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Allahabad High Court · body

2017 DIGILAW 2825 (ALL)

CHANDRA BHAN v. STATE OF U. P.

2017-12-05

P.K.S.BAGHEL, RAJIV GUPTA

body2017
JUDGMENT : 1. The appellants-accused Chandra Bhan and Janeshwar assails the conviction for commission of offence under Section 302/34 IPC by the judgment and order dated 21.01.1988 passed by the Additional District and Sessions Judge, Saharanpur, whereby they have been convicted and sentenced to undergo imprisonment for life and also under Section 324/34 IPC, imposed a sentence for six months' R.I. Both sentences were ordered to run concurrently. 2. During the pendency of the appeal, one of the appellants-accused Chandra Bhan has died and this Court has abated his appeal. 3. In short, the prosecution case is that PW-1 Darshan Lal made a complaint at Police Station, Mandi at 10:15 PM that on 12.03.1986, there was marriage ceremony of Prem's daughter, a neighbour, in his locality. The dinner of barat was arranged at his open roof, while the guests were having the dinner, the appellant no.2 Janeshwar with bad motives caught hold of Kalawati, wife of his younger brother Devi Das. She raised an alarm, upon which, Subhash and Devi Das rescued her from Janeshwar and a scuffle broke out between them. 4. They intended to lodge an FIR against his misbehaviour with the wife of Devi Das but people of the locality and father of Janeshwar intervened and the settled the matter. Hence, no FIR was lodged regarding the said incident but the appellant no.2 Janeshwar threatened them with dire consequences within 15 days. 5. On 17.03.1988 at about 8:30 PM, Janeshwar and his brother-in-law Chandra Bhan came at their house and started abusing Subhash. On hearing the noise, the informant and Devi Das went out of the house. They saw that Chandra Bhan caught hold of Subhash and had exhorted Janeshwar to kill Subhash. Janeshwar inflicted injury upon Subhash by way of a knife on his neck. Devi Das tried to snatch knife from Janeshwar to save Subhash and sustained injuries. 6. In the meantime, Subhash managed to escape and reached at the back of his house through the lane and tried to enter therein. However, he was chased by Janeshwar and Chandra Bhan, Janeshwar told the Chandra Bhan that Subhash has escaped unhurt, hence he had exhorted Chandra Bhan to shoot at Subhash. 6. In the meantime, Subhash managed to escape and reached at the back of his house through the lane and tried to enter therein. However, he was chased by Janeshwar and Chandra Bhan, Janeshwar told the Chandra Bhan that Subhash has escaped unhurt, hence he had exhorted Chandra Bhan to shoot at Subhash. At his exhortation, Chandra Bhan opened fire from his country made pistol but Subhash did not receive any firearm injury as he had already fallen down on the ground due to his previous injury on his neck, which was bleeding. 7. It is further stated that on being chased by them and the witnesses, both the accused persons ran towards Kamela. The said incident is said to have been witnessed by a number of persons. 8. It is further stated that Subhash was taken to the hospital but he succumbed to his injuries. 9. On the basis of said report, the FIR was registered vide Case Crime No. 86 of 1986 under Sections 302/324 IPC at Police Station Mandi, District Saharanpur. 10. On the basis of the said FIR, the chick report was prepared and the case was registered in the general diary vide G.D. Report No. 42 at 22:15 Hours. Investigation was entrusted to SO Mahendra Pratap Singh. 11. In the intervening night of 17/18th March, 1986, the injuries of victim Darshan Lal were also examined at the hospital, which were found to be simple in nature. The Investigating Officer Mahendra Pratap Singh started the investigation and recorded the statements of Darshan Lal, Kalawati, Mange Ram, Devi Das and other witnesses and prepared the site plan and the recovery memos. 12. On the next day i.e. 18th March, 1986, the panchayatnama was prepared, which has been signed by the independent witnesses and thereafter, the body was sent for postmortem. The postmortem was conducted on the person of the deceased by Dr. Pradeep Singhal, who found following injury:- dVk gqvk ?kko 4 ls0eh0 xq.kk 1-5 ls0eh0 xnZu ds ck;h rjQ Åijh fgLls ij ck, dku ls 3 ls0eh0 uhpsA 13. In the opinion of Doctor, the cause of death was hemorrhage and shock. The postmortem report of Subhash has been marked as Ex. Ka-14. A separate injury report of Subhash has also been prepared and marked as Ex. Ka-15 and the injury report of victim Devi Das has also been prepared and marked as Ex. Ka-16. 14. In the opinion of Doctor, the cause of death was hemorrhage and shock. The postmortem report of Subhash has been marked as Ex. Ka-14. A separate injury report of Subhash has also been prepared and marked as Ex. Ka-15 and the injury report of victim Devi Das has also been prepared and marked as Ex. Ka-16. 14. The injury report of Subhash:- 1- dVk gqvk ?kko 4 ls0eh0 xq.kk 1-5 ls0eh0 x xgjkbZ ugh ukih xbZ Fkh] ck, tcM+s ds uhps xnZu ij] Vsifjax ihNs dh rjQ dks Fkh] ?kko Vs<+h n'kk esa Fkk o fdukjs dVs gq, Fks] [kwu cg jgk Fkk] eqag ls Hkh [kwu vk jgk FkkA 2- pksVs rktk Fkh o fdlh rst /kkjnkj gfFk;kj ls vkuk laHko FkhA pksV dks tsjs xkSj j[kk Fkk o ltZu dks jsQj fd;k x;kA ejht dks vLirky esa HkrhZ dj fy;k x;k] o iqfyl dks lwpuk nh xbZA uCt detksj FkhA ch0ih0 80@60 Fkk ejht csgks'k FkkA ;g pksV pkdw ls mlh fnu 'kke dks 8&1@2 cts vkuk laHko FkhA 15. The injury report of Devi Das:- **1- [kjk'k 1-2 ls0eh0 x 0-02 lseh0 ,.M 1-00 lseh0 x 0-02 lseh0 nkfguh Åijh cktw ds lkeus o uhps dh rjQ] tek gqvk [kwu ekStwn FkkA 2- dVk gqvk ?kko 1-5 ls0eh0 xq.kk 1@4 ls0eh0 x Ldhu Mhi iM+h n'kk esa nkbZ tka?k ij lkeus o uhps dh vksj continuing as linear abrasion vanj dh rjQ rFkk ,d dVk ?kko 1@2 lseh0 xq.kk 0-02 lseh0 [kky rd xgjk] pksV ua02 ds ckgj dh rjQ] lkQ djus ij [kwu Nydrk \ FkkA fdukjs dVs FksA 3- 2 [kjk'ks 3 lseh0 xq.kk 1@2 lseh0 vkSj 1 ls0eh0 xq.kk 1@2 ls0eh0 3 lseh0 dh nwjh ij ckbZ tka?k ij vanj dh rjQ chp esa] tek gqvk [kwu ekStwn FkkA ** 16. After the investigation was completed, the IO submitted the charge-sheet in the court of Magistrate on 29.03.1986, who committed the case for trial to the court of Sessions on 02.06.1986 and thereafter, the charges were framed against the accused persons under Sections 302/34 and 324/34 IPC on 24.09.1986. Both the accused did not plead guilty and they were put to trial. Both the accused did not plead guilty and they were put to trial. In its support, the prosecution has got examined PW-1 Darshan Lal, PW-2 Devi Das, who is real brother of the deceased Subhash, PW-3 Mange Ram, resident of same locality, PW-4 Kalawati W/o Devi Das, who was tried to be molested by the appellant no.2. 17. Following formal witnesses were also examined :- PW-5 Santosh Kumar, who has prepared the Panchayatnama, PW-6 Mahendra Pratap Singh, the Investigating Officer, PW-7 Ranveer Singh, who prepared the chik FIR, PW-8 Dr. Pradeep Singhal, who conducted the postmortem, PW-9 Om Singh, who had taken the body for postmortem, PW-10 Dr. M. Rastogi, who had examined the injuries of Subhash and Devi Das and PW-11 Mahaveer Singh, who had proved G.D. report No.37, by which, the entry of receipt of death memo from the hospital was made by constable clerk Baburam. 18. After the evidence of prosecution was closed, both the appellants-accused were examined under Section 313 CrPC. In their defence, they have denied all the charges levelled against them and their only defence is that they have been falsely implicated in the case due to the enmity. 19. The Trial Court found that both the appellants were guilty for commission of the offences under Section 302/34 IPC and Section 324/34 IPC. The Trial Court found that the prosecution has successfully proved their case regarding commission of offence by the appellants and convicted them for the life imprisonment. 20. Learned counsel for the appellants submits that the FIR was anti-dated; the injury of PW-2 Devi Das has been examined at 1:50 AM and report of the Doctor indicates that the simple injury, which he has sustained, can be fabricated also. 21. In support of his submission that the FIR is anti-time, he has drawn out attention to the deposition of PW-1 Darshan Lal, wherein he has stated that he wrote the complaint at 11:00 AM at his house after returning from the hospital, whereas the FIR itself has been registered at 10:15 PM. This fact, according to him, clearly shows that the FIR is anti-time. 22. He has also drawn our attention to the deposition of PW-2 Devi Das, who has stated that IO has taken the statement at 9:00 PM at his house. 23. This fact, according to him, clearly shows that the FIR is anti-time. 22. He has also drawn our attention to the deposition of PW-2 Devi Das, who has stated that IO has taken the statement at 9:00 PM at his house. 23. Sri Anurag Pathak, learned counsel for the appellants, next submitted that there was no source of light on the spot. He submits that the incident had taken place at 8:30 PM but the witnesses, in their statements under Section 161 CrPC, did not point out any source of light and they have also not mentioned this fact in the FIR. 24. He has also drawn our attention to the statement of IO Mahendra Pratap Singh, wherein he has stated that PW-1 Darshan Lal did not mention that at the time of the incident, there was any source of light available, hence he has not mentioned this fact in the statement of PW-1 recorded under Section 161 CrPC. 25. He urged that from the facts, it appears that it was a case of sudden provocation, which is evident from the statement of PW-1 Darshan Lal, when he heard the noise outside of his house, then he saw the scuffle between the accused and his brother Subhash (deceased). 26. Elaborating his submission, he submitted that the nature of injury, shown in the postmortem report, clearly indicates that it was sudden provocation as the deceased had received only one injury on his neck and since there was no other injury, it can not be said that the accused committed the offence with the premeditated mind. 27. Lastly, he submitted that the nature of injury sustained by PW-2 Devi Das clearly indicates that it was not inflicted by the accused as the injury of the deceased Subhash was examined at 9:15 PM but his injury was examined in the night of 17-18th March, 1986 at 1:50 AM. 28. He has drawn our attention to the statement of Doctor, wherein he has stated that the nature of injury, which PW-2 Devi Das had sustained, is simple in nature and can be fabricated and it can be about one hour old. 29. Sri A.N. Mulla, learned AGA for the State submitted that the statements of witnesses are consistent and there is an injured witness also, who has corroborated the prosecution story. 29. Sri A.N. Mulla, learned AGA for the State submitted that the statements of witnesses are consistent and there is an injured witness also, who has corroborated the prosecution story. He has seen the entire sequence of the incident and it has been shown by the IO in the site plan that there was sufficient light to see the accused by the PW-2 Devi Das. 30. He further submits that the minor discrepancies, which have been pointed out by learned counsel for the appellants, are minor discrepancies, which can be safely ignored, when there is substantive evidence to prove the case by the eye-witness and medical report. 31. He further submits that the appellants-accused, after inflicting the injury to Subhash, had chased Subhash all the way through a Gali to the back of his house. 32. He further submits that the recovery of pellets and wad at the spot clearly corroborate the deposition of PW-2 Devi Das, hence small discrepancies are totally insignificant in view of those substantive evidences. 33. We have heard Sri Anurag Pathak, learned counsel for the appellants, Sri A.N. Mulla, learned AGA for the State and carefully gone through the evidence available on the record. PW-1 is the informant. In his statement, he has reiterated narration of facts mentioned in the FIR regarding the source of light. He has stated that he has electric connection in his house, which is situated in a lane, where is sufficient light. One electricity pole is about 10 paces from the door of back side of his house. At the time of the incident, the place of occurrence was lit by electric bulb. One more electricity pole is towards east of his house, on which tube-light was on. 34. He has deposed that just opposite his house, there is house of brother-in-law of the accused, Prem. He has given detailed fact regarding the incident, which is taken place on 12th March, 1986 when the accused had misbehaved with the wife of his younger brother deceased Subhash. 35. Regarding the incident, he has stated that on 17th March, 1986, in the evening, his brother Subhash Chandra (deceased) and Devi Das were at their house. He has given detailed fact regarding the incident, which is taken place on 12th March, 1986 when the accused had misbehaved with the wife of his younger brother deceased Subhash. 35. Regarding the incident, he has stated that on 17th March, 1986, in the evening, his brother Subhash Chandra (deceased) and Devi Das were at their house. At about 8:30 PM, both the accused Chandra Bhan and Janeshwar came to their house and started abusing Subhash and when the informant and his brother Devi Das came out from their house, they saw that Chandra Bhan was holding Subhash and Janeshwar inflicted injury on the neck of Subhash with knife. His brother Devi Das tried to snatch the knife from the accused Janeshwar but he assailed Devi Das also and he sustained simple injuries. Taking advantage of this situation, Subash caught free from and he ran in the lane towards east. He was followed by Chandra Bhan and the accused Janeshwar. The informant along with his brother Devi Das, Maan Singh, Mange Ram, Nanak Chandra also followed them. Subhash, who was injured, reached the back side of the house from the lane followed by Janeshwar, Chandra Bhan, informant and others. Janeshwar exhorted Chandra Bhan that Subhash escaped unhurt, hence he should shoot him by his country made pistol. Upon his exhortion, Chandra Bhan fired at Subhash but he was not injured as he fell down due to his excessive bleeding. Both the accused ran away from the spot. Subhash was carried to the hospital at a rickshaw but succumbed to his injuries. 36. He has further deposed that he has written complaint in the hospital. Doctor had examined the injuries sustained by Subhash and after the report was prepared, it was lodged at Police Station Mandi. 37. He was subjected to the cross-examination. In his cross-examination, he has given detail of the houses of his neighbourhood. PW-2 Darshan Lal is an injured witness. He has corroborated the allegations made in the FIR and the statement of PW-1. The appellant Janeshwar had misbehaved with his wife and his wife raised an alarm and PW-2 and his brother Subhash had reached there immediately and they saved Kalawati. 38. On the said date, Janeshwar had threatened them, he will take the revenge within 15 days. He has corroborated the allegations made in the FIR and the statement of PW-1. The appellant Janeshwar had misbehaved with his wife and his wife raised an alarm and PW-2 and his brother Subhash had reached there immediately and they saved Kalawati. 38. On the said date, Janeshwar had threatened them, he will take the revenge within 15 days. Thereafter, on the date of the incident, PW-2 at about 8:30 PM, he had at his house, then he heard that Janeshwar was abusing Subhash outside of the house. Hearing the noise, when he came out from his house, he saw that Subhash was caught by Chandra Bhan and Janeshwar assailed Subhash on his neck with the knife from the left side. When PW-2 tried to save Subhash, the accused Janeshwar also assailed the PW-2 with the same knife. In the meantime, some other persons Mange Ram, Maan Singh and others also reached on the spot. 39. From the place of occurrence, Subhash ran in the lane towards east and then he tried to reach at the back side of the door of their house, which opens in a lane towards south. The lane runs east and west. Subhash had almost reached at the door of the back side of the house but he was chased by both the accused Janeshwar and Chandra Bhan. When Subhash tried to enter in the house, Janeshwar asked Chandra Bhan it appears that he has unhurt, hence shoot him. On his exhortion, Chandra Bhan fired at Subhash with an intention to kill him but Subhash, due to his injury sustained on his neck, fell down on the ground. Subhash was immediately rushed to the hospital but Doctor declared him dead. 40. In his cross-examination, he has stated that his statement was recorded on the same day by the IO and he has seen the entire incident and as that point of time, there was sufficient light from the electricity pole, which is situated near his house. 41. From the statements of PW-1 and PW-2, it is clear that both the witnesses were present at the time of the incident. It is true that both the witnesses are brother of the deceased but a careful reading of their statements, it is evident that their evidence is natural, consistent and is corroborated by other evidence available on the record. 42. It is true that both the witnesses are brother of the deceased but a careful reading of their statements, it is evident that their evidence is natural, consistent and is corroborated by other evidence available on the record. 42. In the cross-examination, the prosecution could not point out any substantial discrepancy except time of writing and lodging the FIR. The omission, pointed out by learned counsel for the appellants, has no relevance in the facts of this case. Both the witnesses have proved the motive of the accused as the incident was followed by a brawl between the parties regarding the misbehavior of Janeshwar with the wife of the deceased. The injury report also corroborates the fact that the accused had intention to kill the deceased and the injury sustained by the deceased on his neck was serious enough to cause the death. PW-8 Dr. Pradeep Singhal, in his deposition, has stated that the deceased died in S.B.D. Hospital at 9:30 PM on 13.03.1985. The cause of death of Subhash was shock and haemorrhage. The injury on his neck was sufficient to cause the death. 43. The submission of learned counsel for the appellants that the incident had taken place due to sudden provocation was not correct. The main cause appears to be the incident, which had taken place on the roof of the complainant, where Janeshwar has tried to molest Kalawati. The statement regarding the incident at the roof of the complainant is consistent. PW-1 and PW-2 both have stated that after the altercation, Janeshwar was man-handed and he humiliated. At that time, he threatened Subhash and the complainant-informant to face the consequences within short time. 44. This evidence clearly indicates that the incident of 17th March, 1986, which had taken place at the house of the complainant was premeditated and it cannot be said that it was due to sudden provocation. The fact that in the night both the appellants came to the house of PW-1 and PW-2 shows that they had come to take revenge from Subhash. Hence, submission of learned counsel for the appellants that it was due to sudden provocation cannot be accepted. 45. From the postmortem report also, it is evident that the injury received by the deceased Subhash on his neck was 4 cm x 1.5 cm. Hence, submission of learned counsel for the appellants that it was due to sudden provocation cannot be accepted. 45. From the postmortem report also, it is evident that the injury received by the deceased Subhash on his neck was 4 cm x 1.5 cm. It was a grievous injury and due to the bleeding this injury itself was sufficient to cause the death. The testimony of PW-1 and PW-2 shows that both were present at the time of occurrence of the incident. Hence, incident took place initially at the front of their house and when the accused/appellants have chased Subhash from the front of house to the back of their house through the lane, they had also ran behind Subhash. Subhash had almost reached at the back door of his house, which opens in the lane and he fell down to the excessive bleeding and died afterward. 46. We do not find any ground to disbelieve the statements of PW-1 and PW-2 regarding the source of light and the time of the incident (8:30 PM). In the site plan also, an electricity pole has been shown near the house. Both the witnesses have said that there was sufficient light at the time of occurrence of the incident. 47. In addition to above, both the accused were known to the witnesses, hence there was no difficulty in identifying a known person from a close distance. The PW-1 in his deposition clearly stated that there is an electric pole at 10 paces distance from back door of the house and that time, the place was lit by street lamp. He further stated that at the east side of the house also there is street lamp. PW-2 has also deposed regarding source of light. We do not find any contradiction in their statement. 48. In so far the submission of learned counsel for appellants that there is no mention of source of light in FIR and their statement under Section 161 CrPC. 49. The Supreme Court in the case of Sheelam Ramesh and another Vs. State of A.P., (1999) 8 SCC 369 has observed that if the accused persons were known to witnesses and they were able to identify them due to street light, then their statement cannot be discarded on the ground that it was not mentioned in the statement under Section 161 CrPC. 50. State of A.P., (1999) 8 SCC 369 has observed that if the accused persons were known to witnesses and they were able to identify them due to street light, then their statement cannot be discarded on the ground that it was not mentioned in the statement under Section 161 CrPC. 50. Moreover, in this case, both the witnesses have deposed that they had told the IO regarding source of light but it was omission on the part of the IO not to record it in their statement under Section 161 CrPC. Regard being had to the fact that same IO, while preparing the site plan, has shown the street light, which clearly corroborates the ocular evidence. 51. In the case of Nathuni Yadav Vs. State of Bihar, (1998) 9 SCC 238 , the Supreme Court even in absence of moonlight, found that "the possibility of some light reaching there from glow of stars" was sufficient if the assailants were known to the witnesses. "Even assuming that there was no moonlight then, we have to gauge the situation carefully. The proximity at which the assailants would have confronted with the injured, the possibility of some light reaching there from the glow of stars, and the fact that the murder was committed on a roofless terrace are germane factors to be borne in mind while judging whether the victims could have had enough visibility to correctly identify the assailants. Over and above those factors, we must bear in mind the further fact that the assailants were no strangers to the inmates of the tragedy-bound house, the eye-witnesses being well acquainted with the physiognomy of each one of the killers. We are, therefore, not persuaded to assume that it would not have been possible for the victims to see the assailants or that there was possibility for making a wrong identification of them. We are keeping in mind the fact that even the assailants had enough light to identify the victims whom they targeted without any mistake from among those who were sleeping on the terrace. If the light then available, though meagre, was enough for the assailants why should we think that the same light was not enough for the injured who would certainly have pointedly focussed their eyes on the faces of the intruders standing in front of them. What is sauce for the goose is sauce for the gander." 52. If the light then available, though meagre, was enough for the assailants why should we think that the same light was not enough for the injured who would certainly have pointedly focussed their eyes on the faces of the intruders standing in front of them. What is sauce for the goose is sauce for the gander." 52. For the reasons mentioned above, we find that the finding of the Trial Court holding both the appellants guilty for the commission of offence under Sections 302 and 34 IPC do not suffer from any perversity and illegality, hence the appeal lacks merit and is accordingly dismissed. 53. The appellant Janeshwar is on bail. His bail is cancelled. The CJM/Sessions Judge, Saharanpur shall cause the appellant Janeshwar to be arrested and lodged in jail to serve out remaining sentence. 54. A copy of this judgment alongwith trial court record be sent to the Sessions Judge/CJM, Saharanpur for necessary compliance.