Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 2199 (ALL)

BECHAN SHAH v. STATE OF U. P.

2017-09-19

BHARAT BHUSHAN, K.J.THAKER

body2017
JUDGMENT : 1. Present criminal appeal has been filed by appellant Bechan Shah against the Judgment and order dated 22.04.2003 passed by the then Sessions Judge, Sonbhadra in Sessions Trial No. 7 of 2002, arising out of Case Crime No.155 of 2001, lodged with Police Station (in short P.S.) Duddhi, District-Sonbhadra, whereby the accused (present appellant) was found guilty and convicted for commission of murder under Section 302 Indian Penal Code, 1860 (in short I.P.C.) and sentenced to life imprisonment. The accused is in jail since his arrest in the year 2001. 2. The brief facts leading to the incident having occurred are that mother of complainant Bhagwan Devi was grazing her cattle in front of her house where the accused-appellant Bechan Shah suddenly came to the place of the occurrence on 6.10.2001 with an axe. When the deceased was in the field, her son namely the complainant Ram Pyare was also there along with other villagers namely Ramkesh, Shiv Prasad, Ayodhya Prasad. It is alleged that the accused appellant attacked the deceased and gave a blow with the axe on the neck of the deceased who was mother of the complainant as a result of which she fell down on the ground and died instantaneously. It is further alleged that there was an long drawn enmity between the appellant and complainant with regard to partition of the property. 3. A written report (Ex-Ka-1) scribed by Ram Singh Gour dictated by complainant Ram Pyare was given at P.S. Duddhi on 6.10.2001. On the basis of that report, the matter was registered as Crime No. 155 of 2001, under Section 302 IPC at P.S. Duddhi. Check report was prepared by Constable Multan Singh. Relevant G.D. entry was made on the same day. 4. Investigation ensued and the IO prepared the site plan, inquest report and after completing necessary formalities send the dead body to the mortuary and also recorded statement of witnesses. The I.O. also took the blood stained and simple earth (Ex-Ka-13) from the place of incident and send the same for chemical examination. Report of the chemical examiner (Ex-ka 14) is also on record. Arrest of accused is said to have been made on 11.10.2001 and at his instance the murder weapon was recovered in presence of witnesses and memo of recovery of blood stained axe (Ex-ka-2) was drawn, wherein the accused had confessed the guilt of murder. Report of the chemical examiner (Ex-ka 14) is also on record. Arrest of accused is said to have been made on 11.10.2001 and at his instance the murder weapon was recovered in presence of witnesses and memo of recovery of blood stained axe (Ex-ka-2) was drawn, wherein the accused had confessed the guilt of murder. The alleged axe was also sent for chemical examination. 5. After concluding the investigation, the Investigating Officer submitted a charge-sheet before the Magistrate having jurisdiction under Section 304 IPC. The Magistrate Court in turn committed the case to the Court of Session at Sonbhadra and a charge under section 302 IPC was framed against the accused appellant by the learned Sessions Judge, Sonbhadra vide order dated 18.2.2002. The accused being summoned from jail pleaded that he has been falsely implicated in the present case and to be pleaded not guilty. 6. The prosecution in support of its case examined eight witnesses namely P.W.1 Ram Pyare (complainant/eye witness), P.W.2 Ram Kesh (Independent witness), P.W.3 Shri Nath (recovery witness), P.W.4 Dr. S.N. Sharma (who conducted postmortem), P.W.5 Multan Singh (who proved FIR and extract of GD), P.W.6 D.K. Rai (who proved recovery memo and charge sheet), P.W.7 C.V. Singh, (who proved recovery memo of weapon) P.W.8 Sri Ram Mishra (Investigating Officer). 7. In support of its case following documents were filed and proved by prosecution: 1. F.I.R. 6.10.2001 Ex.Ka.3 2. Written Report 6.10.2001 Ex.Ka.1 3. Recovery Memo of blood stained Axe 11.10.2001 Ex.Ka.2 4. Recovery Memo of blood stained & Plain Earth 07.10.2001 Ex. Ka.13 5. Postmortem Report 07.10.2001 Ex.Ka.3 6. Report of Vidhi Vigyan Prayogshala 21.12.2002 Ex.Ka.7 7. Site Plan with Index 11.10.2001 Ex. Ka.6 8. Statement of accused was recorded under Section 313 Cr.P.C. wherein appellant denied the prosecution allegations and claimed false implication. On conclusion of the trial, the then Sessions Judge, Sonbhadra was convinced of the prosecution evidence and held the appellant guilty of offence under Section 302 IPC and the appellant was convicted and sentenced as aforesaid vide judgment and order dated 22.4.2003. This judgment is under challenge before this Court. 9. Heard Sri Anjani Kumar,learned counsel for the appellant and Shri Rajeev Sharma, learned A.G.A. for State. 10. The learned counsel for appellant has submitted that the accused-appellant is in jail since more than 15 years from the date of his arrest. This judgment is under challenge before this Court. 9. Heard Sri Anjani Kumar,learned counsel for the appellant and Shri Rajeev Sharma, learned A.G.A. for State. 10. The learned counsel for appellant has submitted that the accused-appellant is in jail since more than 15 years from the date of his arrest. He was arrested in the year 2001 and was under trial prisoner who has been refused bail by the Trial Court as well as by this Court while this appeal was preferred. 11. Learned counsel for appellant has contended that the appellant has been falsely implicated in this case. The witnesses who have been examined are close relatives of the deceased, though in the FIR it is mentioned that there were several persons, nearby in the field where the incident took place but none of them have been examined before the Trial Court. It is further submitted that P.W.1 and P.W.2 are close relatives of the deceased and no other independent witness has been examined. P.W.-3 who has signed the recovery memo is also close relative of the deceased and is not an independent witness. The chemical report of the bloodstained axe has never been produced before the Trial Court and therefore the accused be given the benefit of doubt. In the alternative he has submitted that this is the case of single blow which would fall within the purview of Section 304 IPC. 12. It is further submitted that the prosecution has failed to ascribe any motive for the commission of the murder of the deceased. 13. Sri Rajeev Sharma, learned AGA for State has submitted that there is a prompt FIR. A prompt FIR lends credence to the case of the prosecution. In support of his argument, he relied upon the case of Jai Prakash Singh vs. State of Bihar & Another (2012) 4 SCC 379 , wherein the Apex Court has held that prima facie lodging first information report gives assurance of veracity of informant and reflects first hand account of occurrence and persons responsible therefor. It is further submitted that the FIR itself disclosed a dispute in regard to land between the deceased and the appellant and further there is specific evidence of causing axe injury to the deceased coupled with the consistent medical opinion. He has relied on the recent Judgment of the Apex Court reported in Raja alias Rajinder Vs. It is further submitted that the FIR itself disclosed a dispute in regard to land between the deceased and the appellant and further there is specific evidence of causing axe injury to the deceased coupled with the consistent medical opinion. He has relied on the recent Judgment of the Apex Court reported in Raja alias Rajinder Vs. State of Haryana JT 2015 (4) SC 57, Soyebbhai Yusufbhai Bharania Vs. State of Gujarat, 2017 (6) JT 381 . 14. It is further submitted by learned AGA that the recovery of axe cannot be doubted and further it is not a case which would fall within the purview of Section 304 IPC and the benefit of doubt cannot be given to the appellant. Learned A.G.A. for the State has submitted that conviction and sentence recorded by the trial Court is in accordance with law and evidence, and there is no sufficient ground for interference in the impugned judgment and order passed by the learned trial Court. Therefore appeal is liable to be dismissed. 15. In light of the decision rendered by the Apex Court in R. Shaji v. State of Kerala, AIR 2013 SC 651 , it would be relevant for us to not only to refer to the testimony of witnesses but to also give our findings on the aspect whether guilt is proved to the hilt or not. In the said decision, the Apex Court held that in matter of appreciation of evidence of witnesses, it is not the number of witnesses but, the quality of their evidence, which is important, as there is no requirement in law of evidence stating that a particular number of witnesses must be examined in order to prove/disprove a fact. It is a time honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise. 16. This Court is mindful of the fact that in trial for the offence of murder, where the witness is a close relative of victim, it is necessary to examine the evidence given by such witness very carefully and scrutinize the infirmities in that evidence before deciding to act upon it. However, relationship is not a factor to affect the credibility of a witness. However, relationship is not a factor to affect the credibility of a witness. It is trite law in criminal jurisprudence that version of an eyewitness cannot be discarded merely on the ground that such witness happened to be a relative of the deceased. Where the presence of eyewitness is proved to be natural and the statement given by such witness is nothing but, truthful disclosure of actual facts leading to occurrence, then such statement could not be discarded. 17. The testimony of witnesses, medical evidence and other relevant factors considered by the Sessions Court are considered by this Court also in light of the latest decisions of the Apex Court. The evidences are being re-appreciated and reevaluated by us. The evidence of all the witness have been discussed by the trial court in detail. We have sifted the evidences very closely, far as all the witnesses are concerned who have identified the accused. The evidences are not reproduced here on with a view to see that the judgment does not become bulky. The testimonies are not reproduced verbatim but the same have been read over again and again by us. 18. We have perused the evidence led before us. The medical evidence in particular and the post-mortom report would show that the injury is on the vital part of the body i.e. on the neck of the deceased as a result of which deceased died on the spur of the moment. Therefore the contention that it is a case of single blow and the case would came within the ambit of Section 304 IPC is not acceptable to us. The ferocity with which the blow was given on the vital part of the body will not permit us to show any leniency nor the case would fall in any of the exceptions enshrined under section 300 IPC hence the submission of the learned counsel for appellant that it would fall within the purview of Section 304 IPC is brushed aside. 19. On the basis of occular of version of P.W.-1 and P.W.2 who are the eye witnesses. The accused was the person who had perpetrated the crime. We do not think it appropriate to take a different view then that taken by the learned Trial Judge. 19. On the basis of occular of version of P.W.-1 and P.W.2 who are the eye witnesses. The accused was the person who had perpetrated the crime. We do not think it appropriate to take a different view then that taken by the learned Trial Judge. We are fortified in our view by the decision of this Court in Criminal Appeal No. 147 of 2003 where in reliance has been placed on the decisions in Pulukuru Kottaya & Ors. vs. Emperor, reported in AIR (34) 1947 PC 67, State Of Maharashtra vs. Bharat Fakira Dhiwar, (2002) 1 SCC 622 and the subsequent decisions of the apex court in R. Shaji vs. State of Kerala, AIR 2013 SC 651 , Raja alias Rajinder Vs. State of Haryana JT 2015 (4) SC 57, Soyebbhai Yusufbhai Bharania Vs. State of Gujarat, 2017 (6) JT 381 and the landmark decision in Mukesh and Anr. Vs. State for NCT of Delhi and Others, AIR 2017 SC 2161 and held that the recovery cannot be said to be bad and the trial court has not committed any mistake in considering this as a material piece of evidence pointing towards the guilt of the accused as it is discovery of a fact in consequence of information received from the accused. The recoveries were made separately at the instance of the accused who took out murder weapon from the place from where he was planted and the place was such which could be known to author of crime only. Section 27 of the Evidence Act, 1872 also would be a foundation stone and recovery and seizure of crime weapons from the place of offence would be a pointer against the accused. We are fortified in our view by the latest decision of the apex court involving similar facts in Mukesh Vs. State of NCT of Delhi, 2017 AIR SC 2163. 20. We have also perused the judgment of the Trial Court also and the findings in the same decision go to show that P.W.1 Ram Pyare has stated everything on oath. There is no contradiction in presence of witnesses on the place of incident and time of incident. P.W.3 Ram Kesh has also been examined. He has also stated whatever P.W.1 has stated on oath. There is no contradiction in presence of witnesses on the place of incident and time of incident. P.W.3 Ram Kesh has also been examined. He has also stated whatever P.W.1 has stated on oath. This statement of P.W.2 Ram Kesh shows that the specifically named Bechan, who came with axe, Bhagawan Devi was grazing cattle in front of her house at 6:00pm and attacking on the neck of Bhagawan Devi with axe by accused Bechan. So there is no reason for telling a lie by Ram Kesh. In the Trial Court long cross-examination has been made to this witness. But nothing has come out to show that he is not telling the truth. There is no contradiction in the statement of P.W.1 and P.W.2 on material points. That too with the FIR so the statement of P.W.1 is also corroborated by the FIR Ex. Ka.1 regarding place of incident, name of the accused, manner of commission of offence, time and place of the incident. Name of accused spelled out in the FIR. There was no contradictions in the corroborated statements of P.W.1 and P.W.2, P.W.1 has inconsistent with the FIR also and therefore he cannot disbelieve just because of his relation with the deceased. P.W.1 gets corroboration from the FIR on all material points. Besides it gets support from the statement of P.W.2 an independent witness in this case. Thus, the testimony of the two witnesses cannot be thrown out on the ground that P.W.1 Ram Pyare is interested witness and P.W.2 Ram Kesh has cordial relation with P.W.1. It is to be mentioned that the post-mortem report was prepared by Dr. S.N. Sharma, P.W.4 who has stated on oath in Trial Court that he found incised wound in left side of neck and according to opinion of the Doctor death of deceased Bhagawan Devi might have occurred due to incised wound caused by axe. Thus, from the medical point of view, also the statement of P.W.1 is corroborated by post-mortem report as well as the statement of P.W.4 and P.W.3 are witnesses of recovery of axe in whose presence the alleged axe was recovered at the pointing out of the accused-Behan Shah. P.W.7 C.V. Singh Bisen has also stated that the axe was recovered to the pointing out of the accused Bechan Shah. P.W.7 C.V. Singh Bisen has also stated that the axe was recovered to the pointing out of the accused Bechan Shah. On these findings we are unable to take a different view than taken by the learned Trial Judge. The defence taken in 313 Cr.P.C. also falls to the ground. 21. We are even fortified by the fact that the prosecution has proved its case even with the aid of medical evidence corroborated by testimony of prosecution witnesses and therefore same flows in investigation cannot prove vital to the well reasoned judgment of the Trial Court. 22. In the final analysis, the evidence of the witness who were present and who have testified will be more important if the evidence is qualitative in nature. We have to see the quality of evidence and not the quantity. In this case it is an admitted position of fact that on the basis the circumstances and subsequent facts, independent source of information, except the police official, other persons present refused to testify and none was available. 23. Considering all facts and circumstances of the case, it is evident that prosecution has been able to bring home the guilt of accused-appellant by trustworthy and unimpeachable evidence. Learned trial judge has marshalled the facts and evidence adroitly. Sufficient evidence has been placed to establish the guilt of the appellant. 24. In view of the aforementioned discussion, we are of the view that this appeal has to fail and is accordingly dismissed. The impugned judgment and order dated 22.04.2003 passed by the then Sessions Judge, Sonbhadra in Sessions Trial No.7 of 2002 is affirmed. Save and except for the sentence as clarified hereinafter. 25. Quantum of punishment: On going through the record it reveals that parties are related to each other and some land dispute was going on between the parties. The decision in Maru Ram Vs. Union of India, AIR 1980 SC 2147 and the latest decision in Vikas Yadav Vs. State of U.P. 2016 (9) 541 will permit us to award-punishment, as the incident occurred at the spur of the moment. He has been incarcerated for more than 15 and, therefore, as per judgement of Vikas Yadav (Supra), we hold that incarceration of 15 years fixed would be just and proper with all remissions. State of U.P. 2016 (9) 541 will permit us to award-punishment, as the incident occurred at the spur of the moment. He has been incarcerated for more than 15 and, therefore, as per judgement of Vikas Yadav (Supra), we hold that incarceration of 15 years fixed would be just and proper with all remissions. We show there leniency looking to the peculiar facts and circumstances of the case, the appellant shall be released from jail if he is not required in any other case. 26. Let a copy of this judgment along with the Trial Court record be sent to the Court, Jail Authorities concerned and District Magistrate for compliance.