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2018 DIGILAW 1152 (ALL)

RAJA RAM v. STATE OF U. P.

2018-05-08

DINESH KUMAR SINGH, PRASHANT KUMAR

body2018
JUDGMENT : Prashant Kumar, J. This appeal is directed against the judgment of conviction and order of sentence dated 05.06.1982 passed by Third Additional Sessions Judge, Lucknow, in Sessions Trial No. 335 of 1979, arising out of Case Crime No. 236, Police Station Gosain-ganj, District Lucknow, whereby and whereunder the appellant No. 1 Raja Ram has been convicted under Section 302/34 of the Indian Penal Code, and sentenced to undergo imprisonment for life, whereas appellant No. 2 Vijay Kumar has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life for the said offence. 2. The case of prosecution in short, as per the oral report of the informant Shrawan Kumar (PW-1) is that on 26.08.1979 at 07:00 a.m. in the morning the informant and his brother Lalji were going to village Neelmatha for opening their hair cutting shop (saloon). When they reached near the field of Pyare Lal, suddenly both the appellants came out, who were hiding themselves in patwar (long grass or straw) grown on the southern side of the road. It is then alleged that the appellant Raja Ram caught hold the handle of the bicycle of Lalji (deceased) and threatened that since he was alleging that of appellant's sister namely Smt. Madhuri is a lady of bad character and had illicit relation with Vijay Kumar, they will kill him. It is further stated that thereafter the informant went towards his village after raising alarm. In the way he saw his co-villager Radhey Lal, Sri. Krishna, Misri Lal, Chandra Prakash and Prem Kumar, who were coming towards place of occurrence. Then he returned to the place of occurrence and saw that Raja Ram was holding the deceased and Vijay Kumar was inflicting knife injuries on the deceased. He further stated that on hearing halla of the informant and other witnesses both the appellants fled away towards village Diptyganj. When they came near the deceased they found him dead and blood was coming out from his injuries. 3. It appears that thereafter the informant went to Gosaiganj police station and on his oral statement PW-5 wrote written report and thereafter instituted Case Crime No. 236, under Section 302 of the Indian Penal Code. It appears that thereafter PW-6 Sri. Baljor Singh took up investigation of the case. 4. 3. It appears that thereafter the informant went to Gosaiganj police station and on his oral statement PW-5 wrote written report and thereafter instituted Case Crime No. 236, under Section 302 of the Indian Penal Code. It appears that thereafter PW-6 Sri. Baljor Singh took up investigation of the case. 4. It then appears that during the investigation on the instruction of the Investigating Officer S.I. Raghuvansh Singh conducted inquest on the dead body of the deceased and prepared an inquest report (Exhibit Ka-4) in presence of witnesses. It further appears that thereafter the Investigating Officer sealed the dead body of the deceased and sent the same to the hospital for post-mortem examination. It further appears that on 27.08.1979 at 3:30 p.m. PW-4 had conducted post-mortem examination on the dead body of the deceased and prepared the post-mortem report (Exhibit Ka-2). It further appears that the Investigating Officer had seized plain and blood stained earth, a blood-stained chaku (knife) from the place of occurrence and prepared fard (recovery memo) in presence of witnesses. During the investigation, the Investigating Officer prepared site map of the place of occurrence. Thereafter, he took the statements of the witnesses and after completing the investigation submitted charge sheet against both the appellants under Section 302 of the I.P.C. 5. It appears that the learned Chief Judicial Magistrate, Lucknow, vide his order dated 07.12.1979 committed the case to the court of Sessions as the offence under Section 302 of the Indian Penal Code is exclusively triable by the court of Sessions. 6. After the commitment the learned Sessions Judge, transferred the case for trial in the file of Third Additional Sessions Judge, Lucknow, who vide his order dated 28.01.1980 framed charge against the appellant Raja Ram under Section 302 read with Section 34 of the Indian Penal Code, whereas on the same day he framed charge against the appellant Vijay Kumar under Section 302 of the I.P.C. It appears that the above charges were read over and explained to the accused persons in Hindi to which they pleaded not guilty and claimed to be tried. 7. Thereafter, the prosecution had examined altogether six witnesses in support of its case. 7. Thereafter, the prosecution had examined altogether six witnesses in support of its case. PW-1 Shrawan Kumar (informant), and PW-2 Radhey Lal, are claiming themselves to be the eye-witnesses of the occurrence, PW-3 Yogendra Nath Sharma, Constable appears to be a formal witness, who took the dead body of the deceased to Lucknow Medical College for post-mortem examination, PW-4 Dr. Shyam Swaroop is the doctor, who held autopsy on the dead body of Lalji and prepared post-mortem report (Exhibit Ka-2), PW-5 Shyam Narain Mishra, the Head Constable who instituted an F.I.R. of Case Crime No. 236, under Section 302 of the I.P.C. (Exhibit Ka-1) and thereafter entered the same in the G.D. (Exhibit Ka-3), PW-6 Baljor Singh, is the Investigating Officer of the case who proved the inquest report (Exhibit Ka-4), photo lash of the dead body (Exhibit Ka-5) challan lash of the dead body (Exhibit Ka-6) respectively and letters of request for post-mortem examination and sample of seal (Exhibit Ka-8), (Exhibit Ka-10) and (Exhibit Ka-11) respectively and the recovery memos (Exhibit Ka-12), etc. 8. After close of the case of the prosecution the learned trial court recorded the statements of both the appellants under Section 313 of the Criminal Procedure Code in which their defence is of total denial and they also took the defence that they have been falsely implicated due to enmity. It further appears from the record that the court had examined one witness namely Prem Kumar (CW-1) but he has not supported the case of the prosecution. 9. After considering the arguments and evidences available on the record the learned trial court vide his judgment dated 05.06.1982 convicted and sentenced the appellants as stated hereinabove. Against that the present appeal has been filed. 10. Heard Mr. Ram Naresh Singh Chauhan, and Mohammad Aslam Beg, Advocates, appearing for the appellants and Sri. Umesh Verma, learned Additional Government Advocate for the State. 11. While assailing the impugned judgment of conviction and order of sentence, learned counsel appearing for the appellants had submitted that in the instant case learned trial court had convicted the appellants on the basis of the alleged ocular testimony of PW-1 and PW-2 who are brothers and uncle of the deceased. It is submitted that admittedly there is enmity between the parties from before. Under such circumstances, in absence of any independent witness, the conviction of the appellants is not warranted. It is submitted that admittedly there is enmity between the parties from before. Under such circumstances, in absence of any independent witness, the conviction of the appellants is not warranted. It is submitted that the post-mortem report shows that fecal matters and gases were present in the large intestine of the deceased, which goes to show that the deceased might have been killed in the night and none had witnessed the occurrence. Thus, on that ground also the evidence of PW-1 and PW-2 is liable to be thrown over board. It is further submitted that as per the F.I.R. the occurrence took place at 7:00 a.m. in the morning, whereas the First Information Report was lodged at 11:00 a.m. Though, the distance of the police station from the place of occurrence is only 8 miles. It is further submitted that it reveals from the F.I.R. that on 27.08.1979 the said report was sent to the higher officer. The aforesaid circumstances shows that the F.I.R. was ante-timed and brought on the record after due deliberation. Accordingly, it is submitted that the conviction of the appellants by the learned trial court is not warranted, hence liable to be set aside. 12. On the other hand, learned Additional Government Advocate submits that only because PW-1 and PW-2 are close relatives and having some inimical terms with the appellants, their evidence cannot be discarded. The law requires that before accepting their evidence, the Court must scrutinize the same cautiously and on cautious scrutiny if the court comes to the conclusion that they are reliable witnesses then the conviction can be based on their evidence. It is further submitted that only because fecal matters and gases were present in the large intestine it cannot be presumed that the death of the deceased has taken place in the night. It is submitted that it is admitted that the post-mortem examination of the deceased was held on 27.08.1979 at 3:30 p.m. and the doctor had given a definite opinion that the death of the deceased took place one and half day earlier from the time of post- mortem examination, thus, on calculation the time of death comes to approximately 7:00 a.m. of the previous day. Under such circumstances, the aforesaid contention of the learned counsel appearing for the appellants is not acceptable. 13. Under such circumstances, the aforesaid contention of the learned counsel appearing for the appellants is not acceptable. 13. It is further submitted that the F.I.R. was lodged on the same day of the occurrence after about four hours. PW-1 the informant had explained the above delay in his deposition which appears to be natural and acceptable. Under such circumstances, it cannot be presumed, that too in the absence of any direct evidence, that the F.I.R. is ante-times and was recorded on due deliberation. Thus, it is submitted that the impugned judgment and order of sentence does not require any interference by this Court. 14. Having heard the submissions, we have gone through the record of the case and scrutinized the evidence carefully. PW-4 is the doctor, who held autopsy on the dead body of the deceased Lalji at 3:30 p.m. on 27.08.1979 and found following ante-mortem injuries:- (i) Multiple abraded contusions in an area of 4 cm. x 2 cm. on right temporal region 1 cm lateral to outer can thus of right eye extending upto forehead. (ii) Incised wound 2 cm. x 1 cm. x muscle deep on right side of face just in front of right ear lobule directed downwards & backwards. (iii) Incised wound 2 cm. x 0.5 cm. x skin deep tailing backwards and upwards on the right side of neck 9.5 cm below right ear and 4.5 cm from supra sternal notch. (iv) Incised wound 6.5 cm. x 0.5 cm. x sub-cutaneous tissue deep tailing upwards & backwards on right clavicular region 3 cm below and outer to injury No. 3. (v) Stab wound 6 cm. x 3 cm. x chest cavity deep on front of right side chest 3.5 cm above right nipple directed downwards and backwards on exposure inter costal muscles between 4th & 5th rib cut, pleura cut, right lobe of lung cut through and through under the injury. Clotted fluid blood 1.5 liters present in the right pleural cavity. (vi) Incised wound 3 cm. x 1 cm. x muscle deep on the back 18 cm. below the tip of seventh cervical spine slightly towards the right, directed downwards posteriorly. 15. In the opinion of the doctor, the deceased died due to shock and haemorrhage as a result of ante-mortem injuries. (vi) Incised wound 3 cm. x 1 cm. x muscle deep on the back 18 cm. below the tip of seventh cervical spine slightly towards the right, directed downwards posteriorly. 15. In the opinion of the doctor, the deceased died due to shock and haemorrhage as a result of ante-mortem injuries. Thus, from perusal of the evidence of PW-4 read with post-mortem report (Exhibit Ka-2), we find that the deceased Lalji had died a homicidal death. Now, the question arose for determination as to whether these appellants have any hand in the commission of present crime or not This brings us to consider the rest of the evidence available on the record. 16. As noticed above, the entire prosecution case rests on the deposition of PW-1 and PW-2, who claimed themselves to be the eye- witnesses of the occurrence. It is an admitted position that PW-1 is the brother of the deceased, whereas PW-2 is the uncle of the deceased. It also appears from the deposition of PW-1 and PW-2 that the appellant Nos. 1 and 2 had developed animosity with the deceased because it was alleged by the deceased that the sister of appellant No. 1 namely Smt. Madhuri is a lady of easy virtue having illicit relation with the appellant No. 2 namely Vijay Kumar. 17. Under the aforesaid backdrop, it is submitted by the learned counsel appearing for the appellants that the evidence of PW-1 and PW-2 is liable to be discarded. In our considered opinion, the aforesaid contention of the learned Advocates appearing for the appellants, is not acceptable, because it is well settled principles of law that only because the witness is a relative of the deceased and having inimical relation with the accused persons, his evidence cannot be thrown over the board, rather the law requires that the Court before accepting such evidences shall cautiously scrutinize his evidence and on such scrutiny if the court comes to the conclusion that the evidence adduced by the above witnesses is acceptable then the conviction can be based on his evidence. 18. In view of the aforesaid settled principle of law, we are proceeding to scrutinize the evidence of PW-1 and PW-2. 19. Pw-1 had stated that on the date of occurrence he and his brother were going to Neelmatha market for opening their shop. 18. In view of the aforesaid settled principle of law, we are proceeding to scrutinize the evidence of PW-1 and PW-2. 19. Pw-1 had stated that on the date of occurrence he and his brother were going to Neelmatha market for opening their shop. This witness had further deposed that the deceased was going 6 to 7 paces ahead of him. He then states that when the deceased reached near the field of Pyare Lal, the appellants, who were hiding behind the patwar (grown by the side of the road) came out. Thereafter appellant No. 1 Raja Ram caught hold the handle of the bicycle of the deceased and threatened that since he was alleging that his sister (Smt. Madhuri) is a lady of easy virtue having illicit relation with Vijay Kumar, they will kill him. Thereafter, he pulled the deceased and at that time itself appellant No. 2 inflicted knife injury on his back. This witness further deposed that thereafter he raised alarm and was going towards his village, but after covering about 15 paces, he saw that co-villager Radhey, Misri Lal, Chandra Prakash, Sri. Krishna and Prem Kumar were coming towards place of occurrence. Thereafter he again returned to the place of occurrence and saw that his brother was lying on the ground and Raja Ram had caught hold his legs and Vijay Kumar was inflicting knife blows on him. He said that when he and witnesses raised alarm both the appellants fled away towards village Diptyganj. This witness was cross-examined at length but he remained consistent with his previous statement made in the examination-in-chief as well as in the written report and statements made before the Investigating Officer under Section 161 of the Criminal Procedure Code. Thus, we find that the defence had not elicited any material on the basis of which he could be held unreliable. 20. Pw-2 Radhey Lal had deposed that on the date of occurrence he alongwith Sri. Krishna, Prem Kumar, Misri Lal and Chandra Prakash was going towards Neelmatha market for doing the job of labour. He further deposed that while they were going, they heard the alarm raised by Shrawan Kumar (PW-1). Upon the said alarm, they also ran towards the place of occurrence and after seeing them PW-1 returned towards the place of occurrence. Krishna, Prem Kumar, Misri Lal and Chandra Prakash was going towards Neelmatha market for doing the job of labour. He further deposed that while they were going, they heard the alarm raised by Shrawan Kumar (PW-1). Upon the said alarm, they also ran towards the place of occurrence and after seeing them PW-1 returned towards the place of occurrence. This witness further deposed that when they reached near the place of occurrence they saw that the appellant No. 1 Raja Ram was holding legs of the deceased and appellant No. 2 Vijay Kumar was inflicting knife injuries on the deceased. He further deposed that when they raised alarm, both the appellants fled away from the place of occurrence. This witness was also cross-examined at length by the appellants and he remained consistent with his previous statement made in the examination-in-chief with regard to the manner of occurrence, place of occurrence etc. There is absolutely nothing in his cross-examination on the basis of which his evidence can be thrown away from the arena of consideration. 21. From perusal of the evidence of PW-1 and PW-2, we find that the same is consistent with the medical evidence as well as the physical findings of the Investigating Officer. The doctor has found altogether six ante-mortem injuries out of which five injuries i.e. injury Nos. 2, 3, 4 and 6 were incised wounds, whereas injury No. 5 is a stab wound. Injury No. 1 is multiple abraded contusion. PW-1 had categorically stated that when appellant No. 1 pulled the deceased, appellant No. 2 inflicted knife injury on his back. Thereafter the deceased fell on the handle of bicycle and received some injuries on his head. Injury No. 1 is multiple abraded contusion is on the forehead of the deceased and in the opinion of the doctor the same can be caused due to fall on the handle of bicycle. The doctor has also found injury No. 6 on the back of the deceased. PW-1 and PW-2 had categorically stated in their examination-in-chief and cross-examination that the appellant Vijay Kumar had inflicted only one stab injury on the right chest of the deceased by knife and rest injuries were inflicted by angling the knife. The doctor had also found only one stab injury and rest injuries are incised in nature which according to us is consistent with the statements of PW-1 and PW-2. The doctor had also found only one stab injury and rest injuries are incised in nature which according to us is consistent with the statements of PW-1 and PW-2. These witnesses categorically stated in their deposition that the appellant No. 2 while fleeing away had thrown his knife near the place of occurrence. The Investigating Officer had also found a blood stained knife from the place of occurrence. Thus, the aforesaid physical findings of the Investigating Officer supports the version of PW-1 and PW-2. 22. In view of the aforesaid facts and circumstances, we find that the evidence of PW-1 and PW-2 is wholly reliable as their presence at the place of occurrence is natural and acceptable. 23. The contention of the learned counsel appearing for the appellants that the F.I.R. is ante-timed and has been brought in the light after due deliberation, because the same has been instituted after the lapse of four hours, is not acceptable. PW-1, who is the informant of this case was cross-examined at length by the defence Advocate and we find that he stood to the test of cross-examination. PW-1 had given explanation as to why there was a delay of four hours in lodging the F.I.R. He stated that when he saw that his brother died, he went to his village and returned to the place of occurrence after about half an hour alongwith his father. Thereafter, he along with his father left the place of occurrence and went to the police station on a bicycled. In the way, they caught a tempo, because in the way the tube of their bicycle became puncture. Therefore, they reached at the police station at about 10:30 a.m. and then lodged the F.I.R. All these explanations were given by PW-1 in the cross-examination made by the defence. Thus, in our view the same are acceptable as the defence had not brought anything on the record to show that the said explanations are wrong. Moreover, we find that PW-5 & 6 had also stated that the F.I.R. was lodged at 11:00 a.m. on 26.08.1979. Under the aforesaid circumstances, we find that the F.I.R. has been lodged promptly and there is no delay in lodging the F.I.R. 24. The contention of the learned counsel for the appellants that the deceased had died in the night, is not worth acceptable. Under the aforesaid circumstances, we find that the F.I.R. has been lodged promptly and there is no delay in lodging the F.I.R. 24. The contention of the learned counsel for the appellants that the deceased had died in the night, is not worth acceptable. It is true that the doctor while conducting the post- mortem examination had found fecal material and gases in the large intestine, but only because of that it cannot be held that the deceased might have died in the night. There may be many reasons for presence of fecal matter and gases in the large intestine such as constipation. The defence had not asked any question from the doctor in this respect while cross-examining the doctor (PW-4). Moreover, the doctor had categorically stated in the post- mortem report that the death of the deceased took place one and half day before the date and time of post-mortem examination. In that view of the matter, the above contentions raised by the learned counsel for the appellants, cannot be accepted. 25. In view of the ocular testimony of PW-1 and PW-2 which finds full support from the evidence of doctor (PW-4) and physical findings of the Investigating Officer (PW-6), we find that the learned trial court had rightly convicted and sentenced both the appellants by the impugned judgment, which in our view does not require any interference by this Court. 26. In the result, this appeal fails and is accordingly dismissed. 27. Both the appellants namely Raja Ram and Vijay Kumar are in jail custody. Thus, they are directed to serve out the sentence as awarded by the learned trial court. 28. Office is directed to communicate this order forthwith to the court concerned and send back the lower court record to ensure compliance. Appeal dismissed.