not very material when the signature of the deceased on this exercise book is not disputed. The only dispute is with regard to the date 29-8-74 under his signature. We have arrived at the conclusion that the date 29-8-74 was actually in the hand of the deceased. Once it is he d that the deceased had actually attended the school on 29-8-74 the evidence of Ganga Prasad (DW 1) becomes incredible. He is obviously a partisan witness who has deliberately made a wrong statement that the occurrence had taken place at about 6.30 A. M. He did not five this statement earlier at any stage when he definitely knew that the prosecution case was that the occurrence had taken place at 12 noon and the investigation was also being carried on accordingly. We may now consider the evidence of the eye-witnesses of the occurrence. Sriniwas (PW 1) is the injured witness. He had received as many as ten injuries. The size of the contusions is such that ordinarily they cannot be self suffered. In fact no suggestion was made to Dr. U. C. Agarwal (PW 2) to this effect. He has given good reasons for his presence at the time of occurrence. One day earlier he had gone to his father-in-law's place to see the ailing brother of his wife. He had returned that morning and accompanied his father as the school lay in the way. The other witness Rampal (PW 4), though a distant relation of the deceased, has also given good treasons for his presence. He had accompanied Sriniwas to his father-in-law's place and was returning with Sriniwas when the occurrence took place. He; lodged the FIR. There was no inordinate delay in lodging the FIR. He belonged to another village. Ordinarily there was no point in calling him from another village and then to send him to lodge the FIR and asking him to pose as the eye-witness of the occurrence. He; lodged the FIR. There was no inordinate delay in lodging the FIR. He belonged to another village. Ordinarily there was no point in calling him from another village and then to send him to lodge the FIR and asking him to pose as the eye-witness of the occurrence. If a wrong person was to be set up as eye-witness of the occurrence, any other person of that village could have been set up for this purpose and Sriniwas who was an injured witness himself could have gone to lodge the FIR. Both the witnesses, Sriniwas and Rampal have given vivid description of the entire occurrence and have corroborated each other on all material particulars. They were subjected to long cross-examination but they have stood the test well. In the FIR it was mentioned that two persons on cycles had arrived. Their names were not given for the simple reason because both the witnesses were standing at a distance of about 400 paces from the spot where the dead body was thrown. The Investigating Officer found the blood at three places. The place of original assault was at the distance of about 100 yards from the place where the dead body was lying. Both these witnesses stated that they had stood at a distance of about 100 paces away from the place where the actual occurrence had taken place. The Investigating Officer had found the difference of the distance between the place of first assault and the place from where the dead body was recovered as 100 yards. It would mean that both the witnesses were standing at a distance of 100 yards plus 100 paces, from that place where the dead body was thrown. Even if this distance was not actually 400 paces it was considerable and so they might not have been able to recognise the persons who were going on cycles. In the FIR it was clearly mentioned that two persons on cycles had arrived and then the accused persons had run away. There appears to be no reason to doubt the testimony of both these eye witnesses of the occurrence. Babu Ram (PW 5) and Ganga Ram (PW 6) are those cyclewalas whose names could not be given in the FIR for the reasons stated above. The Investigating Officer could get the clue about Gaya Ram on interrogating other persons of village Arsiya and Shankarpur. Babu Ram (PW 5) and Ganga Ram (PW 6) are those cyclewalas whose names could not be given in the FIR for the reasons stated above. The Investigating Officer could get the clue about Gaya Ram on interrogating other persons of village Arsiya and Shankarpur. on interrogating Gaya Ram, he learnt the name of Babu Ram. Gaya Ram had been a teacher in that very school earlier. He stated that he was carrying a gun with him. It is true that both these witnesses did not stop there even though they knew the deceased well form before and also knew the accused persons. They have given good reasons for the same. Babu Ram had gone to bring Gaya Ram who was wanted by the District Inspector of Schools in connection with an enquiry. They had already become late and so they were in hurry to go to the District Inspector of Schools. Even then it had become late. It was found that the Inspector of Schools had already left and they had to go to another place to contact him. It is true that the evidence of these two witnesses who were not named in the FIR by itself might not have been sufficient for sustaining conviction of the appellants. But their evidence can certainly be used, for the purpose of corroborating the evidence of Sriniwas and Rampal who were eye-witnesses of the occurrence. After considering the entire evidence on record and the circumstances of the; case, we are satisfied that the prosecution has succeeded in proving its case against the four appellants beyond all reasonable doubt and they were rightly convicted. 9. Learned counsel for the appellants has next argued that the case would not go beyond Sec. 304 IPC as there is nothing to show that all four accused persons shared the common intention of committing the murder. According to him only Bhikham and Sriniwas had motive while the other two did not have the motive and there was no instigation on the part of any person to commit the murder. According to him only Bhikham and Sriniwas had motive while the other two did not have the motive and there was no instigation on the part of any person to commit the murder. It is also argued that the accused persons were only armed with lathis and care was taken in not inflicting grievous hurt on head region although some superficial injuries were inflicted on head region and that the victim was helpless and was in their hands, and yet they did not inflict any serious head injury, and most of the injuries were on non vital part. It was also argued that the intervener- Sriniwas was given only simple injuries. Learned counsel for the appellant has also placed reliance on the case of Molu v. State of Haryana, AIR 1976 SC 2499 . In that case, although two persons had been killed yet Supreme Court convicted the accused persons only under Sec. 304 part II read with Sec. 34 IPC. We have carefully examined that authority. No motive was proved in that case. Only two supreficial injuries were inflicted on head region. All other injuries were on non vital parts. In the present case six injuries were inflicted on vital parts of the body the doctor denied the suggestion that the injuries other than 1 and 2 were on non vital parts of the body. He asserted that the injuries nos. 1, 2, 15, 16, 22, 23 and 24 were all on vital parts of the body. According to him injuries nos. 15 and 16 each was dangerous to life meaning thereby that the death would have been caused by each of these injuries. He also stated that cumulative effect of injury no. 15 and other injuries resulted in death. These injuries, on vital parts resulted in internal damage as has been seen above. The doctor has also stated that these injuries were such which could have been caused after the injured had fallen on the ground. The manner in which the injuries were inflicted leaves no doubt that they were inflicted with the intention of causing his death. Numerous injuries were inflicted till the injured was dead, and then an attempt was made to remove the dead body and to throw it. The motive too has been proved in the present case. Molu's case, therefore, is distinguishable. Numerous injuries were inflicted till the injured was dead, and then an attempt was made to remove the dead body and to throw it. The motive too has been proved in the present case. Molu's case, therefore, is distinguishable. We have relied upon another authority of the High Court on the case of Anda v. State of Rajasthan, AIR 1966 SC 148 . In that case when multiple injuries, which cumulatively were sufficient to cause death and all the accused persons were found to be striking the deceased, an inference was drawn that they shared the common intention of committing the murder of the deceased. In that case all the injuries, except no. 1, were on non vital part of the body. Only one injury was on head which resulted only in haematoma. In the present case there were even grievous injuries on vital parts of the body as already seen above. In the circumstances of the case, the only inference that can be drawn is that all the four accused persons shared the common intention of committing the murder of the deceased. They were, therefore!, rightly convicted under Sections 302/34, 201/34 and 323 34 IPC. No interference, therefore, is called for in this appeal. 10. In the result the appeal is dismissed. The conviction and sentences of the appellants are maintained. The appellants Bhikham, Surendra, Ram Sewak and Jagdish are on bail. They shall surrender to their bail bonds and be taken into custody forthwith to serve out the sentences already awarded to them. ---- Appeal dismissed.