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2017 DIGILAW 729 (ALL)

Satish Chandra Alias Toka Lal v. State

2017-03-08

KRISHNA PRATAP SINGH, RAMESH SINHA

body2017
JUDGMENT : Krishna Pratap Singh, J. Heard Sri Ram Ashish Pandey and Sri Devesh Mishra, learned counsel for the appellant, Sri Ashish Pandey, learned A.G.A. for the State. 2. The present Jail Appeal is directed against the judgment and order dated 12.12.2003 passed by learned Special Judge (E.C. Act)/Additional Sessions Judge, Farrukhabad in Session Trial No. 325 of 2001 arisen out of Case Crime No. 246 of 2001, under Section 302 Indian Penal Code, Police Station Kamalganj, District Farrukhabad (State v. Satish Chandra @ Toka Lal). By the impugned judgment learned trial Judge has convicted and sentenced the appellant-accused under Section 302 I.P.C. to serve life imprisonment along with a fine of Rs. 5,000/- and to undergo one year further imprisonment in default of payment of fine. 3. Briefly the facts of the case are as follows:- 4. Informant Kesh Ram PW-1 is the resident of Village-Nagla Jodha, Police Station-Kamal Ganj, District-Farrukhabad. Smt. Surjana PW-2 is the wife of informant Kesh Ram PW-1 and mother of the deceased Govind aged about six years. Appellant Satish Chandra @ Toka Lal is the real younger brother of informant Kesh Ram PW-1. The first information report of the present incident was lodged on 13.09.2001 at 14.15 p.m. at Police Station-Kamal Ganj, District-Farrukhabad, under Section 302 I.P.C. regarding an incident said to have been taken place on 13.09.2001 at about 11.45 a.m. in Village-Nagla Jodha situated at a distance of about nine kilometers from the police station. Allegations as per first information report are that the real younger brother of the informant, appellant-accused Satish Chandra @ Toka Lal had forcibly had as kept the informant's wife Smt. Surjana PW-2 for many years. In the night of occurrence informant Kesh Ram PW-1 had said to his wife Smt. Surjana PW-2 "if you want to live with me, you may live as my wife with all fidelity or else continue to live with him (appellant Satish Chandra @ Toka Lal) as you cannot live with both of us". This caused to appellant accused Satish Chandra @ Toka Lal to be angry with the informant. At the time of incident appellant-accused caught hold of the son of the informant the deceased Govind who had gone upstairs after returning from school and shouted to informant "come over to the rooftop or else I will shoot Govind". Thereupon informant said "I am going to the police station". At the time of incident appellant-accused caught hold of the son of the informant the deceased Govind who had gone upstairs after returning from school and shouted to informant "come over to the rooftop or else I will shoot Govind". Thereupon informant said "I am going to the police station". Appellant-accused Satish Chandra @ Toka Lal shouted "if you dare to step forward, I will open fire. I am counting 1, 2 and 3. If you do not come, I will shoot him". While uttering 1, 2 and 3, he shot the son of the informant Govind from a close range with a 12 bore country made pistol causing Govind's face to fly off and flesh thereof to be scattered here and there. Many persons were mute witnesses to the occurrence but nobody attempted to catch hold of appellant-accused. Holding country made pistol, appellant-accused fled away towards East through the rooftops. Hundreds of the village folks, wife of the informant Smt. Surjana (PW-2 ), son of informant Dharmendra and informant himself have seen the occurrence. It is also mentioned in the first information report that informant is a poor person. The appellant-accused is criminal minded person. He cannot say who will depose and who will not. The dead body of his son lying on the spot and his family members were there for the safety of the dead body. The informant went to the Police Station- Kamal Ganj, District-Farrukhabad and on the basis of first information report Exhibit Ka-1 given by the informant case was registered at police station. On the same day at about 14.15 p.m. by HCP Sher Khan PW-4, chik FIR Exhibit Ka-3 and GD Exhibit Ka-4 were prepared. Thereafter, the Investigating Officer, S.O. Som Nath Dubey PW-5 in whose presence the offence was registered commenced the investigation into the crime, recorded informant's statement at police station and went to the spot and took the dead body of the Govind in possession and inquest on dead body of the deceased was performed and inquest memo Exhibit Ka-5 and other relevant papers photo lash, challan lash, letter C.M.O., letter R.I. are Exhibit Ka-6 to Ka-9 were also prepared by A.C.P. Samar Bahadur Singh on the direction of Investigation Officer. Spot inspection was conducted by Investigating Officer and site plan Exhibit Ka-9 was sketched. Spot inspection was conducted by Investigating Officer and site plan Exhibit Ka-9 was sketched. Blood stained, plain balu (sand) and cement from the roof were collected and recovery memo Exhibit Ka-10 thereof was prepared. Investigating Officer during the course of investigation recorded statement of the witnesses. After completion of investigation charge sheet Exhibit Ka-11 was forwarded against the appellant-accused. 5. Postmortem examination on the dead body of the deceased Govind was performed by Doctor P.K. Gupta PW-3 on 14.09.2001 at about 2.45 p.m. The dead body was brought to the Doctor by Constable Rajendra Singh and Chaukidaar Ramvilash who had identified the dead body. On his cadaver Doctor had noted the following ante-mortem injuries:- Eyes, Mouth and Face Absent (1) Fire arm injury involving left temporal region of skull, face (whole). Margin on left side of head are inverted, echimosed and lacerated ? in area of 3 Cm. x 3 Cm. blackening and tattooing near left ear. This wound trans (pass) through cranial cavity exposing it? badly broken skull bones and tearing of brain and wound was communicating to exterior on right side of skull and face, Margins were everted and lacerated, wound was through and through and one day old. Cause of death of the deceased was shock and haemorrhage due to ante-mortem fire arm injuries. Postmortem examination report of deceased Govind is Exhibit Ka-2. 6. On the strength of submitted charge-sheet, the appellant-accused was summoned. Since disclosed offence was exclusively triable by the Sessions Court. The learned Chief Judicial Magistrate Farrukhabad committed the case to the Court of Sessions where it was registered as Session Trial No. 325 of 2001 (State v. Satish Chandra @ Toka Lal). The aforesaid Sessions Trial was transferred to the Court of Special Judge (E.C. Act)/Additional Sessions Judge, Farrukhabad for trial. 7. Learned Sessions Judge charged the appellant-accused with offence under Section 302 I.P.C. on 19.01.2002. Charge after being read over and explained to the appellant-accused. Appellant-accused pleaded not guilty and claimed to be tried and consequently Sessions trial procedure was restored to establish the guilty of the appellant-accused. 8. In order to prove its case, the prosecution has examined informant Kesh Ram PW-1 and Smt. Surjana PW-2 as witnesses of fact. Charge after being read over and explained to the appellant-accused. Appellant-accused pleaded not guilty and claimed to be tried and consequently Sessions trial procedure was restored to establish the guilty of the appellant-accused. 8. In order to prove its case, the prosecution has examined informant Kesh Ram PW-1 and Smt. Surjana PW-2 as witnesses of fact. Doctor P.K. Gupta PW-3 who conducted the postmortem examination on the dead body of the deceased, H.C.P. Sher Khan PW-4 and Investigating Officer Sub-Inspector Som Nath Dubey PW-5 who conducted the investigation and submitted the charge-sheet against the appellant-accused are formal witnesses. 9. Kesh Ram PW-1 has given detailed description of the incident and has assigned the role of firing to the present appellant-accused. He has also stated that the appellant-accused present in the Court is his real younger brother. He had elicit relation with his wife Smt. Surjana PW-2. He has no knowledge from when he had this relation with her wife. Around 5-6 months before the occurrence, he became aware of the relations between his wife Smt. Surjana PW-2 and appellant-accused Satish Chandra @ Toka Lal; following which he persuaded his wife several times and gave her a beating too. However, the illicit relations between his wife Smt. Surjana PW-2 and appellant-accused Satish Chandra @ Toka Lal continued. 10. In the night before the occurrence, he bedded his wife beside him and tried to make her understand the point that she might at her pleasure to live either with him or with appellant-accused Satish Chandra @ Toka Lal; but certainly not as a bed partner to both the persons. On that night, he kept a watch over them all through it; as a result of which his wife and Satish Chandra @ Toka Lal could not have sexual intercourse. His brother appellant-accused Satish Chandra @ Tokal Lal tried to meet to his wife many times in the night but he could no do so. Being angry over it, Satish Chandra @ Toka Lal went upstairs and sat on the roof top. He went towards the fields and returned home. He further stated that the occurrence took place some 5 or 5 months ago. At around 11-12 o'clock in the day, his son Govind returned home from school. After removing the bag, Govind climbed onto the rooftop through stairs. He went towards the fields and returned home. He further stated that the occurrence took place some 5 or 5 months ago. At around 11-12 o'clock in the day, his son Govind returned home from school. After removing the bag, Govind climbed onto the rooftop through stairs. On the rooftop, appellant-accused Satish Chandra @ Toka Lal was sitting with country made pistol in his hand. Satish Chandra @ Toka Lal caught hold of Govinda and issuing threat, he said, "come over to me, or else I will kill Govind." He said to Satish Chandra @ Toka Lal (accused) "I am going to the police station." He warned, "if you take a step towards the police station, I will kill Govinda." He added, "I am counting one, two and three;and I will shoot Govind, if you do not come up at the counting of three." At this point, the witness counted one, two and three, using lines on his finger and at the counting of three, accused Satish Chandra @ Toka Lal fired bullet from a point blank range at the head of his son Govind; following which his face was blown into pieces and scattered all over the place; and he fell down dead. 11. He has further deposed that this occurrence was witnessed by many standing village folks. Out of fear, none of them tried to catch hold of Satish Chandra @ Toka Lal (accused), because he was a man of criminal nature. After committing murder of his son Govind, the accused fled towards the East crossing the enclosure (hata). The occurrence was witnessed by his wife, his son Dharmendra and him as also by other villagers. None one of the villager is ready to give evidence against the accused Satish Chandra @ Toka Lal. He has no hope whether any villager will speak the truth against the accused or not. He has also stated that out of sheer fear, none accompanied him to the police station to get the report lodged. He went alone to lodge the report at the police station. He had left his wife and children sitting near the body. On the way, he came across Suresh Pandit Ji. He met him in Kamal Ganj. He asked him to write his report and he narrated him the whole incident. Suresh Pandit Ji wrote down all those things which he had dictated to him. He had left his wife and children sitting near the body. On the way, he came across Suresh Pandit Ji. He met him in Kamal Ganj. He asked him to write his report and he narrated him the whole incident. Suresh Pandit Ji wrote down all those things which he had dictated to him. Thereafter, he read over the contents to him and had his thumb impression on the report. With the tehrir (written report), he went to the police station and got the report lodged there. A copy of the case registered was given to him. The tehrir is paper no. 5A on record. On showing it to the witness, he had said that it was the same thumb impression which he had made on the tehrir (5A). The witness was read over the contents of the tehrir; whereupon he stated that it was the contents he had dictated to Suresh Pandit Ji for being written down. It was marked as Exhibit Ka-1. The testimony of Kesh Ram, PW-1 is consistent and nothing has come out in his cross-examination to disbelieve his testimony. He denied the suggestion that there has been any dispute between the parties relating to the any agricultural land. 12. Smt. Surjana PW-2 has also supported prosecution case and given similar statement. She has deposed that accused Satish Chandra @ Toka Lal is her husband's younger brother (Devar). He is also known as Tika. Prior to the occurrence he used to tease her. This incident occurred around one year back. In the night preceding the occurrence, her husband, her issues and she herself were lying on the rooftop. Her three issues, namely, Govind, Dharmendra and Mamta were there. Her (devar) Satish Chandra @ Toka Lal committed eve-teasing with her. He had admitted eve-teasing earlier on several occasions. On this, her husband said, "Satish Chandra @ Toka Lal, go and have a sleep at ground floor, why are you teasing like this." Some altercation took place and being angered Satish Chandra @ Toka Lal threatened to kill her husband. After that, nothing took place in the night. On the next morning Satish Chandra @ Toka Lal climbed onto the rooftop carrying a country made pistol. Her issues Govind and Dharmendra had left for school. On Satish's coming to the rooftop she apprehended that he might kill any of us. After that, nothing took place in the night. On the next morning Satish Chandra @ Toka Lal climbed onto the rooftop carrying a country made pistol. Her issues Govind and Dharmendra had left for school. On Satish's coming to the rooftop she apprehended that he might kill any of us. At the time of occurrence she was standing on the northern door of her house. Her husband and her son Dharmendra were also with her. At the same time Govind had returned from the school but she and Govind had not seen each other. Govind went upstairs looking for us. She further stated that her (devar) Satish Chandra @ Toka Lal was already present in the rooftop. Her (devar) Satish Chandra @ Toka Lal took hold of Govind and called out to her husband from the rooftop, "Come to me, I will deal with you and if you do not come, I will shoot Govind." Her husband said to Satish Chandra @ Toka Lal, "If you do not stop, I am going to police station". Satish Chandra @ Toka Lal exhorted, "If you step forward, I will open fire". Satish Chandra @ Toka Lal threatened again, "I am starting the count and if you do not come to me, I will shoot Govind". Satish Chandra @ Toka Lal started counting and uttering 1, 2 & 3 shot her son Govind in his head from a close range with a country made pistol held in his hand. Govind's head was blown into pieces and scattered here and there causing his instantaneous death on the spot. Her (devar) Satish Chandra @ Toka Lal holding country made pistol fled eastwards. Looking at Satish Chandra @ Toka Lal present in the Court, the witness said that her Devar Satish Chandra @ Toka Lal is the murderer of her son Govind. The villagers tried to catch hold of him but her Devar fled away. Some people did not try to catch hold of him being afraid of the country made pistol. Thereafter, all of us climbed up to the rooftops. Other people of the village had also come upstairs. Govind's dead body was lying on the rooftop and the splinters of his head were scattered. Out of fear, the villagers did not testify Satish Chandra @ Toka Lal. None from the village had gone to lodge report with her husband. Thereafter, all of us climbed up to the rooftops. Other people of the village had also come upstairs. Govind's dead body was lying on the rooftop and the splinters of his head were scattered. Out of fear, the villagers did not testify Satish Chandra @ Toka Lal. None from the village had gone to lodge report with her husband. Her husband went to the police station to lodge report and she remained present near dead body. Police reached the occurrence scene after an hour and did paper work and having sealed the dead body sent it to the hospital. The testimony of this witness is consistent and there is no ground to disbelieve her. 13. After closure of prosecution evidence, statement of appellant accused under Section 313 Cr.P.C. was recorded. In his examination under Section 313 Cr.P.C. the defence of the appellant was that of denial and false implication due to family dispute. Appellant has also stated that informant used to fight with the appellant-accused to part away with his share of the agricultural land of which he and his mother were cultivating. No share had been given to the informant in the agriculture land. To grab the entire agricultural land his brother informant and his Bhabhi Smt. Surjana PW-2 have falsely implicated him in the present case. The appellant-accused has further stated that deceased Govind was murdered to some other place in some other manner. Appellant-accused did not lead any oral or documentary evidence in defence. 14. After appreciating the evidence on record, the trial Court convicted the appellant as above. Hence instant appeal. 15. Learned counsel for the appellant-accused has submitted that the appellant-accused is innocent and have falsely been implicated in the present case due to family dispute. It was further submitted that the FIR is belated without any satisfactory explanation. So called witnesses of fact are interested and partisan as they are husband and wife and has given contradictory statement which go to falsify the whole prosecution story. It is also submitted that the prosecution has fully failed to prove its case beyond reasonable doubt. The judgment and order passed by the learned trial Court is not sustainable in the eye of law and is liable to be quashed. 16. It is also submitted that the prosecution has fully failed to prove its case beyond reasonable doubt. The judgment and order passed by the learned trial Court is not sustainable in the eye of law and is liable to be quashed. 16. Learned A.G.A. for the State has submitted that in this case prompt FIR has been lodged and prosecution witnesses are found to be wholly reliable and trustworthy. He has further submitted that the appellant accused has come with vague defence of property dispute but no specific enmity and property dispute could be brought to the notice of the Court to show such defence of false implication has any substance. It is also submitted that the appellant-accused is the person who had fired with the country made pistol at deceased Govind and caused his death. So the case of the prosecution stands fully proved and criminal appeal is liable to be dismissed. 17. We have considered the submissions advanced by the learned counsel for the parties and perused the judgment of the trial Court as well as record of the case. 18. The first point to be considered in the present case is the delay in lodging FIR. The incident of this case alleged to have taken place on 13.09.2001 at 11.45 a.m. and the FIR of this case has been lodged on the same day at 14.15 p.m. i.e. only after 2 hours and 30 minutes of the incident. According to the chik report the distance of the village from the police station was 9 kilometers. During this period informant must have made some arrangement to proceed the police station. His son aged about 6 years was murdered. Considering the facts and circumstances of the present case, there is no delay in lodging FIR therefore in the present case prompt FIR has been lodged and specific allegation of firing by country made pistol on the deceased Govind has been assigned to the present sole appellant-accused. 19. We have seen that Kesh Ram PW-1 and Smt. Surjana PW-2 fully and completely supported the case of prosecution. Kesh Ram PW-1, is the father of deceased child and Smt. Surjana PW-2 is the mother of the deceased. Kesh Ram PW-1 and Smt. Surjana PW-2 have depicted an eye to eye picture of what transpired on the fateful day. 19. We have seen that Kesh Ram PW-1 and Smt. Surjana PW-2 fully and completely supported the case of prosecution. Kesh Ram PW-1, is the father of deceased child and Smt. Surjana PW-2 is the mother of the deceased. Kesh Ram PW-1 and Smt. Surjana PW-2 have depicted an eye to eye picture of what transpired on the fateful day. Both these witnesses of fact have gone lengthy cross-examination but nothing in their cross-examination could be elicited which makes their evidence unreliable. From the place of occurrence police has recovered blood stained and plain sand (Balu) and cement which established the place of occurrence. The place of occurrence was inspected on the same day by the Investigating Officer and place 'D' has been shown where from fire was opened which hit the deceased. The dead body of the deceased was found at point 'A'. The distance between the two points was only two paces. The place where these witnesses (Kesh Ram PW-1 and Smt. Surjana PW-2) were present in the house has been shown in the site plan Exhibit Ka-9 at point 'E'. So all these persons were very close to each other and this incident has taken place in broad day light at 11.45 a.m. and there was ample opportunity for the witnesses to see the incident and recognize the assailant. Their evidence is very consistent regarding the role played by the present sole appellant and they have stated that appellant is the person who had fired at the deceased from close range and their evidence stands fully corroborated by the medical evidence wherein one fire wound was found on the left side of the head, near the left ear. Eyes, mouth and face were found absent. Blackening and tattooing was present around the wound in area of 3 Cm. x 3 Cm. Learned counsel for the appellant has challenged the evidence of these witnesses on the grounds that there are some contradictions in the evidence of these witnesses. But we find only minor discrepancies in the evidence of these two witnesses. Minor discrepancies are bound to occur. It does not make their evidence unreliable. 20. The evidence of the Kesh Ram PW-1 and Smt. Surjana PW-2 has also been challenged on the ground that they are related and interested witnesses. But we find only minor discrepancies in the evidence of these two witnesses. Minor discrepancies are bound to occur. It does not make their evidence unreliable. 20. The evidence of the Kesh Ram PW-1 and Smt. Surjana PW-2 has also been challenged on the ground that they are related and interested witnesses. There is no dispute to the fact that Kesh Ram PW-1 is the father of the deceased and Smt. Surjana PW-2 is the mother of the deceased. But there is no law that evidence of close relatives cannot be acted upon even if they are wholly reliable and their presence at the scene of the occurrence stands established. In a judgment passed in case of Gurjit Singh @ Gora v. State of Haryana (2015) 4 SCC 380 , Hon'ble Apex Court has observed in para-17 as under:- "It is settled law, that the statement of a relative of the deceased cannot be discarded merely on the ground of that he or she is an interested party." 21. In the present case the incident is alleged to have taken place in dwelling house of the deceased informant Kesh Ram PW-1 and his wife Smt. Surjana PW-2. Though they are father and mother of the deceased. But they are the most natural witnesses because they are inmates of the house and their presence at the scene of occurrence cannot be doubted. Why these close relatives of the deceased would spare the real assailant and falsely implicate the innocent person who is his real brother and Devar. The defence could not show that their defence is probable. The case of the defence is not probable that he has been falsely implicated due to dispute of agricultural land. Neither such enmity could be elicited in the cross-examination of the witnesses of fact nor any such specific enmity was suggested. 22. It has also been submitted by learned counsel for the appellant that according to the statement of the witnesses the occurrence was witnessed by many other villagers but no villager has examined in the case. It was also submitted that prosecution has examined only interested and partisan witnesses. So it would not be safe to convict the appellant only on the evidence of interested witnesses. 23. It was also submitted that prosecution has examined only interested and partisan witnesses. So it would not be safe to convict the appellant only on the evidence of interested witnesses. 23. It is true that Kesh Ram PW-1 and Smt. Surjana PW-2 being father and mother of the deceased can be said that they are interested witnesses but they are not chance witnesses. We have seen that the occurrence has taken place in dwelling house of the informant. Both, these are the natural witnesses. While appreciating the evidence the Court cannot ignore the ground realities. In the present day world people avoid to become witness in criminal cases. Hon'ble Apex Court in case of Shiv Ram v. State of U.P., (1998) SCC 149 has considered this aspect and was of the view that now a days it is a common tendency that no outsider would like to get involve in a criminal case much less in the crime of present magnitude. Therefore, it is quite natural that no independent witness will come forward to assist the prosecution. It is well settled that the evidence of witnesses cannot be discarded only on the ground that they are close relatives of the deceased person but what is required in such situation is that the Court must scrutinize the evidence of such witnesses with utmost care and caution. We have carefully scrutinized the evidence of Kesh Ram PW-1 and Smt. Surjana PW-2 and come to the conclusion that there is an impress of truth in it. Both the witnesses of fact are truthful and wholly reliable and their statement are fully corroborated and supported by the documentary and medical evidence. Therefore there is no obstacle in the way of accepting the evidence of Kesh Ram PW-1 and Smt. Surjana PW-2. The Court may pass its judgment on the statement of such relative witnesses. 24. On the basis of above discussions, we are of the considered view that the prosecution has been able to prove its case beyond all reasonable doubt against the appellant. The charge of murder levelled against the appellant is well proved, therefore, the appellant has been rightly held guilty and has been rightly convicted for life imprisonment. We fully concur with the findings of the trial Court. The appellant is stated to be in jail and he shall serve out the sentence awarded to him by the trial Court. 25. The charge of murder levelled against the appellant is well proved, therefore, the appellant has been rightly held guilty and has been rightly convicted for life imprisonment. We fully concur with the findings of the trial Court. The appellant is stated to be in jail and he shall serve out the sentence awarded to him by the trial Court. 25. Thus the present criminal appeal lacks merit and is hereby dismissed. 26. Let a copy of this judgment be sent to the learned Sessions Judge concerned to take necessary action immediately for compliance of this judgment.