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2017 DIGILAW 713 (ALL)

TRIBHUWAN v. STATE OF U. P.

2017-03-07

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2017
JUDGMENT : 1. Heard Sri Ashok Kumar Singh, learned counsel for the appellant, Sri A.N. Mulla, Sri Sagir Ahmad and Sri J.K. Upadhyay, learned A.G.A.s. for the State. 2. This appeal is directed against the judgement and order dated 09.02.1989 passed by the IIIrd Additional Sessions Judge, Azamgarh in S.T. No. 190 of 1988 (State versus Tribhuwan), arising out of Case Crime no. 28 of 1988, under Section 302 I.P.C., Police StationAhiraula, District Azamgarh, by which the accused appellant Tribhuwan was convicted and sentenced to imprisonment for life under Section 302 I.P.C. 3. Briefly stated the facts of this case are that PW1 complainant Jhulai, son of Purdul Kohar, resident of Chak Brahimi, P.S. Ahiraula lodged a written report (Ext.Ka1) at police station Ahiraula on 11.03.1988 at about 11:30 A.M., stating therein that marriage between the accused appellant Tribhuwan son of Baijnath was solemnized about one year ago with deceased Smt. Phoola. A few days before the occurrence, she had returned from her paternal home to her matrimonial home in village Chak Brahini. On the day of occurrence the father-in-law and mother-in-law of the deceased Smt. Phoola had gone to the field for cutting sugarcane in the morning while the accused appellant and his wife had stayed back in their house. At about 8:30 A.M. some altercation took place between them and thereupon accused appellant Tribhuwan started stabbing his wife with a knife, on which she raised cries for help whereupon the complainant and other villagers rushed to their house and on reaching there they saw the accused appellant coming out of his house hastily followed by his injured wife Phoola with a knife pierced into her stomach and who after coming out of the house stumbled and then fell on the ground, while accused appellant Tribhuwan escaped away despite efforts made by the complainant to catch him. In the meantime parents of the accused appellant also reached the place of occurrence and pulled out the knife from the deceased's stomach. PW1 Jhulai went to the police station leaving behind the parents of accused appellant at the crime scene, weeping and waling and lodged the first information report of the occurrence. On the basis of the written report of the incident (Ext.Ka1) lodged by PW1 at police station Ahiraula, Case Crime no. 28 of 1988, under Section 302 I.P.C. was registered against the accused appellant. On the basis of the written report of the incident (Ext.Ka1) lodged by PW1 at police station Ahiraula, Case Crime no. 28 of 1988, under Section 302 I.P.C. was registered against the accused appellant. Chek F.I.R. (Ext.Ka6) and G.D. entry were prepared. The investigation of the case was entrusted to S.I. Maharajdeen who visited the spot and recorded the statements of the witnesses, collected plain and blood stained soil from the spot, seized crime weapon and prepared recovery memos of the aforesaid articles. He also prepared the site plan of the incident and after completing the inquest, prepared inquest report and other documents and dispatched the dead body of the deceased for conducting postmortem. Thereafter the investigation was transferred to PW5 Gokaran Singh, S.O. police station Ahiraula who after completing the investigation submitted charge sheet against the accused appellant under section 302 I.P.C. before the Chief Judicial Magistrate, Azamgarh. 4. Since the offence enumerated in the charge sheet was cognizable exclusively by the court of Session, the Chief Judicial Magistrate, Azamgarh committed the case for trial of the accused to the court of Sessions Judge, Azamgarh whereupon it was registered as S.T. No. 190 of 1988 and made over for trial from there to the court of IIIrd Additional District & Sessions Judge, Azamgarh. On the basis of the material collected during investigation, after hearing the accused on the point of charge, framed charge against the accused appellant under section 302 I.P.C. The accused pleaded not guilty and claimed trial. 5. In order to prove its case against the accused appellant the prosecution examined as many as five witnesses. PW1 Jhulai, PW2 Kaushalya and PW3 Gajraj were examined as witnesses of fact while, PW4 Bholanath Dwivedi and PW5 Gokaran Singh were examined as formal witnesses. 6. PW-1 Jhulai also proved the written report (Ext.Ka-1), recovery memo of blood stained earth (Ext.Ka-2), recovery memo of blood stained knife (Ext.Ka-3) and inquest report (Ext.Ka-4), while PW5 Gokaran Singh proved the charge sheet (Ext.Ka-5), Chek F.I.R. (Ext.Ka-6), copy of extract of G.D. (Ext.Ka-7), site plan (Ext.Ka-8), Form nos. 13 and 33 (Ext.Ka-9 & Ext.Ka-10), photo lash (Ext.Ka-11) and letter addressed to C.M.O. for conducting postmortem (Ext.Ka-12) 7. Learned counsel for the accused appellant admitted the genuineness of the contents of postmortem report and consequently its formal proof was dispensed with and the same was marked as Ext.Ka13. 8. 13 and 33 (Ext.Ka-9 & Ext.Ka-10), photo lash (Ext.Ka-11) and letter addressed to C.M.O. for conducting postmortem (Ext.Ka-12) 7. Learned counsel for the accused appellant admitted the genuineness of the contents of postmortem report and consequently its formal proof was dispensed with and the same was marked as Ext.Ka13. 8. The accused appellant in his statement recorded under Section 313 Cr.P.C. though admitted that Smt. Phoola was his legally wedded wife but denied his presence in the house when the occurrence took place and claimed that she was all alone in the house at the time of incident. He denied having committed the murder of his wife or inflicted any injury on her. He also stated that he has been falsely implicated due to enmity. He further stated that at the time of occurrence his wife Smt. Phoola was all alone in the house and it appears that some of her friends from her parental side had come to his house in the absence of inmates of the house and forced her to accompany them and on her refusal to do so, she was done to death by them by inflicting knife injuries on her. The accused appellant neither examined any defence witness nor produced any documentary evidence. 9. The IIIrd Additional Sessions Judge, Azamgarh after considering the submissions advanced before him by learned counsel for the parties and scrutinizing the evidence on record convicted the accused appellant under section 302 I.P.C. and awarded life sentence to him. 10. Hence this appeal. 11. Learned counsel for the accused appellant submitted that the incident occurred at about 8:30 A.M., whereas the F.I.R. was lodged at 11:30 A.M. and considering the distance between police station and the place of occurrence which is about 15 kms and in view of the testimony of PW1 complainant Jhulai that he had covered the entire distance on foot it was humanly impossible for him to reach the police station within three hours and lodge the F.I.R. at 11:30 A.M. Thus from the statement of PW1 as well as the time at which the F.I.R. of the incident was registered, it appears that the incident had taken place much before 8:30 A.M. and the time of the incident was changed by the prosecution to make the presence of witnesses at the place of occurrence probable and natural. He next submitted that two out of three witnesses of fact produced by the prosecution during the trial for proving its case having failed to support the prosecution case, PW1 in his cross-examination and PW2 in her examination-in-chief and the testimony of PW3 being wholly unreliable in view of it being replete with inherent contradictions, inconsistencies and material improvements there was no legally admissible available on record on the basis of which the trial court could have convicted the accused appellant. 12. Learned counsel for the appellant further submitted that oral evidence on record neither inspires confidence nor appears to be trustworthy or unimpeachable nor it stands corroborated from any other material and hence the recorded conviction of the appellant on the basis thereof is totally unsustainable and liable to be set aside. 13. Per contra, learned A.G.A. submitted that notwithstanding minor contradictions, discrepancies and improvements in their testimonies the prosecution case as spelt out in the F.I.R. stood fully proved from the evidence of PW1 Jhulai and PW3 Gajraj which found further corroboration from the medical evidence on record. 14. He next submitted that PW1 Jhulai had in his examination-in-chief categorically deposed that appellant Tribhuwan was present in his house at the time of occurrence and that part of his testimony having remained unchallenged as the defence counsel failed to cross-examine PW1 on the aforesaid aspect, the presence of appellant Tribhuwan in his house at the time of occurrence stood fully proved and what had happened inside his house and who had stabbed his wife was within his especial knowledge and he having failed to come up with any explanation about the occurrence it shall be deemed that he had committed the murder of his wife. Failure of PW1 to support the prosecution case in cross-examination would not effect the prosecution case adversely. Appellant further miserably failed to prove by any evidence that his wife was done to death by her friends of her parental side who had come to his house in the absence of the inmates of his house and forced her to accompany them and when she refused they stabbed her to death, the finding of conviction recorded by the trial court against the appellant is based upon cogent evidence and sentence awarded to him is supported by relevant considerations and hence warrants no interference by this Court. 15. 15. We have heard learned counsel for the parties and very carefully scanned the entire lower court record. The instant case is one of the most unfortunate instance of a married girl Smt. Phoola aged about nineteen years being brutally murdered in her matrimonial home in village Chak Brihini at about 8:30 A.M. on 11.03.1988. 16. The only question which arises for our consideration in this case is whether the prosecution has been able to prove its case against the accused appellant beyond all reasonable doubt or not. 17. As far as the place of occurrence and the manner of assault as spelt out in the F.I.R. is concerned, there is no challenge to the same by the learned counsel for the appellant. 18. The first ground on which the learned counsel for the appellant has challenged the conviction of the appellant is that the time of occurrence mentioned in the F.I.R. is extremely doubtful and the F.I.R. of this case which has been lodged by PW1 Jhulai is antetimed and wholly unreliable. Record shows that PW1 Jhulai had deposed that the distance between the place of occurrence and police station Ahiraula is about 15 kms. and admitted that he had gone to the police station on foot for lodging the F.I.R. which was lodged by him at 11:30 A.M., that is within three hours of the occurrence. 19. It is true that at first sight it may appear difficult to believe that a person can cover a distance of 1215 kms. on foot within three hours but it is not wholly impossible, considering the fact that at the time of incident, P.W.1 Jhulai was a young man, aged about 28 years. In normal circumstance, a distance of one kilometre can be covered by a young and healthy man within 1012 minutes. At that speed, P.W.1 Jhulai could have easily walked the distance of 15 kms from the place of occurrence to the police station within three hours. 20. Moreover, the defence having failed to cross examine P.W.1 Jhulai on the aforesaid aspect of the matter during the trial, it is not open to the appellant's counsel either to challenge the correctness of the time of the incident mentioned in the F.I.R or the time at which it was registered at the police station on the aforesaid ground. 21. Moreover, the defence having failed to cross examine P.W.1 Jhulai on the aforesaid aspect of the matter during the trial, it is not open to the appellant's counsel either to challenge the correctness of the time of the incident mentioned in the F.I.R or the time at which it was registered at the police station on the aforesaid ground. 21. Record further indicates that P.W.1 Jhulai, in his evidence, has deposed that the police had arrived at the place of occurrence between 8 to 8:30 p.m. which fact, according to learned counsel for the appellant is a clinching circumstance which indicates that the incident had taken place much before the time stated in the F.I.R. and the written report of the incident was scribed after due deliberations and on the advice of the police, falsely implicating the appellant as an accused in the present case. There is no merit in the aforesaid submission of learned counsel for the appellant also in view of the fact that P.W.3 Gajraj on page 23 of the paper book, in his cross examination has clearly deposed that the policemen on beat duty had reached the place of occurrence after receiving information about the incident. Thus, the correctness of the time of registration of the F.I.R. of the incident mentioned in the F.I.R. and the time of its registration at police station cannot be doubted on the ground of police having arrived at the place of incident before registration of the F.I.R. 22. Moreover, the medical evidence on record substantially corroborates the time of occurrence mentioned in the F.I.R. In this regard, it would be useful to refer to the postmortem report of the deceased which is on record as (Ex.Ka.13). The postmortem of the dead body of the deceased was performed by Dr. S.K. Gupta on 12.03.1988 at about 2 p.m. 23. Dr. S.K. Gupta noted as many as seventeen antemortem injuries on different parts of the dead body of the deceased including face, neck, axilla, left arm, left forearm, back of proximal phalanx of left index finger, chest, abdominal cavity on left side of upper part of abdomen, right side of upper part of abdomen, right side of chest 3 cm below the right axilla, knee joint and upper part of right leg. 24. The cause of death was stated to be shock and hemorrhage as a result of antemortem injuries. 24. The cause of death was stated to be shock and hemorrhage as a result of antemortem injuries. The estimated time of death was opined to be about 11/ 4 days which comes to 30 hours. The time of incident, calculated on the basis of medical evidence, comes to around 8 a.m. Since the contents of (Ex.Ka.13) were admitted by the defence counsel by making endorsement on the postmortem report in this regard, it is not open to learned counsel for the appellant to challenge the correctness of the time of incident mentioned in the F.I.R. at the appellate stage and the prosecution has succeeded in proving that the incident had taken place between 8 to 8:30 A.M. 25. Credibility of the F.I.R. in this case has been challenged by the appellant's counsel on the ground that first signature of P.W.1 Jhulai were obtained on a blank piece of paper and then the written report of the incident (Ex.Ka.1) scribed on it. In support of his aforesaid contention, he has invited our attention to page 17 of the paper book on which P.W.1 Jhulai in his cross examination has deposed that he did not remember whether he had put his signatures on a blank paper or on a written application. We are not inclined to doubt the credibility of the F.I.R. in this case in view of the aforesaid piece of testimony of P.W.1 for the simple reason that P.W.1 in his examination-in-chief on page 16 of the paper book has categorically stated that he and P.W.3 Gajraj had gone to the police station and given a written complaint of the incident to “ Daroga Ji”. He had further admitted his signature on the written report of the incident (Ex.Ka.1). Merely because in his cross examination he started vacillating and saying that he did not remember whether his signature was obtained on a blank paper or on a written application, will not by itself make any doubt in otherwise proved F.I.R. based on aforesaid scrutiny. 26. The next question which arises for our consideration is that whether the prosecution has succeeded in proving by any cogent and reliable evidence that the deceased was murdered by accused appellant Tribhuwan. 27. The prosecution in order to prove its case had examined as many as three witnesses namely, PW1 Jhulai, PW2 Kaushalya and PW3 Gajraj. 26. The next question which arises for our consideration is that whether the prosecution has succeeded in proving by any cogent and reliable evidence that the deceased was murdered by accused appellant Tribhuwan. 27. The prosecution in order to prove its case had examined as many as three witnesses namely, PW1 Jhulai, PW2 Kaushalya and PW3 Gajraj. Of these PW1 in his examination-in-chief fully supported the prosecution case as spelt out in the F.I.R. and admitted his signatures on the written report of the incident (Ext.Ka1) which was lodged by him at policestation Ahiraula and further deposed that at the time of occurrence accused appellant, Tribhuwan was present in his house. However he in his cross examination on pages 17 and 18 of the paper book he started vacillating and deposed that he did not remember whether the written report of the incident was written at the police station or elsewhere or he had put his signature on a written application or on a blank paper. He further stated on the same page of the paper book in his cross examination that when he had reached the place of occurrence, PW2 Kaushalya, PW3 Gajraj and some other persons had already arrived there but he denied either having seen the appellant Tribhuwan at the place of occurrence when he had reached there or him running away there from. He further stated that at the behest of the villagers who were present at the place of incident he had nominated the appellant Tribhuwan as accused in the F.I.R. and stated that he had run away from the crime scene after stabbing his wife. 28. As far as PW2 is concerned she has failed to support the prosecution case by deposing that when she had reached the place of occurrence she had heard people talking that Tribhuwan had run away after stabbing his wife with knife. She denied having either seen the occurrence or the accused appellant at the place of occurrence or his running away there from. 29. PW3 Gajraj, star witness of this case has in his examination-in-chief categorically deposed that on the date of occurrence at about 8:30 A.M. he was working in his field which was adjacent to the field of accused appellant. On hearing the noise made by the boys he asked them to break open the door. 29. PW3 Gajraj, star witness of this case has in his examination-in-chief categorically deposed that on the date of occurrence at about 8:30 A.M. he was working in his field which was adjacent to the field of accused appellant. On hearing the noise made by the boys he asked them to break open the door. Upon hearing the voice of PW3 appellant, Tribhuwan came out of his house with his wife and although he tried to stop him but Tribhuwan did not listen to him and stabbed his wife in the stomach and in the side as a result Phoola fell at the threshold of her house and died within two or four minutes. The incident was witnessed by Ram Chandra, Jhulai, Jagannath, Kaushalya and other persons. Record however shows that there are material omissions and contradictions in his evidence visavis the facts stated by him in his statement recorded under Section 161 Cr.P.C. Although PW3 in his evidence tendered during the trial had deposed that while he was working in his field which was adjacent to that of the accused, on hearing noise made by the boys he had ordered them to break open the door and on hearing his voice Tribhuwan had opened the door of his house and had come out of his house followed by his wife and although he tried to stop him but Tribhuwan stabbed his wife in her stomach and in the side, the aforesaid facts were conspicuous by their absence in his statement recorded under section 161 Cr.P.C. Moreover, in his statement under Section 161 Cr.P.C. he had stated that at the time of incident he was present in his house and that accused appellant Tribhuwan had stabbed her very badly and when the door of his house opened all the people present there tried to stop him but on seeing PW3 and the huge crowd which had gathered in front of his house he in a haste stabbed his wife in her stomach and escaped on his bicycle although the deceased despite her injuries tried to catch him by holding his bicycle. On being confronted with the aforesaid omissions and contradictions in his testimony he expressed his inability to come up with any explanation as to why the Investigating Officer had failed to record those facts which he had stated in his evidence, in his statement recorded under section 161 Cr.P.C. while certain facts which he had not stated before the I.O. found mention in his statement. However, the Investigating Officer in his cross examination reflected positively on the omissions and contradictions and proved his statement recorded under Section 161 Cr.P.C. 30. Thus, upon a wholesome and critical evaluation of the oral evidence on record, we find that two out of three witnesses of fact who were produced by the prosecution for proving the guilt of the accused appellant PW2 had fully supported the prosecution case in his Examination-in-chief. However, PW1 in his cross-examination, took a uturn and denied that he had either seen the appellant Tribhuwan at the place of occurrence or him stabbing his wife with a knife or running away from the crime scene. He further tried to create a doubt about the credibility of the F.I.R. by deposing in his cross examination that he did not remember whether he had signed on a blank paper or a written application containing the particulars of the occurrence. It is also true that the prosecution neither got PW1 declared hostile nor reexamined on the facts elicited by him in his cross examination and hence as argued by learned counsel for the appellants, we should accept the facts stated by PW1 in his cross examination to be true and acquit the appellant. At the first glance, the argument of learned counsel for the appellants appears to be very attractive but on a deeper scrutiny of the examination-in-chief of PW1, it emerges that PW1 in his examination-in-chief had categorically deposed that at the time of occurrence, the appellant Tribhuwan was in his house. It is interesting to note that the aforesaid testimony of PW1 had remained unchallenged. It is interesting to note that the aforesaid testimony of PW1 had remained unchallenged. The defence had not cross examined PW1 on the aforesaid aspect of the matter and hence, in our opinion, on the basis of the above question piece of evidence of PW1 Jhulai, even if we accept the appellant's counsel's aforesaid submission to be correct, the prosecution has succeeded in proving that the accused appellant Tribhuwan was present in his house with his wife at the time of occurrence. 31. Once the presence of accused appellant in his house along with his wife, is established for ascertaining whether accused appellant Tribhuwan had dealt knife blows to his wife, causing injuries to her, which caused her instantaneous death, we have to look into the evidence of PW3 Gajraj. It is true that there are omissions and improvements in his testimony of which we have already taken note of but one thing which sticks out promptly from his testimony, notwithstanding the omissions, contradictions and improvements made by him in his evidence is that on reaching the place of occurrence, he had seen the appellant Tribhuwan stabbing his wife with a knife and the appellant running away from the place of incident after his wife had fallen on the ground and died as a result of knife injuries inflicted on her by accused appellant Tribhuwan. The medical evidence on record further corroborates the prosecution case that appellant had dealt several knife blows to the deceased Phoola. The medical report further indicates that the deceased had died due to shock and hemorrhage as a result of antemortem injuries. 32. Thus, upon a wholesome and critical evaluation of the oral as well as the medical evidence on record, we find that the prosecution has fully succeeded in proving its case against the accused appellant Tribhuwan and established that he had murdered his wife brutally by stabbing her with a knife. 33. We do not find any merit in the arguments advanced by learned counsel for the appellant that the F.I.R. in this case is unreliable or antetimed or that the testimonies of witnesses of fact examined on behalf of the prosecution on being evaluated on the touchstone of the reliability, trustworthiness and truthfulness, neither inspire confidence nor appears to be unimpeachable. 34. 34. The occurrence had taken place in broad daylight between 8:00 to 8:30 a.m. on 11.03.1988 in village Abadi in the house of the accused appellant Tribhuwan and the deceased, which was surrounded by a cluster of houses. The presence of the witnesses, who are the close neighbours of the deceased at the place of occurrence, is perfectly natural. The first information report of the incident was promptly lodged by a neighbour probably because neither the accused appellant Tribhuwan nor his other family members were willing to take the lead in the matter. Although appellant in his statement recorded u/s 313 Cr.P.C. had pleaded that at the time of occurrence, he was not present in the house and his wife had been murdered by her friends belonging to her parental side, who had visited his house in his absence and forced his wife to accompany them and when she declined, they committed her murder but the appellant miserably failed to prove the aforesaid fact by leading any evidence. He has also not been able to prove his absence from his house at the time of incident by any reliable evidence although, he claimed that he was not present in his house when the murder of his wife was committed. After the registration of the F.I.R., the Investigating Officer of the case had promptly reached at the place of incident and after holding the inquest report and completing other formalities, had dispatched the dead body of the deceased for postmortem. The estimated time of death mentioned in the postmortem report of the deceased (Ex.Ka.13) fully corroborates the time of incident mentioned in the F.I.R. The accused appellant having been found guilty of having brutally murdered his young wife, who was hardly 19 years of age at the time of the incident and who had been married to him only about one year before, no fault can be found either with his conviction or the awarded sentence. 35. In view of the foregoing discussion, we do not find that the Trial Court has committed any illegality, infirmity or perversity in convicting the appellant u/s 302 IPC and awarding life imprisonment to him. Learned counsel for the appellant has failed to make out any case warranting any interference either with the finding of guilt recorded by the Trial Court in the impugned judgement or with the awarded sentence. 36. Learned counsel for the appellant has failed to make out any case warranting any interference either with the finding of guilt recorded by the Trial Court in the impugned judgement or with the awarded sentence. 36. The appeal lacks merit and is accordingly dismissed. There shall be however no order as to costs.