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2017 DIGILAW 166 (ALL)

MOHAR SINGH v. STATE OF U. P.

2017-01-12

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

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JUDGMENT : (Delivered by Hon'ble Bala Krisnha Narayana, J.) 1. Heard Sri U.B.Singh, Amicus Curiae on behalf of the appellant and Sri A.N. Mulla, Sri J.K. Upadhyay, Km. Meena, Learned AGAs, Mrs. Manju Thakur, brief holder for the State. 2. This criminal appeal has been filed by the accused appellant Mohar Singh against the judgment and order dated 11.03.1988 passed by IIIrd Additional District & Sessions Judge, Agra in Sessions Trial No. 116 of 1987 (State Vs. Mohar Singh) arising out of case crime no. 182 of 1986 under Section 302 IPC, P.S. Etmadpur, District Agra by which he has been convicted and sentenced to imprisonment for life under Section 302 IPC. 3. According to the prosecution story, the accused in the night of 22/23.06.1986 at about 2 A.M. at Garhi Jori, hamlet of Pachokhar, within the limits of police station Etmadpur, district Agra, committed murder of his wife Smt. Har Bheji. The accused along with his wife and children had gone on 22.06.1986 to the house of his brother-in-law (Sadhu) Jugraj Singh in Garhi Jori and had reached there at about 6.00 P.M.. After taking food, they went to sleep on the roof of the house. The inmates of the house including Jugraj and his brothers and their family members were also sleeping on the roof of the house. Mohar Singh was suspicious about the character of his wife and apprehended that she wanted to get him killed. At about 2.00 A.M., Mohar Singh brought his wife down stairs and after opening the door of the house took an axe and attacked Smt. Har Bheji. She raised alarm, on hearing of which Jugraj, his elder brother Gopi Ram and his son Mahesh and villagers came there. Mohar Singh further gave axe blows in their presence as a result of which she fell down. Jugraj and others apprehended Mohar Singh and took the axe from his possession. Ram Prasad was sent to inform the police who brought Ramadhar Constable and Niranjan Lal and Natthi Lal, Home Guards personnel who were on patrolling duty at Pachokhar. The accused appellant along with the axe was handed over to the police. Oral report was lodged by Jugraj Singh at the police station Etmadpur on 23.06.1986 at 7.30 A.M. 4. Ram Prasad was sent to inform the police who brought Ramadhar Constable and Niranjan Lal and Natthi Lal, Home Guards personnel who were on patrolling duty at Pachokhar. The accused appellant along with the axe was handed over to the police. Oral report was lodged by Jugraj Singh at the police station Etmadpur on 23.06.1986 at 7.30 A.M. 4. Head Constable Sadabehari PW-5 who was posted at the police station Etmadpur on 23.06.1986 prepared the check report at the dictation of Jugraj and proved it as Ext.Ka-1. He also registered the case in the G.D.at Rapat No. 16 at the same time and proved its copy Ext.Ka-3. The axe was taken into possession and Recovery Memo Ext.Ka-2 was prepared at the police station Etmadpur. The investigation of the case was entrusted to S.I. Sri M.S.Mirza PW-7. He interrogated the complainant, Head Moharrir and the accused. He inspected the place of the occurrence and prepared the site-plan Ext.Ka-5. He took the blood stained and plain earth from the place of the occurrence and prepared its recovery memo Ext.Ka-6. He also prepared the Panchayatname Ext.Ka-7 and the connected papers, photo lash, Ext.Ka-8, challan memo Ext.Ka-9, letter to Chief Medical Officer Ext.Ka-10, letter to Chief Medical Officer for sealing the clothes of the deceased Ext.Ka-11. The dead body was sent for post-mortem and was taken by constable Yogendra Singh and Abdul Samad. Yogendra Singh P.W.-3 filed his affidavit stating therein that the dead body was taken to Firozabad Medical Hospital in a sealed condition and after post-mortem, it was handed over to the family members of the deceased. The post mortem was performed by Dr. R.Shukla. The learned counsel for the accused-appellant has not disputed the genuineness of the post mortem report which is on record as Ext.Ka-12. He also interrogated the witnesses Gopi Ram, Mahesh, Ram Prasad, Raja Ram on 23.06.1986 and the witnesses of the inquest report on 25.06.1986. After 25.06.1986, the case was investigated by PW-6 S.I. Sri Vishwapal Singh. 5. P.W.-6 Sri Vishwapal Singh was posted as S.H.O., police station Etmadpur, district Agra in June, 1986. He started investigation of the case on 09.07.1986 and interrogated Ameer Chand, Constable Rama Dhar, Natthi Lal and Chiranji Lal. After completing the investigation, he submitted the charge sheet Ext.Ka-4 against the accused on 10.07.1986. 6. 5. P.W.-6 Sri Vishwapal Singh was posted as S.H.O., police station Etmadpur, district Agra in June, 1986. He started investigation of the case on 09.07.1986 and interrogated Ameer Chand, Constable Rama Dhar, Natthi Lal and Chiranji Lal. After completing the investigation, he submitted the charge sheet Ext.Ka-4 against the accused on 10.07.1986. 6. The accused appellant was committed for trial to the court of Sessions by the Munsif Maigstrate, III, Lower Criminal Court, Agra vide order dated 23.02.1987. The accused was charged under Section 302 IPC. He pleaded not guilty and claimed trial. 7. In support of its case, prosecution led evidence and examined Jugraj Singh, PW-1, Gopi Ram PW-2 as eye witnesses PW-3 Yogendra Singh and Rama Dhar PW-4, Constable who had arrested the accused appellant, PW-5 Head Constable Sadabihar who had prepared the chick FIR and prepared the G.D.entry vide Rapat No. 16 at 7.30 A.M. dated 23.06.1986 and proved the same Ext. Ka-1 and Ext. Ka-3, PW-6 Vishwapal Singh and PW-7 Mohd. Sartaj, the two Investigating Officers in this case as formal witnesses. 8. The accused appellant was examined under Section 313 Cr.P.C.. According to him, he had not come to village Garhi Jori on 22.06.1986 at 6.00 p.m. with his wife. But his wife had illicit relations with Jugraj and she had come alone to Garhi Jori and when he reached there in search of his wife in the morning Jugraj got him arrested by the police. When he went to lodge the report, he was detained. The police inspector asked him to get Chandan, a bad element, of his village, arrested otherwise he (accused-appellant) would be implicated. He did not promise to get the Chandan arrested and, therefore, he was falsely implicated and later on Chandan was killed by the police in an encounter. He has also stated that 'JUGRAJ NE MERI AURAT KO GAYAB KAR DIYA TATHA MERE KHILAF GALAT REPORT KAR DEE HAI'. The accused-appellant did not adduce any evidence in defense. The post mortem report Ext.Ka-12 shows that Smt. Har Bheji was about 30 years old and had died about 1-1/2 day prior to the post mortem. The following ante mortem injuries were present on her body :- (1) Incised wound 3 cm x 1 cm x bone deep, 7.5 cm above the nose bridge. Margins clear out. The post mortem report Ext.Ka-12 shows that Smt. Har Bheji was about 30 years old and had died about 1-1/2 day prior to the post mortem. The following ante mortem injuries were present on her body :- (1) Incised wound 3 cm x 1 cm x bone deep, 7.5 cm above the nose bridge. Margins clear out. (2) Incised wound 8 cm x 3 cm x muscle deep just below the margin of right mandible outer angle, sharp with margins clean cut at places and ragged at places obliquely placed. (3) Incised wound 7.5 cm x 2 cm x 4 cm on front of neck crossing mid line transversely placed. Margins clean out at places. This injury was 5 cm above supra stornal notch. According to the doctor the death of the deceased Smt. Har Bheji was caused due to shock and haemorrhage as a result of ante- mortem injuries. 9. Learned Additional District & Sessions Judge, Agra after considering the submissions made by learned counsel for the accused-appellant and the evidence on record convicted him under Section 302 IPC and awarded him the aforesaid sentence. 10. Sri U.B.Singh, amicus curiae appearing on behalf of the accused-appellant submitted that there is some inconsistency in the statements of the two witnesses of fact PW-1 Jugraj and PW-2 Gopi Ram with regard to the number of axe blows delivered by the accused in their presence at the place of incident. He further submitted that deceased Har Bheji was a lady of easy virtue and had illicit relation with Jugraj who after committing her murder had falsely implicated the accused, when he came to his house in search of his wife Har Bheji in the morning after she had gone missing from his house with the collusion of the police. He next submitted that both the witnesses of fact examined on behalf of the prosecution to prove its case against the accused-appellant are highly interested and unreliable witnesses, both being real brothers and very much interested in seeing the accused-appellant convicted for having allegedly committed the murder of his wife. The post mortem report in this case was not proved in this case in accordance with law. The post mortem was performed on 24.06.1986 at 12.15 P.M. In this case, the prosecution did not produced the axe, clothes of the deceased and blood stained and plain earth. The post mortem report in this case was not proved in this case in accordance with law. The post mortem was performed on 24.06.1986 at 12.15 P.M. In this case, the prosecution did not produced the axe, clothes of the deceased and blood stained and plain earth. He lastly submitted that the incident having taken place in the night and there being no source of light at the place of occurrence, the two eye witnesses of the incident produced by the prosecution for proving its charge against accused-appellant being highly unreliable, the recorded conviction of the appellant and the sentence awarded to him on the basis of their evidence cannot be sustained. The impugned judgment is bad in law and suffers from errors of fact and law which are apparent on the face of record cannot be sustained and are liable to be sustained. 11. Per contra Sri A.N.Mulla learned AGA appearing on behalf of the State submitted that the prosecution case stood fully established from the unimpeachable and reliable testimony of PW-1 and PW-2 which stood fully corroborated from the medical evidence on record. It is settled law that if the eye-witnesses are found to be reliable, mere weakness in the investigation or faulty investigation, cannot be a ground to reject their testimony. The recorded conviction of the accused-appellant is based upon cogent evidence and the sentence awarded to him is supported by relevant consideration. The impugned judgment and order does not suffer from any illegality, infirmity or perversity requiring any interference by this Court. 12. We have heard learned counsel for the parties and perused the material brought on record. 13. Before proceeding to appraise the testimony of the two witnesses of fact produced on behalf of the prosecution, we consider it proper to first deal with the objection raised by the learned counsel for the accused-appellant that the evidence of PW-1 and PW-2 is liable to be discarded on the ground of their being close relatives of the deceased. 14. On the point of interested witnesses, the Hon'ble Supreme Court in State of U.P. v. Jagdeo 2003 Crl LJ 844 (SC), observed that only on the ground of interested or related witnesses, their evidence cannot be discarded. 14. On the point of interested witnesses, the Hon'ble Supreme Court in State of U.P. v. Jagdeo 2003 Crl LJ 844 (SC), observed that only on the ground of interested or related witnesses, their evidence cannot be discarded. Most of the times eye-witnesses happen to be family members or close associates because unless a crime is committed near a public place, strangers are not likely to be present at the time of occurrence. 15. In Mst. Dalbir Kaur v. State of Punjab 1976 Cr LJ 418(SC) following observations were made: Interested witness:- Relatives who are natural witnesses are not interested witnesses and their testimony can be relied upon. (i)The term 'interested' postulates that the person concerned must have some direct interest in seeing that the accused is somehow or the other is convicted either because he had some animus with the accused or the some other reason. In the reported case the incident took place at mid night inside the house, the only natural witnesses who could be present to see the assault were the persons present in the house at that time. No outsider can be expected to have come at that time because the attack was sudden. Moreover a close relative who is very natural witness cannot be regarded as an interested witness. 16. Regarding evidentiary value of testimony of the interested or relatives witnesses, Hon'ble Supreme Court in Mano Dutt and another v. State of U.P. 2012 (77) ACC 2009, has observed in paragraph No. 19 referring to the case of Namdeo v. State of Maharashtra 2007 (58) ACC 414 (52) = 2007 (54) AIC 162, that this Court drew a clear distance between a chance witness and a natural witness. Both these witnesses have to be relied upon subject to their evidence being trustworthy and admissible in accordance with law. 17. Hon'ble Supreme Court in Waman and others v. State of Maharashtra 2011 Crl. LJ 4827 has observed in paragraph No. 9 which reads as follows : "In Balraje @ Trimbak v. State of Maharashtra 2010 (70) ACC 12 (SC) = 2010 (90) AIC 32. this Court held that mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. LJ 4827 has observed in paragraph No. 9 which reads as follows : "In Balraje @ Trimbak v. State of Maharashtra 2010 (70) ACC 12 (SC) = 2010 (90) AIC 32. this Court held that mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eye witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed toward the accused. After saying so, this Court held that if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same." 18. It has been further observed in Waman (supra) that relationship cannot be a factor to affect the credibility of a witness. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case, the defence has to lay foundation if plea of false implication is made and the Court has to analyse evidence of related witnesses carefully to find out whether it is cogent and credible. The same view has been reiterated in State of U.P. V. Naresh and others 2011 (75) ACC 215 (SC) = 2011 (106) AIC 76 (SC). 19. Thus the principle which is culled out from the reading of the aforesaid law reports is that the mere fact that the witnesses are related to the deceased or are inimically disposed towards the accused, cannot be a ground to discard their evidence, if after careful analysis and scrutiny of their evidence version given by the witnesses appears to be clear, cogent and credible. 20. We now proceed to scrutinize the evidence of two eye witnesses produced on behalf of the prosecution to prove the charge framed against the accused-appellant on the touch stone of the aforesaid principle. 21. 20. We now proceed to scrutinize the evidence of two eye witnesses produced on behalf of the prosecution to prove the charge framed against the accused-appellant on the touch stone of the aforesaid principle. 21. According to the learned counsel for the accused-appellant the accused-appellant intentionally killed his wife as he suspected her character and got him falsely implicated in the case. This fact is not disputed that Smt. Har Bheji was killed in the house of Jug Raj in Garhi Jori and she received 3 cut wounds in the region of her neck and fore-head. The time of her death has also not been disputed. Therefore, it is established that Smt. Har Bheji was killed by inflicting injuries on her in the night of 22/23-6-86 at about 2 A.M. in the house of Jug Raj in Garhi Jori. 22. Now it has to be seen if these injuries were caused by the accused. In order to substantiate this fact, the prosecution has examined two eye witnesses, Jug Raj Singh and his brother Gopi Ram. According to Jug Raj, P.W.1, accused Mohar Singh is his Sadhu. He along with his wife, one son and one daughter had come to his house and stayed with him. They were sleeping on roof when at about 1-2 A.M. Mohar Singh brought down his wife Smt. Har Bheji. He also came downstairs, on hearing the alarms raised by Smt. Har Bheji. Gopi Ram, Mahesh, Ram Prasad followed him. The accused gave two axe blows in his presence to Smt. Har Bheji before he could be over-powered. Ram Prasad was sent to inform the police and he came back with one constable and two Home Guards who were on patrolling duty and Mohar Singh was given in their custody. He proved the report lodged by him and the Fard of the axe. In cross-examination, he has stated that Mohar Singh had told him several times that his wife Smt. Har Bheji was of bad character and, therefore, he wrote in the report that Mohar Singh was suspicious about her character. There are four rooms in his house. The roofs are joint. All the family members were sleeping on the roofs. His brother and their family members were also sleeping on the roofs as it was summer season. Gopi Ram and Mahesh were also sleeping on the roof. There are four rooms in his house. The roofs are joint. All the family members were sleeping on the roofs. His brother and their family members were also sleeping on the roofs as it was summer season. Gopi Ram and Mahesh were also sleeping on the roof. When the accused took Smt. Har Bheji downstairs, he was awakened. First of all Mahesh reached downstairs and then Gopi Ram and then he reached there. Mahesh is son of Gopi Ram. When he reached there, Smt. Har Bheji was lying on the ground and the accused gave her one axe blow in his presence. At that time it was moon-lit night but no lantern or torch was burning. Several people had gathered after the incident. Prior to the incident Smt. Har Bheji used to come to his house. The husband and wife were on cordial terms. Once or twice Smt. Har Bheji had come alone to his house. He denied the suggestion that Smt. Har Bheji had come alone on the date of the incident. He also denied that he had illicit relations with Smt. Har Bheji. He also denied that Sri Mohar Singh came in search of Smt. Har Bheji in the morning and then he was arrested. No suggestion was given to him that he was responsible for the murder of Smt. Har Bheji. 23. The learned counsel for the accused also argued that Smt. Har Bheji was a lady of easy virtues and had illicit relations with Jug Raj and Jug Raj was responsible for her murder and the accused was falsely implicated by him when he came in her search in the morning. But again this contention is not substantiated from the evidence on record. Jug Raj has definitely stated that he had no illicit relations with Smt. Har Bheji. Gopi Ram has also stated that there was no quarrel between the wife of Jug Raj and Smt. Har Bheji. The fact that Smt. Har Bheji had come alone to the house of Jug Raj once or twice prior to the incident, cannot be relied upon to conclude that Jug Raj had illicit relations with Smt. Har Bheji. Therefore, there is no definite evidence about their being illicit relations between Smt. Har Bheji and Jug Raj. The fact that Smt. Har Bheji had come alone to the house of Jug Raj once or twice prior to the incident, cannot be relied upon to conclude that Jug Raj had illicit relations with Smt. Har Bheji. Therefore, there is no definite evidence about their being illicit relations between Smt. Har Bheji and Jug Raj. At least, the accused was not sure about their illicit relations, if any, otherwise, he would not have come with his wife to the house of Jug Raj, on the date of the incident. The contention of the accused appellant that he had come in search of his wife in the morning and that he was got arrested by Jug Raj, cannot be accepted in view of the statement of Rama Dhar P.W.4 who has stated that at about 3 A.M., he and two home guards were at Pachokhar, when Ram Prasad came to them and took them to the village, where they reached at about 3.30 A.M. and accused Mohar Singh was given in their custody. The statement of this witness supports the prosecution case and the defence theory that Mohar Singh was arrested in the morning when he had gone in search of his wife, cannot be accepted. Moreover, had Smt. Har Bheji gone alone in the evening to the house of Jug Raj and if Jug Raj had illicit relations with her, he would have enjoyed the company of Smt. Har Bheji instead of getting her killed. 24. After very carefully analyzing and scrutinizing the evidence of PW-1 and PW-2, we find that the version given by them appears to be clear, cogent and trustworthy. We do not find any reason to discard their testimony on the ground of their being either close relatives of the deceased or inimically disposed towards the accused. 25. The ocular version in this case finds full corroboration from the medical evidence on record. Record shows that the post mortem report of the deceased in this case was marked as Ext. Ka-12 after learned counsel for the accused had made an endorsement thereon that he did not dispute it's genuineness. Thus non examination of the doctor who had conducted the post mortem on the dead body of the deceased, would not adversely affect the prosecution case. Ka-12 after learned counsel for the accused had made an endorsement thereon that he did not dispute it's genuineness. Thus non examination of the doctor who had conducted the post mortem on the dead body of the deceased, would not adversely affect the prosecution case. Similarly, failure of the Investigating Officer to produce the axe, blood stained clothes of the deceased and plain and blood stained earth is merely an irregularity on his part which in our opinion, will not discredit the prosecution case as every case has to be decided on it's intrinsic evidence. If the eye witnesses are believable, as we have already held in this case, mere weakness in the investigation or faulty investigation cannot be a ground to reject their testimony. 26. We stand fortified in our view by the following of the judgment delivered by full bench of this Court in the case of Gopal Vs. State of U.P. reported in 1999 (39) ACC :- 12. At the very outset, we want to say that it is very easy to find fault with anything. Even accurate computers are prone to commit faults and mistakes. Not only this, human mind cannot be read. Sometimes it works in the direction that it becomes adamant to help one party and tries its level best to spoil the case. It is well known, at least by the police officers, who investigate the case, also know that they should take prompt action and should immediately record the statement of the witnesses. They should not make cuttings and over-writings etc. in the police papers so as to create suspicion about the sanctity of the papers. They should fairly prepare the inquest report and police papers and should write the case diary with accuracy and correctly. These propositions of law and facts cannot be doubted. But if the police officers deliberately sleep over the matter, try to spoil the case and do not record the evidence of the witnesses immediately, the poor dead persons who have been killed cannot come out to say why you are spoiling the case. The bereaved family and the witnesses have only to remain silent spectators to what the police officers do. If they intervene, a judicial notice of the fact can be taken that they are humiliated, even beaten and implicated in false cases. Fear of police atrocities keeps them mum. The bereaved family and the witnesses have only to remain silent spectators to what the police officers do. If they intervene, a judicial notice of the fact can be taken that they are humiliated, even beaten and implicated in false cases. Fear of police atrocities keeps them mum. They are also ignorant of the fact that what shall be the effect of delay and discrepancy. Therefore, also, they have nothing to intervene with the investigation. In our view, investigation of the case, if faulty, even mischievous or collusive should not be a ground to reject the ocular testimony of the informant who lodged the F.I.R. promptly. If the FIR is recorded soon, or is recorded after four or five hours, why should the prosecution or the persons who have died 'suffer. Each and every case has to be decided on its intrinsic evidence. If the eye-witnesses are believable the mere weakness of the investigation should not be a ground to reject their testimonies. Our brother Sri B.K. Sharma, J. looked into the entire case in this light ignoring the bare facts that the witnesses and the deceased were helpless if the police did not act properly. 27. Another ground on which the learned counsel for the accused-appellant has castigated the prosecution story is that the incident had taken place in the night and there being no evidence of any source of light at the place of occurrence, it was not possible for the PW-1 and PW-2 to have identified the culprit who had committed the crime and hence no reliance can be placed on their evidence for proving the culpability of the accused-appellant. There is no merit in the aforesaid ground of challenge also. Both the witnesses have deposed that it was a moonlit night when the occurrence had taken place. The aforesaid statement of fact made by PW-1 and PW-2 before the trial court was not challenged by the defense. Further the accused-appellant was not only previously known to both the accused but he was also their close relative and hence it was quite natural for them to have identified the accused-appellant in the moon light. Moreover the accused-appellant was apprehended on the spot with the crime weapon and given to the custody of the police constable PW-1 and two home guards. 28. Moreover the accused-appellant was apprehended on the spot with the crime weapon and given to the custody of the police constable PW-1 and two home guards. 28. Thus, upon a wholesome appraisal and scrutiny of the evidence on record, both oral as well as documentary, we come to the conclusion that the prosecution has been successful in establishing that Smt. Har Bheji was killed by the accused-appellant in the night of 22/23-6-1986 at about 2 A.M. She was attacked with an axe and she received injuries as a result of which she died on the spot. The eye witnesses are wholly reliable and there is no reason to disbelieve their evidence. The trial judge did not commit any illegality or infirmity in convicting the appellant under Section 302 IPC for having committed the murder of his wife and in awarding life sentence to him. 29. The impugned judgment and order dated 11.03.1988 passed by IIIrd Additional District & Sessions Judge, Agra in Sessions Trial No. 116 of 1987 under Section 302 IPC, P.S. Etmadpur, District Agra do not require any interference by this Court. This appeal lacks merit and is accordingly dismissed. 30. There shall however be no order as to costs.