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2004 DIGILAW 1762 (ALL)

AMI CHAND v. STATE OF U P

2004-09-03

K.K.MISRA, M.C.JAIN

body2004
M. C. JAIN, J. Seven persons have preferred this appeal. They are - (1) Ami Chand (2) Vikram (3) Kripal (4) Bhullan (5) Raj Pal (6) Ajab Singh and (7) Sat Pal. The judgment assailed is one dated 10-10-1980 passed by Sri S. B. Singh, the then III Additional Sessions Judge, Ghaziabad. All of them have been convicted under Section 302 read with Section 149 I. P. C. and sentenced to life imprisonment. That apart, Vikram, Bhullan, Kripal and Rajpal have been convicted for the offence of rioting under Section 147 I. P. C. and sentenced to 1- 1/2 years rigorous imprisonment. The remaining three, namely, Ami Chand, Satpal and Ajab Singh have been convicted for the offence of rioting under Section 148 I. P. C. with the sentence of 2 years rigorous imprisonment. All the sentences have been ordered to run concurrently. 2. Appellants Amichand, Ajab Singh and Satpal died during the pendency of the appeal, which abated respecting them under order dated 11-12-2003. 3. A resume of necessary facts would be helpful. The incident occurred on 1-8-1976 at about 8. 00 a. m. in Village Joya, Police Station Pilkhuwa, District Ghaziabad and the report was lodged the same day at 12. 15 p. m. by PW 4 Harbir Singh (son of accused Vikram Singh ). The distance of Police Station from the place of occurrence was about four miles. The deceased was Smt. Jaswanti wife of Sukhpal-the younger brother Vikram Singh accused. The accused Ami Chand was the uncle of accused Vikram through his grand-father. The accused Satpal was the son of accused Ami Chand. Accused Rajpal and Kripal are the real brothers and Bhullan is the son of Kripal, whereas Ajab Singh was the son of Rajpal. 4. Relations between the accused Vikram and his son Harbir complainant were strained to such an extent that Vikram was not even giving food to him. Harbir demanded his share in the property but the same was also refused. Because of strained relations with his father, the complainant started living with his uncle Sukhpal and aunt Jaswanti deceased. Sukhpal was employed in armed forces. Brahmpal- husband of PW 3 Smt. Ramwati is also the real brother of the accused Vikram. Though Harbir was residing with Jaswanti but he did not altogether stop coming to his fathers house, stealing articles, ornaments etc. there from. Sukhpal was employed in armed forces. Brahmpal- husband of PW 3 Smt. Ramwati is also the real brother of the accused Vikram. Though Harbir was residing with Jaswanti but he did not altogether stop coming to his fathers house, stealing articles, ornaments etc. there from. A day before the fateful incident, Harbir had stolen some ornaments from his fathers house. The said ornaments were returned by him on the intervention of PW 5 Pitam-real brother of deceased Jaswanti. The accused Vikram felt ill because of the theft committed by his son Harbir. He formed the impression that it had been got done by Jaswanti, though PW 5 Pitam had explained it to the accused Vikram that Jaswanti had nothing to do with the theft of ornaments. The background of strained relations between Vikram and his son Harbir and living of the latter with Jaswanti coupled with the theft of ornaments by him (Harbir), which were subsequently returned, was said to be the motive of the incident of this case. On the fateful day, at about 8 a. m. Jaswanti was cutting cattle fodder from her field near her house. This accused persons reached there variously armed. Ami Chand had a spear whereas Ajab Singh and Satpal were armed with pistols. The other accused persons were armed with lathis. At that time PW 3 Smt. Ramwati was feeding her cattle in the Gher. The complainant Harbir was also there. Soon after reaching there, accused persons started assaulting Jaswanti, holding out that she had spoiled the complainant. After assaulting her, the accused poured diesel on her and set her afire. They also tried to assault the complainant by running towards him but he escaped and saved himself. The complainant went to the Police Station where he lodged the F. I. R. scribed by him. On the basis of the same, a case was registered. Investigation was taken up by P. W. 7 SI Chandra Pal Singh who recorded the statement of the complainant at the Police Station itself. He left for the site and reached there at about 1. 30 p. m. There he inspected the dead body and prepared inquest report alongwith other necessary papers. Badly burnt dead body was sealed and sent for post mortem. The Investigating Officer also took in possession the container from the spot from which the diesel was sprinkled on the dead body. 30 p. m. There he inspected the dead body and prepared inquest report alongwith other necessary papers. Badly burnt dead body was sealed and sent for post mortem. The Investigating Officer also took in possession the container from the spot from which the diesel was sprinkled on the dead body. A rod and a bamboo were also recovered by him. The site plan of the place of occurrence was prepared. The statements of the witnesses were recorded. The next day he arrested accused Ami Chand, Kripal and Vikram. He took in possession a blood stained Baniyan from the person of accused Vikram. In the meantime, the other accused surrendered in the Court. The Investigating Officer was thereafter transferred and investigation was taken over by S. I. Onkar Singh who submitted the charge-sheet. 5. Post-mortem over the dead-body of the deceased was conducted by PW 2 Dr. V. K. Bharadwaji on 3-8- 1976 at 10. 15 a. m. The deceased was a middle aged lady and about two days had passed since she died. External examination revealed charred mutilated portion of body having parts of occipital and parietal bones, vertebrae, cervical, thoracic and lumber region including sacrum and portion of left iliac bone. Soft tissues were attached at places. Scalp in the size of 12 cm x 17 cm at back portion was in charred condition and left parietal bone was fractured. Heart was charred and chamber empty. Liver was also charred. Left side of kidney was also decomposing. A gunny piece (Tat) measuring about 12 cm x 10 cm was sticking to the skull bone and hairs (mostly of golden colour and few of white colour) of the length of 12 cm were also sticking to it. Length of body from occipital to sacrum region was 78 cms. The exact cause and manner of death could not be stated. 6. The accused pleaded not guilty and alleged false implication due to enmity with Om Prakash @ Prakash. It was also stated that they had heard in the village that Jaswanti was killed by the brothers of PW 3 Ramwati in the night. 7. The prosecution in all examined 8 witnesses including the Doctor, Investigating Officer and other formal witnesses. PW 1 Usha, PW 3 Ramwati and PW 4 Harbir Singh (complainant) were examined as eye-witnesses. It was also stated that they had heard in the village that Jaswanti was killed by the brothers of PW 3 Ramwati in the night. 7. The prosecution in all examined 8 witnesses including the Doctor, Investigating Officer and other formal witnesses. PW 1 Usha, PW 3 Ramwati and PW 4 Harbir Singh (complainant) were examined as eye-witnesses. PW 5 Pitam was the brother of the deceased and had been examined with regard to return of stolen ornaments by Harbir to Vikram accused at his (this witnesss) intervention. The complainant PW 4 Harbir Singh is the son of Vikram accused. PW 6 Om Prakash came to say that on the fateful day at about 8 a. m. he was returning to his home from his field with a Buggi (he-buffalo cart) and when he reached near the tube-well of Natthu Singh, he saw a fire. Ami Chand and Vikram were sitting there. He asked them as to what was burning. They replied to him that Jaswanti had died and she was being cremated. He was declared hostile by the prosecution and cross-examined by the State. 8. To come to the point, the evidence of the prosecution commended itself to the learned trial Judge who recorded the conviction of the accused appellants with the sentences stated above. 9. We have heard Sri J. N. Chaturvedi learned counsel for the appellants, Sri S. S. Mullick, learned A. G. A. and Sri Akhilesh Singh learned counsel for the complainant. 10. The first argument of the learned counsel for the accused appellants is that there is no medical evidence to support the ocular version of the incident. The argument does not carry conviction. The consistent case of the prosecution as established by the satisfactory evidence of the eye-witnesses PW 1 Usha and PW 3 Ramwati is that Ami Chand with spear and the accused Vikram Singh, Kripal, Bhullan and Rajpal armed with lathis assaulted the victim Jaswanti with such weapons on the given date, time and place. A careful perusal of the post mortem report shows that there was fracture beneath the skull. It could, indeed, be so as a result of lathi injuries. The evidence is also there that after assaulting the victim, the accused appellants had sprinkled inflammable over her and had set her afire. The result was that the dead body was badly charred and mutilated. It could, indeed, be so as a result of lathi injuries. The evidence is also there that after assaulting the victim, the accused appellants had sprinkled inflammable over her and had set her afire. The result was that the dead body was badly charred and mutilated. The accused appellants cannot take advantage of their own aggravated criminal act of so setting fire to the victim after assaulting her by sharp edged and blunt weapons and thereby destroying the evidence of other injuries inflicted on her person through such weapons. Therefore, the argument cannot be accepted that medical evidence does not support the ocular version. The medical evidence as contained in the post mortem report is helpful in great measure in supporting the prosecution version of blunt weapon injuries caused to her and she having been set afire thereafter. 11. The next argument from the side of the accused appellants is that the ocular testimony is not at all satisfactory and capable of being believed. We have carefully scrutinized the ocular version adduced by the prosecution and in our considered opinion, the only benefit that could accrue to the accused appellants on dispassionate examination of the oral evidence adduced by the witnesses was that the participation of Ajab Singh and Satpal in the incident was rendered doubtful. They were allegedly armed with country made pistols. However, the testimony of PW 1 Usha in para 7 of the cross-examination is that the pistol bearing accused did not use the same at all. To the same effect is the statement of PW 3 Ramwati wife of Brahmpal that Kripal, Vikram, Bhullan and Rajpal were armed with lathis, Ami Chand was armed with spear and Ajab Singh and Satpal had country made pistols. She further stated that the accused started raining lathi blows on the deceased and she died. This was stated by her in examination- in-chief itself. There is no positive assertion by PW 3 Ramwati in her statement in that Ajab Singh and Satpal had used their country made pistols. Justifiable inference from the judicious scrutiny of the statement of PW 3 Ramwati would also be that Ajab Singh and Satpal did not use the pistols that they had. There could hardly be any point in their holding such weapons if they did not intend to use the same and, as such, their participation in the incident was rendered doubtful. Justifiable inference from the judicious scrutiny of the statement of PW 3 Ramwati would also be that Ajab Singh and Satpal did not use the pistols that they had. There could hardly be any point in their holding such weapons if they did not intend to use the same and, as such, their participation in the incident was rendered doubtful. Barring this fact surfacing in favour of the accused appellants from the close scrutiny of the ocular account given by the eye- witnesses of the prosecution, there is no other infirmity to shake the substratum that the remaining five accused appellants participated in the commission of this ghastly crime. They were Ami Chand armed with spear and remaining four - Vikram, Kripal, Bhullan and Rajpal were armed with lathis. The evidence is clinching that they assaulted the victim whereafter they set her afire after sprinkling diesel. 12. The spear wielding accused Ami Chand and the accused Ajab Singh and Satpal both having country made pistols have already died during the pendency of the appeal and as such their participation now has no practical importance. 13. It is not disputed that the complainant PW 4 Harbir Singh son of accused Vikram Singh was living with Sukhpal and Smt. Jaswanti deceased, away from his father Vikram Singh, Jaswanti was his real aunt being wife of his real uncle Sukhpal. There was a reason for this that his relations with his father were strained since he was not giving him food and share in his property. PW 1 Usha, PW 3 Ramwati and Pw 5 Pitam consistently stated that Harbir had started living with Jaswanti. The fact that PW 4 Harbir Singh was living away from his father is admitted by his father, namely, accused Vikram in his statement under Section 313 Cr. P. C. wherein he stated that his son was living with Jaswanti and that he had a dispute with him. The own statement of PW 4 Harbir Singh is there that his relations with his father were strained as he had refused to give him his share in the property. He also stated that he had stolen 3-4 ornaments from his fathers house which he later on returned to the accused Vikram on the intervention of PW 5 Pitam. The own statement of PW 4 Harbir Singh is there that his relations with his father were strained as he had refused to give him his share in the property. He also stated that he had stolen 3-4 ornaments from his fathers house which he later on returned to the accused Vikram on the intervention of PW 5 Pitam. PW 5 Pitam is the father of PW 1 Usha and brother of deceased Jaswanti PW 1 Usha in those days was residing with her Phuphi (Jaswanti ). PW 5 Pitam also stated that a day before the incident, he got the ornaments stolen by the complainant Harbir from his fathers house belonging to complainants own sister returned by him to the accused Vikram. PW 1 Usha, who was living with Jaswanti for sometime before the incident till the incident took place, also deposed that the complainant Harbir had stolen ornaments of his sister from his fathers house and her father got them returned to Vikram. Vikram in his statement under Section 313 Cr. P. C. himself admitted the factum of strained relations with the complainant. He also admitted that ornaments had been stolen by the complainant, though he denied the intervention of PW 5 Pitam in the return of the ornaments to him. PW 5 Pitam stated that he had explained to the accused Vikram that the ornaments were not got stolen by Jaswanti. The background of the incident was that Vikram scented Jaswanti to be behind the stealing of ornaments and that she was spoiling his son. It is to be noted that PW 4 Harbir Singh also stated that he returned the ornaments to his father at the intervention of Pitam. It is also there in his statement that because of his living with Jaswanti, the relations of his father-Vikram with Jaswanti and her husband Sukhpal were also strained. Ami Chand (deceased accused) was the uncle of Vikram and Satpal was the son of the accused Ami Chand, Kripal and Rajpal accused are real brothers. Bhullan is the son of Kripal and Ajab Singh was the son of Rajpal. Obviously, there was a firm background for the happening that Vikram thought Jaswanti to be the real cause of the whole trouble in ruining his son Harbir and misguiding and training him against him by wrong advice. Bhullan is the son of Kripal and Ajab Singh was the son of Rajpal. Obviously, there was a firm background for the happening that Vikram thought Jaswanti to be the real cause of the whole trouble in ruining his son Harbir and misguiding and training him against him by wrong advice. Vikram, therefore, formed an unlawful assembly with his close relations and sympathisers to commit this crime of eliminating Jaswanti altogether who was supposedly weaning his son away from him. 14. At times, there is tendency on the part of the prosecution to falsely rope in some innocent persons who are supposed to be the helpers or sympathisers of the real culprits. For this purpose, the story is improved and modified. May be that it was for this reason that Ajab Singh and Satpal were also implicated as accused. But truth has come to the fore on the close scrutiny of the testimony of the eye- witnesses. The benefit could, however, accrue only to these two, namely, Ajab Singh and Satpal against whom the evidence of the prosecution is not convincing. This matter now is of theoretical importance only as they have died. Excluding them also, there were five participants of the crime who had formed an unlawful assembly in prosecution of the common object of which this crime was committed. In any case, it would not at all affect the prosecution case against the remaining five accused whose participation in the crime is established clinchingly and to the hilt. 15. The incident took place at about 8 a. m. PW 1 Usha has emphatically stated that at that time, Jaswanti was cutting fodder in her plot at a distance of 15-16 paces from her when the accused persons came with their weapons. PW 3 Ramwati and PW 4 Harbir Singh were also there at that time. Soon after coming, Vikram accosted Jaswanti that she had spoiled his son and that he would see her. It was in continuation thereafter that the accused persons assaulted her. She raised alarm. She, Harbir and Ramwati tried to save her. The accused persons tried to assault Harbir also who, however, ran away. After assaulting Jaswanti, they set her body afire by placing dung-cakes and sprinkling diesel. She clearly stated that several spear and lathi injuries were inflicted on Jaswanti before she was set afire. 16. She raised alarm. She, Harbir and Ramwati tried to save her. The accused persons tried to assault Harbir also who, however, ran away. After assaulting Jaswanti, they set her body afire by placing dung-cakes and sprinkling diesel. She clearly stated that several spear and lathi injuries were inflicted on Jaswanti before she was set afire. 16. PW 3 Ramwati has materially corroborated her by saying that Jaswanti was cutting fodder in the maize field at the time of the incident and she herself was placing fodder to her cattle when she witnessed this incident. She is the wife of Brahmpal - another brother of Vikram accused and, thus, a close relation of the accused. Learned counsel for the appellants criticised her testimony that she has stated that she went to her home when the accused set Jaswanti afire and returned to the place of occurrence after the police arrived. We do not think that her such conduct justifies any criticism against her version. The accused accomplished this crime in a most inhuman and diabolical manner that after assaulting the victim - a lady, they set her afire. There is nothing unusual or unnatural that this lady PW 3 Ramwati could not afford to be present at the scene while the accused were in the process of setting Jaswanti afire after sprinkling diesel on her. At that time she was in advanced stage of pregnancy and delivered a child just 5 or 6 days after the incident. It appears, to us that the accused appellants are fumbling for some ground or the other to get away from the consequences of the serious crime committed by them. On scrutiny, however, there is nothing to sustain the criticism against the testimony of PW 1 Usha and PW 3 Ramwati. They were most natural witnesses of the incident whose names as such find place in the promptly lodged F. I. R. also made by the own son of the accused Vikram. 17. Learned Counsel for the accused appellants then wanted to take advantage of the fact that the complainant PW 4 Harbir Singh himself became lukewarm in his deposition before the Court. We have carefully examined his statement. His cross-examination merely suggests that during the trial he was won over by the defence and he developed soft corner for his father, though initially he had lodged the report. His such trend is clearly discernible. We have carefully examined his statement. His cross-examination merely suggests that during the trial he was won over by the defence and he developed soft corner for his father, though initially he had lodged the report. His such trend is clearly discernible. Since PW 1 Usha and PW 3 Ramwati had been examined earlier to him he tried to make a dent in their deposition by saying that only pistol bearing accused had opened shots on Jaswanti and the rest did not do anything. He also stated that he wrote in the F. I. R. what was dictated to him by Daroga and Omprakash. Not only this, he even stated that it was rumoured in the village that Jaswanti had been murdered by the brothers of PW 3 Ramwati. His falsity is apparent. He tried to eat his own words. Had Satpal and Ajab Singh opened shots on Jaswanti, it could not simultaneously be so that she could be murdered by the brothers of Ramwati. Obviously, in cross- examination the defence put answers in his mouth which it wanted to be given by him in favour of the accused. In his examination-in-chief, he gave out the weapons of the accused appellants and also stated that on arrival, they started assaulting the victim Jaswanti. Justice cannot be defeated simply because PW 4 Harbir Singh has tried to disturb the prosecution case by a few misleading answers given by him in his cross examination at the behest and liking of the defence. It was simply an unsuccessful attempt on his part to favour his father accused and his associates. No son would think of falsely implicating his father in a case of murder simply because he had some differences with him at the time of the incident. 18. It is of utmost importance that the F. I. R. was lodged by PW 4 Harbir Singh (son of the accused Vikram) immediately after the incident when truth alone was guiding him and all other considerations including his close relationship with the accused were dormant. 19. It is said that the time is the greatest healer. With the passage of time, he allowed his conscience to be overweighed by his close relationship with the accused and they prevailed upon him to give a twist to his version in his cross-examination and he gave answers of their choice put in his mouth to help them. 19. It is said that the time is the greatest healer. With the passage of time, he allowed his conscience to be overweighed by his close relationship with the accused and they prevailed upon him to give a twist to his version in his cross-examination and he gave answers of their choice put in his mouth to help them. 20. The ocular version of the incident contained in the evidence of PW 1 Usha and PW 3 Ramwati finds full corroboration from the F. I. R. insofar as the participation and role of the accused Ami Chand, Vikram, Kripal, Bhullan and Rajpal is concerned. 21. We wish to say a few words about the defence theory that the brothers of PW 3 Ramwati murdered Jaswanti. In our opinion, it is not worthy of a moments attention. It is not digestible that brothers of Ramwati (outsiders-residents of elsewhere) could perpetrate such horrendous crime and could escape without encountering any resistance from close relatives (including accused) of the deceased and the villagers. 22. In view of the above discussion, we reach the conclusion that barring the accused appellants Ajab Singh and Satpal Singh, the participation of the remaining accused appellants including the deceased accused appellant Ami Chand in the commission of this crime of ghastly murder in a most inhuman manner of an unarmed unfortunate lady Jaswanti in prosecution of common object of unlawful assembly that they had formed, is established to the hilt. All the material witnesses are near relations of the deceased as also of the accused Vikram and deceased accused Ami Chand. The deceased herself was the wife of the real brother of accused Vikram. PW 3 Ramwati is also the wife of another real brother of accused Vikram. The complainant PW 4 Harbir Singh is the own son of Vikram who during the course of time developed soft corner for his accused father and tried to make a dent in the prosecution case while in cross-examination. PW 1 Usha is the daughter of the brother of the deceased who was residing with her in the days of the incident. The witnesses closely related to the accused could have come to depose against them for the sake of truth only. While committing this crime, the accused behaved like wolves in human shape. 23. PW 1 Usha is the daughter of the brother of the deceased who was residing with her in the days of the incident. The witnesses closely related to the accused could have come to depose against them for the sake of truth only. While committing this crime, the accused behaved like wolves in human shape. 23. The conviction and sentences passed by the Court below against the accused appellants Vikram, Kripal, Bhullan and Rajpal are upheld and their appeal is dismissed. Each of them shall undergo 1 1/2 year rigorous imprisonment for the offence under Section 147 I. P. C. and life imprisonment under Section 302 I. P. C. read with Section 149 I. P. C. These sentences shall run concurrently. 24. Accused appellants Ami Chand, Ajab Singh and Satpal have died and the appeal respecting them has abated under order dated 11- 12-2003. 25. The accused appellants Vikram, Kripal, Bhullan and Rajpal are on bail. They shall be arrested and lodged in jail to serve out the sentences passed against them. 26. Let the original record of the trial Court be returned along with a copy of this judgment for compliance. Compliance be reported by the concerned Chief Judicial Magistrate to this Court within two months. Appeal dismissed. .