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2014 DIGILAW 2961 (ALL)

VIRENDRA SINGH @ VIRENDRA v. STATE OF U. P.

2014-09-23

ANANT KUMAR, DEVENDRA PRATAP SINGH

body2014
Anant Kumar,J. Both these appeals are connected with each other and arise out of the same judgment and order and as such, they are being disposed off by a common judgment. 2. Criminal Appeal No. 1875 of 1982 under Section 374 ( 2) of the Code of Criminal Procedure has been filed by Virendra Singh alias Virendra Pratap Singh whereas Criminal Appeal No. 1958 of 1982 has been filed by Janardan Singh. 3. These criminal appeals have been filed against the judgment and order dated 05.07.1982 passed by Sessions Judge, Deoria in Sessions Trial No. 183 of 1981, State versus Janardan Singh and another, by which the accused-appellant Janardan Singh has been convicted and sentenced under Section 302 IPC to undergo imprisonment for life and accused-appellant Virendra Singh alias Virendra Pratap Singh has been convicted and sentenced under Section 302 read with section 34 IPC to undergo imprisonment for life. 4. In brief, the facts are that complainant Ramdhari Yadav son of Beegu Yadav resident of village Sallahpur Tola Mathia, police station Bhatni, district Deoria lodged a written complaint dated 6.12.1980 at police station Bhatni, district Deoria which was registered as Case Crime No. 120 of 1980 on 6.12.1980 at 11:00 a.m.. Occurrence of this case was shown at about 10:00 a.m.. It is stated in the F.I.R. that co-villagers of the village of complainant, namely, Janardan Singh son of Gulab Singh and Virendra Singh son of Girja Shankar Singh are influential persons of the village and both belong to the same family. On 5.12.1980, Janardan Singh had beaten the younger sister of complainant with 3-4 slaps alleging that her goat had entered his field and grazed his crops. For making complaint in this regard, complainant and his cousin brother Ram Pravesh had gone to the house of Janardan Singh where there were heated arguments with the complainant Ramdhari Yadav, Janardan Singh and Virendra Singh in which co-villagers Basant son of Doma and Babu Lal son of Bunwar had intervened. At that time, both the accused persons had extended threat to kill them the next time. At that time, both the accused persons had extended threat to kill them the next time. It is further stated in the first information report that on 6.12.1980 the complainant along with his cousin brother Ram Pravesh were returning from Bhatni to their home and when they reached near village Veersingpur, at the boundary of the wheat field of Kameshwar Shukla from northern side, Virendra Singh and Janardan Singh met them whereupon Virendra Singh exhorted to kill them and stated that 'salon ko jaan se mar do' thereupon Janardan Singh attacked and stabbed the chest of Ram Pravesh with his knife. Due to the injury, Ram Pravesh fell in the said field of Kameshwar Shukla and died. Janardan Singh and Virendra Singh chased the complainant Ramdhari Yadav also but he ran away and this incident was witnessed by co-villager Ram Narain son of Lautan and Chokat son of Chamru and Sudama son of Sita Ram resident of village Shiv Bankata, who were going to Bhatni. It is further stated by the complainant that he has come to police station along with the dead body of Ram Pravesh. A request was made that the report be lodged and legal action be taken. 5. On the basis of this written complaint, FIR was lodged and entry was made to this effect in GD No. 11 at 11 a.m. Investigating Officer visited the scene of occurrence, collected the sample of blood stained and plain earth, prepared the site plan and sent the dead body of the deceased for postmortem. The postmortem was done by Dr. B.L. Gupta and the following ante mortem injuries were found on the person of the deceased; "Stab wound 2.5 cm x 1.5 cm x chest cavity deep on the front of left side chest 6cm below the inner end of left collar bone in between 3rd and 4th inter costal space 1.5 cm left from mid line. The margins are clean cut. The 3rd and 4th rib's cartilages are cut at 1.5 cm left from costo Condral Junctions ( between sternum and costal cartilage). The pleura of left side is cut and upper lobe of left lung is stabbed through and through then the pericardium is stabbed and the left auricle is stabbed in middle. After opening the heart the endocardium is normal, valves are normal, caronary arteries are normal. 6. The pleura of left side is cut and upper lobe of left lung is stabbed through and through then the pericardium is stabbed and the left auricle is stabbed in middle. After opening the heart the endocardium is normal, valves are normal, caronary arteries are normal. 6. The plain earth and bloodied earth, clothes of the deceased, etc. were sent for chemical examination to the Forensic Science Laboratory. During course of trial on behalf of the prosecution, as many as eight witnesses have been produced wherein Ramdhari Yadav ( P.W. 1) is the complainant, Sudama son of Sita Ram ( P.W. 2), Ram Narain son of Lautan ( P.W. 3) are the witnesses of fact. This apart, one affidavit of Jangli Ram C.P. No. 341 has been filed, which is marked as P.W. 4, who had taken the dead body of the deceased for postmortem, Basant son of Doma ( P.W. 5) is also a witness of fact, Surya Nath Singh, head constable 480, P.S. Bhatni, who had prepared the FIR and made entry in the GD ( P.W.-6), Dr. B.L. Gupta, M.O. of District Combined Hospital, Deoria who had conducted the postmortem of the deceased ( P.W. 7) and Raja Ram Yadav ( P.W. 8), I.O. of this case, have been examined. 7. After completion of the prosecution evidence, statements of the accused persons were recorded under Section 313 Cr.P.C. and on behalf of the defence, one witness Kameshwar Shukla ( D.W.1), in whose field the deceased was found dead, has also been examined, learned Sessions Judge came to the conclusion that the prosecution has succeeded to bring home the guilt of the accused persons and hence convicted both of them as stated above, hence this appeal. 8. We have heard Sri V.P. Srivastava, Senior Advocate, assisted by Sri Lav Srivastava, learned counsel for the appellants, learned AGA on behalf of the State and have perused the record. 9. Learned senior counsel on behalf of the defence has mainly argued on the following points; ( 1) That the genesis of this occurrence was the beating of Kamlawati, the sister of complainant, which took place on 5.12.1980 by Janardan Singh but she has not been examined by the prosecution, which creates a doubt upon the entire prosecution story. 9. Learned senior counsel on behalf of the defence has mainly argued on the following points; ( 1) That the genesis of this occurrence was the beating of Kamlawati, the sister of complainant, which took place on 5.12.1980 by Janardan Singh but she has not been examined by the prosecution, which creates a doubt upon the entire prosecution story. ( 2) That except complainant, who is own cousin brother of the deceased, other witnesses of fact produced on behalf of the prosecution are chance witnesses and they are of the same caste to which the complainant belongs, so their presence at the place of occurrence is highly doubtful. Even the presence of the complainant on spot is also doubtful. So virtually it is a case of no evidence and it appears that the deceased was killed by some unknown miscreants at a different time and later on due to enmity, the accused persons have been falsely implicated. ( 3) That it has come in evidence that when the complainant and his companions were taking the dead body of the deceased from the scene of occurrence to the police station, they had kept it at different places where blood would have fallen but the said blood has not been collected by the I.O. which creates doubt regarding truthfulness of the prosecution evidence. ( 4) That it has come in evidence that blood of the deceased had fallen on the clothes of the witnesses and on the cot on which the dead body was taken but knitting of the said cot or the clothes of the witnesses were not taken into possession by the I.O. so the version of the witnesses is not trustworthy. ( 5) That it has further been stated that it has come in evidence that the witnesses had heard the call of exhortation from a long distance so it is not possible for them to have heard it and as such involvement of co-accused appellant Virendra Singh is highly doubtful and he has falsely been implicated in this case. ( 6) That lastly, it is stated that this is a case of single blow given by the accused appellant Janardan Singh to the deceased so at the most, if at all, the accused Janardan Singh is found guilty, he should be convicted under section 304 part II I.P.C. 10. ( 6) That lastly, it is stated that this is a case of single blow given by the accused appellant Janardan Singh to the deceased so at the most, if at all, the accused Janardan Singh is found guilty, he should be convicted under section 304 part II I.P.C. 10. Whereas on behalf of the prosecution, learned AGA has supported the judgment of the trial court and stated that the trial court has correctly convicted the accused persons because as per version of the FIR, on the previous day of the occurrence i.e. 5.12.1980, the accused persons had threatened the deceased and the complainant with life and immediately on the next day, the occurrence has taken place, so the very intention of the accused persons to kill them is proved. 11. It is further argued that the postmortem of the deceased and nature of injury shown on the body of the deceased shows that the accused persons had both intention and knowledge that the injuries caused to the deceased were sufficient in normal course to kill the deceased. This is very much clear from the statement of the doctor. 12. The FIR was promptly lodged and after lodging of the FIR, accused persons were absconding, so the criminal intent and the guilt of the accused persons are fully proved. 13. After hearing the learned counsel for the parties and perusal of the material available on record, to our view following points emerges for the decision in this case. ( 1) Whether the non production of Kamlawati in this case as a witness is fatal to the prosecution. ( 2) Whether the presence of the witnesses on the spot is doubtful. ( 3) Whether the Investigation in this case is tainted and the Investigating Officer has not properly investigated the case. ( 4) Whether the prosecution has succeeded to prove the guilt of the accused persons beyond shadow of all reasonable doubt. Point No. 1 : 14. ( 2) Whether the presence of the witnesses on the spot is doubtful. ( 3) Whether the Investigation in this case is tainted and the Investigating Officer has not properly investigated the case. ( 4) Whether the prosecution has succeeded to prove the guilt of the accused persons beyond shadow of all reasonable doubt. Point No. 1 : 14. So far as the first point is concerned, learned Senior Counsel appearing on behalf of the defence has vehemently argued that the genesis of this case was the slapping of Kamlawati, sister of complainant, by Janardan Singh on the pretext that her goat had destroyed some of his wheat crops regarding which complainant and his cousin brother Ram Pravesh ( deceased) had gone to the house of the accused persons but Kamlawati has not been produced in evidence which creates doubt regarding truthfulness of the prosecution evidence. It is true that the genesis of the case had started on 5.12.1980 when Janardan Singh had beaten younger sister of the complainant and the complainant and his cousin brother Ram Pravesh had gone to their house to complain but it is to be seen as to whether any such incident did take place or not. In the F.I.R., it is stated that when the complainant and deceased Ram Pravesh had gone to the house of accused persons to complain regarding the said slapping, heated arguments had taken place between them and several persons of the village including Basant had intervened, who has been examined as P.W.-5. He has proved the said occurrence and has stated that Ramdhari and Ram Pravesh had gone to the house of Janardan Singh and Virendra Singh and had made a complaint as to why he has beaten their sister to which the accused persons had taken otherwise and had threatened them with life. This witness is an independent witness of the same village. During cross-examination, no such material has come out which could impeach the credibility of this witness so even though Kamlawati, the younger sister of complainant has not been produced but P.W.-5 Basant has very well proved that before occurrence, the accused person had beaten the sister of complainant regarding which the complainant and Ram Pravesh had gone to the house of the accused persons where some heated arguments took place and the accused persons had given a threat of life to them. So, in light of above, to our view, non production of Kamlawati in evidence is not fatal to the prosecution story. Point No. 2 : 15. So far as second point for determination is concerned, learned Senior Counsel appearing on behalf of the defence has stated that P.W.-1 Ramdhari Yadav is the complainant and cousin brother of the deceased, so he is an interested witness and his presence on the spot is also doubtful along with Ram Pravesh. It is printed out that P.W.-1 Ramdhari Yadav says he had gone to Bhatni Bazar for purchasing some medicines and, as such there was no occasion for Ram Pravesh to accompany him, so the complainant Ramdhari Yadav was not present on the spot. This apart, it is further argued that P.W.-2 Sudama son of Sita Ram is the resident of some other village Bankata Shiv so how he was present on the spot, is also doubtful because he belongs to some other village and P.W.-3 Ram Narain son of Lautan belongs to the same village Sallahpur Tola Mathia and is of the same caste to which complainant belongs. So, both these witnesses are procured and chance witnesses and their presence on the spot is doubtful. On this point, before the trial court also, a detailed cross-examination was made with these witnesses. P.W.-2 Sudama son of Sita Ram has stated in his statement that his village is about one mile away from Sallahpur Tola Mathia and he knew Janardan Singh and Virendra Singh since before the occurrence. He also knew the complainant Ramdhari Yadav and deceased Ram Pravesh since before the occurrence. On the date of occurrence, he was going to Bhatni by the same route by which the complainant and deceased were returning. Likewise, P.W.-3 Ram Narain son of Lautan has also stated that on the date of occurrence, he was also going to Bhatni and Janardan Singh and Virendra Singh were also going on the same direction but about 50 paces behind them. This aspect has been examined deeply with these witnesses but nothing has come out which could prove that these witnesses were not present on the spot. Learned trial court has also considered this aspect and has found that these witnesses are reliable witnesses and their presence cannot be doubted. Point No. 3 : 16. This aspect has been examined deeply with these witnesses but nothing has come out which could prove that these witnesses were not present on the spot. Learned trial court has also considered this aspect and has found that these witnesses are reliable witnesses and their presence cannot be doubted. Point No. 3 : 16. So far as investigation in this case is concerned, it is true that the Investigating Officer had not collected the blood which had fallen at different places when the dead body was being taken to the police station and he also did not collect the clothes of the witnesses and the netting of the cot on which the dead body of the deceased was taken to police station but to our view, merely on the ground that the investigation is tardy or deficient on certain non vital aspect, cannot be sole ground to throw out the entire prosecution story. The Hon'ble Apex Court has held that even if bloodstained clothes have not been taken into possession or if there are shortcomings in the investigation by the Investigating Officer, merely on this ground, entire prosecution story cannot be thrown out. This is a mere omission on the part of the Investigating Officer which is not sufficient to disbelieve the entire prosecution story. In the case of Harpal Singh v. Devinder Singh and another, [ ( 1997) 6 SCC 660 ], the Hon'ble Apex Court has held as follows: "But the trial court which declined to place reliance on him noted some flaws in his testimony; One such flaw is the failure of the police to collect the clothes worn by Harpal Singh which were smeared with blood during the rescue operation. We are unable to appreciate the said approach. If the clothes worn by the injured or the victims were not recovered by the investigating team that perhaps would have provided a handle to the defence to attack the prosecution case. But no investigating agency would normally take the trouble to seize the clothes worn by witnesses at the time they saw the occurrence merely because their clothes too had collected stains of blood during any post event activities. At any rate the said omission on the part of the investigating agency is not a flaw of that type to invite the consequence of jettisoning his testimony." 17. At any rate the said omission on the part of the investigating agency is not a flaw of that type to invite the consequence of jettisoning his testimony." 17. So, to our view, non collection of bloodstained clothes of witnesses or knitting of the cot is not fatal to the prosecution. This apart, it is evident from the record that the F.I.R. was lodged promptly and the Investigating Officer had prepared the site plan along with other connected papers forthwith. He had recorded the statements of the witnesses so merely on the ground of certain shortcomings, it cannot be said that the entire investigation was defective or tainted. It is a settled proposition of law that merely because there are some shortcomings in the investigation, entire prosecution case cannot be thrown out. The Apex Court in the case of Zindar Ali Sheikh vs. State of West Bengal and another, ( 2009) 3 SCC 761 , was confronted with a case of shoddy and unsatisfactory investigation, but the eyewitness account was found to be unimpeachable. It ws held that the defence could not take advantage of shoddy investigation when there was clinching eyewitness account of the crime. It further went on to hold that benefit of doubt cannot be extended to the defence merely on shoddy investigation when otherwise the witnesses of fact had stood their ground, and it went on to affirm the findings of conviction. Similar views have recently been taken by Hon'ble the Apex Court in Babu and another v. State of Chennai, ( 2013) 4 SCC 448and Hema v. State of Madras, ( 2013) 10 SCC 192 . 18. All these aspects have also been considered by the trial court in detail and the judgment of the trial court is well thought and well considered and the entire argument raised before the trial court has very well been met by the trial court. This argument is accordingly, rejected. Point No. 4: 19. 18. All these aspects have also been considered by the trial court in detail and the judgment of the trial court is well thought and well considered and the entire argument raised before the trial court has very well been met by the trial court. This argument is accordingly, rejected. Point No. 4: 19. So far as this point is concerned, learned counsel for the defence has vehemently argued that this is a case of a single blow given by the accused so at the maximum this case falls under Section 304 Part-II I.P.C., so, the trial court should not have convicted the accused persons under Section 302 read with section 34 IPC and in this regard, following judgments have been cited: 1- 1997 JIC 151 ( SC), Mavila Thamban Nambiar v. State of Kerala; 2- AIR 2009 SC 1835 , Ramchandra Dhondiba Kaware v. State of Maharashtra; 3- ( 1999) 3 SCC 309 , K. Ramakrishnan Unnithan v. State of Kerala; and 4- AIR 2006 SC 2531 , Bunnilal Chaudhary v. State of Bhiar. In all these cases, the Hon'ble Apex Court has propounded the principle of law that to fulfil the requirements of Section 300 IPC, it is required that the bodily injury must be intended and the bodily injury intended to be caused must be sufficient in the ordinary course of nature to cause death. This clause is in two parts:- the first part is a subjective one which indicates that the injury must be an intentional one and not an accidental one; the second part is objective in that looking at the injury intended to be caused, the court must be satisfied that it was sufficient in the ordinary course of nature to cause death. In all these cases, the facts are different than one in hand and are of sudden scuffle or there was no intention to kill. In these circumstances, the Hon'ble Apex Court has propounded the above principle, but, these decisions do not help the defence because the entire matrix as stated in the above cases are different to that of the present one. In these circumstances, the Hon'ble Apex Court has propounded the above principle, but, these decisions do not help the defence because the entire matrix as stated in the above cases are different to that of the present one. In this case, the very genesis of the case commenced a day before the occurrence when the accused Janardan Singh had beaten the younger sister of the complainant on the pretext that her goat had entered his field and the complainant and his cousin brother Ram Pravesh had gone to protest when there were heated arguments between them and the accused persons had threatened them with life and on the very next day, they got the chance. Virendra Singh had exhorted to kill the complainant and deceased Ram Pravesh whereupon Janardan Singh stabbed the deceased Ram Pravesh on the chest which in ordinary course was fatal and Ram Pravesh had died on the spot. The nature of weapon used, seat and nature of injury are also relevant to reach such a conclusion. Even P.W.-7 Dr. B.L. Gupta has stated that the blow given by the accused Janardan Singh was sufficient to cause death in the ordinary course. Considering all the factors together, it is apparent that the injury was caused on a vital part with a deadly weapon and with the intention to commit murder of the deceased with the knowledge that the injury caused, in the ordinary course, could be fatal. 20. However, learned senior counsel for the defence has argued that it is evident from the statement of D.W.-1 Kameshwar Shukla that the deceased Ram Pravesh was found dead in his field much before the alleged time of occurrence. It is stated that on the date of occurrence, he had gone to his field at about 6:00-7:00 a.m. to plough his field and at that time, the dead body of the deceased was lying there. After 2-3 hours, the dead body of the deceased was identified as that of Ram Pravesh. To our view, statement of D.W.-1 Kameshwar Shukla is not at all reliable and trustworthy because in the opening line of his statement, this witness has stated that he is Up-pradhan of his village and in spite of his finding that a dead body was lying in his field he made no effort to inform either the police or anyone else. This apart, the reason given by him to go to his field on a tractor, appears to be highly doubtful and untrustworthy, because crops were standing on his field, therefore, where was the occasion to plough it, thus, his statement is not at all reliable. 21. At last, learned Senior Counsel argued that the involvement of accused Virendra Singh in the present case is also not proved and a simple role of exhortation has been attributed to him which is not proved from the evidence on record. So accused Virendra Singh cannot be convicted taking help of Section 34 of the Indian Penal Code. It is further argued that it is evident from spot memo that occurrence in the case had taken place at spot 'B' and witnesses Sudama ( P.W.-2) and Ram Narain ( P.W.-3) had seen the occurrence from spot 'C' which is at distance from the place of occurrence, so, it is not possible for the witnesses to hear the exhortation as attributed to accused Virendra Singh. So conviction of Virendra Singh is not at all tenable and he is liable to be acquitted. In this regard, learned A.G.A. has confronted the argument advanced by learned Senior Counsel and has stated that witnesses Sudama ( P.W.-2) and Ram Narain ( P.W.-3) have clearly stated that they had heard the exhortation by Virendra Singh and as per the spot memo, spot 'C' is about 50-55 paces away from spots 'A' & 'B'. So, it cannot be said that they could not hear the exhortation because it is a lonely place and there is every possibility that they can hear the exhortation, so, the conviction of co-accused Virendra Singh under Section 302 read with section 34 IPC is fully justified. In this regard, Section 34 IPC provides that "when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." 22. In this regard after hearing learned senior counsel on behalf of the defence and learned AGA, there appears to be force in the argument of learned senior counsel. The place of occurrence is a busy thoroughfare and it has came in evidence that lot of people use it, several cyclists were seen on the way. In this regard after hearing learned senior counsel on behalf of the defence and learned AGA, there appears to be force in the argument of learned senior counsel. The place of occurrence is a busy thoroughfare and it has came in evidence that lot of people use it, several cyclists were seen on the way. It is doubtful whether witnesses could hear the exhortation from 50 to 55 paces. This apart, there is nothing on record to suggest there was common intention at the time of occurrence. The meeting of the accused persons and the deceased was a chance meeting, they were not way laid or knew about the programme of the deceased and informant. There is no overt act on the part of the Virendra Singh except alleged exhortation. It has also not come in evidence that the accused Virendra Singh knew that co-accused Janardan Singh was armed with a knife. So the involvement of accused Virendra Singh in the entire episode appears to be doubtful it is also not proved that he was sharing a common intention to kill the deceased at the time of occurrence. So to our view, the benefit of doubt may be extended to the co-accused Virendra Singh and his appeal is liable to be allowed. 23. Accordingly, the appeal of appellant Virendra Singh is allowed and the appeal in respect of appellant Janardan Singh is dismissed. Both the appellants are on bail, their bail bonds are cancelled. Accused Virendra Singh need not surrender before the trial court. He is acquitted from all the charges as framed against him giving benefit of doubt. However, accused Janardan Singh will surrender before the C.J.M. concerned and will be taken into custody for serving out the sentence as passed against him by the trial court and in case, if he does not surrender, the C.J.M. concerned shall take coercive action against him. Let a certified copy of this judgment be sent to C.J.M. concerned for necessary compliance.