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2017 DIGILAW 557 (ALL)

SHYAM SINGH v. STATE OF U. P.

2017-02-16

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2017
JUDGMENT : (By the order of the Court) List has been revised. None appears on behalf of the appellant to press this appeal, although, name of Sri V. K. Jaiswal is printed in the cause list, as counsel for the appellant. Record reflects that appellant- Shyam Singh- was enlarged on bail by this Court on 05.10.1988. However, when this appeal came up for hearing on 15.12.2016, case was called out in the revised list, but none appeared on behalf of the appellant to press this appeal. The following order was passed by us on 15.12.2016:- "Case called out in the revised list. No one is present on behalf of the appellant to press this appeal. Perused the order sheet. This appeal is of the year 1988. Record shows that the appellant is on bail. In view of above, issue non-bailable warrant against accused-appellant Shyam Singh through Chief Judicial Magistrate, Meerut returnable at an early date. In case the appellant surrenders and/or are arrested, he shall be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to the undertaking that he shall appear before this Court on the next date fixed. Chief Judicial Magistrate, Meerut shall submit his report along with copies of bail bonds and sureties furnished by the appellant. List on 16.01.2017." In response to the aforesaid order, C.J.M. Meerut has forwarded his report dated 10.01.2017 to this Court, perusal whereof discloses that appellant- Shyam Singh had left his village- Sadhon Ki Nangli, Rampur, Police Station-In-chauli, District-Meerut-, where he was residing at the time of filing of this appeal about 20 years before and his whereabouts were not known. It is apparent that neither the appellant nor his counsel are interested in the disposal of this appeal. Faced with the aforesaid contingency, the question which arises before us is that whether we are bound to adjourn the matter in the absence of both the appellant and his counsel. Under identical circumstances, the Apex Court after a comprehensive analysis of previous decisions on the issue has distilled the legal position into six propositions in paragraph 19 of its judgment delivered in the case of K.S. Panduranga v. State of Karnataka (2013) 3 SCC 721 : 19.1. That the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits; 19.2. That the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits; 19.2. That the Court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent; 19.3. That the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so;" 19.4. That it can dispose of the appeal after perusing the record and judgment of the trial court; 19.5. That if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the appellant-accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and 19.6. That if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation. Thus, in view of the legal position propounded by the Apex Court in the case of K.S. Panduranga (Supra), we proceed to examine this appeal on merits with the help of Sri A.N. Mulla assisted by Sri Saghir Ahmad, Sri J.K. Upadhyay, Kumari Meena, learned A.G.As. and Smt. Manju Thakur, Sri Syed Hasan Shaukat Abidi and Sri Ravindra Mani Pal, learned brief holders for the State. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 04.04.1988 passed by the Ist Additional Sessions Judge, Meerut, in Sessions Trial No.172 of 1987 (State Vs. Syam Singh), arising out of case crime no.16, under Sections 302 and 307 IPC, Police Station-In-chauli, District- Meerut, whereby accused appellant has been sentenced to life imprisonment and five years R.I., respectively. Both the sentences were directed to run concurrently. The facts of this case are that the injured Smt. Sumitra was the second wife of accused- Shyam Singh. Km. Anita and Km. Sunita (both deceased) were born out from their wedlock. Km. Sunita and Km. Anita were aged one and a half years and 13 years, respectively, on the date of occurrence. The accused-appellant had one son- Tej Singh- from his first wife. Both father and son were employed in a factory at NOIDA. Km. Anita and Km. Sunita (both deceased) were born out from their wedlock. Km. Sunita and Km. Anita were aged one and a half years and 13 years, respectively, on the date of occurrence. The accused-appellant had one son- Tej Singh- from his first wife. Both father and son were employed in a factory at NOIDA. About 5-6 days before the occurrence, the accused-appellant had come to his village for harvesting and appellant was joined by his son Tej Singh. About two days later, the accused-appellant suspected the chastity of his wife-Sumitra-and her having illicit relationship with his son- Tej Singh. On the night of the incident, the accused-appellant had returned to his house at about 4 a.m., while his wife and her daughters had slept inside their thatched hut. A quarrel took place between spouses on the suspicion of wife having illicit relationship with his son Tej Singh. On the same day at about 10.30 a.m., while the injured Smt. Sumitra was preparing food inside the kitchen and the accused- Shyam Singh was feeding 'kheer' to his younger daughter- Sunita- near the main entrance of his house, his elder daughter- Anita pulled out cot and put the same at that very place. The accused-appellant first stabbed Sunita (younger daughter) by knife, thereafter he attacked Anita (elder daughter) with the same weapon. When Smt. Sumitra (injured) tried to rescue her daughters, she was also assaulted with knife on her face. On hearing alarm raised by Sumitra Devi- Vijaipal, Hardev, Atar Singh and Raj Singh- reached the place of occurrence and rescued Smt. Sumitra Devi. They caught hold of the accused- Shyam Singh, snatched the knife (weapon of assault) from his hand and took him to the police station, where a written report of the incident was lodged by Vijaipal at 12.30 P.M. This written report is Exhibit Ka-1. Blood stained knife was handed over by Vijaipal- informant- to the police, which was kept in a sealed cover after preparing a recovery memo, which is Exhibit Ka-2. Contents of written report were taken down in the concerned Check FIR at Case Crime No.16, under Sections 302 and 307 IPC at Police Station- Inchauli, District- Meerut on 10.01.1987 at 12.30 P.M. Check FIR is Exhibit Ka-4. Contents of written report were taken down in the concerned Check FIR at Case Crime No.16, under Sections 302 and 307 IPC at Police Station- Inchauli, District- Meerut on 10.01.1987 at 12.30 P.M. Check FIR is Exhibit Ka-4. On the basis of entry made in the Check FIR, a case was registered against the accused- appellant in the concerned General Diary of aforesaid date and time at Case Crime No.16. Copy of the concerned General Diary is Exhibit Ka-5. The investigation of the case was handed over to Sri B.L. Yadav P.W.8., Ram Swarup Sharma, Head Moharrir, P.W.4 had registered the case. During investigation, Investigating Officer Sri B.L. Yadav P.W.8, after completing necessary formalities, interrogated the accused-appellant Shyam Singh and thereafter proceeded to the spot. On the place of occurrence, he recorded statements of informant- Vijaipal, injured- Smt. Sumitra Devi and collected blood- stained cloth of Sumitra Devi. He prepared site plan of the spot, which is Exhibit Ka-20. He also collected simple and blood stained clay-roll and prepared its recovery memo, Exhibit Ka-21. S.I. Shanker Singh Chauhan P.W.7 held inquest of deceased- Km. Anita and Km. Sunita. Inquest reports of the deceased are on record as Exhibits Ka-8 and Ka-9. In the opinion of inquest witnesses and the Investigating Officer, it was thought proper to send the body for postmortem examination so as to ascertain real cause of death. Therefore, relevant papers were prepared and the dead bodies of the deceased- Km. Anita and Km. Sunita were sealed and sent for postmortem examination. The autopsy of dead bodies of Km. Anita and Km. Sunita was conducted by Mahesh Kumar Arya P.W.9 at 03.05 P.M. who noted following injuries on their bodies:- Injuries on the cadaver of Km. Sunita:- 1. Incised wound 2 cm. x 1 cm. x muscle deep on left side chin 2 cm. below left angle of mouth. 2. Incised wound 9 cm. x 2.5 cm. x vertebrae deep on front of neck 4th vertebrae cut and oesophagoes trachea, large blood vessel of both side of neck, and muscle cut. 3. Incised wound 1 cm. x 0.5 cm. x muscle deep front of left side of chest 7 cm. above the left nipple at 11'O clock position. 4. Incised wound 1 cm. x 0.3 cm. x muscle deep front of epigastric region. Injuries on the cadaver of Km. Anita:- 1. Incised wound 2.5 cm. x 0.8 cm. 3. Incised wound 1 cm. x 0.5 cm. x muscle deep front of left side of chest 7 cm. above the left nipple at 11'O clock position. 4. Incised wound 1 cm. x 0.3 cm. x muscle deep front of epigastric region. Injuries on the cadaver of Km. Anita:- 1. Incised wound 2.5 cm. x 0.8 cm. x muscle deep over right eye front of neck 5 cm. above clavicle. 2. Punctured wound 1.5 cm. x 0.5 cm. x chest cavity deep left side of front of chest 6 cm. above left nipple at 12 O' clock position. 3. Punctured wound 1.5 cm. x 1 cm. x chest cavity deep on left side chest 9.5 cm. below the left nipple at 7 O' clock position. 4. Punctured wound 1.5 cm. x 0.5 cm. x cavity deep on back of right side of chest 2 cm. left to the mid line 1.5 cm. outer to right scapula. The death of both of them was opined to have been caused by shock and haemorrhage, which had resulted from the aforesaid ante-mortem injuries and the injuries were said to be sufficient to cause death in the ordinary course of nature. It was also opined that the death was possible at 10.30 A.M. on 10.1.1987 and the injuries were possible from a knife. In the cross-examination he has stated that in the duration of death a margin of six hours is possible both ways and Anita must have taken food about 3 hours before the death as digested food was present in the stomach. It is denied that margin of duration could be of 12 hours. From his statement it is clearly borne out that Anita and Sunita died of knife injuries and the death was possible at about the time of occurrence as set forth in the FIR Dr. H.B. Sharma P.W.6 examined Smt. Sumitra and found the followed two injuries on her person: Injuries sustained by injured Sumitra Singh:- 1. Incised wound 0.8 cm. x 0.3 cm. x muscle deep on the left side fore-head, 1 cm. above the left eye brow. 2. Incised would, 0.5 cm. x 0.2 cm. x skin deep on the left side nose, upper part. Both the injuries were stated to be simple and opined to have been caused by a sharp-edged weapon. It is also stated that they could be of 10.30 A.M. on 10.1.1987. above the left eye brow. 2. Incised would, 0.5 cm. x 0.2 cm. x skin deep on the left side nose, upper part. Both the injuries were stated to be simple and opined to have been caused by a sharp-edged weapon. It is also stated that they could be of 10.30 A.M. on 10.1.1987. The examination was done by him at 6.30 P.M. on 10.1.1987 and the injuries were stated to be fresh. On the same day at about 5:45 P.M. he examined the accused Shyam Singh also and found the following injuries on his person:- Injuries sustained by accused-appellant Shyam Singh:- 1. Abrasion 1.5 cm. x 1 cm. on the right cheek prominance. 2. Abrasion 1 cm. x 0.5 cm. on the right side cheek, 3 cm. outer to the right angle of mouth. 3. Abraded contusion 7 cm. x 2 cm. on the back of right fore-arm, upper part. Kept under observation. 4. Traumatic swelling 3.5 cm. x 3 cm. on the dorsum of right hand. Kept under observation. 5. Incised wound 3.5 cm. x 0.5 cm. x bone deep on the dorsum and outer aspect of right index finger, obliquely situated. Kept under under observation. Injury no.5 was opined to have been caused by sharp weapon and the others by blunt. Duration was stated to be fresh. P.W.6 in his evidence tendered during the trial opined that the incised wound on the index finger of the accused was possible during the course of the knife being snatched away from him. During the course of investigation, Sri B.L. Yadav, P.W.8 recorded statements of the witnesses and after completing the investigation, filed charge-sheet against the accused-appellant on 27.01.1987, which is Exhibit Ka-22. Proceeding of the case was committed to the court of Sessions. As a sequel to that, this case was made over for trial and disposal to the court of Ist Additional Sessions Judge, Meerut. Appellant was heard on point of charge and the trial court was prima facie satisfied with the case against the accused-appellant. Therefore, it framed charges against the accused-appellant under Sections 302 and 307 IPC. Charges were read over and explained to the accused, who abjured charges and opted for trial. Appellant was heard on point of charge and the trial court was prima facie satisfied with the case against the accused-appellant. Therefore, it framed charges against the accused-appellant under Sections 302 and 307 IPC. Charges were read over and explained to the accused, who abjured charges and opted for trial. The prosecution in order to prove guilt of the accused examined as many as nine prosecution witnesses; Sumitra P.W.1, Vijaipal Singh P.W.2, Atar Singh P.W.3, Ram Swarup Sharma P.W.4, Shri Pal Singh P.W.5, Dr. H.B. Sharma P.W.6, Shanker Singh P.W.7, B.L. Yadav P.W.8 and Mahesh Kumar Arya P.W.9. Except as above, no other testimony was adduced, therefore, evidence of the prosecution was closed and statement of the accused was recorded under Section 313 Cr.P.C., wherein, he claimed to have been falsely implicated in this case due to enmity with informant- Vijaipal. He also claimed that he doubted the chastity of his wife but he did not suspect that he had illicit relations with her son. The defence did not lead any evidence whatsoever. Learned trial Judge after considering the case on its merit returned aforesaid finding of conviction and sentenced to life imprisonment and five years R.I. to the accused-appellant under Sections 302 and 307 IPC, respectively. Consequently, this appeal. We have very carefully perused the submissions advanced before us by the learned AGA and perused the record of this appeal. Record shows that the incident had taken place in broad daylight on 10th January, 1987 at 10.30 A.M. In that incident, accused-appellant is said to have assaulted his wife Sumitra P.W.1 and his daughters- Km. Anita and Km. Sunita with knife. As a result of assault, his wife- Sumitra sustained severe injuries while his daughters- Km. Anita and Km. Sunita died. The FIR of the incident was lodged promptly by Vijaipal Singh P.W.2 on 10th January,1987 at about 12.30 P.M. The crime weapon- knife- was recovered by Vijaipal Singh P.W.2 from the accused-appellant and handed over by him to the police at the police station at the time of lodging of the FIR. The three eye-witnesses examined on behalf of the prosecution, for proving the guilt of the accused-appellant, namely, Sumitra P.W.1, Vijaipal Singh P.W.2 and Atar Singh P.W.3 have fully supported the prosecution case as spelt out in the FIR in all material points. The three eye-witnesses examined on behalf of the prosecution, for proving the guilt of the accused-appellant, namely, Sumitra P.W.1, Vijaipal Singh P.W.2 and Atar Singh P.W.3 have fully supported the prosecution case as spelt out in the FIR in all material points. The accused also filed a written statement and stated therein that on the date of the occurrence, between 6.00 A.M. to 7.00 A.M., 3 to 4 bandits came to his house and overpowered him while he was coming out of his house, beat him and trapped him near the subsidiary canal after tying him with a rope. After the bandits had departed, he came back to his house and found both his daughters dead and his wife injured and after that when he went to lodge report of the occurrence at the police station, he was detained by the police there and when the police returned to the police station after visiting his village, he was implicated in this case at the instance of Vijaipal P.W.2, who wanted to usurp his land. It was also stated that his wife had given a false statement against him under the pressure of the police and that the alleged recovery of knife from his possession, had also been fabricated. Out of the three witnesses of fact produced by the prosecution, P.W.1 Sumitra, the injured wife of the accused was examined as the eye-witness of the occurrence. Her presence at the place of incident at the time of the occurrence cannot be doubted, in view of knife injuries received by her in the occurrence. Her injury report is on record, as Ex.Ka.6, and the same has been duly proved by Dr. H.B. Sharma P.W.6, who had examined her injuries. Sumitra P.W.1- wife of the accused-appellant- in her evidence recorded before the trial court has fully supported the prosecution case, as spelt out in the FIR, in all material particulars. She narrated in her testimony that how the murder of her two daughters was committed by the accused-appellant and how knife injuries were inflicted by him. Apart from proving the written report of the incident, Ex.Ka.1, Vijaipal P.W.2 deposed that on hearing the noise, he reached the place of occurrence and saw the accused-appellant armed with weapon (knife) and his daughters lying dead. He further deposed that his house is in the vicinity of the place of occurrence. Apart from proving the written report of the incident, Ex.Ka.1, Vijaipal P.W.2 deposed that on hearing the noise, he reached the place of occurrence and saw the accused-appellant armed with weapon (knife) and his daughters lying dead. He further deposed that his house is in the vicinity of the place of occurrence. He (P.W.2) had further testified that as soon as he reached the place of occurrence, accused-appellant Shyam Singh tried to escape. However, after chasing him for about 40 paces, he caught him and snatched away the knife from him, which he was carrying in his hand. Another prosecution witness Atar Singh P.W.3 was also examined by the trial court and he was declared hostile, after he deposed before the trial court that when he had reached the place of occurrence, he merely saw Vijaipal P.W.2 snatching away the knife from the accused. The facts stated by him were recorded under Section 161 Cr.P.C. to the effect that he had seen the accused-appellant stabbing his daughters and when upon being confronted with his statement under Section 161 Cr.P.C., he denied having given any such statement as an eye-witness of the incident. Atar Singh P.W.3 was cross-examined by the D.G.C.(Criminal) with the permission of the court, but he stuck to his evidence given by him in his examination-in-chief. Sumitra P.W.1 and Vijaipal P.W.2 were subjected to long-drawn cross-examination by the defence counsel, but he failed to bring out anything from them, which could discredit the prosecution story. It is true that certain discrepancies were pointed out by the defence counsel in the evidence of Sumitra P.W.1 and Vijaipal P.W.2, which have been noticed and dealt with by the trial court on pages 14, 15, 16, 17 and 18 of the impugned judgment. It is true that certain discrepancies were pointed out by the defence counsel in the evidence of Sumitra P.W.1 and Vijaipal P.W.2, which have been noticed and dealt with by the trial court on pages 14, 15, 16, 17 and 18 of the impugned judgment. The discrepancies in the evidence of Sumitra P.W.1 and Vijaipal P.W.2 which were highlighted during the trial relate inter-alia to the time at which the accused had returned to his house on the day of the occurrence and quarreled with his wife before committing the murder of his daughters and causing injuries to his wife on doubt of his wife having illicit relationship with his stepson also apart from other villagers; the failure of Investigating Officer to collect any evidence from the spot indicating that the wife of the appellant was preparing meals at the time of the incident, as stated in the first information report and in her evidence tendered during the trial; with regard to the time of the incident in view of her evidence that she used to prepare meals at 6 or 7 A.M., while according to the prosecution, the incident had taken place between 10.00-10.30 A.M; and with regard to the time at which the accused was taken to the police station and non-explanation of the injuries found on the person of the accused-appellant. The aforesaid discrepancies were not found by the trial court to be material and in no way eroding the reliability of the prosecution case or to be of such clinching nature so as to effect the core of the prosecution case, rendering it unbelievable and unreliable. We do not find any reason to take a view different from that taken by the trial court. Upon a wholesome analysis and scrutiny of the oral evidence as well as documentary evidence on record, it transpires that it is fully established from the testimony of the prosecution witnesses of fact that accused-appellant- Shyam Singh had committed murder of his two daughters- Km. Anita and Km. Upon a wholesome analysis and scrutiny of the oral evidence as well as documentary evidence on record, it transpires that it is fully established from the testimony of the prosecution witnesses of fact that accused-appellant- Shyam Singh had committed murder of his two daughters- Km. Anita and Km. Sunita, aged about 13 years and one and a half years, respectively on 10.1.1987 at about 10:30 A.M. by stabbing them with a knife and caused injuries to his wife- Sumitra with the same weapon and when Vijaipal P.W.2 and Atar Singh P.W.3 and other neighbours of the accused-appellant, on hearing the cries of help raised by Sumitra, reached the place of incident, he tried to run away but he was caught by Vijaipal P.W.2 after chasing him for a few paces and the knife, which he was carrying in his hand was snatched away from him by Vijaipal P.W.2 and handed over to the police at the time of the lodging of the FIR, where he was taken by P.W.2 and other villagers. Although, the accused-appellant had in his statement recorded under Section 313 Cr.P.C. alleged false implication in the present case at the behest of P.W.2, who wanted to usurp his land and had further given a different version of the occurrence in his written statement in which he had stated that on the day of the occurrence, some bandits had raided his house and after overpowering him, they had beaten him and taken him to the subsidiary canal, where they had left him after tying him and when after the bandits had retreated, he reached his house and found his daughters dead and his wife injured, but he has failed to lead any evidence for proving that the incident had taken place in the manner, as described by him in his written statement. The knife injury, apart from incised wound, open deep on the outer aspect of right index finger and a few abrasions were found on the person of the accused-appellant, as is evident from his injury report, Ex.Ka.6, but Dr. H.B. Sharma, who examined his injuries and who had deposed himself as P.W.6 during the trial, had stated in his evidence that the incised wound found on the index finger of the accused-appellant might have been caused in the process of snatching of the crime weapon from him. H.B. Sharma, who examined his injuries and who had deposed himself as P.W.6 during the trial, had stated in his evidence that the incised wound found on the index finger of the accused-appellant might have been caused in the process of snatching of the crime weapon from him. The defence has failed to lead any evidence, which may give any credence to the defence version of the occurrence. It is not the case of the defence that the accused-appellant had also received injuries in the same incident which the prosecution had failed to account for. In so far as charge under Section 307 IPC is concerned, which relates to fact of causing injury to Sumitra, we on careful perusal of the injury report of Sumitra notice only two injuries in the injury report of Sumitra- Ex.Ka.7. Dimension has been given in form of:- 1. Incised wound 0.8 cm. x 0.3 cm. x muscle deep on the left side forehead, 1 cm. above the left eyebrow. 2. Incised wound 0.5 cm. x 0.2 cm. x skin deep on the left side nose, upper part. In the opinion of Dr. H.B. Sharma P.W.6 both the injuries were simple, caused by sharp weapon. Duration about fresh. Thus, looking to the simple nature of the two injuries, it cannot be said that death might have resulted and the same cannot be termed fatal. Certainly, the trial court misread the medical testimony and erroneously recorded conviction under Section 307 IPC, which we are unable to approve, as such. In view of above, the conviction of the accused-appellant as recorded under Section 307 IPC cannot be sustained and is scored out and substituted by Section 324 IPC. The sentence of five years' rigorous imprisonment awarded to him under Section 307 IPC is reduced to two years' rigorous imprisonment. However, we do not find any reason to interfere with the conviction of the appellant recorded under Section 302 IPC as well as sentence for imprisonment for life awarded for conviction under the aforesaid Section. Hence, this appeal stands partly allowed to the extent indicated herein above. The appellant's bail bonds have already been cancelled and he is absconding. CJM- Meerut is directed to make every possible endeavour to trace out the appellant- Shyam Singh and after taking him into custody, send him to jail to enable him to serve out the remaining period of his sentence. The appellant's bail bonds have already been cancelled and he is absconding. CJM- Meerut is directed to make every possible endeavour to trace out the appellant- Shyam Singh and after taking him into custody, send him to jail to enable him to serve out the remaining period of his sentence. CJM- Meerut shall submit his report in this regard to the Registrar General of this Court within three months. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.