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2017 DIGILAW 1048 (ALL)

GAURI SHANKAR v. STATE OF U. P.

2017-04-19

KRISHNA MURARI, RAVINDRA NATH KAKKAR

body2017
JUDGMENT : (Delivered by Hon'ble Ravindra Nath Kakkar, J.) 1. This criminal appeal has been filed challenging the judgment and order dated 20.10.1981, passed by Session's Judge, Mirzapur, in Session's Trial No. 215 of 1980, convicting and sentencing the appellant under Section 302 I.P.C. to undergo life imprisonment. 2. Facts, in brief, are that complainant, deceased and accused persons belong to the same family and they reside together. Accused Gauri Shanker, Daya Shankar and Premchand are patidars and reside adjacent to the complainant residence. There is a dispute with regard to the boundary of their field. It transpires from the record that the parties had their cultivation in the village Chitawanpur and Baraipur long back 11 to 12 years ago. Partition took place between them and ever since the partition the parties were in possession of their respective plots except one plot in which both the parties were in possession thereof by half and half prior to this incident. On 5.7.1980 at about 3 p.m. deceased Kewla Shankar had gone to his filed where he weeded out unwanted plants and placed them on his mend which were blown by the wind to the field of the accused Gauri Shankar which is adjacent to the complainant field. Some altercation took place between the wives of Daya Shankar and accused Prem. They abused and used filthy language against Kewla Shankar. Thereafter, Kewla Shankar returned to his mill (karkhana) towards the north of the village where they carried the business of weaving daries. Radhey Shyam, Ramchandra, Gulab and Bishambhar his other co-sharers were also working there. After this incident at about 5 p.m. on the same day all the three accused came from their house armed with lathis and spear and started abusing and threatening the deceased. They arrived up to the karkhana (mill) of the deceased Kewla Shankar. At this time on hearing the filthy and abusive languages deceased Kewla Shankar, Gulab, Bishambhar, Ram Chander, Yunus and other persons arrived at gali of Chitawanpur Quanru bazar. They arrived up to the karkhana (mill) of the deceased Kewla Shankar. At this time on hearing the filthy and abusive languages deceased Kewla Shankar, Gulab, Bishambhar, Ram Chander, Yunus and other persons arrived at gali of Chitawanpur Quanru bazar. Kewla Shankar asked them not to abuse him, on this Daya Shankar and Prem Chand who were armed with lathis exhorted to Gauri Shankar and on the exhortation of Daya Shankar and Prem Chand, Kewla Shankar tried to run away from the spot but Gauri Shankar attacked with ballam on the back side of the deceased Kewla Shankar who fell down and died instantly on the spot. The other witnesses who were accompanying Kewla Shankar raised alarm and chased the accused persons but they escaped along with lathis and ballam. 3. Kewla Shankar tried to escape but before he could run Gauri Shankar assaulted him with ballam blow which pierced his body and came out towards the chest. P.W.1 Radhey Shyam scribed the report Ex.Ka-1 and lodged an FIR at the police station at 10.30 p.m. The distance from the place of occurrence to the police station is 5 miles towards west south. 4. Head Constable Uma Shankar Singh recorded the FIR and registered the case in G.D. and informed the higher authorities by telephone and subsequently sent the special report. P.W.7 Rajaram Singh, Station officer, of the police station proceeded to the place of occurrence with Sub Inspector Varshney. He reached the place of occurrence at about midnight. Sub Inspector Varshney on the direction of the Station Officer had prepared the inquest report in the next morning at about 6:00 a.m. Site plan and other papers were prepared and the dead body was sent through Constables Amleshwar and Baskal for the post-mortem examination. Autopsy was performed by Dr. V.J. Khanna, PW-6, at 3:00 p.m. 5. Acccused Gari Shankar has been charged under Section 302 IPC while other two accused Daya Shankar and Prem were charged under Section 302 read with Section 34 IPC. 6. Prosecution examined ten witnesses in this case. PW-1 Radhey Shyam, the complainant, PW-2 Yunus, PW-3 Ram Chander have given ocular account of the occurrence. PW-1, PW-2 and PW3 are the eye witnesses of the incident. PW-4 Head Constable Uma Shankar Singh is a formal witness who recorded the FIR and registered the case. PW-6 Dr. 6. Prosecution examined ten witnesses in this case. PW-1 Radhey Shyam, the complainant, PW-2 Yunus, PW-3 Ram Chander have given ocular account of the occurrence. PW-1, PW-2 and PW3 are the eye witnesses of the incident. PW-4 Head Constable Uma Shankar Singh is a formal witness who recorded the FIR and registered the case. PW-6 Dr. V.J. Khanna conducted the post-mortem examination of the dead body of Kewla Shankar and has proved the report Ex.Ka-9. PW-7 Rajaram Singh, Investigating Officer, after completion of the investigation had submitted a charge sheet. PW-8 Sub Inspector. Varshney had prepared the inquest report Ex.Ka-15 and had sent the dead body duly sealed along with the relevant papers for post-mortem examination. PW-9 and PW-10 are formal witnesses and filed their affidavits which are available on record. The chemical examination report Ex.Ka-19 has also been filed by the prosecution. 7. After close of the prosecution evidence, statements of the accused persons under Section 313 Cr.P.C. were recorded by the trial Court. The accused persons pleaded not guilty and claimed to have been falsely implicated. The accused persons did not adduce any oral evidence in their defence. Thereafter, the trial Court convicted the accused Gauri Shankar under Section 302 IPC and sentenced him to undergo life imprisonment while the other accused Daya Shankar and Prem Chand were acquitted under Section 302 read with Section 34 IPC. Aggrieved against this, appeal has been preferred. 8. The following ante mortem injuries were found on the body of the deceased which is reported as Ex.Ka-9:- "1. wounds of entrance 4 cm x ½ cm margins clean cut upper part of the left back 15 cm below the tip of left shoulder joint attend blood oozing from the wound cavity deep. 2. wound of exit 1 cm x 1 cm on the middle of the right chest 2 cm inner to the right nipple margins clean cut cavity deep." 9. Heard Shri D.R. Chaudhary, learned counsel for the appellant and Shri L.D. Rajbhar, learned A.G.A. for the State. 10. Learned counsel for the accused-appellants contended that FIR is ante timed. To substantiate this, he argued that the inquest report and the relevant papers prepared on the spot does not bear the crime number of the case. There is delay in sending the special report to the higher authorities. 10. Learned counsel for the accused-appellants contended that FIR is ante timed. To substantiate this, he argued that the inquest report and the relevant papers prepared on the spot does not bear the crime number of the case. There is delay in sending the special report to the higher authorities. Further there is a cutting in the name of Panna Lal on the inquest report and it was changed with the name of Radhey Shyam who is the informant of the FIR. Further the witnesses who were named in the FIR are also made witnesses of the inquest. On these basis, learned counsel for the accused contended that the FIR is ante timed. 11. Next point of contention is that there is no motive to commit the murder of the deceased. The contention is that the witnesses produced by the prosecution in this case are related and interested witnesses. No independent witnesses although available was produced by the prosecution in this case. 12. Per contra, learned A.G.A. has submitted that there is cogent and reliable evidence against the accused appellants. The order of the court below is just and legal and there is neither any illegality nor infirmity or perversity in the impugned judgment which requires interference by this Court. Therefore, the appeal deserves to be dismissed. 13. Having considered the above submissions raised by both the parties, we have perused the record. With regard to the contention raised by learned counsel for the accused about the motive, we have perused the FIR along with the statement of the prosecution witnesses which goes to show that parties belonged to the same family. From FIR it transpires that there was dispute between the parties with regard to the partition of the plots. One of the plot found to be under dispute between the parties. P.W.1 informant complainant Radhey Shyam deposed that half of the disputed plot was in his possession towards the east side and half of the plot was in possession of the accused persons towards the west side of the disputed plot. The parties had a difference over the disputed plot resulting in strained relations between them. P.W.1 informant complainant Radhey Shyam deposed that half of the disputed plot was in his possession towards the east side and half of the plot was in possession of the accused persons towards the west side of the disputed plot. The parties had a difference over the disputed plot resulting in strained relations between them. It also transpires that before the incident of murder of Kewla Shankar at about 5 p.m. a controversy arose at about 3 p.m. when Kewla Shankar had weeded out unwanted plants of his field and placed it on the med of the field which are said to be blown into the field of the accused that resulted into the altercation between wives of the co-accused Daya Shankar and Prem Chand with Kewla Shankar. Filthy and abusive languages were used in this incident thereafter Kewla Shankar returned to his kharkhana (mill) and informed this incident to his brothers. It is important to mention that this fact is corroborated by the evidence of the Investigating Officer who stated that on the next day of the incident on 7.7.1980 when he visited to the place of occurrence he found unwanted plants scattered in the field of the accused which corroborates the prosecution version that the immediate cause of the incident of murder of Kewla Shankar was the incident which took place at 3 p.m. prior to the incident of murder. That being the situation, we find that motive and immediate cause of the incident is established. 14. Further we would like to refer the established legal propositions on the point of motive as laid down by Hon'ble Apex Court and various other High Courts that the existence of strong and definite motive is not a sine qua non to hold the accused guilty to a criminal offence. Further the prosecution is not supposed to prove motive when the prosecution relies on direct evidence that is the evidence of the eye witnesses. It is also trite law that if evidence indicates proper and necessary motive then the presumption against accused is established. As we have already noticed that there is strained relations between the complainant and the accused persons with regard to a disputed plot and before this incident altercation took place between both sides on keeping the weeded out unwarranted plants over the field of accused persons. As we have already noticed that there is strained relations between the complainant and the accused persons with regard to a disputed plot and before this incident altercation took place between both sides on keeping the weeded out unwarranted plants over the field of accused persons. As the genesis of the incident as above said has been established by tendering the evidence corroborated by the statement of the Investigating Officer as aforesaid, so we find no substance in contention of the learned counsel for the appellants accused on this point and on the point of motive. 15. So far as the contention raised by learned counsel for the accused to the FIR being ante timed, his submission is that there is a delay in sending special report to the higher authorities. Inquest and other relevant papers prepared on the spot do not have mention of the crime number of the case. Further there is a cutting in the name of Panna Lal on the inquest report and it was substituted by the name of Radhey Shyam. 16. Before appreciating the above contention raised by learned counsel we would refer the relevant legal propositions as laid down by Hon'ble the Apex Court and other various High Courts on the subject. 17. In Brahm Swaroop and Another vs. State of U.P. Hon'ble Apex Court has held that any omission or discrepancy in the inquest is not fatal to the prosecution. The whole purpose of preparing an inquest report under Section 174 of the Code of Criminal Procedure, 1973 is to investigate into and draw up a report of the apparent cause of death, describing such wounds as may be found on the body of the deceased and stating as in what manner, or by what weapon or instrument such wounds appear to have been inflicted. Omissions in the inquest report are not sufficient to put the prosecution out of court. The inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witnesses of inquest. It is also held that if the author of the report had not been diligent, it did not mean that reliable and clinching evidence adduced by the eye witnesses should be discarded by the Court. The inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witnesses of inquest. It is also held that if the author of the report had not been diligent, it did not mean that reliable and clinching evidence adduced by the eye witnesses should be discarded by the Court. Further held that if evidence available on record goes to show that the FIR was lodged promptly and name of the accused had been mentioned in the FIR and the FIR contains all the essential features of the prosecution's case including names of eye witnesses, time and place of incident, names of the victim, motive, name of the accused persons, weapons in their hands and manner of assault. Thus, all these things lend a seal of assurance not only to the presence of eye witnesses at the place of the incident, but also to the participation of the appellants in the crime. Any defect in the preparation of the inquest report by the investigating officer cannot lead to an inference that the FIR was not registered at the alleged time. 18. On the anvil of the touchstone of the above legal propositions we find that perusal of FIR reveals that the incident occurred on 5.7.1980 at 5.00 p.m. and FIR was lodged on the same day at about 10.30 p.m. The distance of the police station from the place of occurrence is 5 miles towards west side. P.W.1 Radhey Shyam who lodged the information stated that it took 30-35 minutes to scribe the report. FIR contains the name of the accused person, motive, immediate cause of the incident, weapons used in the commission of crime, date, time and place of occurrence, names of the witnesses who have seen the incident, manner and mode of the assault. These facts are indication of the genuineness of the FIR. It demolishes the plea of consultations or deliberation. Further there cannot be any occasion to leave the real culprits who had committed the murder of the son of the informant and falsely implicate the innocent person. 19. Next contention is with regard to the delay in sending the special report to higher authorities. It demolishes the plea of consultations or deliberation. Further there cannot be any occasion to leave the real culprits who had committed the murder of the son of the informant and falsely implicate the innocent person. 19. Next contention is with regard to the delay in sending the special report to higher authorities. Perusal of the evidence of P.W.4 Head Constable Uma Shankar who had lodged the chik FIR and made entries in the G.D. shows that information of the incident to higher authorities had been sent through telephone immediately after the lodging of the FIR. Its G.D. Ex. Ka-3 is proved and available on record. The special report was sent to the authorities on the next morning at 6 a.m. its G.D. Ex.Ka-4 is on record. So we find no merit in this contention and no adverse inference could be drawn against the prosecution version on this score. 20. The next point raised by the counsel for the appellant is with regard to the crime number being not mentioned in the inquest report Ex.Ka-15, but we find that crime number had been mentioned in the sketch (photo lash) Ex.Ka-16 which has been sent along with the inquest report Ex.Ka-15. Now the question erupts that this paper was also prepared on the spot which indicates that crime number had already been registered at that time. So it can be safely concluded that FIR was in existence at that time. Under these facts and circumstances we find no substance in the submissions raised by the learned counsel for the accused-appellant. 21. So far as cutting in the name of Panna Lal and substitution of the name Radhey Shyam in inquest report is concerned, we have perused the record and found that P.W.8- B. Varshney who prepared the inquest report and other relevant details papers on the spot had explained it in his statement which we find to be tenable and genuine. It is not the substitution but it was correction in the name, initialled by the author of the inquest. So we find that on the basis of evidence genuineness of the FIR cannot be doubted. On the basis of the aforesaid observations we conclude that neither the FIR is ante timed nor there is any doubt about its genuineness. 22. The next point raised by the learned counsel for the accused appellant is with regard to the ocular testimony. So we find that on the basis of evidence genuineness of the FIR cannot be doubted. On the basis of the aforesaid observations we conclude that neither the FIR is ante timed nor there is any doubt about its genuineness. 22. The next point raised by the learned counsel for the accused appellant is with regard to the ocular testimony. According to him P.W.1 Radhey Shyam and P.W.3 Ramchandra are relative of the deceased and P.W.2 Yunus was a chance witness. Since no independent witness has been examined by the prosecution to support its case hence the testimony of the eye witnesses are not believable. 23. With reference to the above argument we would like to refer the law laid down about the related/interested testimony in Sukhdeep Singh @ Deep Singh vs. State of U.P. and Another, 2010 (2) SCC (Crl.) 997. The Hon'ble Apex Court held that testimony of interested witness becomes more reliable as it would be difficult to expect that they would leave out the true assailants and involve some other persons. It is also trite law that the testimony of the interested or related witnesses ought to be scrutinized with care and caution. On the basis of the above legal propositions we have carefully scrutinized the testimony of the eye witnesses P.W.1, P.W.2 and P.W.3. We find consistency on the material point of the prosecution version with regard to the date, time, place of occurrence, manner and mode of assault, weapon used in the commission of murder. No material contradiction has been shown in the testimonies to disbelieve or discredit their presence at the place of occurrence so we find the testimony to be cogent, credible, believable and trustworthy. Further the incident of murder was of a daylight at about 5 p.m. in the month of July. It transpires from the record that there was no enmity between them except that prior to the incident some dispute arisen and the complainant's side wanted accused person to relinquish their claim over the disputed plot. If that being the situation then why complainant's side would leave the real culprits who committed the murder and falsely implicate the accused persons, hence the defence case that accused has been falsely implicated due to suspicion does not arise as it could not be taken of a mistake regarding the identity of the accused. If that being the situation then why complainant's side would leave the real culprits who committed the murder and falsely implicate the accused persons, hence the defence case that accused has been falsely implicated due to suspicion does not arise as it could not be taken of a mistake regarding the identity of the accused. The relatives of the deceased were not likely to implicate innocent person as they would be interested in bringing to book the real culprits. Further P.W.1 informant and P.W.3 had specifically and categorically stated that under what facts and circumstances they happened to be the witness of the scene of the crime. So far as the testimony of P.W.2 Yunus is concerned, he has stated that under what situation he was taken at the time of commission of the crime. He has explained his presence at the time of occurrence that has supported the prosecution story in material particulars of the prosecution version. 24. So far as the non-production of the independent witness from the locality to support the prosecution version is concerned, it is pertinent to mention that as the murder took place in the village abadi and both the parties are known to the villagers, it is a natural and general phenomena that the people are reluctant to appear as a witness in cases of a heinous crime committed in the villages. It transpires from the record that the villagers reached on the spot only after when the accused persons had already escaped from the spot, so non-production of the independent witnesses of the locality under the above stated facts and circumstances cannot be said to be fatal or to disbelieve or discredit the ocular testimony produced in this case. 25. Lastly learned counsel for the accused appellant submitted that in this trial two accused persons had been acquitted and one accused Gauri Shankar was convicted on the same evidence. Therefore, the fact witnesses cannot be said to be reliable. We decline to accept this argument as raised by the learned counsel for the appellant. Firstly because it is established legal proposition as laid down by Hon'ble the Apex Court that witnesses are of three categories (1) wholly reliable (2) wholly unreliable (3) neither wholly reliable nor wholly unreliable. It is the bounden duty cast on the court to sift the grain from the chaff from the statement of the witnesses. Firstly because it is established legal proposition as laid down by Hon'ble the Apex Court that witnesses are of three categories (1) wholly reliable (2) wholly unreliable (3) neither wholly reliable nor wholly unreliable. It is the bounden duty cast on the court to sift the grain from the chaff from the statement of the witnesses. From the record we find that two accused who are acquitted are said to be armed with lathi. Their role was assigned that of exhortation and the autopsy conducted by Dr. V.J. Khanna P.W.6 shows that no injury of lathi was found as an ante mortem injury on the body of the deceased. The injury which was responsible for the death of deceased Kewla Shankar was that of ballam (spear). The weapon ballam (spear) was assigned to the accused Gauri Shankar. The essential ingredients required to prove under Section 34 of IPC was found to be not established against these two accused persons who later on acquitted from their involvement and complicity in the commission of crime of murder as the same has not been proved without reasonable doubt. 26. Therefore, we find that the impugned judgment is just and legal and there is neither any perversity nor infirmity which requires any interference. 27. Accordingly, the order impugned dated 20.10.1981 convicting and sentencing the appellant Gauri Shankar under Section 302 I.P.C. is confirmed and the appeal having no force is hereby dismissed. 28. Let a certified copy of the judgment be transmitted to the court concerned for compliance.