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2019 DIGILAW 497 (ALL)

Guddu v. State Of U. P.

2019-02-25

KARUNESH SINGH PAWAR, PRASHANT KUMAR

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JUDGMENT : Karunesh Singh Pawar, J. 1. Heard Shri Manish Kumar Singh, learned amicus curiae appearing for the appellants and Shri Dhananjay Kumar Singh, learned counsel for the respondents. 2. This appeal under Section 374 Cr.P.C. has been filed against the judgment and order dated 6.10.2004 passed by learned Additional District and Sessions Judge, F.T.C. No.5, Sitapur in Session Trial No.61 of 2003, (State vs. Guddu and another) vide Case Crime No.238 of 2002, under Sections 302, 323, 307 Indian Penal Code, Police Station Atariya, District Sitapur whereby the appellants have been convicted and sentenced under Section 302 r/w Section 34 IPC to undergo rigorous imprisonment for life and under Section 323 r/w Section 34 IPC to undergo rigorous imprisonment for a period of six months and both the sentences were directed to run concurrently. 3. In short, the prosecution case is that in the Sahan of Ramrani-P.W.-1, accused appellants Guddu, Suresh and one Gopi dig a stake (Khuta) and they have made passage for nali through the Sahan. On 19.9.2002, at around 2:00 p.m. an altercation took place between the (deceased) Kamlesh, husband of P.W.1 Ramrani, and accused appellants Guddu, Suresh and Gopi. Then the accused Guddu and Suresh came back armed with banka in their hands and accused Gopi armed with lathi started beating Kamlesh (deceased). Then the husband of P.W.1-Ramrani, (Kamlesh) ran from there and fell at the door of Surjee and after sometime died. The occurrence was seen on the spot by Devki, Son of Dalla, Makhan S/o Narain along with others. 4. A written report (Exhibit Ka-1) dated 19.9.2002 was filed by P.W.1 at Police Station Atariya, consequently, the FIR bearing Case Crime No.238 of 2002 under Section 304 IPC was registered at 15:35 hours on 19.2.2002 itself. The Police Station is said to be 4 kms towards the north from the place of occurrence. Inquest report (Exhibit Ka-6) was prepared and site plan (Exhibit Ka-12) was also made. After preparing inquest report, the body of the deceased was sent for post mortem, which is (Exhibit Ka-5). 5. P.W.6 and P.W.7 both Sub Inspectors after completing investigation submitted the charge sheet before the competent Court and committal order dated 16.1.2003 was passed by the Chief Judicial Magistrate, Sitapur, who thereafter sent the matter to the Sessions Court for trial. After preparing inquest report, the body of the deceased was sent for post mortem, which is (Exhibit Ka-5). 5. P.W.6 and P.W.7 both Sub Inspectors after completing investigation submitted the charge sheet before the competent Court and committal order dated 16.1.2003 was passed by the Chief Judicial Magistrate, Sitapur, who thereafter sent the matter to the Sessions Court for trial. Vide order dated 4.3.2003, the Sessions Judge, F.T.C. Court No.5, Sitapur framed charges under Section 302 read with section 34 IPC and under Section 323 r/w Section 34 IPC against the accused appellants. The charges were read over and explained to the accused. The accused pleaded not guilty and claimed to be tried. 6. The accused Gopi was found juvenile by the then Chief Judicial Magistrate, Sitapur as such his file was separated from appellants Guddu and Suresh. The prosecution in support of their case has produced seven witnesses. P.W.1-Ramrani, wife of (deceased) Kamlesh, injured eye witness and informant, P.W.2 Devki, another eye witness, P.W. 3 is Dr. Vishnu Dev Prasad, who medically examined P.W.1-Ramrani. P.W.-4 is Head Constable Ram Bhawan Singh, P.W.5 Dr. R.K. Srivastava who did the post mortem and P.W.6 and 7 are the Investigating Officers. 7. The statement of the appellants have been recorded under Section 313 Cr.P.C. where the accused appellants have denied the prosecution case and the evidence, and stated that they have been falsely implicated due to enmity. 8. Post mortem report (Exhibit Ka-5) has been prepared by Dr. R.K. Srivastava-P.W.5 who has found six ante mortem injuries on the person of deceased which are incised wounds and has opined the cause of death due to hemorrhage as a result of ante mortem injures. The ante mortem injuries found in post mortem are as under:- “1. Incised wound (Multiple stroke) 24.0cm x 7.5 cm on right side and back of neck 2.0 cm below right ear C4 C5 cut; 2. Incised wound 4.5 cm x 2.5 cm x bone deep on left of neck, 3.0 left ear ; 3. Incised wound 3.0 cm x 0.5 cm in bone cut on forehead, Middle .5 cm root of nose, mid of right eyebrow; 4. Incised wound 2.0 cm x 0.5 cm x cavitalar deep of left ear; 5. Incised wound 6.5 cm x 2.5 cm x bonecut on the right hand 6. Incised wound 3.0 cm x 0.5 cm in bone cut on forehead, Middle .5 cm root of nose, mid of right eyebrow; 4. Incised wound 2.0 cm x 0.5 cm x cavitalar deep of left ear; 5. Incised wound 6.5 cm x 2.5 cm x bonecut on the right hand 6. Incised wound 1.5 cm x 0.5 cm muscle deep of left arm 12.0 cm below shoulder tip.” 9. P.W.5 Dr. R.K. Srivastava in his deposition has stated that injury No.1 has been caused as a result of multiple strokes/incised wounds on the right side and back side of the neck between C-4 or C-5. Injury No.2 is also on the left side of the neck and 3 cm below the left ear. Injury No.3 is on the forehead from root of the nose towards right eye brows, bone deep. Injury No.4 is also the incised wound. From the deposition of P.W.5 it has been proved that all the injuries total six in numbers are incised wounds and death has taken place on 19.9.2002 at around 2 p.m. We have noticed the post mortem report and deposition of P.W.5 which proves that it is a case of homicidal death. 10. Learned amicus curiae appearing for appellants contends that P.W.1 being wife of the deceased is an interested witness and she has made substantial improvement from First Information Report till the time of deposition. As P.W.1, her testimony is liable to be discarded. It has also been contended that injury of P.W. 1 does not corroborate with the medical evidence given by P.W.3. It is further contended that the presence of P.W.1 on the spot A in naksha nazri has been falsified by the statement of P.W.2, another eye witness. 11. Learned amicus curiae further submitted that the presence of both the eye witnesses P.W.1 and P.W.2 is doubtful and that prosecution has failed to prove the place of occurrence. In support of his contention, learned amicus curaie has relied on the judgment reported in 2004 SCC (Crl.) Suppl. 34 (Ramsewak and others vs. State of Madhya Pradesh). 12. 11. Learned amicus curiae further submitted that the presence of both the eye witnesses P.W.1 and P.W.2 is doubtful and that prosecution has failed to prove the place of occurrence. In support of his contention, learned amicus curaie has relied on the judgment reported in 2004 SCC (Crl.) Suppl. 34 (Ramsewak and others vs. State of Madhya Pradesh). 12. On the other hand, learned AGA for the State has submitted that in view of the eye witness account of P.W.1 and P.W.2 read with the statement of other prosecution witness and the material available on record, the Trial Court has rightly convicted and sentenced the appellants under Sections 302, 323 read with Section 34 IPC. 13. The prosecution in support of his case has produced P.W.1, an injured eye witness and the informant of the case, who is also the wife of the deceased Kamlesh. P.W.2 has also been produced as eye witness to the occurrence. P.W.3 Dr. Vishnu Dev Prasad has examined the injuries of P.W.1 Smt. Ramrani. 14. P.W.-4 is Head Constable Ram Bhawan Singh, who has registered the First Information Report. P.W.6 and P.W.7 are the Investigating Officers of this case. 15. The main point to be considered is as to whether the accused appellants were rightly convicted for charge under Section 302 read with Section 34 IPC: (a) On the oral testimony of injured eye witness and another eye witness P.W.-2; (b) Whether the prosecution has been able to prove the place of occurrence (c) Whether the injury received by P.W.1 is corroborated with the medical evidence of P.W.3 ; and (d) Whether the ante mortem injuries received by deceased are corroborated with medical evidence. 16. P.W.1 in written report as well as FIR which is (Exhibit Ka-1) and (Ka-3) has stated that Guddu and Suresh armed with banka, Gopi with lathi came and attacked her husband which caused injuries on his neck and body then her husband ran and fell at the door of Surjee and died thereafter. In the written report and the FIR both she has not stated that her husband was also attacked at the door of Surjee. 17. P.W.1 in her statement has stated that accused appellants Guddu and Suresh and one Gopi dig a stake (Khuta) in front of her house. In the written report and the FIR both she has not stated that her husband was also attacked at the door of Surjee. 17. P.W.1 in her statement has stated that accused appellants Guddu and Suresh and one Gopi dig a stake (Khuta) in front of her house. On this, her deceased husband objected and an altercation took place between her husband and accused persons, thereafter accused started abusing her husband. Guddu and Suresh were armed with Banka and Gopi with lathi and upon this, the accused persons started hitting her husband with banka and Gopi hit with lathi which was taken by her husband at his hand and while stopping assault of lathi her husband ran towards the door of Surjee and there these accused persons gave 2-3 blows on his neck by banka and he died there. She also stated that to save her husband she ran but she was also hit by Guddu by banka from the blunt side. As a result, she sustained injuries which is (Exhibit Ka-2). 18. (Exhibit Ka-2) is a medico-legal report prepared by Dr. Vishnu Dev Prasad-P.W.3, who has examined P.W.1. There is only one injury a lacerated wound of 1 c.m.x 0.6 c.m. in left forearm 8 cm from left wrist joining. The said injury is simple in nature caused by hard and blunt object of duration one day old. 19. A perusal of the statement of P.W.1 reveals that in the FIR she has not disclosed the place of occurrence and she states that her husband was hit by banka and lathi by the accused persons and one Gopi thereafter he ran and fell at the door of Surjee. However, while giving statement as P.W.1 she had made substantial improvement and stated that her husband was inflicted 2-3 wounds at the door of Surjee at his neck and he died there. 20. P.W.2 another eye witness has stated that first Gopi tried to hit Kamlesh with lathi which he stopped from his hand then Guddu hit Kamlesh with banka from the blunt side. Kamlesh then ran towards east and then towards north who was caught at the door of Surjee by Guddu and Suresh and then they stared hitting him with banka. When P.W.1 tried to intervene, she was pulled and tugged away. Kamlesh then ran towards east and then towards north who was caught at the door of Surjee by Guddu and Suresh and then they stared hitting him with banka. When P.W.1 tried to intervene, she was pulled and tugged away. Thereafter, in the cross examination, he stated that deceased Kamlesh was first hit by Gopi and secondly, after one minute by Guddu. From 4-5 paces of the house of Kamlesh at that time, the door of Surjee was open and P.W.1 was inside the house. Guddu hit Kamlesh one step away at his forehead and the blood started falling and when Kamlesh fell at the door of Surjee then he did not went to see him but saw it from some distance from spot. He stated that 3-4 blows of banka were inflicted to Kamlesh at the door of Surjee but he did not went near him. 21. P.W.3 in his deposition has stated that the injury of P.W.1 was one day old. He examined P.W.1 on 21.9.2002 at 12:45 p.m. and opined that this injury could have been caused one day before i.e. by 20.9.2002 in the after noon. A careful perusal of the statements of P.W.1, P.W.2 and P.W.-3 as well as post mortem report and the site plan, the following conclusions may be made. 22. In the First Information Report, P.W.1 has only stated that Guddu, Suresh armed with banka and Gopi with lathi came and hit her husband at his neck and body then he ran and fell at the door of Surjee and died. Whereas in her statement she has deposed that the accused persons started hitting her husband with banka and when her husband ran towards the door of Surjee, then 2-3 blows of banka were given on his neck as such he died on the spot. 23. A perusal of the site plan shows that Point No.A is the place where the occurrence according to prosecution is alleged to have started where stake (Khuta) was dig by the accused persons at 4-5 paces away from it. The house of P.W.1 and deceased Kamlesh is situated whereas house of Surjee is at Point No.B, i.e.50 steps away towards east and then towards north from the house of Bujan and turn towards north with adjoining house of Surjee. The house of P.W.1 and deceased Kamlesh is situated whereas house of Surjee is at Point No.B, i.e.50 steps away towards east and then towards north from the house of Bujan and turn towards north with adjoining house of Surjee. These two houses completely block vision from Point No.A to Point No.B. If we compare the testimony of P.W.1 with the deposition of P.W.2 it appears that P.W.1 shows her presence at Point No.A, P.W.-2, in his testimony says that P.W.1 was inside the house at the time of the injury caused upon Kamlesh when he started running therefore, there is material contradiction between the testimony of P.W.1 and P.W.2 which goes to the root of the matter as the P.W.-2 by his evidence has made the presence of P.W.1 doubtful at Point No.A. 24. P.W.-2 further does not say that P.W.1 received any injury but only says that she was pulled and tugged away. An overall examination of the statement of P.W.1 reveals that she has improved her statement from the written Report by the time she has given statement as P.W.1. In the First Information Report no place of genesis of occurrence has been stated and no injury is alleged to have been caused at the door of Surjee to the deceased whereas in the statement as P.W.1 she has said that 2-3 injuries were caused at the door of Surjee. This eye witness account of P.W.1 has not been supported by the other eye witness i.e. P.W.2 who says that when one injury was caused to the deceased Kamlesh at point A (P.W.1) was inside the house and has also not supported the injury received by P.W.1. 25. P.W.3 examined P.W.1 at 12:45 p.m. and has deposed that her injury was one day old i.e. on 20.9.2002 and if six hours fluctuation is permissible under law then the said injury of P.W.1 could not have been caused on 19.9.2002. Therefore, it will not be safe to rely eye witness account of P.W.1 for the reason that her presence at Point No.A has been belied by P.W.2, who is another eye witness. 26. Therefore, it will not be safe to rely eye witness account of P.W.1 for the reason that her presence at Point No.A has been belied by P.W.2, who is another eye witness. 26. In the First Information Report, P.W.1 has stated that deceased ran after being hit by banka towards the door of Surjee and fell there and died thereafter, whereas while deposing as P.W.1 she has made significant improvement from the version of written report/First Information Report and has said that when the deceased reached at the door of Surjee, the accused inflicted 2-3 blows of banka at his neck. The injury of P.W.1 as per medico-legal opinion and the statement of P.W.3 Dr. Vishnu Dev could have been caused on 29.9.2002 at 12:45 p.m. (+ -)) six hours fluctuation which means it could not have been caused on 19.9.2002 on the date of incident but could have been caused on 20.9.2002. Even after giving this statement, P.W.3 was not cross examined by public prosecutor. 27. In the written report/First Information Report no place of occurrence has been disclosed by P.W.1. 28. P.W.2 in his examination in chief has stated that Guddu had hit deceased Kamlesh with banka from the blunt side then he ran and was caught hold by the accused persons at the door of Surjee. P.W. 1 went there to rescue him but she was tugged away. In the cross examination, he has stated that deceased Kamlesh was hit first by Gopi (armed with lathi) that place was ten steps away where he was standing. Second wound on Kamlesh was inflicted by Guddu on the head of Kamlesh then he ran away. The place where deceased was given the first blow was 45 steps away from the house of Kamlesh, his door was open and P.W.1 was inside the house. Guddu hit Kamlesh with banka from one step away on his forehead and blood started falling when Kamlesh fell at the door of Surjee he saw from a distance far away that Kamlesh was given 3-4 blows of banka, but he did not go near him. After analysing the statement of P.W.2 we notice that according to P.W.2 Kamlesh was given first blow by banka from the blunt side. After analysing the statement of P.W.2 we notice that according to P.W.2 Kamlesh was given first blow by banka from the blunt side. A perusal of ante mortem injuries in the post mortem report shows that six incised wounds were caused on the person of deceased and no wound from the blunt side of banka or any blunt object has been found on the fore head of deceased Kamlesh. He further says when P.W.1 went to save Kamlesh at the door of Surjee she was tugged away whereas P.W.1 in her testimony says that she was hit by banka. P.W.2 further says that the place from which he saw the genesis of occurrence he was ten steps away from him. He further says that he saw accused persons giving 3-4 blows by banka when Kamlesh fell at the door of Surjee from his spot which is shown as Point No.B in Naksha naziri. This statement of P.W.2 does not corroborate with the site plan as according to P.W.2 he was ten paces away from Point No.A and Kamlesh ran all the way through from Point No.A to Point No.B which is 50 paces away while running from west to east and then towards north. The two houses i.e. the house of Bujan and house of Surjee completely blocked the eye sight and whichever direction P.W.2 might be standing at 10 steps away from Point No.A. As per site plan, it is impossible to see the incident at Point No.B because of the two houses. P.W.2 further belies the testimony of P.W.1 as in his statement he has said that when Kamlesh was hit at Point No.A P.W.1 was inside the house therefore, in view of the contradictory and improbable testimony of P.W.2 we find that it is not trust worthy and is liable to be discarded. 29. No place of incident has been mentioned in the First Information Report. There is enmity between the accused appellants and P.W.1 and her deceased husband regarding sahan land and stake as well as ditch (Nali) of the accused persons. The prosecution has failed to prove the presence of P.W. 1 and P.W.2. In this regard, testimony of P.W.1 and P.W.2 creates doubt with regard to the place of occurrence. Learned counsel for the appellants has relied on the judgment of the Apex Court reported in 2004 SCC (Crl.) Suppl. The prosecution has failed to prove the presence of P.W. 1 and P.W.2. In this regard, testimony of P.W.1 and P.W.2 creates doubt with regard to the place of occurrence. Learned counsel for the appellants has relied on the judgment of the Apex Court reported in 2004 SCC (Crl.) Suppl. 34 Ramsewak and others vs. State of Madhya Pradesh), wherein the Court has held as under:- “We have also noticed that there is considerable doubt in regard to the place of incident also. From the medical evidence we notice that the deceased suffered 3 major incised wounds leading to the severance of the blood vessels an amputation of his hand near the wrist and the body in question was lying at the spot till the police came which was nearly 4 to 5 hours later but still the Investigating Agency was unable to find any blood on the spot. Of course, the prosecution has given an explanation that after the incident in question it had rained but even then it is difficult to believe that even traces of blood could not have been found on the soil in spite of the rain. The absence of any such material also supports the prosecution case that the incident in question might not have happened at the place of incident. In the background of these deficiencies in the prosecution case, we think the trial court was justified in coming to the conclusion that the prosecution has not established its case hence the trial court was justified in acquitting all the accused persons. Consequently, we are of the opinion that the High Court was not justified in taking a contrary view.” 30. In this case also, prosecution has not been able to prove the point where the occurrence is said to have started i.e. from Point No. A to Point No.B, although the evidence has come that blood started oozing out from forehead of the deceased (Kamlesh) at Point No.A who ran towards the door of Surjee at 50 paces while blood was falling from his head but no blood stain has been recovered therefore, place of occurrence and genesis has become doubtful as such it cannot be ruled out that the incident or occurrence may not have happened and started at Point No.A, the alleged place of incident. 31. 31. We have noticed that there is considerable doubt with regard to the place of incident. According to First Information Report, no injury was caused in front of the house of Surjee. The prosecution has failed to prove that incident started at Point No.A therefore, also the P.W.1 and P.W.2 could not have seen the incident. No blood stain has been found at Point No. A or on the entire way till Point No.B. The injury alleged to have been caused on P.W.1 has been found by P.W.3 to have been caused one day before the examination i.e. on 20.9.2002 and not on 19.9.2009 i.e. the date of incident. The statement of P.W.1 regarding her injury does not corroborate with medical evidence of P.W.3. The statement of P.W.1 cannot be believed in view of the injury report and with the positive finding of P.W.3, the suggestion of two days in the course is not enough even P.W.-3 has not found any clotting on the hand of P.W.1 which makes the testimony of P.W.1 untrustworthy. 32. From the post mortem report, it is apparent that the deceased has received six incised wounds and according to prosecution theory, 3-4 wounds have been caused on the person of the deceased at Point No.B and one wound has been inflicted at Point No.A, (there is no explanation of other two wounds) leading to severance of the blood vessels and blood oozing out from his forehead and falling at Point No.A where the fight is alleged to have started from Point No. A to Point No.B, which is 50 steps away, not a single blood stain has been recovered although inquest report was prepared within hours on the same day. It is also not the case of the prosecution that due to rain or some other factor they are unable to find any blood on the spot. No such explanation has come which creates a sufficient doubt on the place of occurrence. The materials and evidences supports the defence case that the incident or occurrence may not have happened/started at the Point No.A at the alleged place of incident. 33. No such explanation has come which creates a sufficient doubt on the place of occurrence. The materials and evidences supports the defence case that the incident or occurrence may not have happened/started at the Point No.A at the alleged place of incident. 33. In view of the aforesaid deficiencies and short comings in the evidence of prosecution case, it can be safely said that prosecution has failed to prove its case beyond reasonable doubt and in view of the settled law the benefit of doubt must go in favour of the accused appellants. 34. For the reasons stated above, the appeal succeeds and the same is allowed. The conviction of the appellants is set aside. If the appellants are on bail, the bail bonds shall stand discharged. 35. Since, Shri Manish Kumar Singh, Advocate was appointed as Amicus curiae by this Court, he shall be paid a sum of Rs.20,000/-(Twenty thousand only) as his fee for conducting the case on behalf of the appellants.