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2019 DIGILAW 2278 (ALL)

Bhagwan Deen v. State Of Uttar Pradesh

2019-09-27

PRITINKER DIWAKER, RAJ BEER SINGH

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JUDGMENT : Pritinker Diwaker, J. This appeal arises out of impugned judgment and order dated 29.4.1987 passed by VII Additional District & Sessions Judge, Kanpur Dehat in Sessions Trial No.384 of 1983, convicting the appellant under Section 302 of IPC and sentencing him to undergo imprisonment for life. 2. In the present case, name of the deceased is Ram Dayal and as per prosecution case, on 29.9.1983 at about 2:00 am (in the mid-night) he was killed by appellant Bhagwan Deen by causing him number of incised wounds by a Tabbal. Further case of the prosecution is that about 8-10 days prior to the incident, Nirmala Devi, wife of Bechey Lal (brother of the appellant) was teased by the deceased and at that time, the appellant made efforts to get the deceased, but he could not succeed. Getting the opportunity, on 29.9.1983, the appellant entered the house of the deceased and caused him several injuries by a Tabbal, when he was sleeping in his Varandah. After hearing the cries of the deceased, (PW-1) Ram Gopal (nephew of the deceased), (PW-2) Kishuna Devi (wife of the deceased) and (PW-3) Chhotey Lal reached to the place of occurrence and, in the natural moon light and in the light of torch, saw the appellant causing injuries to the deceased. When these eye-witnesses have challenged the appellant, he fled away from the spot. On the next morning, at 8:30 am, on the basis of written report Ex.Ka.1 lodged by (PW-1) Ram Gopal, FIR Ex.Ka.3 was registered against the appellant under Section 302 of IPC. 3. Inquest on the dead body of the deceased was conducted vide Ex. Ka.5 on 29.9.1983 and the body was sent for postmortem which was conducted on 30.9.1983 vide Ex. Ka.17 by (PW-7) Dr S N Srivastava. As per Autopsy Surgeon, following four injuries were noticed on the body of the deceased: "(1) Incised wound on face Rt side extending from 3 cm away and lateral from Rt Ear extending obliquely downward Right angle of mouth Rt side with clear margin and tapering end. Injury measures 5 cm x 1 1/2 cm x bone cut. (2) Incised wound in the center of nose bridge extending upwards obliquely Rt side of forehead with clear margin measuring 2 1/2 cm x 3/4 cm x bone deep. Injury measures 5 cm x 1 1/2 cm x bone cut. (2) Incised wound in the center of nose bridge extending upwards obliquely Rt side of forehead with clear margin measuring 2 1/2 cm x 3/4 cm x bone deep. (3) Incised wound on face Lt side extending from tragus of Lt ear obliquely upwards to Rt side across the Rt eye and puncturing Lt eye ball center with margin and tapering end on Lt side, wound measuring 11 cm x 2 1/2 cm x bone cut. (4) Incised wound on neck Rt side after root of neck placed horizontally and measuring 11 cm x 3 cm x bone and cavity deep 3 cm away tabere Rt collar bone with clear margins and tapering end and wound cut cervical vertebrae of Rt side. Wound is at root of neck and extending out surface and neck in front." Cause of death of the deceased was due to shock and hemorrhage as a result of injuries (Ante Mortem). 4. While framing charge, the trial Judge has framed charge against the appellant under Section 302 of IPC. 5. So as to hold accused appellant guilty, prosecution has examined seven witnesses. Statement of accused appellant was recorded under Section 313 of Cr PC in which, he pleaded his innocence and false implication. 6. By the impugned judgment and order, the trial Judge has convicted the accused appellant under Section 302 of IPC and sentenced him as mentioned in paragraph-1 of this judgment. Hence, this appeal. 7. Counsel for the appellant submits:- (i) that the FIR is ante-timed and there is delay in lodging the same. (ii) that three eye-witnesses, i.e. (PW-1) Ram Gopal, (PW-2) Kishuna Devi and (PW-3) Chotey Lal, are not reliable and trustworthy. It has been argued that there are material contradictions in their statements. (iii) that the incident occurred in the mid-night and the witnesses were sleeping and, thus, question of seeing the incident by them does not arise at all. (iv) that there was no sufficient source of light at the place of occurrence. 8. On the other hand, supporting the impugned judgment and order, it has been argued by learned State Counsel: (i) that the conviction of the appellant is in accordance with law and there is no infirmity in the same. (ii) that a very prompt report was lodged by (PW-1) Ram Gopal. 8. On the other hand, supporting the impugned judgment and order, it has been argued by learned State Counsel: (i) that the conviction of the appellant is in accordance with law and there is no infirmity in the same. (ii) that a very prompt report was lodged by (PW-1) Ram Gopal. He, however, submits that the incident occurred at 2:00 am (in the mid-night) whereas at 8:30 am, the report was lodged and the distance between the place of occurrence and that of Police Station is about 8 kms. (iii) that the statements of eye-witnesses have been duly supported by the postmortem report of the deceased and the Autopsy Surgeon has also duly proved the same. (iv) that on the date of incident, there was sufficient light at the place of occurrence. It has been argued that as per moon chart available on internet, it was 54% visibility on the date of incident. It has further been argued that even otherwise, (PW-1) and (PW-3) were carrying torch with them and in the torch light as well as in the moon light, they saw the appellant causing injuries to the deceased. 9. We have heard learned counsel for the parties and perused the record. 10. (Pw-1) Ram Gopal, is the first informant and an eye-witness to the incident. While supporting the prosecution case, he has stated that about 8-10 days prior to the incident, wife of Bechey Lal, namely, Nirmala Devi was teased by the deceased and despite efforts being made by the appellant, he could not get deceased Ram Dayal. He has further stated that in the night intervening 28/29.9.1983, the appellant entered the house of the deceased who was sleeping in his Varandah and caused several injuries to him by a Tabbal. Upon hearing the cries of the deceased, (PW-2) Kishuna Devi and (PW-3) Chotey Lal reached to the spot carrying torch with them and then they saw the appellant causing several injuries by a Tabbal, resulting his death at the spot. He further states that the appellant was challenged by them, but he fled away from the spot. In the cross-examination, this witness remained very firm and has reiterated as to the manner in which the deceased was done to death by the appellant. 11. (Pw-2) Kishuna Devi, is also an eye-witness to the incident. She is the wife of the deceased. In the cross-examination, this witness remained very firm and has reiterated as to the manner in which the deceased was done to death by the appellant. 11. (Pw-2) Kishuna Devi, is also an eye-witness to the incident. She is the wife of the deceased. She states that on the date of incident, she was sleeping in an adjacent room to her Varandah, whereas her husband was sleeping in the Varandah and upon hearing his cries, when she came out from the room, she saw the appellant causing injuries to her husbanfd by a Tabbal. She has categorically stated that on the date of incident, it was half moon light and in the said light, she could see the appellant properly. 12. (Pw-3) Chotey Lal, is another eye-witness to the incident and he too has categorically stated that, on the date of incident, it was half moon light and he saw the appellant, causing injuries to the deceased by a Tabbal. He has further stated that he was carrying a torch and there was sufficient moon light as well. 13. (Pw-4) Sri Krishna, recorded chik FIR. (PW-5) Surendra Pratap Singh, took the body of the deceased for postmortem. (PW-6) Surendra Pal Singh, is the Investigating Officer, has duly supported the prosecution case. (PW-7) Dr S N Srivastava, conducted the postmortem of the deceased. 14. Close scrutiny of the evidence makes it clear that on account of previous enmity, on 29.9.1983 at about 2:00 am, the appellant entered the house of the deceased and caused him several injuries by a Tabbal. Upon hearing the cries of the deceased, (PW-1) Ram Gopal and (PW-3) Chotey Lal, reached to the place of occurrence carrying torch with them and saw the appellant assaulting the deceased. That apart, when (PW-2) Kishuna Devi, who was sleeping in a room adjacent to her Varandah, after hearing the cries of the deceased came out from the room, saw the appellant causing injuries to the deceased. When the appellant was challenged by these eye-witnesses, he fled away from the spot. In view of this, we have no reason to disbelieve the statements of these three eye-witnesses, who are very firm and have candidly stated as to the manner in which the deceased was done to death by the appellant. 15. When the appellant was challenged by these eye-witnesses, he fled away from the spot. In view of this, we have no reason to disbelieve the statements of these three eye-witnesses, who are very firm and have candidly stated as to the manner in which the deceased was done to death by the appellant. 15. We find no substance in the argument of the defence that there was no source of sufficient light at the place of occurrence. As per moon chart available on internet, on the date of incident, the visibility was 54%. Even otherwise, (PW-1) and (PW-3) were carrying torch with them and in the torch light as well as in the moon light, they saw the appellant causing injuries to the deceased. 16. We further find no substance in the argument of the defence that the FIR is ante-timed. The incident occurred at 2:00 am, whereas at 8:30 am, the report was lodged and the distance between the place of occurrence and that of Police Station is about 8 kms. Considering the fact that the deceased died at the spot; it was mid-night and (PW-1) Ram Gopal might have taken sometime to adjust himself and then rushed to the police station for lodging the FIR, we are of the view that there was no time for (PW-1) to concoct the story or fabricate the evidence in any manner. Therefore, it cannot be said that the report is ante-timed. Even otherwise, there is no evidence to show as to in what manner this entire story has been cooked up by (PW-1). In absence of any such evidence, it cannot be presumed that the FIR is ante-timed. Law in this respect is very clear. In Jai Prakash Singh v State of Bihar, (2012) 4 SCC 379 the Supreme Court observed as under: 12. The FIR in criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question. (Vide: Thulia Kali v. State of T.N., (1972) 3 SCC 393 , State of Punjab v. Surja Ram, (1995) Supp3 SCC 419, Girish Yadav v. State of MP, (1996) 8 SCC 186 and Takdir Samsuddin Sheikh v. State of Gujarat, (2011) 10 SCC 158 ." The Supreme Court in Madru Singh vs. State of Madhya Pradesh,1997 SCC(Cri) 3527 and Ram Sanjiwan Singh Vs. State of Bihar, (1996) 8 SCC 552 answered the similar question in 'negative'. In the said decisions, it has been held by the Supreme Court that from the cross-examination of prosecution witnesses, circumstances have to be elicited which would show that the FIR was ante-timed and then alone, an inference can be drawn that the FIR was ante-timed. It is further settled position of law that FIR can be proved ante-timed or ante-dated by adducing proper evidence. The lodger of FIR should be subjected to proper cross-examination as to on what basis defence pleads the FIR to be ante-timed or ante-dated. Likewise, the police officer, who has recorded the FIR, is also required to be properly cross-examined as to on what basis defence pleads the FIR to be ante-dated or ante-timed. If no such requirement of law is completed and no such proper cross-examination of the witnesses is being done, it cannot be presumed that the FIR is ante-dated or ante-timed. 17. We further find no substance in the argument of the defence that three eye-witnesses, i.e. (PW-1) Ram Gopal, (PW-2) Kishuna Devi and (PW-3) Chotey Lal are not reliable and trustworthy. 17. We further find no substance in the argument of the defence that three eye-witnesses, i.e. (PW-1) Ram Gopal, (PW-2) Kishuna Devi and (PW-3) Chotey Lal are not reliable and trustworthy. No such contrary evidence is available on record to presume this fact as well. All these three eye-witnesses appear to be the natural witnesses who had seen the occurrence. 18. Considering all these aspects of the case, we are of the considered view that the trial Court was fully justified in convicting the appellant. The appeal has no substance and the same is, accordingly, dismissed. 19. Since the appellant is on bail, he be taken into custody forthwith for serving remaining sentence. 20. Let a copy of this judgment be sent to the concerned trial Court for compliance.