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2005 DIGILAW 632 (ALL)

The State of U. P. v. Rajesh, Najai and Mohan

2005-04-04

M.C.JAIN, M.CHAUDHARY

body2005
M. C. JAIN, J. ( 1 ) THE State has preferred this appeal against the judgment and order dated 2. 3. 1998 passed by sri I. B. Singh, the then V Additional Sessions Judge, Kanpur Nagar in. . S. T. No. 742 of 1993, whereby he acquitted the three accused-respondents, Rajesh, Najai and Mohan of the charge under Section 302 read with Section 34 I. P. C. ( 2 ) THE murder of a lad Deepak aged about 11 years son of Virendra Kumar PW I was involved in the incident which took place on 11. 04. 1993. at about 5. 00 P. M. inside house No. 128/21 C block, Kidwai Nagar, Police Station Kidwai Nagar, District Kanpur Nagar. The report was lodged the same day at 6. 40 P. M. by Virendra Kumar PW 1 father of the deceased-art eye-witness. All the three accused-respondents were named in the F. I. R. ( 3 ) THE relevant facts are related here for appreciation of the subsequent discussion. Virendra kumar PW 1 resided in house No. 128/48 B Block, Kidwai Nagar, District Kanpur Nagar. On the fateful day (Sunday) at about 5. 00 P. M. , he and his brother Shiv Kumar Srivastava were going to eat betel near Pico Centre belonging to Rajesh accused-respondent, When they reached near Rajesh Pico Centre, they saw that the accused Rajesh, Najai and Mohan were beating deepak aged about 11 years (son of Virendra Kumar) by making him "murga" putting two bricks on his back. Rajesh. was pressing bricks on his back. The hands and feet of the child victim had been tied and the accused Najai was caning at his legs. On being questioned by virendra Kumar, the accused Rajesh held out that (Deepak) had stolen his money. Virendra kumar requested the accused persons to leave Deepak imploring that he had not caused any damage to them and they had tortured him a lot, but Rajesh refused to leave him and retorted back that he would further be assaulted, commanding him to run away as otherwise he would also be dealt with the same way. Viendra Kumar stated that he was going to inform the police. In the mean time, Brij Bhan Singh and others had also arrived there. Then, all the three accused carried Deepak (victim) dragging him in House. Viendra Kumar stated that he was going to inform the police. In the mean time, Brij Bhan Singh and others had also arrived there. Then, all the three accused carried Deepak (victim) dragging him in House. No. 128/21 C Block, Kidwai Nagar, Kanpur nagar wherein one of the accused 1 Mohan resided. They confined him inside shutting the door. Virendra Kumar and others kept shouting from outside and other people also gathered there. After about half an hour, all the three accused person ran away emerging from House No. 128/21 c Block, Kidwai Nagar. Virendra Kumar and others went inside the house and saw that Deepak was hung with a hook in the ceiling, his feet being at the height of about 4-5 ft. from the floor. He was dead. He then lodged the F. I. R. resulting in the registering of the case. ( 4 ) THE investigation was taken up by Chandra Shekhar Yadav PW 4. He reached the spot, prepared Panchayatnama and completed other formalities for the autopsy of the dead body of the boy and prepared site plan of the place of incident. Dead body, after completing formalities, was sent for post mortem. The statements of the witnesses were recorded. Ultimately a charge-sheet was submitted. ( 5 ) THE post mortem over the dead body of the deceased was conducted by Dr. Jugul Kishore sharma PW 3 on 12. 4. 1993 at 12. 55 P. M. The deceased was aged about 11 years. The following ante mortem injuries were found on his person: 1. Abraded contusions 10 in number in area 11 cm x 8 cm on both sides of neck in front and just below chin, largest of 5 cm x 3 cm and smallest of 1/2 cm x 1/2 cm with elliptical abrasions. 2. Abraded contusion 2 cm x 1 cm on front of inner side of left ankle. 3. Abraded contusion I x 1/2 cm back of left side 13 cm below scapula. 4. Contusion 6 x 2 cm on back of right leg 9 cm below knee. 5. Contusion 6 x 4 cm on back of left leg, 8 cm below knee. ( 6 ) ON internal examination, hyoid bone was found fractured. As per the opinion of the Doctor, the death had occurred due to asphyxia as a result of throttling. ( 7 ) THE defence was of denial. 5. Contusion 6 x 4 cm on back of left leg, 8 cm below knee. ( 6 ) ON internal examination, hyoid bone was found fractured. As per the opinion of the Doctor, the death had occurred due to asphyxia as a result of throttling. ( 7 ) THE defence was of denial. The accused Mohan and Najai stated that they had been falsely implicated at the behest of Shyam Ji Pandey (examined by the prosecution in the form of PW 2)and owing to enmity with the police. The third accused Rajesh stated that he was falsely implicated owing to enmity and under the pressure of police. ( 8 ) AT the trial, the prosecution examined complainant Virendra Kumar PW 1 and Shyam Ji pandey PW 2 as eye-witnesses. Dr Jugul Kishore Sharma PW 3 had conducted autopsy on the dead body of the deceased. Chandra Shekhar PW 4 was the Investigating Officer of the case and b. L. Yadav, A. S. I. was also associated with the investigation and had prepared Panchayatnama, etc. of the dead body of the deceased under the supervision of the Investigating Officer Chandra shekhar Yadav PW 4. ( 9 ) THE trial judge recorded acquittal holding that the F. I. R. was ante-timed timed. He disbelieved the eye-witnesses on the ground that their presence was doubtful and further found the conduct of Virendra Kumar PW 1 as being unnatural, It was also made a ground of criticism that Shiv kumar Srivastava, Advocate, brother of the father of the deceased, was not examined as a witness. ( 10 ) WE have heard Sri K. P. Shukla, learned A. G. A. from the side of the State in support of appeal and Sri P. N. Misra, learned counsel for the accused-respondents in opposition thereof. The record of the case has been summoned before us which we have carefully perused. ( 11 ) THE submission of Sri Shukla from the side of the State is that instead of deciding the case as per the voice of the evidence on record, the trial judge had acquitted the accused-respondents on conjectures and surmises. It is submitted that the finding of the F. I. R. being ante-timed has wrongly been arrived at by the trial judge. It is further urged that presence of the eye-witnesses has been doubted without any valid reason. It is submitted that the finding of the F. I. R. being ante-timed has wrongly been arrived at by the trial judge. It is further urged that presence of the eye-witnesses has been doubted without any valid reason. The judgment of acquittal has been assailed to be illegal and erroneous. ( 12 ) ON the other hand, the submission of Sri Misra from the side of accused-respondents is that the view taken by the trial judge is quite reasonable, not suffering from any perversity. the finding of acquittal argued the counsel, cannot be interfered with in appeal merely on the possibility of alternative view in respect of the evidence adduced in the case. ( 13 ) WE propose to deal with these arguments in the succeeding discussion to arrive at the right conclusion. ( 14 ) TAKING up the question of the alleged ante timing of the F. LR. first, it cannot be sustained on judicial and proper appreciation of the evidence on record; The trial judge termed it as ante-timed on the ground that as per the Investigating Officer Chandra Shekhar Yadav PW 4, the dead body of the deceased Deepak was despatched from the spot after being sealed on 11. 4. 1993 at 9. 00p. M. for the police lines, but in the record of police lines it was shown to have been received at 10. 00 A. M. on 12. 4. 1993 and that no evidence was given as to when the special report of the crime was sent to the higher authorities. As per the record, the trial judge observed, the chick F. I. R. was. received by the CO. on 13. 4. 1. 993. He reasoned that the distance of the police lines being only 8. kms. from the spot, the reaching of the dead body there on 12. 4. 1993 indicated that the F. I. R. had been ante-timed. In our opinion, the F. I. R. could not be deemed to be ante-timed on the reasoning, adopted by the trial judge. The F. I. R. was lodged by an eye-witness virendra Kumar PW 1 on 11. 4. 1993 itself at 6. 40 P. M. Having regard to the distance of Police station from the place of occurrence, the F. I. R. was lodged within reasonable time. May be that the dead body having reached the police lines on 11. 4. The F. I. R. was lodged by an eye-witness virendra Kumar PW 1 on 11. 4. 1993 itself at 6. 40 P. M. Having regard to the distance of Police station from the place of occurrence, the F. I. R. was lodged within reasonable time. May be that the dead body having reached the police lines on 11. 4. 1993 late about mid-night, in the record it was shown to have:been received at 10. 00 A. M. on 12. 4. 1993. There is categorical. statement of the Investigating Officer Chandra Shekhar Yadav PW 4 that the F. l. R. had been lodged at the police Station in his absence and he was informed about it on wireless with the result that he happened to reach spot directly with ASI and started investigation of the case with the inspection of the site, preparation of Panchayatnama etc. of the dead body of the deceased. We find that the preparation of Panchayatnama was taken up on 11. 4. 1993 at 7. 30 P. M. and concluded at 9. 00 p. M. Then the dead body was despatched after being sealed. If the chick of the F. I. R. received in the Office of Circle Officer was dated as 13. 4. 1993, it does not lead to the conclusion that the f. I. R. was ante-limed. To say that the F. I. R. was ante-timed was simply to find fault with the prosecution case. ( 15 ) WE find that trial judge discarded the testimony of the eye-witnesses Virendra Kumar PW 1 (father of the victim) and Shyam Ji Pandey PW 2 for flimsy and unjustifiable reasons. He criticised the: testimony of Virendra Kumar PW 1, saying that he could have taken betel from the shop of Pundit which was nearer to his house instead of going to betel shop near Pico Centre belonging to the accused Rajesh and that his conduct was unnatural of being a mute spectator of the assault of his son by the accused-respondents, though the total incident took about an hour. It is noted that Virendra Kumar PW 1 gave plausible explanation for his presence at the spot. He resided in the same locality in House No. 128/48 B Block, Kidwai Nagar. That was Sunday. It is noted that Virendra Kumar PW 1 gave plausible explanation for his presence at the spot. He resided in the same locality in House No. 128/48 B Block, Kidwai Nagar. That was Sunday. His brother Shiv Kumar Srivastava, Advocate resided in House No. 128/53 K Block, Kidwai Nagar, kanpur which was at a distance of 2 1/2 or. 3 furlongs from the place of incident That being sunday, Shiv Kumar Srivastava had come to his house at about 12 Oclock because on the holiday they used to take lunch together. Sometimes, Shiv Kumar used to come to his house and vice versa. That being a leisure day they had taken lunch at about 4. 00 P. M. and then had gone to take betel at the betel shop near Pico Centre belonging to the accused Rajesh. There was nothing unnatural if he and his brother preferred to take betel near the shop of Pico Centre instead from that of Pundit. The incident had occurred when he with his brother was going to take betel. The perusal of the site-plan shows that near Pico Centre was the tailors shop of the other accused-respondent Najai. The incident took place near Pico Centre. The accused-respondent rajesh resided in House No. 128/22c Block. Kidwai Nagar which has also been shown in the site-plan. House No. 128/21 C Block in which the accused-respondent Mohan resided was adjacent thereto in which the victim was dragged after being assaulted by the three accused-respondents near Pico Centre. ( 16 ) AS per the evidence on record, the incident took place in continuation in one go in this way that the accused-respondents first made the victim "murga" near Pico Centre tying his hands and feet. Two bricks were placed on his back which were being pressed by accused-Rajesh. Najai caned him in the legs and Mohan slapped him. They paid no heed to the imploring of Virendra kumar PW 1 to let off the child. Rajesh held out that he had stolen his money which had been recovered from his banyan. Virendra Kumars requests went unheeded that they had already inflicted Sufficient corporal punishment on the child and that he should be let off as no actual loss had been suffered by any of them. Rajesh held out that he had stolen his money which had been recovered from his banyan. Virendra Kumars requests went unheeded that they had already inflicted Sufficient corporal punishment on the child and that he should be let off as no actual loss had been suffered by any of them. Threatening Virendra Kumar also of the assault, they dragged the child to the house of one of them Mohan, shutting the door and then came out taking to their heels after having murdered the child inside the" house by hanging. ( 17 ) THE time spoken by Virendra Kumar is not to be calculated with mathematical accuracy. The lower court should have taken realistic view of the entire deposition made by this witness as also the supporting witness Shyam J. Pandey PW 2. As for the conduct of Virendra Kumar PW 1 as being mute spectator of the incident, we do not think that any adverse inference could be drawn on this score. He was aghast and petrified in seeing his little child being assaulted by the three accused-respondents in the manner as detailed by him and the other supporting witness. He could do nothing before these three bullies of the locality who were atrociously treating his son aged about 11 years. It should be pointed out as passing reference that it has also come in the testimony of Virendra Kumar PW 1 that Mohan is a person of criminal antecedents and at the time of incident he was accused in a case Under Section 302 I. P. C. , but was on bail. ( 18 ) THE learned counsel for the accused-respondents argued that the prosecution could not prove any common bond amongst the three accused-respondents. We do not think that miracles could be expected from the prosecution. It could only bring on record the facts which were known to it. Justifiable inferences could be drawn from the evidence adduced in the Court. All the three accused-respondents resided in the same vicinity. Rajesh owned Pico Centre related to embroider work on the ladies clothes. The other accused-respondent. Najai was in allied vocation of tailoring having a shop adjacent to that of Rajesh. Motion resided in the house adjacent to that of Rajesh. These facts are clearly borne out from the evidence adduced by the prosecution. Rajesh owned Pico Centre related to embroider work on the ladies clothes. The other accused-respondent. Najai was in allied vocation of tailoring having a shop adjacent to that of Rajesh. Motion resided in the house adjacent to that of Rajesh. These facts are clearly borne out from the evidence adduced by the prosecution. Therefore, the prosecution case could not be doubted on the premise of lack of common bond amongst the three accused-respondents. ( 19 ) THE criticism against Shyam Ji Pandey PW 2 made by the trial judge is that he was not named in the F. I. R. and further his conduct, too, was unnatural that after seeing the assaulting of the child by the three accused-respondents and after he was dragged by the accused to the house of one of them Mohan shutting the door, he went to his house. He later on came to the house No. 128/21 C-Block, Kidwai Nagar, Kanpur of Mohan where the dead body of the boy was found hanging with a hook in the ceiling after the police had arrived. The trial judge also doubted his presence at the spot on the ground that reason given by him that he was going to fetch ice was not appealing. Further, he remarked that he could be the, pocket witness of the police because as he was a member of the peace committee of the locality nominated at the instance of S. O. of the police station concerned. These reasons assigned for discarding the testimony of Shyam Ji pandey. PW 2 are wholly untenable and unacceptable. The F. I. R. stated that Brij Bhan Singh and others witnessed the incident. The mere fact that the name of Shyam Ji Pandey was not specifically mentioned as witness in the F. I. R. could not be made a ground to discard his testimony. When it had been staled that Brij Bhan Singh and others were witnesses of the incident. "others" could necessarily include Shyam Ji Pandey. Rather, recital of the F. I. R. is indicative that it was a spontaneous document. The mental state of the father of the victim (who lodged the F. I. R.) could very well be visualised who had himself seen the assault of his son aged about 11 years by the accused-respondents who had then dragged him inside the house and committed his murder by hanging. The mental state of the father of the victim (who lodged the F. I. R.) could very well be visualised who had himself seen the assault of his son aged about 11 years by the accused-respondents who had then dragged him inside the house and committed his murder by hanging. Moreover, Shyam Ji Pandey PW 2 himself resided in House no. 128, B Block, Kidwai Nagar. There is nothing unusual that in the month of April, he had gone to fetch ice from the shop near the Pico Centre of Rajesh when he witnessed the incident this witness is sufficiently educated being an M. A. , L. L. B. He had been in the profession of advocacy also for about two years and at the relevant time he was a contractor of cycle stand where he used to be from 7. 00 A. M. to I2. 00 Oclock in the noon. The fact that he was member of peace committee of the locality rather indicated that he was a person of clean antecedents. It did not mean that he had been so nominated to be the pocket witness of the police. He, and for that matter even Virendra Kumar P. W. l, did not have any enmity with the accused-respondents to implicate them falsely. No adverse inference could be drawn from his conduct that after the child was dragged by the accused-respondents to the house of one of them Mohan, he left the scene. No body could scent at that time that the accused-respondents were going to be so cruel as to murder the child by hanging. The father of the child was already there. ( 20 ) THE learned counsel for the accused-respondents urged before us that though a number of other persons had allegedly assembled at the spot at the time of the assault of the child but none else had been examined. Our attention was drawn to the fact that even Shiv Kumar Srivastava, advocate-brother of Vinsidra Kumar PW 1 did not come to support him, though he was allegedly with Virendra Kumar going to take betel. We should say that had Shiv Kumar been examined, then the possible criticism would have been that he was the own brother of the informant Virendra Kumar. We should say that had Shiv Kumar been examined, then the possible criticism would have been that he was the own brother of the informant Virendra Kumar. It is mentioned in the G. D. related to registering of the case that Shiv kumar Srivastava, Advocate had accompanied the informant for lodging of the F. I. R. to the police Station, His non-examination did not at all adversely affect the prosecution case. The evidence is to be judged qualitatively and not quantitively. The prosecution is not supposed to multiply the evidence. Non-examination of other witnesses also does not matter at all. In the general run, the society has developed insensivity to the pangs and sufferings of others and one hardly comes forward to relieve the misery of fellow citizen. Individualistic mode of life has stridden fast. The incident could not be doubted because of none else corning to the rescue of the victim child. ( 21 ) THE testimony of two eye-witnesses, namely, Virendra Kumar PW 1 and Shyam Ji Pandey pw 2 was wholesome and convincing with no ripples whatsoever. Both of them were natural witnesses of the incident who plausibly explained their presence at the spot which could not be doubted at all. As we stated, they had no animus either against any of the accused-respondents. ( 22 ) A look at the post mortem report would show that. there is complete harmony between the ocular testimony and the medical evidence. Abraded contusions and contusions around the neck, abraded contusions on front of inner side of left ankle and back of left side of scapula and contusions on back of right leg below knee and back of left leg below knee were found on the person of the deceased. This indicated the murder of the child by asphyxia as a result of throttling and hanging. Other injuries could be caused by the caning of the legs of the victim and pressing bricks on his back by the accused-respondents as is the evidence of the witnesses. The dead body was found hanging inside House No. 128/21 C Block, Kidwai Nagar, Kanpur in which one of the accused- respondents Mohan resided. The dead body was found hanging through hook in the ceiling and the feet were at a height of 4-5 ft. from the level of the floor. The dead body was found hanging inside House No. 128/21 C Block, Kidwai Nagar, Kanpur in which one of the accused- respondents Mohan resided. The dead body was found hanging through hook in the ceiling and the feet were at a height of 4-5 ft. from the level of the floor. ( 23 ) TO conclude, the finding of acquittal recorded by the trial court is based on flimsy grounds and cannot be sustained at all. The acquittal is wholly unjustified. It goes without saying that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system. The concept of benefit of doubt should not become fetish. The guilt of the accused-respondents was proved to the hilt by clinching, convincing and conclusive evidence of eye-witnesses which was in complete harmony with medical evidence. The three accused-respondents committed this crime, sharing the common intention of one another. They extinguished a budding life in a merciless manner, behaving like wolves in human shape. ( 24 ) FOR the discussion made hereinabove, we allow this appeal and reverse the finding of the acquittal recorded by the trial judge. The accused-respondents, Rajesh, Najai and Mohan are found guilty of the offence punishable Under Section 302 I. P. C read with Section 34 I. P. C. They are, accordingly, convicted therefor and each of them is sentenced to life imprisonment. ( 25 ) THE accused-respondents, Rajesh, Najai and Mohan are on bail. The Chief Metropolitan magistrate, Kanpur Nagar shall cause them to be arrested and lodged in jail to serve out the sentence of life imprisonment passed against them ( 26 ) JUDGMENT be certified to the lower court immediately for reporting compliance to this Court within two months from the dale of receipt. . .