Suleman vs State Of U.P.
2012 Latest Caselaw 4846 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 53
 

 
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 1780 of 2003
 

 
Petitioner :- Suleman
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- Raj Kumar Khanna,A.K.Pandey,Braham Singh,P.K. Pandey,R.K. Pandey
 
Respondent Counsel :- A.G.A.
 

 
Hon'ble Arun Tandon,J.

Hon'ble Vijay Prakash Pathak,J.

This criminal appeal filed by the appellant Suleman is directed against the judgment and order of the Additional Sessions Judge (Fast Track Court No.4), District Moradabad dated 5.4.2003 passed in S.T. No.745 of 2002 (State vs. Suleman) arising out of Case Crime No.114 of 2001, under sections 302/504 I.P.C. The appellant Suleman has been convicted for an offence punishable under section 302 I.P.C. and has been sentenced to life imprisonment with fine of Rs.5000/-, in case of default, the appellant is to undergo additional imprisonment of one year.

The prosecution story as disclosed from the records is as follows:

On 29.8.2001 at 7.00 P.M. a first information report was lodged by Chhote elder brother of one Balkishan. In the first information report it was stated that Siya Ram P.W.2 cousin brother of the deceased has informed that Balkishan has been done to death by the appellant Suleman by inflicting 5 to 6 wounds by hasiya at around 5 P.M. on the same day. The first information report was registered as case crime no.114 of 2001 under sections 302/504 I.P.C. at P.S. Bhojpur, district Moradabad. The first information report further disclosed that in the morning on the same day Balkishan younger brother of Chhote took his animals for grazing near the bank of Dhela Nadi. By mistake the animals entered the agricultural filed of Suleman, causing annoyance to Suleman. Suleman tried to get hold of Balkishan but could not succeed. At around 5.00 P.M. Suleman could find Balkishan in the field of Mohd. Nabi and killed him by inflicting wounds through 'hasiya'. Such incident had been seen by his cousin brother Siyaram and one Mohd. Hussain of the same village. It was stated that cousin brother did make an attempt to save Balkishan, however, he could not succeed. Suleman left after assault. The deadbody of Balkishan was still lying on the spot.

The investigating officer made spot inspection and recorded the statement of the informant under section 161 Cr.P.C. The inquest was prepared on the same day. The deadbody was sent by S.I. Umesh Kumar Singh for postmortem examination.

Dr. Megh Singh (P.W.3) the Medical Officer performed autopsy and submitted his postmortem report. The ante-mortem injuries on the body of the deceased as recorded in the postmortem report were as as follows:

"1. Multiple stab wound, chest cavity deep over an area of 8 c.m. x 8 c.m. over front of left chest wall, 5 c.m. below left nipple and 8 c.m. above the umbilicus.

2. Multiple stab wound in an area of 20 c.m x 15 c.m. chest and abdominal deep, 8 c.m. below right axilla and 6 c.m. above the right iliac crest.

3. Stab wound 7 c.m. x 3 c.m. abdominal cavity deep over left site of back front of abdomen, 2 c.m. above the left iliac crest and 20 c.m. below the right axilla. Intestine is coming out.

4. Stab wound 4 c.m. x 2 c.m., abdominal cavity deep over the left site of abdomen 10 c.m. lateral to umbilicus and 3 c.m. medial to injury no.3.

5. Stab wound 2 c.m. x 2 c.m. muscle deep over lateral aspect of middle of left thigh.

6. Inside wound 3 x 1 c.m. muscle deep over front of right knee."

The weapon used for assault was recovered on the pointing out of the accused from the field. In respect thereof a seizure memo was prepared by S.I. Umesh Kumar Singh. The Investigating Officer prepared the site plan and also collected blood stained earth, which was sent for chemical examination.

After completion of investigation, charge sheet was submitted since the matter was cognizable by Sessions Court it was committed accordingly. Charge was framed under the order dated 7.2.2002 under section 302 I.P.C. against the accused.

The accused Suleman denied the charge and claimed trial.

The informant Chhote was examined as P.W.1. He proved written information report and pointed out that Siyaram his cousin brother had informed on 29.8.2001 that Balkishan had been done to death by accused Suleman by inflicting 5 to 6 wounds by hasiya. The deadbody of Balkishan was lying in the field of Mohd. Nabi.

The eye witness Siyaram was examined as P.W.2. In his testimony he stated that he had gone for grazing of his animals in the jungle. He was informed that the animals of Balkishan had entered the fields of Suleman in the morning which annoyed him. At around 5.00 P.M. in the evening Suleman caught hold of Balkishan and inflicted 5 to 6 wounds by his hasiya which resulted in death of Balkishan. He had made an attempt to save Balkishan but could not succeed. On noticing that Balkishan had expired, he went home. He narrated the entire incident to Chhote, the brother of Balkishan. He also stated that one Mohd. Hussain had also witnessed the entire incident. At the relevant time some children were present.

Doctor Megh Singh, who performed the postmortem was examined as P.W.3. He proved the postmortem report and opined that the cause of death of Balkishan was due to bleeding and shock as a result of wounds inflicted upon Balkishan by a sharp edged weapon.

The Head Constable Bhagwan Singh, who had recorded chik F.I.R. was produced as P.W.4. He proved the same.

The Investigating Officer S.I. Umesh Kuamr Singh was examined as P.W.5. He proved the preparation of the site plan, the seizure memo of the recovery of the weapon i.e. hasiya used in the crime on the pointing out of the accused and the chargesheet.

The statement of the accused was recorded under section 313 Cr.P.C. He denied the charge and stated that he has been falsely implicated due to enmity and the statement made by the eye witnesses was incorrect. However, he did not lead any documentary or oral evidence in support of his case.

The trial court after considering the material evidence brought on record came to a conclusion that the prosecution had succeeded in bringing home the charge beyond reasonable doubt against the accused Suleman. Accordingly he was convicted of an offence under section 302 I.P.C. and has been punished as aforesaid.

Challenging the order so passed, learned counsel for the appellant contended that informant Chhote P.W.1 is not an eye witness and his testimony is based on the information given by P.W. 2 Siyaram. The presence of P.W.2 Siyaram at the site is doubtful inasmuch as in his examination-in-chief he stated that he had made an attempt to save the deceased but in cross-examination it was stated that he did not make any attempt to save the deceased. The learned counsel submits that in examination-in-chief P.W. 1 had stated that information of the incident was given to him by Siyaram P.W.2, who in his cross-examination as P.W. 2 stated that after seeing the incident he went home. It is then submitted that in his cross-examination P.W.2 had stated that he did not meet the investigating officer, therefore, the question of his statement being recorded by the investigating officer does not arise. It is lastly contended that since no attempt was made by Siyaram to save his cousin brother Balkishan his conduct was unnatural, therefore his presence at the time of incident becomes doubtful. It is also submitted that the alleged weapon 'hasiya' by which injuries are said to be caused had been sent for chemical examination alongwith earth collected from the spot but no examination report of the hasiya was brought on record. Recovery of the weapon, hasiya is alleged to have been made on the pointing out of the accused-appellant but no witness as mentioned in the recovery memo was examined. The accused was not asked any question under section 313 Cr.P.C. in respect of the 'hasiya' and, therefore, there has been violation of Section 313(1)(b) Cr.P.C. The entire prosecution story must fail.

Reliance has been placed upon the judgment of the Supreme Court in the case of Latu Mahto vs. State of Bihar reported in 2008 (Scale) V.8, page 715, for the proposition that once the investigating officer had recorded the statement of other witnesses, who were present on the spot of the incident, namely, Mohd. Hussain he should have produced the said witness in support of the prosecution failing which the case of the prosecution must fail.

Learned A.G.A. Sri Mahendra Singh Yadav pointed out that the F.I.R. was lodged within 2 hours of the incident. The distance of the police station from the place of the incident was 5 kilometer. The accused had been named in the F.I.R. The weapon used for inflicting injuries had been recovered on the pointing of the accused. The occular evidence was fully supported by the Medical evidence. The judgment of the trial court in the facts and circumstances of the case, needs no interference in exercise of appellate jurisdiction by this Court.

We have considered the arguments of learned counsel for the parties and examined the records.

At the very outset we may record that the incident is stated to have taken place at 5.00 P.M. The F.I.R. was lodged within 2 hours of the alleged incident. Therefore, the F.I.R. was prompt, which rules out the possibility of deliberations and wrongful implication of the accused.

We find that P.W. 1 in his cross-examination had stated that the deceased was his cousin brother. He proved what was recorded in the F.I.R. Siyaram was the eye witness, he was examined as P.W.2. In his testimony he had narrated the entire incident which he had seen. His testimony was corroborated by the medical evidence. It was disclosed by P.W.2 that in the morning the animals of Balkishan had entered the fields of Suleman, which annoyed him. Suleman was on the look out for Balkishan. At 5.00 P.M. near the field of Mohd. Nabi, Suleman could find Balkishan and attacked him with his hasiya. He inflicted 5 to 6 wounds. The statement of eye witness of the incident has been corroborated with postmortem report which shows that six injuries had been inflicted on the body of the deceased with a sharp edged weapon and that death was caused due to excess bleeding and shock because of the injuries. The postmortem report has been proved by Dr. Megh Singh, who had examined the injuries. We further find that recovery of hasiya from the field of Mohd. Nabi was made on the pointing out of the accused himself.

We find that F.I.R. was prompt the evidence of the eye witness has been corroborated by the Medical evidence. The prosecution has been able to prove its case beyond reasonable doubt. Reference be had to the judgment of the Apex Court in the case of Atma Ram and others vs. State of M.P. 2012(5) SCC 738.

The discrepancies in the statement of P.W.2 in the matter of his having made an attempt to save the victim is a minor discrepancy, which cannot be said to be fatal to the prosecution case.

Supreme Court in the case of Sampath Kumar Vs. Inspector of Police, Krishnagiri 2012 (IV) SCC 124 has held that minor contradictions are bound to appear in the statement of truthful witnesses as memory sometimes plays false, sense of observation differs from person to person.

So far as the discrepancy pointed out qua the P.W.2 having gone to his house from the site of incident is contrary to what was mentioned in the F.I.R. i.e. P.W.2 the cousin of deceased had informed about the incident and as was stated by P.W.1, in our opinion in fact no contradiction at all. Inasmuch as it is admitted that the informant P.W.1 and eye witness P.W.2 are cousin brothers and the accused has not pleaded that they were living separately. The trial court has rightly held that P.W.2 went to his house to inform the incident to P.W.1.

We are also unable to accept the contention of learned counsel for the appellant that since Siyaram did not make any attempt to save his cousin brother Balkishan; Such conduct is unnatural and therefore presence of Siyaram at the time of incident becomes doubtful.

The 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 an 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 such reaction is irrelevant.

Plea of non examination of the witness of recovery memo of the weapon is also of not much consequence as the investigating officer had proved the seizure memo and the recovery of the hasiya on the pointing out by the accused. The testimony of the investigating officer in respect of the recovery and the seizure memo prepared could not be dislodged. The last plea raised about question being not put to the accused about hasiya under section 313 Cr.P.C. is on the face of it incorrect. The first question put to the appellant under section 313 Cr.P.C. especifically refers to the use of hasiya as the weapon to assault the deceased.

We find no good reason to interfere with the findings of guilty recorded by the Trial Court on the basis of material evidence on record.

The appeal is, therefore, dismissed. The judgment and order of the Trail Court is affirmed. The appellant is already in jail, he shall serve out the sentence also as ordered by trial court.

Order Date :- 8.10.2012

RU