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2018 DIGILAW 2165 (ALL)

Ram Kumar v. State of U. P.

2018-10-09

KRISHNA PRATAP SINGH, PANKAJ NAQVI

body2018
JUDGMENT : PANKAJ NAQVI, J. 1. This criminal appeal is preferred against the judgment stand order dated 28.7.1987, passed by the Addl. Sessions Judge, Ghaziabad in S.T No.443/1986, convicting / sentencing the appellants under Section 302 r/w 34 IPC to life imprisonment. 2. The prosecution case is as under: P.W.-5 / informant, on 17.8.1986 (Sunday) at about 1 PM, along with P.W.-3 and other residents of Arya Nagar, Ghaziabad were watching a cricket match at the field, outside the house of his nephew, Richard (deceased). While they were watching the match, accused Alok Kumar along with accused Ram Kumar (friends of Richard) also came to watch the match for a while. Thereafter, both the accused left the venue, saying that they are going to meet Richard. After about 10-15 minutes, P.W.-5 heard shrieks of Richard and his grandmother (P.W.-4) latter shouting ''he has been killed-save, save”, over which P.W. 3 & 5 went to the house to find that accused Ram Kumar with a barber's razor and Alok Kumar were about to escape. P.W. 3 & 5 nabbed both the accused whereas body of the deceased lay in a pool of blood after which few persons from the neighbourhood, arrived. The two accused were handed over to the police at the PS concerned, the weapon of offence, recovered in the presence of Shekhar (P.W.-3), Shailendra and Vinod Kumar was also handed over to the police. The occurrence was reported to be timed at 2 PM. 3. The FIR came to be lodged on the same day at 14.45 hours at the PS at a distance of 1 km against the above two accused as Case Crime No.407/1986, under Section 302 IPC. 4. The Trial Court after analyzing the evidence on record convicted / sentenced the accused as above. 5. Appellants Ram Kumar and Alok Kumar challenged their conviction in Criminal Appeals No. 2063 and 1944 both of 1987 respectively. During pendency thereof Alok Kumar died, his appeal stood abated on 20.7.2018. Heard Sri Imran Ullah, the learned Amicus and Sri A.N. Mulla, the learned A.G.A. 6. The learned Amicus made the following submissions: (1) Case is of circumstantial evidence where prosecution has not assigned any motive. (2) The prosecution miserably failed to establish spot arrest, coupled with its non-disclosure at the stage of Section 313 Cr.P.C, caused grave miscarriage. Heard Sri Imran Ullah, the learned Amicus and Sri A.N. Mulla, the learned A.G.A. 6. The learned Amicus made the following submissions: (1) Case is of circumstantial evidence where prosecution has not assigned any motive. (2) The prosecution miserably failed to establish spot arrest, coupled with its non-disclosure at the stage of Section 313 Cr.P.C, caused grave miscarriage. (3) Recoveries of blood-stained clothes and that of weapon of offence, is not established, strongly suggest that the same were planted for ulterior motives. (4) Testimony of P.W.-4 dents the prosecution case as she was unable to identify the accused in the dock. (5) Considering the distance between the location of P.W. 3 & 5 vis-a-vis the door of house of deceased, it was highly improbable that witnesses could manage to reach the house but the appellant stayed back so as to get arrested at the spot. (6) There are material contradictions between P.W's 3 & 5. The learned A.G.A opposed the submission. 7. Ordinarily, motive is relevant in a case of circumstantial evidence, but there may be cases, like the present case where the overt act is committed in a room. In such cases motive may be difficult to discern. The fate of such a case will have to be decided on the entirety of evidence, so as to rule out the hypothesis that it was no other person than the accused who committed the overt act. Thus, absence of motive in such class of cases would not defeat a case based on circumstantial evidence. 8. The occurrence took place on 17.8.1986 inside the house of the deceased at about 2 PM. The FIR came to be generated at 2.45 PM, same day. FIR is prompt. A prompt FIR ordinarily rules out any manipulation. Accused Ram Kumar and Alok were medically examined in a government hospital in police custody on 17.8.1986 at 4.15 and 4.20 PM respectively. Considering the time interval, spot arrest cannot be suspected. Ancillary submission was that incriminating evidence of spot arrest was not confronted to the appellant, resulting in the miscarriage of justice and prejudice, vitiating the trial. Accused Ram Kumar and Alok were medically examined in a government hospital in police custody on 17.8.1986 at 4.15 and 4.20 PM respectively. Considering the time interval, spot arrest cannot be suspected. Ancillary submission was that incriminating evidence of spot arrest was not confronted to the appellant, resulting in the miscarriage of justice and prejudice, vitiating the trial. Argument though attractive but deserves to be rejected in view of the decision of the Apex Court in Nar Singh vs. State of Haryana, (2015) 1 SCC 496 , wherein the Apex Court held that :- “When there is omission to put material evidence to the accused in the course of examination under Section 313 Cr.P.C., the prosecution is not guilty of not adducing or suppressing such evidence; it is only the failure on the part of the learned trial court. The victim of the offence or the accused should not suffer for latches or omission of the court. Criminal justice is not one-sided. It has many facets and we have to draw a balance between conflicting rights and duties.” 9. Thus, the omission in not confronting the accused with the incriminating evidence of spot arrest, was a lapse on the part of a trial court for which neither prosecution could be blamed nor the accused could gain any advantage. We have also examined the plea from the point of prejudice. The prosecution case right from day one, is founded upon spot arrest. The defence could not allege any prejudice even before us. We hasten to add that the spot arrest stands duly proved with the chain of circumstances which are intrinsically linked. 10. The case of prosecution is that upon shrieks of P.W. 4, P.W. 3 and 5 reached the house of P.W. 4. Both these witnesses nabbed the 2 accused alongwith the weapon of offence. They took the accused to the PS concerned. While the accused were in police custody, recovery of wearing apparels (Ext. Ka – 9) with blood stains of both the accused were made. Ex. Ka-19 is the FSL report of recovered items including the wearing apparels of the accused and that of the deceased. The FSL report indicates that item no. 2 (shirt of Ram Kumar), no. 6 (trouser of Alok), no. 9 (bed sheet) and no. Ka – 9) with blood stains of both the accused were made. Ex. Ka-19 is the FSL report of recovered items including the wearing apparels of the accused and that of the deceased. The FSL report indicates that item no. 2 (shirt of Ram Kumar), no. 6 (trouser of Alok), no. 9 (bed sheet) and no. 10 (underwear of the deceased) were found to contain blood of “O” group, i.e., blood group of the deceased which was not challenged by the defence. Thus, it could not be alleged that recovery is planted. 11. P.W. 3 and 5 deposed that they were about 1015 steps away from the house of deceased. Considering the proximity of distance, it cannot be said that the distance is so large that the witnesses could not have reached in no time. We have carefully scanned the evidence of P.W. 3 and 5 and find that there are few contradictions as to the colour of butt of the weapon of offence and who carried the same to the P.S as P.W. 3 was alleging that the same was taken by the police, while P.W. 5 alleged that the same was carried by him and handed over to the police. Contradictions are trivial in nature not affecting the basic prosecution case. We find P.W. 3 and 5 to be wholly reliable. 12. P.W. 1 is the doctor who conducted the autopsy of deceased on 18.08.2016 at about 03:00 PM with the following ante-mortem injuries:- (1) Incised wound 12 cm x 5.5 cm x bone deep on the right side and front of neck. Tracheal tube cut at the joint of thyroid cartilage. Oesophagus cut. Large vessels cut. 4 cm below to chin and 3.5 above to the medial end of right clavicle, margin clean cut, direction right to left. (2) incised wound 4.5 x 1.5 cm x bone deep on the back and inner side of right wrist joint / margin clear cut. Direction from outer side to inner side. (3) incised wound 3 cm x 0.25 cm x bone deep in between index finger and middle finger on the back of left hand. Note: one iron piece 2 cm x 0.5 cm with sharp edge, recovered from injury no. 2. 13. P.W. 1 opined the time of death around 24 hours ago, compatible with the prosecution case. (3) incised wound 3 cm x 0.25 cm x bone deep in between index finger and middle finger on the back of left hand. Note: one iron piece 2 cm x 0.5 cm with sharp edge, recovered from injury no. 2. 13. P.W. 1 opined the time of death around 24 hours ago, compatible with the prosecution case. He further testified that the injuries of the deceased could be caused by a sharp cutting weapon including a barber's razor. 14. Yet another argument was raised by the learned Amicus that only a memo alleging a recovery of weapon of offence (Ext. Ka-4) was allegedly proved but the material exhibit thereof was not produced during trial, thus the said weapon could not be established as weapon of offence. He further submitted that there is a dichotomy in the colour of the butt amongst the prosecution witnesses, which could have been established only with the production of material exhibit. The learned Amicus placed reliance on second proviso to Section 60 of Evidence Act. 15. Section 60 of the Evidence Act is extracted hereunder:- “60. He further submitted that there is a dichotomy in the colour of the butt amongst the prosecution witnesses, which could have been established only with the production of material exhibit. The learned Amicus placed reliance on second proviso to Section 60 of Evidence Act. 15. Section 60 of the Evidence Act is extracted hereunder:- “60. Oral evidence must be direct.—Oral evidence must, in all cases whatever, be direct; that is to say — If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds: Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable: Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.” 16. Power conferred under the second proviso is upon the Court. Only in the event when the Court thinks fit, it may require production of a material exhibit for its inspection. The word 'may' suggests that the power is discretionary as it is to be invoked only when the Court thinks fit for its production. 17. Once P.W. 1 / the doctor opined that the alleged injuries could be an outcome of the use of a (sharp cutting weapon) including a barber's razor, the trial court rightly did not invoke the power under the 2nd proviso to summon the weapon of offence. 17. Once P.W. 1 / the doctor opined that the alleged injuries could be an outcome of the use of a (sharp cutting weapon) including a barber's razor, the trial court rightly did not invoke the power under the 2nd proviso to summon the weapon of offence. If the weapon of offence (barber's razor) was not before the Court on the relevant date, nothing prevented the defence to file an appropriate application for production of the same. 18. In so far the issue of non-recognition of accused in the dock by P.W. 4 is concerned suffice to state that she was then aged about 70 years (at the time of statement), probability of fading memory could not be ruled out. Moreover, once P.W. 3 and 5 have been held to be wholly reliable, non-recognition by P.W. 4 as to the identity of accused for above reasons is of no consequence. 19. We are of the firm view that prosecution successfully established its case that upon shrieks of P.W. 4, P.W. 3 and 5 who were watching a cricket match, 10-15 steps away from where shrieks emanated, reached the house to see the appellant Raj Kumar with a barber's razor, drenched in blood to flee, to be eventually nabbed by P.W. 3 and 5 are relevant facts forming part of the same transaction under Section 6 of the Evidence Act, followed by other incriminating evidence such as recovery of blood stained, clothes etc., so as to establish beyond a reasonable doubt that it were the accused, alone who murdered the deceased, coupled with the fact that the accused could not allege the basis of false implication. 20. The appeal is dismissed. Bail bond of appellant / Ram Kumar is cancelled. He is directed to forthwith surrender to serve his remaining sentence. Office is directed to forthwith communicate this order to the court concerned. Compliance report be submitted to this Court within two months. The Court records appreciation for services rendered by Sri Imran Ullah, the learned Amicus and directs the Registrar General to tender him Rs. 15,000/-(Rs. Fifteen Thousand ) for the services rendered.