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Allahabad High Court · body

2016 DIGILAW 68 (ALL)

PAPPU @ VEERBHAN v. STATE OF U. P.

2016-01-07

OM PRAKASH VII

body2016
JUDGMENT Hon’ble Om Prakash-VII, J.—This criminal appeal has been preferred by the accused appellants against the judgement and order dated 4.9.2012 passed by the Additional District & Sessions Judge, Court No. 7, Badaun in Session Trial No. 662 of 2009 (State v. Pappu @ Veerbhan and others) convicting and sentencing the appellants for the offences punishable under Sections 304/34 IPC to undergo ten years rigorous imprisonment. Fine was also imposed. 2. At the outset, it is mentioned here that by the order dated 23.9.2015 the appeal in respect of the appellant No. 2 has been abated. Hence, the Court is proceeding to hear and decide the appeal in respect of the rest of the appellants i.e. appellant Nos. 1, 3 and 4. 3. The facts of the case, as unfolded by the informant Chandra Pal Singh son of Ayodhya Singh that despite repeated efforts for lodging the FIR, the case was not lodged by the police concerned, on 12.6.2008, the informant submitted application under Section 156(3) Cr.P.C. before the Court concerned making averments that on 17.2.2008 at about 8 and 9 p.m. Rajeshwar son of Siya Ram, Nanhe son of Pooran, Fafundi @ Kunwarpal and his cousin nephew Pappu @ Veerbhan took away his brother Jhabbu Singh son of Ayodhya Prasad from his house in the presence of the complainant and other family members on the pretext of a compromise having been arrived at between them regarding disputed land. When deceased returned home after couple of hours, his condition was critical and precarious and was worsening gradually. The informant alongwith Rati Ram son of Jai Ram, Surendra son of Bedram went at the house of those four persons but they were not present at their houses. Having suspicion on their conduct, the informant rushed to Alapur Police Station and informed the Police about the incident. On information, the Incharge of the Police Chauki and two constables reached the house of the informant and met and talked with Jhabbu Singh, the deceased named those four persons and told that they administered poison in liquor and after a while, before the police personnels, Jhabbu Singh breathed his last. Urgently, the dead-body of the deceased was sent for post-mortem by the police. Urgently, the dead-body of the deceased was sent for post-mortem by the police. The Station Officer was not present at the Police Station and when the informant and other persons reached at mortuary, they saw the concerned Station Officer having some talks with the doctor conducting the post-mortem. When the concerned Station Officer saw them, he began to abuse them and removed them from there. When the informant and other persons enquired about the FIR from the Station Officer, he told that FIR had already been lodged by the chaukidar Sabir and there was no need of another FIR and get the post-mortem prepared as per his choice. After cremation, when the informant and other villagers went to meet the said Station Officer, hurling abuses, he said that he had been transferred and he would release the aforesaid four persons at his order. Appellant No. 2 is already undergoing life imprisonment in connection with one murder case and the criminal trial is also pending against the appellant No. 4 for allegedly murdering his wife before the Court concerned. 4. On the basis of the application under Section 156(3) Cr.P.C. First Information Report (Ext. ka-1), chik First Information Report (Ext. Ka-3) was registered at Police Station concerned mentioning all the details as had been described in Ext. Ka-1. G.D. entry (Ext. Ka-2) was also made at the same time. 5. Investigation in the matter was started by the Investigating Officer S.I. Krishna Kumar Gautam. He prepared inquest report (Ext. ka.-6). He also prepared papers relating to photo lash, sample seal, chalan lash, letter to R.I., letter to Chief Medical Officer Medical report (Ext. ka-7 to k-11). Thereafter, investigation was transferred to Sub-Inspector Rohtash Singh. He inspected the place of incident, prepared site plan (Ext. k-12). Further, the investigation in the matter was again transferred to S.I. Rajendra Singh Chauhan, who after completing the investigation submitted charge-sheet (Ext. ka-4) in the matter. 6. Autopsy report (Ext. ka-2) was prepared after conducting the post-mortem on 18.2.2008 at 4.40 p.m. 7. As per the post-mortem report, the deceased was about 72 years old. On external examination, the Doctor found the deceased of average built and the rigor mortis present on all the four limbs. Dead-body was of about 2/3 day old. 8. On examination of the dead-body of the deceased, following ante-mortem injuries were found: 1. As per the post-mortem report, the deceased was about 72 years old. On external examination, the Doctor found the deceased of average built and the rigor mortis present on all the four limbs. Dead-body was of about 2/3 day old. 8. On examination of the dead-body of the deceased, following ante-mortem injuries were found: 1. Lacerated wound 2 cm x 1 cm in between the ring and little finger of left hand. 9. According to the doctor, large and small intestines contained faecal matter and gases. Bladder was empty. 10. In the opinion of the doctor, cause of death could not be ascertained hence the viscera was preserved. 11. As mentioned above, after completing the investigation, charge-sheet against the accused appellants was filed. Concerned Magistrate took the cognizance. The case being exclusively triable by the sessions Court, was committed to the Court of sessions. 12. Accused/appellants appeared and charge under Sections 304/34 IPC was framed in the trial Court against them. All the accused have denied the charges framed against them and claimed their trial. 13. Trial proceeded, and in order to prove its case, prosecution on its behalf examined eight witnesses, wherein PW-1 Chandra Pal Singh, the informant, PW-2 Sabir Ali, PW-3 Maina Devi, PW-4 Dr. R.K. Singh, PW-5 Constable Mewa Ram, PW-6 S.S.I. Rajendra Singh Chauhan, PW-7 S.I. Krishna Kumar Gautam and PW-8 S.I. Rohtash Singh. 14. After closure of prosecution evidence, statement of accused appellants under Section 313 Cr.P.C. was recorded. 15. Accused persons in their statements under Section 313 Cr.P.C. denied the allegations and stated that they have been falsely implicated due to party-bandi and enmity. 16. Having heard the learned counsel for the parties and going through the record, the trial Court has found that the prosecution has fully succeeded in bringing home the charges against the accused appellants beyond reasonable doubt and convicted and sentenced the accused appellants, hence this appeal. 17. I have heard Shri R.S. Tripathi, learned counsel for the appellant Nos. 3 and 4, Shri Ajay Vikram Yadav holding brief for Shri Sushil Kumar, learned counsel for the appellant No. 1 and Shri Zafeer Ahmad, learned AGA for the State at length, and perused the entire record carefully. 18. 17. I have heard Shri R.S. Tripathi, learned counsel for the appellant Nos. 3 and 4, Shri Ajay Vikram Yadav holding brief for Shri Sushil Kumar, learned counsel for the appellant No. 1 and Shri Zafeer Ahmad, learned AGA for the State at length, and perused the entire record carefully. 18. Castigating the impugned judgement and order, learned counsel for the appellants has submitted that the offence is said to have been committed on 17.2.2008 but the application under Section 156(3) CrPC was moved on 23.2.2008. Delay in filing the application under Section 156(3) CrPC was not properly explained by the prosecution. No evidence has been adduced to establish that deceased died in the presence of the police personnels. Prosecution case is not supported by any independent witness. Enmity is admitted to both the parties. Therefore, it is improbable that deceased had gone alongwith the accused appellants in the night. When the information was given at the out-post regarding the incident and the death of the deceased is also not established from the prosecution evidence. No effort was made by the informant or the family members of the deceased for treatment of the deceased. It is also not clear that at which place the inquest report was prepared by the police. The Investigating Officer has not properly investigated the matter and only on the basis of oral statement of the informant and the PW-3, oral dying declaration, said to have been made by the deceased, was relied upon by the Court below. The prosecution could also not establish that the said oral dying declaration was made before the police. No police personnel was examined to establish this fact. Application under Section 156(3) CrPC was after thought with intention to falsely implicate the appellants. In fact deceased himself had consumed liquor and died in consequence thereof. Liquor was provided by the PW-3 and she herself committed the present offence causing death of the deceased. It is further submitted that the trial Court has convicted and sentenced the applicants placing reliance on very weak type of evidence, which were not sufficient to infer complicity of the appellants in the present case. It is further submitted that the prosecution could not prove its case beyond reasonable doubt. The impugned order is not sustainable in the eye of law. It is further submitted that the prosecution could not prove its case beyond reasonable doubt. The impugned order is not sustainable in the eye of law. Lastly, it is submitted that maximum sentence imposed upon the appellants is of ten years and fine also. Out of the sentence imposed, appellants have served out more than three years of sentence. 19. On the other hand, learned AGA appearing for the prosecution has submitted that the deceased was taken by the appellants from his house at about 8-9 p.m. on the day of the incident before the witnesses. PW-3 objected but the appellants gave her assurance for safe return of the deceased. The deceased before his death has made the declaration about the offence committed by the accused appellants. In the application under Section 156(3) CrPC, all the facts stated before the Court find place. If some of the facts were not recorded by the Investigating Officer in the statement under Section 161 CrPC, the facts mentioned in the application under Section 156(3) CrPC at the initial stage and the statement made before the Court would not be disbelieved. Delay in interrogation of the witnesses by the Investigating Officer is the biased act on the part of the Police concerned. Therefore, no adverse inference would be drawn against the prosecution on this score. Prosecution has been able to establish the guilt of the accused appellants beyond reasonable doubt. It is not necessary to examine all witnesses present on the spot. PW-1 and PW-3 both were present at the place of occurrence at the scene. Deceased was taken by the appellants before them. The findings recorded by the trial Court is in accordance with law. There is no infirmity or illegality in the said findings recorded in the impugned order warranting interference by this Court. 20. I have considered the submissions made by the learned counsel for the parties and have carefully gone through the entire record and evidence. 21. To constitute an offence, the essential ingredients required under law are motive, intention, preparation and overt act. In the present matter, as has been stated by the prosecution witnesses and mentioned in the application under Section 156(3) CrPC, it is clear that there was enmity between the parties regarding some immovable property and to pacify the matter, deceased was taken from his house. PW-3 was present in her house at that time. In the present matter, as has been stated by the prosecution witnesses and mentioned in the application under Section 156(3) CrPC, it is clear that there was enmity between the parties regarding some immovable property and to pacify the matter, deceased was taken from his house. PW-3 was present in her house at that time. She also objected the accused appellants but assurance for safe return of the deceased was given to her by the appellants. Motive is also admitted by the accused appellant Pappu @Veerbhan in the statement under Section 313 CrPC. Thus, there was motive against the appellants. 22. As far as intention to commit the present office is concerned, this ingredient can be gathered from the facts and circumstances of the case as this is mental process of the criminals which can only be seen from the overt act done by them. So far as the preparation part is concerned, the appellants in order to accomplish their goal have taken the deceased from his house. When the deceased returned his house, he had consumed liquor. He had stated to the PW-3, PW-1 and other persons present there that the appellants had administered him poisonous liquor. When he returned at his house, he was in poor condition. Non-providing him immediate medical treatment by PW-1 and PW-3 will not absolve the appellants from their criminal liability. Thus, in the present matter, preparation and overt act both ingredients have been established by the prosecution from its evidence beyond reasonable dout. Deceased died in the night itself. It is the consistent case of the prosecution witnesses that they informed to the local police immediately but the local police did not register the case and instead, they prepared inquest report of the dead-body of the deceased immediately and sent the dead-body for post-mortem. Looking to the conduct of the local police, the statement made by the prosecution witnesses cannot be disbelieved. The application under Section 156(3) CrPC was moved on 23.2.2008 when the police did not register the case despite several efforts made by the informant. The delay in lodging the FIR has been properly explained in the application under Section 156(3) CrPC. The local police was interested in defending the appellants. It appears that due to that reason FIR was not lodged just after the incident. 23. The delay in lodging the FIR has been properly explained in the application under Section 156(3) CrPC. The local police was interested in defending the appellants. It appears that due to that reason FIR was not lodged just after the incident. 23. So far as the cause of death of the deceased is concerned, in the post-mortem report except one injury in finger, no other ante-mortem injury was found on the body of the deceased. Viscera was preserved, which was sent for chemical examination. The report submitted by the laboratory also reveals that some poisonous substance was found in the stomach and other part of the body of the deceased. Thus,the cause of death was the result of poisonous substance found in the viscera preserved at the time of post-mortem. Suggestions of the learned counsel for the appellants that PW-3 herself has provided poisonous substance to the deceased and caused his death pressing his testicles and due to that reason in resisting himself, the deceased received injury in his finger. But on the close analysis of the entire evidence adduced by the parties and the pleas taken by the accused appellants, this Court is of the view that the pleas taken by the learned counsel for the appellants are not acceptable. On the basis of the defective investigation made by the police, the statements made by the PW-1 and PW-3, which are supported form the medical evidence, could not be disbelieved. 24. So far as the dying declaration said to have been made by the deceased is concerned, it is settled legal position that dying declaration made orally in the presence of any person may be proved in Court by the oral evidence of that person. The declaration becomes admissible, if the declarant subsequently dies. If he survives, it will be useful, if made before a Magistrate, or any one other than a Police Officer, to corroborate his oral evidence as a witness in Court. 25. Further, the Hon’ble Supreme Court in the case of Bhagwan Das v. State of U.P., 2013 Cri LJ 512, concurred with the view taken by the trial Court that the statement made by the deceased before the Investigating Officer can be treated as a dying declaration under Section 32(1) of the Evidence Act. 25. Further, the Hon’ble Supreme Court in the case of Bhagwan Das v. State of U.P., 2013 Cri LJ 512, concurred with the view taken by the trial Court that the statement made by the deceased before the Investigating Officer can be treated as a dying declaration under Section 32(1) of the Evidence Act. Their Lordships have further held that the law empowers the prosecution to rely on such statement by treating it as a dying declaration. Relevant paragraphs 20 and 21 of the said journal are reproduced below: “20. Going by Section 32(1) Evidence Act, it is quite clear that such statement would be relevant even if the person who made the statement was or was not at the time when he made it was under the expectation of death. Having regard to the extraordinary credence attached to such statement fall under Section 32(1) of the Indian Evidence Act, time and again this Court has cautioned as to the extreme care and caution to be taken while relying upon such evidence recorded as a dying declaration. 21. As far as the implication of 162(2) of Cr.P.C. is concerned, as a proposition of law, unlike the excepted circumstances under which 161 statement could be relied upon, as rightly contended by learned senior counsel for the respondent, once the said statement though recorded under Section 161 Cr.P.C. assumes the character of dying declaration within the four corners of Section 32(1)of Evidence Act, then whatever credence that would apply to a declaration governed by Section 32(1) should automatically deemed to apply in all force to such a statement though was once recorded under Section 161 Cr.P.C.. The above statement of law would result in a position that a purported recorded statement under Section 161 of a victim having regard to the subsequent event of the death of the person making the statement who was a victim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling under Section 32(1) of Evidence Act and thereby commend all the credence that would be applicable to a dying declaration recorded and claimed as such.” 26. In the present matter, the dying declaration was made before PW-1 and PW-3. They have proved the said dying declaration in the Court. In the present matter, the dying declaration was made before PW-1 and PW-3. They have proved the said dying declaration in the Court. If for the sake of argument, presence of PW-1 at that time is doubted, then also the statement of PW-3 cannot be doubted on this point. The dying declaration is complete in nature and contains the name of culprits, the manner of the occurrence and cause of death. The finding of the trial Court placing reliance on the said dying declaration is not illegal. The other circumstances of the case also supported the dying declaration. 27. If the Investigating Officer has made defective investigation or recorded the statement of witnesses belatedly, that was on the part of the Investigating Officer. The informant PW-1 and PW-3 had no control over the police. What facts the Investigating Officer recorded in the statement under Section 161 CrPC, was the act of the Investigating Officer. If the Investigating Officer did not record the statement under Section 161 CrPC in the manner as stated by the witnesses, the statement of eye account witnesses, which is supported by medical evidence, could not be discarded. 28. Thus, on close scrutiny of entire evidence in consonance of the findings recorded by the trial Court and also in view of the settled legal position, this Court is of the view that the prosecution was able to establish the guilt of the accused appellants beyond reasonable doubt for the offence under Section 304/34 IPC. 29. So far as the submission regarding sentence is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. 30. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of the offence and the manner in which it was executed or committed. It is the obligation of the Court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. The measure of punishment should be proportionate to the gravity of the offence. It is the obligation of the Court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. The measure of punishment should be proportionate to the gravity of the offence. Object of sentencing should be to protect society and to deter the criminal in achieving the avowed object of law. Further, it is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should ‘respond to the society’s cry for justice against the criminal’. [Vide : (Sumer Singh v. Surajbhan Singh and others, (2014) 7 SCC 323 , Sham Sunder v. Puran, (1990) 4 SCC 731 , M.P. v. Saleem, (2005) 5 SCC 554 , Ravji v. State of Rajasthan, (1996) 2 SCC 175 ]. 31. In view of the above propositions of law, the paramount principle that should be the guiding laser beam is that the punishment should be proportionate to the gravity of the offence. 32. The Apex Court in the case of G.V. Siddaramesh v. State of Karnataka; 2010 (87) AIC 43 (SC), while allowing the appeal of the appellant, altered the sentence. Paragraph 31 of the said judgment is reproduced below: “31. In conclusion, we are satisfied that in the facts and circumstances of the case, the appellant was rightly convicted under Section 304-B I. P. C. However, his sentence of life imprisonment imposed by the Courts below appears to us to be excessive. The appellant is a young man and has already undergone 6 years of imprisonment after being convicted by the Additional Sessions Judge and the High Court. The appellant is a young man and has already undergone 6 years of imprisonment after being convicted by the Additional Sessions Judge and the High Court. We are of the view, in the facts and circumstances of the case, that a sentence of 10 years’ rigorous imprisonment would meet the ends of justice. We accordingly, while confirming the conviction of the appellant under Section 304-B, I. P. C., reduce the sentence of imprisonment for life to 10 years’ rigorous imprisonment. The other conviction and sentence passed against the appellant are confirmed.” 33. Applying the principles laid down by the Apex Court in the aforesaid judgements and having regard to the totality of the facts and circumstances of the case particularly the fact that the accused appellants have served-out more than three years of the sentence imposed upon them, I am of the considered view that the ends of justice would meet if the sentence of the appellants awarded to them under Section 304/34 IPC is reduced/modified to the imprisonment of seven years excluding the punishment of fine imposed upon them in the impugned judgment and order, which shall be deposited or additional imprisonment ordered to be served-out in default of payment of fine shall be undergone by the appellants. 34. In the light of foregoing discussions, this appeal is liable to be allowed in part and the conviction of the appellants namely, Pappu @ Veerbhan, Nanhe and Fafundi @ Kunwarpal under Section 304 IPC read with Section 34 IPC is liable to be upheld. The impugned judgment and order dated 4.9.2012 is liable to be modified to the extent as discussed above. 35. Accordingly, the appeal is allowed in part. Conviction of the appellants namely, Pappu @ Veerbhan, Nanhe and Fafundi @ Kunwarpal under Section 304 IPC read with Section 34 IPC is upheld. The sentence of ten years rigorous imprisonment awarded to the appellants Pappu @ Veerbhan, Nanhe and Fafundi @ Kunwarpal for their conviction under Section 304 IPC read with Section 34 IPC is modified and reduced to the imprisonment of seven years. Fine imposed upon the appellants for the offence under Section 304 IPC read with Section 34 IPC will be deposited or in default, additional imprisonment as ordered by the trial Court, shall be served-out. Nature of the imprisonment would be the same as ordered by the trial Court in the impugned judgment and order. 36. Fine imposed upon the appellants for the offence under Section 304 IPC read with Section 34 IPC will be deposited or in default, additional imprisonment as ordered by the trial Court, shall be served-out. Nature of the imprisonment would be the same as ordered by the trial Court in the impugned judgment and order. 36. Let a copy of this judgement alongwith lower Court record be sent to the Sessions Judge, Budaun for compliance. A compliance report be sent to this Court.