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2017 DIGILAW 2927 (ALL)

RAM ALIAS CHANDER v. STATE OF UTTAR PRADESH

2017-12-14

ANIL KUMAR SRIVASTAVA II, PRASHANT KUMAR

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JUDGMENT : ANIL KUMAR SRIVASTAVA-II, J. 1. Instant appeals have arisen against the judgment and order dated 26.02.2010, passed by learned Additional Sessions Judge, Gonda in Session Trial No. 182/2008 and 68/2009, arising out of crime No. 118/08, police station Kodia, District Gonda. Accused were convicted as under :- Sl No. Name of the accused Section Sentence 1 Ram Chander alias Chander 449 IPC 10 years' rigorous imprisonment and fine of Rs. 5000/- with default stipulation of one year rigorous imprisonment. 504 IPC Six months' rigorous imprisonment. 506(2) IPC Two Years' rigorous imprisonment and fine of Rs. 500/- with default stipulation of one month rigorous imprisonment. 7 Criminal Law Amendment Act Three months' rigorous imprisonment. 302/34 IPC Imprisonment for life. Fine of Rs. 20000/- with default stipulation of five years' rigorous imprisonment. 2 Shiv Nath 449 IPC 10 years' rigorous imprisonment and fine of Rs. 5000/- with default stipulation of one year rigorous imprisonment. 504 IPC Six months' rigorous imprisonment. 506(2) IPC Two Years' rigorous imprisonment and fine of Rs. 500/- with default stipulation of one month rigorous imprisonment. 7 Criminal Law Amendment Act Three months' rigorous imprisonment. 302/34 IPC Imprisonment for life. Fine of Rs. 20000/- with default stipulation of five years' rigorous imprisonment. 3 Alakh Ram 449 IPC 10 years' rigorous imprisonment and fine of Rs. 5000/- with default stipulation of one year rigorous imprisonment. 504 IPC Six months' rigorous imprisonment. 506(2) IPC Two Years' rigorous imprisonment and fine of Rs. 500/- with default stipulation of one month rigorous imprisonment. 7 Criminal Law Amendment Act Three months' rigorous imprisonment. 302/34 IPC Imprisonment for life. Fine of Rs. 100000/- with default stipulation of ten years' rigorous imprisonment. 4 Nanku alias Vipin Chand 449 IPC 10 years' rigorous imprisonment and fine of Rs. 5000/- with default stipulation of one year rigorous imprisonment. 504 IPC Six months' rigorous imprisonment. 506(2) IPC Two Years' rigorous imprisonment and fine of Rs. 500/- with default stipulation of one month rigorous imprisonment. 7 Criminal Law Amendment Act Three months' rigorous imprisonment. 302/34 IPC Imprisonment for life. Fine of Rs. 100000/- with default stipulation of ten years' rigorous imprisonment. All the sentences were directed to run concurrently. Out of the fine amount Rs. 100000/- was ordered to be paid to Smt. Sunita Devi, wife of Santosh Kumar, as compensation. 2. 7 Criminal Law Amendment Act Three months' rigorous imprisonment. 302/34 IPC Imprisonment for life. Fine of Rs. 100000/- with default stipulation of ten years' rigorous imprisonment. All the sentences were directed to run concurrently. Out of the fine amount Rs. 100000/- was ordered to be paid to Smt. Sunita Devi, wife of Santosh Kumar, as compensation. 2. According to the prosecution version informant Smt. Sunita Devi is the wife of deceased Santosh Kumar Misra. It is stated that on 22.4.2008 deceased Santosh Kumar had gone to court at Gonda to do the 'pairavi' in the case of murder of his father. He came back in the evening and informed that cross-examination would be conducted on 24.4.2008. In the intervening night of 22/23.4.2008 at about 03:00 AM accused Nanku son of Sundar, Ram Chander alias Chander, Shiv Nath and Alakh Ram son of Jiledar entered into the house of complainant and started indiscriminate firing upon Santosh, who died at the spot. When informant raised an alarm, all the accused ran away after abusing and threatening her. Paras Nath Misra, Ram Janam and other villagers arrived. Written report was submitted at the police station on 23.4.2008 at 05:00 AM. A case at crime No. 118/2008, under section 302, 449, 504, 506 IPC and 7 Criminal Law Amendment Act was registered at police station Kodia, district Gonda. Station Officer of the police station S.I. A.N. Upadhyay himself undertook the investigation. Inquest proceedings began on 23.4.2008 at 06:00 AM and concluded at 09:00 AM. Dead body was sealed and sent for postmortem. Plain and blood stained earth, empty cartridges were recovered. Postmortem of the dead body of Santosh (deceased) was conducted on the same day on 23.4.2008 at 04:05 PM. On 24.4.2008 accused Alakh Ram was arrested by the police and country made pistol of 12 bore was recovered on his pointing out along with a cartridge. Investigating Officer prepared the site plan, recorded the statement of witnesses. Plain and blood stained earth and the recovered country-made pistol was sent to forensic science laboratory. After concluding the investigation charge-sheet was submitted against the accused Ram Chander alias Chander, Shiv Nath, Alakh Ram and Nanku. 3. Accused were charged under section 449, 302/34, 504, 506(2) IPC and 7 Criminal Law Amendment Act who denied the charges and claimed trial. 4. After concluding the investigation charge-sheet was submitted against the accused Ram Chander alias Chander, Shiv Nath, Alakh Ram and Nanku. 3. Accused were charged under section 449, 302/34, 504, 506(2) IPC and 7 Criminal Law Amendment Act who denied the charges and claimed trial. 4. In order to prove its case prosecution has produced PW-1 Ram Janam Tiwari (declared hostile), PW-2 Sunita Devi informant and wife of the deceased-eyewitness, PW-3 Paras Nath (declared hostile), PW-4 Constable Akhilesh Kumar Misra, who is scribe of the chik FIR, PW-5 SI Akhilanand Upadhyay, Investigating Officer, PW-6 Dr. Roop Chandra, who has conducted the autopsy of the dead body of the deceased. In the statement under section 313 Cr.PC accused have stated that they have been falsely implicated. 5. In defence DW-1 Raj Kumar, DW-2 Ram Kewal, DW-3 Hari Ram, DW-4 Moti Lal, DW-5 Ram Sanehi have been produced. 6. After appreciating the evidence on record, learned trial court found the accused-appellants guilty of the charges levelled against them and accordingly convicted and sentenced. 7. We have heard Shri Shishir Pradhan, learned counsel for the appellant, M.Y. Ansari learned A.G.A.and perused the record. 8. According to the prosecution version, deceased Santosh Kumar died in the intervening night of 22/23.4.2008 at 03:00 AM due to firearm injuries. Inquest proceedings were conducted on 23.4.2008 at 06:00 AM while the postmortem was done by PW-6 Dr. Roop Chandra on 23.4.2008 at 04:05 PM. Doctor found the following injuries on the body of deceased. (i) Firearm wound of entry 6 cm x 4 cm x cavity deep on the left side of forehead. Margins inverted. Blackening of skin and charring present. Left frontal bone fractured. One yellow metallic bullet of 3 cm x 0.5 cm found in the left lobe of brain. (ii) Firearm wound of entry 4 cm x 4 cm x through and through on lateral aspect of left forearm, 8 cm below the elbow joint. Margins inverted. (iii) Firearm wound of exit 7 cm x 4 cm x through and through on the medial aspect of the forearm, 2 cm below elbow joint, margins inverted. On opening the injury No. 2 and 3, 19 small metallic pellets found. 9. According to the doctor, death could have been caused due to ante mortem injuries. Duration was about one day. It is established from the statement of PW-6 Dr. On opening the injury No. 2 and 3, 19 small metallic pellets found. 9. According to the doctor, death could have been caused due to ante mortem injuries. Duration was about one day. It is established from the statement of PW-6 Dr. Chandra that the deceased died due to the firearm injuries. Now it is to be seen as to whether the injuries were caused by the accused persons which caused the death ? 10. Learned counsel for the appellants submits that the prosecution has failed to prove its case beyond reasonable doubt. It is submitted that the PW-1 Ram Janam and PW-3 Paras Nath have not supported the prosecution version. There is the sole testimony of PW-2 Sunita Devi who is the wife of the deceased. She is an interested witness. Murder of the deceased has been committed by some unknown persons but accused have been falsely implicated due to enmity. It is further submitted that the defence witnesses have also proved that the manner in which incident is alleged to have been committed is not proved. There was no source of light, hence, accused could have not been identified. 11. Per contra, learned A.G.A. submits that prosecution has successfully proved the charges against the accused. Testimony of PW-2 Sunita Devi is wholly reliable as although she is the wife of deceased but she is a natural witness who was sleeping in the house. She will not spare the real assailants and falsely implicate the appellants. It is further submitted that the testimony of the defence witnesses itself proves the charges against the accused. Place of occurrence is not disputed by the defence. 12. Now it is to be seen as to whether the prosecution has been able to prove the charges against the accused beyond reasonable doubt? 13. Incident took place at 03:00 AM while the first information report was lodged at 05:00 AM by PW-2 Sunita Devi. She submitted a written report at the police station which was scribed by B.P. Shukla. PW-2 Sunita Devi has stated that she went to the police station along with Munna and Rajendra. Written report was written in the Kaudia Bazar. Incident occurred at 03:00 AM while the report was lodged at 05:00 AM. It is a prompt FIR which could not be disbelieved. 14. PW-1 Ram Janam Tiwari has been declared as hostile. PW-2 Sunita Devi has stated that she went to the police station along with Munna and Rajendra. Written report was written in the Kaudia Bazar. Incident occurred at 03:00 AM while the report was lodged at 05:00 AM. It is a prompt FIR which could not be disbelieved. 14. PW-1 Ram Janam Tiwari has been declared as hostile. He has stated that he heard a noise of fire at 03:00 AM. He did not saw as to who has committed the murder of Santosh but he has seen the dead body of Santosh in his house. He is also a witness of recovery of plain and blood stained earth which has been proved by him. PW-3 Paras Nath has also been declared as hostile. He is also named in the first information report. He has stated that when he entered the house of Santosh he saw the dead body of Santosh. There was a light of lantern. He is also a witness of inquest. Although this witness has been declared hostile but he has stated in the examination in chief that when he entered the house of Santosh he saw that there was a light of lantern. His house is two houses away from the house of deceased. This witness has not been cross-examined on the point that there was a light of lantern. It is settled legal position that the testimony of hostile witness cannot be thrown away as a whole. 15. In Devraj v. State of Chhattisgarh, (2016) 13 SCC 366 , Hon'ble Apex Court has placed reliance upon Khuji v. State of M.P., (1991) 3 SCC 627 . It was held in para 6 of the judgment that :- "6. ....... The evidence of PW-3 Kishan Lal and PW-4 Ramesh came to be rejected by the trial court because they were declared hostile to the prosecution by the learned Public Prosecutor as they refused to identify the appellant and his companions in the dock as the assailants of the deceased. But counsel for the State is right when he submits that the evidence of a witness, declared hostile, is not wholly effected from the record and that part of the evidence which is otherwise acceptable can be acted upon. But counsel for the State is right when he submits that the evidence of a witness, declared hostile, is not wholly effected from the record and that part of the evidence which is otherwise acceptable can be acted upon. It seems to be well settled by the decisions of this Court - Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389 , Rabindra Kumar Dey v. State of Orissa (1976) 4 SCC 233 and Syad Akbar v. State of Karnataka (1980) 1 SCC 30 - that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof." 16. Although testimony of PW-3 Paras Nath is not supporting the prosecution version, but it is to be relied upon to the extent that the place of occurrence is fixed by this witness which is the house of Santosh. Secondly, there was the light of lantern. Hence, so far as source of light is concerned, it is established by the testimony of PW-3 Paras Nath that there was light of lantern at the place of incident. 17. Now we have to look into the testimony of PW-2 Sunita Devi. 18. Admittedly, Sunita Devi is the wife of the deceased. It is also admitted by her that on 22.4.2008 deceased Santosh had gone to court at Gonda to depose in the case of murder of his father wherein the present accused were also accused. His cross-examination was deferred for 24.4.2008. Hence, it is established that there was enmity between the parties. 19. It has been held by the Hon'ble Apex Court that testimony of relative or interested witness could not be disbelieved merely on this ground rather court has to be more circumspect in appreciating the evidence of such witnesses. On the point of related witness, reference may be made to the pronouncement of Hon'ble the Apex court in the case of Sheesh Ram and others v. State of Rajasthan reported in (2014) 3 SCC 689 wherein Hon'ble the Apex Court in paragraph no. 10 has observed as under:- "10. On the point of related witness, reference may be made to the pronouncement of Hon'ble the Apex court in the case of Sheesh Ram and others v. State of Rajasthan reported in (2014) 3 SCC 689 wherein Hon'ble the Apex Court in paragraph no. 10 has observed as under:- "10. It is submitted that all these witnesses are related and therefore their evidence cannot be relied upon. Assuming they are related to each other and, hence, interested witnesses, it is well settled that the evidence of interested witnesses is not always suspect. It has to be scrutinised with caution and can be accepted if it is found reliable." 20. It is also settled that wife of the deceased or relative witness would not spare the real assailants in order to falsely implicate the innocent person. It was held by the Hon'ble Apex Court in Bhagwan Dass v. State of Rajasthan (1974) 4 SCC 781 in paragraph 11 that relative witness would never spare the real assailants and would falsely implicate the other persons. "11...................... It is also difficult to believe that Chunki would spare the real assailant and falsely mention the name of the accused as a person who was responsible for the injuries caused to her and the three deceased persons. Chunki, it may be stated, has not been shown to have any animus against the accused." 21. So far as enmity is concerned, enmity is a double edged weapon which could be used for false implication as well as for committing the crime. It was held by the Hon'ble Apex Court in Sunil Kundu and Another v. State of Jharkhand, (2013) 4 SCC 422 that:- "enmity is a double edged weapon but possibility of false involvement because of deep rooted enmity also cannot be ruled out." 22. In the backdrop of these legal propositions if we examine the testimony of PW-2 Sunita Devi, we found that she is a natural witness who was sleeping in the house. She got awakened on hearing the sound of fire. She was sleeping in the 'angan' while her husband was sleeping in the room. In the light of the lantern she identified the accused who was running from the place of incident. In the site plan investigating officer has shown the place of incident by 'X' while 'angan' is shown towards east. She was sleeping in the 'angan' while her husband was sleeping in the room. In the light of the lantern she identified the accused who was running from the place of incident. In the site plan investigating officer has shown the place of incident by 'X' while 'angan' is shown towards east. Accused came in the house of deceased from the eastern side and also ran away towards eastern side. PW-5 S.I. Akhilanand Upadhyay has stated that he prepared the site plan on the pointing out of informant. Investigating Officer has not been cross-examined on the point of source of light. PW-2 Sunita Devi has specifically stated that there was the light of lantern in which she has identified the accused. In her cross-examination also she has stated that lantern was lighting where Santosh was sleeping. Source of light has not been challenged by the defence in the cross-examination of PW-2 Sunita Devi. Presence of lantern is also established by the un-controverted statement of PW 3 Paras Nath. Accused were known to PW-2 Sunita Devi, hence, there was no confusion about their identification. Even DW-1 Raj Kumar has stated that there was enmity between the deceased and the accused. This witness has tried to prove the alibi of accused Ram Chander, Hari Ram. He has stated that he along with Ram Chander, Hari Ram was present in the marriage of Nakched Gosai. Defence of alibi has to be proved beyond doubt. Nakched Gosai has not been produced in defence. Even the accused Ram Chander have not stated in his statement under section 313 Cr.PC that he had gone in the marriage. He has not taken the plea of alibi, hence, the plea of alibi as taken by the defence, could not be accepted. All the witnesses namely DW-1 to DW-5 have given a general statement about Ram Chander that he had gone in the marriage which could not be established, rather it is established from the statement of defence witnesses that there was enmity between the parties. 23. Presence of PW-2 Sunita Devi is also established by the statement of PW-2 Sunita Devi. It has been suggested to this witness that she was having some illicit relations with one Ramesh. Deceased objected to it. 23. Presence of PW-2 Sunita Devi is also established by the statement of PW-2 Sunita Devi. It has been suggested to this witness that she was having some illicit relations with one Ramesh. Deceased objected to it. Then she along with Ramesh has committed the murder of Santosh but the defence as taken by the accused-appellants could not be substantiated by any evidence available on record, rather it is established by DW-4 Moti Lal that accused Alakh Ram, Nanku were accused in a trial of murder of father of Santosh. During pendency of that trial Santosh was also killed. It finds support from the version of PW-2 Sunita Devi wherein it is stated that on 22.4.2008 deceased had gone to court at Gonda to depose in the case of murder of his father. When he came back then he told PW-2 Sunita Devi that the cross examination has been deferred for 24.4.2008. This fact stands proved by the testimony of DW-4 Moti Lal that the accused in this trial were also accused in the trial of murder of father of Santosh. Hence, there was a motive with the accused to commit the murder of Santosh as he was a witness against them. It is strong motive which is duly proved. 24. PW-2 Sunita Devi has specifically stated that she was sleeping in the 'angan'. She got awakened on hearing the sound of fire wherein she saw the accused running from the house. Accused entered in the house after crossing the boundary wall which is small boundary wall. Accused also ran away by crossing the same boundary wall. There is no discrepancy in the testimony of PW-2 Sunita Devi, hence, the statement of PW-2 Sunita Devi is wholly reliable. 25. PW-5 SI Akhilanand Upadhyay has investigated the case and submitted the charge-sheet. He had also recovered the empty cartridges from the place of incident. A country-made pistol was also recovered subsequently from the possession of the accused which was a separate trial. According to the report of the forensic science laboratory Lucknow the recovered cartridge was fired by the pistol recovered from the possession of the accused. 26. Place of occurrence is established by the prosecution by their evidence. Manner of incident is also proved. Source of light is the light of lantern. According to the report of the forensic science laboratory Lucknow the recovered cartridge was fired by the pistol recovered from the possession of the accused. 26. Place of occurrence is established by the prosecution by their evidence. Manner of incident is also proved. Source of light is the light of lantern. There was an enmity between the accused and deceased which was strong motive for committing the murder of the deceased by the accused. 27. On the basis of the discussion made above, we are of the considered view that the learned trial court has rightly appreciated the evidence on record and convicted the accused appellants. 28. Accused-appellants Alakh Ram and Nanku alias Vipin Chand has been sentenced for imprisonment for life and fine of Rs. 100000/- with default stipulation of 10 years' rigorous imprisonment. So far as payment of fine is concerned, we are not inclined to disturb it but so far as imprisonment in default of payment of fine is concerned, we have considered the period of imprisonment which is 10 years' imprisonment. Section 65 IPC provides that the term for which the court directs the offender to be imprisoned in default of payment of fine, shall not exceed th of the term of imprisonment, which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine. Appellants No. 3 and 4 namely Alakh Ram and Nanku alias Vipin Chand have been awarded 10 years' imprisonment in default of payment of fine which is not in consonance with the provisions of Section 65 IPC. Accordingly, the period of imprisonment in default of payment of fine so far as it relates to Alakh Ram and Nanku alias Vipin Chand is modified to three years' imprisonment. 29. Likewise fine of Rs. 20,000/- was imposed by the learned trial court upon the accused Ram Chander alias Chander and Shiv Nath with a default stipulation of five years' rigorous imprisonment, which is also reduced to two years' imprisonment. 30. Accordingly, appeals are partly allowed. Conviction of the appellants as imposed by the learned trial court is confirmed. (i) Sentence as awarded by the trial court to Ram Chander alias Chander under section 449 IPC, 504 IPC, 506(2) IPC and 7 Criminal Law Amendment Act are confirmed. Appellant is sentenced to imprisonment for life along with a fine of Rs. Accordingly, appeals are partly allowed. Conviction of the appellants as imposed by the learned trial court is confirmed. (i) Sentence as awarded by the trial court to Ram Chander alias Chander under section 449 IPC, 504 IPC, 506(2) IPC and 7 Criminal Law Amendment Act are confirmed. Appellant is sentenced to imprisonment for life along with a fine of Rs. 20000/- with default stipulation of two years' imprisonment under section 302/34 IPC. (ii) Sentence as awarded by the trial court to Shiv Nath under section 449 IPC, 504 IPC, 506(2) IPC and 7 Criminal Law Amendment Act are confirmed. Appellant is sentenced to imprisonment for life along with a fine of Rs. 20000/- with default stipulation of two years' imprisonment under section 302/34 IPC. (iii) Sentence as awarded by the trial court to Alakh Ram under section 449 IPC, 504 IPC, 506(2) IPC and 7 Criminal Law Amendment Act are confirmed. Appellant is sentenced to imprisonment for life along with a fine of Rs. 100000/- with default stipulation of three years' imprisonment under section 302/34 IPC. (iv) Sentence as awarded by the trial court to Nanku alias Vipin Chand under section 449 IPC, 504 IPC, 506(2) IPC and 7 Criminal Law Amendment Act are confirmed. Appellant is sentenced to imprisonment for life along with a fine of Rs. 100000/- with default stipulation of three years' imprisonment under section 302/34 IPC. 31. Accused-appellants are in jail. They shall serve out the sentence as imposed by the learned trial court and modified by this Court. 32. Office is directed to certify the judgment to the learned lower court forthwith. Office is further directed to send the lower court record to the learned trial court forthwith. Learned trial court should send the compliance report within eight weeks.