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2017 DIGILAW 1653 (ALL)

PRATAP v. STATE OF U. P.

2017-07-14

ARVIND KUMAR TRIPATHI, SATYA NARAIN AGNIHOTRI

body2017
JUDGMENT : (Author Hon'ble S.N. Agnihotri, J.) 1. Instant criminal appeals no. 118 of 1982 are preferred by the appellants Pratap Singh and Prakash and appeal no. 119 of 1982 by appellant Ragubir against the judgment and order passed by learned IVth Additional Sessions Judge, Mainpuri in Sessions Trial No. 68 of 1983 arising out of Crime No. 482 of 1982 dated 24.12.1983, whereby learned IVth Additional Sessions Judge, Mainpuri hold guilty to appellants under Section 302 read with Section 34 I.P.C. and sentenced all three appellants with life imprisonment. 2. The brief facts of the case are that the accused Pratap, Prakash, complainant and deceased are the resident of Village Garhiya, whereas accused Raghubir is the resident of Village Gaglai. Accused Raghubir is the brother in-law of accused Pratap (brother of the wife of accused Pratap). 3. Complainant Shri Ram Kishan submitted First Information Report (for brevity F.I.R.) Exhibit Ka-1 pursuance of which check F.I.R. was recorded in the Police Station Sikohabad with allegations that in the intervening night of 12/13.11.1982 deceased Shri Kishan was sleeping in the hutment near his house and complainant Shri Ram Kishan was sleeping under the thatch outside of his house. Lantern were lightening in side the hutment and under the thatch. At about 11:00 p.m. complainant Shri Ram Kishan heard a voice coming from the hutment where Shri Kishan was sleeping that "where is Ram Kishan" and voice of Shri Kishan saying "how you are concerned with Ram Kishan." Hearing the voice complainant woke up and raised an alarm. Hearing the alarm witnesses S/Shri Babu Ram, Radhey Shyam, Vireshwar, Naipal Singh and Nawab Singh came near the complainant from where they have seen that accused Pratap and Prakash were pressing Shri Kishan and accused Raghubir fired upon Shri Kishan with his Tamancha (country made pistol) which he had at the time of occurrence. Hearing the alarm and noise accused persons ran away from the spot brandishing country made pistol/revolver. Complainant and witnesses did not chase appellant/accused due to fear. After fleeing of the accused from the spot, complainant and witnesses came at the hutment where they found that Shri Kishna had already died. Complainant and witnesses took off the dead body of Shri Kishan from the cot with rug and kept it on the ground. Complainant and witnesses did not chase appellant/accused due to fear. After fleeing of the accused from the spot, complainant and witnesses came at the hutment where they found that Shri Kishna had already died. Complainant and witnesses took off the dead body of Shri Kishan from the cot with rug and kept it on the ground. Complainant scribed application (F.I.R.) Exhibit Ka-1 and in the morning of 13.11.1982 placed it in the office of Police Station Shikohabad pursuance of which a check F.I.R. was recorded against the appellants. 4. PW5 Shri Raj Pal Singh commenced investigation and visited the place of occurrence at Village Garhiya Aronj and prepared inquest report of dead body. PW5 also prepared relevant documents for post mortem which are Exhibit Ka-7 to Exhibit Ka-10. Investigator PW5 inspected place of occurrence and prepared site plan Exhibit Ka-11, took blood stained and simple earth in two small boxes, memo of which is Exhibit Ka-12. Investigator took in possession one empty cartridge found near the place of occurrence and prepared memo Exhibit Ka-13. In furtherance of investigation PW5 took in possession two lanterns which were lighting on the spot at the time of incident in the hutment and thatch and prepared memo Exhibit Ka-14. The quilt and rug were also taken in possession of the police and the memo of recovery was prepared which is Exhibit Ka-15. After the completion of investigation, Investigator submitted charge sheet, Exhibit Ka-16. 5. During the pendency of appeal, accused Pratap and Raghubir died. The appeal against the appellants namely Pratap and Raghubir has stand abated as per order dated 04.05.2016. Thus there is only Prakash the appellant who is alive. 6. To prove guilt of the appellants, prosecution examined as many as six Prosecution Witnesses (for brevity PW) Shri Ram Kishan PW1, Shri Babu Ram PW2, Shri Veereshwar, PW3, all three are eye witnesses, PW4 Shri Kamal Singh Sub Inspector, Investigating Officer (for brevity I.O.), PW6 Dr. S.C. Agarwal. Appellants did not prefer to adduce any evidence in defence. 7. Appellant accused in his statement under section 313 Cr.P.C. denied all allegations levelled and alleged by prosecution against him and asserted that he has been implicated due to enmity. 8. Before analyzing the evidence of the prosecution, we feel it just and proper to describe the summary of the statement of all witnesses. 9. 7. Appellant accused in his statement under section 313 Cr.P.C. denied all allegations levelled and alleged by prosecution against him and asserted that he has been implicated due to enmity. 8. Before analyzing the evidence of the prosecution, we feel it just and proper to describe the summary of the statement of all witnesses. 9. PW-1 Shri Ram Kishan is a complainant and an eye witness, who has stated on oath that prior to the date of incident, one day he was reaping grass on the boundary of his field, where the daughter of Jagannath named Ms. Meera was also harvesting barley crop. Ms. Meera objected at reaping grass and in this connection an altercation took place between Ms. Meera and Ram Kishan. Ms. Meera hurled abuses on Ram Kishan who slapped her. Thereafter Ms. Meera had gone to her house and made complaint to her father Jagannath. After sometime, Jagannath along with accused Pratap and Prakash came to the house of complainant and threatened to father of complainant that he would kill his son. Witness further stated that in the intervening night of 12/13.11.1982, he was sleeping under thatch outside his house and deceased was sleeping in a hutment near the house, at both places lanterns were lightening. At about 11:00 p.m. Complainant heard a voice that "where is Ramkishan" upon this Shri Krishan asked "how you are concerned with Ram Kishan." Witness heard this conversation and woke up and raised an alarm, upon which witnesses Shri Baburam-PW2, Shri Vireshwar-PW3 and other persons of vicinity came and again raised alarm collecting and seen that accused Pratap and Prakash were pressing Shri Krishan on the cot and meanwhile accused Raghubir fired upon Shri Krishna and ran away from the spot brandishing country made pistol/revolver. Witness further stated that he and witnesses along with other persons chased accused persons for some distance and due to fear they came back at the place of occurrence and found that Shri Krishan has already died. As per Hindu custom they took off the dead body of Shri Krishan with rug from the cot and put it on the floor. 10. As per Hindu custom they took off the dead body of Shri Krishan with rug from the cot and put it on the floor. 10. Witness further stated that he scribed F.I.R. Exhibit Ka-1 and due to fear he had not gone to the Police Station in the night and started only in the morning at about 5.30 a.m. for Police Station Shikohabad on foot and lodged a formal F.I.R. 11. PW1 further stated that the I.O. came at spot, prepared inquest report and seen the lantern and return it to the complainant. 12. PW2 Shri Baburam also supported the statement of PW1. PW3 Shri Veereshwar also supported the statement of PW1 & 2 except on the factum of motive. 13. PW4, Head Constable Shri Kamal Singh adduced secondary evidence and stated on oath that on 13.11.1982 he was posted at Police Station Shikohabad, District Mainpuri with Shri Shishu Pal Singh, Head Constable, and he is familiar with the handwriting and signature of Shri Shishu Pal Singh. The Check F.I.R. was recorded by Shri Shishu Pal Singh, under his signature and date which is Exhibit Ka-2. Witness further stated that the fact of recording of Check F.I.R. was entered in the General Diary No. 11 time 6:30 a.m. dated 13.11.2982, copy of which is Exhibit Ka-3. 14. The factum of arrest of accused-appellant Pratap and Raghubir and submission of incriminating material recovered from the place of incidence in the Police Station was also recorded in General Diary No. 32 time 19:00 hours dated 13.11.1982 which is Exhibit Ka-4. 15. PW5 I.O. Shri Raj Pal Singh stated on oath that this crime was registered in his presence at Police Station Sikohabad and he took investigation in his hand, visited place of incident prepared inquest report Exhibit Ka-5 and relevant documents, challan lash, photo lash, sample of impression, letter to C.M.O., Exhibit Ka-7 to 10 and hand over dead body to constables Shri Jwala Singh and Shri Somveer Singh. Later on I.O. inspected the place of occurrence and prepared site plan which is Exhibit No. Ka-11. 16. Witness further stated that the empty cartridge which was recovered from the place of occurrence is material exhibit -1. Blood stained and simple earth is material Exhibit 2 and 3 and quilt and rug are material Exhibit 4 & 5 respectively. Later on I.O. inspected the place of occurrence and prepared site plan which is Exhibit No. Ka-11. 16. Witness further stated that the empty cartridge which was recovered from the place of occurrence is material exhibit -1. Blood stained and simple earth is material Exhibit 2 and 3 and quilt and rug are material Exhibit 4 & 5 respectively. Witness also prepared and proved the site plan where the complainant was reaping grass and Km. Meera was harvesting barley crop and quarrel took place between them which is Exhibit Ka-17. 17. PW6 Dr. S.C. Agrawal performed autopsy on the dead body of Shri Krishan on 13.11.1982 at 4:30 p.m. and proved that age of the deceased was about 20 years. The rigor mortis was present in both upper and lower limbs and following one antimortem injury was found on the dead body: "Oval gunshot would 3 cm x 3 cm x cavity deep on the left side front of lower part of chest in the anterior axillary line 10 cm below the left nipple. Margins inverted - wound of entry. Blackening, charring and tatooing present around the wound." 18. Doctor Further stated that - In internal examination, it was found that there was fracture of anterior end of 7th and 8th ribs left side. Right lung N.A.D. left lung lacerated at the base, diaphram on the left side was lacerated. Abdominal cavity contains 800 cc of semi clotted blood. Stomach contains 150 cc of semi digested food. Small intestine lacerated at multiple places. Liver and spleen lacerated. Large intestine N.A.D. Cause of death: Shock and haemorrhage as a result of above injuries. Time of death about 3/4 day prior to postmortem. 19. Doctor further stated that the postmortem report was prepared at the time of autopsy which is Exhibit Ka-19. 20. Dr. Agarwal further stated that 25 pellets, one cardboard and one tickli were found from the dead body. The death of the deceased was probably happened at 11:00 p.m. on 12.11.1982. 21. We have heard the learned counsel for the appellants, Shri A.K. Mishra and learned A.G.A., Shri Chandrajeet Yadav for State and gone through the entire evidence very cautiously and consciously. 22. The postmortem report Exhibit Ka-19 coupled with the statement of PW6-Dr. J.K. Goel, PW1-Shri Ram Kishan, PW2-Shri Babu Ram and PW3-Shri Vireshwar, it is proved that death of Shri Krishan was caused by fire arm injury. 22. The postmortem report Exhibit Ka-19 coupled with the statement of PW6-Dr. J.K. Goel, PW1-Shri Ram Kishan, PW2-Shri Babu Ram and PW3-Shri Vireshwar, it is proved that death of Shri Krishan was caused by fire arm injury. It is proved that the death of Shri Shri Krishan was homicidal. This fact was not disputed by the accused-appellant. 23. Learned counsel for the appellant submitted that there was no motive to kill Shri Kishan because the quarrel was said to have taken place in between Shri Ram Kishan and Km. Meera. As per prosecution evidence complainant/PW1 Ram Kishan was present near the spot. In these circumstances accused would not spare complainant. We do not agree with the submission of learned counsel for the appellants because prosecution adduced direct evidence against appellant, hence motive looses its importance. Despite this the prosecution proved that there was a motive to kill Shri Kishan. As per statement of PW1 Shri Ram Kishan when he had heard sound that someone is asking from Shri Kishan (deceased) about him, he woke up and raised an alarm, then witnesses came near to the complainant and they also raised an alarm. In these circumstances accused-persons might have felt that they would fail in their goal and with this anxiety since Shri Kishan entered into argument hence they committed murder of Shri Kishan. Moreover, it is also proved by the prosecution that there was an enmity between the accused/appellants and complainant family, due to which they have committed murder of Shri Kishna. Thus the motive also stand proved by the prosecution. 24. Learned counsel for the appellants submitted that presence of lantern is highly doubtful, that why it is not possible to the prosecution witnesses PW1, 2 and 3 to see the occurrence, identify and recognize the accused-persons. 25. Submission countered by learned A.G.A. and submitted that from the evidence of prosecution witnesses PW1, 2 and 3 coupled with the statement of PW5 Investigator, it is proved beyond doubt that the lanterns were lightening there, and in the light of which the witnesses identified and recognize accused-persons and have seen the incident. 26. 25. Submission countered by learned A.G.A. and submitted that from the evidence of prosecution witnesses PW1, 2 and 3 coupled with the statement of PW5 Investigator, it is proved beyond doubt that the lanterns were lightening there, and in the light of which the witnesses identified and recognize accused-persons and have seen the incident. 26. In view of the rival contention of learned counsel for the parties, we are of the opinion that the factum of lantern was proved beyond any doubt by the prosecution, as per statement of PW1 Shri Ram Kishan and PW3 Shri Vireshwar, a lantern was lightening in the hutment where deceased Shri Krishan was sleeping, and one lantern was also lightening under the thatch where the complainant/PW1 Shri Ram Kishan was sleeping. Moreover, the accused-appellants did not cross examined these PWs on the fact of lantern. Hon'ble The Apex Court opined in case of Mahavir Singh vs. State of Haryana, (2014) 6 SCC 716 that in case the question is not put to the witness in the cross-examination who could furnish explanation on a particular point. The correctness or legality of the said fact could not be raised. In this way, it is proved that there were two lanterns in which one was lighting in the hutment and one was under the thatch. Learned counsel for the appellants drew our attention towards the statement of PW5 Investigator who admitted in his deposition that he has not found lantern hanging in the hutment or under the thatch, where deceased and complainant were sleeping. We are afraid to accept the submission of learned counsel for the appellants because PW5 never said that he has not found lantern, which were alleged to have been lighting according to the complainant and other two eye witnesses. He said that he has not found these lanterns hanging, where it were said. Thus it is only the difference of expression of the witnesses. These lanterns might be kept under hanger (khunti), but these lanterns were found by PW5 Investigator in the hutment and thatch respectively. PW1, 2 and 3 are the rustics and were familiar with the accused-persons who are the resident of Village and one accused Raghubir is the resident of Village Gaglai and is the brother-in-law of the accused Pratap and the frequent visit of accused/appellant Raghubir to Village Ghariya could not be overruled. PW1, 2 and 3 are the rustics and were familiar with the accused-persons who are the resident of Village and one accused Raghubir is the resident of Village Gaglai and is the brother-in-law of the accused Pratap and the frequent visit of accused/appellant Raghubir to Village Ghariya could not be overruled. In these circumstances accused Raghubir would be very well familiar to these witnesses of fact. Moreover, if the accused appellant can identify there victim in the dark of night then why victim and witnesses can not identify the assailants in the dark of night. The Hon'ble Apex Court in the case of Ram Gulam Chaudhary vs. State of Bihar, 2001 (2) J.I.C. 986 (SC) and Kalika Tiwari vs. State of Bihar, JT 1997 (4) SC 405 opined that rustics are used to see in the light of torch and earthen lamps in Village. Their seeing capacity could not be compared with the resident of a city who are used to see in the florescent light. In the circumstances, if the witnesses had seen and identified the accused/appellants who committed crime in the light of lantern then it could not be an unusual incident. 27. Prosecution witnesses PW1-Shri Ram Kishan, PW2-Shri Babu Ram and PW3-Shri Vireshwar unequivocally proved by their evidence that there was lantern hanging and lighting in the hutment, where deceased Shri Krishan was sleeping, and where the accused/appellants committed murder, in the light of lantern they have seen entire incident of murder. Thus there is nothing on record which indicate that there was no lantern lighting in the hutment where the deceased was sleeping and in the thatch where the complainant PW1 Shri Ram Kishan was sleeping at the time of the incident. 28. Learned counsel for the appellants further submitted that no independent witness was examined, though they were available, but prosecution withhold them. All three facts witnesses who have been examined are the inimical, relative and partisan witnesses. That's why the statement of all these three witnesses could not be relied and the appellants could not be hold guilty. 29. The submission countered by learned A.G.A. and submitted that the prosecution examined three witnesses of facts and there were no need to examine more witnesses on the same facts. That's why the statement of all these three witnesses could not be relied and the appellants could not be hold guilty. 29. The submission countered by learned A.G.A. and submitted that the prosecution examined three witnesses of facts and there were no need to examine more witnesses on the same facts. Moreover, PW1 proved that other witnesses viz Naipal Singh and Nawab Singh have been won over by the accused/appellants and they were not prepared to support the prosecution that's why they were not examined. 30. We do not find any substance in the submission of learned counsel for the appellants. True there might be enmity and party bandi along with the witnesses of facts and appellants despite of this fact the statement of PW1, 2 and 3 are believable because they have supported prosecution version right from beginning to the last. In the case of Dilawar Singh vs. State of Haryana, (2015) 1 SCC 737 and Dhari vs. State of U.P. AIR 2013 SC 308 Hon'ble Apex Court opined that enmity of witnesses with the accused cannot be a ground to reject their testimony and If after scrutiny, the testimony of witnesses is found reliable the accused could be hold guilty. PW1 Shri Ram Kishan stated in F.I.R. that prior to this incident in the month of phagun when he was reaping fodder (grass) for the cattle on the boundary of his field, where daughter of Jagannath (brother of accused Prakash) was harvesting barley (bejhar) Ms. Meera objected reaping of fodder and there occurred a quarrel between Ram Kishan and Ms. Meera. Ms. Meera hurled abuses on Ram Kishan whereupon complainant slapped her, after that she complained to his father, who came at the house of complainant with accused Pratap and Prakash and threatened to the father of complainant to kill his son. Thus the enmity between the parties is proved. In these circumstances we have scrutinized the statement of PW1, 2 and 3 very cautiously and consciously and found nothing which indicate that the statement of these witnesses of facts are tainted and not reliable. 31. Thus the enmity between the parties is proved. In these circumstances we have scrutinized the statement of PW1, 2 and 3 very cautiously and consciously and found nothing which indicate that the statement of these witnesses of facts are tainted and not reliable. 31. PW1, 2 and 3 unerringly proved this fact that they have seen that accused Pratap and Prakash were pressing Shri Kishan on the cot in the night at about 11:00 p.m. and accused Raghubir was standing beside the cot and when the alarm was raised by these witnesses with other Villagers, accused Raghubir shot fire upon Shri Kishan with fire arm and all the three accused ran away from the spot. It is proved by these three witnesses that they alongwith other villagers chased accused-persons up to some distance but due to fear they have come back in the hutment where they found that Shri Kishan had already died. Thereafter witnesses Naipal Singh and Vireshwar with the help of other villagers put off the dead body with rug from the cot and kept it on the plateform (chabutra) adjoining to hutment. Thus if the prosecution did not examined the independent witnesses, which were available, then it cannot be the ground for discarding the evidence of PW1, 2 and 3. Non examination of independent witness will not demolish the case of prosecution. 32. Learned counsel for the appellants submitted that there is delay in lodging the F.I.R. and it is anti-timed also. 33. Learned A.G.A. submitted that F.I.R. neither delayed nor anti-timed rather it is prompt. 34. In the rival submissions of the parties, we have revisit the entire oral and documentary evidence and find that there is no delay in lodging the F.I.R. because the place of incident is about three miles away from the Police Station. There was night and one Shri Krishan was murdered by causing fire arm injury and when accused-persons were fleeing from the spot they have been brandishing country-made pistol then it is quite natural that the complainant did not proceed in the night for the Police Station under the cloud of fear. In the morning he scribed F.I.R. and proceeded for Police Station at about 05:30 a.m. from his residence and reached at the Police Station at about 06:30 a.m. where he submitted hand-written F.I.R. Exhibit Ka-1, in pursuance of which formal F.I.R. Exhibit Ka-2 was recorded. In the morning he scribed F.I.R. and proceeded for Police Station at about 05:30 a.m. from his residence and reached at the Police Station at about 06:30 a.m. where he submitted hand-written F.I.R. Exhibit Ka-1, in pursuance of which formal F.I.R. Exhibit Ka-2 was recorded. The explanation given by PW1 regarding the recording of F.I.R. on 13.11.1982 at morning is trustworthy. In these circumstances F.I.R. is lodged promptly. 35. The Submission of anti-timed F.I.R. is also not tenable because there is nothing on record which indicate that the F.I.R. was recorded after investigation started. PW5 I.O. stated on oath that he reached at the place of incident on 13.11.1982 at about 07:00 a.m. PW1/complainant Shri Ram Kishan also stated that when he came back at the spot from the Police Station, police was present at the spot. PW5 I.O. stated on oath that he came at spot from the Police Station with Jeep but the appellants did not cross-examined PW1 that by which means he came back at the spot from the Police Station. PW1 stated on oath that he had gone to Police Station on foot. In these circumstances it could be presumed that he came back on foot to the place of incident from the Police Station after lodging F.I.R. In these circumstances, the submission made by learned counsel for the appellants have no force, thus the F.I.R. is prompt one and is not an anti-timed document. 36. Learned counsel for the appellants further submitted that PW3 Shri Vireshwar admitted in his deposition that when he had heard an alarm raised by Ram Kishan, he was sleeping in his locked house. Thus it is evident that this witness had never seen the occurrence and his entire evidence is false. 37. Learned A.G.A. submitted that PW3 Shri Vireshwar has stated that his house is adjacent to the house of witness Shri Babu Ram and when he heard an alarm raised by the complainant, he came at spot by jumping the boundary wall which is about 3 to 4 feet high, thus there is nothing unusual in the statement of PW3. 38. Learned A.G.A. submitted that PW3 Shri Vireshwar has stated that his house is adjacent to the house of witness Shri Babu Ram and when he heard an alarm raised by the complainant, he came at spot by jumping the boundary wall which is about 3 to 4 feet high, thus there is nothing unusual in the statement of PW3. 38. We find force in the arguments of learned A.G.A. after perusal of the statement of PW3 Shri Vireshwar we are of the opinion that there is nothing unusual in the conduct and statement of PW3 Shri Vireshwar who deposed on oath that when he heard an alarm raised by PW1 he came at the spot, where Shri Ram Kishan was, by jumping the boundary wall and he had not tried to open the lock which was put on the door of the boundary. Thus the statement of PW3 is wholly reliable and there is nothing untoward and it might not be said that the statement of PW3 is unusual or liable to be disbelieved. 39. In view of the above discussions, we are of the opinion that the statement of PW1 Shri Ram Kishan, PW2 Shri Babu Ram and PW3 Shri Vireshwar are in conformity and in consonance and there is no infirmity right from beginning to the end. The statement of these witnesses coupled with statement of PW6 Dr. S.C. Agrawal are believable and on relying these witness learned IVth Additional Sessions Judge rightly held guilty to appellants/accused. The judgment of learned Additional Sessions Judge is well reasoned and there is nothing wrong in it. The appeal is devoid of merit and liable to be rejected. Appellants Pratap and Raghubir have died and appeal filed by them already stood abated. 40. Consequently, appeal of appellant Prakash is hereby dismissed. The judgment and order of learned IVth Additional Sessions Judge, Mainpuri under challenge is hereby confirmed. If the appellants are on bail, they be taken into custody forthwith to serve out remaining period of sentence. 41. Let the judgment be notified to learned IVth Additional Sessions Judge within 15 days for compliance. Learned Sessions Judge submit report of compliance within 30 days thereafter.