Case: Vijendra Singh &amp; Another Vs. State of Uttar Pradesh

, Dharam Pal and his family on the one side and Charan Singh, PW-1, on the other. Charan Singh, PW-1, Gajpal, PW-2, Tedha, PW-3 and Nepal Singh belong to village Dastoi, to which the deceased, Badan Pal, the nephew of Charan Singh as well as the accused persons belong. As the prosecution story further unfurls, sometime prior to the occurrence, Gaje Singh, brother of the accused, Dharam Pal, was murdered and Charan Singh, PW-1, along with others had faced trial for his murder and eventually got acquitted. The occurrence leading to the murder of Badan Pal took place in the evening hours of 26.03.1979. Badan Pal was a student and he used to stay overnight at his tube-well which had a shed in the jungle of village Sarva. On the date of occurrence, he was at the aforesaid tube-well. Gajpal, PW-2, and Nepal Singh in the fateful evening while carrying the meals for Badan Pal, on their way, met Tedha, PW-3, who wanted to irrigate his fields from the aforesaid tube-well. All of them reached near the said tube-well about 7.30 p.m. when they heard the sound of a gun fire from inside the "kotha" (shed) of the said tube-well. They reached the place without loss of any time and noticed that all the four accused, namely, Dhani Ram, Dharam Pal, Mahendra and Vijendra, came out of that "kotha". Dhani Ram and Dharam Pal carried pistols, Vijendra was armed with a ballam and Mahendra carried a lathi. On seeing them, they took to their heels. After they reached the place, they found Badan Pal lying dead with bleeding wounds. The aforesaid witnesses identified the accused persons in the light of the electric bulb fixed on the roof of the tube-well as well as in the torch light. A report of the occurrence was prepared by Devendra Singh with the assistance of Charan Singh, PW-1, and was filed at Police Station Kharkhauda. After the criminal law was set in motion, the investigation was conducted by S.I. Rajveer Singh, PW-8, who after recording the statements of some of the witnesses under Section 161 CrPC between 6 a.m. to 8 a.m. on the next day, prepared the panchanama and the sketch map of the spot and collected blood stained and unstained earth as well as two cartridges. These were sealed on the spot and the dead body was sent for postmortem. On 29.03.1979, the investigation was transferred to S.I. V.P. Saxena and he came to learn on 11.04.1979 that all the accused persons except Dhani Ram had surrendered before the Court and had been sent to custody. Dhani Ram was arrested by S.I. V.P. Saxena at Meerut on 19.04.1979. Eventually after concluding the investigation, charge sheet was laid against the accused persons before the concerned Magistrate.3. After the matter was committed to the Court of Session, charges were framed under Section 302 read with Section 34 IPC against the accused persons on 10.01.1980. The accused persons abjured their guilt and intended to face trial. The prosecution in order to bring home the charges examined 11 witnesses and marked certain documents as exhibits. Defence chose not to adduce any evidence.4. The trial court evaluating the ocular and the documentary evidence brought on record found the accused person guilty of the offence under Section 302 read with Section 34 IPC and sentenced them to suffer rigorous imprisonment for life.5. The conviction and sentence was challenged before the High Court by all the four accused persons. One of the accused, namely, Dhani Ram expired during the pendency of the appeal before the High Court and the appeal qua Dhani Ram stood abated. As far as the other three accused persons, namely, Dharam Pal, Mahendra and Vijendra, were concerned, the High Court concurred with the view expressed by the trial court and resultantly dismissed their appeal. Be it stated here that Dharam Pal has also expired, as has been stated by the learned counsel for the appellant. Be that as it may, there is no appeal at his instance. The present two appeals have been preferred by the two appellants who are aggrieved by the affirmation of the judgment of conviction and order of sentence by the High Court.

Reasoning:
26. It is next contended by Mr. Giri, learned counsel for the appellants that all the eyewitnesses are related to the deceased Badan Pal and they being interested witnesses, their version requires scrutiny with care, caution and circumspection and when their evidence is scanned with the said parameters, it does not withstand the said test for which the case set forth by the prosecution gets corroded and the principle of beyond reasonable doubt gets shattered. The aforesaid submission, as we perceive, has no legs to stand upon, for PWs-1 to 3 have deposed in detail about the previous enmity between the parties, their presence at the spot, the weapons the accused persons carried, their proximity to the shed and establishment of the identity of all the four accused.27. Mr. Giri, learned senior counsel for the appellant has also impressed upon us to discard the testimony of PW-3, Tedda, on the ground that he is a chance witness. According to him, his presence at the spot is doubtful and his evidence is not beyond suspicion. Commenting on the argument of chance witness, a two-Judge Bench in Rana Pratap and Ors. v. State of Haryana, 1983(2) R.C.R.(Criminal) 532 : (1983) 3 SCC 327  was compelled todo not understand the expression "chance witnesses". Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed on a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere "chance witnesses". The expression "chance witnesses" is borrowed from countries where every mans home is considered his castle and every one must have an explanation for his presence elsewhere or in another mans castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are "chance witnesses", even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence.Tested on the anvil of the aforesaid observations, there is no material on record to come to the conclusion that PW-3 could not have accompanied PW-2 while he was going to the shed near the tube-well. What has been elicited in the cross-examination is that he was not going daily to the tube-well. We cannot be oblivious of the rural milieu. No adverse inference can be drawn that he was not going daily and his testimony that he had accompanied PW-2 on the fateful day should be brushed aside. We are convinced that his evidence is neither doubtful nor create any suspicion in the mind.29. Thus, the real test is whether the testimony of PWs1 to 3 are intrinsically reliable or not. We have already scrutinized the same and we have no hesitation in holding that they satisfy the test of careful scrutiny and cautious approach. They can be relied upon.Tested on the aforesaid parameters, we are unable to accept the submission of Mr. Giri that non-examination of Nepal Singh and other two persons who had been referred to by PW-2 affects the prosecution version or creates any doubt in the mind of the Court. We arrive at such a conclusion since the witnesses examined by the prosecution are trustworthy and the court can safely act on their testimony. There is no justification in the instant case to draw any adverse inference against the prosecution.33. Mr. Giri, learned counsel for the appellants laying stress on the absence of injury caused by lathi on the person of the deceased has urged that the appellant- Mahendra Singh cannot be convicted in aid of Section 34 IPC. In that regard, he has commended us to the authority in Bijendra Bhagat (supra). Learned counsel has drawn inspiration from paragraph four of the said decision. The relevant part of the said paragraph is asAccording to the witnesses these two accused were also armed with country-made pistols. The injuries suffered by the deceased are incised wounds and one firearm injury. However, none of the injuries on the person of the deceased could be attributed to the lathi which was supposedly in the hands of the appellant. Undoubtedly, three injuries on the person of Sanjay Kumar could be caused by a hard and blunt object. But having gone through the testimony of the witnesses and the other materials on record, the presence of the appellant and his involvement in the incident clearly appears to be doubtful. We, therefore, deem it appropriate to give the appellant benefit of doubt. ...Relying on the same, it is contended by Mr. Giri that when there is no lathi blow on the person of the deceased as noticeable from the post mortem report, the appellant- Mahendra Singh deserves to be acquitted. The passage that has been commended to us has to be correctly appreciated. In that case, the Court has referred to injury caused on the person of the deceased and noticed how the injury was caused but the reason for acquittal is that the presence of the appellant therein and his involvement in the incident appeared to the Court to be doubtful. If a person is not present at the spot, the question of common intention does not arise. As has been held in Pandurang (supra), if the common intention is established, an accused can be convicted. We have already discussed the role attributed to the appellant- Mahendra Singh by the prosecution. He had gone with other accused persons, who were carrying pistols and ballam. He himself was carrying a lathi. Similarly, accused-appellant Vijendra Singh was carrying a ballam and accompanying others. Their intention was to go to the shed where the deceased was studying because of availability of the electric light, has been established. Common intention can be gathered from the facts and circumstances and in the instant case, the same is clearly discernable and hence, the decision in Bijendra Bhagat (supra) is of no assistance to the appellant.35. In view of the aforesaid analysis, we do not find any merit in Criminal Appeal No. 1452 of 2010 preferred by Mahendra Singh and the same is, accordingly, dismissed.36. As far as appellant-Vijendra Singh is concerned, a report was called for and he has been found to be a juvenile being 16 years 3 months 10 days old on the date of offence. The said report has gone unchallenged and Mr. Dash, learned senior counsel appearing for the State, has fairly stated that he was a juvenile on the date of offence. Mr. Giri has commended us to the authority in Hari Ram (supra). We find that the Court relying on Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the amendments introduced in Section 20 of the 2000 Act whereby the proviso and Explanation were added to Section 20 and the Juvenile Justice (Care and Protection of Children) Rules, 2007, remitted the matter to the Juvenile Justice Board with the observation that if he had been detained for more than the maximum period for which a juvenile may be confined to a special home, the Board shall release him from custody forthwith. In the case at hand, as the appellant-Vijendra Singh remained in custody for more than the maximum period for which he could have been confined to a special home, while sustaining the conviction, we release him from custody forthwith.