Budhraj & Another vs State Of U.P.
2012 Latest Caselaw 5063 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
Court No. - 33
 

 
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 3320 of 2007
 

 
1. Budhraj s/o Marna @ Ram Sewak
 
2. Sushil Kumar s/o Budhraj                                   ...............Appellants
 
                                                   versus
 
State of U.P.                                                               .......... Respondent
 
Counsel for appellant no. 1:  	Hari Om Khare,
 
Counsel for appellant no. 2:	Sri D.P.S. Chauhan, Amicus Curiae
 
Counsel for respondent: 		Syed Ali Murtaza, AGA
 
                                                   And 
 
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 1836 of 2009
 
Dhoon @ Shiv Prakash                                           ................Appellant
 
                                      versus 
 
State of U.P.                                                             ............Respondent
 

 
Counsel for the appellant:	Sri Nayab Ahmad, Amicus Curiae
 
Counsel for the respondent:	Syed Ali Murtaza, AGA
 
Hon'ble Rakesh Tiwari, J.

Hon'ble Anil Kumar Sharma, J.

(By Justice Anil Kumar Sharma)

These appeals arise out of judgment and order dated 26.04.2007 passed by Additional Sessions Judge, Court No.3, Fatehpur in S.T. No. 46 of 1999 (crime no. 226 of 97, P.S. Ghazipur, District Fatehpur), whereby each appellant had been convicted for the offence punishable under section 302/34 IPC and have been sentenced to imprisonment for life. A fine of Rs. 3,000/- had also been imposed upon the accused, with default stipulation.

2. Succinctly stated the prosecution case is that on 11.08.1997 at about 7.20 P.M. Hira Lal Yadav s/o Babu Lal, resident of village Bahadurpur submitted a report at P.S. Ghazipur wherein he stated that on 11.08.1997 in afternoon his father Babu Lal was grazing cattle in the field while uncle Ram Sajivan was ploughing the field which was taken on Batai, at about 3.30 P.M. co-villagers Budhraj and his sons Sushil and Dhoon @ Shiv Prakash along with Krishan Kant Dubey, resident of Belgaon, District Banda armed with lathis came there and hurled abuses to his father and uncle saying that today they would teach them lesson for grazing animals in their field. All the three accused persons started assaulting Babu Lal and Ram Sajivan. Hearing noise the complainant along with his son Hira Lal and Daddu s/o Parson, resident of Muvaiyan who were cutting grass in the nearby field arrived there and challenged the accused, whereupon they made their escape good towards eastern side. The complainant further stated that after arranging bullock-cart while they were carrying both the injured, near Khansen Pur father of the complainant scummbed to the injuries. The complainant reached at the police station along with dead body of his father and injured Ram Sajivan submitted report at 7.20 P.M. on 11.08.1997. On the basis of written report, case was registered at the police station Ghazipur at crime no. 226/97, under sections 304, 308 IPC, investigation whereof was entrusted to S.I. Ram Gopal Mishra. It has been stated that while Ram Sajivan was being taken for medical examination along with Chitthi Majrubi he also died on account of fatal injuries sustained by him in the incident. The inquest upon the corpses of both the deceased were prepared at 7.20 P.M. and 9 P.M. by S.I. Ram Gopal Mishra. He sent the dead bodies for autopsy in sealed condition along with related papers. Dr. R. K. Khanna conducted post mortem examination of the cadaver of both the deceased on 12.08.1997 from 3.00 P.M. onwards. His post-mortem notes in brief are as under:

Babu Lal aged about 65 years - 3.00 P.M.

Doctor found that deceased was average built. Rigor mortis passed off from the upper limbs but was present in inferior extremity. He found the following ante mortem injuries on the person of the deceased.

(i) Lacerated wound 5 cm x 1.5 cm x bone deep on left fore arm lower end, 6 cm above left wrist. Underlying bone fracture.

(ii) Lacerated wound 2.5 cm x 1 cm x bone deep on middle of right forearm with open fracture of ulna bone.

(iii) Abrasion contusion in front of lower chest area 9 cm x 3.5 cm on right side.

(iv) Lacerated wound 1.5 cm x 1 cm x muscle deep in front of right leg in the middle.

(v) Abrasion 1 cm x 0.5 cm in front of left leg in the middle.

Dr. Khanna has noted that the deceased suffered death about a day before due to hemorrhage and shock on account of ante mortem injuries.

Ram Sajivan aged about 45 years - 3.30 P.M.

The doctor found that rigor mortis was present in inferior extremity but passed off from superior extremity. He found following ante mortem injuries on the person of the deceased.

(i) Lacerated wound 2 cm x 0.5 cm x muscle deep on right fore arm lower end, above wrist.

(ii) Abrasion left arm 3 cm x 1 cm.

(iii) Lacerated wound 9 cm x 6 cm on front of right leg muscle deep.

(iv) Lacerated wound 5 cm x 1.5 cm in front of left leg below the knee.

(v) Scalp injury (lacerated wound) on right side scalp 5 cm x 2.5 cm x bone deep 7 cm above right ear.

In the opinion of the doctor the deceased has died about one day before due to coma on account of ante mortem head injury.

3. The Investigating Officer had earlier recorded the statement of the complainant at the police station. He visited the spot and prepared site plan at the instance of the complainant. In the meantime, the investigation of the case was entrusted to C.B.C.I.D. on the application of wife of named accused Krishan Kant Dubey which was entrusted to Inspector J.M. Singh, PW-5 who after completing the investigation submitted charge sheet against the accused appellants.

4. After committal of the case to the Court of Session framed charge for the offence punishable under section 302 read with section 34 IPC against the appellants, who pleaded not guilty and claimed trial.

5. In order to prove its case the prosecution has examined complainant Hira Lal PW-1, eye witness Daddu PW-2, Dr. M.C. Vishwkarma PW-3, Head Moharrir Ram Babu Mishra PW-4, Inspector J.M. Singh PW-5, S.I. Ram Gopal Mishra PW-6 and Dr. R.J. Khanna PW-7.

6. All three accused in their separate statements under section 313 Cr.P.C. have again denied the entire prosecution story stating that deceased were done to death somewhere else in different circumstances but on account of animosity they have been falsely inducted in the case. However, the accused appellants have not adduced any evidence in defence.

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

8. Learned counsel for the appellant has argued the following points before us:

(i) That FIR is ante timed;

(ii) That there was no motive for the accused to have killed the deceased;

(iii) That presence of alleged eye witness is doubtful and they are interested witnesses and independent witnesses have not been examined;

(iv) That there is material contradictions and inconsistencies in the statement of prosecution witnesses.

9. Per contra, learned AGA has contended that FIR was promptly lodged with the police; that prosecution has not withheld any material witness and fact witnesses examined in the case are eye witnesses and their testimony cannot be rejected on account of their relationship with the deceased; that eye witnesses have given ocular on account of the incident and minor contradictions or discrepancies did not affect the prosecution case at all and their testimony is fully corroborated by medical evidence adduced in the case.

10. Before we proceed to deal with the arguments advanced by the learned counsel for the appellants, it would be useful to note the basic features of the case. Both the deceased are real brothers. Complainant is son of one of the deceased Babu Lal. Another eye witness examined in the case is Daddu PW 2, is maternal uncle of PW 1. Although he is resident of nearby village Mavaiyan, which is situated at a distance of 3 kos from the village of complainant. On the day of incident both the deceased were working in the fields situated in the southern side of village. Ram Sajivan was ploughing the field, which he had taken on batai and Babu Lal was grazing animals in the nearby field. PW 1, PW 2 and Hari Lal (not examined) son of complainant were cutting grass in the field situated at a distance of 200 yards in northern side of field of Ram Sajivan. All the accused-appellants along with one Krishna Kant Dubey armed with lathis came there at about 3.30 p.m. and accosted them for grazing animals in their field and teaching lesson started assaulted both of them with lathis. Hearing hue and cry the witnesses rushed towards the place of occurrence and witnessed the incident. Both the deceased were badly injured. A bullock-cart was arranged from village Bahadurpur which was 2 Kms. away from the spot. While injured were being taken to police station, Babu Lal succumbed to injuries near village Khansen Pur. The complainant got the written report prepared and along with the dead body of his father and injured Ram Sajivan reached police station Ghazipur. A case u/s 304 and 308 IPC was registered at 7.20 p. m. the same evening and injured was sent for medical examination along with constable Udai Bhan Singh. Dr. M.C. Vishwakarma PW 3 examined Ram Sajivan who was in precarious condition and referred him for District Hospital, Fatehpur, but he too died outside the hospital. The inquest of Babu Lal was conducted at 7.20 p.m. on 11.8.1997 and that of Ram Sajivan at 9.00 p.m. the same night.

FIRST INFORMATION REPORT

11. A bare perusal of the contents of written report shows that after the incident the complainant while taking both the injured in bullock-cart to police station, near Khansenpur his father Babu Lal expired. He then got the written report prepared, went to the police station along with dead body of his father and injured Ram Sajivan. The police prepared chiththi majroobi and through constable Udai Singh the injured was sent to hospital, but the doctor considering his serious condition referred him for District Hospital, Fatehpur but soon thereafter he also succumbed to the injuries. The inquest proceedings proceedings were held within two hours of registration of the case. In the cross-examination of PW 1 and PW 2, the counsel for the defence had asked questions as if both the deceased have died at the spot and the witnesses have been trapped in jugglery of words. However, at one place PW 1 has stated that Babu Lal died near village Khansen Pur. However, the testimony of Dr. M. C. Vishwakarma PW 3 and H.M. Ram Babu Misra PW 4 who had registered the case and sent injured Ram Sajivan through constable Udai Bhan Singh support the contention of the complainant in this regard and no benefit can be given to the defence. Learned trial court has appreciated the evidence of witnesses in correct perspective. In the inquest of Ram Sajivan, the sub-inspector has given the name of constable Udai Bhan Singh as the person who had informed the police station about the death of deceased. The learned trial court has dealt with this point elaborately and concluded that on this ground the FIR is not ante-timed. The external checks available on record suggest that the FIR came into existence before the inquest proceedings. In the facts and circumstances of the case it cannot be said the FIR is in any manner ante-timed.

MOTIVE

12. The next contention of the learned counsel for the appellants that the alleged motive is too weak to commit murders of two persons in day light by the accused-appellants. The evidence on record shows that the accused were enraged with the deceased for having grazed the cattles in their fields. Learned AGA refuting the arguments of counsel for the appellants has argued that the instant case is based on direct evidence of eye witnesses, so motive loses its important.

13. Motive is not a sine qua non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence the element of motive does not play such an important role as to cast any doubt on the credibility of the prosecution witnesses even if there be any doubts raised in this regard. If the eye-witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused. Nowadays murders are being committed on very trivial matters. So far as the motive and its sufficiency for a crime of this diabolical nature such as the instant case, is concerned, the Apex Court in the case of Ranganayaki v. State (2004) 12 SCC (Crl.) has held as under:

"The motive for doing a criminal act is generally a difficult area for the prosecution. One cannot normally see into the mind of another. The motive is the mind which impels a man to do a particular act. Such impulsion is .....need not necessarily be proportionally grave to do grave crimes. Many murder has been committed without any known or prominent motive. It is quite possible that the aforesaid imputing factor would remain undiscovered"

In this connection, following observations of the Hon'ble Supreme Court given in the case of Thaman Kumar v. State of Union Territory of Chandigarh 2003 (47) ACC 7 (SC) are also relevant:

"There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence a find of guilt can safely be recorded even if the motive for the commission of the crime has not been proved."

Thus, in view of the above legal position, the prosecution would not fail on account of weak motive. However, whatever motive has been alleged that stands proved through the testimony of PW 1 and PW 2. The accused-appellants have also stated in their statements u/s 313 CrPC that they have been falsely implicated by the complainant on account of enmity and village faction. At the end of his cross-examination PW 1 has stated that & esjh o eqyfteku dh ?kVuk ds igys ls [kfygku dh ckcr jaft'k pyh vk jgh FkhA ;g dguk xyr gS fd blh jaft'k ds dkj.k eSaus eqyfteku dks >wBk uke tM fn;k gksA No suggestion had been given to this witness on behalf of the evidence that there was no such enmity between the parties, rather he has been suggested that on account of this fact the accused persons have been indicted in the case. It is trite law that enmity is a double edged weapon. On one hand it works as a catalyst to commit a crime while on the other it prompts a person to falsely rope in his enemies. Thus, the prosecution story cannot be doubted on the ground that alleged motive is weak to eliminate the two persons.

NON-EXAMINATION OF INDEPENDENT WITNESSES AND EXAMINATION OF RELATED, INTERESTED AND PARTISAN WITNESSES

14. Learned counsel for the appellants have vehemently argued that no reliance should be placed on the testimony of PW 1, firstly their presence at the time of incident could not be proved and secondly they are related and interested witnesses. Contra learned AGA has contended that it has not come in evidences of PW 1 and PW 2 that any other independent witness was present at the spot and had witnessed the incident. The other witness is of son of complainant Hira Lal, who too belongs to the family of the deceased. He further submitted that relative witnesses would be the last person to leave the real culprit and falsely rope in an innocent person. Neither it has been mentioned in the written report nor it could be elicited from the testimony of witnesses of fact that any other person had also witnessed the incident. The distance of village Bahadurpur from the place of occurrence in about two kilometers. In this connection a latest case decided by the Apex Court would be useful. In the case of Mahesh Vs. State of M.P. 2012 Cri LJ 2710. In para-17 of the report, following observations have been made:

"17. The prosecution has examined at least three eye-witnesses to the occurrence of the incident who have stated as to how the incident had happened. They have also stated the different and various roles played by the accused persons. Since eye-witnesses were available and examined, there was no necessity of examining any other witness, inasmuch as, there is no necessity for the prosecution to multiply witnesses to prove and establish the prosecution case. There is no requirement in the law of evidence that any particular number of witnesses is to be examined to prove something. The evidence has to be weighed and not to be counted. The witnesses who were examined were relatives of the deceased and, therefore, there is no ground and reason why they should be disbelieved. There is also no reason why they would not speak the truth so as to see that the actual guilty persons are convicted."

As already noted earlier the incident had taken place in the jungle of village Bahadurpur and there is nothing on record to suggest that any other person than the PW 1 and PW 2 had also reached the spot during incident. If for the sake of arguments it is assumed that some other person had also reached at the scene of crime, even then it cannot be assumed that they would take courage to depose for the complainant. Nobody would like to depose against the other without any connection and make enemy for himself. No doubt PW 2 is the real maternal uncle of PW 1, but it has come in evidence that at the time of incident he was residing in village Bahadurpur due to his old age and he developed cataract in his eyes, as there is none to look him after at home village. He has been cross-examined at length, but nothing adverse could be found in his testimony. Learned trial Court has also observed that PW 2 is not a chance witness rather he was residing with his brother-in-law for quite some time. The trial Court has observed:

" blfy, vfHk;qDrx.k dks lk{kh ds pwd dk Qk;nk ugha feysxkA lk{kh us vius l'kiFk c;kuksa esa ?kVuk okys xzke esa ?kVuk ds le; ekStwn jgus dk Ik;kZIr ,oa fo'oluh; dkj.k fn;k gSA ,slh fLFkfr esa og drbZ pkUl foVusl dh Js.kh esa ugha vkrk gSA D;ksafd og ?kVuk ds dkQh fnuksa ifgys ls og xkWo esa jg jgk FkkA pwafd lk{kh e`rd dk lxk lkyk gS] blfy, e`rx.k ds lkFk pkjk dkVus ds fy, [ksr ij tkuk Hkh LokHkkfod gSA mldh mifLFkfr iw.kZr% LokHkkfod gSA"

This is not the law that testimony of related witness should be rejected only on account of his relation with the deceased or the injured. However, their testimony is to be scrutinized with care and caution. Thus, the prosecution story cannot be doubted simply related witnesses have been examined and independent witness had been withheld.

CONTRADICTIONS AND DISCREPANICES

15. Learned counsel for the appellants has next contended that there are material contradictions/inconsistencies and discrepancies in the statements of PW 1 and PW 2, so they are not reliable witnesses. On the other hand, learned AGA refuting the argument has submitted that the name of PW 2 finds place in the written report and his testimony does not suffer from any infirmity barring few normal contradictions, which have no bearing on the merits of the case. We have thoroughly examined the statements of both the witnesses of fact and it appears to us that valiant effort was made by the counsel for the defence to confuse the witnesses at every stage of cross-examination. It is clear from the prosecution story that none of the deceased suffered death at the spot, but in cross-examination the questions have been put in the manner as if the dead bodies of both the deceased were lying on the spot. At one place PW 1 has contradicted the counsel by saying that Babu Lal died near village Khansen Pur. The learned trial Court has also addressed itself on the jugglery of words employed by defence counsel during cross-examination of both the witnesses. It would be apt to quote the observations of the trial Judge, who had seen the demeanor of the witnesses and was thus in better position than us sitting in appellate jurisdiction. It has been observed:

" lk{; esa ;g Hkh vk;k gS fd vfHk;qDrx.k dh ekjihV ls ckcwyky o jkelthou xEHkhj :i ls ?kk;y gks x;s Fks vkSj fxj x;s Fks vkSj ;g pksVfgyksa dks ?kk;y gkyr esa fxjs gksus ls fo}ku vf/koDrk dh ftjg dyk ls lk{kh us yk'k 'kCn dk iz;ksx dj fn;k gksA D;ksafd fpd izFke lwpuk fjiksVZ ys[kd us th-Mh- esa Loa; vafdr fd;k gS fd pksVfgy jkelthou dks ?kk;y gkyr esa bykt ds fy, ih-,p-lh- xkthiwj et:ch fPkB~Bh nsdj jokuk fd;k rFkk fpfdRld us et:c dh gkyr xEHkhj gksus ds dkj.k mls ftyk fpfdRlky; ds fy, fjQj fd;kA fpfdRld o gsM eqgfjZj dj mDr lk{; ds vk/kkj ij ;g ekus tkus dk vk/kkj ugha gS fd jkelthou ekSds ij ej x;k gksA pwafd lk{kh ,d vui< nsgkrh o`) O;fDr gSA vWxwBk yxkrk gS] gks ldrk gS fd fo}ku vf/koDrk }kjk j[ks x;s 'kCntky dks og le> u ik;k gksA"

We do not find any cogent reason to disagree with the above findings of the trial Court.

16. Learned counsel for the appellants had lastly argued that considering the entire facts and circumstances as also motive for the crime, the case against the accused persons does not travel beyond purview of section 304 Part-II IPC and they are in jail for a considerable long period, so their conviction may be altered to section 304 Part II IPC and be imprisoned to period undergone by each of them in prison. Countering this argument learned AGA had contended that the accused persons have assaulted both the deceased with lathis with knowledge and intention that by their act the deceased are likely to suffer death. He further stated that the accused persons have assaulted both the deceased on their hands and feet so as to restrict their movement and they may not be able to put up any resistance. It is not a case of single lathi blow on each deceased. We have seriously considered this aspect of the case and find that the argument of learned counsel for the appellants has no legs to stand. Dr. R.J. Khanna PW 7 has stated in unequivocal terms that injury no. 5 (head injury) of deceased Ram Sajivan was suffient to cause his death and injury no. 3 (injury on chest fracturing ribs of the deceased) of deceased Babu Lal was fatal and they could have suffered injuries on 11.9.1997 from blows of lathi at 3.30 p.m. It is not the law that wherever a deceased dies in an incident due to lathi injuries, the act of the accused would be punishable u/s 304 IPC. The deceased were working the fields when the accused armed with lathis arrived at the scene of occurrence and accosting the deceased they started assaulting them with lathis. The deceased did not provoke the accused persons at all. Both the deceased have suffered apart from other, injuries on vital part of their body. The provisions of Part II of 304 IPC would be attracted when it is proved that even if the accused did not have intention to cause such bodily injury as was likely to cause death but had the knowledge that the injury was likely to cause death. Neither the act of the accused was in a heat of passion without any premeditation or in sudden fight nor the deceased prior to the incident were grazing their cattle or cutting grass in the agricultural fields of the accused persons. They had the animus on the issue of grazing animals by the deceased in their fields prior to the incident. In this connection we may usefully refer to the case of State of Andhra Pradesh vs Rayavarapu Punnayya & another 1977 SCR (1) 601, wherein the trial Court convicted and sentenced the accused u/s 302 IPC, but the High Court converted the offence into section 304 IPC, however, the Apex Court on State appeal restored the judgment and order of the Sessions Judge. The Hon'ble Court illuminatingly highlighted the distinction between section 299 and 300 IPC. The facts of the instant case are much better than the case before Apex Court to conclude that the offence committing by the accused appellants squarely falls within the purview of section 302 read with section 34 IPC. Thus, we conclude that the learned trial Court has not erred in convicting and sentencing the accused-appellants for the offence punishable u/s 302/34 IPC.

17 In view of the foregoing reasons, we are of the opinion that the prosecution has successfully proved its case beyond reasonable doubt and the accused-appellants were rightly held guilty for committing two murders in broad-day light in further of their common intention. The appeals have no force and are accordingly dismissed.

18. Both the Amicus Curiae appointed by this Court would get Rs. 2,100/ each, which shall be paid to them in a month.

19. Let certified copy of the judgment be sent to the Court concerned for compliance, which shall be communicated to this Court within two months positively.

...........................Rakesh Tiwari, J

..................Anil Kumar Sharma, J

Order Date :-

October 12 , 2012

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