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Allahabad High Court · body

2003 DIGILAW 2110 (ALL)

Suresh Singh v. State

2003-09-12

U.S.TRIPATHI, V.N.SINGH

body2003
( 1 ) CRIMINAL Appeal has been filed against the judgment and order dated 18-6-1981 passed by Sri Giri Raj kishore, the thenlllrd Addl. District and Sessions Judge, Bareilly in S. T. No. 17 of 1980, p. S. Hafizganj, District Bareilly, by which, he held appellant guilty under Section 302, ipc and convicted and sentenced him to undergo imprisonment for life. ( 2 ) PROSECUTION case, in brief, is that Smt. Munta Devi aged about 18 years was married to P. W. 4 Ram Asrey Singh of village madhopur, about 21/2-3 months prior to the occurrence. Gauna ceremony of Smt. Munta devi had not taken place. About 8 days before the occurrence, appellant Suresh Singh, who was too resident of village Madhopur and is brother-in-law of deceased Munta devi brought Smt. Munta Devi to his house. On the date of occurrence i. e. 23-7-1979 at about sun set, after hearing the noise of fire arm several persons of the locality reached at the house of accused/appellant along with husband of Smt. Munta Devi. Smt. Munta devi, who was conscious, deposed that, her brother-in-law Suresh Singh had fired on her. Within an hour Smt. Munta Devi died due to the injuries of fire. Next day on 23-7-1979 at about 12. 30 p. m. Chaukidar Jhau ram lodged a report. ( 3 ) DURING investigation, pellets and tikli were found on the spot and same were taken into possession and fard was prepared. Plain soil and blood stained soil was taken into custody and fard was prepared. The post mortem of the deceased Smt. Munta Devi was conducted by Dr. I. S. Tomar on 24-7-1979 at about 4. 30 pm. ( 4 ) AFTER completing the investigation charge sheet was submitted against the accused/appellant. ( 5 ) ACCUSED/appellant was charged under Section 302/ipc. He denied the charge. ( 6 ) PROSECUTION examined P. W. 1 Jhau ram, Chaukidar, who lodged report. He deposed that, he had arrived on the spot soon after hearing the fired shot and found that, smt. Munta Devi was lying injured in the varandah inside the house of accused/appellant. He further deposed that, it was raining heavily on the date of occurrence and as in between the place of occurrence and Police Station, there were three rivers, therefore, he went to the Police Station to lodge the report next day. Munta Devi was lying injured in the varandah inside the house of accused/appellant. He further deposed that, it was raining heavily on the date of occurrence and as in between the place of occurrence and Police Station, there were three rivers, therefore, he went to the Police Station to lodge the report next day. ( 7 ) PROSECUTION examined P. W. 2 Ram bharose, immediate neighbour of accused/ appellant. He deposed that, he heard sound of shot from his house. He saw the appellant Suresh running away with a pistol in his hand. He went to the house of accused/ appellant and saw that, Smt. Munta Devi was lying injured in the varandah. Smt. Munta Devi told that, her brother-in-law suresh Singh had fired upon her. He also deposed that, it was raining heavily on the date of occurrence and there is no hospital in the vicinity besides a Govt. hospital, which was situated at distance of 8 Kose (16 miles)and there were two rivers between the place of occurrence and hospital. ( 8 ) P. W. 3 Shiv Charan Lai filed an affidavit stating therein that a chik F. I. R. was prepared by Head Moharrir Mahesh Chandra sharma, and an entry was made at serial no. 18 at 12. 30 pm. in G. D. He gave the copy of chik G. D. and Jild Panchayatnama to him for handing over to S. I. Vishram singh. He went along with Constable Ram pal Singh of village Rithaura and handed over the said papers at 1. 30 pm. to S. I. Vishram Singh. Panchayatnama was prepared by S. I. Vishram Singh at the house of accused/appellant of Smt. Munta Devi was handed over to him and constable Sri Pal for post mortem. Till the postmortem, no body was allowed to touch the dead body. ( 9 ) PROSECUTION examined P. W. 4 Ram asrey Singh, husband of the deceased, who deposed that he was married with deceased 21/2-3 months prior to the date of occurrence. The elder sister of deceased Smt. Munta Devi was married to accused /appellant Suresh singh, who brought her to his house 8 days prior to the date of occurrence. ( 9 ) PROSECUTION examined P. W. 4 Ram asrey Singh, husband of the deceased, who deposed that he was married with deceased 21/2-3 months prior to the date of occurrence. The elder sister of deceased Smt. Munta Devi was married to accused /appellant Suresh singh, who brought her to his house 8 days prior to the date of occurrence. He deposed that on the date of occurrence before sun set, while he was at his house, he heard the noise of fire arm and Geeta, sister of accused/appellant came to her house and told that, Suresh has killed his wife. At that time, his mother and elder mother were present. He along with his mother and elder mother went to the house of accused and found Smt. Munta Devi lying injured. Smt. Munta Devi told that Suresh Singh has fired on her. She should be carried to the hospital. After hearing this, he returned to his house. Accused suresh came there armed with country made pistol and threatened him that he would be killed, if anybody lodged report. After an hour Smt. Munta Devi died. ( 10 ) P. W. 5 S. I. Vishram Singh, proved the chik F. I. R. written by Head Moharrir mahesh Chandra Sharma Ext. Ka 1, and copy of the G. D. No. 21 dated 23-7-1979 ext. Ka. 2. He also proved Panchanama Ext. Ka. 3. Photo lash and Challan Lash Ext. Ka 4 and Ext. Ka 5. He also proved Fard of pellets and Tikli Ext. Ka. 6, fard of plain soil and blood stained soil Ext. Ka 7, and site plan Ext. Ka8 as well as charge sheet Ext. Ka9. ( 11 ) P. W. 6 Dr. I. S. Tomar proved the post mortem report Ext. Kal0 of deceased Smt. Munta Devi. He also deposed that, injuries were caused by fire arm and was sufficient for the death in ordinary course. Death was possible on 23-7-1979 at about 6 pm. ( 12 ) ACCUSED/appellant stated in his statement under Section 313, Cr. P. C. that, he had brought the deceased, the wife of ram Asrey Singh to his house in connection with delivery of his wife. Ram Asrey singh became annoyed. He, (accused/appellant) was not present at his house on the date of occurrence. He had gone to the house of his brother in law Brij Pal Singh for purchasing buffalo. P. C. that, he had brought the deceased, the wife of ram Asrey Singh to his house in connection with delivery of his wife. Ram Asrey singh became annoyed. He, (accused/appellant) was not present at his house on the date of occurrence. He had gone to the house of his brother in law Brij Pal Singh for purchasing buffalo. Ram Asrey himself or by some body else got his wife killed. Eastern wall of his house was small and in dilapidated condition and there was jungle after wall. He also deposed that there was enmity with Ram Asrey Singh (husband of the deceased ). ( 13 ) THE defence examined D. W. 1 dhanraj Singh, who deposed that he went to the house of Suresh Singh after hearing noise of fire. It was two hours after sun set, smt. Munta Devi had died. Suresh Singh was not present in the village. He had gone to his brother-in-law two days prior to the occurrence. 10-15 persons were present there including Pradhan of the village. They called Chaukidar. Ram Asrey Singh was not present. ( 14 ) DEFENCE examined D. W. 2 Brij Pal singh, who deposed that, deceased Smt. Munta is his real sister-in-law and accused/ appellant is also his real brother-in-law. About 2 years back, accused/appellant suresh Singh was present at his house in connection with the purchase of buffalo. Wife of Suresh accused/appellant, who is his sister-in-law told him that, somebody killed smt. Munta Devi. He also told that, Suresh has beennamed, hence Suresh did not go to his village. He produced accused/appellant in the Court. ( 15 ) AFTER hearing both the parties, learned trial Court held the appellant guilty under Section 302, IPC and sentenced him to undergo imprisonment for life. Hence this appeal. ( 16 ) WE have heard learned counsel for the parties and perused the record. ( 17 ) FROM the perusal of the record, it appears that learned trial Court has considered following facts : Firstly, the dying declaration of Smt. Munta Devi that her brother-in-law had fired on her. Hence this appeal. ( 16 ) WE have heard learned counsel for the parties and perused the record. ( 17 ) FROM the perusal of the record, it appears that learned trial Court has considered following facts : Firstly, the dying declaration of Smt. Munta Devi that her brother-in-law had fired on her. Learned trial Court has relied on the statement of P. W. 2 Ram Bharose and P. W. 4 Ram Asrey Singh, husband of the deceased, on the ground that, there was no enmity between accused/appellant and winesses P. W. 2 Ram Bharose and P. W. 4 Ram asrey Singh and there was no ground for false implication of the accused. The third aspect considered by the learned trial Court is statement of P. W. 2 ram Bharose, who had seen the accused/ appellant running away to the east with pistol just after firing; and fourth aspect, which was considered by the learned trial Court was that accused had made extra judicial confession before Ram asrey Singh husband of the deceased. In this connection, it has been held by learned Sessions Judge that it has not been proved beyond doubt that accused had really made a confession before Ram Asrey. ( 18 ) LEARNED trial Court did not believe the defence witnesses regarding alibi of the accused/appellant and did not believe defence theory in view of contradictory suggestion given by defence theory in view of contradictory suggestion given by defence at the time of examination of the witnesses that deceased was killed by gang of Banddhu dacoits and the statement of the accused/ appellant under Section 313, Cr. P. C. that husband of the deceased himself or through somebody might have killed Smt. Munta devi. ( 19 ) IT has been argued by learned counsel for appellant that, the matter regarding extra judicial confession was considered by the learned trial Court, but learned trial court did not convict the accused/appellant on the basis of extra judicial confession, hence the point of extra judicial confessions is not relevant and material for deciding this appeal. ( 20 ) IT has been argued by learned counsel for appellant that no reliance can be placed on the alleged oral dying declaration made by Smt. Munta Devi because in the f. I. R. it was not mentioned by P. W. 1 chaukidar Jhau Ram that dying declaration was made by Smt. Munta Devi. ( 20 ) IT has been argued by learned counsel for appellant that no reliance can be placed on the alleged oral dying declaration made by Smt. Munta Devi because in the f. I. R. it was not mentioned by P. W. 1 chaukidar Jhau Ram that dying declaration was made by Smt. Munta Devi. ( 21 ) IN this connection, attention of the court has also been drawn towards the decision in Ramesh Prasad v. State of Bihar, referred in (1999) 39 All Cri C 777 : (2000 cri LJ 503 : AIR 2000 SC 398 ), in which it has been held that, in F. I. R. by the sister, who is a witness to the dying declaration, it has not been mentioned that, dying declaration was made. It is not a minor omission. ( 22 ) WE have gone through the judgment and found that the decision is not applicable in the present case as the case is different on the following grounds : (i) In the above mentioned case although the witness has given the other details in her complaint, but did not mention regard-ing dying declaration. (ii) Asha Kumari, who has reached the place of occurrence, has not told regarding the presence of Sheela at the place of occurrence till the deceased was removed to ranchi. (iii) That if dying declaration would have been made, then she would not have kept quite till about 5 p. m. when the Police Station is situated only at a distance of 150 yards. (iv) That she has not stated that threat was given to her. ( 23 ) MOREOVER, in the above mentioned case it was held by Hon. Supreme Court, sheela was not reliable witness. ( 24 ) IN the present case, from the perusal of the record, it is clear that, informant P. W. 1 Chaukidar Jhau Ram, has deposed in his examination-in-Chief that he is hard of hearing. In such circumstance, if he could not hear the statement of deceased Smt. Munta devi and did not allege regarding statement of Smt. Munta Devi, it does not not affect prosecution case. In such circumstance, if he could not hear the statement of deceased Smt. Munta devi and did not allege regarding statement of Smt. Munta Devi, it does not not affect prosecution case. ( 25 ) IN this connection, attention of the court has also been drawn towards the decision in Baldeo Raj v. State of Himachal pradesh, referred in 1980 SCC (Cri) 491 : : AIR 1980 SC 436 , in which it has been held that, High Court was not justified in convincing the appellant solely relying upon the evidence of mother of the deceased regarding dying declaration made by the deceased that she was beaten to death by her husband/appellant. ( 26 ) IT has been held that, most important circumstance to discredit the testimony of mother is that; she was no where in the picture for five days after the date of occurrence, when for the first time she made a statement before the police regarding the alleged dying declaration. ( 27 ) IN this connection, attention of the court has also been drawn by learned counsel for appellant of this case towards the statement of P. W. 4 Ram Ashrey Singh, husband of the deceased before whom the dying declaration was made by Smt. Munta devi that, he met Darogaji third day of the occurrence. ( 28 ) WE have gone through the judgment of Hon. Supreme Court referred to above and find that this decision is also not applicable in the present case in view of fact that, in the above decision mother of the deceased admitted before the committing Court that, she had met the Sub-Inspector even before her statement was taken by the police. There is nothing to show that at the time when she met the police for the first time, she gave out that deceased has made , any oral dying declaration to her. Apart from this, the evidence of this witness suffers from a number of infirmities which render her story inherently improbable. ( 29 ) THE facts of present case is different. Ram Ashrey Singh, husband of the deceased did not say that he met the investigating officer earlier before his statement was recorded nor the I. O. has stated that, he met witness Ram Ashrey Singh before he recorded his statement under Section 161, cr. P. C. Ram Ashrey Singh has deposed that he met Darogaji 3rd day. Ram Ashrey Singh, husband of the deceased did not say that he met the investigating officer earlier before his statement was recorded nor the I. O. has stated that, he met witness Ram Ashrey Singh before he recorded his statement under Section 161, cr. P. C. Ram Ashrey Singh has deposed that he met Darogaji 3rd day. He was present next day in the village but he did not go to darogaji. ( 30 ) BESIDES it, Ram Asrey Singh stated that he was threatened by accused/appellant and at the time of threatening he (accused/appellant) was armed with tamancha. ( 31 ) IN this connection, attention of the court has also been drawn by the counsel for the appellant towards the decision in state of Karnataka v. Venkatesh, referred in 1992 SCC (Cri) 329 : AIR 1992 SC 674 in which, it has been held that, prosecution witness did not disclose the relevant information to anyone at the earliest opportunity till Nov. 10th though alleged murder took place on the night of Nov. 8. This creates serious doubts. ( 32 ) THIS decision is also not applicable in present case because at the earliest opportunity when witness Ram Ashrey Singh, husband of the deceased met the I. O. He told regarding the dying declaration made by Smt. Munta Devi to him. ( 33 ) IN this connection, attention of the court has also been drawn by learned counsel for the appellant towards the decision in ramsai v. State of Madhya Pradesh, referred in AIR 1994 SC 464 , in which it was held that, there was infirmities in the dying declaration regarding state of deceased to make oral dying declaration and unnatural conduct of the witnesses to whom the declaration was allegedly given by the deceased, which was disclosed to the police not immediately, but after 2 days of death of deceased. No explanation was given for delayed disclosure. No independent corroboration obtained. Medical evidence from nature of injuries caused not supporting the case of prosecution that deceased was capable and had given the dying declaration. ( 34 ) WE have gone through the aforesaid decision and found that this decision is also not applicable in present case and is not helpful to the accused/appellant. No independent corroboration obtained. Medical evidence from nature of injuries caused not supporting the case of prosecution that deceased was capable and had given the dying declaration. ( 34 ) WE have gone through the aforesaid decision and found that this decision is also not applicable in present case and is not helpful to the accused/appellant. ( 35 ) IT has been held by Hon. Supreme court in para 4 of the judgment that P. W. 18 and P. W. 20 who were examined on 3rd day, did not inform anybody regarding oral dying declaration made by deceased. There is no explanation as to why they have not informed anybody earlier. He (P. W. 18) admitted in cross examination that, deceased was not speaking clearly and was vomitting at that time and that time the tongue of the deceased was out of control. To the same effect is the evidence of P. W. 20 P. W. 26, sarpanch of the village, who deposed that he did not enquire anything about oral dying declaration. He asked P. W. 20 to go to police station. P. W. 20 did not inform him to the name of appellant said to have been mentioned by the deceased. ( 36 ) IN this connection, attention of the court has also been drawn by the appellant towards the decision in Heikrujam Chaoba singh v. State of Manipur referred in 2000 scc (Cri) 143, in which it was held by Hon. Supreme Court that the dying declaration was made by the deceased to his brothers and other disinterested persons while on way to hospital. There was no other, evidence or circumstance for corroboration. None of the other persons were examined except two brothers. Before such dying declaration can be acted upon the Court must be satisfied about the truthfulness of the same and declaration was made while deceased was in a fit condition to make the statement. ( 37 ) IN the case referred to above Hon. Supreme Court has held in Para 3 of the judgment that an oral dying declaration no doubt can form the basis of conviction, though the Courts seek for corroboration as a rule of prudence. ( 37 ) IN the case referred to above Hon. Supreme Court has held in Para 3 of the judgment that an oral dying declaration no doubt can form the basis of conviction, though the Courts seek for corroboration as a rule of prudence. But before the said declaration can be acted upon, the Court must be satisfied about the truthfulness of the same and that the said declaration was made by the deceased while he was in a fit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability. ( 38 ) NOW it has to be seen, whether there is any corroboration regarding dying declaration. In this connection statements of Ram bharose P. W. 2 and Ram Ashrey Singh P. W. 4 husband of deceased, is material. They deposed regarding dying declaration made by deceased that Smt. Munta Devi stated that her brother-in-law Suresh Singh appellant fired on her. ( 39 ) SO far as the witness Ram Bharose is concerned there is no evidence regarding enmity with the accused/appellant, nor there is any evidence for false implication of the accused/appellant by him. He has deposed that, there is no dispute regarding land with accused appellant. He has also deposed that, it is wrong to say that, accused/appellant and his father used to take beggar (forced labour) from him. He also deposed that Suresh Singh did not construct any Kothari in his land. He further deposed that, it is wrong to say that, under the pressure of Pradhan Ram Vilas Singh, he was giving evidence against the appellant. As such it is clear that witness Ram Bharose is independent witness and fact of dying declaration has been corroborated by this witness. ( 40 ) SO far as the statement of P. W. 4 ram Asrey Singh is concerned, he has deposed that he was married with the deceased 2/2-3 months prior to the occurrence. It is admitted that elder sister of the deceased is married to the accused appellant. It has been deposed by the witness that his Gauna ceremony did not take place. It is admitted that elder sister of the deceased is married to the accused appellant. It has been deposed by the witness that his Gauna ceremony did not take place. No suggestion was given to this witness regarding any enmity of the witness with the accused appellant or regarding false implication of the accused/appellant, although suggestion was given by the accused appellant to P. W. 1 jhau Ram informant, who deposed that no dispute took place between Ram Asre Singh and Suresh accused/appellant. He further deposed that it is wrong to say that, Ram asrey Singh was annoyed with Suresh Singh accused/appellant, because prior to Gauna accused/appellant. Suresh Singh brought deceased Smt. Munta Devi to his house. ( 41 ) BESIDES, it on suggestion given to witness Ram Bharose, he deposed that, he did not hear that in connection of Smt. Munta Devi (wife of witness Ram Asrey singh) any altercation took place between him and accused/appellant. ( 42 ) IN view of the abovementioned circumstances, no suggestion was given to witness Ram Asrey Singh, who is brother in law of accused appellant, regarding enmity or ground for false implication, nor there is any evidence produced by the appellant regarding enmity of Ram Asrey Singh by the appellant regarding enmity of Ram Ashrey singh with accused/appellant Suresh Singh. It is clear that witness Ram Ashre Singh is also independent witness and there is no ground for disbelieving the statement of this witness. ( 43 ) MOREOVER, witness Ram Bharose P. W. 2 has deposed that when he reached after hearing the noise of fire, he saw that Singh accused was running in the Gali with a country made pistol in his hand. ( 44 ) BESIDES it, Ram Ashre Singh deposed that he heard the noise of fire at his house, geeta sister of Suresh Singh accused/appellant came running to his house and told that, Suresh Bhaiya killed his wife. At that time his mother and elder mother were also present. ( 45 ) THIS statement was not challenged by the accused/appellant by giving any suggestion to the witness that Geeta did not tell him that, Suresh Singh accused killed his wife, nor Geeta sister of accused/appellant was produced to contradict the statement of Ram Asrey Singh. . At that time his mother and elder mother were also present. ( 45 ) THIS statement was not challenged by the accused/appellant by giving any suggestion to the witness that Geeta did not tell him that, Suresh Singh accused killed his wife, nor Geeta sister of accused/appellant was produced to contradict the statement of Ram Asrey Singh. . ( 46 ) IT is true that in the F. I. R. there is no, reference regarding presence of witness ram Asrey Singh husband of the deceased. But in the F. I. R. it has been mentioned that ram Vilas Singh, Ram Pal, Sardar Singh, ram Bharose and several other persons came there. In the statement before the court, informant Jhau Ram Chaukidar deposed regarding presence of Ram Asrey singh. No suggestion was given to the witness that, Ram Asrey Singh was not present. Moreover, even the F. I. R. was not put to the witness that in the F. I. R. there is no reference regarding presence of Ram Asrey Singh husband of the deceased. ( 47 ) NO suggestion was given to the I. O. that Chaukidar Jhau Ram did not say re garding presence of Ram Asrey Singh husband of the deceased in his statement under Section 161, Cr. P. C. ( 48 ) WITNESS Ram Bharose deposed regarding presence of Ram Asrey Singh husband of deceased. The statement of this witness regarding presence of Ram Asrey Singh was not challenged by accused/appellant. ( 49 ) BESIDES it Ram Asrey Singh husband of the deceased has deposed that, his house, is at a distance of 5-6 houses from the house of Suresh Singh accused/appellant (place of occurrence ). As such presence of Ram asrey Singh is natural. ( 50 ) SO far as the presence of independent witness Ram Bharose is concerned, he has also deposed that his house is adjacent to the house of accused/appellant. As such presence of Ram Bharose is also natural. . .