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2012 DIGILAW 1061 (ALL)

DEBI PRASAD v. STATE OF U. P.

2012-05-04

ASHOK SRIVASTAVA, DHARNIDHAR JHA

body2012
Ashok Srivastava, J. This criminal appeal is directed against the judgment and order dated 23.3.1982 passed by II Additional Sessions Judge, Non Metropolitan Area, Kanpur in S.T./No. 217 of 1980. From perusal of the F.I.R. it is evident that seven persons are named in it as accused who are Debi Prasad, Jagdamba, Suraj Prasad, Kunwar Lal, Gur Prasad, Ram Autar and Gajraj @ Hajji. All of them were chargesheeted and faced trial before the learned lower court. The learned lower court convicted Kunwar Lal, Debi Prasad, Jagdamba, Ram Autar and Gaj Raj alias Hajji whereas it gave benefit of doubt to Suraj Prasad and Gur Prasad. These two accused persons were acquitted. The learned lower court sentenced all the convicted accused under Section 302 /149 I.P.C. for life imprisonment and one year's R.I. under Section 148 I.P.C. The appellant-accused Kunwar Lal was further sentenced to 2 years' R.I. under Section 379 I.P.C. No fine was imposed and all the substantive sentences of imprisonment were directed to run concurrently. All the five convicted accused filed the present appeal. During the pendency of the appeal, the appellant Kunwar Lal and Devi Prasad have died and the appeal stood abated against them. Thus, the present appeal, pertains only to surviving appellants namely Jagdamba, Ram Autar and Gajraj @ Hajji. 2. The alleged incident had taken place on 16.3.1980 at about 4.00 P.M. within the village estate of Selhupur, P.S. Bhognipur, Kanpur. The informant of this case is one Suresh Chandra who is the brother of the deceased Ramesh Chandra, who was killed in this case. The F.I.R. was lodged with the police of P.S. Bhognipur the same evening at about 6.35 P.M. On the fateful day, the deceased alongwith his brother Suresh Chandra, wife Smt. Padma Devi and his minor daughter Km. Sunita was harvesting his Arahar {a kind of pulse ( Cajamus indicus)} crop. One Baburam, a relative of the family of the deceased, came there as he had to invite the deceased for the Tilak ceremony of his daughter and further to request him that the deceased should bring alongwith him his tractor to facilitate transportation of the relatives and guests of Baburam on the occasion. After arrival of Baburam, the deceased and his family members stopped cutting the Arahar crop and proceeded towards their house to offer tea and snacks to him. After arrival of Baburam, the deceased and his family members stopped cutting the Arahar crop and proceeded towards their house to offer tea and snacks to him. When they reached near the threshing yard ( Khalihan) of Chhotey and Gilli Yadav, all the appellants who were hiding themselves behind the tied and piled up bundles of harvested Arahar came out from their hiding. Kunwar Lal exhorted by calling upon the co-accused to kill the deceased and simultaneously fired upon him. The fire hit the deceased who fell down on the ground. Thereafter, all the accused persons fired upon him. The informant, Smt. Padma, wife of the deceased, Km. Sunita, daughter of the deceased and Baburam cried for help. Hearing the sound of fire shots and the cries of the informant and his family members, many people of the village ran towards the spot including Ram Ratan, Man Singh, Virendra, Vijay Narayan and Vijay Bahadur. Seeing so many persons running towards them, all the accused persons ran away from the place of occurrence. Since there was an apprehension in the mind of the informant that the accused persons may carry away with them the dead body of the deceased, the dead body was taken to the residence of the deceased by his family members. Thereafter, the informant went to the police station Bhognipur and filed a written complaint there on the basis of which an F.I.R. was lodged. The I.O. examined the informant at the police station and thereafter he started towards the place of occurrence. By that time it was 8.30 in the night and, therefore the I.O. for lack of proper lighting arrangement postponed the preparation of inquest till the next morning. On 17.3.1980, in the morning, the inquest formalities were completed and the dead body was sent for post-mortem. It is the case of the prosecution that the constable who carried the dead body to the post-mortem house could reach the district headquarter quite late and the post-mortem could not be conducted on that date. On 18.3.1980 the post-mortem was conducted by Dr. Tej Bahadur Singh ( PW-6), who prepared the post-mortem report. It is the case of the prosecution that the constable who carried the dead body to the post-mortem house could reach the district headquarter quite late and the post-mortem could not be conducted on that date. On 18.3.1980 the post-mortem was conducted by Dr. Tej Bahadur Singh ( PW-6), who prepared the post-mortem report. The matter was investigated by S.H.O. Hridayanand Pandey ( PW-4) who examined the witnesses including PW-1 Suresh Chandra, the informant, PW-3 Smt. Padma Devi, Babu Ram ( CW-1) and Ram Ratan, Man Singh, Virendra, Vijay Narayan and Surendra Nath ( all the witnesses of facts but not examined). The I.O. had taken blood stained and plain earth from the place of the incident and sent the same for their serological examination. He also took into his custody the clothes etc. worn by the deceased at the time of his death and sent the same for serological test and obtained reports thereof. The blood soaked earth and the apparels were found to be stained with human blood having "B" blood group. After concluding his investigation the I.O. submitted a chargesheet in the court of learned Magistrate and the case was committed in due course and was decided by the learned Additional Sessions Judge, as mentioned above. All the accused-appellants were charged for offences punishable under Sections 148, 302, 149 I.P.C. and an additional charge under Section 379 I.P.C. was framed against appellant Kunwar Lal. 3. The prosecution examined PW-1 Suresh Chandra, PW-2 Km. Suneeta, PW-3 Smt. Padma, PW-4 Hridaya Nand Pandey, PW-5 CP 3135 Raja Ram and PW-6 Dr. T.B. Singh. PWs- 1, 2 and 3 are witnesses of facts. PW-4 is the Investigating Officer. PW-5 is the police constable who had taken the dead body for post-mortem and PW-6 is Dr. T.B. Singh who conducted the post-mortem. 4. Baburam has been examined by the court as CW-1. The prosecution had produced many documents including the written report, F.I.R., chargesheet, inquest report and post-mortem report. After examination of the accused persons under Section 313 Cr.P.C. the appellants were afforded an opportunity to adduce their evidence. 5. Five defence witnesses namely Dr. J. Bajpai ( DW-1), Surendra Singh ( DW-2), an x-ray technician, Dr. R.B. Misra ( DW-3), R.C. Srivastava( DW-4) and Sultan Niazi ( DW-5) were examined from the side of the appellants. 6. We have heard learned counsel for the parties and learned A.G.A. 7. 5. Five defence witnesses namely Dr. J. Bajpai ( DW-1), Surendra Singh ( DW-2), an x-ray technician, Dr. R.B. Misra ( DW-3), R.C. Srivastava( DW-4) and Sultan Niazi ( DW-5) were examined from the side of the appellants. 6. We have heard learned counsel for the parties and learned A.G.A. 7. According to the prosecution, a deep rooted enmity subsisted between the families of the deceased and the appellants. The motive of murder is almost admitted. The facts show that a few family members from the side of the appellants were done to death in which the deceased and the informant were also named as accused persons. Further, one Dinesh Chandra, younger brother of the informant was also murdered in which six out of the present seven accused were amongst the named accused. In that case the deceased Ramesh Chandra was the informant. Further the deceased Ramesh Chandra was also a witness in a case under Section 307 I.P.C. against the accused persons Kunwar Lal, Jagdamba Prasad, Suraj Prasad and Ram Autar. Murder and counter murders had taken place from both the sides, therefore, the motive, in the instant case, as alleged by the informant is proved beyond doubt. 8. PW-2 Km. Sunita was not examined by the I.O. of the case under Section 161 Cr.P.C. which has been admitted by PW-4 who is the I.O. of the case. Naturally no copy of such statement was in existence when the appellants were supplied police papers under Section 207 Cr.P.C. The learned lower court has relied upon the statement of of this witness recorded as PW-2 under Section 231 Cr.P.C. We are of the view that it was not proper on the part of the learned lower court because when the examination-in-chief of this witness was led before the learned trial court it came before the accused persons for the first time and that too during the course of trial, therefore, in our opinion, the statement of PW-2 Km. Sunita cannot be read into evidence against the appellants and therefore we discard the entire evidence of this witness. 9. Now we have been left with three witnesses of facts namely PW-1 Suresh Chandra, PW-3 Smt. Padma and CW-1 Baburam. 10. The statement of Baburam was recorded under Section 161 Cr.P.C. by the I.O. of the case. Baburam was not examination as a prosecution witness. 9. Now we have been left with three witnesses of facts namely PW-1 Suresh Chandra, PW-3 Smt. Padma and CW-1 Baburam. 10. The statement of Baburam was recorded under Section 161 Cr.P.C. by the I.O. of the case. Baburam was not examination as a prosecution witness. The facts and the circumstances show that he was present at the spot when the deceased was killed and, therefore, his evidence was necessary for the learned trial court to arrive at the just decision of the case. Baburam has been named in the F.I.R. as a witness and it has been specifically mentioned in the statements of PWs- 1 and 3 that Baburam was present at the place of occurrence throughout the incident and he had seen it. Therefore, recording of his evidence as court witness by the learned lower court was fully justified and we accord our approval to this action of the learned trial judge. 11. In the case the post-mortem was conducted by PW-6 who found as many as 8 injuries on the dead body of the deceased which are as follows : i.Gun shot wound of entry 2 cm in diameter x cavity deep, left side at chest, 9 cm below and outer to left nipple. Blackening and tattooing present. ii.Entry wound ( Gun shot) 3 cm x 2 cm x abdominal cavity left to vertebral column 2 cm above the posterior iIiac spine. Blackening and tattooing present. iii.Gun shot wound of entry 2 cm in diameter on back of chest right side 5 cm below the right anterior angle of scapula. iv.Gun shot wound of entry 1 cm x 1 cm on root and back of neck, at the level of sixth cervical vertebra. Blackening and tattooing present. v.Gun shot wound of exit 1 cm in diameter left side 5 cm below the left angel ( interior) of scapula. vi.Gun shot wound of exit 1 cm diameter 3 cm to the right of back bone over the lumber region. vii.Six wounds of exit each 1 cm in diameter spread over an area of 15 cm x 12 cm on the upper and outer part of right side of chest. viii.Two wounds of re-entry on the inner and upper part of right arm each 1 cm in diameter. 12. On an internal examination the medical officer found that the pleura and heart of the deceased were completely ruptured. viii.Two wounds of re-entry on the inner and upper part of right arm each 1 cm in diameter. 12. On an internal examination the medical officer found that the pleura and heart of the deceased were completely ruptured. The lungs were lacerated and death was caused due to shock and hemorrhage as a result of ante-mortem injuries and injuries were sufficient, in ordinary course, to cause death due to their nature and seat. 13. PW-1 Suresh Chandra, PW-3 Smt. Padma Devi and CW-1 Baburam have supported the prosecution story regarding the time and place of occurrence. They claimed to have seen the occurrence as they were accompanying the deceased when they were going back home from the agriculture field where they were harvesting the Arahar crop. 14. We have examined the site plan, Ext. Ka. 11 and compared it with the F.I.R. and statements of these three witnesses and we find that the prosecution has been successful in establishing the place and time of occurrence. We do not find any anamoly and variations in the ocular version and documentary version. In the serologist report, Ext. Ka. 23 the expert has specifically mentioned that the blood was human blood and the group was "B". Since the blood was disintegrated the serologist found himself unable to give any opinion regarding further classification of the blood sample but the report definitely shows that the blood was human blood. The three PWs namely PW-1 Suresh Chandra, PW-3 Smt. Padma Devi and CW-1 Baburam have given, in their statements, a vivid picture of the entire incident. All of them have said that before the incident, the deceased alongwith the informant and the witness Smt. Padma Devi were harvesting the Arahar crop. They have further said that when Baburam reached there, they stopped cutting the crop and proceeded to the residence of the deceased. Baburam was a family guest and he had come there with a specific purpose. This purpose has not been challenged in cross-examination by the appellants. Baburam has said that he had come to the deceased to invite him to attend the Tilak ceremony of his daughter and also to request him to carry alongwith him his tractor just to facilitate the transportation of articles and the guests who were due to arrive at the said function. Baburam has said that he had come to the deceased to invite him to attend the Tilak ceremony of his daughter and also to request him to carry alongwith him his tractor just to facilitate the transportation of articles and the guests who were due to arrive at the said function. This purpose appears quite natural, specially when CW-1 has given a specific date of Tilak of his daughter. 15. Regarding the main incident, all the three eye witnesses had given a concurrent version. They have said that the deceased was carrying the gun and cartridge strap belonging to Baburam. Baburam was going ahead of the deceased whereas the witnesses Suresh Chandra, Km. Sunita and Smt. Padma were following them. All of them were at a reasonably close distance from each other and there was nothing which may obstruct their vision of the place wherefrom the appellants had jumped out from their hiding. All of them have said specifically that Kunwar Lal, Devi Prasad, Jagdamba and Ram Autar were carrying guns in their hands whereas Suraj Prasad, Guru Prasad and Gajraj were carrying Tamancha ( country made pistol) in their hands. They have said with specification that it was Kunwar Lal who had exhorted by shouting that the enemy is here and it is a good opportunity to take revenge and at the same time he fired on the deceased. As a consequence the deceased fell down on the ground as he was hit by the shot released by Kunwar Lal. All the three witnesses of facts have further stated that immediately thereafter all the remaining six accused persons fired upon the deceased who died at the spot. These witnesses have further said that it had all happened in a few minutes. They have further said that they raised hue and cry and shouted for help upon which quite a number of people from the adjoining fields and the village ran towards the place of occurrence. Many of them had seen the incident. These witnesses have also said that when the assailants saw such a big number of persons running towards the place of occurrence they ran way towards south. They have further said that while running away from the place of occurrence, accused Kunwar Lal picked up the gun and cartridge strap belonging to Babu Ram and took that alongwith him. 16. These witnesses have also said that when the assailants saw such a big number of persons running towards the place of occurrence they ran way towards south. They have further said that while running away from the place of occurrence, accused Kunwar Lal picked up the gun and cartridge strap belonging to Babu Ram and took that alongwith him. 16. Learned counsel for the appellants has read before us the entire evidence available on the record and he pointed out some contradictions. In our opinion, none of the contradictions is of such a nature which may be cited or quoted here. All the discrepancies have been found by us as minor and natural and they are bound to occur in statements of eye witnesses because they have seen the incident and appreciated the same from various angles and their respective vision. After a careful examination of the statements of the witnesses of facts, we find that the ocular evidence as led by the prosecution is cogent, credible and trustworthy. Minor variations are there but they do not carry any impact. We have examined eye witnesses account of the incident carefully and compared the same with each other before scrutinizing them independently also. After a thoughtful evaluation of the evidence regarding the facts, we are satisfied that all the three witnesses actually saw the incident and there is nothing which may indicate that they are not trustworthy. 17. It has been submitted from the side of learned counsel for the appellants that the learned trial judge has acquitted two out of seven accused persons which by itself indicates that those two accused persons were not involved in the incident and there is every possibility that rest of the accused might have been falsely implicated in the case. From perusal of the judgment of the learned lower court it is evident that the learned trial judge has given benefit of doubt to two accused persons namely Suraj Prasad and Guru Prasad. He acquitted these two accused persons giving them benefit of doubt on the basis of the evidence lead by them after examination of the accused persons under Section 313 Cr.P.C. We have to state that the reasonings, on the basis of which the learned trial judge had given benefit of doubt to two co-accused persons are not proper. He acquitted these two accused persons giving them benefit of doubt on the basis of the evidence lead by them after examination of the accused persons under Section 313 Cr.P.C. We have to state that the reasonings, on the basis of which the learned trial judge had given benefit of doubt to two co-accused persons are not proper. He has taken as gospel truth the statements of two advocates of Kanpur Judgeship basically on the basis of their being senior members of the bar. The learned trial judge has not scrutinized the statements of the two doctors, the x-ray technician and the two private persons in a proper way. The accused Suraj Prasad got himself admitted in the Kanpur Medical College on 18.3.1980, just after 48 hours of killing of the deceased, and he was medically examined by DW-1 Dr. J. Bajpai. Such close proximity of time from the time of murder itself raises a doubt. It should always be borne in mind that generally in most of the cases, before opening of the trial before the court, no specific defence is there from the side of the accused persons. They are invited to adduce their evidence after the conclusion of the evidence of the prosecution and they have every opportunity to manipulate the situations in their favour keeping in view the prosecution evidence already available on the record. Therefore, it was the duty of the learned Additional Sessions Judge to thrash the defence evidence in a logical, proper and legal manner before giving benefit of doubt to two accused persons. Reasonable doubt has been described and explained by the Apex Court in ( 2003) 7 SCC 56 ; Krishnan and another Vs. State represented by Inspector of Police). The Apex Court has stated that "a person has a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. To constitute reasonable doubt, it must be free from an overemotional response and zest for abstract speculation. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. To constitute reasonable doubt, it must be free from an overemotional response and zest for abstract speculation. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case." 18. Unfortunately in the instant case the learned Addl. Sessions Judge while granting benefit of doubt to the accused persons namely Suraj Prasad and Guru Prasad did not act in a reasonable and logical manner. Therefore, it cannot be said that there has been a false implication of the accused persons namely Suraj Prasad and Guru Prasad. Since these two persons are not before us and there is no government appeal before us against the acquittal portion of the judgment, we cannot say anything more in respect of those accused persons but we are of the view that their acquittal does not indicate their non participation in the entire episode. 19. It has further been submitted that the deceased was killed by unknown persons and his dead body was lying at some place other than the place as shown in the F.I.R. and the site plan and when the dead body was found, the family members of the deceased took it to their house, kept it there and due to previous enmity the benefit of death of the deceased was taken by the informant and a false F.I.R. was lodged against the accused persons. This is a mere suggestion on the part of the appellants and it has been vehemently and specifically denied by each and every prosecution witnesses. This is a mere suggestion on the part of the appellants and it has been vehemently and specifically denied by each and every prosecution witnesses. There is nothing on the record which directly or indirectly go to show that the incident had taken place at a place other than the place mentioned in the F.I.R. In the F.I.R. and in statement under Section 161 as well as under Section 231 Cr.P.C., the witnesses have categorically explained the situation that there was a possibility that the accused persons might have taken away the dead body of the deceased, if the same was left at the place of occurrence as the place of occurrence was in an open field and the appellants were bullies and dare devil persons who could have done it to cause disappearance of evidence. This explanation appears to be natural and satisfactory beyond any shadow of doubt. 20. It has further been submitted from the side of the appellants that no independent witness has been examined in the case. It is true that in the instant case the two eye witnesses are full brother and wife of the deceased and the third one is a relative of the deceased family. Now by a catena of judgments by this Court as well as Apex Court it has been fully established that the evidence of relatives and friends cannot be discarded only on the basis of their nearness with the deceased. What is required in such cases is that their evidence should be properly scrutinized and examined, rather with more caution. In the instant case we have done it. We have found the evidence of three witnesses of facts cogent and corroborative to each other and truthful and we do not have any reason to hold that they are speaking a lie just to falsely implicate the appellants and their associates. In fact, we do not find any force in this argument advanced from the side of the appellants. 21. The last two lines of the F.I.R. have been read before us many times by the learned counsel for the appellants during his course of arguments. He has stated that the last two lines of the F.I.R. indicates that the F.I.R. was ante-timed. 21. The last two lines of the F.I.R. have been read before us many times by the learned counsel for the appellants during his course of arguments. He has stated that the last two lines of the F.I.R. indicates that the F.I.R. was ante-timed. He has further argued with vehemence that if these two lines are read with various entries of police papers, it will be clear that the F.I.R. is ante-timed. We have considered the argument advanced by the counsel for the appellants. From perusal of the last few lines of the F.I.R. what we feel is that it is only a style of writing and different person can describe the same incident with full truthfulness using different words and arranging them in different styles. On such ground one cannot say that what they are saying is not trustworthy. In fact, we do not find any force in this argument also and, therefore, we discard it. 22. It has further been submitted that the deceased was holding a gun in his hand and he also had with him at that time sufficient number of cartridges and he could have fired them in self defence. But he did not do so. This by itself indicates that the entire story of the prosecution is doubtful. This argument also does not hold water. Right from the very beginning it is the case of the prosecution that the deceased was ambushed. All the seven accused persons were hiding themselves behind the tied and piled up bundles of harvested Arahar and they have jumped out of their hiding all of a sudden and immediately thereafter one of them namely Kunwar Lal had fired upon the deceased. If we examine the entire story of the prosecution it will be evident that the deceased or his companions were not apprehending any such incident and, therefore, they were going back to the residence of the deceased in a calm and quiet manner. In such a situation if his seven enemies armed with firearms surrounded the deceased in a surprising manner, one can well understand the shock and fear which had appeared in his mind. In such a shocked mental state, it is rather impossible even for a courageous person to load a gun and fire the same in self defence. In such a situation if his seven enemies armed with firearms surrounded the deceased in a surprising manner, one can well understand the shock and fear which had appeared in his mind. In such a shocked mental state, it is rather impossible even for a courageous person to load a gun and fire the same in self defence. The circumstances of the case show that there was absolutely no opportunity for the deceased to think even to run away to his safety. In these circumstances, we are not ready to accept this argument of the appellants. 23. The last argument advanced from the side of the appellant is that the purpose of the assailants was to kill the deceased and for the purpose the single shot at the chest or at the head of the deceased was sufficient. It has further been submitted that it was not the purpose of the assailants to pump a number of shots in the body of the deceased. In our opinion, this argument does not carry any merit. It all depends upon the quantum of hatred in the mind of the assailants against the deceased. It depends upon the amount of venom which they carry against the person they are assaulting. It also depends upon the nature, intention and motive of the assailants which is often locked in their hearts. In fact, they are best persons to tell us why they fired so much shots at the deceased. 24. We have considered all the aspects of the case with utmost care and caution and we do not find that there is any merit in this appeal and, therefore, the appeal is dismissed. 25. All the three surviving appellants namely Jagdamba, Ram Autar and Gajraj @ Hajji are directed to surrender before the learned trial court immediately to serve out their sentences. If they fail, the learned trial court shall take coercive steps to procure their attendance and proceed further in accordance with law. 26. The office is directed to send forthwith copies of this judgment to the learned Sessions Judges of Kanpur Nagar and Rama Bai Nagar ( Kanpur Dehat ) for due compliance.