# Raj Charan & Anr v. State

- **Citation:** (2022) 9 ILRA 77
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-14
- **Case number:** Jail Appeal No. 769 of 1991
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-charan-anr-v-state-49274
- **Pages:** 20

## Headnote

(A) Criminal Law - Jail Appeal - Indian
Penal Code, 1860 - Sections 302/34,
Section 323/325 r.w. Section 34. &
Section 452 - in a murder trial, merely
because
a
witness
is
interested
or
inimical, his evidence cannot be discarded
unless the same is otherwise found to be
not trustworthy - evidence of interested or
inimical witnesses is to be scrutinised with
care but can not be rejected merely on the
ground of being a partisan evidence. (Para
-36,37)

Case of direct and clinching evidence - two
murders committed - three injured eye
witnesses of incident - sons and daughter of the
one deceased - two independent witnesses -
eye witness of murder - married daughter of
another deceased - relatives of both deceased -
medical evidence fully supports prosecution
evidence - Both incidents occurred in broad day
light - prompt first information report lodged by
informant - accused persons including the
appellants had also motive to commit such
offence - incidents and places of incidents not
disputed by defence side. (Para -47 )

HELD:- Trial court rightly concluded that postmortem reports of both the deceased fully
support the prosecution version qua occurrence
of both the incidents. Trial court fully satisfied in
convicting the appellant. (Para -54,55 )

Jail appeal dismissed. (E-7)
78 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:-

## Text

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9 All. Raj Charan & Anr. Vs. State
77
would
amount
to
putting
reasonable
restriction in exercise of the said right. The
citizens of this country are not permitted to
violate a law enacted by the legislation
while exercising their right of protest,
freedom of speech and expression.

31. However, so far as the sentence is
concerned, this Court finds that awarding
the sentence to the appellants for maximum
sentence
of
two
years
of
simple
imprisonment
in
the
facts
and
circumstances of the case, is excessive. In
democracy under our Constitution, people
have right to protest against Government
policies/action/inaction,
provided
the
protest does not lead to commission of an
offence by the protesters. Except for
detaining the train for 15 minutes, there
was no damage to private and public
property by the protesters by and large it
was a peaceful and symbolic protest.

32. In view thereof, this Court finds
that
imprisonment
of
two
years
is
unwarranted in the facts and circumstances
of the case and, therefore, the impugned
judgement and order dated 18.3.2021
passed by the trial court is modified to the
extent that the appellants are sentenced
with fine only. The appellants had already
deposited the fine of Rs.25,000/- each and,
therefore, no further fine is required to be
deposited by them. The appellants are on
bail. Their bail bonds are cancelled and
sureties are discharged.

33. Subject to above modification of
the impugned judgement and order, the
appeal is allowed in part.
----------
(2022) 9 ILRA 77
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.09.2022
BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Jail Appeal No. 769 of 1991

Raj Charan & Anr. ...Appellants
Versus
State ...Respondent

Counsel for the Appellants:
Sri Ran Vijay Singh, Ms. Katyayani (A.C.)

Counsel for the Respondent:
A.G.A.

(A) Criminal Law - Jail Appeal - Indian
Penal Code, 1860 - Sections 302/34,
Section 323/325 r.w. Section 34. &
Section 452 - in a murder trial, merely
because
a
witness
is
interested
or
inimical, his evidence cannot be discarded
unless the same is otherwise found to be
not trustworthy - evidence of interested or
inimical witnesses is to be scrutinised with
care but can not be rejected merely on the
ground of being a partisan evidence. (Para
-36,37)

Case of direct and clinching evidence - two
murders committed - three injured eye
witnesses of incident - sons and daughter of the
one deceased - two independent witnesses -
eye witness of murder - married daughter of
another deceased - relatives of both deceased -
medical evidence fully supports prosecution
evidence - Both incidents occurred in broad day
light - prompt first information report lodged by
informant - accused persons including the
appellants had also motive to commit such
offence - incidents and places of incidents not
disputed by defence side. (Para -47 )

HELD:- Trial court rightly concluded that postmortem reports of both the deceased fully
support the prosecution version qua occurrence
of both the incidents. Trial court fully satisfied in
convicting the appellant. (Para -54,55 )

Jail appeal dismissed. (E-7)
78 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:-

1. Kartik Malhar Vs St. of Bihar , 1996 CRL. L.J.
889

2. Shyam Babu Vs St. of U.P. AIR , 2012 SC
3311

3. St. of U.P. Vs. Kishan Chand & Ors. , (2004) 7
SCC 629

4. St. of J&K Vs. S. Mohan Singh & Ors. , (2006)
9 SCC 272

5. Ramashish Rai Vs. Jagdish Singh, (2005) 10
SCC 498

6. Mahender Chawla Vs U.O.I., Writ Petition
(Criminal) No. 156 / 2016

7. Kuna @ Sanjaya Behera Vs St. of Orrisa,
2017 SCC Online Supreme Court 1336

8. Veer Singh & ors. Vs St. of U.P., (2014) 2
SCC 455

9. Namdeo Vs St. of Maharashtra, (2007) 14
SCC 150

10. Suresh Chandra Bahri Vs St. of Bihar , 1995
Supp (1) SCC 80

11. Mekala Sivaiah Vs St. of A.P., 2022 SCC
Online SC 887

12. St. Represented by Inspector of Police Vs
Saravanan @ Anr., (2008) 17 SCC 587

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. This appeal has been preferred by
appellants, Ram Charan and Baldev against
the judgment and order dated 16th
September, 1978 passed by the Sessions
Judge, Jhansi in Sessions Trial No. 182 of
1977 State Vs. Zalim and Others), under
Sections 302/34 I.P.C. 323/325 I.P.C. read
with Section 34 I.P.C. and Section 452
I.P.C., Police Station-Mau, District-Jhansi,
whereby all the accused-appellants have
been convicted and sentenced to undergo
(i) imprisonment for life under Section
302/34 I.P.C. for each of the two murders
of Khuman and Halku; (ii) rigorous
imprisonment for a period of two years
under Section 452 I.P.C., (iii) imprisonment
for a period of one year under Section
325/34 I.P.C., and (iv) imprisonment for six
months under Section 323 I.P.C. with the
observation that all the sentences were to
run concurrently.

2. We have heard Mr. Ran Vijay
Singh, Advocate and Ms. Katyayani,
Advocate, who was earlier appointed as
Amicus Curiae on behalf of the appellants
and Mr. Arunendra Singh, learned A.G.A.
for the State as also perused the entire
materials available on record.

3. The prosecution story, as reflected
from the records, is as follows:

The deceased, namely, Halku and
Khuman were real brothers and were father
and uncle of the informant/P.W.-2 Lakhan
and they used to do cultivation in village
Baragaon. The accused persons, namely,
Zalim, Baldua and Ram Charan belong to
the same village and their fields were also
adjacent to field of Khuman. On 30th
September, 1977 at about 10:00 a.m., the
accused Khuman, his nephew Lakhan and
niece Panna went to their fields. Panna
started to cut grass from the Mendh. At
about 11:00 a.m. on the same day i.e. 30th
September, 1977, the accused Zalim and
the wives of the accused Baldua and Ram
Charan also came there and started to cut
grass from the filed of Khuman. Khuman
objected them not to cut grass from his
field on which all the women started a row
and told him that they were cutting grass
from their own fields. They started to abuse
9 All. Raj Charan & Anr. Vs. State
79
Panna, thereupon Khuman objected and
asked the women of the house of the
accused to go from there. The aforesaid
women, thereafter, went away towards the
village but at about 01:00 p.m. on the same
day i.e. 30th September, 1977, the accused
came to the field of Khuman and out of
them, the accused Zalim having Pharsa,
accused Baldua having Axe (Kulhari) and
accused Ram Charan having Lathi asked
the deceased Khuman as to why they
forbidden the women of their house to cut
grass, while they were cutting the same
from their own field. The accused persons
also started abusing Khuman on which
Khuman said that they were cutting grass
from his field that is why he objected.
Thereupon, the accused attacked Khuman
due to which he sustained injuries. Then
Lakhan, Panna and Ghasiram tried to save
Khuman, they were also beaten by the
accused persons and thereafter they ran
way towards the village. Because of the
said assault, Lakhan, Panna and Ghasiram
also sustained injuries. Due to injuries
caused by the accused persons, Khuman
died on the spot. Thereafter, the accused
persons at about 02:00 p.m. reached the
house of Halku and at that time, Halku
along with ladies of his house was sitting at
the entrance of his house. The accused
persons entered into entrance and started to
beat Halku badly. Thereafter the accused
persons dragged Halku to the entrance and
took him to a place near the house of
Daasau, where they again beat him.
Hearing the alarm raised by Halku,
witnesses/villagers reached the said place
of
occurrence.
On
seeing
the
said
witnesses, the accused persons ran away.
As Halku did not die, he was taken by
Lakhan along with Panna and Ghasiram to
the Police Station but he died on the way of
Police Station. Thereafter, Lakhan lodged a
report, resultantly, a case was registered.
On registration of the said case, the injured
were sent for medical examination and
investigation
was
commenced.
Panchayatnama (inquest report) of the dead
body of Halku was also prepared at the
Police Station. The Investigating Officer
took Kurta and Pancha (Paijama) of the
deceased Halku in his possession and he
also recorded the statements of Lakhan,
Panna and Ghasiram and thereafter he
reached the field of Khuman and found his
dead body. The Investigating Officer also
prepared Panchayatnama (inquest report).
He also took blood stained earth and
ordinary earth in his possession from the
places where Khuman and Halku were
done to death. The dead bodies of both the
deceased, namely, Halku and Khuman were
also sent for post-mortem.

4. Injured Lakhan (P.W.-2) was
examined medically on 25th September,
1977 by Dr. S.K. Jain (P.W.-6) and as per
the medical examination report, which is
marked
as
Exhibit-Kha-9,
following
injuries were found on the body of Lakhan:

"1. contusion 41⁄2 cm. X 2 cm on
the
top
right
shoulder-cum-traumatic
swelling. 7 cm x 7 cm on the top of
shoulder.

2. abrasion 3/4" x 3/4 cm on the
back of left index finger, at 2nd phylanx

3. complaint of pain in 3rd middle
finger of left hand."

In the said report it has been
mentioned that all the injuries are simple in
nature, which were caused by blunt object.

5. The injured Ghasiram (P.W.-3) was
also
medically
examined
on
30th
September, 1977 by Dr. S.K. Jain (P.W.-6)
and as per his medical examination report,
which
is
marked
as
Exhibit-Ka-10,
following injuries were found on his body:
80 INDIAN LAW REPORTS ALLAHABAD SERIES

"1. Lacerated wound 3/4 cm x 1/2
cm x 1/4 cm on the back of left forearm in
its middle-cum-traumatic swelling 14 cm x
10 cm on the left forearm. Advised-X-ray.

2. Complaint of pain in right side
chest.

3. Abrasion 2 1⁄2 cm x 1 cm on the
lower back right side."

In the said medical examination
report, it has been opined by the Doctor
concerned that all injuries are simple in
nature except injury no.1 for which the
injured was referred to District Hospital,
Jhansi for X-ray. The Doctor further opined
that injuries caused to the injured were by
blunt object.

Apart from the above, in the Xray report of injured Ghasiram (P.W.-3), it
has been opined that there is fracture in the
middle forearm of injured.

6. On 30th September, 1977, medical
examination of injured Smt. Panna was also
conducted by Dr. S.K. Jain (P.W.-6) and as
per the medical examination report of Smt.
Panna, which is marked as Exhibit-Ka 11,
following injuries were found on her body:

"1. 6 cm x 1/2 cm abrasion on the
back of right arm lower 4 cm above from
back of right elbow joint."

The Doctor, who conducted the
said medical examination, opined that the
injury sustained to injured Smt. Panna is
simple in nature which was caused by blunt
object.

7. The post-mortem of the dead body
of the deceased Khuman was conducted on
1st October, 1977 and in the opinion of the
Doctor who conducted the said postmortem, the cause of death of deceased is
due to cranial haemorrhage as a result of
head injury. On post-mortem of the dead
body of the deceased, following antemortem injuries were reported:

"(1). Incised wound 21⁄2" x 1/4"
bone deep oblique in direction on front side
of head upto the middle, about 41⁄2" above
the roof of left ear. (fracture of posterior
bone of left side).

(2). Incised wound 3/4" x 1/4"
bone deep on the right side of forehead, just
above lateral to outer angle of right eye.

(3)
Contusion-cum-Traumatic
swelling 3" x 2" on right side of head just
above root of right ear.

(4) Incised wound 1" x 1/2" x
bone deep on the right side of face upto the
right ear.

(5) Incised wound 11⁄2" x 1/2" x
cutting of bone of middle of right ear.

(6) Contusion 21⁄2" x 1" on the
back of head of occipital region.

(7) Lacerated wound 3/4" x 1/4"
in the middle of left little finger.

(8). Abrasion 11⁄4" x 1/4" on the
medial side of right elbow joint."

8. On 1st October, 1977, the postmortem of the dead body of the deceased
Halku was also conducted and in the
opinion of the Doctor B.D. Magal (P.W.-1),
who conducted the said post-mortem, the
cause of death of deceased Halku is due to
Comma as a result of heart injury. The
Doctor (P.W.-1), who conducted the postmortem of the dead body of the deceased
Halku, also reported following antemortem injuries:

"(1) Contusion horizontal 11⁄2" x
11⁄2" on the right side of head, 1" above
from right eye brow.

(2) Lacerated wound 1/2" x 1⁄4" x
bone deep on the right side of head just
above injury no.1.
9 All. Raj Charan & Anr. Vs. State
81

(3) Lacerated wound 11⁄2" x 1/2" x
bone deep on the right side of head, about
3" away from root of right ear.

(4) Incised wound 2" x 1/2" x
bone deep, oblique in direction, of the left
frontal bone on the front of left side of
forehead about 1/2" above from middle eye
brow bone is cut and pieces entered the
brain matter.

(5) Incised wound 11⁄2" x 1/2"
bone deep cum cutting of bone on the front
of left side of head, about 1/2" above from
injury no.4.

(6) Lacerated wound 1" x 1" x
skin deep on the back of left ear, mastoid
region.

(7) Lacerated wound 1/2" x 1/4" x
1/4" on the back left side of head on the
mastoid process.

(8) Abrasion-cum-contusion 1" x
1/2" on the back side of head, 2" above
from injury no.7.

(9) Contusion 1" x 1/2" on the top
of 1 left shoulder joint.

(10) Abrasion 1/2" x 1/4" on the
lateral side of left upper arm, 1" above
from left elbow joint.

(11) Incised wound oblique 11⁄2" x
1" bone deep and 11⁄2 on the lateral side of
right upper arm, about 41⁄2" below from the
right shoulder joint.

(12) Lacerated wound 2" x 1/2"-
x1/2" cum-contusion on the right upper
arm, 31⁄2 above from the right elbow joint.

13. Contusion 6" x 1" on the right
side of upper posterior of back, in scapular
region, oblique in direction.

(14). Contusion 41⁄2" x 1" on the
right side middle of back and below angle
of scapula.

(15). Abraided contusion 2 x 21⁄2
on the back of right palm in the middle.

(16). Contusion 1" x 1/2" on the
front of right leg just below the right ankle
joint.

(17). Contusion oblique 4" x 1"
on the lateral side of right leg. 4" below
from right knee joint.

(18). Contusion 41⁄2" x 1" on the
lateral side of right leg about 1/4" away
from injury no.17."

9. The Investigating Officer prepared
Site Plan of the places of occurrence, which
were two in number. He also recorded
statements
of
other
witnesses. After
completion of statutory investigation in
terms
of
Chapter
XII
Cr.P.C.,
the
Investigating Officer submitted the chargesheet against the accused persons. The
learned Magistrate took cognizance of the
offence on the charge-sheet and committed
the case to the court of Sessions Judge.

10. On 21st March, 1978, the learned
Trial Court framed charges against the
accused persons for offences punishable
under Section 302 I.P.C. read with Section
34 I.P.C., Section 325 I.P.C. read with
Section 34 I.P.C., Section 323 I.P.C. read
with Section 34 I.P.C. and also Section 325
I.P.C.

11. In order to prove its case, the
prosecution also relied upon documentary
evidence, which were duly proved and
consequently marked as Exhibits. The same
are catalogued herein below:-

"i). First information report was
marked as Exhibit Ka -3 ;

ii). The oral information of
informant/P.W.-2
Lakhan
which
was
transcribed, was marked as Exhibit Ka-15;

iii). Recovery memo of blood
stained cloths of the deceased Halku was
marked as Exhibit Ka-20;

iv). Recovery memo of blood
stained and plain earth was marked as
Exhibit Ka-5;
82 INDIAN LAW REPORTS ALLAHABAD SERIES

v). Recovery memo of Bandi was
marked as Exhibit Ka-6;

vi). Recovery memo of blood
stained and plain earth from house was
marked as Exhibit Ka-7;

vii). Recovery memo of blood
stained and plain earth was marked as
Exhibit Ka-8;

viii).
Injury
report
of
informant/P.W.-2 Lakhan was marked as
Exhibit Ka-9;

ix). Injury report of injured/P.W.-
3 Ghasiram was marked as Exhibit Ka-10;

x). Injury report of injured Smt.
Panna was marked as Exhibit Ka-11;

xi). X-ray report of injured/P.W.-3
Ghasiram was marked as Exhibit Ka-13;

xii).
Post-mortem
report
of
deceased Khuman was marked as Exhibit
Ka-1;

xiii).
Post-mortem
report
of
deceased Halku was marked as Exhibit Ka2;

xiv).
Chemical
examination
reports in respect of both the deceased
Halku and Khuman were marked as
Exhibits-Ka-37 & 38;

xv). Affidavit of Constable-512
Arjun Lal was marked as Exhibit-Ka-32;
xvi). Affidavit of Constable-594 Rampal
Singh was marked as Exhibit-Ka-33;

xvii). Affidavit of Constable-569
Manni Lal was marked as Exhibit-Ka-34;

xviii). Affidavit of Clerk of office
of the Chief Medical Officer, namely,
Thakur Dutt, was marked as Exhibit-Ka35;

xix). Affidavit
of
Clerk
of
Constable-578 Lalji Singh was marked as
Exhibit-Ka-36; and

xx). Site plan prepared by the
Investigating Officer qua the place of
occurrence i.e. field of Khuman, where he
was murdered, was marked as Exhibit-Ka28;

xxi). Site plan prepared by the
Investigating Officer qua the place of
occurrences i.e. entrance of the house of
Halku and Bara of Dasrau, where Halku
was murdered, was marked as Exhibit-29."

12. The prosecution also examined
total nine witnesses in the following
manner:-

"i). P.W.-1, namely, Dr. B.D.
Magal, who conducted the post-mortems of
the dead bodies of both the Khuman son of
Chilu and Halku son of Chilu.;

ii).P.W.-2, namely, Lakhan son of
deceased Halku, who is informant and
injured eye witness of the incident;

iii) P.W.-3, namely, Ghasiram,
son of deceased Halku, who is also an
injured eye witness of the incident;

iv) P.W.-4, namely, Dharmdas son
of Paansu, who is an independent eye
witness of the incident;

v). P.W.-5, namely, Virendra
Singh son of Mulu Singh, who is also an
independent eye witness of the incident;

vi). P.W.-6, namely, Dr. S.K.Jain,
who medically examined the injured
Lakhan (informant/P.W.-2) son of deceased
Halku, Ghasiram (P.W.-3) son of deceased
Halku and Smt. Panna daughter of
deceased Halku;

vii). P.W.-7, namely, Beti Bai,
wife of Durjan and daughter of the
deceased Halku, who is also said to be an
eye witness of the incident;

viii). P.W.-8, namely, Dr. R.C.
Gupta, who conducted the X-ray of injured
Ghasiram (P.W.-3);

ix).
P.W.-9,
namely,
Head
Constable-15 Rajendra Kishor, who had
written the chik first information report
(Exhibit-Ka-3) on the oral information
given by the P.W.-2/informant-Lakhan and
proved the same;
9 All. Raj Charan & Anr. Vs. State
83

x).
P.W.-10,
namely,
Vishwambhar Dayal, Sub-Inspector, who
conducted the investigation of murder of
both the deceased, namely, Halku and
Khuman and proved the inquest reports,
blood stained earth etc. whichever have
been collected by him."

13. After recording of the prosecution
evidence, the incriminating evidence were
put to the accused for recording their
statements under section 313 Cr.PC. In
their statements recorded U/s 313 Cr.P.C.
all the accused appellants denied their
involvement
in
the
crime.
Accused
appellants Ram Charan, Baldev and coaccused Zalim specifically stated before the
trial court that they have been falsely
implicated in this case. The defence did not
examine any witness from its side.

14. The trial court after relying upon
the evidence adduced by the prosecution
and recording its finding, has come to the
conclusion under the impugned judgment
of conviction that the prosecution has been
able to fully prove that all the three accused
including the appellants, in furtherance of
their common intention, committed the
murder of Khuman in his field and the
murder of Halku near his house. The trial
court has also recorded that it has also been
proved that all the accused including the
appellants caused simple injuries to injured
Lakhan and Panna and caused grievous
injuries to the injured Ghasiram. On the
cumulative strength of the aforesaid, the
trial court has held that all the accused
including the present appellants are guilty
of offence punishable under Sections 302
I.P.C. read with Section 34 I.P.C. for the
murders of both the deceased, namely,
Khuman and Halku. All the accused were
also found guilty by the trial court for the
offences punishable under Sections 323/34
I.P.C. and 325/34 I.P.C. and Section 452
I.PC. As such, the trial court convicted and
sentenced all the accused including the
present
appellants
for
the
aforesaid
offences. It is against this judgment and
order of conviction passed by the trial court
that the present jail appeal has been filed on
the ground that conviction is against the
weight of evidence on record and against
the law and the sentence awarded to the
accused-appellants is too severe.

15. Assailing the impugned judgment
and order of conviction, learned counsel
appearing for the appellants have advanced
following submissions:

(i) the informant/P.W.-2,namely,
Lakhan, son of one of the deceased Halku
was not present at both the places of
occurrence;

(ii) there is a distance of half mile
between both the places of occurrence i.e.
where the deceased Khuman and Halku
were said to have been murdered, therefore,
it is not possible for the accused-appellants
that they have committed both the murders;

(iii) both the deceased, namely,
Khuman and Halku were dacoits;

(iv) the blood stained earth
recovered by the Investigating Officer from
both the places of occurrence has not been
proved;

(v) According to the statement of
P.W.-4, there was an incident of Maarpeet
but no weapon was recovered from all the
accused including the present appellants on
their pointing out;

(vi) the contents, which were
found in the stomachs of both the deceased,
namely, Khuman and Halku at the time of
post-mortem do not support the prosecution
version on the ground that as per the
statements of Ghasiram (P.W.-3) and Beti
Bai, in the break fast, the deceased Khuman
84 INDIAN LAW REPORTS ALLAHABAD SERIES
had taken fish and rice, before leaving his
house for field and another deceased Halku
had also taken rice and gravy of fish in
break fast and the murder of Khuman
occurred at about 1:00 p.m. (after noon),
whereas the murder of Halku occurred at
02:00 p.m. but as per the post-mortem
reports, the stomach of Halku was found
empty, whereas in the stomach of Khuman,
liquid material was found.

(vii) All the accused including the
present appellants were in jail for 13 years
i.e. from the date of judgment of conviction
i.e. 16th September, 1978 to the date of
order of the High Court in the present
appeal granting bail to the appellants i.e.
15th May, 1991, without remission and as
the date of incident is of the year 1977,
now they are very old and weak.

On the cumulative strength of the
aforesaid, learned counsel appearing for the
appellants submits that the impugned
judgment and order of conviction cannot
legally sustained and is hereby quashed.

16. On the other-hand, Mr. Singh,
learned A.G.A. for the State, supporting the
judgment and order of conviction, has
made following submissions:

(i) the first information report has
been lodged promptly naming the accused
persons;

(ii) there is clinching evidence to
support the prosecution's case;

(iii) the incidents in which the
deceased Khuman and Halku are alleged to
have been murdered by the accused
persons, occurred in broad day light;

(iv) there are three injured eye
witness of the alleged incident;

(v) the independent witnesses,
namely, P.W.-4 Daram Das, who saw the
incident in which Khuman was murdered
and P.W.-5, Virendra Singh, who saw the
incident in which Halku was murdered,
supported the prosecution story;

(vi) the places of occurrence has
not been disputed by the defence;

vii) In the document, which is on
record at page-4 of paper book, one of the
accused person, namely, Zalim has stated
that due to cutting of his crops, which was
standing on his field, a quarrel took place
on 30th September, 1977 in the afternoon
between his side and the side of informant
in which he sustained some injuries. For
the said incident, a report was lodged by
the accused Zalim against the informant
Lakhan, Gulma, Bal Kishan and deceased
Halku, which has been registered on 30th
September, 1977 at 16:45 hours, bearing
Chik Gairdastanji No. 377, under Sections
323/434/427 I.P.C. at Police Station--
Mauranipur, District-Jhansi. Therefore, it is
clear that the incidents as alleged by the
prosecution, took place, which has not been
disputed by the accused persons.

On the cumulative strength of the
aforesaid submissions, learned A.G.A.
submits that as this is a case of direct
evidence, the impugned judgment and
order of conviction does not suffer from
any illegally and infirmity so as to warrant
any interference by this Court. As such the
present jail appeal filed by the accused
appellants who committed heinous crimes
by murdering two persons, is liable to be
dismissed.

17.

We
have
considered
the
submissions made by the learned counsel
for the parties and have examined the
original records of the court below as well
as the impugned judgment and order of
conviction challenged before us.

18. The only question which is
required to be addressed and determined in
this jail appeal is whether the conclusion of
9 All. Raj Charan & Anr. Vs. State
85
guilt arrived at by the learned trial court
and the sentence awarded is legal and
sustainable under law and suffers from no
infirmity and perversity.

19. Before entering into the merits of
the case set up by the learned counsel for
the appellants and the learned A.G.A. for
the State qua impugned judgment and order
of conviction passed by the trial court
referred to above, it is important for us to
record statements of the prosecution
witnesses in brief.

20. In the examination, PW-1 Dr.
B.D. Magal, who conducted the postmortems of both the deceased, namely,
Khuman and Halku, both sons of late
Chellu and proved both the post-mortem
reports before the trial court, which were
marked as Exhibits-Ka-1 and 2, P.W.-2, has
specifically stated that he has found various
ante-mortem injuries (external injuries) on
the dead body of the deceased Khuman,
which have already been quoted herein
above. He further stated that on internal
examination of the dead body of Khuman,
he found that there was blood clots below
the scalp. The left parietal bone was broken
and frontal parietal bone was fractured. The
brain membranes were congested and there
was blood clots on or below the same. The
brain had become soft and very congested
and the blood pooled on it. There was 21⁄2
Ounce liquid material in the stomach of the
deceased. There was faecal in the small and
large intestines. In the opinion of the
doctor, the cause of death of Khuman was
due to shock and bleeding that resulted
from injuries.

21. In respect of deceased Halku,
P.W.-1 has stated in his examination-that he
found various ante-mortem injuries on the
dead body of deceased Halku, which have
also been quoted herein above. He further
stated that on internal examination of the
dead body of Halku, he found that there
were blood clots in and near the scalp. The
frontal bone was cut and pierced through
two places. The membrane was bruised and
swollen and there was blood clots on the
membrane and below the same. The brain
was also hurt. And the pieces of the front
bone were inserted in two places in the
brain. There was blood clot in his brain.
The stomach and intestine of the deceased
Halku were empty. In the opinion of the
doctor, the cause of death of deceased
Halku is due to Haemorrhage, which
resulted from injuries.

22. In the examination, Lakhan i.e.
informant/P.W.-2 has stated that he is the
son of deceased Halku. The field of
deceased Khuman is adjacent to the field of
the accused persons. On the date of
occurrence, P.W.-2, the deceased Khuman,
Panna and Ghasiram went to the field of
Khuman and when Panna started cutting
grass, the women of the house of accused
came there and started cutting grass from
the field of Khuman and not from their own
field. When Khuman objected not to cut
grass from his field, the women of the
house of the accused started abusing Panna
due to which some altercations occurred,
thereafter, the Khuman asked them to get
away from his field on which they went
towards the village. However, at 01:00 p.m.
the accused persons, namely, Zalim, who
was having Pharsa, Baldev with Axe
(Kulhari) and Ram Charan with Lathi came
to the field of Khuman and asked Khuman
as to why he had asked women of their
house to go away on which Khuman
replied that as they were cutting grass from
his field, he asked them to go away.
Thereupon, all the three accused persons
started beating Khuman and when Lakhan-
86 INDIAN LAW REPORTS ALLAHABAD SERIES
Informant/P.W.-2,
Ghasiram-P.W.-3
and
Panna tried to save him, they also beat
them badly. It is further stated by P.W.-2
that Khuman died on the spot and
thereafter, P.W.-2, P.W.3 and Panna went to
the village, where, near the Bara of one
Desrau, they saw that Halku was lying on
the ground in an injured condition. They
were told that the accused persons, after
dragging Halku out of the entrance of his
house, beat him badly. Thereafter the
informant-P.W.-2 took Halku in a bullockcart to the Police Station but on the way
Halku
also
died.
Resultantly,
the
informant/P.W.-2
lodged
the
first
information report.

23. The P.W.-3, namely, Ghasiram, in
his examination, corroborating the entire
statement of informant-P.W.-2, has stated
that the accused beat Khuman badly and
when he, P.W.-2 and Panna tried to save
him, they were also beaten by the accused
persons in which he received fracture. Due
to injuries caused by the accused persons,
Khuman died on the spot. The P.W.-3
further stated that when he, P.W.-2 and
Panna went to the village, near the Bara of
one Desrau, they found their father Halku
was lying on the ground in an injured
condition.

24. P.W.-4 Dharam Das, who is also
an independent witness of the incident took
place in the field of Khuman, has stated
that at the time of occurrence, he along
with some other persons, was cutting grass
in the filed of one Nand Kishor, which was
at a distance of 50 paces from the field of
Khuman. At 01:00 p.m. in the afternoon,
they heard screaming of Lakhan, Panna and
Ghasiram and on hearing the same, they
reached the field of Khuman, where they
saw that the accused persons were beating
Khuman
and
when
Lakhan-P.W.2,
Ghasiram-P.W.3 and Panna tried to save
him, they were also beaten by the accused
persons. He also stated that Khuman had
died on the spot and P.W.-3 Ghasiram
sustained injuries, which were caused by
the
accused
persons
including
the
appellants.

25. P.W.-5, namely, Virendra Singh,
who is resident of the same village and is
an independent eye witness, has stated in
his examination that on the date of
occurrence at about 02:00 p.m. when he
was returning from the house of the
Pradhan, he heard shouts of the family
members of Halku and on hearing the
same, he reached near the door of house of
Halku and saw that the accused persons,
after dragging out Halku from his Entrance
of his house and taking him to the Bara,
started beating him and thereafter they ran
away. P.W.-5 is also the witness of the
Panchayatnama of Khuman and recovery of
ordinary earth and blood stained earth from
the field of Khuman as also from the Bara
of Desrau and from the entrance of Halku.

26. P.W.-6 Dr. S.K. Jain, who has
medically examined the injured P.W.-2
Lakhan, P.W.-3 Ghasiram and Panna on
30th September, 1977, has found injuries
on the body of the aforesaid injured, which
have already been quoted herein above. He
has stated that except injury no.1 sustained
by P.W.-3 Ghasiram, all injuries sustained
by all the injured are simple in nature and
caused due to blunt object. Qua injury no.1
sustained by P.W.-3, he has advised him for
X-ray.

27. P.W.-7, namely, Beti Bai, who is
married daughter of the deceased Halku
and eye witness of incident in which her
father was murdered, has stated in her
examination that on the date of incident,
9 All. Raj Charan & Anr. Vs. State
87
when she along with Halku and some
members of her family was sitting in the
entrance of her house, accused persons
came and started beating Halku and then
after dragging him to Bara of Desrau, they
again started beating Halku with Pharsa,
Kulhari and Lathi. After beating Halku, all
the accused persons ran away. Just after,
P.W.-2 Lakhan, P.W.-3 Ghasiram and Panna
reached there and they took Halku to the
Police Station.

28. In the examination, P.W.-8,
namely, Dr. R.C. Gupta, has taken X-ray of
left forearm of P.W.-3 and found fracture.

29. P.W.-9, Head Constable Rajendra
Kishore, who had prepared the chik report
(Exhibit-Ka3) and also registered the case
in the General Diary. He stated in his
examination that he had also received
sealed bundles of the earth recovered by the
Investigating Officer (P.W.-10) from the
field of Khuman, from Bara of Desrau and
from the entrance of the house of Halku as
well as other sealed bundles of material,
which were marked as exhibits.

30.

P.W.-10
Sub-Inspector
Vishwambhar Dayal, who was posted at
Police Station-Mauranipur, District Jhansi
where the case was registered, has stated in
his examination that the dead body of the
deceased Halku had been brought to the
Police Station by the informant-P.W.-2
Lakhan
and
he
prepared
the
Panchayatnama (inquest report) of the dead
body. He also recovered blood stained kurta
and pancha (paijama) from the dead body
of Halku and prepared the recovery memo
(Exhibit-Ka-20). He further stated that he
sent the dead body of Halku for postmortem
and
recorded
statements
of
informant-P.W.2, Panna and GhasiramP.W.-3. Thereafter he went to the field of
Khuman and found the dead body of
Khuman on his field. After preparing
panchayatnama (inquest report), P.W.-10
sent the dead body of Khuman for postmortem. After inspection, he prepared the
site plan (Exhibit-Ka-20). P.W.-10 had also
recovered the blood stained and ordinary
earth from the places of occurrence, like
field of Khuman, Bara of Desrau and
entrance of the house of Halku. After
collecting
necessary
evidence
and
recording statements of witnesses, he had
submitted the charge-sheet against all the
accused persons.

31. From the testimony of the
aforesaid ten prosecution witnesses, it is
apparently clear that there are two injured
eye witnesses of murder of the deceased
Khuman, namely, Lakhan and Ghasiram
(P.W.-2 and P.W.-3), whereas Panna, who
was also injured eye-witness of murder of
the deceased Khuman, had not been
adduced as prosecution witness. Apart from
the above, there are two independent eyewitnesses,
namely,
Dharam
Das
and
Virendra Singh (P.W.-4 and P.W.-5),
Dharam Das is an independent eye-witness
of the murder of Khuman and Virendra
Singh is an independent eye-witness of
murder of Halku. Apart from the above,
Beti Bai (P.W.-7), daughter of the deceased
Halku, is also an eye-witness of the
decreased
Halku.
All
the
aforesaid
witnesses
have
fully
supported
the
prosecution story.

32. For examining the correctness or
otherwise of the judgment and order of
conviction, the version of prosecution as
well as defence and the submissions made
by the learned counsel for the parties, it is
necessary for us to refer certain case laws
laid down by the Apex Court on the
subject.
88 INDIAN LAW REPORTS ALLAHABAD SERIES

33. In the case of Kartik Malhar V
State of Bihar reported in 1996 CRL. L.J.
889, the Apex Court has held as under:-

"We may also observe that the
ground that the witness being a close
relative and consequently, being a partisan
witness, should not be relied upon, has no
substance. This theory was repelled by this
Court as early as in Dalip Singh's case,
AIR 1953 SC 364 in which this Court
expressed its surprise over the impression
which prevailed in the minds of the
members of the Bar that relatives were not
independent witnesses."

34. In the case of Shyam Babu V
State of UP AIR reported in 2012 SC 3311,
the Apex Court has held as under:-

"Where the presence of the eyewitnesses is proved to be natural and their
statements
are
nothing
but
truthful
disclosure of actual facts leading to the
occurrence, it will not be permissible for
the Court to discard the statement of such
related or friendly witnesses. There is no
bar in law on examining family members or
any other person as witnesses. In fact, in
cases involving family members of both
sides, it is a member of the family or a
friend who comes to rescue the injured. If
the statement of witnesses, who are
relatives or known to the parties affected is
credible,
reliable,
trustworthy
and
corroborated by other witnesses, there
would hardly be any reason for the court to
reject such evidence merely on the ground
that the witness was a family member or an
interested witness or a person known to the
affected party or friend etc"

35. The Apex Court in the case of
State of U.P. Vs. Kishan Chand & Others
reported in (2004) 7 SCC 629, has opined
that just because the witnesses are related
to the deceased would be no ground to
discard their testimony, if otherwise, their
testimony inspire confidence. In the given
facts of the present case, they are but
natural witnesses. The Apex Court has
further opined that the testimony of an
injured witness has its own relevance and
efficacy. The fact that the witnesses
sustained injuries at the time and place of
occurrence lends support to their testimony
that the witnesses were present during the
occurrence. The injured witnesses were
subjected to lengthy cross-examination but
nothing could be elicited to discredit their
testimony (Reference-paragraph nos. 9 and
10 of the aforesaid judgment of the Apex
Court).

36. The Apex Court in the case of
State of Jammu and Kashmir vs. S.
Mohan Singh & Others reported in (2006)
9 SCC 272, the Apex Court has observed
that it is well settled that in a murder trial,
merely because a witness is interested or
inimical, his evidence cannot be broadly
discarded unless the same is otherwise
found to be not trustworthy. In the said
case, the view of the Apex Court was that
the evidence of these two witnesses is
credible more so when witness Ram Lal
received injuries. For ready reference,
relevant paragraph of the said judgment
reads as follows:

"Other two eyewitnesses are the
informant Ram Lal and his brother Babu
Ram. Ram Lal is father of deceased Yush
Paul Singh whereas witness Babu Ram is
uncle of deceased Yush Paul Singh. These
two
witnesses
have
supported
the
prosecution case disclosed in the first
information
report
in
all
material
particulars and consistently stated that
respondent No. 1 caught hold of the
9 All. Raj Charan & Anr. Vs. State
89
deceased and respondent No. 2 inflicted
injuries upon him with knife. We have been
taken through the evidence of these two
eyewitnesses in extenso. Their evidence is
quite consistent, natural and both the
witnesses have stood the test of lengthy
cross-examination broadby the defence.
Out of these two witnesses, Ram Lal was
the informant and an injured witness as the
doctor who examined him on the date of
occurrence itself found that he received
injuries by hurling of stone. Nothing could
be pointed out on behalf of defence to show
that the evidence of these two eyewitnesses
is not credible, excepting this that they were
interested witnesses. The High Court was
not justified in disbelieving them on the
sole ground that they were interested
persons.