Kirandpal & Others vs State Of U.P.
2012 Latest Caselaw 5881 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Criminal Appeal No. 4433 of 2002
 

 
1- Kirandpal @ Girandpal son of Parsadi
 

 
2- Prem Pal  son of Narain
 
    	both residents of Village Sarah Baraulia, P.S. Ugheti District          	Budaun
 
	...	...	...	     Appellants
 

 
                   				Versus
 

 
State of U.P.	...	...	...	...	...	...	   Respondent
 

 
Counsel for the appellants:	Sri Samit Gopal, Amicus Curiae
 

 
Counsel for the State:		Usha Kiran, A.G.A.
 

 
Hon'ble Rakesh Tiwari, J.

Hon'ble Anil Kumar Sharma, J

(Delivered by Justice Anil Kumar Sharma)

Challenge in this appeal is to the judgment and order dated 21.9.2002, passed by Sri D. K. Saxena the then Addl. Sessions Judge/Special Judge (E.C. Act), Budaun in S.T. No. 665 of 2000, whereby each appellant has been convicted for the offence punishable u/s 302 read with 34 I.P.C. and sentenced to imprisonment for life and imposed fine of Rs.2,000/- each with default stipulation.

2. Facts germane to the appeal are that on 16.2.2000 at 1.30 A.M. Saimulla s/o Karamat resident of village Kaurara P.S. Faizganj Behta District Budaun submitted a written report in P.S. Ugheti wherein he stated that on 14.2.2000 he had come to village Sarah Baraulia in the aqeeqa of son of Nisar s/o Ali Ahmad. On 15.2.2000 at about 10.00 A.M. a scuffle took place between his niece Nisara wife of Rashid Ahmad @ Muhammduddin resident of village Sarah Baraulia with both the Deceased-appellants. In the night of 15.2.2000 he was sleeping in the inside room of Nisara and she was in the outer room. Her mother-in-law Mahamoodan was sleeping in the flour mill situated opposite to her house. At about 11.30 P.M. on hearing the shrieks and call of Nisara, he rushed to her room and in the light of chirag he saw that Kirand Pal and Premvir has overpowered Nisara and Kirand Pal was thrusting lathi (in and out) in her vagina. He challenged the accused and in the meantime mother-in-law of Nisara also arrived there. The accused made their escape good towards southern side. Intestines of Nisara have come out from her vagina and leaving her dead body at the spot he had come to lodge the report. On the basis of this report case at crime no. 24/2000 u/s 302 IPC was registered in P.S. Ugheti, investigation whereof was taken over by S.O. Diwakar Pandey himself. After interrogating the writer of check report, he proceeded for the spot and recorded statements of complainant, Mahamoodan, Ali Mohammad and Bankey Lal. At the instance of complainant he prepared site plan and seized plain and blood stained earth from the spot. He also prepared memo regarding the lamp which was lighting on the spot at the time of incident and gave in the supurdgi of the complainant. In the morning of 16.2.2000 he conducted inquest upon the cadaver of the deceased in presence of panch witnesses and sent the same in sealed cover along with usual papers. Dr. A. K. Chauhan conducted autopsy on the corpse of 28-years' old deceased on 16.2.2000 at 4.15 P. M. He found that the deceased was having average built body. Post-mortem staining on dependent parts and rigor mortis in all extremities was found. Her eyes were closed and mouth was half open. Loops of intestines were coming out from the vagina. He found the following ante-mortem injuries on her person:

1. Multiple round contused abrasions in an area of 13 cm x 12 cm on right side of face, chin and right side of neck. Large abrasion measuring 3 cm x 2 cm and small abrasion measuring 2 cm x 2 cm.

2. Multiple round contused abrasions in an area of 7 cm x 6 cm on left side of face, each abrasion measuring 4 cm x 3 cm.

3. One round abrasion 3 cm x 3 cm on right side of abdomen.

4. One round abrasion 4 cm x 3 cm on left side of chest at costal margin 3 cm away from mid-line.

On examination of vagina, the internal wall of vagina was found lacerated and uterus and bladder ruptured. On examination of abdominal cavity stomach, liver, spleen, intestines, pancreas were found lacerated at places, dark fluid blood was present in abdominal cavity. In the opinion of the doctor, the deceased suffered death about ¾th day before due to shock and haemorrhage as a result of ante-mortem injuries.

3. Efforts were made to nab the accused, but they could not be apprehended even after serving of coercive proceess u/s 82/83 Cr.P.C. Accused Kirand Pal surrendered in the Court on 2.3.2000. He was interrogated by the investigating officer in jail on 3.3.2000 and he allegedly confessed to have killed the deceased along with accused Premvir and offered to get the weapon of offence (lathi) recovered. An application for his police custody remand was submitted in the Court of Chief Judicial Magistrate on 7.3.2000. Accused Premvir surrendered in the Court on 6.3.2000 and with the permission of the Court he was interrogated in the jail on 8.3.2000. He also allegedly confessed his guilt. On 15.3.2000 police custody remand of accused Kirand Pal for 24-hours from 12 O'clock in the noon of 16.3.2000 was granted. The investigating officer took the custody of accused Kirand Pal from the jail on 16.3.2000 and the same day at about 4 P.M. he took out the blood stained lathi from the pulas of bajra near neem tree situated in the vicinity of village Gaharera. Recovery memo was prepared, copy whereof was furnished to the accused and lathi was sealed. The wearing apparels of the deceased, plain and blood stained earth seized from the spot and the lathi were sent for examination to Forensic Science Laboratory, Agra. The investigation culminated in charge sheet against both the accused-appellants.

4. After committal of the case to the Court of Session, charge for the offence punishable u/s 302 IPC read with 34 IPC was framed against both the accused-appellants, who abjured their guilt and claimed trial.

5. In order to prove its case, the prosecution had examined complainant Saimullah PW-1, mother-in-law of complainant Mahamoodan PW-2, HC Subhash Chand PW-3, Dr. A. K. Chauhan PW-4 and SI Diwakar Pandey PW-5.

6. In his statement u/s 313 Cr.P.C. accused Kirand Pal has denied any dispute with the deceased as also the recovery of lathi by the police at his instance. Along with accused Premvir he has denied the entire prosecution story and the circumstances put to them. They have further stated that the deceased was a bad character woman and she might have been killed by some else. In defence they had examined Ram Babu DW-1.

7. We have heard the learned counsel for the appellants and the learned AGA for the State and perused the original record of the case carefully.

8. Learned counsel for the appellants has argued that -

that the FIR is ante-timed;

that there was no motive for the accused to eliminate the deceased;

that the presence of alleged eye witnesses at the spot is highly doubtful because PW-1 is resident of other village so there was no occasion for him to be present in the house of the deceased;

that the oral evidence given by prosecution witnesses is self contradictory and does not find corroboration from medical evidence; and

that the learned trial Court has erred in illegally discarding the defence evidence.

9. Per contra the learned AGA refuting the above argument has vehemently contended that the prosecution case is proved beyond all reasonable doubt through the testimony of eye witnesses, which is fully corroborated by medical evidence; that there was light at the scene of occurrence; that the motive has been mentioned in the prompt report of PW-1; that DW-1 has come forward to depose for the accused as he is close relative of accused Premvir and the learned trial Court has not at all erred in giving guilty verdict against both the accused-appellants.

10. The alleged incident took place at 11.30 P.M. on 15.2.2000 and its report was made within two hours on 16.2.2000 at 1.30 A. M. by complainant Saimulla PW-1. The distance between the incident village and the police station as per check report Ex. Ka-2 is 6-kilometers. PW-1 is resident of village Kaurara P.S. Faizganj Behta, District Budaun, but in the written report itself that he had mentioned that he had visited village Sarah Baraulia in the aqeeka of Nisar's son and he has come to attend the ceremony a day before the incident. He has specifically stated in the written report that the deceased was her niece. This relationship has also been confirmed by DW-1 in his examination-in-chief itself saying that Saimulla is Tau of the deceased. PW-2 has also stated in her deposition that PW-1 is her samadhi and she has further stated that in the night of incident he was sleeping in the house of the deceased. It has also come in evidence that husband of the deceased was in Delhi and her two minor children were sleeping with PW-2 in the room of flour mill situated opposite to the house of the deceased. PW-1 has stated that he had gone to police station to lodge the report with PW-2 and others. This fact is corroborated by PW-2, HC Subhash Chandra PW-3 and I.O. Diwakar Pandey PW-5 in their deposition before the trial Court. PW-3 has proved the copy of GD report regarding registration of case at the police station as Ex. Ka-3 and in cross-examination he has stated that at the time of registration of the case Smt. Mahmoodan, Chander Sen, Vinod Kumar, Kedar Singh and Chaukidar Bankey Lal had accompanied to the police station. PW-1 has stated in cross-examination that he had gone to lodge the report in a tractor. The GD report Ex. Ka-3 as also the statement of PW-5 given in cross-examination corroborate this statement of the complainant. It has come in evidence of PW-5 that the complainant and others have come to police station on tractor UP 24A/3795 along with its driver Munnawar and the complainant was sent back after giving him copy of report. According to this witness he had reached at the spot at about 2.30 P.M. The inquest on the cadaver of the deceased was conducted by PW-5 at about 7 A.M. on 16.2.2000 and crime no. and sections have been mentioned in the inquest report Ex.Ka-5 and other related papers Ex. Ka-6 to Ka-9. Thus, the external checks available on record do also indicate that the FIR of the crime had been lodged at P.S. Ugheti at 1.30 A.M. on 16.2.2000. The report is quite prompt and is not ante-timed at all.

11. The motive for the crime had been mentioned by the PW-1 in his written report Ex.Ka-2, wherein he has stated that at about 10 A.M. on 15.2.2000 a scuffle took place between the deceased and the accused on keeping cow-dung cakes over the land of Gram Samaj. In cross-examination he has fairly admitted that he had not seen this incident, but he was told about it by the deceased and others. He has further stated that he used to visit the village of the deceased for 14-15 years on account of relationship and that's why he knew the accused persons from before. PW-2 has also stated about the scuffle of the deceased with the accused persons. According to her the deceased told her about the morning incident, when she went to make cow-dung cakes. Although this minor incident may not be sufficient to eliminate the deceased, but it is trite law that when the prosecution relies upon the testimony of eye witnesses, the motive takes a back seat. Motive is primarily locked in the mind of the accused and sometimes it becomes difficult for the prosecution to adduce evidence about motive. It is noteworthy that the accused too could not give any plausible explanation about their false implication in the case. Since, in the instant case there is eye witness account of the incident, so the motive has no such important role to play as it could have in the case based on circumstantial evidence.

12. We have already seen that in the night of incident PW-1 who is relative of the deceased was present in her house, as he had come to attend a function in the house of Nisar. This witness had been cross-examined at length to disprove his presence in the house of the deceased at the time of incident, but he had successfully withstood the test of cross-examination and his testimony could not be shaken by the defence counsel on this issue. PW-2 is the mother-in-law of the deceased who was sleeping in the flour-mill (chakki) situated opposite to the house of deceased. Thus, there is no doubt about the presence of PW-1 of PW-2 on the spot at the time of occurrence.

13. The source of light, in which the witnesses have seen the incident and recognized the accused persons also finds place in the written report of PW-1 and site plan. The investigating officer has prepared the memo Ex. Ka-12 regarding the lamp found by him lighting at the spot, when he reached there during the night of the incident itself. The source of light as 'chirag' has been described by informant PW-1 in his written report Ex. Ka-2. Effort had been made to create contradiction with regard to source of light, whether it was 'chirag' or lamp, but in the facts and circumstances of the case, it is inconsequential. The consistent case of the prosecution is that there was light in the room where the deceased was sleeping and the incident took place. The PW-1 has given its name as chirag, while PW-2 described it as dibbi ki roshni and the investigating officer has noted it as a lamp in the memo Ex.Ka-12 and site-plan Ex. Ka-10. Different people have their own way of describing the things or objects. Thus, it is proved that there was sufficient light to see the incident and identify the assailants.

14. Both the witnesses of fact have stated in unison that when they reached at the room of the deceased on hearing her shrieks they saw that accused Premvir had caught hold the deceased and accused Kirandpal was inserting lathi (in and out) in her vagina and she was crying with pain. Both the witnesses have further stated that she succumbed to the injuries before they left for the police station. The spot position had also been proved by PW-1 and PW-2 through their testimony. They have fully corroborated the site-plan Ex. Ka-10 prepared and proved by investigating officer PW-5. In order to appreciate the evidence led by the prosecution about the real incident, it would be appropriate to take note of the spot position as found by the investigating officer soon after the registration of the case and noted by him in the inquest report Ex. Ka-5 and site-plan Ex. Ka-15. He has noted as under:

iapk;rukek

fujh{k.k yk'k&

yk'k dk fujh{k.k fd;k rks yk'k edku ds iwjc :[kh dejs esa ckgjh njokts ds lkeus fpr iM+h gSA flj mRrj iSj nf{k.k eqWg [kqyk gqvk vkW[ks v/k [kqyh cka;k gkFk igyw esa nkfguk gkFk nkfguh rjQ QSyk cka;k iSj lh/kk] nkfguk iSj ?kqVus ls dcjs eqM+k gqvk eqfð;ka v/k[kqyhA yk'k ds ikl gh iwjc esa vkars iM+h gS yk'k ds uhps dkQh [kwu iM+k gSA

gqfy;k yk'k&

xanqe jax piVh ukd vka[k dku dn vkSlr] mez djhc 28 lkyA

igukok&

'ko ij yky jax dk dqrkZ d pksaVs&

yk'k dh 'keZ o g;k dk /;ku j[krs gq;s e`rdk Jherh fulkjk dh lkl Jherh egewnu dh ekStwnxh esa yk'k dh pksaVks dk fujh{k.k fd;k x;k rks Bqìh esa xksyk fu'kku pksV [kwukywnk Bqìh ds nkfguh rjQ xksy fu'kku pksV [kwukywnk ftldh [kky gVh gqbZ gSA yk'k ds cxy esa iwjc dh rjQ vkars iM+h gS rFkk ;ksfu ls vkar ckgj fudyh gqbZ gSA xys esa lkeus dh rjQ [kjkasp yky fu'kku gS lhus ij ckabZ rjQ pksV xksy fu'kku] [kjk'k isM+w ij pksV xksy fu'kku [kjk'k gSA

uD'kk utjh& ladsr

LFkku ^,^ tgkW e`rdk Jherh fulkjk dk 'ko e; cxy esa iwjc rjQ iM+h vkarks ds ik;k x;k dkQh [kwu iM+k gS [kwukywn o lknh feV~Vh ;gkW ls dCtk iqfyl esa yh tk jgh gSA 'ko ds cxy if'pe esa pkjikbZ fcNh iM+h ftl ij e`rdk dk lksuk crk;k x;kA

LFkku ^ch^ tgkW rkd esa ySEi esa j[kk gS ftldh jks'kuh esa eqfYteku dk cjoDr odqvk ns[kuk igpkuuk crk;k x;kA

LFkku ^lh^ tgkW HkSal ca/kh gSA

LFkku ^Mh^ tgkW pkjikbZ fcNh gS ;gkW oknh dk lksuk rFkk ph[k 'kksj ij igWqp dj ?kVuk ns[kuk crk;k x;kA

LFkku ^bZ^ tgkW pDdh okys ?kj esa e`rdk fulkjk dh lkl egewnu dk lksuk o 'kksj ij tkdj ?kVuk ns[kuk o eqfYteku dks yydkjuk crk;k x;kA

fpUg ^,^ ls ^ch^ 3 dne] ^,^ ls ^Mh^ 14 dne] ^,^ ls ^bZ^ 16 dne] [kM+tk dh pkSM+k bZ djhc 8 dne gS e`rdk ds 'ko ik;s tkus okys dejs dh yEckbZ pkSM+kbZ djhc 5 x 12 dne gSA

The above position of the spot and the condition of the cadaver of the deceased had been fully corroborated by the witnesses of fact in their cross-examination apart from the testimony of investigating officer S.I. Diwakar Pandey PW-5. The corpse of the deceased clearly show how brutally the deceased was done to death, her intestines had come out from the vaginal orifice, as lathi was inserted there repeatedly and were lying in blood near the cadaver of the deceased. Both the witnesses of fact have been extensively cross-examined by the defence counsel about the real incident and injuries sustained by the deceased, but their testimony is intact and there is no contradiction therein. The statements of both the witnesses of fact are clear, cogent and reliable.

15. Dr. A. K. Chauhan PW-4 has proved the contents of his post-mortem notes Ex. Ka-4. He has described the ante-mortem injuries found on the person of the deceased as also the facts noted by him in internal examination of the deceased. He has concluded that the deceased could have suffered death at about 11.30 P.M. on 15.2.2000. To Court queries, Dr. Chauhan has stated as under:

^^Vw dksVZ& pksV ua0 1 rk 4 vR;Ur ekewyh FkhA eSaus tks vkUrfjd ijh{k.k esa ;ksfu ds vUnj nhokj QVh gqbZ ik;h x;h o ;wVjl o ew=k'k; QVk gqvk ik;k x;k o isV dh dSfoVh ds vanj isV] ftxj] frYyh] vkars o vkek'k; Hkh QVs gq;s ik;s x;s] ;g pksV ;fn e`rdk dh ;ksfu esa YkkBh ?kqlsM+h tk;s rks mlls vk ldrh gS vkSj ;gh e`R;q dk dkj.k FkhA^^

In order to elicit the truth, the vigilant learned Addl. Sessions Judge has very rightly asked these questions from Dr. Chauhan, which ought to have been put to him by the State counsel. Thus, we find that the medical evidence available on record fully corroborate the testimony of eye witnesses with regard to manner of assault on the deceased at the hands of both the accused-appellants.

16. Now as regards the testimony of DW-1 he has come forward to depose that the deceased was a woman of bad character. People used to visit her house for gambling and drinking liquor. Her husband had lost money in gambling and when the people visit them to demand their money, she used to turn them out. They had loan of other village people and the Bank. The deceased had forbade her husband to sell the land and on this score their relations were sore. He has stated that on the day of incident at about 7.30 A.M. Kirand Pal was going to Court to attend date. Implying that Kirand Pal was not present at the time of alleged scuffle in the morning between the accused and the deceased on the day of incident. It is important to note that accused Kirand Pal in his statement u/s 313 Cr.P.C. has simply stated that on the day of incident he had attended the Court of ADJ no. 7. The defence has not filed any other evidence to substantiate their plea regarding bad character of the deceased, so that we could have objectively verified this fact. If the family of deceased had indulged in any crime, then certainly some action must have been taken against them by the police or any other person of the village. This witness has admitted in cross-examination that his and grand father of accused Premvir were brothers. Thus, the testimony of DW-1 is of no help to the accused persons.

17. In view of what has been said and done above, we find that the prosecution has successfully proved its case against both the accused-appellants beyond all reasonable doubt and adequate sentence had been passed against each of them. The appeal sans merits, which is accordingly dismissed. Though we feel that such brutal killing ought to have been placed as rarest of the rare case, we, however, confirm the impugned judgment and order of the trial Court. Both the appellants are in jail and would serve out the remaining part of their sentence.

18. Sri Samit Gopal, Amicus Curiae would be paid Rs. 2,100/- by the State for the services rendered by him in the Court for arguing the appeal on behalf of unrepresented appellants, who are confined in jail. The amount be paid to him within a month.

19. Let certified copy of the judgment be sent to the Court concerned and the Chief Judicial Magistrate, Budaun for compliance, which should be reported within 4-weeks. The appellants be informed wherever they are confined about this judgment.

		     (Anil Kumar Sharma, J)               (Rakesh Tiwari, J)
 
6th December ,  2012
 
KCS