IMPORTANT POINT
Failure of prosecution to examine independent eyewitnesses whose statements were recorded, becomes very relevant in a murder case.

JUDGMENT :

ABHAY S. OKA, J.

FACTUAL ASPECTS

1. The appellant is the original accused no. 9. The appellant and the accused no. 10 - Ram Bachan, were convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short ‘IPC’). Accused nos. 1 to 8 were convicted for the offence punishable under Section 325 read with Section 149 of IPC. The appellant and the accused no. 10 were sentenced to undergo life imprisonment. The accused no. 10 died during the pendency of the appeal before the High Court of Judicature at Allahabad.

2. The incident is of 17th August 1984. According to the prosecution’s case, PW-1 Uday Raj Maurya, PW-2 Ram Aadhar (father of PW-1) and Karam Hussain (deceased) were sitting near the doorsteps of the house of PW-1 and PW-2. Their discussion was about irrigating the fields. According to the prosecution’s case, there was previous enmity between PW-1 and PW-2 on the one hand and the accused persons on the other. There was a case filed against the family of the accused no. 1 in which PW-2 was a witness. According to the prosecution’s case, a decree was passed in favour of PW-1 and PW-2 and against accused no. 7 Tufani. Moreover, PW-2 had filed the case against accused no. 3 and accused no. 4. While PW-1, PW-2 and the deceased were discussing the issue of irrigating their fields, the accused persons came there carrying bricks and bamboo sticks. The appellant was carrying a spade. At that time, accused nos.4 and 6 shouted that PW-1, PW-2 and the deceased should be killed so that the case gets finished. On hearing this, PW-1, PW-2 and the deceased ran towards the northern side of the house of PW-1. The accused persons chased and surrounded them. The appellant attacked the deceased on his head with the blunt edge of the spade. He also attacked PW-2 by using the same weapon. After the deceased fell down, the accused continued to assault the said three persons with bamboo sticks. Karam Hussain, the deceased, succumbed to the injuries sustained due to the assault made by the appellant and the accused no. 10. The prosecution examined eight witnesses, out of which, PW-1 and PW-2 were the eyewitnesses. The Sessions Court believed the testimony of PW-1 and PW-2 and convicted the accused. In the appeal before the High Court, the conviction of the appellant was confirmed. However, accused nos. 1 and 2, who were the only other surviving accused, were acquitted.

SUBMISSIONS

3. The learned counsel appearing for the appellant urged that both PW-1 and PW-2 admitted in the cross-examination that they had not seen which accused assaulted the deceased. Moreover, three eyewitnesses who were present at the time of the incident were not examined. He, therefore, submitted that the conviction of the appellant cannot be sustained.

4. The learned senior counsel representing the respondent – State of Uttar Pradesh pointed out that both PW-1 and PW-2 have clearly stated that the appellant assaulted the deceased on his head with the blunt edge of the spade. He submitted that the medical evidence supports the version of PW-1 and PW-2 as far as the assault by the appellant on the deceased is concerned. He submitted that both the Courts have believed the testimony of PW-1 and PW-2 as far as the assault on the deceased is concerned and that there was no perversity in the findings recorded by the Sessions Court and the High Court. He submitted that no interference be made with the conviction of the appellant.

OUR VIEW

5. We have perused the evidence of PW-1 and PW-2. We may note here that the High Court has disbelieved their versions to the extent to which they deposed about the injuries received by them in the incident at the hands of the accused. In fact, there is a specific finding that the version of PW-1 and PW-2 about the assault on them does not inspire confidence.

6. It is true that both PW-1 and PW-2, in their examination-in-chief, have stated that the appellant assaulted the deceased on his head w