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IN THE HIGH COURT OF ALLAHABAD
PALOK BASU, P. P. GUPTA, JJ.
DEBI DIN - Appellant
Versus
STATE OF U.P - Respondents
Criminal Appeal 225 Of 1979
Decided On : 09/04/1991
CRIMINAL APPEAL - MURDER - EYE-WITNESS TESTIMONY - MEDICAL EVIDENCE - TIME OF DEATH - RELIABILITY OF WITNESSES - MOTIVE - COMMON OBJECT - UNLAWFUL ASSEMBLY - SECTION 302/149, 148, 147, IPC - INTERPRETATION AND APPLICATION
Fact of the Case:
Five accused were charged with murder under Section 302/149, IPC, and additional charges under Sections 148 and 147, IPC, for their involvement in the murder of Ram Nath. The prosecution relied on the testimony of four eyewitnesses, including two children, who witnessed the incident and identified the accused. Medical evidence established that the time of death was between 12 and 36 hours before the post-mortem examination, which was conducted on September 29, 1975.
Finding of the Court:
The court found that the prosecution had successfully proven the charges against the accused appellants, except for Pheru, who was given the benefit of the doubt due to the lack of a typical lathi injury on the deceased. The court upheld the convictions and sentences of Bhagirath, Madanpal, and Debi Din alias Debiya under Sections 302/149, 148, and 147, IPC, and dismissed their appeals. The appeal of Debi Din, son of Govind Das, abated due to his death during the pendency of the appeal. The appeal of Pheru, son of Ram Charan, was allowed, and he was acquitted of all charges.
Issues: 1. Reliability and credibility of eyewitness testimony, particularly that of child witnesses. 2. Interpretation of medical evidence to determine the time of death and its relevance to the prosecution's case. 3. Assessment of motive and common object in the context of unlawful assembly and murder. 4. Application of Sections 302/149, 148, and 147 of the Indian Penal Code (IPC) in the given circumstances.
Ratio Decidendi: 1. The court emphasized the importance of scrutinizing eyewitness testimony, especially that of child witnesses, to ensure their reliability and credibility. The court found the testimony of the two child witnesses, P.W. 3 Brikhbhan and P.W. 4 Mangal, to be consistent, detailed, and convincing, despite attempts by the defense to discredit them. 2. The court relied on the medical evidence provided by Dr. H.C. Pandey, who conducted the post-mortem examination, to determine the time of death. The court accepted Dr. Pandey's opinion that the time of death was between 12 and 36 hours before the post-mortem examination, based on the presence of greenish discoloration, blisters, and peeling skin on the deceased's body. 3. The court found that the prosecution had established the motive for the murder, which stemmed from a previous incident involving the deceased and the accused. The court also held that the accused had formed an unlawful assembly with the common object of committing murder, as evidenced by their coordinated actions and the use of deadly weapons. 4. The court applied Sections 302/149, 148, and 147 of the IPC to the case, finding that the accused were guilty of murder committed in the course of an unlawful assembly. The court upheld the convictions and sentences imposed by the trial court, except for Pheru, who was given the benefit of the doubt.
Final Decision: The appeal of Bhagirath, Madanpal, and Debi Din alias Debiya was dismissed, and their convictions and sentences were upheld. The appeal of Debi Din, son of Govind Das, abated due to his death. The appeal of Pheru, son of Ram Charan, was allowed, and he was acquitted of all charges.
( 1 ) DEBI Din, son of Govind Dass, Bhagirath, Preru, Madan Pal, Debi Din alias Debiya (hereinafter referred to as Debiya) and Sunder were prosecuted by the police of police station Rath, district Hamirpur for having committed murder of Ram Nath in the afternoon of 28-9-1975.
( 2 ) SUNDAR accused having absconded during the trial his case was separated and only the five remaining accused were tried in Sessions Trial No. 220-A of 1975 and each of them has been convicted u/s. 302/149, IPC and sentenced to imprisonment for life with the additional conviction and sentence of Debi Din, Bhagirath, Madan Pal and Debiya u/ S, 148 ,ipc to one years R. I. and appellant Pheru u/s. 147, IPC to six months R. I. by thc Additional Sessions Judge, Hamirpur on 10-1-1979. Aggrieved, they have preferred this appeal.
( 3 ) IT may further be relevant to add here that the appellant Debi Din, son of Govind Dass was said to have died during the pendency of the appeal, consequently a report was called from the Chief Judicial Magistrate, Hamirpur Who has submitted his report dated 17-1-1979 certifying that the said appellant is dead in the police encounter. Consequently his appeal abates.
( 4 ) ACCORDING to the prosecution story accused Debi Din and Bhagirath are brothers and accused Sunder was in the employment of Debi Din. Accused Debiya and Madan Pal are also brothers. Accused Pheru is related to them. Ram Nath deceased was father of P. W. 4 Mangal, the informant. About a year ago Debi Din, Bhagirath and one Chhamaiya were prosecuted for the murder of one Jagannath, brother of Ram Nath deceased and uncle of P. W. 3 Brikh Bhan. Ram Nath was doing Pairvi on behalf of his dead brothers family in the said case. That was the motive. On 28-9-1975 in the afternoon Ram Nath was going to his field carrying fodder along with P. W. 4 Mangal carrying Roti for labours and P. W. 3 Brikhbhan, nephew carrying water in a pitcher. When they reached mango trees in the field of Gajraj known as Molaha Bagicha accused Sundar with S. B. B. L. gun, Debi Din with D. B. B. L. gun Bhagirath with S. B. B. L. gun, Madan Pal with axe, Debiya with Pharsa, Pheru with lathi were present. Sundar challenged and fired at Ram Nath and then Bhagirath and Debi Din fired at him. These two child witnesses raised hue and cry attracting Nathu and Hindupat who were sitting under the mango trees of Gajraj Lodhi in the close vicinity. Before such firing, Madan Pal caught hold of Brikhbhan and Debiya caught hold of Mangal and then Bhagirath and Debi Din fired. Brikhbhan has stated that when Sundar challenged, he and Mangal started crying which attracted the attention of the other two witnesses Natthu and Hindupat and Sundar at once fired at Ram Nath. Ram Nath having thrown the basket of fodder, ran towards the mango trees of Gajraj Lodhi and then the said two persons Brikhbhan and Mangal were caught soli of by the said accused persons. Then Bhagirath and Debi Din fired at and Ram Nath fell down in the ploughed field of Gajraj Lodhi. Then they stated that they were released from the hold of the said two accused persons and the accused persons went to the place where Ram Nath was lying and cut away his right hand, penis and neck and having taken off his clothes, ran away towards the village Tikariya. The fodder carried by Ram Nath was scattered in the field and human dung was also found at the place of occurrence. Mangal, Brikhbhan, Natthu and Hindupat reached near Ram Nath and found that he was lying dead, his right hand was missing, his neck was cut and his penis was also missing. Mangal went to the police station Rath which was about eight miles away from the place of occurrence and lodged an oral First Information Report at 5-15 p. m. on 28-9-1975.
( 5 ) THE primary charge against the appellants was that on 28-9-1975 in the afternoon five appellants had formed an unlawful assembly with the common object of committing, the murder of Ram Nath, son of Ghasi Ram of village Para and,
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