Amrit Singh And Another vs State Of U.P.
2012 Latest Caselaw 3453 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. 53
 

 
 Criminal Appeal No. 6511 of 2008
 
Amrit Singh and another				..... Appellants
 
Vs.
 
State of U.P.						..... Opp. Party
 
With
 

 
 Criminal Appeal No. 6688 of 2008
 
Sukhbeer Singh and another			..... Appellants
 
Vs.
 
State of U.P.						..... Opp. Party
 

 
Hon. Arun Tandon, J.

Hon. Ramesh Sinha, J.

These two appeals are directed against the judgment and order of the Additional Sessions Judge, Court No. 1, Etah dated 08.09.2008, whereby all the four accused, who are appellants before this Court, namely Sukhbeer Singh s/o Amrit Singh, Soorbeer Singh s/o Amrit Singh, Amrit Singh s/o Roop Singh, Munesh s/o Amrit Singh, were convicted of an offence under Section 302 read with Section 34 IPC and were sentenced to undergo life imprisonment. Appellant Amrit Singh s/o Roop Singh one of the appellant in Criminal Appeal No. 6511 of 2008, as per the report of the C.J.M., has expired during the pendency of the appeal on 12.09.2009. Hence appeal of Amrit Singh stands abated.

Facts in short giving rise to the present appeals are as follows:

A first information report was registered by one Ram Dayal on 03rd March, 2000 with the Senior Superintendent of Police, Etah, wherein it was stated that his son namely Rambeer Singh at around 6.30 a.m. in the morning had gone to attend the call of nature towards Bamba and while returning Amrit Singh s/o Roop Singh, Sukhbeer Singh s/o Amrit Singh and Munesh s/o Amrit Singh surrounded Ramvir on the road near the Pulia. Amrit Singh and Munesh were armed with Lathi while Sukhbeer Singh was armed with Kulharka (small Axe). The aforesaid three persons assaulted Rambeer with Lathi and Kulharka with the intention to kill him. Ram Prakash s/o Naththu Singh, Rajnish @ Cheena s/o Udaiveer Singh and one Rajesh Kumar s/o Lajjaram rushed to the spot to save Rambeer . In the meantime Soorbeer Singh s/o Amrit Singh came with his utility Jeep No. U.P. 82-A-9372. Amrit Singh exhorted Soorbeer Singh to kill Ramvir Singh son of informant. Soorbeer Singh drove the vehicle over Rambeer Singh with the intention to kill him, which resulted in serious injuries. Informant along with other residents of the village took Rambeer Singh to Etah hospital, on way Rambeer Singh expired.

In the first information report it was specifically mentioned that the accused had enmity with the informant and it is in this background that they had killed his son. It was also informed that the informant had visited the police station but his report was not registered and therefore he approached the Senior Superintendent of Police, Etah and only thereafter the first information report had been registered. It was also stated that the dead-body of the deceased was lying in the hospital at Etah. Accordingly, an offence under Section 302 IPC was registered. The Chik first information report was marked as Exhibit-Ka-5, which was endorsed in G.D., which was marked as Exhibit-Ka-4.

Investigation of the offence was taken over by S.I. Vinod Kumar Shukla, who visited the place of incident and prepared a site plan, which is marked as Exhibit-Ka-2. The inquest of dead-body was done by the S.I. Prem Singh. The letter to the C.M.O., copy of the Photo Lash and Challan Lash was written by S.I. Prem Singh and proved by P.W.- 4 and were marked as Exhibit-Ka-9 to Ka-11. The postmortem report was marked as Exhibit-Ka-7. After investigation charge-sheet was filed against appellant Soorbeer Singh and Sukhbeer Singh under Section 302 IPC, which is marked as Exhibit-Ka-3.

After the statement of P.W.-1 was recorded, an application under Section 319 Cr.P.C. was filed by the prosecution and on the said application the trial court summoned the accused Amrit Singh and Munesh for the offence under Section 302 IPC read with Section 34 IPC. Charges were framed against all the four accused under Section 302 IPC read with Section 34 IPC.

The prosecution in support of its case produced Ram Dayal (informant) as P.W.-1, Ram Prakash as P.W.-2, Rajesh Kumar as P.W.-3, S.I. Vinod Kumar Shukla as P.W.-4, Constable Omkar Singh as P.W.-5 and Dr. K.P. Garg as P.W.-6.

Statement of the accused was recorded under Section 313 Cr.P.C. They denied the charge and it was stated that they have been falsely implicated and the witnesses have made false statement. The accused did not produce any oral evidence in their support, however in support of their case they filed a list of documents, marked as 75-A which included certified copy of the Motor Accident Claim Petition No. 216 of 2000 (Smt. Indra Devi and others vs. Amrit Singh), as well as certified copy of the statement of witness Rajesh Kumar in Motor Accident Claim Petition No. 216 of 2000 (Exhibit-76A-1/3). Similarly, Exhibit No. 76A/4 to 76-A/5, copy of the Motor Accident Claim Petition No. 192 of 2002; Ram Dayal vs. New India Assurance Co. Ltd., was also produced, Exhibit No. 77-A/1 to 77-A/3, the statement of Indra Devi in Motor Accident Claim Petition No. 216/2000 was also produced, Exhibit 78A/1 to 78A/2 the order passed in Criminal Case No. 727 of 1999 State vs. Munesh and others by the Additional Chief Judicial Magistrate, Court No. 10, Etawah dated 13.04.2004 was produced, and marked as Exhibit No. 79A/1 to 79A/3, while the order passed in Criminal Appeal No. 02/2004 by the Court of Special Judge (EC Act) dated 21.09.2005 was produced and marked as Exhibit No. 80A/1 to 80A/4.

Ram Dayal P.W.-1 in his statement narrated the entire incident which had taken place in the morning of 03.03.2000 and it was his case that while returning after answering the call of nature his son was surrounded by Sukhbeer Singh, Amrit Singh, Munesh. While Amrit Singh and Munesh were armed with lathi Sukhbeer Singh armed with Kudharka (small Axe), they started inflicting blows upon the son of the petitioner and in the meantime Soorbeer Singh came with his utility Jeep No. U.P.82A-9372. Amrit Singh exhorted Soorbeer Singh to kill Rambeer Singh and on hearing Soorbeer Singh drove the Jeep over Rambeer Singh, which resulted in serious injuries to him. The incident was witnessed by Ram Prakash, Rajnish @ Cheena and Rajesh who reached the place of incident. The accused ran away on the Jeep thereafter. The injured Rambeer Singh while being taken to Government hospital expired. It was also stated that before the said incident Munesh had stolen the Commander Jeep of the informant qua which a case was still in progress in Etawah. It was also stated that prior to the said incident accused had also threatened the informant with death qua which a criminal case is proceeding in the Court of Law. It is only because of enmity that that accused have killed the son of the informant.

The informant also specifically stated that he had gone to register first information report at police station Bagwala but the concerned police officer did not register his first information report. He therefore had to approach the Senior Superintendent of Police at Etah. A typed first information report was handed over, which was signed by him and it is with reference to said typed first information report that the criminal case has been registered.

Ram Prakash P.W.-2 the eyewitness in his statement practically reiterated in verbatim what was stated by Ram Dayal.

PW-3 Rajesh Kumar the other eye witness also reiterated entire story as was disclosed by P.W.-1 and P.W.-2 and as has been noticed by us herein above, and it was specifically stated that he has seen the entire incident.

Rajnish @ Cheema was an independent witness. His statement was recorded under Section 161 who supported the prosecution story in toto but he was not produced by the prosecution, for the reasons not known.

The investigating officer Vinod Kumar Shukla was examined as P.W.-4. It was stated by him that the statement of the informant Ram Dayal, Ram Prakash, Rajnish @ Cheena as well as that of Rajesh Kumar were recorded on 03.03.2000 itself under Section 161 Cr.P.C. On the pointing out of informant site plan was prepared which is available on record and marked as Exhibit-Ka-2. The Panchayatnama was prepared by the S.I. Prem Singh. Charge-sheet against accused Sukhbeer Singh and Soorbeer Singh were filed as well as other material evidence on record is proved by him. Omkar Singh the constable P.W.-5 proved the Chik F.I.R. as well as G.D. which are marked as Exhibit-Ka-4 and Ka-5. Dr. K.P. Garg, who had performed the postmortem, was produced as P.W.-6. He proved the postmortem report, which recorded 8 injuries suffered by the deceased in the incident. The injuries, as detailed, are being reproduced herein below:

Þ1& [kqjlV 2-5 lseh x 2 lseh lh/kh vkaW[k ds vUnj dh vksjA

2& QVk gqvk ?kko 2-5 lseh x 0-5 lseh ukd ij gM~Mh rd xgjk rFkk ukd dh gM~Mh VwVh gqbZ FkhA

3& QVk gqvk ?kko 1-5 lseh x 5 lseh BksMh ij ekal rd xgjkA

4& [kqjlV fy;s gq, uhyxw fu'kku 5 lseh x 3 lseh lh/kh dks[k ij dwYgs dh ,sY;e gM~Mh ls Bhd m«ijA

5& [kqjlV fy;s gq, uhyxw fu'kku 17 lseh x 6 lseh lh/ks iSj esa lh/ks ?kqVus dh uhpsA iSj dh nksuks gfM~M;kW VwVh gqbZ FkhA

6& QVk gqvk ?kko 1-5 lseh x 1 lseh cka;h tka?k ij gM~Mh rd xgjk] ckW;h tka?k dh gM~Mh VwVh gqbZ FkhA ?kko ?kqVus ls 15 lseh mij FkkA

7& dbZ uhyxw fu'kku 6 lseh x 5 lseh ds {ks=Qy esa ckW;s ?kqVus ijA

8& [kqjlV fy;s uhyxw fu'kku 1 lseh x 1 lseh isV ds ckW;h rjQ fupys fgLlk esa ?kMh dh lqbZ ds rhu vks Dykd dh iksth'ku ij ukHkh ls 9 lseh nwjA

On internal examination the doctor reported that there was one liter of clotted as well as non-clotted blood in the stomach. 50 ml liquid extract was found to be present in the Jigar (Liver). According to the opinion of the doctor the death was caused due to shock and hemorrhage because of excessive loss of blood. He also stated that the injuries could have been caused between 6.30 a.m. to 7.00 a.m. on 03.03.2000.

The Sessions Judge, after considering the evidence brought on record and the case of the accused, found the appellants to be guilty of an offence under Section 302 IPC read with under Section 34 IPC and has accordingly sentenced them to life imprisonment under the judgment in appeal.

We have heard Sri S.K. Pal, Advocate assisted by Sri Satyendra Kumar, Advocate on behalf of the appellants and Sri I. P. Srivastava, A.G.A. on behalf of the State.

On behalf of the appellants it has been contended that the presence of the complainant is doubtful and for the purpose following facts are referred to :

(a) cause of death could be due to accident suffered at some other place.

(b) both the eye witnesses are close relative of the deceased.

(c) P.W.-2 and P.W.-3 are close relative of deceased and as a normal human being they should have made an effort to save the victim from the blows said to have been inflicted by the accused, but no such attempt was made by them, which is not the normal human conduct and therefore their presence at the time of incident is doubtful.

(d) In the site plan, which was prepared on the pointing out of the informant himself, the place has not been shown where he was standing although it is his case that he was 15 to 20 steps away from the incident.

Learned counsel for the appellant contended that the FIR is an afterthought inasmuch as the distance of alleged place of incident and the Police Station is hardly 1 k.m. The deceased stated to have expired on way to the hospital at Etah. The informant instead of returning to the Police Station or to the village, had taken four hours to lodge the FIR.

It is then stated that although Sukhbeer Singh is stated to be in possession of Kulharka (small Axe) but from the postmortem report it is established that absolutely no incised wound was found on the body of deceased which could be referable to injuries of Axe and therefore his participation in the incident is doubtful. It is also stated that although it was the case of the prosecution that Amrit Singh, Munesh and Sukhbeer Singh had surrounded the deceased from three sides but absolutely no injury was found either on the head or back of the deceased, which makes the entire story of the prosecution improbable. Lastly it is stated that the wife of the deceased as well as the father of the deceased (P.W.-1) had filed two independent claim petition under the Motor Vehicles Act, wherein it was stated that the death was caused due to accident. Their statements made in that regard were also brought on record along with judgment delivered in the aforesaid two motor accident claim petition. Therefore, the death being caused due to accident could not be ruled out, the benefit thereof come to the accused.

So far as the plea of previous enmity between the informant and the accused is concerned, it is submitted that there was no enmity either pleaded or established between the deceased and the accused.

Learned AGA in response pointed out that the minor discrepancies pointed out by the counsel for the appellant are too tirvial to disbelieve the statement of two eye-witnesses, which has been corroboroted by the postmortem report proved by the doctor performing the postmortem. He pointed out that the injury no.6 which is bone-deep, can be inflicted by use of an Kulhara (Axe). He submits that previous enmity which is the motive for the murder was well established. The motor accident claim petition filed by the wife of the deceased and the informant both have been dismissed by the Motor Accident Claims Tribunal after recording the finding that it was not a case of accident. He further submits that in the facts of the case, there is no scope to interfere with the finding of conviction which have been arrived at by the Trial Court after considering the material evidence brought before it.

We have heard the counsel for the parties and examined the records.

It has been disclosed by the informant in evidence that he had gone to lodge the first information report at the police station which was not registered. He had to approach the S.S.P. and it was only on his direction that the F.I.R. was registered. In these facts the lodging of first information report i. e. after 4 hours of incident cannot be said to be delayed or unexplained.

It may be recorded that the facts pertaining to the incident as stated in the prompt FIR have been corroboroted by P.W.-1, P.W.-2 as well as P.W.-3. There is hardly any discrepancy in the statements and the narration of the facts by the eyewitnesses P.W.-2 and P.W.-3 with regard to the incident. They are natural witnesses and we find absolutely no reason to disbelieve the incident as narrated by them. The trial court has rightly believed the statement of the eye-witnesses which was further corroboroted by the injury report as was proved by the doctor performing the postmortem.

So far as the eye-witnesses being relative of the deceased is concerned, the Apex Court in the case of M.C. Ali v. State of Kerala; (2010) 4 SCC 573 and in the case of Himanshu v. State (NCT of Delhi); (2011) 2 SCC 36 as well as in the case of Bhajan Singh v. State of Haryana; (2011) 7 SCC 421 (Para-41) has explained that evidence of a relative witness can be relied upon provided it is trustworthy. Such evidence is carefully scrutinised and appreciated before reaching to a conclusion on the conviction of the accused in a given case.

With reference to the minor discrepancies pointed out in the statements of P.W.-1, P.W.-2 and P.W.-3 it must be kept in mind that the statement of P.W.1 was recorded on 29.10.2001 and his cross-examination could not take place for seven years because an interim stay order obtained by the co-accused in proceedings initiated before this court by means of an application under Section 482 Cr.P.C. The cross-examination taken place on 19.3.2008 while the evidence of all other prosecution witnesses had been recorded in the year 2008 only.

The Apex Court in the case of Sampath Kumar v. Inspector of Police, Krishnagiri reported in (2012) 4 SCC 124 has explained that minor contradictions are bound to appear in statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to peson. Discrepancies in testimony of a witness caused by memory lapses are acceptable. We may further record that the discrepancies pointed out are only trivial and inconsequential in nature.

So far as the presence of the informant being not shown in the site plan is concerned, sufficie is to record that such discrepancies are not sufficient to disbelieve the occulor testimony of the eye witness.

As also noticed above, the Apex Court has clarified that the testimony of eyewitness, who are close relative of deceased, cannot be discarded on the plea of relationship, their evidence should be examined with minute scrutiny and with great care and caution. If they give a true version of the incident corroborated by the medical evidence and their presence at the place of occurrence is established then their evidence can be relied upon. In the instant case though the informant P.W.-1 is the father of deceased, P.W.-2 is the son-in-law of P.W.-1 and P.W.-3 is the nephew of P.W.-1 and are related to deceased have stated about their presence at the place of incident and had stated that the deceased was brutelly done to death by the appellants due to enemity with informant the father. Their statement is corroborated by the medical evidence on record. There is no reason for this Court to disbelieve them simply becasue they are relative of deceased. Therefore, the argument of learned counsel on this score has no force. Similarly, merely because no attempt was made by the eye witness to save the victim, it cannot be said that their conduct was unnatural inasmuch as human reaction depends on many factors including the number of assailants, the weapons in their possession etc.

The learned AGA appears to be justified in pointing out that injury no.6 is refferable to blow of Kulharaka (small Axe). The trial court appears to be justified in further recording a finding that because of absence of an injury on the head or on the back of the deceased, the case of the prosecution cannot be disbelieved.

So far as the petitions filed under the Motor Vehicles Act are concerned, it is apparent from the record that the claim petition by the widow was dismissed after recording a finding that it was not the case of an accident, while the second claim petition by informant was dismised for want of prosecution. In such circumstances, We have no hasitation to hold that the findings recorded by the trial court cannot be faulted with and there is no good reason to interfere with the same.

We may record that the previous enmity between the informant (father of the deceased) and the co-accused is established on record. There were pending proceedings in the matter of theft of the vehicle of the informant in the criminal court of law as also in the matter of threat to life held out by Munesh, one of the accused, to the informant.

The conviction of the appellants under Section 302 IPC readwith Section 34 IPC and also the sentence which has been inflicted for the offence so committed is affirmed.

The appellants Munesh and Sukhbeer Singh are on bail, their bail bonds are cancelled and surities discharged. They shall be taken into custody forthwith to serve out the sentence so awarded to them by the trial court. So far as the appellant Soorbeer Singh is concerned, he is already in jail and he shall also serve out the sentence so awarded to him by the trial court.

C.J.M. may ensure compliance of the judgment delivered by this Court.

Both the appeals are accordingly dismissed.

09.08.2012

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