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2017 DIGILAW 1712 (ALL)

UMESH CHAUHAN v. STATE OF U. P.

2017-07-24

BHARAT BHUSHAN, SHAILENDRA KUMAR AGARWAL

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JUDGMENT : Bharat Bhushan, J. 1. Appellant Umesh Chauhan has filed Crl. Appeal No.5021 of 2004, while Crl. Appeal No.4806 of 2004 has been filed by three appellants, namely, Ballu Jatav @ Kallu, Shakil and Arvind. All appellants have assailed the judgment and order dated 14.9.2004 passed by the Additional Sessions Judge,(Fast Track Court No.1) in Sessions Trial No.301 of 1999 (State Vs. Ballu @ Kallu and others) arising out of Crime No.466 of 1999 Police Station (P.S.) Maudarwaja, District Farrukhabad whereby appellant Umesh Chauhan was convicted under Section 302 of Indian Penal Code (IPC) and sentenced to life imprisonment and fine of Rs.500/- with default stipulation. Remaining appellants, namely, Ballu Jatav @ Kallu, Shakil and Arvind were convicted under Section 302 read with Section 149 IPC and sentenced to life imprisonment and fine of Rs.500/- with default stipulation. All appellants were further convicted to punishment of one year each under Sections 147 and 148 IPC. All sentences were ordered to run concurrently. 2. Co-accused Dinesh died during course of trial, therefore, criminal case against him stood abated even during the trial. Appellant Shakil also died during pendency of this appeal, therefore, appeal filed on his behalf also stand abated. This Court is now concerned only with the appeal of appellants Umesh Chauhan, Ballu Jatav @ Kallu and Arvind. 3. Prosecution story in brief is that appellant Umesh Chauhan etc. extorted Rs.10/- from deceased Munna on 25.5.1999 for consumption of alcohol despite his protest. Next day deceased Munna demanded the return of his money citing his poverty but appellant Umesh Chauhan reportedly abused him and also threw him out. 4. It is said that on 26.5.1999 at about 11 am. deceased Munna was returning back to his home from market. As soon as he came to the 'Burawali lane', he was accosted by appellant Umesh Chauhan, Ballu @ Kallu, Dinesh Chauhan (subsequently died) and Shakil (subsequently died). The deceased Munna was surrounded on the road in the main market. All accused appellants were brandishing and waving knives which created a sense of dread in the market. Most of the shopkeepers stampeded from their shops. Other accused persons caught deceased Munna while appellant Umesh Chauhan stabbed him in his stomach. The incident was reportedly witnessed by P.W. 1 Raju (informant), P.W. 2 Ravi Mohd. and More Ali Etc. Deceased Munna fell down on the road disrupting normal functioning of the market. Most of the shopkeepers stampeded from their shops. Other accused persons caught deceased Munna while appellant Umesh Chauhan stabbed him in his stomach. The incident was reportedly witnessed by P.W. 1 Raju (informant), P.W. 2 Ravi Mohd. and More Ali Etc. Deceased Munna fell down on the road disrupting normal functioning of the market. 5. P.W. 1 Raju (informant) took his injured brother Munna on the rickshaw to Kotwali Farrukhabad which was located merely one furlong away from the place of occurrence and lodged FIR (Ext. Ka-1) at Kotwali, at 11:35 am. i.e. within 35 minutes of the incident. This report was scribed by one Rajesh S/o Suresh Singh who was already present in police station in some other context. Injured Munna was sent to Ram Manohar Lohia Hospital, Farrukhabad. Subsequently, injured died due to single stab wound sustained in the stomach as opined by P.W.3 Dr. Saket Mohan Singh who conducted postmortem on 27.5.1999 and found following ante-mortem injuries: "(i) Incised wound 9 cm.x2.5 cmx abdomen cavity deep in part of abdomen near mid line on right side 5 cm. below umbilicus margins clean and tailing right side spindle sharp wound. On dissection both intestine and peritoneal cut. Cavity full of blood with fecal matter mixed. (ii) Abrasion 6x2 cm. in front of left knee. (iii) Abrasion 3x2 cm. in front of left leg upper 1/3rd (iv) Abrasion 2x0.5 outside right leg. (v) Abrasion 1.5x 1 cm. on outside of right ankle." 6. The FIR was converted from Section 307 IPC to Section 302 IPC. Inquest proceedings were conducted. Inquest report is available on record as Ext. Ka-8. On receipt of information of the incident and after lodging of the FIR, chik report (Ext. Ka-5) was carved out and relevant entries were made in general diary (G.D.) of concerned police station, extract of which is available on record as Ext. Ka-6. As stated earlier, deceased succumbed to injuries on the same day in Ram Manohar Lohia Hospital, Farrukhabad, therefore, the case was converted under Section 302 IPC and again relevant entries were made in G.D. of concerned P.S., extract of which is also available as Ext. Ka-7. The case was investigated by P.W.4 Sub Inspector (S.I.) Baleshwar Singh who prepared site plan (Ext. Ka-3) and recorded statements of various witnesses and thereafter submitted a charge sheet (Ext. Ka-7. The case was investigated by P.W.4 Sub Inspector (S.I.) Baleshwar Singh who prepared site plan (Ext. Ka-3) and recorded statements of various witnesses and thereafter submitted a charge sheet (Ext. Ka-4) against five persons, namely, Umesh Chauhan, Ballu @ Kallu, Dinesh (abated), Shakil (abated) and Arvind. 7. The then Sessions Judge, Farrukhabad framed charges against appellant Umesh Chauhan under Sections 147, 148 and 302 IPC on 16.11.1999. On the same day, charges were also framed against appellants Ballu @ Kallu, Arvind, Dinesh (now died) and Shakil (now died) under Sections 147, 148 and 302 read with Section 149 IPC. All accused persons denied charges and preferred trial. 8. Prosecution has adduced the evidence of four witnesses, namely, P.W. 1 Raju (informant) P.W. 2 Ravi Mohd., P.W. 3 Dr. Saket Mohan Singh (conducted autopsy) and P.W. 4 Baleshwar Singh (conducted investigation). The statements of appellants were recorded under Section 313 Cr.P.C. wherein they denied all allegations and claimed false implication on account of previous enmity. On conclusion of trial, the then Additional Sessions Judge, (FTC no.1), Farrukhabad, barring accused Dinesh (abated), convicted and sentenced remaining accused persons as aforesaid vide order dated 14.9.2004. This judgment is under challenge before this Court. 9. Heard Sri N.K. Singh, Advocate for appellant Umesh Chauhan, Sri Rajeev Kumar Singh Parmar for appellants Ballu @ Kallu and Arvind and Sri Rajeev Sharma, leaned A.G.A. on behalf of State. 10. Counsel for appellants have argued that presence of P.W.1 Raju (informant) is not indicated in the FIR; No blood stains were found on the spot, creating doubt about the place of occurrence; all witnesses are related and no witness of vicinity was produced despite the fact that the incident occurred in the main market during day time. Submission is that P.W. 1 Raju was not present on the spot and that his presence has been introduced in order to manufacture the evidence. Claim is that some unknown persons committed the murder of deceased Munna and accused appellants have been falsely implicated. 11. On the contrary, learned A.G.A. has pointed out that FIR was lodged promptly i.e. within 35 minutes of the incident in which the details of crime were vividly described. Medical report is consistent with oral evidence. Claim is that some unknown persons committed the murder of deceased Munna and accused appellants have been falsely implicated. 11. On the contrary, learned A.G.A. has pointed out that FIR was lodged promptly i.e. within 35 minutes of the incident in which the details of crime were vividly described. Medical report is consistent with oral evidence. He has further argued that sole fatal injury was caused by appellant Umesh Chauhan but others are also guilty of offence because of their roles and therefore, remaining appellants have been rightly convicted with the aid of Section 149 IPC. 12. The record reveals that the FIR was lodged promptly i.e. within 35 minutes of the incident at police station which was only one furlong away from the place of occurrence. It is true that no specific averment has been made by P.W. 1 Raju about his presence in FIR but the fact that he lodged the FIR within 35 minutes after getting it scribed by one Rajesh with details, does indicate his presence on the spot. The contents of FIR clearly indicate the contours of entire incident. All the five accused appellants were named in this FIR. The role of appellant Umesh Chauhan as principal attacker, was mentioned in the FIR. The FIR says that only one stab wound was caused by appellant Umesh Chauhan. No exaggerations were made regarding roles attributed to other co-accused. The same story was given by P.W.1 Raju during his testimony. However, the testimony itself is much more detailed on account of intense cross examination. Cumulative examination of contents of FIR does indicate his presence on the spot at the time of incident. 13. It must be understood that 40 years old brother of P.W. 1 Raju, was murdered suddenly in his presence which would naturally create shock and trauma. The contents of FIR itself show that the incident created a dreadful situation in the market. The ordinary citizens present in the market ran away from the spot. In fact shopkeepers also left the market leaving their shops open or half open. The FIR indicates that frightening atmosphere was created in the market due to stated incident. 14. P.W. 1 Raju obviously was more affected than others because deceased Munna was his brother. He immediately took his injured brother to police station located nearby. The scribe Rajesh was already present in the police station. The FIR indicates that frightening atmosphere was created in the market due to stated incident. 14. P.W. 1 Raju obviously was more affected than others because deceased Munna was his brother. He immediately took his injured brother to police station located nearby. The scribe Rajesh was already present in the police station. He reduced the incident in writing. In this scenario, it is not surprising that something is left out of FIR. But careful and complete reading of the contents of FIR establishes the presence of P.W. 1 Raju on the spot. The description of events in the FIR by P.W. 1 Raju does indicate and establish his presence on the spot. We do not think that failure to specifically mention his presence in so many words would rob this FIR any value. In any case, FIR is not a substantive evidence. Its role during trial is limited and we believe that role has been performed reasonably well by prosecution. We do not believe that the FIR can substitute the evidence adduced during the course of trial. 15. The testimony of P.W. 1 Raju (informant) has specified his presence during the incident. He has specified that initially they left their residence almost together. His deceased brother Munna was little ahead of him while his brother-in-law P.W. 2 Ravi Mohd. was behind him. Suddenly the deceased was accosted first by appellant Umesh Chauhan and thereafter Umesh stabbed deceased Munna. P.W. 1 Raju has specifically asserted that other accused persons did not stab the deceased but they were present on the spot. He has also stated that some of them were dragging the deceased and others had caught him but deceased was knifed only by appellant Umesh Chauhan. This witness has again reiterated that he could not rescue his brother because Munna was instantly stabbed by appellant Umesh Chauhan. The place of occurrence has been delineated clearly which is consistent with the site plan (Ext. Ka-3). P.W. 1 Raju has specified that other accused persons were also holding knife but they did not use it. This witness has also shown the reasons for which this assault was made. 16. P.W. 2 Ravi Mohd. has also reiterated and supported the prosecution story. He too was present on the spot. Ka-3). P.W. 1 Raju has specified that other accused persons were also holding knife but they did not use it. This witness has also shown the reasons for which this assault was made. 16. P.W. 2 Ravi Mohd. has also reiterated and supported the prosecution story. He too was present on the spot. He has delineated the entire prosecution story in great detail which is consistent not only with the content of FIR but also with the evidence of P.W. 1 Raju. This witness has specified that only one person, namely, Umesh Chauhan used his knife in assassination of deceased Munna. He has also indicated that he was going for digging the grave and suddenly this incident occurred in his presence. 17. We have carefully perused the testimony of both eye witnesses. We believe that testimony of both P.W. 1 Raju and P.W. 2 Ravi Mohd. are natural, credible, in accordance with normal human conduct and trustworthy. There is no reason to disbelieve their evidence. We do not believe that these witnesses would spare the real culprits and falsely implicate the appellants merely because of some vague enmity in an incident occurred during day time in presence of hundreds of witnesses. 18. Learned counsel for appellants have argued that no witness of vicinity was produced and that both P.W. 1 Raju and P.W. 2 Ravi Mohd. are related to the deceased. This argument is not sustainable. The testimony of both eye witnesses cannot be rejected merely on the ground of their relationship with deceased. The evidence of witnesses are evaluated on the basis of their quality and not on their relationship with deceased. Evidence of both eye witnesses is totally trustworthy. 19. It is true that despite presence of several persons in the market, no person of market has been produced by prosecution. But if we carefully peruse the contents of FIR and the contents of evidence, it would be apparent that right at the initial stage of the FIR, the incident created a frightening atmosphere on the spot. The FIR says that as soon as the deceased was accosted, the people started running away from the market. In fact shopkeepers were running away from own shops. This fact has not been introduced subsequently. These details are part of the FIR which was lodged within 35 minutes of the incident. The FIR says that as soon as the deceased was accosted, the people started running away from the market. In fact shopkeepers were running away from own shops. This fact has not been introduced subsequently. These details are part of the FIR which was lodged within 35 minutes of the incident. The atmosphere generated on the spot has been indicated not only in the FIR but also in the testimony of both witnesses. It is not surprising if the ordinary citizens do not want to be involved in such kind of incident. The fact that the deceased was done to death right in the early part of the day in the main market is enough to create a frightening atmosphere in the market. We do not believe that absence of witnesses from the market would be sufficient to discard the trustworthy evidence of other witnesses. 20. We believe that criminal case are decided on the basis of evidence adduced on the record and not on the assumption that particular thing ought to have been done by the prosecution. If available evidence is sufficient to establish the guilt of accused then court cannot reject the otherwise trustworthy evidence. The Apex Court in its famous case Bishundeo Poddar and others Vs. State of Bihar 2003 CRLJ 1558 has held that the fate of prosecution does not depend upon what investigator or prosecutor ought to have done. The fate depends on the evidence already on record. If the court is satisfied with the available evidence then accused cannot be acquitted. 21. In the present case the medical evidence is also consistent with the oral evidence. FIR and the ocular evidence indicate that one stab wound was caused by appellant Umesh Chauhan and autopsy report (Ext. Ka-2) also reiterates the same thing. It is true that autopsy indicates as many as five injuries but only one injury is said to have been responsible for the death of deceased Munna. Remaining injuries, namely, injury nos. 2 to 5 are merely minor abrasions perhaps resulted on account of fall of deceased on the road. The fact that he was taken on rickshaw first to Kotwali and thereafter to the District Hospital for treatment with the help of Raju (informant) might have also caused some abrasions on account of dragging of injured. 22. The inquest report (Ext. Ka-8), letter of I.O. to C.M.O (Ext. Ka-9), Photonash (Ext. The fact that he was taken on rickshaw first to Kotwali and thereafter to the District Hospital for treatment with the help of Raju (informant) might have also caused some abrasions on account of dragging of injured. 22. The inquest report (Ext. Ka-8), letter of I.O. to C.M.O (Ext. Ka-9), Photonash (Ext. Ka-10) etc. all contain crime number obviating any possibility of ante-timing of FIR. The fact that the case was converted to Section 302 IPC from Section 307 IPC also belie any possibility of manipulation. It is pertinent to point out that the incident occurred at 11 am. on 26.5.1999. The FIR (Ext. Ka-1) was lodged at 11:35 am under Section 307 IPC. Subsequently the injured was sent to Ram Manohar Lohia Hospital, Farrukhabad where he died at 11:45 am. indicating that deceased succumbed to injuries immediately on his arrival to the Hospital. This information was immediately communicated to police station where the case was converted into Section 302 IPC. Relevant entries were made in GDs of concerned police station extract of which is available on record as Ext. Ka-7. 23. We have perused all material available on record. We believe that prosecution has been able to prove its case beyond all reasonable doubt as far as appellant Umesh Chauhan is concerned. The incident is proved. Presence of all appellants is established. However, the prosecution story indicates that deceased was done to death by the act committed by appellant Umesh Chauhan. Remaining appellants were convicted with the aid of Section 149 IPC. The evidence of P.W.1 Raju indicates that no other person actually assaulted deceased. The relevant portion of his testimony is reproduced below:- ^^mes'k us esjs HkkbZ ds isV esa ,d pkdw ekjk Fkk A ckdh eqfYteku us pkdw ugha ekjkA ---------------------------------- jkts'k dksrokyh esa igys ls cSBk FkkA esjs HkkbZ ds 'kjhj ij pkdw dh ,d pksV FkhA fxjus ij iSjksa esa pksV vk x;h FkhA iSjksa o dksguh esa fxjus ls [kjksp ds fu'kku vk x;s FksA^^ 24. Similarly, P.W. 2 Ravi Mohd. has also reiterated the same thing which is reproduced as under: ^^mes'k us eqUuk dks pkdw Hkksadk tks gkftj vnkyr gSA ckdh yksx ?ksjs [kMs+ Fks o idMs+ gq, FksA ------------------------------------ cfd;k eqfYteku dsoy ?ksjs [kMs+ Fks pkdw ugha ekj jgs FksA^^ 25. Similarly, P.W. 2 Ravi Mohd. has also reiterated the same thing which is reproduced as under: ^^mes'k us eqUuk dks pkdw Hkksadk tks gkftj vnkyr gSA ckdh yksx ?ksjs [kMs+ Fks o idMs+ gq, FksA ------------------------------------ cfd;k eqfYteku dsoy ?ksjs [kMs+ Fks pkdw ugha ekj jgs FksA^^ 25. The aforesaid evidence reveals two things, first that no person other than appellant Umesh Chauhan actually caused any injury on the person of deceased. Others have been convicted with the aid of Section 149 IPC. Even the role of appellant Umesh Chauhan while explicit does not indicate intention to commit murder. There is no evidence on record to demonstrate that appellants were interested in committing the murder of deceased. The fact that only one injury was caused that too by appellant Umesh Chauhan, demonstrates an intention to cause injuries to the deceased but not an intention to commit a murder. It is pertinent to point out that five persons had allegedly surrounded the deceased. P.W. 1 Raju was at some distance. In fact he made no attempt to rescue his brother perhaps because of suddenness of the incident or may be because of fear and yet appellant Umesh Chauhan did not use his knife second time. He inflicted only one single knife blow on the abdomen of deceased despite the opportunity of causing more injuries. We believe that there is no doubt that death of deceased Munna was caused by the assault committed by appellant Umesh Chauhan in the abdominal region of deceased. The fact that appellant Umesh Chauhan dealt a single blow on the deceased makes us to seriously consider the applicability of the latter part of the 4th exception to Section 300 IPC to the present case, namely, that appellant had not taken undue advantage or had not acted in a cruel or unusual manner. 26. Having carefully weighed the facts and circumstance of the case and the options and conclusions, we are of the opinion that appellant Umesh Chauhan did have requisite intention of causing bodily injury but we have no material on record to demonstrate that appellant Umesh Chauhan intended to commit the murder of deceased. We believe that crime of appellant Umesh Chauhan would fall within the ambit of Section 304 part II IPC. 27. Now the question arises whether the remaining appellant can be convicted with the aid of Section 149 IPC? We believe that crime of appellant Umesh Chauhan would fall within the ambit of Section 304 part II IPC. 27. Now the question arises whether the remaining appellant can be convicted with the aid of Section 149 IPC? The prosecution evidence reveals that only appellant Umesh Chauhan had animus against deceased Munna. Even the prior altercation has been attributed to appellant Umesh Chauhan only. As far as the present incident is concerned others were certainly present on the spot but surely appellants were not aware of future program of deceased. Therefore, it is evident that they were present on the spot in routine manner. As soon as appellant Umesh Chauhan saw deceased Munna, he grabbed the opportunity and committed assault. The fact that other persons did not use their knives, demonstrate that they did not share the common object. The prosecution evidence itself shows that other accused persons who were standing nearby did not play any role in attacking the deceased. They have been attributed the role of only grabbing and dragging the deceased. The way incident happened, it cannot be said that all these accused persons had come with per-meditated mind to kill deceased Munna or they had formed unlawful assembly. We are convinced that ingredient of Section 149 IPC do not get attracted. 28. The Apex Court in Baladin and others Vs. State of U.P. AIR 1956 SC 181 has held that mere presence in an assembly does not make such a person a member of unlawful assembly unless it is shown that person had done something or omitted to do something which would make him a member of unlawful assembly or unless the case falls within Section 142 IPC. Merely because some persons assembled, all of them cannot be held to be 'ipso facto' as being members of that unlawful assembly. 29. It is incumbent upon prosecution to establish that the commission of offence was by any member of unlawful assembly must have been committed in prosecution of the common object of unlawful assembly or such that the members of assembly knew that it was likely to be committed. 30. We have perused the entire evidence on record. It does not demonstrate that other members of assembly knew that the offence of murder was likely to be committed. 31. 30. We have perused the entire evidence on record. It does not demonstrate that other members of assembly knew that the offence of murder was likely to be committed. 31. Considering all facts and circumstances of the case, we believe that appellant Umesh Chauhan is sole person who can be held guilty of offence that too under Section 304 part II IPC. Consequently, the Criminal Appeal No. 5021 of 2004 is partly allowed. The judgment and order dated 14.9.2004 passed by the Additional Sessions Judge,(Fast Track Court No.1) in Sessions Trial No.301 of 1999 (State Vs. Ballu @ Kallu and others) arising out of Crime No.466 of 1999 is modified. We hold appellant Umesh Chauhan guilty of offence under Section 304 part II IPC and accordingly his conviction under Section 302 IPC is modified to Section 304 II IPC and he is sentenced to ten years rigorous imprisonment under Section 304 II IPC. 32. Criminal Appeal No. 4806 of 2004 filed by appellants, namely, Ballu @ Kallu and Arvind is allowed. The judgment and order dated 14.9.2004 passed by the Additional Sessions Judge,(Fast Track Court No.1) in Sessions Trial No.301 of 1999 (State Vs. Ballu @ Kallu and others) arising out of Crime No.466 of 1999 is set aside with regard to appellants Ballu @ Kallu and Arvind only. The appellants Ballu @ Kallu and Arvind are acquitted of offence under Sections 147, 148 and 302 read with Section 149 IPC. They are set at liberty forthwith, if not required in any other case. 33. Office is directed to certify this judgment to the concerned court through Sessions Judge, Farrukhabad within ten days. The concerned court shall send the compliance report within a month thereafter. 34. A copy of the judgment be placed in both the appeals.