RAM KISHAN AND ORS.versusSTATE OF UTTAR PRADESH

                        RAM KISHAN AND ORS.                                        A
                                 v.
                       STAE OF UTTAR PRADESH

                           SEPTEMBER I 0, 2004

     [K.G. BALAKRISHNAN AND DR. AR. LAKSHMANAN, JJ.]                               B

      Penal Code, 1860-Sections 302 r!w 149 and 323 r!w 149-Murder-
Appreciation of evidence-Evidence of three eye-witnesses-Deceased was
assaulted with 'lath is 'fitted with iron rings-One of them, an injured witness,
was accompanying the deceased-Conviction by Sessions Court upheld by               C
High Court-Validity of-Held: mere acquaintance or friendship of PW I
 with deceased not a reason to discard his evidence when his presence at place
of incident not doubtful-No reason to doubt evidence of other two witnesses
too-All       injuries        on     deceased     were      on     the     head
and the brain was exposed-Finding of the Doctor that deceased's
stomach empty is of no consequence in the absence of evidence to the               D
contrary-Courts below justified in accepting the medical evidence-Courts
 below having taken a reasonable view of the evidence, no interference called
for.

      According·to the prosecution case, the deceased had gone to witness
a 'mela' where he met PW 1. They spent sometime at the 'mela' and                  E
during night stayed at the house of father-in-law of deceased which was
very close by. Next day, at about 8.00 A.M. they left the house on a
motorcycle with PW 1 driving the vehicle and deceased sitting on the
pillion. On the way one of the appellants came all of a sudden and
intercepted the motorcycle shouting that deceased should not be spared.            F
Other Appellants, who were hiding nearby armed with 'Lathis' fitted
with iron rings, came out and assaulted PWl who fell on the ground.
Then they started assaulting deceased with the 'Lathis'. He sustained
multiple injuries and died on the spot. Injured PW 1 gave First
Information at the nearby Police Station at about 9.45 A.M. Sessions
Judge as well as High Court relied on evidence of the three eye-witnesses
                                                                                   G
PW-1, PW-2 & PW-6 and convicted Appellants under Sections 302 r/w
149 IPC and Sections 232 r/w 149 IPC.

     In appeal to this Court, it was contended for the Appellants that
the three eye-witnesses were all interested witnesses as they were close           H
                                   287
    288                 SUPREME COURT REPORTS (2004] SUPP. 4 S.C.R.

A   friends of the deceased; that the evidence of PW 2 and PW 6 cannot be
    accepted as they were also not independent witnesses; that the medical
    evidence adduced disproved the prosecution case and that
    PW 1 and deceased had left the house in the morning and must have
    taken food, but the incident must have taken place somewhere during
    the night and that is why post mortem evidence showed the stomach of
B
    deceased was empty.

          Dismissing the appeal, the Court

         HELD : 1. The Sessions as well as the High Court have taken a
    reasonable view of the evidence and rightly found the Appellants guilty
c   under Sections 302 r/s Section 149 and under Sections 232 r/w 149 IPC.
                                                                   (292-E]

          2. Mere acquaintance or friendship of PW 1 with the deceased by
    itself cannot be treated as a reason to discard the evidence of the eye-
D   witnesses if it is proved by other satisfactory evidence that the witness
    was very much present at the time of incident. PW 1 was an injured
    witness. Moreover, he gave the first information within hours after the
    incident. Therefore, the presence of PW 1 at the place of incident cannot
    be doubted. (291-A, B; 290-G-H]

E       3. PW 2 and PW 6 are persons residing in the locality, PW I also
    deposed that these two witnesses were present at the time of the incident.
    There is no strong reason to discard their evidence. (291-C]

         4. All three injuries on deceased were on the head and the brain
    was exposed. The doctor was of opinion that there were multiple fractures
F   of the skull. There is no evidence as to nature of the weapons except the
    witnesses saying that the 'Lathis' were fitted with iron rings. A heavy
    blow with a weapon such 'as 'Lathis' fitted with iron rings on the head
    would tiave caused the skull to break. The weapons were also not
    examined during the course of investigation. What was the width of the
    ring which covered the 'Lathis' is not known. Under the circumstances,
G
    the Sessions Court and the High were justified in accepting the medical
    evidence. [291-F; GJ

         5. There is no direct evidence as to whether deceased had taken
    any food in the morning. Appellants pointed to the statement given by
H   the Investigating Officer during cross-examination in which he had
            RAM KISHAN v. STATE [BALAKRISHNAN, J.]                     289

admitted that father-in-law of deceased had stated to him that deceased        A
had taken breakfast in the morning and thereafter left the house, but
the father-in-law of the deceased was not examined as a witness.
Therefore, the statement given by the Investigating Officer must have
been based on the statement of the father-in-law of the deceased recorded
under Section 161 of the CrPC. and is not directly admissible in law. In
                                                                               B
absence of any evidence to the effect as to whether deceased had taken
food or not before leaving the house on the date of the incident, the
finding of the doctor to the effect that the stomach of deceased was
empty is of no consequence. (292-B, C, DJ

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 229                 C
of 2002.

     From the Judgment and Order dated 11.10.2001 of the Allahabad High
Court in Crl. A. No. 287 of 1981.

     R.K. Jain, P.K. Jain and Ajay Bhalla for the Apellants.                   D

     Sahdev Singh for the Respondent.
        I

     The Judgment of the Court was delivered by

     K.G. BALAKRISHNAN, J. : These five appellants were found guilty           E
of murder by the District and Sessions Judge. Varansai, for having caused
the death of one Shiv Shankar Singh. They perferred an appeal before the
High Court of Allahabad. The appeal was dismissed and the conviction of
the appellants under Section 302 read with Section 149 and under Section
232 read with Section 149 IPC was confirmed. The findings of the High Court    F
are challenged before us.

      Deceased Shiv Shankar Singh was a resident of Phoolpur village in the
Varanasi district. On 11.10.1979, there was a Bharat Milap 'mela' at Mangari
Bazar. Deceased Shiv Shankar Singh had gone to witness the said 'mela'.
There, he met PW-I Moti Chand. Moti Chand and Shiv Shankar Singh spent         G
some time at the venue of the 'mela' and during night they came to the house
of the father-in-law of deceased Shiv Shankar Singh, which was very close
to Mangari Bazar. On the next day, i.e. 12.10.1979, at about 8.00 A.M., both
Moti Chand and Shiv Shankar Singh left the house on a motorcycle. Moti
Chand was driving the motorcycle while deceased Shiv Shankar Singh             H
    290                  SUPREME COURT REPORTS (2004] SUPP. 4 S.C.R.

A   pillion-riding the same. When they reached near the pumping house of one
    Bhaggan Singh @ Vibhuti Narain Singh, the appellant Bansh Narain Singh
    came all of a sudden and intercepted the motorcycle. Bansh Narain Singh
    shouted that Shiv Shankar Singh shall not be spared. The other appellants,
    who were hiding in the nearby 'Arhar' field armed with 'Lathis' fitted with
    iron rings, came out the assaulted Moti Chand who fell on the ground. Then
B
    they started assaulting Shiv Shankar Singh with 'Lathis'. Shiv Shankar Singh
    sustained various injuries and died on the spot. Hearing the alarm raised by
    the injured, the other witnesses came there and the appellants fled the place
    immediately.

c        Injured Moti Chand proceeded to the nearby Phoolpur Police Station
    and gave the F.I. statement at about 9.45 A.M. on 12.10.1979. Moti Chand
    was sent for medical examination by the S.H.O., who then immediately
    proceeded to the scene of occurrence. He recorded the statements of Moti
    Chand and other witnesses, namely, Jagdish, Satya Narain, Rama Shankar
    Singh and Matter @ Raj Narain and Ram Murat. He held an inquest over
D   the dead body and also prepared a scene 'mahzar' and took custody of the
    motorcycle. Later, the dead body was sent for post mortem. On 15.10.1979,
    the Investigating Officer arrested the appellants and filed the final report.

         The learned Sessions Judge as well as the High Court relied on
E   the evidence of PW-I Moti Chand and PW-2 Rama Shankar Singh and PW-
    6 Satya Narain Singh and convicted the appellants.

          Learned counsel for the appellants challenged the findings of the
    Sessions Judge as "well as the High Court on various grounds. It was
    submitted that the three eye witnesses on whom the courts placed reliance
F   were all interested witnesses as they were close friends of deceased Shiv
    Shankar Singh. The learned counsel pointed out the various. facts to indicate
    that these witnesses were very strong supporters of deceased Shiv Shankar
    Singh. It was argued that Moti Chand must have been a very close friend
    of the deceased as both of them had spent a lot of time together at the 'mela'
    and later the deceased took Moti Chand to his father-in-law's house and both
G   of them stayed in that house for the night. These facts, according to the
    counsel for the appellants, proved that Moti Chand was not an independent
    witness. It may be noticed that Moti Chand was an injured witness. According
    to the prosecution, deceased and Moti Chand travelled on a motorcycle and
    the same was recoverd from the place of the incident by the Investigating
H   Officer, who prepared 'mahzar' immediately after the incident. Moreover,
             RAM KISHAN v. STATE [BALAKRISHNAN, J.]                         291

Moti Chand gave the F. I. statement within hours after the incident. Therefore,     A
the presence of Moti Chand at the place of incident cannot be doubted. Mere
acquaintance or friendship of Moti Chand with the deceased by itself cannot
be treated as a reason to discard the evidence of the eye witness of it is proved
by other satisfactory evidence that the witness was very much present at the
time of incident.
                                                                                    B
      The counsel for the appellants strongly urged before us that the evidence
of the other two witnesses, namely, PW-2 and PW-6, cannot be accepted as
they were also not independent witnesses. It was pointed out that these
witnesses were so close to deceased Shiv Shankar Singh that they even filed
an affidavit before the court in support of the plea for the cancellation of the    C
bail of these appellants. The incident allegedly happened at 8 o'clock in the
morning. These witnesses are persons residing in the locality. PW-1 also
deposed that these witnesses were present at the time of the incident. The
courts below relied on the evidence of these two witnesses. We do not find
any strong reason to discard their evidence.
                                                                                    D
      The counsel for the appellants further contended that the medical
evidence adduced in this case disproved the prosecution case. PW-8.
Dr. B.B. Subramaniya conducted the post-mortem on the dead body of the
deceased Shiv Shankar Singh. He deposed that the injuries found on the body
of Shiv Shankar Singh may have been caused by a sharp, heavy cutting                E
weapon. Injury Nos. 3, 4 and 6 are injuries which must have been caused
by such a weapon. Injury No. 3 is a chop wound on the left for-. head 18 cm.
x 4 cm. brain deep; injury No. 4 is a chop wound 10 cm. x 3.5 cm. and injury
No. 6 is a chop wound 6.5. cm. and 5 ems. All these three injuries are on
the head and the brain was exposed. Counsel for the appellants contended            F
that according to the prosecution, the appellants were armed with 'Lathis'
fitted with iron rings and there was no case that any one. of the appellants
was having any sharp cutting weapon. It is important to note that the 'Lathis'
were fitted with iron rings and a heavy blow with such weapon on the head
would have caused the skull to break. The doctor was of opinion that there
were multiple fractures of the skull. Except the witnesses saying that 'Lathis'     G
were fitted with iron rings, there is no evidence as to the nature of the
weapons. During the course of the investigation, these weapons were not
examined. What was the width of the ring which covered the 'Lathis' is not
known. Under the circumstances, the Sessions Court and the High Court were
justified in accepting the medical evidence.                                        H
    292                   SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A         Another contention urged by the appellants' counsel is that the post-
    mortem showed that the stomach of the deceased was empty. According to
    the learned counsel, PW-1 and the deceased had left the house in the morning
    and they must have taken food and that the prosecution story must be false,
    for the reason that the incident must have taken place somewhere during the
B   night and that is why the post-mortem evidence is to the effect that the
    stomach of the deceased was empty. Then; is no direct evidence as to whether
    the deceased had taken any food in the morning. The counsel for the
    appellants pointed to the statement given by the Investigating Officer during
    the cross-examination in which he had admitted that the father-in-law had
    stated to him that the deceased had taken breakfast in the morning and
c   thereafter left the house. The father-in-law of the deceased was not examined
    as a witness. Therefore, the statement given by the Investigating Officer must
    have been based on the statement of the father-in-law of the deceased
    recorded under Section 161 of the Code of Criminal Procedure. The statement
    given by the Investigating Officer regarding this fact is not directly admissible
D   in law. In the absence of any evidence to the effect as to whether the deceased
    had taken food or not before leaving the house on 12.10.1979, the findings
    of the doctor to the effect that the stomach of the deceased was empty are
    of no consequence.

         Counsel for the appellants lastly submitted that in view of the various
E   incongruities in the prosecution's evidence, the appellants should have been
    acquitted in this case. We are not inclined to accept this argument. The
    Sessions Court as well as the High Court have taken a reasonable view of
    the evidence and found the appellants guilty. We are not inclined to interfere
    with the impugned judgment. The appeal is without any merit and is
F   dismissed accordingly.

    B.B.B.                                                       Appeal dismissed.