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2014 DIGILAW 896 (ALL)

Brij Kishore alias Brijo v. State of U. P.

2014-03-20

ANANT KUMAR, SHEO KUMAR SINGH

body2014
JUDGMENT Anant Kumar, J.: - This criminal appeal under Section 374(2) Cr.P.C. was initially filed by accused persons Brij Kishore alias Brijo, Suresh, Ashok and Ram Kishore against the judgment and order dated 6.4.1983 passed by Sri M.G. Godbole, Sessions Judge, Aligarh in respect of Sessions Trial No. 220 of 1982, convicting the appellants under Sections 148, 302 I.P.C. read with Section 149 I.P.C. sentencing each of them for two years Rigorous Imprisonment and for imprisonment for life respectively. 2. At the very outset, it is very relevant to mention here that during pendency of appeal, the appellant No. 4 Ram Kishore son of Chhajju Ram has died, regarding which a report was summoned from the Chief Judicial Magistrate, Aligarh and report dated 3.7.2012 to this effect is available on record. As per the report of the Chief Judicial Magistrate, Aligarh, the accused-appellant No. 4 Ram Kishore has died. Accordingly, this appeal is abated against the appellant No. 4 Ram Kishore. 3. Now this appeal is being considered in respect of rest of the appellants i.e. Brij Kishore alias Brijo, Suresh and Ashok. 4. The brief facts, relevant for disposal of the appeal, are that on 27.6.1981 at 7.00 A.M. a complaint was lodged in Police Station Civil Line, Aligarh by the complainant Netrapal Singh son of Hoti Lal, resident of Nagla Tikauna Chandaniya, Police Station Civil Line, District Aligarh wherein it was mentioned that the complainant along with his elder brother Lala Ram was having betel and Biri shop near Minakshi Cinema and in upper portion there was a room in which they slept and in the morning they were going to village Nagla Tikauna. When they reached near crematorium Chandaniya at about 6.00 A.M., Roop Kishore and Brijo sons of Sunahari Lal, Suresh son of Pyare Lal, Ashok son of Radhey Shyam, resident of Chandaniya and Ram Kishore son of Chhajju Ram, resident of Nagla Chhajju Chandaniya met him and hurling abuses said that cordon and kill them. Saying this, Roop Kishore and Brijo having Tamancha opened fire on elder brother of the complainant and rest three persons started inflicting blows by Farsa. Due to fear, the complainant raised alarm and ran away towards front side. Saying this, Roop Kishore and Brijo having Tamancha opened fire on elder brother of the complainant and rest three persons started inflicting blows by Farsa. Due to fear, the complainant raised alarm and ran away towards front side. From the front side, Pooran Singh son of Pitamber, resident of Nagla Tikauna, Tursi Ram son of Jamuna Das, resident of Chandaniya, who were coming having vegetables and Chandra Prakash son of Kailashi Prakash, resident of Begam Bagh, have seen the occurrence. Seeing the persons of the locality, the accused persons ran away in the eastern side of Gali. Since the accused persons were having arms in their hands, they were not chased. The brother of the complainant was having firearm injury on his chest and Farsa injury was on his hand and neck etc., due to which he had fallen in Nali and has died on the spot. The accused persons were inimical to the brother of the complainant. It was requested that a report be lodged and legal action be taken. 5. On the basis of written complaint, chick F.I.R. was prepared. The inquest report of the deceased was prepared and dead body of the deceased was sent for post-mortem. Dr. H.M. Anthwal of M.S. Hospital, Aligarh had performed autopsy on the dead body of the deceased Lala Ram and following ante-mortem injuries were found on his person: - (1) Incised wound 5" x 1" x bone deep on the right side forehead vertically oblique. Parietal right and frontal bones were cut, whole thickness. (2) Incised wound 5 ½" x 2" x bone deep on the right side neck horizontally oblique, cutting muscles and vessels on the right side. (3) Incised wound 1" x ¼" x skin on the back of right wrist vertically oblique. (4) Incised wound ¼" x 1/8" x skin on the back of little finger of right hand at the root. (5) Six gun shot wounds of entry ¼" x 1/4" each with margins inverted in an area of 2 ½" x 1 ½" on the front and the left side chest, 2 ½" below and medial to left nipple. No blackening and tattooing present. (6) One gun shot wound of exit 1/2" x 1/2" with margins inverted on the back of chest left side at the inferior angle of scapula, five metallic shots recovered from below the skin and muscles around this area. No blackening and tattooing present. (6) One gun shot wound of exit 1/2" x 1/2" with margins inverted on the back of chest left side at the inferior angle of scapula, five metallic shots recovered from below the skin and muscles around this area. (7) Incised wound 1" x 1 ¼" x muscle on the back of the left thigh in the middle, vertically oblique. 6. After investigation, charge sheet was filed against the accused persons. The case being triable by session, was committed to the court of sessions and charges were framed against the accused persons. 7. Trial proceeded and on behalf of prosecution, eight witnesses have been examined, wherein PW-1 Netra Pal, PW-2 Pooran Singh and PW-3 Chandra Prakash are witnesses of fact. PW-4 Dr. H.M. Anthwal, who had conducted post-mortem upon dead body of the deceased, PW-5 Head Constable Rajpal Singh, who had prepared the chik F.I.R. and had made entry in the General Diary, PW-6 S.I. R. P. Singh, who had prepared inquest of the deceased, PW-7 Constable Girish Babu, who had taken the dead body of the deceased for post-mortem along with his companion Ram Sahai and PW-8 Naresh Pal Yadav, who was the Investigating Officer of the case, are formal witnesses. 8. After hearing the learned counsel for the prosecution and defence, the learned Sessions Judge has found that the prosecution has fully succeeded in bringing home the charges against the accused persons beyond all reasonable doubt and the accused persons have been convicted and sentenced for rigorous imprisonment for two years and imprisonment for life under Sections 148, 302 read with Section 149 I.P.C. respectively, hence this appeal has been filed. 9. We have heard Sri Dileep Kumar, learned Advocate, assisted by Sri Rajul Bhargava, learned counsel for the appellants and Sri Sangam Lal Kesarwani, learned A.G.A. and have perused the record. 10. On behalf of the appellants, it is mainly argued that the learned trial court has come to the conclusion that there was a long standing enmity between the parties but only general allegations in this regard are made, so it is possible that the accused persons have been falsely implicated in this case. 10. On behalf of the appellants, it is mainly argued that the learned trial court has come to the conclusion that there was a long standing enmity between the parties but only general allegations in this regard are made, so it is possible that the accused persons have been falsely implicated in this case. It is further argued that medical evidence is inconsistent with the F.I.R. and both does not corroborate each other, which gives an indication that the prosecution has not come with clean hands and was not telling truth in the court. It is further argued by learned counsel for the appellants that as per the version of the F.I.R., two accused persons i.e. Ram Kishore and Brijo had opened fire upon the deceased whereas only one gun shot wound of entry and one gun shot wound of exit were found, which clearly shows that it is a case of only one fire, so this fact totally belies the prosecution version and on this count itself, the prosecution story is improbable and false and the accused persons should have been acquitted. It is next argued that nature of other injury nos. 1, 2, 4 and 7 found on the body of the deceased suggest that shape and dimension of all the injuries are similar so these injuries may be caused by single weapon and by single person. So, the prosecution version to the effect that all the accused persons were having Farsa in their hands and all have inflicted the injuries upon the deceased, does not appear to be probable. It is further argued that there are a lot of shortcomings in the investigation, even the complainant had gone to lodge the F.I.R. at police station, at that time his statement under Section 161 Cr.P.C. was not promptly recorded. 11. It is also argued that PW-6 has stated in his statement that for preparation of Panchayatnama, he had gone first from police station to outpost Atrauli Gate on rickshaw and from outpost Atrauli Gate to place of occurrence he went on foot along with constables Girish Babu and Ram Sahai, who were posted at outpost Atrauli Gate. All three had walked from outpost Atrauli Gate to the scene of occurrence whereas PW-7 Girish Babu has stated that he had gone by motorcycle along with Darogaji. All three had walked from outpost Atrauli Gate to the scene of occurrence whereas PW-7 Girish Babu has stated that he had gone by motorcycle along with Darogaji. So on this count, it is stated that the police personnel were not telling truth before the court. In this reference, an argument has further been advanced by learned counsel for the appellants that till the inquest report was prepared, the F.I.R. was not in existence and to strengthen this argument, a reference has been made at page 2 of the Ext. Ka-5, wherein a blank space is shown regarding G.D. number and time through which PW-6 had done his Ravanagi from the police station. It is also stated that in the inquest report, only crime number and sections are mentioned but no reference of accused persons or the number of G.D. etc. has been given. So, it is evident that till preparation of the inquest, the F.I.R. was not in existence. It is further argued that as per the version of the F.I.R., dead body of the deceased was lying in a Nali after the incident but it is not clear as to who had taken out the dead body of the deceased from the said Nali and had put the same by the side of Nali. In this regard, a reference has been made to the statement of PW-3 Chandra Prakash, wherein he has stated that he had taken out the dead body of the deceased from the said Nali and kept it by side of the Nali whereas PW-7 Girish Babu has stated in his statement that he along with his companion police personnel had taken out the dead body from the Nali. So, on this ground, it is argued that from these circumstances, it is evident that there are a lot of shortcomings in the prosecution story, which creates doubt regarding truthfulness of the prosecution story. So, on this count, the accused persons should have been acquitted. The learned trial court has not discussed these points in detail and has wrongly convicted the accused persons solely on the basis of surmises and conjectures and the judgment and order of the trial court is liable to be set aside. 12. So, on this count, the accused persons should have been acquitted. The learned trial court has not discussed these points in detail and has wrongly convicted the accused persons solely on the basis of surmises and conjectures and the judgment and order of the trial court is liable to be set aside. 12. On behalf of the State, it is argued by learned A.G.A. that in this case three witnesses have deposed before the trial court and have given vivid descriptions of the incident and during cross examination of all the three witnesses, no such material has come out which could give an indication that the witnesses are telling lie. It is further argued that in this case, occurrence is shown to have taken place at 6.00 A.M. and the F.I.R. was promptly lodged at 7.00 A.M. Inquest and post-mortem was also promptly done. The presence of PW-2 and PW-3 at the place of occurrence is fully proved from the record, as such, the prosecution has fully succeeded to prove the guilt of the accused persons beyond shadow of reasonable doubt and the trial court has rightly believed the prosecution case and has rightly convicted them. 13. From perusal of the record, it is evident that the occurrence has taken place in the morning at 6.00 A.M. PW-1, who is the brother of the deceased, is a very natural witness and he has stated that at the time of occurrence, the deceased Lala Ram, who was elder brother of the complainant, was having Biri and betel shop at Meenakshi Cinema and in upper portion, there was a room and in the said room, PW-1 along with his brother slept. On the day of occurrence i.e. 27.6.1981 at about 6.00 P.M., PW-1 along with his brother Lala Ram was going for their village Nagla Tikauna and when they reached at the gate of Chandaniya crematorium, the accused persons having arms met them from the front side. The accused Ram Kishore and Roop Kishore said that let us cordon and kill them, thereupon, Roop Kishore and Brij Kishore fired upon the deceased and rest of the accused persons started inflicting Farsa blows then he raised alarm and ran towards front side. Hearing commotion, the witnesses Pooran Singh, Tursi Ram, Chandra Prakash came there then the accused persons ran away. Due to injuries, his brother had fallen in the Nali and had died. Hearing commotion, the witnesses Pooran Singh, Tursi Ram, Chandra Prakash came there then the accused persons ran away. Due to injuries, his brother had fallen in the Nali and had died. Thereafter he had written the complaint and the same was lodged in the police station. He has given a reason for living in the room of upper portion of betel and Biri shop that there was enmity in the village from Chhajju Ram, who was father of the accused Ram Kishore and Sunahari Lal, who was father of accused Roop Kishore and Brijo. On 24.10.1978, Harish Chandra and Nathua had killed his elder brother Mohan Lal regarding which a murder case was pending against Harish Chandra and Nathua and during pendency of that case, Nathua was also killed. Thereafter also there were series of incidents between family of the complainant and accused persons and due to this, elder brother of the complainant had started living near Minakshi Cinema in the room of upper portion of betel and Biri shop and for safety, the complainant was also living with him. This witness has been cross examined at length by defence side but during cross examination, no such material has come up, which could suggest that PW-1 is telling lie or his statement does not inspire confidence. PW-2 Pooran Singh and PW-3 Chandra Prakash have also given their statements in support of the prosecution. PW-2 is resident of Nagla Tikauna, Police Station Civil Line, District Aligarh and on the date and time of the incident, he was going from the village to sell vegetable whereas PW-3 Chandra Prakash is resident of Rang Mahal, Police Station Sasani Gate, District Aligarh and on the date and time of incident, he was coming for morning walk and had witnessed the occurrence. Both these witnesses are independent witnesses. They have also been cross examined at length but in the cross examination, no such material has come up which could suggest that these witnesses are inimical to the accused persons or they are not telling truth. 14. To our view, statements of witnesses of fact i.e. PW-1, PW-2 and PW-3 are fully intact and inspiring confidence, as such, the learned trial court has rightly placed reliance upon them. 15. 14. To our view, statements of witnesses of fact i.e. PW-1, PW-2 and PW-3 are fully intact and inspiring confidence, as such, the learned trial court has rightly placed reliance upon them. 15. So far as the argument of the learned counsel for the appellants regarding enmity of accused persons with the complainant side is concerned, this aspect has fully been considered by the learned trial court and the trial court has rightly come to the conclusion in paragraph 10 of the judgment that "it is important to note that Netra Pal is the own brother of Lala Ram deceased. He would naturally be interested in bringing the real murderers to book rather than in enjoying the sadistic pleasure of running down innocent persons without rhyme or reason simply at the instance of Tursi Ram and Jagdish, as was suggested on behalf of the accused." So, to our view, merely there was enmity between the parties, hardly there is any chance of false implication of the accused persons due to reasons fully considered by the trial court. 16. So far as the argument of the learned counsel for the appellants to the effect that only one gun shot wound of entry and one gun shot wound of exit was found is belied the whole prosecution case, to our view, this argument is not having much force because it is evident from the contents of the F.I.R. that hearing the noise of the fire, the complainant to save his life had run in the front side, so there is further possibility that out of two fires made upon the deceased, one fire had hit him and other might have missed or could not hit the deceased because the theory of two fires have all along supported the witnesses of fact. So at this stage, this theory cannot be denied merely because sound of two fires were heard and one fire had hit the deceased, the entire prosecution story cannot be disbelieved. This aspect has also correctly been discussed by the learned trial court. Learned trial court has mentioned in the judgment and has held that it is just possible that when Lala Ram was being attacked, he must have run some distance and other shot fired at him may have missed its target. This aspect has also correctly been discussed by the learned trial court. Learned trial court has mentioned in the judgment and has held that it is just possible that when Lala Ram was being attacked, he must have run some distance and other shot fired at him may have missed its target. In this view of the matter, there is no discrepancy in the ocular evidence of PW-1 and medical evidence. So to our view, there is no material discrepancy in the F.I.R., medical evidence and ocular evidence and on this count, the prosecution witnesses cannot be disbelieved and it cannot be held merely on this ground that the witnesses of fact had not seen the occurrence and had reached the scene of occurrence after the incident. 17. So far as the discrepancies pointed out by learned counsel for the appellants in the investigation, as stated above, is concerned, these arguments are also not having much force as now it is well settled preposition of law that if any inconsistency or discrepancies have been found in investigation and case of the prosecution is otherwise proved beyond reasonable doubt by prosecution witnesses, such discrepancies can not make dent in the prosecution story and merely on the ground of discrepancies in the investigation, the accused persons cannot be acquitted. This fact has also been fully considered by the learned trial court and the trial court has held that there is no column for mentioning name of the accused persons in the inquest report. It is further held that "it is true that there is slight contradiction in the statements of Sri R.P. Singh, S.I. PW-6 and constable Girish Babu PW-7 as to on what conveyance they reached the place of occurrence and whether the dead body was in the Nali or just outside or who had taken out the body from the Nali. In my opinion, these discrepancies are not of a material nature and do not in any way adversely affect the broad features of the case." So in view of the matter, these discrepancies are not fatal for the prosecution story. 18. In my opinion, these discrepancies are not of a material nature and do not in any way adversely affect the broad features of the case." So in view of the matter, these discrepancies are not fatal for the prosecution story. 18. Considering the entire aspects of the matter and looking to the facts and circumstances of the case, we are of the view that the judgment and order passed by the learned trial court is well thought and well discussed and the learned trial court has rightly held that the prosecution has succeeded to prove the guilt of the accused persons beyond all reasonable doubt and they are liable to be convicted. As such, the judgment and order of the trial court is liable to be upheld and the appeal having no force, is liable to be dismissed. 19. In view of the above, the appeal is dismissed. The conviction and sentence imposed upon the accused persons Brij Kishore alias Brijo, Suresh and Ashok is hereby confirmed. They are on bail. Their bail bonds are cancelled. They are directed to surrender immediately before the Chief Judicial Magistrate, Aligarh who shall take them into custody and will send them in jail for serving out the remaining sentence imposed upon them by the trial court and in case they fail to surrender as directed, the Chief Judicial Magistrate shall take coercive action against them in this regard. 20. Let a copy of this judgment along with lower court record be sent forthwith to the Sessions Judge, Aligarh for compliance.