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2004 DIGILAW 1913 (ALL)

Chhotaku son of Gopal (In Jail) v. State of U. P.

2004-09-23

K.K.MISRA, M.C.JAIN

body2004
M. C. JAIN, J. ( 1 ) BOTH these appeals have arisen out of the same incident and we propose to decide them together. In Criminal Appeal No. 897 of 1981, the appellant is on Chhotaku who was tried in sessions Trial No. 409 of 1978 before Sri D. P. Srivastava, the then V Additional Sessions Judge, gorakhpur. He was convicted under Section 302 read with Section 34 I. P. C. and sentenced to life imprisonment. Actually, the other appellant Sanehi of Criminal Appeal No. 712 of 1991 was also tried along with Chotaku in Sessions Trial No. 409 of 1978, but he absconded after his statement under Section 313 Cr. P. C. and as such the trial could not conclude respecting him. After hands were laid on him, the trial relating him also concluded by judgment dated 16. 2. 1991 passed by Sri V. B. Rai, the then V Additional Sessions Judge, Gorakhpur. He, too, came to be convicted under Section 302 read with Section 34 I. P. C. and sentenced to life imprisonment. It is under these circumstances that two appeals came to be filed by these two accused appellants. ( 2 ) IN Criminal Appeal No. 897 of 1981, we heard Sri P. N. Misra, learned Senior Advocate assisted by Sri P. C. Srivastava for the appellant Chhotku and in Criminal Appeal No. 712 of 1991 preferred by Sanehi, none turned up from his side at the revision of the list, though on record he is represented by Sri. S. N. Tripathi and Sri K. A. Qayyum, Advocates. The appeal was filed through Sri K. A. Qayyum. We propose to decide this appeal also on merits as per the supreme Courts ruling in the case of Bani Singh and Ors. v. State of U. P. , AIR 1996 SC 2439 after hearing the learned counsel for the State and going through the record Sri A. K. Dwivedi, learned A. G. A. has been heard from the side of the State in both the appeals. ( 3 ) THE background of the facts leading to the appeals may be stated briefly. The incident occurred on 1. 7. 1978 at about 1 P. M. in village Mahewa, P. S. Khorabar, District Gorakhpur and the F. I. R. was lodged the same day at 6. 15 P. M. by Radhey Shyam PW 5 (nephew of the deceased Ramdeo Maurya ). The incident occurred on 1. 7. 1978 at about 1 P. M. in village Mahewa, P. S. Khorabar, District Gorakhpur and the F. I. R. was lodged the same day at 6. 15 P. M. by Radhey Shyam PW 5 (nephew of the deceased Ramdeo Maurya ). The Distance of the police station from the place of occurrence was about seven miles. To the east of village Abadi Mahewa at a distance of 300-400 paces, there was three Bighas land belonging to the deceased Ramdeo Maurya in which there was a hut in its middle part. On the fateful day in the noontime. Shyam Dulari PW 2 (wife of the deceased) and her husband Ramdeo went together to their hut where they took their meal. After finishing their meal, at the asking of Ramdeo, Shyam Dulari went to fetch water from the hand-pipe of Ram naresh. It was at a distance of 100-125 paces from the hut. Meanwhile. Ramdeo laid down in his hut. While returning from the hand-pipe with water towards her hut, she heard the shouts of he husband and her attention was drawn towards him. She noticed both the accused inflicting knife injuries to her husband who was lying on his cot. She then ran towards her husband raising alarm on which witnesses Jai Prakash Mishra PW 3 and Vijai Narain, PW 4 who were in sight, also ran towards the hut raising alarm. Meanwhile, Radhey Shyam PW 5 (nephew of the deceased) who was going to his field from his house also arrived on hearing shouts. The accused were chased. Standing near papaya trees, the accused, flaunting their knives, threatened the witnesses with dire consequences in case they persisted in their chase. Frightened, they returned back to the hut where Ramdeo was lying in injured condition on a cot. On the same cot, he was brought by radhey Shyam and others to District Hospital, Gorakhpur whereafter his medical examination took place at 2. 10 P. M. He was admitted for treatment. Radhey Shyam wrote down the F. I. R. and lodged the same at the police station. Next day Ramdeo died in the hospital. The case was initially registered under Section 307 I. P. C. The investigation was entrusted to S. I. Shesh Nath rai PW 9 and was concluded by Ram Naresh Mishra PW 10. At the time of his initial medical examination by Dr. Next day Ramdeo died in the hospital. The case was initially registered under Section 307 I. P. C. The investigation was entrusted to S. I. Shesh Nath rai PW 9 and was concluded by Ram Naresh Mishra PW 10. At the time of his initial medical examination by Dr. I. P. Singh PW 6 on 1. 7. 1978 at 2. 10 P. M. the following injuries were found on the person of the victim. 1. Incised wound 2 1/2 cm x 4/10 cm x muscle deep on left cheek. 2. Incised wound 2 1/2 cm x 5/10 cm x muscle deep on left cheek, 2 cm from the left nostril. 3. Incised wound 2 cm x 1/2 cm x bone deep in the middle of left mandible. 4. Incised wound 3 cm x 2 cm cavity deep with intestine protruding on left flank of abdomen. 5. Incised wound 2 1/2 cm x 1 cm x muscle on the outer aspect of left lower thigh. 6. Incised wound 10 cm x 3 cm x depth under observation on the front of neck upper part. 7. Incised wounds in an area of 5 cm x 1 cm on the back of left hand including the base of ring finger. ( 4 ) THE injuries were kept under observation and had been caused by some sharp edged weapon. Duration was fresh. ( 5 ) THE post-mortem over his dead body was conducted by another Dr. P. N. Awasthi PW 1 on 2. 7. 1978 at 3. 30 P. M. He was aged about 65 years and about six hours had passed since he died. The following ante-mortem injuries are recorded in the post-mortem report: 1. Incised wound 3 cm x 1/2 cm x muscle deep stitched on left cheek middle. 2. Stitched incised wound 2 1/2 cm x 1/2 cm x muscle deep left cheek, 2 cm from left nostril. 3. Incised stitched wound 2 cm x 1/2 cm x bone deep on the lower jaw. 1 cm to the left from midline. 4. Stitched wound incised 3 cm x 1/2 cm front of neck lower part, horizontal x trachea cavity deep. 5. Stitched incised wound on outer aspect left thigh, 4 cm above left knee. 6. Stitched incised wound on front left upper part abdomen 4 cm from middle line. 7. 1 cm to the left from midline. 4. Stitched wound incised 3 cm x 1/2 cm front of neck lower part, horizontal x trachea cavity deep. 5. Stitched incised wound on outer aspect left thigh, 4 cm above left knee. 6. Stitched incised wound on front left upper part abdomen 4 cm from middle line. 7. Stitched wound incised in an area of 5 cm x 2 cm on back of left hand and left finger linear varying from 1/2 cm to 2 cm. ( 6 ) THE death had occurred due to shock and haemorrhage as a result of ante-mortem injuries. ( 7 ) THE motive for the murder allegedly was that about 8 or 9 years back, Gopal-father of chhotku was murdered for which Ramdeo was tried and was acquitted. Further, one Ghurai resident of village Pathrai was murdered in which Chhotaku accused and his brother were accused and Ramdeo was a prosecution witness. On account of such background, there was enmity between the parties which resulted in the murder of Ramdeo by Chhotaku and his fast friend Sanehi. ( 8 ) THE defence was of denial and of false implication. ( 9 ) CHHOTAKU admitted in his statement that he was an accused in the murder case of a person ghurai who was resident of village Pathrai but he denied about Ramdeo doing pairvi against him. He also admitted that Ramdeo was accused in the lease of the murder of his father Gopal. ( 10 ) APART from the formal and medical evidence, the prosecution relied on the testimony of eyewitnesses Shyam Dulari PW 2, Jai Prakash PW 3, Vijay Narain PW 4 and Radhey Shyam pw 5. It also relied upon the dying declaration of the deceased in the form of writing given by him with his signatures to the Doctor who medically examined him on 1. 7. 1978. ( 11 ) WE have carefully perused the evidence on record. ( 12 ) THE argument of Sri P. N. Misra, who has argued Criminal Appeal No. 897 of 1981 on behalf of Chhotku accused, is that the eyewitnesses were not at all reliable. It is also his submission that the so called dying declaration of the deceased could not be believed. We intend to deal with these arguments as also the other relevant aspects including that of motive. It is also his submission that the so called dying declaration of the deceased could not be believed. We intend to deal with these arguments as also the other relevant aspects including that of motive. ( 13 ) COMING to the question of motive first, so far as the appellant Chhotku is concerned, he had a strong motive to commit the murder of the deceased. Ramdeo (victim of the present incident)was an accused in the case of the murder of Gopal-father of Chhotku. Admittedly, he was acquitted. It is also admitted to Chhotku that he was an accused in the case of the murder of a person named Ghurai, resident of village Pathari. Though he denied that Ramdeo was doing pairvi in that case against him but PW 2 Shyam Dulari- wife of the deceased deposed that her husband was a witness in that case against Chhotku. It was also stated by PW 5 Radhey shyam-nephew of the deceased that the other appellant Sanehi was the fast friend of Chhotku. Obviously, as per the previous background, Chhotku could have deep grudge against the accused ramdeo for having been acquittal in the murder case of his father and because of being a witness against him in the case of the murder of Ghurai. So, there was sufficient motive on his part to commit the murder of Ramdeo with the help of his fast friend Sanehi-appellant of Criminal appeal No. 712 of 1991. Setting out this background of motive (which is not very material in this case of eyewitness account) we proceed further. ( 14 ) SO far as the place of incident is concerned the Investigating Officer had found blood in the hut wherefrom he collected the bloodstained and simple earth. Actually the blood stained Peerha (a flat wooden board of about 4"-6" height for sitting on the ground) was also recovered by the investigating Officer from the hut. The recovery of blood stained Peerha from the spot leaves no doubt about the place of occurrence. The report of Chemical Examination Ex. Ka-16 confirms that in fact it was blood which had been taken by the Investigating Officer from the ground below the hut which was found on the (Peerha ). ( 15 ) COMING to the eyewitness account, it has been rendered by Shyam Dulari PW 2, Jai Prakash misra PW 3 and Vijay Narain Upadhyay PW 4. Ka-16 confirms that in fact it was blood which had been taken by the Investigating Officer from the ground below the hut which was found on the (Peerha ). ( 15 ) COMING to the eyewitness account, it has been rendered by Shyam Dulari PW 2, Jai Prakash misra PW 3 and Vijay Narain Upadhyay PW 4. Speaking about the essentials of the incident, shyam Dulari PW 2 stated that on the eventful day, she had accompanied her husband to the hut situated in their maize field. Both of them took their meal whereafter she went to fetch water from the hand pipe of Ram Naresh. While she was returning back with water and had covered 4-5 steps inside her field, she heard the shouts of her husband and noticed that Chhotku and sanehi were inflicting knife blows to him who was lying on a cot. She further stated that she ran raising alarm followed by Jai Prakash, Vijay Narain and Radhey Shyam. The accused then ran towards the north. It is also in her testimony that her husband had become unconscious after the incident. ( 16 ) SHE has been corroborated in material particulars by Jai Prakash Misra PW 3 and Vijay narain Upadhyay PW. 4, names of both of whom find place in the F. I. R. The presence of these witnesses is explained in that in partnership they and Ugranath Dwivedi had taken auction of khatta land from Municipal Board. Gorakhpur with effect from 1. 4. 1978. He further stated that some Khatta land had been leased out to different persons and for management of the same, they had established office in village Maheva at the house of Subhag. Both of them had arrived in their office at about 10-11 A. M. that day. As no recovery could be made from the lessees, they were returning together from their office towards their Khatta land. At about 1. 30 A. M. or 2 p. M. , when they arrived in the field of Ramdeo, they noticed Shyam Dulari running towards her hut raising alarm. It was noticed by them that Chhotku and Sanehi were inflicting knife injuries to Ramdeo who was lying on a cot under his hut. Shouting, they also rushed up to that side. Seeing them approaching, the two accused came out from the hurt of Ramdeo and ran towards northern side. It was noticed by them that Chhotku and Sanehi were inflicting knife injuries to Ramdeo who was lying on a cot under his hut. Shouting, they also rushed up to that side. Seeing them approaching, the two accused came out from the hurt of Ramdeo and ran towards northern side. A suggestion was made to Jai Prakash Misra PW 3 in his cross-examination that shyam Lal-father of Sanehi was in possession of a portion of Khatta land situated towards the east of the field of Ramdeo and he had enmity with him and Chhotku in connection with vacation of Khatta land. He emphatically denied this suggestion. However, the offering of such suggestion to this witness from the side of Sahehi is indicative of his friendship with Chhotku. ( 17 ) IT was also suggested to Jai Prakash Misra PW 3 that the lessees filed a petition in the High court against the auction of Theka in his favour. He expressed his ignorance in this regard, but it makes it clear that even defense admitted this witness as one of the Thekedars of Khatta land. ( 18 ) JAI Prakash Misra PW 3 and Vijay Narain Upadhyay PW 4 were together and it has specifically came to be stated by Vijay Narain upadhyay PW 4 that the incident had been witnessed by them from 15-16 paces. Vijay Narain Upadhyay PW 4 denied the suggestion that the deceased used to realize money from his lessees on his behalf, This suggestion impliedly meant that he, too, was the lessor of the Khatta land. As a matter of fact, the contract of Khatta land in favour of both these witnesses is borne out from the suggestion made to Radhey Shyam pw 5 also that he and Ramdeo used to realize money on behalf of Khattta Thekedars Jai Prakash and Vijay Narain. ( 19 ) RADHEY Shyam PW 5 (nephew of the deceased) was not an eyewitness, but saw the accused running away from the sport. He stated that at about 1 p. m. he was going to his field from his house. Reaching a little ahead Nareshs house, he heard the shouts of her aunt and ran towards her field. Then he noticed Chhotku and Sanehi running north from the hut of Ramdeo. He stated that at about 1 p. m. he was going to his field from his house. Reaching a little ahead Nareshs house, he heard the shouts of her aunt and ran towards her field. Then he noticed Chhotku and Sanehi running north from the hut of Ramdeo. It was also stated by him that himself, Vijay Narain and Jai Prakash chased the accused but near the papaya trees -15 or 16 steps away from the hut, the accused tarried for a while and threatened them of dire consequences, flaunting their knives. So, they retreated foregoing their chase. 19. Obviously, Shyam Dulari PW 2 was a natural witness being there at the hut, having just gone to fetch water after taking meal. Having covered 4-5 paces inside her field while returning with water, she heard the shouts of her husband and witnessed the incident of knifing him by the two accused under the hut. It has specifically been stated by her that there was no obstruction or obstacle between her sight and the hut, there being open field in between. She had reached here hut running and it was in her presence that the two accused bolted away. Her statement further shows that her hut was an open one. She could very well witness the incident on hearing the shouts of her husband while returning with water from nearby hand pipe, situated in the southern side with open field in between. There was no reason that she would baselessly and falsely implicate innocent person leaving the real culprit (s) she was rightly believed to be a truthful witness as nothing could be elicited in her cross-examination to discredit here testimony. No animus could be shown against the other two eyewitnesses Jai Prakash PW 3 and Vijay Narain pw 4 either which could prompt them to make a false statement against the accused appellants. They could not be shown either to be friendly with the family of the deceased or inimical with the accused. There was good explanation for their presence at the time of the occurrence near the scene as they had gone to village Maheva where they had opened office in connection with khatta land of which they were contractors. The factum of Jai Prakash Misra PW 3 and Vijay narain Upadhyay PW 4 being the Thekedars of Khatta land has come to be admitted in their cross-examination. The factum of Jai Prakash Misra PW 3 and Vijay narain Upadhyay PW 4 being the Thekedars of Khatta land has come to be admitted in their cross-examination. Therefore, their presence was also natural. ( 20 ) THE testimony of Shayam Dulari PW 2 was sought to be discarded on the strength of the evidence of Sri Raj Narayan, Advocate DW 2 and Sri Jiut Lal Gupta, Advocate DW 3. Former of them stated that on 9. 12. 1979 he was oath commissioner in Civil Court, Gorakhpur and on that date he had attested the affidavit of Shayam Dulari who had been indentified by Sri Jiut Lal, advocate. This affidavit Ex. Kha-2 is to the effect that her husband had been murdered at his field by some unknown person and he had only seen her dead body. To say briefly, this affidavit suggested that as if she was not an eyewitness. In our opinion, the so- called affidavit purported to have been sworn by her is worthless. It was not even put to her in her cross-examination. She was examined in the court on 24. 3. 1979. Moreover, Sri Jiut Lal Gupta, Advocate DW 3 stated that a lady had come to him who had disclosed her name as Shyam Dulari and as per her instructions he had prepared the contents of the affidavit. In his cross-examination, however, he stated that he did not know her from before and none identified her before him. So, the so-called affidavit is a waste paper as the defence failed to prove that the lady who purportedly sworn the affidavit was the real Shyam Dualri-wife of the deceased. ( 21 ) THE eyewitnesses had identified both the assailants of Ramdeo. There was no reason to disbelieve them because they even chased them to certain distance. It was broad daylight and there could be no question of mistaken identity. Radhey Shyam PW 5, though not an eyewitness, had seen the accused persons running and chased them upto certain distances. On careful scrutiny, the testimony of the three eyewitnesses is found to be trustworthy which could not be castigated on any ground whatsoever. Radhey Shyam PW 5 also appeared to be a truthful witness when he said that he had only seen the accused persons running and chased them for certain distance. On careful scrutiny, the testimony of the three eyewitnesses is found to be trustworthy which could not be castigated on any ground whatsoever. Radhey Shyam PW 5 also appeared to be a truthful witness when he said that he had only seen the accused persons running and chased them for certain distance. He spoke only what he saw with his own eyes as otherwise as he could pose to be an eyewitness of the incident. Nothing of the kind was done by him. ( 22 ) EYEWITNESS account is perfectly in harmony with the medical evidence. Several incised wounds had been inflicted on the person of the deceased as reported in his first medical examination report and the subsequent post mortem report. They were capable of being inflicted by knives wielded by the two accused. Two of the injuries were on vital parts, i. e. , neck and left side of abdomen with intestine protruding out. The seats of these injuries taken together with the manner and the weapons of assault clearly indicate that intention to kill was there on the part of the accused appellants. The criticism against the eyewitnesses made by Sri Misra is wholly unmerited when judged in correct perspective and in a dispassionate manner. ( 23 ) AS a matter of fact, the eyewitness account of the incident which, as we said, is consistent with the medical evidence, is further strengthened by the dying declaration of the deceased. Sri misra criticized the dying declaration but the objection is not at all sustainable. No doubt, the Government Handwriting Expert Shri Prakash DW 1 stated that due to paucity of material, he was not in a position to form any opinion whether the disputed document (dying declaration)was or was or was not in the handwriting of Ramdeo. He pointed out certain similarities and dissimilarities in the admitted signature of Ramdeo on the writing Ex. Kha-1 and the dying declaration but since he could not form any opinion, his evidence is of no value. ( 24 ) HOWEVER, judging independently, on the basis of other evidence, not the slightest doubt is left that the deceased himself made a dying declaration in writing. It is to the effect "chhotku Putra Gopal Sanehi Putra Shyamalal Ne Mujhe Mara Hai. Shiv Govind Lal Nagar Palika Mein Hai, unhe Bulaiye. " It was Dr. ( 24 ) HOWEVER, judging independently, on the basis of other evidence, not the slightest doubt is left that the deceased himself made a dying declaration in writing. It is to the effect "chhotku Putra Gopal Sanehi Putra Shyamalal Ne Mujhe Mara Hai. Shiv Govind Lal Nagar Palika Mein Hai, unhe Bulaiye. " It was Dr. I. P. Singh PW 6 (who had initially examined the victim) to whom the victim had given this dying declaration after scribbling en a piece of paper which he had demanded from him. The testimony of the Doctor is that he had examied the victim ramdeo on 1. 7. 1978 at 2. 10 P. M. in District Hospital, Gorakhpur. His general condition was not good and his pulse was just palpable. He attended him from 2. 10 P. M. to 2. 45 P. M. In the meantime, he demanded a piece of paper from him and after writing and appending his signature thereon, he handed it over to him. He (Doctor) stitched the same with his Bed Head Ticket Ex. Ka-5. The doctor clearly stated that in that state of health, it was possible for Ramdeo to have written Ex. Ka-4. He also testified that it was not necessary for the victim to have fallen in coma owing to the injuries sustained by him. The Doctor admitted that he ought to have forwarded it to the Police Station, but by his inadvertence, it remained stituched in the Bed Head Ticket. He denied the suggestion that Ex. Ka-4 was not in the handwriting of Ramdeo and it had been attached with the Bed Head Ticket on the date of evidence in the court. The Doctor was an independent person unconcerned with the parties. There was no reason for him to speak a lie that the victim demanded a piece of paper from him and after writing the names of his assailants and appending his signature thereon, gave it back to him (Doctor ). ( 25 ) THE defence suggestion to the Investigating Officer was that the deceased had handed over some writing to him, but he afterwards substituted the same with a forged and fictious dying declaration after tearing off the real writing. The Investigating Officer denied that any written document was given to him by the deceased. ( 25 ) THE defence suggestion to the Investigating Officer was that the deceased had handed over some writing to him, but he afterwards substituted the same with a forged and fictious dying declaration after tearing off the real writing. The Investigating Officer denied that any written document was given to him by the deceased. The suggestion to the Investigating Officer by the accused showed the existence of dying declaration written by Ramdeo, meaning thereby that he regained consciousness for sometime and was in a fit mental condition to express his thoughts in writing. It was not believable that the Investigating Officer who had no any enmity with the accused would substitute the real document by a fake one. The dying declaration Ex. Ka-4 sounds to be a genuine document which strengthening the eyewitness account which otherwise also is perfectly believable. ( 26 ) THEREFORE, the situation boils down to this that neither the criticism against the eyewitness account nor against the dying declaration is capable of being upheld. ( 27 ) IN view of the above discussion, our conclusion is that the prosecution established the guilt of the two accused appellants to the hilt by clinching and satisfactory evidence rendered by the eyewitnesses supported by the dying declaration of the deceased. The eyewitness account was also in perfect harmony with medical evidence. The two accused were acting in concert with previous meeting of minds. The offence was committed with premeditation. Several knife injuries were inflicted on the victim including on vital parts. The intention to cause his death was absolutely there. They have been rightly convicted under Section 302 read with Section 34 I. P. C. Both the appeals, namely, criminal appeal No. 897 of 1981 Chhotku v. State and criminal appeal No. 712 of 1991, Sanehi v. State are without merit and are dismissed. ( 28 ) THE accused appellants Chhotku and Sanehi are on bail. The Chief Judicial Magistrate, gorakhpur shall cause them to be arrested and lodged in jail to serve out the sentence of life imprisonment passed against them. Compliance shall be reported within two months. ( 29 ) JUDGMENT be certified to the court below. . .