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2013 DIGILAW 1866 (RAJ)

Devi Singh @ Devi Dayal v. State

2013-10-24

MOHAMMAD RAFIQ, NISHA GUPTA

body2013
Javed Choudhary, Public Prosecutor, for State Hon'ble RAFIQ, J.—This appeal has been preferred by Devi Singh @ Devi Dayal assailing his conviction recorded by the learned Additional Sessions Judge (Fast Track) Behror vide judgement dated 25.2.2004 passed in Sessions Case No.78/2003 and he was convicted for offence under Section 302 IPC and sentenced to life imprisonment with fine of Rs.2,000, in default of payment of fine, he was to further undergo simple imprisonment of six months. 2. The facts of the case are that on 16.7.2003, a written report was submitted by one Sheesh Ram to Ramanand Sharma, Head Constable, Police Station Shahjanpur stating therein that while he was going to Neemrana Petrol Pump to purchase the diesel for his stone crusher on motorcycle around 3.15 PM, he found two persons sitting near the agriculture field of Subedar Birbal. One of them was wearing kurta-payajama of almond colour and other person was wearing kurta-payajama of blue colour. Both were taking to each other. They seemed to be in the state of intoxication. When he returned back from the same way in the evening around 4.30 PM, he found the dead body of the person wearing almond colour kurta-payajama. There was injury visible on the left side temporal bone of his head and a stone was lying nearby. Another person wearing blue kurta payajama was missing. It appears that someone has murdered him by causing injury by stone on his head. 3. On receipt of the aforesaid written report, regular first information report no.149/03 was registered for offence under Section 302 IPC and investigation commenced. The police after investigation filed challan against the accused-appellant for offence u/s.302 IPC before the Court of Judicial Magistrate, Behror. The case was committed to the Court of Additional Sessions Judge, Behror wherefrom it was transferred for trial to Additional Sessions Judge (Fast Track), Behror. Charge for offence u/s.302 IPC was framed. The accused-appellant denied the charges and claimed to be tried. The prosecution produced 24 witnesses and exhibited 34 documents to sub-stantiate its case, whereas the defence did not produce any witness however exhibited two documents. The trial court on conclusion of the trial convicted and sentenced the accused-appellant in the manner as indicated above. 4. We have heard Shri Deepak Soni, learned counsel for the accused-appellant and Shri Javed Choudhary, learned Public Prosecutor for State. 5. The trial court on conclusion of the trial convicted and sentenced the accused-appellant in the manner as indicated above. 4. We have heard Shri Deepak Soni, learned counsel for the accused-appellant and Shri Javed Choudhary, learned Public Prosecutor for State. 5. Shri Deepak Soni, learned counsel for the appellant argued that the learned trial court has failed to correctly appreciate the evidence inasmuch as the conviction of accused has been recorded on surmises and conjectures. The entire case hinges on circumstantial evidence. The prosecution has failed to prove the circumstances sought to be used against the accused. Those circumstances do not form a complete chain to pin point the guilt of the accused-appellant and none else. 6. Shri Deepak Soni, learned counsel for the accused-appellant argued that even though the accused-appellant was not named in the FIR, yet the police did not get his test identification parade conducted. The identification of the accused by the witnesses for the first time in the Court would have no legal sanctity. Learned counsel argued that the prosecution has come up with the case that both accused as well as deceased were seen consuming liquor before the incident and they were heavily drunk when the witnesses saw them together. In the postmortem report of deceased (Ex.P14), however, neither alcohol was found in the stomach of the deceased, nor any visra was preserved so as to be sent to FSL. In fact, Dr. Ram Narain Meena (PW3) in cross examination has categorically stated that no alcohol was found in the stomach of the deceased. Moreover, neither any pouch, nor any bottle of liquor was found on the place of incident, therefore, it cannot be accepted that the accused and deceased were consuming liquor together. Learned counsel argued that the deceased died due to accident as he had climbed the tractor from behind and fell on the road as a result of which he sustained the depressed fracture of his head. This fact is proved from the statement of informant Sheeshram (PW18), who in cross-examination has stated that he had gone to petrol pump by his tractor to bring 200 litres diesel for his crusher. It was a new tractor and he did not remember its number. In the written report also he has mentioned that he had gone to the petrol pump for purchasing diesel. It was a new tractor and he did not remember its number. In the written report also he has mentioned that he had gone to the petrol pump for purchasing diesel. It is impossible to carry 200 litres of diesel on motorcycle and that he went by tractor is the correct version. 7. Learned counsel argued that Sheeshram (PW18) has stated that when he noticed the dead body, he returned to Cheenar hotel at Fauladpur Mode and informed Hem Singh, Journalist about this, who telephoned the police, which reached the place of incident after half an hour. However, Hem Singh has appeared as PW8 and stated that he himself noticed the dead body while he was passing by the place of incident, while the other prosecution witnesses have stated that they saw the accused and the deceased together since morning, whereas Nand Ram (PW-19), the salesman of the liquor shop has stated that Devi Singh alone came to his shop at 8.00 AM and purchased a pouch of country made liquor. While Sheesh Ram (PW18) has stated that he noticed the dead body around 3.45 PM, but Hem Singh (PW-8) has stated that he noticed the dead body around 4.45 PM while returning. Birbal (PW22) has stated that he found the dead body around 3.45 PM. He is a witness to the site plan (Ex.P18) and the inquest (Ex.P19), but in cross-examination he stated that the stone was not recovered from the place of occurrence in his presence. The investigating officer, however claimed seizure of one blood stained stone, blood stained soil and simple soil from the place of occurrence vide Ex.P21. This shows that the Investigating Officer has made concoction. Learned counsel argued that the fact that stone has been recovered from the open place has been admitted by Ramanand Sharma (PW23) that it was adjacent to the pubic way where there is thoroughfare and vehicles regularly passed. None of the circumstances conclusively connect the accused-appellant with the crime. 8. Learned counsel for the appellant submits that no motive has been proved as to why accused-appellant would murder deceased. None of the circumstances conclusively connect the accused-appellant with the crime. 8. Learned counsel for the appellant submits that no motive has been proved as to why accused-appellant would murder deceased. All that has been stated by the witness Rajesh Kumar (PW9) and Mahendra Singh (PW12) is that about four months ago the accused, who was heavily drunk, was abusing Udai Singh and proclaiming that he would murder him because Udai Singh and his brothers have murdered his father by throwing him into the well. Learned counsel argued that this is a vague statement and does not give exact point of time when the father of accused was allegedly murdered. No report was registered with any Police Station about the alleged murder, therefore, such a reason cannot be accepted as a motive of murder. 9. Learned counsel for the accused-appellant further argued that even though the first information report was registered on the basis of written report submitted by Sheeshram (PW18), but in the proceedings (karyavahi police) drawn by the Head Constable at the time of registering the first information report, the informant Sheeshram is shown to have stated on enquiry that both the accused and the deceased were seen scuffling and abusing each other. This proves that they quarreled with each other and it was as a result of certain quarrel that the accused might have lifted the stone lying thereby and hit his head. It was therefore not a premediated murder, but was rather unintentional one as a result of sudden fight. The accused had not taken any undue advantage as he did not repeat the blow. Learned counsel therefore argued that even if this Court is not persuaded to accept the main arguments, it may consider that present one is certainly a case where the guilt of the accused did not travel beyond Section 304 Part-I as it was not a case of culpable homicide amounting to murder. In fact, a case of culpable homicide not amounting to murder for the reason that the witnesses have stated that the accused and the deceased were seen together in the state of intoxication. In that state, a person would have control of his senses. In fact, a case of culpable homicide not amounting to murder for the reason that the witnesses have stated that the accused and the deceased were seen together in the state of intoxication. In that state, a person would have control of his senses. The allegation is that the injury on the skull of deceased was caused by stone and it was a single injury, which also shows that there was no premeditation on the part of accused as he was not armed with any deadly weapon and no witnesses have stated that accused had deadly arms. Moreover, he did not repeat the injury, which also signifies his intention not to commit murder of the deceased. It is therefore prayed that the conviction of accused appellant may be altered from Section 302 IPC to one under Section 304 Part-I and accused-appellant may be sentenced to the period already undergone by him considering that he has already remained in jail for 10 years 3 months. 10. Shri Javed Choudhary, learned Public Prosecutor argued that the chain of circumstances against the accused-appellant is so complete as to point the finger of suspicion towards the accused and none else that it is he alone, who committed murder of deceased. Learned counsel in this connection extensively referred to the statement of prosecution witnesses, who had seen the accused and the deceased together. He argued that there was no need for conducting his test identification parade as the investigating officer Narendra Singh (PW24) in his statement has given the explanation for not conducting test identification parade. He has stated that since Sheeshram and Devi Singh were motbir witnesses to the memo of arrest of the accused, his identification parade was not considered necessary. 11. Rajesh Kumar (PW9) and Mahendra Singh (PW12) have clearly stated why accused would commit murder of deceased. It is argued that if a person is saying something in the state of intoxication that would exhibit his real intention because the accused believed that his father was murdered by deceased and his brothers, who threw him into the well. That belief was enough reason for him to commit murder of deceased Udai Singh, regardless of whether a police case was registered or not. 12. Learned Public Prosecutor submitted that Dr. That belief was enough reason for him to commit murder of deceased Udai Singh, regardless of whether a police case was registered or not. 12. Learned Public Prosecutor submitted that Dr. Ram Narayan Meena (PW3) in cross examination has stated that no alcohol was found in the stomach, but this cannot be believed because he has also stated that the visra or any part of the body of deceased was not sent to FSL for examination. Such a statement cannot be believed also because large number of witnesses have proved that both accused and deceased were seen together and were heavily drunk. Nandram (PW19), the sales man of the liquor shop has proved that accused-appellant came to his shop and purchased the liquor. Subah Singh (PW10) has stated that accused had come to him around 8 o' clock in the morning and requested him to loan Rs.100. Vinod Kumar (PW11) has also made a similar statement. Apart from recovery of the blood stained stone vide seizure memo Ex.P23, the clothes of the deceased as well as accused were also seized. All of them were sent to Forensic Science Laboratory. Forensic Science Laboratory report (Ex.P33) has proved that the stone, lungi of the deceased and payajama of the accused recovered from the place of incident were all having blood of AB group, which completes the chain of circumstances against the accused. Thus charge has rightly been fully proved by circumstantial evidence against the accused. 13. Learned Public Prosecutor submits that there is no evidence to the effect that there was certain quarrel between the accused and deceased and therefore this offence cannot be considered as the one attracting exception 4 of Section 300 so as to bring it within the purview of Part-I of Section 304 of IPC. The appeal be therefore dismissed. 14. We have given our anxious consideration to the rival submissions and perused the material on record. 15. Among the circumstances which have been found proved against the accused, the most significant one is the evidence of the accused being last seen with the deceased at the place of incident itself. The informant in this case is Sheeshram (PW18). 14. We have given our anxious consideration to the rival submissions and perused the material on record. 15. Among the circumstances which have been found proved against the accused, the most significant one is the evidence of the accused being last seen with the deceased at the place of incident itself. The informant in this case is Sheeshram (PW18). He has stated that around 3.15 PM on 16.7.2003, while he was going to petrol pump on his motor cycle for purchasing the diesel for his stone crusher, on the way, he noticed two persons sitting near the factory of Subedar Birbal. Both were heavily drunk. One was about 50 years old, who was wearing an almond colour kurta, whereas the other one was aged about 35 years. While he was returning at 4.30 PM, he found one of the persons lying dead there and the another was missing who was none other than the accused present in the Court. He parked his motor cycle and went near the dead body. He noticed depressed injury on his head near the eye. The stone having blood stains also lying nearby. Left eye of the deceased was oozed out. Deceased had a lungi wrapped around his neck. He returned back to the shop of Ram Singh at Neemrana Mode and took him near dead body. Then went to Cheenar Hotel and told Hem Singh, Journalist about the incident. He made a telephone call to the police, which reached after half an hour. Hem Singh (PW8), who claims to be a Journalist has stated that on 16.7.2003 he saw two persons together who were drunk around 3.00 o' clock near the boundary of National Highway-8. One of whom was old and other one was younger. The old one was wearing an almond colour kurta payajama and there was a blue, black and white (multi coloured) lungi on his shoulders. The young one who was a dark complexed person, was wearing a blue shirt and white payajama and had a white towel on his shoulders. He saw both of them in intoxicated state. While returning from the way around quarter to 5.00, he found many persons assembled there. When he went there, he noticed dead body of Udai Singh. He found bone of his skull depressed. In cross examination he stated that the distance between the Neemrana and Shahjahanpur was hardly 6 to 7 kms. He saw both of them in intoxicated state. While returning from the way around quarter to 5.00, he found many persons assembled there. When he went there, he noticed dead body of Udai Singh. He found bone of his skull depressed. In cross examination he stated that the distance between the Neemrana and Shahjahanpur was hardly 6 to 7 kms. 16. The prosecution witnesses have thus categorically proved that the accused was lastly seen with the deceased. What is significant to note is that accused and deceased were together and there is no explanation given by the accused in his examination under Section 313 Cr.P.C. that when they were separated, where did go after leaving the deceased at the place of incident. No other event has intervened between their being seen together and the time when the deceased was killed. 17. The motive of the incident has also been proved by Rajesh Kumar (PW9) and Mahendra Singh (PW12) who have both consistently stated that they were sitting outside of house of Mahendra around four months ago and that time they saw Devi Singh coming there. He was heavily drunk. He was abusing Udai Singh and stating that Udai Singh and his brothers murdered his father by throwing him into the well and that he had to take revenge for his murder and he will murder him in such a way that even his dead body would not be found. That time they did not take his utterances seriously. Subah Singh (PW10) proved that Devi Singh and Udai Singh both came to his shop on 16.7.2003. It was Udai Singh who demanded a sum of Rs.100 on loan, which he declined. Then both went towards Shahjahanpur. In cross examination, he has stated that when they came there, they were both drunk and were not able to even walk properly. Vinod Kumar (PW11) has stated that deceased Udai Singh came to his shop around 10.00 AM on 16.7.2003. Devi Singh has also come to his shop. He demanded a sum of Rs.100 on loan from him. Devi Singh was drunk and therefore he did not lend him money. Udai Singh was wearing payajama and kurta and had a lungi around his neck. 18. Devi Singh has also come to his shop. He demanded a sum of Rs.100 on loan from him. Devi Singh was drunk and therefore he did not lend him money. Udai Singh was wearing payajama and kurta and had a lungi around his neck. 18. Gajraj Singh (PW2), son of the deceased has stated that somebody has mislead Devi Singh that his father was murdered by Udai Singh whereas the fact is that his father died because he accidentally fell into the well. Father of this witness (Udai Singh) was Ex-Army man, but owing to his misconception, he was nurturing the grudge against Udai Singh. 19. The seized stone of 2 kg. vide Ex.23 was sent in packet A to FSL. It was found to contain blood stains of AB group. Seized lungi, which the deceased was wearing around his neck at the time of incident was seized vide Ex.P12, which was sent in packet D. It was also found to contain blood of AB group. The payajama of the accused sealed vide Ex.P17 was sent to the FSL in packet E and even this payajama was also found to contain blood of AB group. The FSL report has been proved by Investigating Officer. Dr. Ram Narayan Meena (PW3) has proved the postmortem report, according to which the following injuries were found on the head of deceased: “Lacerated wound 8 x 3 cm x bone deep on left fronto parietal region. “Depressed fracture torn of left fronto parietal bone in the size of 4 x 4 cm size.” 20. The cause of death was opined to be coma secondary to intra cranial hemorrhage. It was therefore a homicidal death. 21. Contention that since Dr. Ram Narayan Meena (PW3) has stated that no alcohol was found in the stomach of the deceased, is inconsequential because in the sentence immediately preceding that in cross examination it is stated that neither visra, nor any part of the body was preserved for being sent for FSL. This statement of Doctor cannot be given any credence in the face of overwhelming witnesses on record by eye witnesses account that the deceased and the accused were seen together and both were heavily drunk. 22. Rajendra Singh (PW13) has stated that Udai Singh was his cousin and neighbour. On the day of incident, he saw Udai Singh and accused-appellant Devi Singh going together. 22. Rajendra Singh (PW13) has stated that Udai Singh was his cousin and neighbour. On the day of incident, he saw Udai Singh and accused-appellant Devi Singh going together. Udai Singh was wearing an almond colour shirt and payajama and having a lungi. Ram Singh (PW15) is the witness of site plan (Ex.P18) and the inquest of the dead body (Ex.P19). He has also witnessed the recovery of the stone weighing 2 kg vide Ex.P23. Sunder Singh (PW16) is also witness of inquest Ex.P19. Krishan Kumar (PW17) is a witness of recovery of stone weighing 2 kg Ex.P23. 23. Nand Ram (PW19), the salesman of the liquor shop has stated that the accused had come to his shop at 8 o' clock on 16th July and purchased the pouch of country made liquor. 24. Birbal (PW22) has stated that he was called by Hari Singh around quarter to 4, who informed that one person was lying dead close to his agriculture field. The deceased was around 55 years of age. Police prepared his inquest report Ex.P19 and site plan Ex.P18. He is a witness to Ex.P18 and inquest report Ex.P19. The memo of inspecting dead body (Ex.P20) and the recovery of stone weighing 18 kg (Ex.P21) and the blood stained stone 2 kg (Ex.P23), all have been proved by Birbal (PW22). 25. Ramanand Sharma (PW23), the Head Constable of the Police Station Shahjahanpur has stated that he was informed on telephone by Hem Singh (PW8) about the dead body. He entered the information in the rojnamcha and proceeded for the place of occurrence. The entry in the rojnamcha was proved as Ex.P28. He has also proved the inquest report Ex.P19, the memo of the inspection of the dead body Ex.P20, the seizure memo of the stone weighing 18 kg vide Ex.P21 and the entry of the malkhana Ex.P29. He has stated that articles were sent to FSL in sealed cover through Constable Gajanand with the letter of the Superintendent of Police dated 23.7.2003, who deposited the same vide receipt Ex.P26 and produced the same before him. 26. Narendra Singh (PW24), the SHO Police Station Shahjahanpur, who subsequently took over the investigation, has proved the arrest memo Ex.P25 of the accused. He has also proved that the payajama which the accused was wearing had blood stains, which was Ex.P17 and sealed in the presence of witnesses Sukhbir and Karan Singh. 26. Narendra Singh (PW24), the SHO Police Station Shahjahanpur, who subsequently took over the investigation, has proved the arrest memo Ex.P25 of the accused. He has also proved that the payajama which the accused was wearing had blood stains, which was Ex.P17 and sealed in the presence of witnesses Sukhbir and Karan Singh. The clothes of deceased were seized vide Ex.P12 in the presence of the motbir witnesses Rajendra and Karan Singh. All of them were sealed. Postmortem report was Ex.P14 and the site plan of the place of incident was Ex.P18. 27. Gajanand (PW20), who was the Constable of the Police Station Shah-jahanpur has proved that he received six sealed packets from the malkhana for being deposited with FSL, Jaipur. The receipt obtained was Ex.P26. The entry of his departure written in the rojnamcha was explained vide Ex.P27. 28. Coming now to the alternative argument, we find that since evidence has proved that both the deceased and the accused were heavily drunk at the time of incident, it can be accepted that accused was not in full control of his senses, but at the same time, the evidence has also proved that the accused did not carry any weapon with himself and that he inflicted a single blow of the stone weighing 2 kg on the head of the deceased, which he picked up from nearby. The fact thus clearly show that it was not a premeditated act on his part. It thus appears that in the state of intoxication a sudden fight errupted between them, who were both heavily drunk and in the heat of passion, on a spur of moment, the accused inflicted a single blow on the head of deceased and did not take advantage by repeating the injury, therefore, the offence would come under Section 304 Part-I of IPC. 29. In view of above discussion, the appeal filed by accused-appellant Devi Singh @ Devi Dayal S/o Shri Leela Ram stands partly allowed. His convic-tion for offence u/S.302 IPC awarded by learned Additional District & Sessions Judge (Fast Track) Behrod, District Alwar (Raj.) vide judgment dated 25.2.2004 in Sessions Case No.78/2003 is altered to one u/S.304 Part-I IPC. 29. In view of above discussion, the appeal filed by accused-appellant Devi Singh @ Devi Dayal S/o Shri Leela Ram stands partly allowed. His convic-tion for offence u/S.302 IPC awarded by learned Additional District & Sessions Judge (Fast Track) Behrod, District Alwar (Raj.) vide judgment dated 25.2.2004 in Sessions Case No.78/2003 is altered to one u/S.304 Part-I IPC. Considering that he has already served out the sentence of about 10 years and 3 months, he is sentenced to the period already undergone by him apart from fine of Rs.2,000/- awarded by the learned trial court, in default of which, he would be required to further undergo simple imprisonment of six months. He be relea-sed forthwith, if not required in any other case, subject to payment of fine. 30. Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, 1973, accused-appellant is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellant, on receipt of notice thereof, shall appear before the Supreme Court.