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2013 DIGILAW 1758 (ALL)

RAGHAV PRASAD v. STATE OF U. P.

2013-07-04

DHARNIDHAR JHA, PANKAJ NAQVI

body2013
Dharnidhar Jha & Pankaj Naqvi,JJ.:- The four appellants were charged together for committing the triple murders of Ram Avtar, Namo Shanker and Girija Shanker on 06.08.1986 at 8 am by the learned Additional Sessions Judge, Karvi ( Banda) in Sessions Trial No. 88 of 1986 and by judgment dated 08.11.1989, were held guilty of committing the said offence. The appellants were heard on sentence on 15.11.1989 and each of them was directed to suffer rigorous imprisonment for life as also to pay fine of Rs.6000/- each. The learned Judge, who passed the order of sentence, did not point out as to in case of non-payment of fine, whether the appellants were to suffer any term of imprisonment. The four appellants have preferred the present appeal to assail the judgment of conviction dated 08.11.1989 and order of sentence dated 15.11.1989. 2. The appeal having been filed in 1989, travelled so long as to be taken up for hearing only in July, 2013 and finding that the counsel, Sri C P Mishra was not ready to argue the appeal and had sent the paper book back to the Bench Secretary of the Court, the Court requested Smt. Mridula Tripathi, Advocate to assist us by arguing the case as amicus curiae. This is how we have been enabled finally in dictating this judgment today. 3. It appears that informant Ram Gopal, son of one of the deceased, namely, Ram Avtar, had some dispute regarding measurement of certain lands, which were probably part of common property as the appellants appear decedents of the same stock. It was alleged by the informant that deceased Namo Shanker, his fufa accompanied by his brother, deceased Girija Shanker had reached early on 06.08.1986 and after being accompanied by Nirbhay Kumar and Surendra Kumar ( both not examined) came near the fields situated on the bank of a river so as to getting the land measured finally for resolving the dispute. It appears that the appellants reached there armed with lathi, barchhi and bhala and stated to the informant that they did not accept the measurement done by the deceased persons and they started beating up the three deceased, namely, Ram Avtar, Namo Shanker and Girija Shanker with lathi, bhala and barchhi, as a result of which, the three were badly injured and were brought to the police station for lodging the report. 4. 4. It appears that the written report ( Ex.ka-1) was presented in the concerned police station, i.e., Raipura and on that basis the FIR of the case ( Ex.ka-30) was drawn up and the investigation was taken up by PW-3 SI S C Tripathi, who came to the place of occurrence and inspected the same and prepared the site plan. He has mentioned that he found that there were some land measurement dispute between the parties, but did not collect the details thereof as regards the description of the land, etc. It appears that the three injured persons were brought to the hospital and they died there, as a result of which, PW-4 SI Kedar Nath Mishra held inquest on the three dead bodies and the same was sent for postmortem examination. The postmortem reports were marked as Exts. ka-27, ka-28 and ka-29 under Section 294 Cr P C. 5. Two witnesses were examined during the course of the trial. PW-1 Ram Gopal, was the informant, whereas PW-2 Chandrika Prasad was a child witness, who was declared hostile as he did not support the prosecution story in spite of having been named in the written report as one of the persons to have arrived at the place of occurrence and also to have forbidden the accused persons to assault his father and others but, what appears from the evidence of PW-2 is that the witness has stated that his father, uncle and mama had been brought home in an injured condition and that he was not present at the time of mar-pit. On the basis of the evidence of the solitary witness PW-1, Ram Gopal, the learned trial Judge passed the judgment of conviction and further passed the order of sentence as indicated above. 6. The defence of the appellants was that they had falsely been implicated in the present case and that no one had seen the deceased persons being assaulted. 7. Smt. Mridula Tripathi took us through the evidence of witnesses and submitted that PW-1 does not appear to be a trustworthy witness and the evidence led by the prosecution in the case, was too cryptic to justify the passing of the judgment of conviction and order of sentence. 7. Smt. Mridula Tripathi took us through the evidence of witnesses and submitted that PW-1 does not appear to be a trustworthy witness and the evidence led by the prosecution in the case, was too cryptic to justify the passing of the judgment of conviction and order of sentence. The opinion of the doctor was not allowed to come on to the record and even on accepting the evidence of PW-1 what the Court may find was that there was no clarity in the evidence as regards the individual acts of the appellants and as such it could be very difficult for this Court to find as to which injury was caused by which of the appellants. It was submitted that in absence of the opinion of the doctor that all injuries or any particular injury found on the dead bodies were cumulatively or individually sufficient to cause death, the conviction of appellants under Section 302 IPC may not be proper. 8. Sri Saghir Ahmad and Sri A N Mulla, the two learned AGAs appeared before us and they cited before us a number of decisions. It was submitted by citing before us Akhtar and others v. State of Uttaranchal, 2009 ( 13) SCC 722 , that in case of the postmortem reports having not been tendered in evidence, but and admitted as regards the genuineness of their contents as required by Section 294 Cr P C, the contents of the documents were fit to read in evidence and if the contents of the three documents be considered and if it be found that there were many serious injuries, which could have caused the death of the three deceased, the same and the manner of giving the blows could bring the case under Section 302 IPC. Another judgment, which was cited by Sri Saghir Ahmad was Kuriya v. State of Rajasthan, 2012( 10) SC 433, to submit that even if the injury was inflicted to the deceased by using the blunt part of a weapon, it could be very well a case under Section 302 IPC. Another judgment, which was cited by Sri Saghir Ahmad was Kuriya v. State of Rajasthan, 2012( 10) SC 433, to submit that even if the injury was inflicted to the deceased by using the blunt part of a weapon, it could be very well a case under Section 302 IPC. We have also been apprised of the law laid down by the Supreme Court in Kesar Singh v. State of Haryana, 2008 ( 15) SCC 753 in which case the principles regarding a particular state of facts constituting culpable homicide amounting to murder and a simple culpable homicide not amounting to murder was differentiated and guidelines were set down for the courts. 9. We may point out that the state and quality of evidence adduced in the trial court is not very happy. We are often finding ourselves in a very piquant situation as regards the state of evidence, which is led before different trial courts and we often find ourselves in a state of confusion as to how to infer a particular conclusion. We may record that in the present case also the evidence led before the learned trial Judge, was not very clear, but it was sufficiently indicative of the fact that the four appellants conjointly wielded their weapons, like, lathi, barchhi and bhala to assault the three deceased persons Ram Avtar, Namo Shanker and Girija Shanker. It is true that in the FIR, the elementary allegation was that bhala and barchhi were also wielded to give blows to the three deceased and normally the Court has to infer that the sharp point parts of the weapons could have struck the bodies of the injured, but what we find from the evidence of PW-1 was that he was giving up the earlier version of the story, which was narrated by him in the written report and rather, stated that the weapons were reversed to be caught by their ends, to which sharp pointed parts of the weapons were attached and the blows were given as if the bhala or the barchhi were a lathi. Smt. Tripathi was highly critical of this evidence and was asking us to reject the whole prosecution story on this score alone as it was a thoughtful and purposeful improvement in the prosecution story, finding that the doctor who had held postmortem examination on the three dead bodies, had not recorded a single injury, which could have been caused either by a bhala or a barchhi, if the two weapons were used to give a piercing blows as could be generally assumed. But what we find is that the witness could not be said to have improvised upon his statement made during investigation by stating in Court firstly that bhala and barchhi were reversed to be caught at the end attached with the sharp pointed part of the weapons was attached to be used as lathi. Even if that had been a case, we could have treated it as a peripheral improvement as a nature of the weapon, which was in the hands of the two assailants, consistently remained the same in his evidence in Court. What we want to observe is that even in the case the witness not got the weapon reversed into the hands of the assailants, in his evidence in Court, it could have been merely an omission and not a contradiction. 10. The above being the position, what we find is that the postmortem reports were admitted as regards the genuineness of their contents. We have looked to the original records, which are available on the lower court records and we find that the counsel appearing for the appellants had noted down an endorsement of admitting the genuineness of the contents of the three documents and had duly signed them. Section 294 Cr P C makes such documents admissible in case the accused or his counsel are called upon either to admit or deny the genuineness of the contents of such documents and in case the contents are admitted to be genuine, then makes reading of such document legally permissible as evidence without proving the signature of the person who has created the document. The three postmortem reports ( Exts.ka-27 to 29) are thus documentary evidence, which could be read as such in the present case. 11. The three postmortem reports ( Exts.ka-27 to 29) are thus documentary evidence, which could be read as such in the present case. 11. On considering the postmortem report Ext.ka-27 of deceased Girija Shanker, we find that the doctor had found the following ante-mortem injuries on the dead body of deceased Girija Shanker:- 1. Lacerated wound 6cm x ½cm x bone deep on right parietal region of scalp, 8cm above the top of right ear. Underlying parietal bone was found fractured; 2. lacerated wound 4cm x ½cm x bond deep on left parietal region of scalp, 10 cm above, on top of left ear; 3. lacerated wound 10cm x ½cm x muscle deep on the inner side of middle of left arm, 6cm above the elbow joint; 4. contusion 10cm x 10cm on the outer aspect of the left arm, 5cm above the left joint upto muscle deep; 5. lacerated wound 1cm x 1cm on the front portion of right leg. 9cm above the ankle joint; 6. lacerated wound 1 ½ cm x ½ cm x muscle deep on the front of left leg above the left knee joint. As regards the nature of injury, the doctor appears noting down in Ex.ka-27 that the right parietal bone of the scalp of Girija Shanker was fractured and so far as his opinion regarding the death of deceased Girija Shanker is concerned, he has recorded that the same was caused as a result of the ante-mortem injuries noted above. 12. Ext.ka-28, postmortem report of deceased Namo Shanker, dated 07.08.1986, indicates that the autopsy was carried out by the same doctor, who found the following ante-mortem injuries on the dead body of deceased Namo Shanker:- 1. Lacerated wound 6cm x 1cm x bond deep on the left parietal scalp, 6cm above the top of left ear. Underlying parietal bone was found fractured; 2. lacerated wound 4cm x 1cm x bone deep on the left side of forehead, 1cm above the left eyebrow; 3. lacerated wound 2cm x 1cm on middle of forehead, 1cm above the left eyebrow in the middle; 4. lacerated wound 2cm x ½cm x muscle deep on the left upper portion of face, 1cm away from left eye; 5. contusion 4cm x 3cm on the left side of back, 12cm below the axilla. lacerated wound 2cm x 1cm on middle of forehead, 1cm above the left eyebrow in the middle; 4. lacerated wound 2cm x ½cm x muscle deep on the left upper portion of face, 1cm away from left eye; 5. contusion 4cm x 3cm on the left side of back, 12cm below the axilla. The doctor opined that the left parietal bone of the scalp of Namo Shanker was fractured and his opinion regarding the death of deceased Namo Shanker recorded by him was that the same was caused as a result of the ante-mortem injuries noted above. 13. While conducting the autopsy on the dead body of the third deceased Ram Avtar, who happened to be the father of the informant, the doctor who had held autopsy on the dead bodies of the other two deceased, had found the following ante-mortem injuries:- 1. Lacerated wound 5cm x ½cm x bone deep on the right parietal region of scalp, 7cm above the top of the right ear. Underlying parietal bone was found fractured; 2. lacerated wound 4cm x ½cm x bone deep on the left parietal region of scalp, 11cm above the top of left ear; 3. contusion 9cm x 6cm on right side of face, 7cm away from the angle of mouth; 4. contusion 4cm x 2cm on outer aspect of ankle joint. Lower end of tibia was found fractured; 5. contusion 11cm x 3cm on the outer end, lower portion of right arm, 5cm above the ankle ( sic. elbow?). Lower end of humerus was found fractured; 6. contusion 4cm x 2cm on outer end, lower aspect of right forearm, 6cm above the wrist joint. Lower condyle of radius and alna was found fractured; 7. lacerated wound 6cm x 4cm on lower arm and outer aspect of left arm, 4cm above the elbow joint. Lower end of humerus was found fractured; 8. contusion 5cm x 3cm on the lower portion of left forearm, 4cm above the wrist joint. Lower part of radius and alna was found fractured; 9. contusion 2cm x 1cm in left lower portion of leg, 8cm above the left iliac crest. What appears from the description of injuries, which were recorded by the doctor on the dead body of Ram Avtar is that there were as many as 6 fractured wounds including that of parietal bone of scalp and those of both the arms. contusion 2cm x 1cm in left lower portion of leg, 8cm above the left iliac crest. What appears from the description of injuries, which were recorded by the doctor on the dead body of Ram Avtar is that there were as many as 6 fractured wounds including that of parietal bone of scalp and those of both the arms. In the opinion of the doctor, the death of deceased Ram Avtar was also caused on account of ante-mortem injuries recorded by him. 14. Thus, what we find is that the three deceased had fatal injuries inflicted on account of the assault, which was wielded by the appellants. It is true that the oral evidence is not clear as regards the individual act of the four appellants, but what we find from the solitary evidence of PW-1, is that all the appellants were alleged to have, conjointly and in a concerted manner, opened attack on the three deceased by their respective weapons as a result of which the number of injuries, which we have just noticed on the three deceased, were caused to them. We were not shown by Smt. Tripathi as to why we should discard the evidence of PW-1. We find him a trustworthy witness for many reasons and for one particular reason that the dispute, which were between the two sides, was not such, which could impel him to falsely implicate an agnatic relation. There were some disputes of measurement in respect of some lands, which had probably fallen into the shares of the two parties. The informant was striving to resolve the dispute and as it emerges from the evidence, the two deceased, namely, Girija Shanker and Namo Shanker, two very close relatives of the informant, had probably come so as to ensure that the dispute was finally resolved. It is not that the two deceased persons, Girija Shanker and Namo Shanker were only there at the fields to get them measured. There were other two persons, Nirbhay Kumar and Surendra Kumar, who did not choose to come forward in support of the prosecution case, but by that non-support, we do not have any reason to discredit the evidence of PW-1, treating him as not-trustworthy. There was not a single line in his evidence in cross-examination, which could render him a witness whose evidence could not be safely to accept. There was not a single line in his evidence in cross-examination, which could render him a witness whose evidence could not be safely to accept. Nothing appears brought through his cross-examination, which could render any fact in examination-in-chief as unworthy of acceptance. It is true, as we have noted, that there is no clarity of individual act as regards the assault given to the three deceased but that may not render it as a case which could preclude the attraction of 302 I.P.C. We have a long line of precedents right from Virsa Singh Vs. State of Punjab reported in A.I.R. 1958 SC 465 upto Kesar Singh ( supra) in which the Supreme Court had grappled with the question of applying the provisions of Sections 299 and 300 I.P.C. to the facts of the particular case, like, one presently in our hands to decide as to whether the evidence constituted an offence under Section 302 I.P.C. In Kesar Singh ( supra), the Supreme Court noticed the Judgments specially that of Virsa Singh in quite some detail as may appear from paragraphs 12 to 16 of the Judgment and thereafter carved out the proposition of law which was laid down in Virsa Singh. The approach in such cases, which is to be adopted, was finally pointed out by the Supreme Court in Kesar Singh ( supra) which appears at page 763 of the Judgment and we are tempted to reproduce that part of the judgment which runs as follows:- "To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 "Thirdly": First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; these are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution ( and, indisputably, the burden is on the prosecution throughout) the offence is murder under Section 300 "Thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature ( not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury is actually found to be proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional." Thus, what appears is that while holding an inquiry regarding the application of the provisions of Sections 299 and 300 I.P.C. the court has to find out with objectivity as to what was the intention of the accused. In other words, whether the accused was intending to cause the death or not. Further inquiries, which were to be held by the court, was whether the injury was such which could have, in the ordinary course of nature, caused the death. Besides, it was also to be found out as to whether the injuries which were inflicted upon the deceased were rather inflicted accidentally or intentionally. Further inquiries, which were to be held by the court, was whether the injury was such which could have, in the ordinary course of nature, caused the death. Besides, it was also to be found out as to whether the injuries which were inflicted upon the deceased were rather inflicted accidentally or intentionally. We want to reiterate that intention of an accused in committing the murder, could be gathered as was held by the Supreme Court in Kesar Singh ( supra) and also by objectively reading the evidence to find out- ( i) as to what was the weapon which was used in inflicting the injuries; ( ii) the part of the body hit; ( iii) the internal damage, if any, caused; and ( iv) whether those injuries were sufficient in the ordinary course of nature to cause death. If these conditions are available from the facts of a case, then there could not be any doubt that the case has to be held to be one under Section 302 I.P.C. But, that does not end the matter. If the evidence indicates that the accused persons knew that the injuries, which were likely to be inflicted on account of blows which they were giving, would result in most probability, in death then in that case also it could be a case which could be covered by Section 300 and the offence could be punishable under Section 302 I.P.C. 15. There are other parameters also like-if the likelihood of the death on account of injuries is attributed to the knowledge of the accused persons then, in that case, the sufficiency or non-sufficiency of the injuries to cause death in the ordinary course of nature looses its importance and the court has to consider the overall impact of the injuries to infer knowledge and intention both. 16. Here in the present case, the evidence generally indicates that all accused persons wielded their weapons and gave incessa t blows to the three deceased persons. 16. Here in the present case, the evidence generally indicates that all accused persons wielded their weapons and gave incessa t blows to the three deceased persons. The reversal of the weapons, bhala and barchhi, in our opinion under the circumstances which emerges from the evidence, looses its importance even if we are going to hold that that part of the evidence could dilute the prosecution story regarding imputing necessary intention to the accused persons because, in our opinion, even if they had reversed their weapon, the number of injuries and the fractures, which has resulted from those assaults, could necessarily impute the knowledge that the act was so imminently dangerous in the ordinary course of nature and in all probabilities, they could result in the death of all the three persons or any of the three persons. 17. We have already noted the injuries. There were as many as six injuries on Girija Shanker, five on Namo Shanker and nine on Ram Avtar. We have already noted that Ram Avtar had as many as six fracture of different wounds including the fracture of parietal bone of the skull, whereas remaining two deceased Girija Shanker and Namo Shanker may not have additional fracture wounds but the skulls of both the deceased had been fractured. The total number of twenty injuries which were found by the doctor on the three dead bodies, in our opinion, may not dilute the intention of the accused persons, even if the submission could be that the reversal of bhala and barchhi for being used as lathi should point out towards the absence of the necessary intent as, in our most considered view, the accused persons being prudent persons must be knowing the consequences of their acts and must be knowing that their act may turn out so eminently dangerous that they may cause death of all the three persons or any of three persons in all probabilities. In that view of the matter, we are very much disinclined to uphold the submission of Smt. Tripathi that it may not be a case under Section 302 I.P.C. In our view, the charge under Section 302/34 I.P.C. was rightly held proved by the learned trial Judge and he was appropriately passing the sentence. 18. In the result, we do not find any merit in the appeal. The same is dismissed. 19. 18. In the result, we do not find any merit in the appeal. The same is dismissed. 19. We find that the four appellants are on bail. Let the Additional Sessions Judge, Karvi ( Banda) take all necessary steps as soon as he receives the copy of the Judgment to ensure that they are arrested and committed to custody to serve out their sentence. 20. Before we part with the Judgment we must record our sincere appreciation of the assistance rendered by Smt. Tripathi to the Court and we recommend to the Registrar General of this Court to ensure the payment of Rs.8000/- ( Eight Thousand only) to her as fees for assisting us.