Case: Shyam Behari Vs. State of Uttar Pradesh

that this was the job of a person who had plenty of venom against the victim and not of a hired assassin like the appellant who admittedly is a pahalwan.(xi) Two dandas were recovered from the place where the deceaseds torch was found in the sugarcane field of Raghunath Joshi; no witness has said that the appellant was carrying any danda when he called the victim from his house.(xii) The appellant being a bad character, and allegedly carrying a knife was found to whip out his knife before submitting tamely to the arrest.(xiii) Semi-digested food was found in the stomach of the deceased which indicated that the fatal assault had been made on the deceased two hours and not 20 minutes after the ingestion of the food.(xiv) After his arrest and the seizure of the knife from him, the appellant was asked as to what sort of knife it was. Such a question, according to the trial Judge was incompatible with the confession said to have been made by the appellant.(xv) In all probability, the deceased died immediately after the assault and did not survive long enough to make a dying declaration.(xvi) The location of the injuries found on the appellant indicated that they had been inflicted after his arrest and not in the course of the pursuit.10. The learned Judges of the High Court have considered and dispelled and in our opinion rightly those of the above reasons which were less flimsy and merited some discussion to be rejected. We therefore do not propose to go over the entire field again.11. The learned trial Judge brushed aside the evidence of Vijai PW merely for the reason that he was the real brother of the deceased. He cast aside the testimony of Babu Singh on the ground that since he had sold away his entire land in this village his presence at Bhatpura at the time of the occurrence was improbable. He dubbed Misri Lal as an "interested" witness merely for the reason that he along with Vijai had accompanied the cart in which Barey Lal was taken to the police station. As regards Prem Narain, the learned Judge observed thathe is a chance witness whose story about his presence on the scene does not carry conviction.12. The learned Judges of the High Court have very cogently discounted these so-called "reasons" advanced by the Sessions Judge and found that the testimony of Vijai Babu Sing and Misri Lal was creditworthy. We entirely agree with that assessment of the evidence made by the High Court. The account given by PWs Vijai, Babu Singh and Misri Lal was highly probable. The field of occurrence was hardly one furlong from the habitation of village Bhatpura. The occurrence took place at about 8-30 p. m. It was quit natural for the witnesses to be awake and present at or near their houses. At that hour in the stillness of the night, the screams of the deceased must have been heard by the villagers, including these PWs. Vijai had only 20 minutes earlier seen the deceased going away with the appellant. He was present in front of his house and so was Babu Singh at the adjoining house when they heard the outcry of the deceased. It was therefore, quite natural for these two witnesses to rush together towards the field from where the cries were emanating. There were as many as 22 injuries on the deceased. The latter also must have struggled hard to escape the blows. The assault therefore must have been going on for about 4 or 5 minutes at least. There was thus ample time for these PWs to reach near the spot when the assault was in progress. At least they must have in all probability seen the appellant and his companions running away from the scene. The truth of the version that these witnesses had actually seen the appellant assaulting the deceased and then running away is guaranteed by the circumstance that the appellant was arrested soon after the assault after a hot pursuit and the bloodstained knife was also seized from him. The appellants plea that he had been arrested from the house of his father-in-law in another village at midnight was palpably false. By 10 p. m. the F. I. R and the appellant had both been lodged in the police station which is four miles from village Bhatpura. There was no time for the PWs to stage-manage a fake arrest or to spin out a false story. The fact that Barey Lal expired on his way to the hospital, also lends assurance to the conclusion that they must have seen the assault on the deceased. This also lends strength to their version that the deceased had made a dying declaration in which he had denounced the appellant as his assailant.13. As rightly observed by the learned Judge of the High Court, Babu Singh still owns his house in village Bhatpura. His family lives there. By no stretch of imagination therefore his presence at his own house in Bhatpura could be called unnatural. Misri Lal could not be branded as "interested" simply because he had accompanied the deceased and his brother to the police station.14. Mr. Kohli contended that both the courts below had found that Prem Narain had been falsely inducted as a witness in this case and this circumstance alone was sufficient to hold suspect the testimony of the eyewitnesses. We are afraid this contention cannot prevail. The courts below have not positively held that Prem Narain was a false witness. We have already noticed why the trial Judge found his evidence "unconvincing". The High Court also, did not rely on him as a matter of caution. It never held that Prem Narain was a downright liar.15. Thus, no inference against the veracity of PWs 1, 2 and 3 can be drawn on that score. Nor was it necessary for the prosecution to produce all those who had at some later stage joined the chase.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. The contention cannot be accepted. Having heard the Counsel and scrutinized the record, we are of opinion that the view taken by the learned Sessions Judge was manifestly erroneous. His very approach was odd and conceived in a fanciful setting. That was why what in reality were insignificant, neutral orfeatures of the case appeared to him odd features throwing a cloud on the veracity of the prosecution. The exceedingly speculative nature of his "reasoning" is patent.The learned Judges of the High Court have considered and dispelled and in our opinion rightly those of the above reasons which were less flimsy and merited some discussion to be rejected. We therefore do not propose to go over the entire field again.11. The learned trial Judge brushed aside the evidence of Vijai PW merely for the reason that he was the real brother of the deceased. He cast aside the testimony of Babu Singh on the ground that since he had sold away his entire land in this village his presence at Bhatpura at the time of the occurrence was improbable. He dubbed Misri Lal as an "interested" witness merely for the reason that he along with Vijai had accompanied the cart in which Barey Lal was taken to the police station. As regards Prem Narain, the learned Judge observed thathe is a chance witness whose story about his presence on the scene does not carry conviction.12. The learned Judges of the High Court have very cogently discounted these"reasons" advanced by the Sessions Judge and found that the testimony of Vijai Babu Sing and Misri Lal was creditworthy. We entirely agree with that assessment of the evidence made by the High Court. The account given by PWs Vijai, Babu Singh and Misri Lal was highly probable. The field of occurrence was hardly one furlong from the habitation of village Bhatpura. The occurrence took place at aboutp. m. It was quit natural for the witnesses to be awake and present at or near their houses. At that hour in the stillness of the night, the screams of the deceased must have been heard by the villagers, including these PWs. Vijai had only 20 minutes earlier seen the deceased going away with the appellant. He was present in front of his house and so was Babu Singh at the adjoining house when they heard the outcry of the deceased. It was therefore, quite natural for these two witnesses to rush together towards the field from where the cries were emanating. There were as many as 22 injuries on the deceased. The latter also must have struggled hard to escape the blows. The assault therefore must have been going on for about 4 or 5 minutes at least. There was thus ample time for these PWs to reach near the spot when the assault was in progress. At least they must have in all probability seen the appellant and his companions running away from the scene. The truth of the version that these witnesses had actually seen the appellant assaulting the deceased and then running away is guaranteed by the circumstance that the appellant was arrested soon after the assault after a hot pursuit and the bloodstained knife was also seized from him. The appellants plea that he had been arrested from the house of hisin another village at midnight was palpably false. By 10 p. m. the F. I. R and the appellant had both been lodged in the police station which is four miles from village Bhatpura. There was no time for the PWs toa fake arrest or to spin out a false story. The fact that Barey Lal expired on his way to the hospital, also lends assurance to the conclusion that they must have seen the assault on the deceased. This also lends strength to their version that the deceased had made a dying declaration in which he had denounced the appellant as his assailant.13. As rightly observed by the learned Judge of the High Court, Babu Singh still owns his house in village Bhatpura. His family lives there. By no stretch of imagination therefore his presence at his own house in Bhatpura could be called unnatural. Misri Lal could not be branded as "interested" simply because he had accompanied the deceased and his brother to the policecourts below have not positively held that Prem Narain was a false witness. We have already noticed why the trial Judge found his evidence "unconvincing". The High Court also, did not rely on him as a matter of caution. It never held that Prem Narain was a downright liar.15. Thus, no inference against the veracity of PWs 1, 2 and 3 can be drawn on that score. Nor was it necessary for the prosecution to produce all those who had at some later stage joined the chase.