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2016 DIGILAW 2079 (ALL)

Avadh Ram v. State of U. P.

2016-05-27

ANIL KUMAR SRIVASTAVA-II, SURENDRA VIKRAM SINGH RATHORE

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JUDGMENT Anil Kumar Srivastava-II, J. 1. Shri R. K. Dwivedi and Shri Vashu Deo Mishra, learned counsel for the appellants and Shri Umesh Verma, learned AGA for the State were heard at length. 2. Instant appeal arises out of judgment and order dated 15.03.2004 passed by learned Additional Sessions Judge/ Fast Track Court No.5, Sitapur in Sessions Trial No.121 of 2002 arising out of Case Crime No.325 of 2001, under Sections 302, 504 and 506 IPC, P.S. Mahmoodabad, District-Sitapur; State Vs. Avadh Ram & Others whereby learned trial court has convicted accused Avadh Ram and Kanhaiya Lal under Section 302 IPC and sentenced them to undergo imprisonment for life and fine of Rs.10,000/-. However, they were acquitted for the offence punishable under sections 504 and 506 IPC. Accused Gopi Verma and Ram Khelawan were acquitted by the learned trial court. 3. Acquittal of accused Gopi Verma and Ram Khelawan has not been challenged by the State. 4. According to the prosecution story, complainant Desh Raj owns a readymade shop. On 8.11.2001, he asked his son Ramesh to close the shop as he has to purchase vegetables and to perform some other household jobs. At about 3.00 P.M., when Ramesh was purchasing potato from vegetable shop of Munna, complainant saw that all of a sudden, accused Avadh Ram and Kanhaiya Lal armed with ''banka' alongwith Ram Khelawan and Gopi came and Avadh Ram gave a ''banka' blow on the head of Ramesh. Ram Khelawan and Gopi tied hands and legs of Ramesh. Avadh Ram and Kanhaiya Lal gave ''banka' blows to Ramesh. When complainant raised alarm Raj Kumar, Ramu (brother in law of Ramesh) came there. Due to this occurrence, sense of fear developed in the market. They closed their shops. People started running from market. Avadh Ram and Kanhaiya Lal started threatening and ran away from the spot. 5. First information report was lodged at P.S. Mahmoodabad, District-Sitapur on 8.11.2001 at 4.20 P.M. Investigation was entrusted to S.I. K.B. Singh. Inquest proceedings were started at 5.00 PM and concluded at 6.30 PM. Body was sent for postmortem, which was conducted on 9.11.2001 at 11.00 AM. Investigating officer inspected the place of occurrence and prepared the site plan. Plain and blood-stained soil along with slippers of deceased were recovered by the investigating officer. After concluding the investigation, charge-sheet against the accused Avadh Ram, Ram Khelawan, Kanhaiya Lal, Gopi Verma was filed. Body was sent for postmortem, which was conducted on 9.11.2001 at 11.00 AM. Investigating officer inspected the place of occurrence and prepared the site plan. Plain and blood-stained soil along with slippers of deceased were recovered by the investigating officer. After concluding the investigation, charge-sheet against the accused Avadh Ram, Ram Khelawan, Kanhaiya Lal, Gopi Verma was filed. 6. In order to prove its case, prosecution has produced P.W.1 Desh Raj, complainant as well as eye-witness. P.W. 2 S.I. Lal Mani Tiwari investigating officer. P.W.3 C.P. 34 Liladhar Gaur, chik FIR writer. P.W.4 Dr. Ashwani Kumar, who has conducted the postmortem of body of deceased Ramesh on 9.11.2001 and found following ante mortem injuries on the body of the deceased: (1) Incised wound 11c.m x 2.00 c.m. brain deep on right side of skull, 3.00c.m. above right ear. (2) Incised wound 22.00 c.m. x 6.00 c.m. bone deep on right side in front of neck 2.cm below chin jaw soft tissues vessels 3.00 cm. are cut through into through. (3) Incised wound 8.00c.m.x 1.00 c.m on right side of face and pinna of right ear. 7. According to Dr. Ashwani Kumar duration of death was about one day. Cause of death was shock and haemorrhage due to ante mortem injuries which can be caused by Banka. 8. P.W. 5 S.I. Kunwar Bahadur Singh is the investigation officer. 9. Accused have denied charges levelled against them and stated that Desh Raj never used to sit on his shop. On the date of occurrence he was not in the market. FIR is antedated, ante time. Accused have been falsely implicated due to enmity, Kanhaiya Lal has taken a plea of alibi and stated that at the time of occurrence, he was busy in Panchayat meeting and was posted at Gaon Sabha, Horser District- Barabanki. 10. A written statement was also filed by accused Kanhaiya Lal stating therein that complainant is hardened criminal. Place of occurrence is a dense market. Complainant and deceased were living separately. No independent witness has given evidence due to conduct of complainant. Deceased was coming from ''Paitipur Bazar'. He was killed in night by unknown person and accused have been falsely implicated. 11. Learned trial court acquitted the accused Gopi Verma and Ram Khelawan while convicted and sentenced accused-appellant Avadh Ram and Kanhaiya Lal under section 302 IPC to imprisonment for life. 12. Deceased was coming from ''Paitipur Bazar'. He was killed in night by unknown person and accused have been falsely implicated. 11. Learned trial court acquitted the accused Gopi Verma and Ram Khelawan while convicted and sentenced accused-appellant Avadh Ram and Kanhaiya Lal under section 302 IPC to imprisonment for life. 12. Learned counsel for accused-appellants has submitted that the prosecution has failed to prove its case beyond reasonable doubt against the appellants. It is submitted that the first information report was ante time and antedated. Surendra Pratap Singh is not the scribe of the first information report. It is further submitted that no motive has been alleged in the first information report. Further, no motive was proved during trial. In the absence of any motive, prosecution story becomes doubtful. 13. It is further submitted that there was a long drawn enmity between the parties due to which accused have been falsely implicated. It is further argued that only one witness P.W. 1 Desh Raj has been produced, who is father of the deceased. Occurrence took place at 3.00 PM in a busy Market. No independent witness was produced to support the prosecution version, it shows that no independent witness had seen the occurrence. P.W. 1 Desh Raj is interested witness who is also inimical to the accused. It is further submitted that place of occurrence is not established. Deceased was killed somewhere else, but a concocted false story has been fabricated by the prosecution. Investigation is also not fair. Investigating Officer has not fairly investigated the case. 14. It is further submitted that medical evidence does not support the ocular evidence. 15. Per contra, learned AGA has submitted that it is a case where deceased was murdered by the accused in broad day light at 3.00PM in a busy market, which shows dare devil act of the accused. This is the reason that no independent witness could dare to depose against them. It is further submitted that P.W. 1 Desh Raj has specifically stated that witnesses are not ready to depose due to fear. It is further submitted that first information report was lodged promptly, large number of people gathered at the spot, hence, there was no question of finding trail of blood on the place of occurrence. It is further submitted that P.W. 1 Desh Raj has specifically stated that witnesses are not ready to depose due to fear. It is further submitted that first information report was lodged promptly, large number of people gathered at the spot, hence, there was no question of finding trail of blood on the place of occurrence. It is also argued that according to the statement of P.W. 1 Desh Raj, there was enmity between the parties which was the motive for commission of the crime. It is further argued that it a case of direct evidence where motive has no role to play. 16. Before dealing with factual matrix of the matter, we would like to discuss the postmortem report and the injuries found on the body of the deceased. According to the prosecution, injuries were inflicted by giving 'banka' blows. Banka is sharp edged weapon. P.W. 4 Dr. Ashwani Kumar has conducted the postmortem of body of deceased Ramesh Kumar on 9.11.2001 at 11.00AM and found three incised wound on his body. One was on the head, other was on the neck and the third one was on face. No other injuries were found on the body of deceased. All these three injuries were sufficient to cause death. According to Dr. Ashwani Kumar Singh, cause of death was shock and haemorrhage due to antemortem injuries. Duration of death was one day. It means that according to the medical evidence also time of occurrence corresponds to the time as alleged by the prosecution i.e. on 8.11.2001 at 3.00pm. So we are of the considered view that medical evidence is fully corroborating the prosecution version of causing death by inflicting the injuries by 'banka' blows at the time as claimed by prosecution. 17. Admittedly, P.W. 1 Desh Raj is produced as an eye-witness, who is also the complainant and father of the deceased. It is stated that he asked his son Ramesh (deceased) to close the shop as he has to purchase the vegetables and to do certain household jobs. After closing the shop, he was accompanying his son Ramesh while Ramesh was purchasing potato from Munna's shop. He was attacked by the accused-appellants namely Avadh Ram and Kanhaiya Lal. Occurrence has taken place in a busy market where a large number of people were present, but nobody has come to depose before the Court. After closing the shop, he was accompanying his son Ramesh while Ramesh was purchasing potato from Munna's shop. He was attacked by the accused-appellants namely Avadh Ram and Kanhaiya Lal. Occurrence has taken place in a busy market where a large number of people were present, but nobody has come to depose before the Court. Even Ramu brother in law of the deceased did not put courage to depose before the trial court. Definitely, it is a very unfortunate situation that in a broad day light murder no one is coming forward to depose against the assailants, but we have to see the reasons as to why this unfortunate situation has arisen. 18. In the present day world people avoid to become witnesses in a criminal cases because they consider it as a dispute between two parties and they avoid to invite enmity with the accused persons. This apathy of the public has become a big hindrance in the administration of criminal justice. 19. Hon'ble Apex Court in the case of Shiv Ram vs State of U.P. 1998 SCC Pg 149 has considered this aspect and was of the view that "nowadays it is a common tendency that no outsider would like to get involve in a criminal case much less in the crime of present magnitude. Therefore it is quite natural that no independent witness will come forward to assist the prosecution. It is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons but what is required in such situation is that the Court must scrutinize the evidence of such witnesses with utmost care and caution." 20. In another case Appa vs State of Gujarat, AIR 1988 SC 698 Hon'ble Apex Court observed that "Experience reminds us that civilized people are generally insensitive when crime is committed even in their presence. They withdraw from both, victim and accused. They keep themselves away from the Court. They take crime as a civil dispute. This kind of apathy of general public is indeed unfortunate but it is everywhere whether in village life or town and city. One cannot ignore this handicap. Evidence of witnesses has to be appreciated keeping in view such ground realities. They keep themselves away from the Court. They take crime as a civil dispute. This kind of apathy of general public is indeed unfortunate but it is everywhere whether in village life or town and city. One cannot ignore this handicap. Evidence of witnesses has to be appreciated keeping in view such ground realities. Therefore, the Court instead of doubting the prosecution case, where no independent witness has been examined, must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any suggested by the accused." 21. P.W. 1 Desh Raj has specifically explained the situation that he asked Ramu and Raj Kumar to depose before the trial court, but both of them have refused due to fear of accused. This statement is uncontroverted. We do not find any reason to disbelieve the statement of P.W.1 Desh Raj. Further we can also appreciate the mental situation of these two witnesses, who are so scared that they could not gather courage to come forward and depose before the trial court. Hence, we are of the considered view that even if independent witnesses have not come to depose, evidence of P.W. 1 Desh Raj could not be believed cannot be discarded on this score. 22. P.W. 1 Desh Raj is father of the deceased and complainant of the case. Definitely, he must be an interested witness, who would left no stone unturned to see that the assailant gets the punishment for the murder of his son. 23. It has also been argued that PW-1 is a related witness who is father of the deceased, hence his evidence cannot be relied upon. We do not find any substance in this submission. There is no law which prescribes that evidence of a related witness has to be discarded on this score alone. 24. On this point reliance may place on Hemraj & others vs. State of Haryana 2005 (52) ACC 258 (Supreme Court) wherein it was held that non-examination of independent witnesses would not be fatal for the prosecution. In the present case, specific assertion has been made by the complainant P.W.1 Desh Raj that due to fear of accused no one is prepared to depose in court. In the present case, specific assertion has been made by the complainant P.W.1 Desh Raj that due to fear of accused no one is prepared to depose in court. Accused have murdered the deceased in broad day light in a dense market which itself is indicative of the fact as to why no one could gather courage to depose against the accused in Court. Hence, non-examination of any independent witness is not fatal in this case. 25. On the point of related witness, reference may be made to the pronouncement of Hon'ble the Apex court in the case of Sheesh Ram and others Vs. State of Rajasthan reported in (2014) 3 SCC 689 wherein Hon'ble the Apex Court in paragraph no. 10 has observed as under: - "10. It is submitted that all these witnesses are related and therefore their evidence cannot be relied upon. Assuming they are related to each other and, hence, interested witnesses, it is well settled that the evidence of interested witnesses is not always suspect. It has to be scrutinised with caution and can be accepted if it is found reliable." 26. Hon'ble the Apex Court in the case of Gopal Singh Vs. State of U.P. reported in (1978) 3 SCC 327 has observed in paragraph no. 11 as under: - "11. True, they were interested witnesses, related to the deceased. Far from undermining the circumstances of the case, it guaranteed the truth of their testimony. Being relations, they would be the least disposed to falsely implicate the appellant, or substitute him in place of the real culprit. In short, the murder charges had been proved to the hilt against the appellant." 27. In the case of Main Pal and Anr. Vs. State of Haryana and Ors 204 Cr. L.J. 2036, Hon'ble the Apex Court has held as under: - "If the eye-witnesses' version, even though of the relatives, is found to be truthful and credible after deep scrutiny the opinionative evidence of the doctor cannot wipe out the effect of eye-witnesses evidence." 28. Hon'ble the Apex Court in the case of Bhagwan Dass Vs. State of Rajasthan (1974) 4 SCC 781 has observed in paragraph no. 11 as under:- "11. Hon'ble the Apex Court in the case of Bhagwan Dass Vs. State of Rajasthan (1974) 4 SCC 781 has observed in paragraph no. 11 as under:- "11. It is also difficult to believe that Chunki would spare the real assailant and falsely mention the name of the accused as the person who was responsible for the injuries caused to her and the three deceased persons. Chunki, it may be stated, has not been shown to have any animus against the accused." 29. Now, we have to consider the evidence of P.W. 1 Desh Raj in view of above legal perspective. We have to see as to whether evidence of P.W.1 Desh Raj is fully reliable or not ? Whether he was present at the spot or not ? 30. P.W. 1 Desh Raj is complainant, who has lodged the FIR at P.S. Mahmoodabad, District- Sitapur on 8.11.2001 at 4.20pm, while the occurrence took place at 3.00pm. Distance of the police station is seven kilometers. First information report was scribed by one Surendra Pratap Singh, son of Payare Lal Resident of Village Kilan Purwa ,Post Chaitepur, District-Sitapur. According to P.W.1, he had dictated the written report to Surendra Pratap Singh, who scribed it, thereafter, he signed the report. P.W. 3 C.P. 34 Liladhar Gaur, who has prepared the chik FIR and registered the case in G.D., has admitted that Surendra Pratap Singh was not accompanying the complainant at the police station. An argument is advanced on behalf of the appellants that the report is not written by Surendra Pratap Singh. Admittedly, Surendra Pratap Singh has not been produced as a witness. He is a teacher by profession in Veni Ram Inter College, Paitepur. 31. Whether the report is scribed by Surendra Pratap Singh or not could be considered with the aid of other circumstances which can ensure as to whether FIR is antetime and antedated ? According to exhibit Ka-4 chik FIR was lodged at 4.20pm on 08.11.2001 and a case was registered at G.D. No.25 at 16.20 hours on 8.11.2001. Inquest proceedings begun on 08.11.2001 at 5.00pm and continued upto 6.30 pm. According to G.D. No.25 dated 8.11.2001 special report was also sent to the Superior Officers. Dead body was also sealed on 08.11.2001 and the postmortem was conducted on 09.11.2010 at 9.11 AM. Inquest proceedings begun on 08.11.2001 at 5.00pm and continued upto 6.30 pm. According to G.D. No.25 dated 8.11.2001 special report was also sent to the Superior Officers. Dead body was also sealed on 08.11.2001 and the postmortem was conducted on 09.11.2010 at 9.11 AM. P.W. 3 C.P. 34 Liladhar Gaur has proved the chik FIR as well as G.D. P.W.5 S.I. Kunwar Bahadur Singh has stated that the case was registered at police station in his presence. He had conducted the inquest proceedings. 32. Learned counsel for the accused-appellants try to make an effort to draw our attention towards the cross-examination of P.W. 1 wherein it is stated that Surendra Pratap Singh accompanied him to the police station but further he has stated that he had gone all alone in the police station and lodged the FIR. A written report was lodged as per his dictation. Surendra Pratap Singh continued to remain at the place of inquest proceeding. Inquest proceedings were conducted. Surendra Pratap Singh is one of the punches in the inquest proceedings. Hence, this fact could not be disputed that Surendra Pratap Singh has scribed the written report. He was also one of the punches of the inquest proceedings. 33. Learned counsel for the appellants has been placed reliance upon the Marudanal Augusti vs. State of Kerala, 1980 (Cri)985, (1980)4 SCC 425 wherein it was held that the first information report is delayed. Whole prosecution story becomes doubtful. 34. Further reliance has been placed on Mehraj Singh v. State of U.P. 1994 SCC (Cri) 1390 wherein it is held that delaying in lodging the FIR creates a doubt that it is ante time. 35. Reliance has also been placed Thanedar Singh vs. State of M.P. 2002 S.C.C. (Cri)153 ; wherein case law of Maharaj Singh was explained by Apex Court. 36. Facts of the present are entirely different. First information is prompt which has been lodged only after 1 hour 20 minutes of the occurrence. Inquest proceedings also started at 5.30PM and concluded at 6.30PM. Postmortem was conducted on the next day 11.00AM. Special report was also sent to the superior officers. Hence, there is no delay in lodging the FIR rather FIR is prompt leaving no room to doubt the veracity of prosecution version. 37. Inquest proceedings also started at 5.30PM and concluded at 6.30PM. Postmortem was conducted on the next day 11.00AM. Special report was also sent to the superior officers. Hence, there is no delay in lodging the FIR rather FIR is prompt leaving no room to doubt the veracity of prosecution version. 37. Learned counsel for the accused-appellants has raised a submission that no motive is mentioned in the first information report which creates a doubt about prosecution story. 38. It has also been challenged that in the FIR the respective weapons of each of the accused were not mentioned but it has come in cross-examination of P.W.1 that for the purpose of brevity he had not mentioned the respective weapons used by each accused. He has also stated that at that point of time he was in disturbed state of mind. This is very natural as his son was brutally murdered within his view so at that time he must be in a state of shock. Perusal of the FIR shows that all the weapons were mentioned in the FIR. The object of the FIR is to bring the criminal law into motion. FIR cannot be treated to be encyclopedia of the entire prosecution case. The object of the FIR is to inform the police regarding the commission of an offence disclosing the names of the accused persons and the deceased/victim to enable the police to start investigation in accordance with law. Reference on this point may be made to the pronouncement of Hon'ble Apex Court in the case of Jitendra Kumar vs. State of Haryana (2012) 6 SCC 204 . 39. Direct role of attack has been assigned to the appellants Avadh Ram and Kanhaiya Lal in the first information report. Admittedly, no motive is mentioned in the statement of P.W.1 Desh Raj. Long drawn enmity has been stated by accused in their statement recorded under Section 313 Cr.P.C. It has also been stated that they have been falsely implicated due to enmity. Very lengthy cross-examination of P.W. 1 Desh Raj has been done regarding enmity. P.W.1 Desh Raj was a witness in the case of murder of one Aama Devi in which accused-appellant, Kanhaiya Lal and three others were accused-appellant Avadh Ram was also one of witnesses who became hostile. Avadh Ram, Chanda and others have kidnapped the daughter of complainant. Very lengthy cross-examination of P.W. 1 Desh Raj has been done regarding enmity. P.W.1 Desh Raj was a witness in the case of murder of one Aama Devi in which accused-appellant, Kanhaiya Lal and three others were accused-appellant Avadh Ram was also one of witnesses who became hostile. Avadh Ram, Chanda and others have kidnapped the daughter of complainant. Enmity is a doubled edged weapon which can be used by either side. A person can be killed by the other side due to enmity, likewise accused may be falsely implicated by the complainant due to enmity. It has to be appreciated in the light of evidence of the parties as to whether evidence on record is sufficient to prove the guilt against accused ? 40. We have gone through the record in the light of above legal perspective then we have to examine evidence of P.W.1 Desh Raj very carefully and cautiously. Admittedly, P.W. 1 Desh Raj is father of the deceased and complainant also. He is an eye-witness. He has stated that deceased was purchasing potato from shop of Munna, who was attacked by 'Banka' by Avadh Ram and Kanhaiya Lal. Ram Khelawan and Gopi Verma tied the deceased. Both the appellants having inflicted 'banka' blows on the deceased which is duly supported by the medical evidence of Dr. P.W.4 Dr. Ashwani Kumar, who found three ante mortem injuries on the body of deceased which were caused by sharp edged weapon. Seat of injuries exactly cannot be expected to be stated by any person. A person upon whom attacks are being made would definitely make an attempt to save himself. He cannot remain static in one posture so it can never be said that any pictorial description of the seat of injuries could be given by an eye witness. Natural variations are bound to occur, if such variations are not there then it may be possible to infer that the witness is tutored witness. P.W. 1 Desh Raj has stated that when deceased was purchasing potato from the shop of Munna, who was half bend to put the potato in the bag, then the accused-appellants attacked him. This posture of the deceased also finds support from the medical evidence wherein incised wounds were found on the body of the deceased. P.W. 1 Desh Raj has stated that when deceased was purchasing potato from the shop of Munna, who was half bend to put the potato in the bag, then the accused-appellants attacked him. This posture of the deceased also finds support from the medical evidence wherein incised wounds were found on the body of the deceased. We do not find any inconsistency in the statement of P.W. 1 Desh Raj to disbelieve him that he was not present at the spot. 41. In the site plan (Exhibit Ka 2) place of occurrence is shown by (X) P, which is at the shop of Munna. Complainant was at place of (X) Q, which is about seven steps from the place of occurrence. According to P.W.5, S.I. Kunwar Bahadur Singh plain and blood-stained soil was recovered from the place of occurrence on 8.11.2001. One slipper of deceased was also recovered from the place of occurrence. P.W. 5 S.I. Kunwar Bahadur Singh stated that the slipper was found near the dead body. Dead body was found near the house of Jwala Prasad, which is just adjoining to the place of occurrence. Hence, it cannot be said that the prosecution has failed to establish the place of occurrence. 42. P.W.1 Desh Raj is the father of deceased, who was accompanying the deceased at the time of occurrence. His character has been challenged on the ground that number of criminal cases are pending against him and he has also been convicted in other cases. Character of a witness at all is not relevant in criminal trial. Hence, character of P.W.1 Desh Raj is also not at all relevant in the present case. 43. P.W. 1 Desh Raj is the father of the deceased. It cannot be accepted that he would spare the real culprits and would falsely implicate the accused-appellants. 44. Learned trial court has rightly acquitted the co-accused Ram Khelawan and Gopi Verma which has not been challenged by the State. We are of the view that evidence of P.W.1 Desh Raj is fully reliable and trustworthy. Investigation was conducted by P.W. 5 S.I Kunwar Bahadur Singh, who prepared the inquest memo, recovered the plain soil, blood-stained soil and slipper of the deceased. Nothing else has been brought on record to show that the investigation in any manner was defective. 45. We are of the view that evidence of P.W.1 Desh Raj is fully reliable and trustworthy. Investigation was conducted by P.W. 5 S.I Kunwar Bahadur Singh, who prepared the inquest memo, recovered the plain soil, blood-stained soil and slipper of the deceased. Nothing else has been brought on record to show that the investigation in any manner was defective. 45. We are of the considered view that trial court has correctly appreciated the evidence on record in accordance with law. The finding given by the trial court is fully supported by reasons and evidence on record. Prosecution has successfully established the charges leveled against the accused appellants. Learned trial court has rightly convicted and sentenced them. Appeal deserves to be dismissed and is accordingly dismissed. 46. Conviction and sentence imposed by learned trial court is confirmed. Accused-appellants are in jail. They shall serve out the sentence awarded by the learned Trial Court. 47. Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance.