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2012 DIGILAW 1206 (ALL)

CHET RAM v. STATE OF U. P.

2012-05-18

AMAR SARAN, NAHEED ARA MOONIS

body2012
JUDGMENT Hon’ble N.A. Moonis, J.—The instant appeal has been filed on behalf of the appellant Chet Ram against the judgment and order dated 18.7.1995 passed by the Additional Sessions Judge Special Judge Bareilly, whereby the appellant has been convicted and sentenced in Sessions Trial No. 421 of 1994, under Section 302/34 IPC for life imprisonment with a fine of Rs. 2,000/- and in default of payment to serve out an additional sentence of six months. Further the appellant was convicted and sentenced in Sessions Trial No. 422 of 1994 under Section 25 (1)(A) of Arms Act to undergo rigorous imprisonment of one year. All the sentences were directed to run concurrently. 2. The genesis of the prosecution case narrated in a nut shell is that Arvind Kumar lodged a First Information Report on 19.10.1993 at 1.30 p.m. vide Case Crime No. 433 of 1994, under Section 302 IPC against the appellant Chet Ram and co-accused Natthu Lal with respect to the incident of the same day at 10.30 a.m. that the appellant Chet Ram and his father Natthu Lal had committed the murder of his father Chheda Lal (who is brother of co-accused Natthu Lal) by causing injury with knife. The appellant was armed with a country made pistol and the co-accused Natthu Lal was armed with knife. They were already nurturing a grudge and animus against the victim on account of property dispute. The accused persons intercepted the father of the complainant and demanded half of the sugar cane which was being carried away on a Dunlop to sell at the crusher.The father of the complainant refused to give half of the sugar cane to the accused persons which caused great annoyance and infuriation as a result of which co-accused Cheta Ram who is the son of the appellant caught the collar of the victim and the appellant started to stab him with knife on the vital parts of his body. The victim could not bear the blows of the knife as a result of which he fainted and fell down. Hearing the shrick and alarm of the victim, a number of persons ran towards the place of occurrence and the appellant and co-accused looking to the gathering of people tried to disappear from the place of occurrence. In the meantime some police constable came on the spot and chased the accused persons. Hearing the shrick and alarm of the victim, a number of persons ran towards the place of occurrence and the appellant and co-accused looking to the gathering of people tried to disappear from the place of occurrence. In the meantime some police constable came on the spot and chased the accused persons. The accused persons were caught on the same day at about 11.45 a.m. The victim was taken to the hospital where he was declared brought dead. Co-accused Natthu Lal had earlier committed murder of his uncle (Tau) and he was convicted and sentenced. Against his conviction, the appeal is still pending before this High Court and the accused Natthu Lal is on bail. The motive behind the commission of the said crime as divulged by the prosecution is that Chheda Lal, the father of the complainant had acquired the land of his brother Ram Nath who was living in Beejamau. The co-accused his brother Natthu Lal (the appellant) was demanding half share of that property which was not accepted by the father of the complainant, on account of which the appellant and Natthu Lal were in search of eliminating him for ever. On 19.10.1993 at about 11.30 a.m. when the father of the complainant was bringing sugar cane to sell at the cruster, the accused persons who had pre-meditation of mind to kill the victim intercepted him and caused his death by stabbing with knife. The accused persons were arrested on the same day and the memo of the recovered knife and pistol were prepared which was exhibited as Ex.Ka.7. The corpus of the deceased was taken into custody and inquest report was prepared by the investigating officer. Thereafter the dead body was sent to the mortuary for post-mortem alongwith photo lash, challan lash, sample of seal etc. with the report of the Chief Medical Officer. After conducting all the formalities, the dead body was handed over to constable Rajveer Singh and constable Narendra Singh. The investigating officer after recording the statements of the witnesses and the accused persons prepared the site plan and collected the plain and blood stained earth. The post-mortem of the victim was conducted on 20.10.1993 at 3.00 p.m. by doctor A. K. Srivastava who found the following injuries. 1. Incised wound 2 cm x 1/2 cm x through & through over (L)nostril. 2. The post-mortem of the victim was conducted on 20.10.1993 at 3.00 p.m. by doctor A. K. Srivastava who found the following injuries. 1. Incised wound 2 cm x 1/2 cm x through & through over (L)nostril. 2. Incised wound 5 cm x 2 1/2 cm x chest cavity deep on front of (L) side of chest 7 cm above (L) nipple 12 ‘O’ clock position. 3. Incised wound 1 cm x 0.5 cm x muscle deep on (L) side chest 1 cm outer to (L) nipple. 4. Incised wound 5 cm x 2 cm x abdomen cavity deep on (L) side of abdomen just below sub costal margin. 5. Incised would 1 cm x 1/2 cm x muscle deep on middle line of abdomen 6 cm above umbilicus 6. Incised wound 2 cm x 2 cm muscle deep on outer aspect of (L) head. After examination doctor found that the death had occurred owing to shock and haemorrhage as a result of ante-mortem injuries. 3. The investigating officer proceeded with the investigation and submitted chage-sheet against the accused persons under Section 302 IPC. After arrest of the appellant alongwith the weapon used in the commission of the said crime, blood stained knife and the clothes were sent for chemical analysis. Human blood was found on the knife which was used by the appellant. On other articles the blood was disintegrated. The report of the forensic lab exhibited as Ka.16 was proved by the investigating officer. The sanction was obtained from the Additional District Magistrate for prosecution under Section 25 Arms Act. After grant of sanction by the Additional District Magistrate, chage-sheet was also submitted against the appellant under Section 25 (4) Arms Act and against the co-accused Chet Ram under Section 25 Arms Act. The case was committed to the Court of Sessions and the charges were framed against the appellant under Section 302 read with Section 34 IPC and under Section 25 (4) Arms Act. Charges were also framed against the co-accused Natthu Lal. The appellant denied the charges and claimed to be tried as he was falsely implicated in the present case. 4. The prosecution examined P.W.1, Arvind Kumar, the son of the deceased Chheda Lal and also P.W.2 Banshi Lal the eye-witness of the occurrence as witness of fact. Charges were also framed against the co-accused Natthu Lal. The appellant denied the charges and claimed to be tried as he was falsely implicated in the present case. 4. The prosecution examined P.W.1, Arvind Kumar, the son of the deceased Chheda Lal and also P.W.2 Banshi Lal the eye-witness of the occurrence as witness of fact. The prosecution also examined the formal witnesses namely Dr.A.K.Srivastava P.W.3 who has conducted the post-mortem report, P.W.4 Constable Rajesh Kumar, Constable Munim Singh, P.W.7, J. K. Srivastava, S.H.O. and P.W.8, Om Prakash Sharma, Sub-inspector, who had arrested the accused persons, prepared the site plan and recovery memo etc. During the course of investigation, the investigating officer found clinching and credible material against the accused persons, thus they were also chage-sheeted under Section 25 and 25 (1) (A) Arms Act. Om Prakash Sharma, S.I. who had conducted investigation against the accused persons under the Arms Act was examined as P.W.8. After examination of the formal witnesses, statement of the accused persons were recorded under Section 313 Cr.P.C. who had tried to give different colour to the prosecution version stating that the victim had brought his wife from Bengal and his sister in law was also kept as a concubine which was not liked by his wife. There were strained relations between the husband and wife on account of which he sequestered himself causing annoyance to his wife. The accused appellant in his statement under Section 313 Cr.P.C. stated that his brother Chheda Lal was engrossed in the business of flesh trading. He was trying to refrain from doing that business on account of which he has falsely been implicated in the present case. 5. Learned counsel for the appellant stressed that no independent witness was examined. The manner of assault as divulged in the First Information Report is highly improbable as the appellant Chetram who has been attributed the role of catching the collar of the victim had not received any injury while the co-accused Natthu Lal was inflicting blows of knife. The appellant and the complainant are hailing from the same family. No independent witness of the locality was examined. The motive attributed for commission of the said offence is very weak. The First Information Report has been lodged after consultation and deliberation. The appellant and the complainant are hailing from the same family. No independent witness of the locality was examined. The motive attributed for commission of the said offence is very weak. The First Information Report has been lodged after consultation and deliberation. The incident is alleged to have taken place on 19.10.1993 at 11.30 a.m. and the first information was lodged on the same day at about 1.30 p.m. There is no convincing explanation for explaining the delay in lodging the First Information Report. There are material contradictions in the statement of the complainant and the witnesses. The victim was indulged in the business of flesh trading. He was a man of shady & shoddy character. The victim had earned a bad reputation on account of trafficking in women. The witnesses examined by the prosecution are partisan and interested. The Court below committed manifest error by relying upon the statement of the witnesses and awarded them conviction with the aid of Section 34 IPC while Section 34 IPC had no application to the facts of the present case. The evidence of the P.W.1 Arvind Kuamr and P.W.2 Bansi Lal who are said to be the eye-witness of the occurrence are not in consonance with the prosecution version. 6. Per contra learned AGA contended that the First Information Report was lodged in a natural manner. There was no embellishment in the prosecution version. The prosecution has fully proved that it is the appellant and the co-accused who were responsible for causing the death to the father of the complainant. The appellant and the co-accused were named in the First Information Report and were chage-sheeted. The circumstances from which the inference of guilt has been drawn was fully established beyond any shadow of doubt consistent with the hypothesis of the guilt of the accused persons. All the circumstances were of conclusive nature and the chain of evidence only shows that within all human probability the act has been done by the accused appellant and the co-accused. The manner in which the victim was done to death by stabbing with knife portrayed a very inhuman and gruesome state of mind of the accused appellant and the co-accused. There was pre-meditated plan of the accused persons to eliminate him as the victim was not giving the share as demanded by the accused persons. The manner in which the victim was done to death by stabbing with knife portrayed a very inhuman and gruesome state of mind of the accused appellant and the co-accused. There was pre-meditated plan of the accused persons to eliminate him as the victim was not giving the share as demanded by the accused persons. Incriminating weapons were also recovered by the police just after commission of the crime. There is direct evidence showing involvement of the accused persons. The said offence was committed with a plan. The accused persons were equipped with knife and 12 bore country made pistol. The victim was assaulted with knife to such an extent that he could not survive. The injury inflicted to the victim with the knife was so fatal that there was every likelihood of causing him death in the ordinary course of nature. The trial Court after analysing the statement of the witnesses and medical report arrived at the conclusion that the appellant and the co-accused Natthu Lal were guilty of the commission of murder hence the appellant and the co-accused were convicted and sentenced under Section 302 /34 IPC. 7. It is necessary to appreciate the evidence of prosecution witnesses. The appellant has been indicted in the present case on account of property dispute. It was explicitly stated by the P.W.1Arvind Kumar that initially they were residing at Bijapur and about ten to twelve years ago, they had shifted to village Dalelnagar. The land was inherited by his father and his two brothers from their maternal side. One third share was inherited by his uncle Ram Nath who are residing at Beejamau. His uncle Ram Nath had given his share to the father of the complainant. One third share was inherited by the appellant. The appellant was exerting pressure upon the father of the complainant to give half share from his uncle Ram Nath’s share which was not accepted by him (the deceased) on account of which they had committed the murder of the victim. At the time of incident, several person of the locality assembled on the shrieks and alarms of the victim and the injured was taken to hospital at Nawabganj for treatment while on the way, the victim succumbed to his injuries and was declared brought dead. Two constables who chased the accused persons nabbed them. At the time of incident, several person of the locality assembled on the shrieks and alarms of the victim and the injured was taken to hospital at Nawabganj for treatment while on the way, the victim succumbed to his injuries and was declared brought dead. Two constables who chased the accused persons nabbed them. Blood stained knife had been recovered from the possession of the co-accused and the pistol was recovered from the possession of the appellant Chet Ram. Prior to this incident Natthu Lal the co-accused had committed murder of his uncle Champat Ram and was awarded life imprisonment. The appellant was released on bail by this Court. The P.W.1 Arvind Kumar has stated that on the fateful day of occurrence he had not attended his school and was on leave. He was also put to lengthy examination but nothing adverse was deciphered from his statement. On his cross-examination, he has stated that the accused persons were putting undue pressure upon the victim to give half the sugar cane or the money otherwise dire consequences would follow. They were also threatening the witnesses not to come forward otherwise they would be done to death. Banshi Lal and other persons had taken him to the hospital but his father succumbed to his injuries on the way. He had reached at the hospital between 12.30 to 1.00 p.m. Thereafter the First Information Report was lodged. He had completely denied the suggestion that he was neither present at the time of occurrence nor had seen the incident and that the First Information Report was lodged in consultation with the police. Another witness Banshi Lal who was examined as P.W.2 belongs to the same village and had knowledge about the separation of the shares between the victim and the co-accused Natthu Lal. The victim was looking after the share of his brother Ram Nath. The incident had taken place in front of him. He had seen that the co-accused Natthu was armed with a knife and the appellant Chet Ram was armed with a country made pistol. They were exchanging hot words with regard to share of the sugar cane. The victim did not agree to give half share or money to the accused persons. There was prior meeting of mind for eliminating the victim. They were exchanging hot words with regard to share of the sugar cane. The victim did not agree to give half share or money to the accused persons. There was prior meeting of mind for eliminating the victim. The appellant Chetram who is the son of co-accused Natthu Lal caught the collar of the victim from behind and the co-accused Natthu Lal inflicted knife blows several times. Subsequent thereto they took to their heels. On account of alarm and shrieks, police personnel came on the spot and chased the accused persons and the police personnel nabbed the accused persons. The injured was taken to the hospital at Nawabganj on a horse cart but on the way to the hospital, he succumbed to his injuries. Arvind Kumar, the son of the victim lodged the First Information Report while he and Chokhelal were keeping vigil on the dead body. 8. Dr. A. K. Srivastava who had conducted autopsy of the deceased on 20.10.1993 at 3.00 p.m. was examined as P.W.3 who had found as many as six incised wounds on the upper part of the body of the deceased. The doctor had opined that the injury was caused by sharp edged weapon which was sufficient for causing death in ordinary course of nature. He was not put for cross-examination by the defence. Rajesh Kumar P.W.5 who had proved the chik FIR corroborated that the first information was written by him and was entered in the case diary. It was also proved by the P.W.5 Rajesh Kumar that the appellant alongwith co-accused was brought in custody by S.I. Munim Singh and constable Satyabhan Singh. They recovered a blood stained knife and a 12 bore country made pistol with cartridges. The case under the Arms Act was registered on the same day. S.I. Munim Singh who was examined as P.W.6 corroborated the prosecution case that the appellant and the co-accused Chet Ram were arrested by him and constable Satyabhan Singh while they were running away after assaulting the father of the complainant. They had recovered blood stained knife and 12 bore pistol with cartridges. The recovery memo was signed by the accused person in the presence of the witnesses. The recovered articles viz. blood stained knife and the 12 bore gun with cartridges were kept in the warehouse “Malkhana”. The appellant and the co-accused were sent to jail. They had recovered blood stained knife and 12 bore pistol with cartridges. The recovery memo was signed by the accused person in the presence of the witnesses. The recovered articles viz. blood stained knife and the 12 bore gun with cartridges were kept in the warehouse “Malkhana”. The appellant and the co-accused were sent to jail. The witness was cross-examined at length and has denied that he had not got the signature and thumb impression of the accused persons on the sealed bundle containing knife and pistol and has completely denied that he has set up a false story of arrest and was not present at the time of incident. J. K. Srivastava S.H.O. who had investigated the case was examined as P.W.7. He had given vivid description of the investigation done by him. He had collected credible and clinching material on the basis of which chage-sheet was submitted under Section 302/34 IPC. He had proved the chage-sheet which was marked as Ex.Ka.16. It has been denied by him that he had registered a false case by making a bogus recovery against the accused persons. 9. From the prolix discussion and the factual scenario of the case, it transpires that the discrepancies highlighted by the learned counsel for the appellant are not so glaring that it would falsify the entire prosecution case. It was a broad day light murder. The motive behind the commission of the said crime is clear that the victim was not giving a share to the accused persons and the accused persons were nurturing an animus and grudge against the victim. Incriminating articles were recovered from both the accused persons. The appellant and the co-accused had assaulted the victim to such an extent on the vital part of the body that his lung was also damaged. The appellant Chetram had caught collar of the victim otherwise the victim would have run away from the place of occurrence. There is clinching and dependable evidence to prove the prosecution case. The clear evidence to the effect that the deceased and the accused persons were seen by a number of persons of the locality while disputing over the share of the sugar cane. Just after commission of the crime, the accused persons were nabbed by the police and from their possession incriminating articles used in the commission of the said crime were recovered. Just after commission of the crime, the accused persons were nabbed by the police and from their possession incriminating articles used in the commission of the said crime were recovered. The confessional statements made before the police by the accused persons were found reliable and the weapon of assault were recovered from them soon after the incident and the recovery of the blood stained knife. All these circumstances were sufficient to connect the accused with the crime and their conviction and sentence under Section 302/34 IPC was proper. The deposition of the two prosecution witnesses and the medical report are sufficient to prove the guilt of the accused. Merely because the P.W. 1 Arvind Kumar was the son of the deceased and the P.W.2 Bansi Lal was of the same village, their evidence cannot be discarded as interested witnesses. Plurality of evidence is not at all required for bringing home the guilt. It is the quality of witnesses which is significant in appraisal of evidence subject to close scrutiny. There is strong motive about the guilty mind. The subsequent act of the accused persons running away from the place of occurrence till they were arrested by the police was itself sufficient to prove their guilt. There is no escape from the conclusion that the prosecution had brought home the accused persons the charge of committing murder of his brother on account of dispute of share beyond shadow of any reasonable doubt. The trial Court has appreciated all the evidence and has rightly come to the conclusion that there was sufficient evidence to link the accused persons with the crime. The appellant Chet Ram had caught the collar of the victim otherwise death could have been avoided. There was active participation of both the accused persons in the commission of the said crime. 10. In order to constitute an offence, the intent and act must concur. The fundamental maxim of criminal law i.e. actus non reum nisi mens sit rea (an act does not constitute guilt unless done with a guilty intention) fully applies in the present case. Section 34 IPC has been enacted on the principle of joint liability. This section is only a rule of evidence and does not create a substantive evidence. Distinctive feature of the section is to do some criminal act jointly in furtherance of a common intention. Section 34 IPC has been enacted on the principle of joint liability. This section is only a rule of evidence and does not create a substantive evidence. Distinctive feature of the section is to do some criminal act jointly in furtherance of a common intention. In order to bring home the charge of common intention, the prosecution has to establish by evidence either direct or substantial that there was a pre-meditated plan or prior meeting of the mind of all accused persons to commit the offence for which they are charged with the aid of Section 34 IPC. It may be pre-arranged or on the spur of moment. The contents of Section 34 IPC are that if two or more persons intentionally do an act jointly or severally in furtherance of common intention, every one of them is equally responsible and Section 34 IPC would be attracted. 11. It has been observed by the Hon’ble Apex Court in the case of Ashok Kumar v. State of Panjab, AIR 1977 SC 109 , that the existence of common intention showing participation in a crime is essential element for application of this section. The common intention pre-supposes the pre-arranged plan and a man can vicariously be convicted for the criminal act of another. 12. Having regard to the weapons used by the appellant and the co-accused and the vital part of the body on which injuries were inflicted, it does appear that common intention of the assailants was to cause the death of the victim. The appellant and the co-accused have rightly been convicted under Section 302 read with Section 34 IPC. In the case of C.H. Reddy and others v. State of Andhra Pradesh, AIR 1977 SC 1899, it has been held by the Apex Court that Section 34 IPC is applicable even if no injury has been caused by the participation of accused persons. For applying Section 34 IPC it is not necessary to show some overt act on the part of the accused. In the present case, the role played by the appellant is sufficient to fasten the guilt with the aid of Section 34 IPC. 13. Having regard to the overall facts and circumstances of the case and also the gravity of the matter we see no reason to disagree with the view taken by the Court below. In the present case, the role played by the appellant is sufficient to fasten the guilt with the aid of Section 34 IPC. 13. Having regard to the overall facts and circumstances of the case and also the gravity of the matter we see no reason to disagree with the view taken by the Court below. There is existence of direct evidence to connect the accused persons with the crime. The findings of the trial Court are correct. Resultantly, this appeal fails and is hereby dismissed. The judgment and order passed by the Court below is affirmed. ———————