Raja Bhaiya & Others vs State Of U.P.
2012 Latest Caselaw 5301 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                      Reserved 
 

 
                  CRIMINAL APPEAL No. 1539 of 2004
 
                        ( under Section 374(2) Cr.P.C.)
 

 
1. Raja Bhaiya
 
2. Kalloo
 
3. Pradeep
 
         all sons of Sri Ram Saran Kachhi
 
4. Ram Saran son of Sri Ram Dayal Kachhi,
 
    All residents of village Garha, P.S. Madhogarh, District Jalaun at Orai.
 
                                                                                ...Appellants
 
                                    versus
 
State of U.P.                                                           ...Respondent

Counsel for the appellants: Sri Girish Vishwakarma,

Amicus Curiae

Counsel for the respondent: Sri R.A. Mishra, AGA

HON. RAKESH TIWARI, J

HON. ANIL KUMAR SHARMA, J

( Delivered by Hon'ble Rakesh Tiwari, J.)

Heard Sri Girish Vishwakarma, learned counsel for the appellant, Sri R.A. Mishra, learned AGA for the State and perused the record.

The appellants challenge the validity and correctness of the impugned judgment and order dated 12.3.2004 passed by the Additional Sessions Judge/ Special Judge (E.C.Act), Jalaun at Orai in S.T. No. 9 of 2003, State versus Raja Bhaiya and three others under Section 302 IPC and in S.T. No. 10 of 2003, State versus Raja Bhaiya under Section 25 Arms Act convicting and sentencing appellant Raja Bhaiya under Section 302 IPC to undergo life imprisonment, appellants Pradeep and Kalloo under Sections 302 and 302/34 IPC to undergo life imprisonment and appellant Ram Saran under Section 302/34 IPC to undergo life imprisonment and further sentencing the appellant Raja Bhaiya under Section 25 Arms Act to undergo imprisonment for a period of one year. All the sentences were ordered to run concurrently.

Case of the prosecution before the trial Court was that the first informant Hulasi son of Sri Khachera Kushwaha resident of village Garha, Police Station Madhogarh, District Jalaun at Orai on 22.11.2002 was coming back at about 8.30 P.M. after relieving himself in the field from nature's call when he met Arman son of Sri Keshar Singh and Lalloo son of Sri Gopi Kachhi near the agricultural field of Ram Lakhan. As they moved towards the village, he saw his son Manphoole running towards bamboos clump in the field of Har Bhajan going near the 'Nala' shouting for help. He was being chased by accused Raja Bhaiya and Pradeep sons of Ram Saran Kachhi. On recognizing the voice of his son calling for help, the complainant along with Arman and Lalloo went towards him. When they reached near the bamboo cluster and pipal trees in the agricultural field of Mangli, they saw that Pradeep had pinned down his son and Raja Bhaiya fired two shots upon Manphoole one after another with a country made pistol (Tamancha). The complainant as well as the other two with him were instilled with fear and hid themselves behind the bamboos cluster and Pipal tree. They also saw Ram Saran son of Ram Dayal and Kalloo son of Ram Saran near a clump of bamboos holding a woman. Ram Saran gave a call to Pradeep and Raja Bhaiya to come soon and not to leave the woman alive as she had caused their insult in the village. On his call Raja Bhaiya and Pradeep went there. They along with Kalloo gave blows by lathis to her due to which she succumbed on the ground. Thereafter, on saying of Ram Saran to verify whether Manphoole was dead or not Kalloo and Pradeep went and verified that Manphoole was almost dead. Then all the four threw the body of Manphoole towards the 'Nala' on the bushes of 'Beshram' .

After the accused had left, the complainant and the two witnesses along with him gathered courage. They went towards the place of occurrence and found Smt. Anita wife of Raja Bhaiya lying dead. After the villagers came on hearing their call body of Manphoole was also recovered from the bushes, who had succumbed to the fire-arm injuries. According to the complainant, they had recognized the assailants in the light of torches as well as in the moon light. The complainant thereafter leaving the dead bodies in the custody of the villagers submitted a written report at Police Station Madhogarh. FIR was lodged on 23.11.2002 at 00.15 hours and case crime no. 177 of 2002, under Section 302 IPC was registered on the basis of check report.

The investigation was handed over to S.I. Sri Bhagwan Singh who went on the spot and prepared inquest reports of deceased Manphoole and Smt. Anita and sent their bodies for post mortem under custody of constables Daya Shankar and Nripat Singh. The post mortem on the cadavers of the aforesaid two deceased was conducted by Dr. Sugriva Babu. These post mortem reports are on record as Ex.Ka-21 and Ex.Ka-23, respectively.

The post mortem report of deceased Manphoole shows that both his lungs were lacerated, both chambers of heart as well as the stomach were found empty. Semi digested food with gases and faecal matter with gases were found in small and large intestines and gall bladder was full. The doctor also found that the deceased was about 27 years old and his death had occurred about a day earlier. He was average built body. Rigor mortis was present on both upper and lower limbs. In the opinion of the Doctor the cause of death was due to shock and haemorrhage as a result of ante mortem fire-arm injury.

Following injuries were found on his cadaver.

1.Fire-arm wound of entrance size 5.0 cm. x 3.0 cm.x cavity deep oval in shape, margins are inverted, irregular, collar of abrasion in outer zone grease inner zone. Wound is present on front of chest 3 cm. below right nipple 9 cm. from mid line. On dissection right lung is congested and lacerated about 500 ml. blood found in right pleural cavity . Right 5th and 6th ribs found fractured. One plastic piece and 6 pellets metallic found in right pleural cavity and 4 pellets found under line skin of right side of chest.

2.Fire-arm wound of entrance of size 5.0 cm. x 4.0 cm. oval in shape. Margins are inverted, irregular, collar of abrasion in outer zone, grease inner zone. Wound is present on left side of neck 7 cm. below left scapula and 12 cm. away from mid line to left side. On dissection left lung is congested and lacerated about 600 ml. blood found in left pleural cavity. One plastic piece and 5 (five) pellets found in under line skin of left side chest and 9 pellets found in left pleural cavity. Left side 4th and 5th ribs are fractured.

As regards deceased Smt. Anita is concerned, the Doctor opined that she was of average built body aged about 26 years and her death had occurred one day earlier.. Rigor mortis was found on both upper and lower limbs and face stained by clotted blood. On internal examination membrane and brain were found lacerated. About 50 ml. clotted blood was also present in the (sic) cavity, Both chambers of the heart as well as the stomach were found empty. Semi digested food with gases in small intestine and faecal matter with gases in large intestine and gall bladder were found full. The deceased was pregnant having a male foetus aged about 12 weeks size of 14 cm. x 14 cm. present in her uterus. In the opinion of the Doctor the death had occurred due to shock and haemorrhage as a result of ante-mortem injuries, about a day before.

Following ante-mortem injuries were found by the Doctor on the cadaver of deceased Smt. Anita.

1.Lacerated wound of size 3.0 cm. x 3.0 cm.x cavity deep present on left eye brow.

2.Lacerated wound of size 5.0 cm. x 2.0 cm. x cavity deep present on middle forehead.

3.Lacerated wound 3.0 cm. x 2.0 cm. x cavity deep, present on nasal bone. Nasal bone fracture.

4.Lacerated wound 4.0 cm. x 2.5 cm. x muscle, present on left side of mouth. On dissection maxillary bone fractured.

5.Lacerated wound size 3.0 cm. x 2.0 cm. x muscle deep present on left eye brow. On dissection on right side of frontal bone fractured.

6.Lacerated wound 2.0 cm. x 1.0 cm., present on left cheek 2.3 cm. away from left angle mouth.

7.Lacerated wound 6.0 cm. x 3.0 cm. x muscle deep, present on left side of fore head 3.0 cm. above left eyebrow. On dissection frontal bone of left side found fractured.

8.Lacerated wound size 2.0 cm. x 1.0 cm. x muscle deep, present on back side. Middle of left forearm. On dissection left side of radius and ulna bone fractured.

The Investigating Officer also prepared the site plan with index of the place of occurrence at the instance of the complainant.

A country made 12 bore pistol was also recovered on the showing of accused Raja Bhaiya which he had concealed under terra-firma in his own agricultural field on 23.11.2002 at 5.00 P.M.. Recovery memo and site plan in this regard were prepared which were proved as Ex.Ka-17 and Ex.Ka-18 in the court below. During investigation a lathi alleged to have been used in the killing of Smt. Anita was also recovered by the I.O. on the showing of accused Pradeep from a bundle of crop of 'Jwar' cut from the agricultural field of Ram Das son of Ganga Deen.The accused after taking out the 'lathi' from its place of hiding handed over to the I.O. who prepared its recovery memo ( Ex.Ka-16) and the site plan ( Ex.Ka-19). The clothes and other articles found at the place of occurrence belonging to the two deceased were sent along with the recovered fire-arm with cartridges and lathi to the Forensic Science Laboratory for examination on the basis of recovery of fire-arm a case at crime no. 178 of 2002 under Section 25 Arms Act against accused Raja Bhaiya was registered. It was investigated by SI Sri N.R. Pushkar, who prepared the site plan with index and recorded the statement of the witnesses under Section 161 Cr.P.C. The District Magistrate, Jaluan at Orai also accorded sanction for prosecution of the accused Raja Bhaiya under Section 25 of the Arms Act as he was in possession of illicit firearm. On the basis of the evidence and statement of witnesses recorded during investigation in case crime no. 177 of 2002, under Section 302 IPC chargesheet was submitted by the I.O. against accused Pradeep, Raja Bhaiya, Kalloo and Ram Saran. Another chargehsheet under Section 25 Arms Act against Raja Bhaiya was filed by the police in the Court of Chief Judicial Magistrate, Jalaun at Orai, and vide order dated 18.1.2003 it was committed to the Court of Session. Charges under Sections 302 and 302/34 IPC and 25 of the Arms Act were framed against the accused persons to which they pleaded not guilty and claimed to be tried. Both the cases have been tried together by the trial Court.

The prosecution examined 8 witnesses in support of it case namely, Hulasi, P.W.1, Arman Singh, P.W.2, Lalloo Ram, P.W.3, Bhagwan Singh, P.W.4, Dr. Sugriv Babu, P.W.5, Daya Shankar Patel, P.W.6, Ram Kumar, P.W.7 and SI Sri N.R. Pushkar, P.W.8. All the witnesses of fact except Hulasi, the complainant, P.W.1 turned hostile.

Accused persons Raja Bhaiya, Kalloo, Pradeep and Ram Saran were examined under Section 313 Cr.P.C. They denied any role in the incident of killing of Manphoole and Smt. Anita on 23.11.2002 and pleaded that they had been falsely implicated in this case by the complainant due to enmity. Accused Raja Bhaiya had further stated that deceased Manphoole and his cousin used to provide food to dacoits and they have killed him due to enmity and his wife who had gone to jungle for easing herself, had seen the incident, so she had also been killed by dacoits. He had gone to police station for lodging the report but in connivance with the complainant he had been falsely implicated.

The learned Additional Sessions Judge after hearing parties counsel and evaluation of evidence adduced in the case had convicted and sentenced the accused-appellants as indicated in para-1 of the judgment.

Aggrieved the appellants have come up in appeal.

Learned counsel for the appellants has argued that:

(i) That Lalloo Ram and Arman Singh, the two eye

witnesses had turned hostile;

(ii)   That on 23.11.2002, the day of incident was dark night of 'Krishna Paksh' therefore, Arman, Lalloo Ram and     complainant Hulasi would not have been able to see and
 
identify the accused from the distance  where they claim to have been hiding behind  pipal tree and bamboo clumps;
 
(iii)    That two shots were fired on Manphoole while he was pinned down by Pradeep whereas the post mortem report shows  one fire-arm injury on the stomach and the other on the back, which is improbable when a person is pinned down;
 
(iv)     There are contradictions in the evidence of P.W.1, Hulasi who in his statement he stated that he did not go to see deceased Smt. Anita,  whereas in the written report it is averred by him that he had gone towards the bamboo clumps and found Anita lying dead;
 
(v)     That injuries only on the face of Anita are improbable as she had not received any injury on any other part of her body; and ;
 
(vi)      That only one lathi has been recovered whereas the prosecution case is that three persons i.e. Pradeep, Raja Bhaiya and Kalloo had used lathis in the killing of Anita.
 

Per contra, learned AGA has argued that hostile witnesses Lalloo Ram and Arman had at least supported the date, time and place of occurrence. According to him, full moon was on 20th November, 2002 and the incident had occurred on 22nd November, 2002. There would be sufficient bright light after 2 days of 'Purnima' even though it was a 'Krishna Paksh'.

It is submitted that Raja Bhaiya had torch with him and he could see in torch light where he was shooting Manphoole, who was in the clutch of Pradeep. According to him, police had recovered two empty cartridges from the spot which supports the prosecution story and proves that Manphoole had been shot twice as stated by the eye witness which fact is also proved by the medical evidence. It is submitted that the post mortem report of Manphoole also shows that he had received two gun shot injuries and death had occurred due to these ante mortem fire arm injuries. He has also placed the ballistic report from Forensic Science Laboratory dated 16.12.2003 sent to C.J.M. Orai, wherein after examination of country made pistol got recovered by accused Raja Bhaiya and two empties recovered from the spot it has been opined that the empties have been used in the country made pistol aforesaid and 24 pellets and 2-wads are used in cartridges of 12 bore.

With regard to contradiction in the statement of Hulasi and the FIR lodged by him as to whether he had gone first towards Anita or towards the body of his son is insignificant. It does not in any manner creates any doubt on the date, time and place of occurrence to make it improbable. This act of Hulasi is after the incident had taken place and the assailants had left the scene of crime and can be put to shock and instilled fear on seeing two murders being committed before his eye by his neighbours who were around and in a deadly mood.

The injuries on face of Anita wife of Raja Bhaiya, one of the accused and her husband are not improbable, Ram Saran, her father-in-law and Kalloo had caught her with Manphoole with whom the family had suspected of illicit relations. She had been followed by one of the brothers who had reported to the family and all of them had gone out armed to do away Manphoole and her. According to the learned AGA, it is apparent from the calling of Ram Saran.........blus ukd dVok nh gSA She must have been given blows on her face. It is emphatically argued that after receiving blow on the middle of her forehead she may have fallen unconscious and had not been in a position to move or escape. Since the accused felt insulted in the village by her conduct of "ukd dVok nh gS " only her face was mutilated by blows of lathis, therefore, no injury was found on any other part of her cadaver.

It is lastly submitted by the learned AGA that recovery of only one lathi would not falsify the case of prosecution. There is eye witness account of the incident and it is not a case of circumstantial evidence. If a weapon used in commission of a crime is not recovered then the testimony of eye witness is not shattered to make the case of prosecution fall to ground if it is proved by other supporting evidence.

After hearing learned counsel for the parties and on perusal of the record we find that the story of the prosecution that two shots were fired by Raja Bhaiya on Manphoole from which he died, are found to be corroborated by the post mortem examination report. The time, date and place of the incident is not disputed even by the witnesses declared hostile. The evidence of P.W.1, Hulasi is not contradictory as in his statement he has stated that-

^^ge yksxksa us fgEer dj fpYyk;s vkSj vkSjr ds ikl esa tkdj ns[kk fd og ej pqdh Fkh vkSj og jktk Hkb;k vfHk;qDr dh iRuh vuhrk FkhA fpYykus ij esjk HkkbZ oa'kh o cyjke o xkao ds cgqr ls yksx vk x;s FksA yM+ds dks tkdj ns[kk Fkk og ejk FkkA**

From perusal of the original record of the trial Court we find that accused Raja Bhaiya the husband of deceased Smt. Anita had a suspicion that she was not true to him and used to meet the deceased Manphoole in the fields in the morning and evening on the pretext of relieving herself from nature's call. Accused Raja Bhaiya had shared his suspicion with his father and brother. On the fateful day also Smt. Anita had gone towards 'Nala' to relieve herself from nature's call after giving food to her husband. Her 'Devar' (younger brother of Raja Bhaiya) followed her and saw her with Manphoole and reported this fact to the family members who went to the meeting place of Anita and Manphoole. The rest of the incident has been narrated by the informant in the FIR who was an eye witness.

Admittedly, there was torch light in the hands of the assailants and Raja Bhaiya, the husband of Anita, who had shot at Manphoole. He used the torch to make sure that he had a clear shots at Manphoole as he was being pinned down by Pradeep. The injuries of the deceased are also not improbable in the given facts and circumstances of the case as P.W.1 has stated in his testimony that the assailants had torches with them, therefore, they must have also seen and recognized Pradeep and Raja Bhaiya in the light of their torches. It is apparent from record that the eye witnesses to the incident had hid themselves behind the pipal tree and clumps of bamboo and in the moon light as well as in the light of torches of the assailants, they could recognize the assailants from their mannerism and voices as accused belong to the same village and are neighbours of the complainant and also the accused from their conversation. Further, there was sufficient moon light at the time of incident.

As regards Smt. Anita is concerned, her post mortem report shows that she had received lathi blows on her head and face, which were fatal. Once she had lost her conscious due to blow on her head and face. The blows were given on vital part to make sure that she does not survive, hence there was no need for the assailants to have hit her on any other part of her body.

The report of the Forensic Laboratory also shows that markings of empty cartridge said to have been used in the crime and on the cartridge tested in the lab were same. The motive is clear and unambiguous that the accused persons suspected illicit relations between the deceased. Her secret meetings with Manphoole were not liked by her husband, his brothers and father-in-law. The deceased was carrying 'Chat' business in Surat (Gujrat) and whenever he visited the village deceased Anita used to meet her. They were neighbours, so their meeting place was jungle of the village. On the fateful day also Anita left her house after giving meals to her husband on the pretext of attending natural calls in the jungle. The accused trapped both of them in the jungle, so got rid of both of them.

For all the reasons stated above, we find that the trial Court in the facts and circumstances of the case, has rightly come to the conclusion that the prosecution had proved its case to the hilt that all the accused persons are guilty of offence punishable under Sections 302 and 302/34 IPC and further accused Raja Bhaiya has also committed offence under Section 25 of the Arms Act. As a result, the judgment and order finding the accused-appellants guilty and their order of sentencing to life imprisonment etc. does not require any interference from this Court.

The appeal is accordingly, dismissed.

Let a certified copy of this judgment be sent to the concerned court below for its compliance forthwith, which should be reported to this Court within a month.

Sri Girish Viswakarma shall be paid Rs.2,100/- by the State within a month for his services rendered to the Court on behalf of the appellants.

Dated:- 19.10.2012

CPP/-

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

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