Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 3726 (ALL)

CHHEDA SINGH v. STATE OF U. P.

2009-12-11

SHRI KANT TRIPATHI

body2009
JUDGMENT: Shri Kant Tripathi,J. In this appeal, the appellant Chheda Singh has assailed the judgment and order dated 15.9.1981 rendered by IIIrd Additional Sessions Judge, Kanpur, in S.T. No. 516 of 1980, State of U.P. vs. Chheda Singh and another. 2. The learned Additional Sessions Judge has held the appellant Chheda Singh guilty of committing the offence punishable under section 304 Part II of the Indian Penal Code and accordingly convicted and sentenced him to under go rigorous imprisonment of five year. 3. The prosecution story in nutshell is that a quarrel between the deceased's son Prakash and co-accused's daughter Km. Shashi had taken place a few days before the incident in question. Co-accused's husband Harnam Singh gave a beating to Prakash because he had bitten the cheek of Km. Shashi. When Prakash told his father Hori Lal (the deceased) about the incident, an altercation between the deceased Hori Lal and co-accused's husband Harnam Singh took place. On 4.8.1977 at about 5.00 PM, the appellant Chheda Singh, the brother of the husband of the co-accused, visited the apartment of co-accused Ram Kumari Devi situating on third floor and after a few minutes of his arrival, there was a furore and the deceased Hori Lal cried for help voicing that he was being killed. On his cries witnesses Ram Lal, Gama, Dhani Ram, Budh Ram and Sheo Poojan Yadav came out of their houses with a view to help Hori Lal. In the course of quarrel, co-accused Ram Kumari Devi instigated the appellant Chheda Singh to throw the deceased Hori Lal from the window and told that it was he who was responsible to outrage the modesty of her daughter (Km. Shashi). The appellant Chheda Singh thereupon threw the deceased Hori Lal from the third floor to the ground, consequently the deceased sustained serious head injury and became unconscious. The deceased's son Prakash, who was also present there, took the deceased to police station Gwaltoli and lodged the FIR, on which basis the police registered the case against the appellant and co-accused under section 307 IPC and proceeded to make investigation. The police referred the deceased Hori Lal to UHM Hospital, where he was medically examined on the same day at about 7.00 PM. 4. The police referred the deceased Hori Lal to UHM Hospital, where he was medically examined on the same day at about 7.00 PM. 4. After the medical examination, the deceased Hori Lal was admitted in the hospital for treatment at about 7.15 PM but died the same day at about 9.45 PM due to the head injury sustained by him. The police, on receiving information regarding death of the deceased, converted the case from section 307 IPC to section 302 IPC. 5 After preparation of the inquest report of the dead body of the deceased, other formalities were done and the dead body was sent for post mortem examination. The post mortem examination on the dead body of the deceased was done by PW-5 Dr. R. Prakash. 6. The investigating officer, after completing the investigation, submitted a charge sheet against the appellant and the co-accused. 7. The learned Additional Sessions Judge framed the charge under section 302 IPC against the appellant and under section 302/34 IPC against co-accused Ram Kumari Devi. 8. Both the accused denied the charges levelled against them and claimed to be tried. 9. The prosecution examined as many as seven witnesses in support of its case. 10. PW-1 Palakdhari (Sub Inspector) had investigated the case and has given evidence of formal nature. He has also proved recovery of deceased's shoes from the residence of the accused. PW-2 Ishrat Husain had taken the deceased to the U.H.M. Hospital for treatment and had, after obtaining injury report from the hospital, delivered the same at the police station. PW-3 Ram Lal, who used to live in the same vicinity, has given an eye witness account of the occurrence. PW-4 Prakash, who is the son of the deceased, has also given an eye witness account of the occurrence. This witness had also lodged the FIR. 11. PW-5 Dr. R. Prakash had done the post mortem examination on the dead body of the deceased and has proved the ante mortem injuries sustained by the deceased as well as the autopsy report Ex. Ka-12. He had found one stitched wound 4" in length with three stitches on the back of head on right occipital region and on removing stitches the wound was found bone deep and a fracture of occipital bone on right side under injury no.1 was also found. Ka-12. He had found one stitched wound 4" in length with three stitches on the back of head on right occipital region and on removing stitches the wound was found bone deep and a fracture of occipital bone on right side under injury no.1 was also found. Right cerebral Hemosphere beneath the ante mortem injury in the area of ¾ x ½ x ½ inch were found lacerated. Clotted blood was also found in the occipital area around the ante mortem injury. According to PW-5 Dr. R. Prakash the cause of death of the deceased was on account of shock and haemorrhage due to ante mortem head injury. 12. PW-6 Dr S.K. Govil had medically examined the deceased on 4.8.1977 at about 7.00 PM and has proved the injury report Ex. Ka 13 as well as the following injury sustained by the deceased: "Lacerated wound 4" x 1/4" x scalp deep on the back of skull occipital region. 13. The deceased, as per the report of the doctor, was in an unconscious state and his pupils were dilated. The injury had been caused by a blunt weapon." 14. PW-7 Constable Jodha Singh has proved that the original FIR and the chick report were searched out by him but they were not traceable. As such this witness proved copies of the FIR Ex. KA. 15 and G.D. Ex. Ka.16, which were in the handwriting of Head Constable Shiv Shankar Lal. This witness has further proved the signature and handwriting of Head Constable Shiv Shankar Lal on the copies of FIR and G.D. 15. The appellant and the co-accused were examined under section 313 Cr.P.C. The appellant admitted that co-accused Ram Kumari Devi used to live on third floor of house No.10/276, Khalasi Lines, Kanpur and the deceased Hori Lal used to live on the ground floor in the adjoining house no. 10/271, Khalasi Lines, Kanpur. The appellant further stated that he has been falsely implicated at the instance of PW.3 Ram Lal on the ground that his brother Harnam Singh used to collect rent on behalf of the landlord but Ram Lal was not willing to give rent at the enhanced rate, consequently a quarrel took place between his brother and Ram Lal, due to which Ram Lal and his family members developed enmity and got implicated him in this case. 16. 16. The learned Additional Sessions Judge has believed the prosecution story and held that the facts proved by the prosecution did not constitute the offence of murder under section 302 IPC. The learned Additional Sessions Judge further held that only the offence under section 304 Part II of the IPC was made out from the proved facts. The appellant was accordingly convicted and sentenced under section 304 Part II IPC. The learned Additional Sessions Judge on the other hand acquitted the c o-accused Ram Kumari Devi but no appeal has been filed by the State to impugn the acquittal of the co-accused. 17. I have heard Afzal Ahmad, the learned counsel for the appellant and the learned AGA and perused the lower court record. 18. In this case the prosecution case rests on the ocular testimonies of PW-3 Ram Lal and PW-4 Prakash, which have been corroborated by the medical evidence of PW-5 Dr. R. Prakash and PW-6 Dr. S.K. Govil. The FIR was also lodged very promptly within one and a half hour of the occurrence in which all the relevant facts relating to the incident had been disclosed. The learned Additional Sessions Judge has elaborately dealt with the oral as well as medical evidence and other facts and circumstances of the case and very categorically arrived at the conclusion that the appellant Chheda Singh threw the deceased from the third floor to the ground, which resulted in causing death of the deceased, after few hours due to the head injury sustained by him. PW-3 Ram Lal used to live permanently on the ground floor of the adjoining house and had witnessed the occurrence there from. He was a quite natural witness of the occurrence and his presence at the time of the incident can not be doubted in any way. It may also be mentioned that despite lengthy cross-examination nothing material could be brought in the statement of PW.3 Ram Lal to discredit his testimony. PW-4 Prakash is the son of the deceased, who also used to live in the adjoining building on the ground floor. He has also supported the prosecution story. His presence at the time of the incident in view of the fact that he was a resident of an adjoining building, was quite probable. PW-4 Prakash is the son of the deceased, who also used to live in the adjoining building on the ground floor. He has also supported the prosecution story. His presence at the time of the incident in view of the fact that he was a resident of an adjoining building, was quite probable. It may be mentioned that the charge of outraging the modesty of the daughter of the co-accused by biting her cheek had been levelled against this witness, which caused annoyance not only to the co-accused Ram Kumari Devi but also to the appellant Chheda Singh, who is the real brother of the husband of the co-accused. When appellant Chheda Singh visited the house of his brother Harnam Singh, i.e. husband of co-accused Ram Kumari Devi, he was told about the incident of outraging the modesty of the daughter of co-accused Ram Kumari Devi. It has also come in evidence that co-accused Ram Kumari Devi called the deceased to the third floor and when the deceased went on the third floor of the house, an altercation took place amongst the deceased, the appellant and co-accused Ram Kumari Devi and during the course of altercation appellant Chheda Singh threw the deceased from the third floor to the ground. In this way the prosecution evidence is not only consistent throughout but there was also a strong motive for the appellant to kill the deceased. 19. The learned counsel for the appellant submitted that except the window of the portion occupied by co-accused Ram Kumari Devi, remaining portion of her tenanted accommodation was not visible from the ground floor and this fact has been admitted by the eye witnesses and as such both the eye witnesses were not in a position to see the occurrence and identify the assailant from the ground floor and as such it is not proved beyond all reasonable doubts that the appellant Chheda Singh threw the deceased from the third floor to the ground. This submission does not appear to have any substance. Both the eye witnesses PW-3 Ram Lal and PW-4 Prakash, who used to live in the neighbouring houses, have very clearly stated that the window of third floor where-from the deceased was thrown to the ground by the appellant, was quite visible from the place where they were present at the time of the incident. Both the eye witnesses PW-3 Ram Lal and PW-4 Prakash, who used to live in the neighbouring houses, have very clearly stated that the window of third floor where-from the deceased was thrown to the ground by the appellant, was quite visible from the place where they were present at the time of the incident. These two witnesses have ruled out the suggestion that the deceased himself fell down from the third floor. They have very clearly stated that the appellant threw the deceased from the third floor to the ground through the window. This fact finds corroboration from the recovery of deceased's shoes from the residence of co-accused. It is no doubt true that the said two witnesses have stated that inner portion of the room occupied by the co-accused was not visible from the ground but it is no ground to discard the testimony of the PW-3 Ram Lal and PW-4 Prakash specially when they have very specifically stated that they themselves saw the incident and it was the appellant who threw the deceased from the third floor. It is a very specific case of the prosecution that an altercation had taken place amongst the deceased, co-accused and the appellant before the incident in question. As such it can be inferred that the witnesses who were present on the ground floor in the neighbouring houses attracted towards the third floor where the altercation was going on and as such they were in a position to witness the occurrence. In my opinion the learned Additional Sessions Judge has rightly believed the ocular testimonies of PW-3 Ram Lal and PW-4 Prakash. I, therefore, do not find any substance in the submissions of the learned counsel for the appellant. 20. The learned counsel for the appellant further submitted that the deceased had sustained only one head injury which proved fatal. If he had been thrown from the third floor to the ground, he would have sustained several injuries instead of only one injury. This circumstance belies the ocular testimonies of PW-3 Ram Lal and PW-4 Prakash. In this connection it may be mentioned that both the eye witnesses have very clearly stated that the appellant threw the deceased from the third floor to the ground but the deceased first of all fell on a hutch (Chhapar) and thereafter on the ground and sustained injuries. In this connection it may be mentioned that both the eye witnesses have very clearly stated that the appellant threw the deceased from the third floor to the ground but the deceased first of all fell on a hutch (Chhapar) and thereafter on the ground and sustained injuries. When the deceased fell first of all on a hutch (Chappar) and then fell on the ground, there was no question of more injuries as suggested by the learned counsel for the appellant. This submission of the learned counsel for the appellant has also no substance. 21. It was also submitted on behalf of the appellant that the appellant's brother Harnam Singh used to collect rent on behalf of the landlord but PW-3 Ram Lal was not willing to pay rent at the enhanced rate. Consequently a quarrel had taken place between Harnam Singh and PW-3 Ram Lal, due to which PW-3 Ram Lal developed an enmity and implicated the appellant in this case. It may be mentioned that there is no evidence to show that the landlord had authorised Harnam Singh to collect rent on his behalf. The enhancement of rent, if any, was made by the landlord and not by Harnam Singh. There is also no evidence that any quarrel had taken place between PW-3 Ram Lal and appellant's brother Harnam Singh. The presence of PW-3 Ram Lal at the time of the incident is highly probable specially when he used to live in an adjoining house and was available in his house at the time of the incident. The statement of PW-3 Ram Lal finds corroboration from the medical evidence as well as the statement of PW-4 Prakash and the story narrated by him is consistent with the facts and circumstances of the case and could not be shaken despite lengthy cross-examination. In view of these factual aspects of the matter, the statement of PW-3 Ram Lal can not be discarded on the ground that he had some enmity with the appellant's brother Harnam Singh. The ocular testimony of a witness can not be discarded on the ground of enmity if his statement is otherwise believable and is consistent with the medical evidence as well as statements of other witnesses. This submission of the learned counsel for the appellant has also no substance. 22. The ocular testimony of a witness can not be discarded on the ground of enmity if his statement is otherwise believable and is consistent with the medical evidence as well as statements of other witnesses. This submission of the learned counsel for the appellant has also no substance. 22. The learned counsel for the appellant further submitted that the original FIR has not been proved and the copy of the FIR Exhibit Ka-15 is not admissible in evidence. It is true that the original FIR has neither been produced nor proved but PW-7 Jodha Singh has proved copy of the FIR (Exhibit Ka-15) and has further proved that the original FIR was not traceable though he tried to search out the same in different courts of Magistrate but was not found. It may also be mentioned that the copy of the FIR (Exhibit Ka-15) seems to be the carbon copy of the chik report prepared alongwith the original at the time of registration of the FIR at the police station. Section 65 of the Evidence Act provides that secondary evidence may be given of the existence, condition, or contents of a document, inter-alia, on the ground that the original has been destroyed or lost. In this case the prosecution has adduced adequate evidence that the original FIR had lost and was not traceable despite sincere efforts made by PW-7 Jodha Singh. In view of this factual aspect of the matter, the copy of the FIR Exhibit Ka-15 duly proved by PW-7 Jodha Singh, is admissible in evidence as secondary evidence and as such the prosecution case can not be thrown out on the ground that the original FIR has not been proved. 23. The learned counsel for the appellant further submitted that the co-accused Ram Kumari has been acquitted and as such a part of the prosecution story has been disbelieved and there is no certainty that the remaining part of the prosecution story which is against the appellant is trustworthy. In this connection it may be mentioned that the maxim falsus in uno falsus in omnibus is not applicable in India. If a part of the prosecution story is believable and is fully proved and can be separated from the remaining part of the story, the court may believe acceptable part of the story. In this connection it may be mentioned that the maxim falsus in uno falsus in omnibus is not applicable in India. If a part of the prosecution story is believable and is fully proved and can be separated from the remaining part of the story, the court may believe acceptable part of the story. It appears that the learned Additional Sessions Judge acquitted the co-accused Ram Kumari on the ground that it was probable that co-accused Ram Kumari was roped in the case simply because it was she, who felt most sore when Prakash had bitten the cheek of her daughter. In my opinion, the line of distinction drawn by the learned Additional Sessions Judge between the appellant and co-accused seems to be reasonable. It is the consistent case of the prosecution that it was the appellant, who played the main role in throwing the deceased from third floor to the ground and was, thus, responsible for causing the death of the deceased. The co-accused had not played any such role. It was alleged that she instigated the appellant for killing the deceased. If story of instigation was disbelieved by the learned trial court, the remaining part of the story that the appellant killed the deceased by throwing him from the third floor to the ground which has been fully proved by the ocular testimonies of the eye witnesses and medical evidence, can not be discarded on the grounds submitted by the learned counsel for the appellant. 24. In my opinion, the judgment of conviction and sentence recorded by the learned Additional Sessions Judge appears to be perfectly correct and based on proper appraisal of the evidence on record. 25. The learned trial court has already taken a very lenient view by holding that only the offence under section 304 Part II IPC was made out against the appellant. Accordingly the trial court found that the charge under section 304 Part II IPC was proved beyond all reasonable doubts against the appellant. A sentence of five year rigorous imprisonment keeping in view the facts and circumstances of the case, can not be said to be excessive and unreasonable. 26. The appeal has no merit and is accordingly dismissed. 27. Let the original record alongwith a copy of this judgment be transmitted forthwith to the court concerned for compliance. A sentence of five year rigorous imprisonment keeping in view the facts and circumstances of the case, can not be said to be excessive and unreasonable. 26. The appeal has no merit and is accordingly dismissed. 27. Let the original record alongwith a copy of this judgment be transmitted forthwith to the court concerned for compliance. The concerned Additional Sessions Judge is directed to get the appellant Chheda Singh arrested and sent in jail for serving out the sentence and submit a compliance report at the earliest.