Rafique vs State Of U.P.
2012 Latest Caselaw 3528 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 6224 of 2006
 
Petitioner :- Rafique
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- Santosh Shukla,B.Sahai
 
Respondent Counsel :- Govt. Advocate
 

 
                         Connected with
 

 
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 5847 of 2006
 
Petitioner :- Nirdeep & Another
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- Santosh Shukla,Sadhana Udadhyay
 
Respondent Counsel :- Govt. Advocate
 

 
                        Connected with 
 

 
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 7190 of 2006
 
Petitioner :- Dhappa @ Vishvanath
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- Santosh Shukla,S.S. Upadhyay,Sadhna Upadhaya,Sukesh Kumar
 
Respondent Counsel :- Govt. Advocate
 

 

 
Hon. Arun Tandon,J.

Hon. Ramesh Sinha,J.

These three criminal appeals arise out of the judgment and order dated 16.9.2006 passed by Sessions Judge, Auraiya in S.T. No. 38 of 2000 (State Vs. Dhappa @ Vishwanath and others), by which the appellants have been convicted and sentenced to life imprisonment under Section 302 read with Section 34 I.P.C. and a fine of Rs.10,000/- each have been imposed on them and in default of payment of fine, they have to further undergo one year R.I. each.

Criminal Appeal No. 6224 of 2006 filed on behalf of the appellant Rafique was ordered to be abated by this Court vide order dated 29.5.2012 as the said appellant was reported by the C.J.M., Auraiya, to have expired during the pendency of appeal.

The prosecution story in brief is that an FIR was lodged by the complainant Anita Gupta, wife of deceased Rajesh Kumar Gupta on 9.3.2000 through a report written by one Ashok Gupta at Police Station-Bidhuna, District-Auraiya stating that on 8.3.2000 in the evening she along with her husband was to return Bharthana to their native village Ruruganj. They were waiting near a petrol pump for a bus. At that moment, one man came to her husband and after talking to him asked for money for purchase of liquor. This her husband refused. The man went away threatening her husband. The complainant asked her husband about the identity of the said man. Her husband told her that the man was Dhappa Yadav of village Barke Purwa. Thereafter, the complainant along with her husband went towards Tehsil Chauraha to board the bus. On the arrival of the bus they boarded it and as the bus was about to move, the said person Dhappa along with two companions (unknown persons) boarded the bus and started abusing her husband and stated they would now realize twice the money asked for and started assaulting her husband. She tried to protect her husband but one of the unknown person who was armed with a countrymade pistol over powered her husband who was sitting on the seat of the bus and threatened him not to raise alarm. The passengers sitting on the bus kept quite on seeing the countrymade pistol in the hand of the assailant. Udai Narayan, Awadhesh Kumar, resident of Ruruganj and Ramu Dixit, resident of Auaiya were also sitting in the bus at that time. The accused Dhappa and his two companions kept on assaulting her husband between Bidhuna to Ruruganj, and almost done him to death. The two companions told Dhappa that beaten her husband it appears to have expired and that he be thrown out of the bus. Dhappa had had a talk with the driver of the bus. The driver stopped the bus at the turning of Ruruganj. Dhappa and his two companions threw out her husband, she also got down from the bus. The driver reversed the bus and drove it over her husband. She could notice the number of the bus which was 9289. Some of her articles were left in the bus. On alarm being raised by her, persons waiting for boarding the bus, came to help. She took her husband on a jeep to Bidhuna Hospital where doctor examined him and thereafter instructed her to take him to Etawah. On way to Etawah near Kudar Court her husband succumbed to his injuries. She brought the dead body of her husband to her house at Ruruganj. On reaching the house she came to known that the real name of Dhappa was Vishwanath Singh Yadav. She did not come to known the names of two other persons. She with the help of family members went to the police station and lodge the FIR for taking necessary action.

The FIR was registered at Police Station Bidhuna as Case Crime No.66 of 2000, under Section 302 I.P.C. against the accused Dhappa @ Vishwanath, the driver of the bus, and two unknown persons which was exhibited as Ex. Ka-1. The Chik FIR was prepared which was marked as Ex. Ka-3. G.D. prepared at the police station regarding the registration of the FIR was exhibited as Ex.Ka-4. The panchayatnama/inquest report was marked as Ex. Ka-6, , chalan lash was exhibited as Ex. Ka-10 and photolash was exhibited as Ex. Ka-7.

Thereafter a letter was prepared for conducting post-mortem which was marked as Ex. Ka-9. The letter to the C.M.O was marked as Ex.Ka-8. The post mortem of the deceased Rajesh Kumar Gupta was conducted at District Hospital Etawah on 9.3.2000 at 5.55 P.M by Dr. B.M. Sharma. The post mortem report was prepared and exhibited as Ex. Ka-2.

The Investigating Officer recorded the statements of the witnesses under Section 161 Cr.P.C. prepared the spot inspection note and the site plan of the place of occurrence which was exhibited as Ex. Ka-11.During investigation, the driver of the bus was identified as Rafique and the two unknown persons as Nirdeep and Mahipal. The Investigating Officer after completing the investigation submitted the charge sheet against the accused persons in the Court, which was marked as Ex. Ka-5. The trial Court framed charges against the accused appellants under Section 302 read with Section 34 I.P.C. . The accused denied the charges and pleaded to be tried.

The prosecution in support of its case examined PW1 Anita Gupta, the informant of the case, the wife of the deceased, Awadhesh, the eye witness of the incident who is the cousin brother of the deceased as PW2, ,Dr. B.L. Sharma, who conducted the post mortem of the deceased as PW3, Head Constable 31CP Ram Pratap Singh who proved the Chick FIR as PW4, Vishram Singh Katheria, Deputy Superintendent of Police, the 3rd Investigating Officer of the case as PW5, Sub Inspector K.S. Tripathi who was the 2nd Investigating Officer as PW6. Nathu Lal Bharti was examined as CW1, being the 1st Investigating Officer of the case.

The accused in their statement recorded under Section 313 Cr.P.C. pleaded innocence and stated that the incident had taken place at some other place and in some other manner. They have been falsely implicated in the present case. In the defence they did not produce any evidence.

PW1 Anita Gupta, the informant of the case and wife of the deceased, narrated and supported the prosecution story as recorded in the FIR. She specifically further disclosed stated before the Court about the identity of two unknown persons, namely, Nirdeep and Mahipal who were companions of accused Dhappa @ Vishwanath. She proved the FIR (Ex. Ka-1) which she got written by Ashok Gupta who after writing it had read the contents to her and after hearing the same she had signed it. She further stated that the Investigating Officer did not record her statement under Section 161 Cr.P.C. at the police station and she after lodging the report at the police station had come back to her house and thereafter the Inspector came to her house and interrogated her. She had shown to the Investigating Officer the place of occurrence. She further identified the clothes of her husband which were showed to her after opening the seal bundle in the Court. She stated that the said clothes were worn by her husband at the time of the incident.

PW-2 Awadhesh, the eye witness of the incident and the co-passenger of the bus in question stated that he on the same day and time had come to Bidhuna and was returning to his house from Bidhuna to Ruruganj. When the bus stopped at Bidhuna Tehsil crossing, the deceased Rajesh Gupta and his wife boarded the bus and as soon as the bus moved, accused Dhappa, Nirdeep and Mahipal also boarded the bus and started abusing the deceased Rajesh Gupta and stated that they will realize double the amount from him. Initially, the accused Dhappa had demanded money for liquor from Rajesh Gupta which he refused, hence, he was threatening to realize double the amount. When the deceased refused to give the money, all the three accused started assaulting the deceased Rajesh Gupta. An effort was made to save Rajesh, the accused Nirdeep who was armed with countrymade pistol threatened them with dire consequences. He repeated the incident as per the version of PW1 Smt. Anita Gupta. For the sake of brevity, the same is not being reproduced here. The witness further stated that at the time of the incident the co-passengers in the bus namely, Uday Narain resident of Ruruganj and Ramu Dixit resident of Auraiya were also sitting in the said bus. It was further stated that he along with Uday Narayan and Ramu Dixit and 8-10 other passengers came down from the bus. The informant with the help of other persons placed Rajesh Gupta on a jeep and took him to Bidhuna. At that time Rajesh Gupta was alive. From Bidhuna Rajesh Gupta was taken to Etawah, he expired on the way. On the next day in the morning at 5 A.M. he went to the house of deceased Rajesh Gupta, his dead body was kept at the door of the house. He also disclosed the names of two other assailants accused as Mahipal and Nirdeep.

PW3 Dr. B.L. Sharma who was the Medical Officer in the District Hospital Etawah was posted as ENT Surgeon and at 5.55 P.M. on 9.3.2000 he conducted the post mortem of the deceased Rajesh Kumar Gupta son of Banshi Dhar Gupta, R/o Ruruganj, Police Station Bidhuna, District Auraiya. The body was brought by Constable Accheylal Vinod Kumar, who identified the dead body. The deceased was aged about 28 years and duration of death was about one day. The deceased was of normal physique. The doctor found anti-mortem injuries which are mentioned herein below:-

1. Abraded contusion 2 cm x 1.5 cm on right side of face above tempo manual joint.

2. Incised wound 3 cm x 6 cm x bone deep on bottom of right equivonal region where there was a fracture.

3. Lacerated wound 9 cm /3 cm x muscle deep on right scrotum.

4. 3 Abraded contusion 20 cm x 15 cm on outer part of right thigh and in middle femur bone was fractured.

5. Abraded contusion 4 cm / 1.5 cm on back side of left knee.

6.Multiple abrasion 13 cm x 2 .5 cm on front and bottom of right leg.

7.Multiple abrasion 25 cm x 8 cm on internal part of left leg.

8. Contusion 6 cm /5 cm on right and lower side of leg on upper part.

9. Contusion 20 cm / 3 cm on outer and middle part of left thigh.

According to the doctor, death was caused due to shock and haemorrhage because of injuries prior to death.

In the opinion of the doctor, the cause of death was shock and hemorrhage as a result of anti- mortem injuries. Doctor further stated that the deceased had possibly expired in the evening of 8.3.2000. He further stated that all the anti-mortem injuries could be caused by crushing under the wheels of a bus. PW3 has proved the post mortem report which is said to be written and signed by him and the same has been marked as Ex. Ka-3.

PW4 Head Constable 31 Ram Pratap Singh has proved the chick FIR Ex. Ka-3 and G.D. Ex. Ka-4. He stated that he was posted on 9.3.2000 at the concerned police station on which date the FIR of the incident was lodged in his presence.

PW5 Deputy S.P. Vishram Singh Katheria stated that on 6.4.2000 he was posted as In-charge, Police Station Bidhuna, District Auraiya. He had conducted the investigation of the case crime No. 66 of 2000, under Section 302 I.P.C. He had taken over the investigation on 6.4.2000. He recorded the statement of the owner of the bus in question namely Chandra Pal Singh under Section 161 Cr.P.C. He recorded the statement of accused Rafique with the permission of the Court on 12.4.2000 in District Jail Fatehgarh. He also recorded the statement of witnesses of inquest report and has submitted charge sheet against the accused persons in the Court and proved the same as Ex. Ka5.

PW6 K.S. Tripathi, Sub Inspector, stated that on 11.3.2000 he was posted as Senior Sub Inspector at Police Station Bidhuna, District Auraiya. He undertook the investigation of case crime No.66 of 2000. He recorded the statement of the witnesses of the FIR, namely, Udai Narain, Kathori and Pappu and RamSwaroop. On 12.3.2000, he recorded the statement of Geetam Singh, Mukut Singh and Ahibaran Jamadar Singh under Section 161 Cr.PC. and made search about the accused persons. On 12.3.2000 he sought permission from the Court for initiating proceedings under Sections 82 and 83 Cr.P.C. On 14.3.2000, he recorded the statement of accused Dhappa @ Vishwanath who had surrendered on 14.3.2000 in the Court. On 15.3.2000, he recorded the statement of accused Rafique who was sent to jail after his earlier bail bonds were cancelled by the Court. On 15.3.2000, he prepared the 'B' warrant of accused Rafique. On 16.3.2000, he recorded the statement of scribe of the FIR Ashok Kumar and made search of the rest of the accused. He further recorded the statement of accused Nirdeep on 28.3.2000 who had surrendered in the Court. He and executed the proceedings under Sections 82 and 83 Cr.P..C. on 30.3.2000 against the accused Mahipal.

CW1 Natthu Lal Bharti who was examined as the Court witnesses, has stated that on 9.3.2000 he was posted as Inspector in-charge of Police Station Bidhuna, he started the investigation of case crime No.66 of 2000. He conducted the panchayatnama and prepared the inquest report, photolash and challanlash and proved the same along with certain documents, with respect to the post mortem report of the deceased. The trial Court after considering the evidence brought on record and after considering the case pleaded by the parties has held that the prosecution has been able to bring home the charge against the accused beyond reasonable doubt. The trial Court has accordingly convicted and punished the appellants as aforesaid.

We have heard Sri Santosh Shukla, learned counsel for the appellants and Sri Arunendra Kumar Singh, learned counsel appearing on behalf the State.

It has been contended by the learned counsel for the appellants that at least two accused appellants, namely, Nirdeep and Mahipal had not been mentioned by PW1 in the FIR. Their names have subsequently been included in light of the statement recorded under Section 161 Cr.P.C. of PW1 on the information of Awadhesh who was the co-passenger and cousin dewar of PW1. Their names are stated to be disclosed on the next day in the morning at the house of PW1, which creates suspicion regarding the complicity of the said two appellants in the present case. Their names appears to be falsely implicated after due consultation and deliberation. The testimony of PW1 is unworthy of credence. It is further argued that the presence of PW 2 Awadhesh at the time of incident also appears to be doubtful. If he had been present at the time of occurrence along with PW1 then the names of the unknown persons who were accompanying the accused appellant Dhappa @ Vishwanath would have been told by the witness Awadhesh to PW1 and their names should have found place in the FIR. It is then urged that their has been material contradictions in the statements of PW1 and PW2 regarding the manner in which the incident had taken place. The conduct of PW2 Awadhesh who is stated to be an eye witness of the incident and co-passenger in the bus not unnatural as when the deceased was being thrown out of the bus, made no attempt to save the deceased who was his cousin brother. He also did not accompany the deceased along with PW1 to the Hospital at Bidhuna. The presence of PW1 at the place of occurrence also seems to be doubtful as the version given by her regarding the prosecution story does not corroborate with the medical evidence. The accused appellants have been falsely implicated in the present case after due consultation and deliberation due to inimical relationship with the deceased and village party bandi. He explains that no motive was pleaded for the appellants to commit the murder of the deceased. There is no independent witness produced by the prosecution to support the prosecution story. PW1 and PW2 are highly interested and partisan witnesses. Their evidence has to be tested with caution. Learned counsel for the appellants argues that the conviction and sentence of the appellants is against the evidence on record. This Court may allow the appeal and the accused appellants be acquitted.

Learned AGA in reply submits has argued that the incident had taken place in a bus in which the deceased along with his wife and other passengers were travelling. The accused Dhappa alias Vishwanath along with his companions, namely, Nirdeep and Mahipal assaulted the deceased and beaten him in the presence of his wife and the eye witness PW2 Awadhesh when the deceased had refused to give money to him for liquor. The accused further threatened the wife of the deceased and the eye witness PW2 Awadhesh and other co-passengers travelling in the bus who made an attempt to save the deceased. They threw the deceased down from the bus. The accused Dhappa @ Vishwananth further directed the driver of the bus, namely, co-accused Rafique ( now dead) to run over the bus on the deceased Rajesh Gupta. The co-accused Rafique ran over the bus on Rajesh Gupta and crushed him. He submits that the name of two unknown persons was not disclosed in the FIR by PW1, wife of the deceased, as she did not know them from before. She was told about the names of two unknown assailants who were the companions of accused Dhappa @ Vishwanath by PW 2 Awadhesh on the next morning. She in her statement under Section 161 Cr.P.C. disclosed the names of two other assailants to the Investigating Officer as Nirdeep and Mahipal. He further submitted that PW2 Awadhesh who was co-passenger in the bus along with PW1 and deceased Rajesh Gupta had seen the incident and has stated in his evidence before the Court the true fact which stand corroborated by the medical evidence, hence his presence at the place of occurrence cannot be doubted. He further submitted that the conduct of PW2 in not saving the deceased from the accused persons at the time of incident cannot be said to be unnatural as the co-accused Nirdeep was having a countrymade pistol in his hand and he had threatened the co-passengers and the wife of the deceased with dire consequences. In such a situation the conduct of PW2 or any other co-passengers in the bus cannot be termed as unnatural. It is further submitted that the accused appellants have failed to plead any reason for their false implication in the present case. Their complicity in the alleged crime cannot be doubted as neither the PW1 nor PW2 had any inimical relationship with the appellants. He further submitted that the trial Court has rightly convicted the sentenced the appellants on the basis of the ocular testimony which was corroborated by the medical evidence. Hence, the conviction and sentence as ordered by the trial Court need not be interfered by this Court.

The argument of learned counsel for the appellants that non-disclosure of the names of the two unknown persons who were accompanying the accused appellant Dhappa @ Vishwanath Singh at the time of incident in the FIR by PW1 though PW2 Awadhesh who is the eye witness of the incident was a co-passenger in the bus in which the incident had taken place and knew the two assailants is only trivial in nature. In the panic situation in which PW1 was placed at the time of incident, there could have been an occasion for her to seek information from PW2 about the two assailants. Because of the injuries caused to her husband she with the help of other persons who were present rushed her injured husband to the hospital. Further, from the evidence it is clear that PW2 did not accompany her to the hospital. In such a situation, it is quite natural that after the deceased Rajesh Gupta died she lodged the FIR without discussing the name of two co-accused. It was to only in the morning next day when PW2 came to her house, that he disclosed the names of two co-accused as Nirdeep and Mahipal who were accompanying the main accused Dhappa @ Vishwanath at the time of the incident. It is those persons who had beaten the deceased Rajesh Gupta and thrown his body down from the bus and thereafter the co-accused Rafique crushed him under the wheels of the bus at the instance of accused Dhappa @ Vishwanath Singh.

The next submission of learned counsel for the appellant that the presence of PW2 at the place of occurrence was doubtful because of his unnatural conduct of not saving the deceased from the accused appellants, while they assaulted and thew him from the bus and further of not accompanying the PW1 to the hospital also cannot be the basis to disbelieve the eye witness account of PW1 and PW2. It was specifically deposed that one of the co-accused was armed with the help of countrymade pistol, threatened, along with PW1 and other co-passengers of the bus with dire consequences. In such a situation, it cannot be said that the behaviour of the eye witness PW2 was unnatural so as to discard his testimony. Simply because the PW2 being cousin brother of the deceased did not accompany PW1 who is wife of the deceased to the hospital who was taken by her in an injured condition also does not lead us to doubt his presence at the place of occurrence and his statement.

The Hon'ble Apex Court in the case of Kathi Bharat Vajsur and Another Vs. State of Gujrat 2012 (5) SCC 724 has held that it is not for the prosecution or Court to go into question as to why a eye witnesses reacted in particular manner or "unusual manner". There is no fixed pattern of reaction of an eye witnesses to a crime. When faced with what is termed as "unusual reaction" by an eye witnesses, court must only examine whether prosecution story is in any way affected with by such reaction and if answer is in negative, then sch reaction is irrelevant.

The next submission of the learned counsel for the appellants that there was major contradictions on the material aspect of the incident and disclosure of the names of co-accused at a subsequent stage by PW1 and PW2 are all trivial in nature and do not in any way dilute eye witness account of the incident which is fully corroborated by medical evidence and the statement of PW 3 Dr. B.L. Sharma who also stated that the deceased was done to death in the manner as stated by the prosecution.

After going through the evidence of PW1 and PW2, we find that there are no material contradictions as suggested by the learned counsel for the appellants in the evidence of PW1 and PW2 with regard to genuineness of the prosecution story so as to prove fatal to the prosecution case and to discard their testimony on this ground alone.

The plea of the learned counsel for the appellants that the incident had taken place in some other manner and at a different point of time has rightly not found favour with the trial Court in as much as except for bald statement no material facts were brought on record.

The appellants have disclosed no reason for their false implication. No enmity with appellants had been disclosed.

We find that the FIR is prompt. The ocular testimony of PW1 and PW2 is fully corroborated by the medical evidence and there is no reason to discard their testimony.

So far as the issue of motive is concerned, it is evident from the evidence on record the that the deceased was done to death in a brutal manner by the accused appellants simply because the deceased refused to fulfill the illegal demand of money by the accused appellant Dhappa @ Vishwanath for purchasing liquor along with his companions, namely, Nirdeep and Mahipal. In the presence of public at large they had thrown the deceased out of the bus and then asked the driver of the bus to crush the deceased. The driver ran the bus over Rajesh Gupta who succumbed to his injuries. In a brutal manner the deceased was murdered, simply because he refused to give money for liquor to accused Dhappa.

In the instant case, we find that the presence of the PW1 and PW2 at the place of occurrence was quite natural and they have fully corroborated the prosecution story which is supported by the medical evidence, hence, their testimony cannot be doubted in any manner.

In the case of Ramesh Harijan Vs. State of U.P. SCC 2012 (5)777, it has been held that "it is the duty of court to unravel the truth under all circumstances, undue importance not to be given to minor discrepancies which do not shake the basic version of the prosecution case. It was further held that if a witness is otherwise reliable, then his evidence should not be disbelieved. If a major portion is found to be deficient and residue is sufficient to establish the guilt of accused, then courts must separate grains from the chaff. It has to be apprised in each case as to what extent the evidence is admissible. If courts consider some portion of evidence as insufficient or unworthy, it does not mean as a matter of law that entire evidence must be disregarded in all respect."

Hence, we hold that the trial Court has rightly, recorded the finding of conviction and has awarded the sentence against the accused appellants. We affirm the judgment and order passed by the trial Court convicting and sentencing the accused appellants for the offence charged. The appellants Nirdeep and Mahipal are on bail, their bail bonds and sureties are discharged. They shall be taken into custody and confined in jail to serve out the sentence as ordered by the trial Court. The appellant Dhappa @Vishwanath is already in jail, he shall serve out the sentence also as ordered by the trial Court.

The appeals lacks merit and is, accordingly, dismissed.

Dt.16.8.2012

NS