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2002 DIGILAW 1665 (ALL)

CHHOTKAN v. STATE OF U P

2002-11-13

R.C.PANDEY, VISHNU SAHAI

body2002
VISHNU SAHAI, J. Through this appeal the appellant Chhotkan challenges the judgment and order dated 30-10-1980 passed by the Sessions Judge, Kheri in Sessions Trial No. 296 of 1980, whereby he has been convicted and sentenced to undergo imprisonment for life for the offence punishable under Section 302 IPC. 2. Shortly, stated, the prosecution case runs as under : Between the informant Ali Sher (PW-1) and the appellant there was ill-will because there were illicit relations between the appellant and the informants wife Aaysha. Since the said relationship had become public the appellant bore grudge against the informant. On 20-8-1979,the informant had gone to sell some grocery items to Karanpur Bargadiya market. The deceased Rasool Ahmad, who used to work as a labourer for him, had also accompanied him. In the market the informant also met Yusuf Ali (PW-3) and Chhiddu (PW-4 ). After sunsets, the informant Ali Sher the deceased Rasool Ahmad, Yusuf Ali and Chhiddu started returning from the market towards their house. At about 8. 00 p. m. when they had reached near the grove of Suraj Bali Pandit on the canal road within the limits of Village Saktapur Police Station Phardan District Kheri, they saw in the torch light flashed by Yusuf Ali that three persons emerged from behind the wall near a culvert. Two of them were unknown and the third was the appellant. The appellant came infront of them and reprimanded the informant. Rasool Ahmad, who was with a cycle, handed over the cycle to the informant, reprimanded the appellant ; and tried to catch hold of him. At that juncture the appellant came in front of Rasool Ahmad and fired upon him with a pistol. Rasool Ahmad thereafter ran some distance but fell down. The informant and others feared that they may be the next targets and consequently implored the appellant not to assault them. The appellant ran away in the western direction. Thereafter the informant and others went to village Saktapur and informed the villagers that appellant had killed Rasool Ahmad. Then the villagers, alongwith the informant and others came to the place of the incident. They found that the corpse of Rasool Ahmad was not there. It was then that the informant and others went to the market and from the shop of Ismail took some paper on which the informant got the FIR scribed by Yusuf Ali. Then the villagers, alongwith the informant and others came to the place of the incident. They found that the corpse of Rasool Ahmad was not there. It was then that the informant and others went to the market and from the shop of Ismail took some paper on which the informant got the FIR scribed by Yusuf Ali. Whatever the informant Ali Sher dictated, Yusuf Ali scribed. Thereafter, he read over the FIR to the informant who signed the same. Then the informant went to Police Station Phardan and lodged his FIR. 3. The evidence of SO Narendra Mohan Singh (PW-6) shows that on 20-8-1979 the FIR was lodged in his presence at Police Station Phardan by Ali Sher (PW-1) and on its basis Clerk Constable Ram Prakash Mishra prepared the Chik FIR (Exhibit Ka-5 ). A perusal of the Chik FIR shows that the FIR was lodged on 20-8-1979 at 10. 30 p. m. at Police Station Phardan, which was situated at a distance of two kilometres from the place of the incident. 4. The evidence of SO Narendra Mohan Singh (PW-6) shows thus : After registration of the FIR he recorded the statements of the informant Ali Sher, Yusuf Ali and Chhiddu (the latter two had accompanied the informant to the police station ). Thereafter he left for the place of the incident, which he reached at about mid-night. He searched for the corpse of Rasool Ahmad, but could not find it. On 21-8-1979 he took from the place of the incident blood stained and plain earth under recovery memos and on the pointing out of the informant and eye-witnesses prepared the site plan. On 22-8-1979 he received information about the corpse. The same day he reached a field situated near canal and therefrom recovered the corpse of Rasool Ahmad and prepared the inquest and then sent it for autopsy. On 31-8-1979 he inspected the torch of Yusuf Ali and found it in working order. On 9- 11-1979 he submitted the charge-sheet against the appellant. 5. Going backwards the autopsy on the corpse of Rasool Ahmad was conducted on 23-8-1979 at 10. 00 p. m. by Dr. R. C. Joshi (PW-2), who found on it the following ante-mortem injuries : (i) Gun shot wound of entry over the right side of chest 4 cm below the right collar bone measuring 4 cm x 3. 5. Going backwards the autopsy on the corpse of Rasool Ahmad was conducted on 23-8-1979 at 10. 00 p. m. by Dr. R. C. Joshi (PW-2), who found on it the following ante-mortem injuries : (i) Gun shot wound of entry over the right side of chest 4 cm below the right collar bone measuring 4 cm x 3. 5 cm x chest cavity deep, margins inverted and irregular, blackening and tattooing present around the wounds. Third rib right side fractured pleura lacerated right upper lobe of (sic) lacerated at places chest cavity contains fluid and clotted blood 500 ml, nineteen small metallic shots recovered from the right lung ; 13 from chest cavity Lt. and eight pieces of paper wadding of different size recovered from the wound. (ii) Three abrasions over the back at lumbar region in an area of 12 cm x 4 cm ; largest being 6 cm x 3 cm and smallest being 4 cm x 2 cm. (iii) Lt. side face (cheek) all eaten away by animals. Rt. hand there are only two fingers middle and index present, rest all the portion of Rt. hand eaten away by animals. In the opinion of Dr. Joshi the deceased died due to shock and haemorrhage as a result of injuries sustained by him. 6. The case was committed to the Court of Sessions in the usual manner, where the appellant was charged for offences punishable under Sections 302/201 IPC to which he pleaded not guilty and claimed to be tried. His defence was of denial. During trial in all the prosecution examined six witnesses. Three of them, namely Ali Sher, Yusuf Ali and Chhiddu, PWs 1, 3 and 4 respectively, were examined as eye-witnesses. The learned trial Judge believed the ocular account furnished by them and convicted and sentenced the appellant in the manner stated in paragraph 1. Hence, this appeal. 7. We have heard learned Counsel for the parties and perused the entire record and are constrained to observe that we do not find any merit in this appeal. As would become manifest from the above, the conviction of the appellant is founded on the ocular account furnished by Ali Sher, Yusuf Ali and Chhiddu, PWs 1, 3 and 4 respectively. In our view,the evidence of the said witnesses inspires confidence. We now propose furnishing our reasons for reaching the said conclusion. 8. As would become manifest from the above, the conviction of the appellant is founded on the ocular account furnished by Ali Sher, Yusuf Ali and Chhiddu, PWs 1, 3 and 4 respectively. In our view,the evidence of the said witnesses inspires confidence. We now propose furnishing our reasons for reaching the said conclusion. 8. We would first like to take up the evidence of the informant Ali Sher (PW-1 ). Since in paragraph 2 we have set out the prosecution story on the basis of the recitals contained in his FIR and examination-in- chief we do not want to graphically advert to all the details. In short, his evidence shows thus : On the date of the incident accompanied by the deceased Rasool Ahmad, who was his labourer, he had gone to Karanpur Bargadiya Market to sell some grocery items. In the market Yusuf Ali (PW-3) and Chhiddu (PW-4) met him. Thereafter all of them started proceeding towards their house. At about 8. 00 p. m. when they had reached near the grove of Suraj Bali Pandit on the canal road within the limits of village Saktapur, Police Station Phardan, district Kheri, they noticed that three persons came out from behind the wall situated near a culvert. Two of them were unknown and third was the appellant. They recognized them in light of the torch flashed by Yusuf Ali. Then appellant came in front of them and reprimanded him. At that juncture Rasool Ahmad gave the cycle, on which unsold grocery items were kept to scolded the appellant ; and tried to catch hold to him. Then the appellant with a pistol fired upon Rasool Ahmad, who fell down after running some distance. Thereafter the appellant ran away. Then he and others went to village Saktapur and told the villagers that the appellant had murdered Rasool Ahmad and when he and others came back to the place of the incident with the villagers they found that the corpse of Rasool Ahmad was not there. Thereafter he went to the shop of Ismail in the market ; got some paper from there ; and thereafter on his dictation Yusuf Ali scribed the FIR. 9. We have gone through the statement of the informant and we find it to be perfectly credible and acceptable. In the first place he has explained his presence on the place of the incident. 9. We have gone through the statement of the informant and we find it to be perfectly credible and acceptable. In the first place he has explained his presence on the place of the incident. He has stated that the deceased was employed by him as a labourer and on the fateful evening while he was returning alongwith him after selling grocery items in the market the incident took place. In the second place the manner of assault as furnished by the informant is corroborated by the medical evidence. The informant stated that the appellant fired from front on the person of Rasool Ahmad and the autopsy surgeon found a gun shot injury over the right side of the chest of the deceased. A perusal of the gun shot injury suffered by the deceased, which we have extracted earlier, would show that it was the result of firing from the front of the deceased. 10. Assurance to the claim of the informant of having seen the incident is lent by the circumstance that the FIR was promptly lodged. We have seen that the incident took place on 20-8-1979 at about 8. 00 p. m. and the FIR was lodged the same day, by the informant Ali Sher at Police Station Phardan at 10. 30 p. m. ; the distance between the said Police Station and the place of the incident being two kilometres. In the facts of this case the FIR was prompt. We have seen that after the appellant had fatally fired on the deceased and ran away the informant and others went to village Saktapur and informed the villagers that the appellant had murdered the deceased. Thereafter the informant alongwith the villagers came to the place of the incident where they did not find the corpse of Rasool Ahmad. Then the informant went to the shop of Ismail from where he got some paper and thereafter on his dictation Yusuf Ali scribed the FIR. In such a fatal matrix the circumstance that the FIR was lodged within 2-1/2 hours of the incident taking place shows that the FIR was lodged promptly. It is significant to point out that the essential features of the prosecution case including the name of the appellant the weapon used by him (pistol), mention of torch light and the names of the eye-witnesses have been set out in the FIR. 11. It is significant to point out that the essential features of the prosecution case including the name of the appellant the weapon used by him (pistol), mention of torch light and the names of the eye-witnesses have been set out in the FIR. 11. Another circumstance which lends assurance to the claim of the informant of his having seen the incident is that immediately after lodging of the FIR the Investigating Officer S. O. Narender Mohan Singh (PW-6) recorded his statement under Section 161 Crpc. 12. For the said reasons in our view, the evidence of informant Ali Sher inspires confidence. 13. Fortunately, we have plurality of ocular account in the form of evidence of Yusuf Ali (PW-3) and Chhiddu (PW-4 ). We now propose considering it. 14. The evidence of Yusuf Ali (PW-3) shows thus : He is a resident of Village Saktapur, situated within the limits of Police Station Phardan, District Kheri and the said village is situated at a distance of two furlongs from the place of the incident. On the date of the incident he had gone to Karanpur Bargadiya market to purchase vegetables. In the said market he met the informant Ali Sher (PW-1), the deceased Rasool Ahmad and Chhiddu (PW-4) and since it had become late all of them decided to return home together and while they were returning the incident took place near the grove of Suraj Bali Pandit situated at the outskirts of village Saktapur within the limits of Police Station Phardan, District Kheri. It is pertinent to mention that in respect of the incident he has given the same statement as the informant Ali Sher. Consequently, we do not want to burden our judgment by reiterating the details. 15. We have gone through the evidence of Yusuf Ali and we find that it inspires confidence. Like the informant Ali Sher, he has also explained his presence on the place of the incident and like him the manner of assault as furnished by him is corroborated by the medical evidence. He stated that after coming in front of the deceased Rasool Ahmad, appellant fired upon him with a pistol and the post- mortem report shows that the deceased suffered a gun shot wound of entry over the right side of chest, 4 cm below the right collar bone. He stated that after coming in front of the deceased Rasool Ahmad, appellant fired upon him with a pistol and the post- mortem report shows that the deceased suffered a gun shot wound of entry over the right side of chest, 4 cm below the right collar bone. Another circumstance which probablises his claim of having seen the incident is that he accompanied the informant Ali Sher when he went to Police Station for lodging the FIR and immediately after lodging of the FIR the Investigating Officer recorded his statement under Section 161 Crpc. It is significant to point out that although he was subjected to extensive cross-examination but nothing could be extracted therefrom which could impair his credibility. During his cross- examination he was asked as to why he did not go to Pradhan market to purchase vegetables and he candidly replied that day was not the market day in Phardan (in villages days of market are fixed ). 16. For the said reasons, we find that the testimony of Yusuf Ali inspires confidence. 17. We now come to the testimony of last eye-witness Chhiddu (PW- 4 ). His evidence shows that he is a resident of Village Saktapur. He stated that on the date of the incident he had gone to Karanpur Bargadiya Market to purchase merchandise and in the market met Yusuf Ali, Ali Sher (the informant) and Rasool Ahmad (the deceased) and since it had become late all of them decided to return home together and while they were returning the incident took place near the grove of Suraj Bali Pandit situated at the outskirts of village Saktapur within the limits of Police Station Phardan, District Kheri. Since he has given the same manner of assault as the informant Ali Sher we do not want to burden our judgment by reiterating all the details. It is significant to point out that the version of assault as given by Chhiddu is corroborated by medical evidence. He stated that with a pistol the appellant fired from front on the deceased Rasool Ahmad and the post-mortem report shows that the deceased sustained a gun shot wound of entry over the right side of chest 4 cm below the collar bone. He stated that with a pistol the appellant fired from front on the deceased Rasool Ahmad and the post-mortem report shows that the deceased sustained a gun shot wound of entry over the right side of chest 4 cm below the collar bone. Apart from the medical evidence, the circumstance that he accompanied the informant Ali Sher when the latter went to Police Station to lodge the FIR and his statement under Section 161 Crpc was immediately recorded by the Investigating Officer after lodging of the FIR also probablises his claim of having seen the incident. It is true that during the course of his cross-examination he was questioned that he had not mentioned to the Investigating Officer in his statement under Section 161 Crpc that he had gone to purchase merchandise in Karanpur Bargadiya market. He stated that he had mentioned the said fact to the Investigating Officer. We are not prepared to believe him because had he so stated the Investigating Officer would have mentioned it in his aforesaid statement. However, in our view, since this witness is an independent witness and had no rancour or ill-will against the appellant it would not be proper to reject his testimony merely on the said omission in his statement under Section 161 Crpc. 18. For the said reasons, we find that the evidence of Chhiddu (PW-4) also inspires confidence. 19. We would be failing in our fairness if before proceeding to the operative part of the judgment we do not advert to the principal submission canvassed by Mr. H. D. Srivastava, learned Counsel for the appellant. Mr. Srivastava emphatically urged that had the informant been present on the place of the incident then he would have been the target of assault not the deceased Rasool Ahmad. He contended that there was no enmity between the appellant and the deceased Rasool Ahmad and on the converse there was enmity between the appellant and the informant because the appellant was having illicit relations with the wife of the informant and had a feeling that he was defamed by the informant on account of it. On the first blush the submission of Mr. Srivastava appeared to be attractive, but on a closer scrutiny we found it to be devoid of merit. On the first blush the submission of Mr. Srivastava appeared to be attractive, but on a closer scrutiny we found it to be devoid of merit. The evidence of eye-witnesses which we have accepted earlier shows : - While the informant Ali Sher (PW-1) the deceased Rasool Ahmad witnesses Yusuf Ali (PW-3) and Chhiddu (PW-4) were returning from the market they noticed that three persons emerged from behind a wall ; two of them were unknown ; the third was the appellant ; the appellant came forward ; reprimanded the informant ; at that juncture the deceased Rasool Ahmad, who was carrying a cycle, gave the same to the informant ; scolded the appellant ; tried to catch hold of him ; and it was then that the appellant with a pistol fired on the deceased Rasool Ahmad. In such a factual matrix, it is not surprising that it was Rasool Ahmad who was fired upon and not the informant. Hence, we reject this submission of learned Counsel for the appellant. 20. For the said reasons we are of the judgment that the learned trial Judge was perfectly justified in convicting and sentencing the appellant Chhotkan for the offence punishable under Section 302 IPC. 21. In the result, we uphold the conviction and sentence of the appellant Chhotkan for the offence punishable under Section 302 Crpc and dismiss this appeal. The appellant is on bail and shall be taken into custody forthwith to serve out his sentence. Appeal dismissed. .