Indrajit Singh And Ors vs State
2014 Latest Caselaw 3824 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved                                                                                    A.F.R.
 

 
Court No. - 10
 

 
Case :- CRIMINAL APPEAL No. - 672 of 1991
 

 
Appellant :- Indrajit Singh And Ors
 
Respondent :- State
 
Counsel for Appellant :- Pt Mohan Chandra,Pankaj Agarwal
 
Counsel for Respondent :- D.G.A.
 

 
Hon'ble Arun Tandon,J.

Hon'ble Akhtar Husain Khan,J.

(Delivered by Hon'ble Akhtar Husain Khan, J.)

Present appeal has been filed by accused-appellants Inder Singh, Jayanti Prasad and Prabhu Dayal against judgement and order dated 05.04.1991 passed by Xth-Additional District and Sessions Judge, Aligarh in Sessions Trial No. 289 of 1986, State of U.P. Vs. Indrajeet Singh and others, under Sections 302, 364 I.P.C., P.S. Barla, District Aligarh, whereby learned Xth-Additional District and Sessions Judge, Aligarh has convicted all the accused-appellants for offence punishable under Section 302 I.P.C. and sentenced thereunder to each of them with imprisonment for life and fine of Rs. 500/-.

We have heard learned counsel for the appellants and learned A.G.A. for the State-respondent. We have perused the records also.

According to F.I.R. Exhibit Ka.01 prosecution case is that Jawahar Lal father of accused Inder Singh and Jayanti Prasad inherited property from his in-laws in village of complainant Prem Prakash, Therefore, he came to village of complainant with his family and established his residence there. Later on, in year 1974, his son Ram Kailash was murdered. Ram Swaroop Lodhe father of complainant (Now deceased) and Pratap Bhan brother of complainant were named accused in the said murder case who were acquitted 3 or 4 year before present occurrence that is why accused Inder Singh and Jayanti Prasad who are sons of Jawahar Lal had animosity with Ram Swaroop father of complainant. They shifted back their residence to Village Barauli two year before occurrence. They had a house in village Charra also on the side of road where they were mostly residing in that period.

According to F.I.R. Exhibit Ka.01, on 18.10.1984 complainant Prem Prakash and his father Ram Swaroop Lodhi were going by tractor with Raghuveer S/o Gopali, resident of Nagla Samanti Mazra Parora, P.S. Barla for purchasing Hairo Plough. The driver of the tractor was Veerbhan S/o Mahipal Sinha, resident of Village Mukhtalaya Nagla, P.S. Amapur, District Etah. At about 2:00 p.m. when they reached at Atrauli Road near Power House in Village Charra, accused Inder Singh, Jayanti Prasad and Prabhu Dayal were seen. Driver of tractor Veerbhan saluted them and stopped the tractor on the petrol pump, after 10 minutes Ram Swaroop Lodhi, father of complainant, driver Veerbhan and said Raghuveer Singh raised alarm whereupon complainant rushed to his tractor. Accused Inder Singh, Jayanti Prasad and Prabhu Dayal were beating his father. Accused Inder Singh was beating with Iron Rod while accused Jayanti Prasad and Prabhu Dayal were beating with Lathies, complainant Prem Prakash and above persons accompanying him saved his father Ram Swaroop Lodhi and all the three accused ran away towards Village Atrauli. Just after occurrence complainant Prem Prakash went to Police Chauki Charra and returned on spot with police, thereafter his father was brought to hospital where he died after 5 to 7 minutes. Thereafter leaving dead body of his father in hospital complainant Prem Prakash went to Police Station Barla, District Aligarh and presented written report Exhibit Ka.01 in Police Station Barla at 3:45 p.m. whereupon Chich F.I.R. Exhibit Ka.04 was written and Crime No. 167, under Section 302 I.P.C. was registered in Police Station Barla against Inder Singh, Jayanti Prasad and Prabhu Dayal. Thereafter, inquest report of deceased Ram Swaroop was prepared by police and his dead body was sent for post mortem in sealed cover after having completed other formalities.

After above occurrence, the aforesaid tractor driver Veerbhan Singh was going by same tractor to the village of complainant to inform the family members of complainant about occurrence. In the way, he was abducted by above three accused but later on, on raising alarm by him police came on spot and arrested all the three accused and recovered tractor, therefore, Section 364 I.P.C. was added during investigation.

Police conducted investigation in accordance with law and after completion of investigation police submitted charge sheet against all the three accused for offences punishable under Section 302 and 364 I.P.C. Whereupon learned Magistrate took cognizance and after compliance of Section 207 Cr.P.C. committed the case to the Court of Sessions for Trial of all accused. Thereafter Sessions Trial No. 289 of 1986 State Vs. Inder Singh & 2 others, under Sections 302, 364 I.P.C. was registered in the Sessions Court of District Aligarh, later on said Sessions Trial was transferred to the Court of Xth Additional District and Sessions Judge, Aligarh who framed charges against all the accused for offence punishable under Section 302 read with Section 34 I.P.C. All the accused pleaded not guilty and claimed to be tried.

Prosecution examined PW1 complainant Prem Prakash, PW2 Veerbhan Singh, PW3 Constable 275 Ram Kumar, PW4 Dr. Jawahar Lal, PW5 Constable 617 Sriram Prasad, PW6 Dr. R.C. Saini and PW7 S.I. Roshan Lal Sharma to prove the charge levelled against all accused.

After prosecution evidence learned Trial Court recorded statement of all accused under Section 313 Cr.P.C. all the accused denied the charge levelled against them and stated that they have been falsely implicated due to animosity. They examined DW1 Diwakar as defence witness.

After defence evidence Trial Court heard the argument of both the parties and passed impugned judgement and order whereby Trial Court convicted all the three accused for offence punishable under Section 302 I.P.C. and sentenced thereunder to each of them as mentioned above.

Learned counsel for the accused-appellants contended that the judgement and order passed by learned Trial Court is against evidence as well as against law.

Learned counsel for the accused-appellants contended that out of seven witnesses examined by prosecution only PW1 complainant Prem Prakash and PW2 Veerbhan Singh are witnesses of facts and occurrence but these two witnesses are interested and related persons and their statements are full of contradiction, therefore, statements of these two witnesses are not reliable. Trial Court has committed error in placing reliance upon testimonies of these two witnesses.

Learned counsel for the accused-appellants contended that weapons assigned to accused-appellants are blunt object. Incised wound cannot be caused by blunt object. Incised wound may be caused only by sharp edged weapon. In this context, learned counsel for the accused-appellants contended that eight injuries have been found on the dead body of deceased in medical examination which was conducted soon after occurrence and out of those injuries seven injuries were incised wound which may be caused by sharp edged weapon only. Therefore, medical evidence is against prosecution case and it leads to infer that the story narrated by the prosecution is against truth.

Learned counsel for the accused-appellants contended that defence has examined DW1 Diwakar, whose statement makes it clear that the deceased has been beaten by unidentified persons other than accused-appellants.

Learned counsel for the accused-appellants contended that DW1 Diwakar is an employee of petrol pump where occurrence had taken place and it is apparent from the statement of DW1 Diwakar that at the time of occurrence only tractor driver and deceased came to petrol pump. Complainant Prem Prakash was not present at that time. Therefore, presence of PW1 complainant Prem Prakash at the time of occurrence is highly doubtful.

In view of above contentions, learned counsel for the accused-appellants has submitted that the appeal should be allowed and accused-appellants should be acquitted.

Learned A.G.A. contended that the conviction and sentence recorded by Trial Court is in accordance with law and evidence. The evidence adduced by prosecution is sufficient to prove accused-appellants guilty of offence punishable under Section 302 I.P.C.

Learned A.G.A. further contended that the sentence awarded by Trial Court is not excessive.

Learned A.G.A. Prayed that appeal should be dismissed.

We have considered the submissions made by the parties carefully. Out of seven witnesses examined by prosecution before Trial Court, PW1 complainant Prem Prakash and PW2 Veerbhan Singh are witnesses of fact and occurrence. They have supported the prosecution version in their statements on oath. PW1 complainant Prem Prakash has proved F.I.R. Exhibit Ka.01 also in his statement.

PW3 Constable 275 Sriram Kumar has stated in his statement that he has brought the dead body of deceased in sealed cover to post mortem house at Aligarh. He has stated that the dead body remained in sealed cover till it was in his custody.

PW4 Dr Jawahar Lal has stated in his statement on oath that on 19.10.1984 he was on post mortem duty and on that day at 8:00 p.m. he conducted the post mortem of deceased Ram Swaroop. In his statement he has proved the post mortem report of deceased Ram Swaroop Exhibit Ka.03 in accordance with law.

PW5 Constable 617 Sriram Prasad is the scribe of chik F.I.R. In his statement he has proved chik F.I.R. Exhibit Ka.04. He has further stated that he has made entry of registration of crime at 03:45 p.m. on 18.10.1984 at Rapat No. 26 of G.D., he has proved the carbon copy of the said G.D. Exhibit Ka.05 also.

PW6 Dr. R.C. Saini is the medical officer who has conducted the medical examination of deceased Ram Swaroop on 18.10.1984 at 02:25 p.m. soon after the occurrence. In his statement he has proved injuries as well as injury report of deceased Ram Swaroop Exhibit Ka.07.

PW7 Sub-inspector Roshan Lal Sharma is the investigating officer he has proved in his statement site plan of occurrence Exhibit Ka.08, site plan of the place of recovery of the lathi Exhibit Ka.09, site plan of the place from where tractor along with driver was abducted Exhibit Ka.10 and site plan of the place of recovery of tractor Exhibit Ka.11.

In his statement PW7 Sub-inspector Roshan Lal Sharma has further proved recovery memo of Blood Stained and Plain Earth Exhibit Ka.12. He has proved fard cash memo Exhibit Ka.13, fard diesel slip Exhibit Ka.14, recovery memo of tractor Exhibit Ka.15, fard cloth of deceased Exhibit Ka.16 and fard Payadan of tractor Exhibit Ka.02.

PW7 Sub-inspector Roshan Lal Sharma has stated that after investigation, he submitted charge sheet Exhibit Ka.17.

PW7 Sub-inspector Roshan Lal Sharma has identified also material Exhibits produced before the Trial Court during his statement.

DW1 Diwakar has stated in his statement that on 18.10.1984 he was serving at petrol pump and on that day a tractor came to petrol pump for getting oil. There was a man siting on the tractor besides driver. Thereafter, four or five unknown persons came armed with Lathies and began to beat the person sitting on tractor.

DW1 Diwakar has stated that the accused-appellants have not committed said occurrence.

DW1 Diwakar has stated in his statement that above occurrence has taken place at about 01:45 p.m. and at the time of said occurrence Mahendra Kumar and Ganga Shah were doing their job at the petrol pump. He has further stated that tractor driver had also seen the occurrence.

From the statement of DW1 Diwakar, it is apparent that the tractor driver is the eye witness of occurrence. According to F.I.R. Exhibit Ka.01, the driver of tractor was PW2 Veerbhan Singh at the time of occurrence and he is the eye witness of occurrence. This version of F.I.R. has been supported by PW1 complainant Prem Prakash and PW2 Veerbhan Singh in statements on oath before Trial Court. Statement of PW6 Dr. R.C. Saini as well as injury report Exhibit Ka.07 of deceased Ram Swaroop shows that soon after occurrence on 18.10.1984 at 02:25 p.m. Ram Swaroop was brought to P.H.C. Charra by PW2 Veerbhan Singh for medical examination. Considering the whole facts and evidence on record we are of the view that presence of PW2 driver Veerbhan Singh at the time of occurrence may not be denied.

From the statement of PW5 Constable 617 Sriram Prasad as well as from chik F.I.R. Exhibit Ka.04, it is apparent that complainant Prem Prakash has presented F.I.R. Exhibit Ka.01 in Police Station Barla at 3:45 p.m. within 1.35 hours after occurrence. Distance of Police Station from place of occurrence is six miles. Thus it is apparent that F.I.R. has been lodged promptly without delay and there is no chance of concoction.

In F.I.R. Exhibit Ka.01 complainant Prem Prakash has mentioned his presence with his father Ram Swaroop at the time of occurrence and version of F.I.R. is fully supported by PW1 complainant Prem Prakash and PW2 Veerbhan Singh in their statements on oath. Considering whole facts and circumstances of the case as well as evidence on record, we are of the view that there is no reasonable ground to disbelieve presence of PW1 complainant Prem Prakash also at the time of occurrence.

DW1 Diwakar has stated in cross-examination made by prosecution that his relation with accused-appellants is good. He has further stated in cross-examination that accused has shop of motor parts and they run metador. They used to come to petrol pump for taking oil. Thus it is apparent that DW1 Diwakar is a person related to accused-appellants, and he may tell a lie to save accused. Therefore, on the basis of statement of DW1 Diwakar, the presence of PW1 complainant Prem Prakash at the time of occurrence may not be denied.

In view of discussion made above, we are of the view that the presence of PW1 complainant Prem Prakash and PW2 Veerbhan Singh at the time of occurrence is proved beyond doubt.

In F.I.R. Exhibit Ka.01 motive or cause of occurrence has been alleged that Ram Swaroop (now deceased) and his son Pratap Bhan were named accused in the case of murder of Ram Kailash S/o Jawahar Lal but the case ended in acquittal. Therefore, accused Inder Singh and Jayanti Prasad who are sons of Jawahar Lal had animosity with deceased Ram Swaroop. PW1 complainant Prem Prakash has supported this version of F.I.R. in his statement on oath before Trial Court. In his statement under Section 313 Cr.P.C. accused Inder Singh has stated that in the case of murder of his brother Ram Kailash, Ram Swaroop (now deceased) and Pratap Bhan brother of complainant were accused and one of them was acquitted by High Court. While accused Jayanti Prasad has stated in his statement under Section 313 Cr.P.C. that in the case of murder of his brother Ram Kailash, Ram Swaroop (now deceased) and brother of complainant Pratap Bhan both were acquitted by High Court. Thus it is apparent that it has been admitted by accused also that the deceased was accused in the case of murder of Ram Kailash S/o Jawahar Lal and he was acquitted by High Court. Therefore, the cause of occurrence/motive alleged by prosecution is fully proved.

We have gone through the whole statements of PW1 complainant Prem Prakash and PW2 Veerbhan Singh, we find in the statements of these two witnesses that they have stated before the Court that accused Prabhu Dayal was armed with Gun and Lathi but accused Prabhu Dayal used Lathi for causing injuries to deceased Ram Swaroop. According to F.I.R. Exhibit Ka.01 accused Jayanti Prasad and Prabhu Dayal used Lathi for causing injuries to deceased Ram Swaroop while accused Inder Singh used Iron Rod for causing injuries to deceased Ram Swaroop. There is no allegation in F.I.R. regarding use of Gun. Therefore, we are of the view that there is no contradiction in F.I.R. and statement of these two witnesses on the point of weapon used by assailants. The statements of these two witnesses regarding time of occurrence, place of occurrence and manner of occurrence find support from statement of DW1 Diwakar also. In F.I.R. Exhibit Ka.01 it has been mentioned that the driver stopped the tractor at the petrol pump. Thereafter, after 10 minutes Ram Swaroop Lodhi, Driver Veerbhan Singh and Raghuveer raised alarm, whereupon complainant Prem Prakash rushed to his tractor. In his statement on oath PW1 complainant Prem Prakash has stated that after getting diesel filled in the tractor, he went into the cabin of petrol pump for making payment. At that time, his father Ram Swaroop Lodhi was sitting on tractor. PW2 Veerbhan Singh has stated that after taking diesel, he and complainant Prem Prakash went to take receipt of payment. At that time, Ram Swaroop Lodhi was sitting on tractor and Raghuveer was drinking water at the same place. There appears no contradiction in the version of F.I.R. as well as in the statements of PW1 complainant Prem Prakash and PW2 Veerbhan Singh. Manner of expression as well as sense of observation differs from man to man. Therefore, there may not be stereo type similarity in statements of two persons. Decay in memory is also a cause of variation in statement of different persons. Therefore, minor contradiction in statements of two witnesses are natural and it leads to infer that they are not tutored witnesses. They are stating what they have seen. We find support from judgement of Hon'ble Apex Court rendered in the case of Sampath Kumar Vs. Inspector of Police Krishnagiri in 2012 (IV) SCC 124 in which hon'ble Apex Court 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."

In the case of Vithal Vs. State of Maharashtra (2008) 1 SCC Crl. 91 Hon'ble Supreme Court held that the testimony of mother of deceased should not be discarded on the ground that she is an interested witness.

In the case of State of Himachal Pradesh Vs. Mast Ram (2004) 8 SCC 660 Hon'ble Apex Court held that "The law on the point is well settled that the testimony of the relative witnesses cannot be disbelieved on the ground of relationship. The only main requirement is to examine their testimony with caution. Their testimony was thrown out at the threshold on the ground of animosity and relationship. This is not a requirement of law."

In view of above pronouncements of Hon'ble Apex Court testimonies of PW1 complainant Prem Prakash and PW2 Veerbhan Singh may not be discarded on the ground of relationship with deceased or employment of deceased.

As mentioned above, it is apparent from the statement of DW1 Diwakar that he is a person related to accused-appellants, therefore, he may tell a lie to conceal identity of assailants to save accused-appellants. His statement is not sufficient to discard the testimonies of eye witnesses examined by prosecution.

In the case of Harpeet Singh Vs. State of Haryana 1977 Cr.L.J. 642 SC at Page 649 Hon'ble Apex Court held that "if the witnesses examined are believed the question of inference for non-examination does not arise."

It is apparent from the statement of PW6 Dr. R.C. Saini as well as injury report of Ram Swaroop Exhibit Ka.07 that eight injuries were found on the body of Ram Swaroop at the time of his medical examination by PW6 Dr. R.C. Saini on 18.10.1984 at 2:25 p.m. and out of said eight injuries, seven injuries were incised wound but perusal of statement of PW4 Dr. Jawahar lal and Post mortem report Exhibit Ka.03 shows that 12 anti mortem injuries were found on the dead body of deceased Ram Swaroop in post mortem conducted by PW4 Dr. Jawahar Lal. Out of 12 anti mortem injuries found on the dead body of deceased Ram Swaroop, four injuries have been recorded incised wound, four injuries have been recorded abrasion, three injuries have been recorded contusion and one injury has been recorded lacerated wound. Thus there is difference between injury report Exhibit Ka.07 and post mortem report Exhibit Ka.03 regarding number of injuries and nature of injuries. We have given our anxious thought on this point, it is apparent from the F.I.R. Exhibit Ka.01 as well as from the statement of PW1 complainant Prem Prakash and PW2 Veerbhan Singh that Ram Swaroop was brought to P.H.C. Charra in critical position where his medical examination was conducted by PW6 Dr. R.C. Saini in a hurry and he died within 5 to 7 minutes. Therefore, injury report Exhibit Ka.07 is not complete and exhaustive. Therefore, considering the whole facts and circumstances of the case, we are of the view that the post mortem report Exhibit Ka.03 prepared by PW4 Dr. Jawahar Lal is exhaustive and it may not be discarded on the ground of injury report Exhibit Ka.07.

It is relevant to mention that out of eight injuries recorded in Exhibit Ka.07, seven injuries have been recorded as incised wound while in post mortem report Exhibit Ka.03 only four incised anti mortem injuries have been recorded. This also may not be a ground for rejection of post mortem report because the difference appears to be a matter of observation and assessment which may differ from doctor to doctor.

In view of above, considering the whole facts and circumstances of the case, we are of the view that the post mortem report is reliable and it is not proper to disbelieve post mortem report.

According to F.I.R. accused Inder Singh has caused injuries to deceased Ram Swaroop with Iron Rod while accused Jayanti Prasad and Prabhu Dayal caused injuries with lathi and this version of F.I.R. has been supported by PW1 complainant Prem Prakash and PW2 Veerbhan Singh. Defence witness Diwakar has also stated that deceased Ram Swaroop was beaten by Lathies. In Lathies sharp edged object may be fixed. Similarly, Iron Rod may have sharp edge. At the time of occurrence, it is difficult to see and assess as to what is the exact nature of weapons used by assailants.

In the case of Sardul Singh Vs. State of Punjab (1994 Cr.L.J. 626 SC) Hon'ble Supreme Court has held that "ocular evidence will prevail over medical evidence when credibility of eye witnesses is established beyond doubt."

In the case of Ravi Kumar Vs. State of Punjab (AIR 2005 SC 1929) also Hon'ble Supreme Court retreated that "when the ocular evidence is cogent and credible medical evidence to the contrary cannot corrode the evidentiary of the former."

In view of discussion made above as well as principles laid down by Hon'ble Apex Court in the above pronouncements, we are of the view that on the basis of incised wound of deceased Ram Swaroop the statements of eye witnesses; PW1 complainant Prem Prakash and PW2 Veerbhan Singh may not be discarded.

After having considered all aspects and circumstances of the case, we are of the view that PW1 complainant Prem Prakash and PW2 Veerbhan Singh are reliable witnesses and there is no reasonable ground to disbelieve their testimonies.

In view of conclusion drawn above, after having considered the whole evidence on record as well as circumstances of the case, we are of the view that evidence adduced by prosecution is sufficient to hold accused-appellants guilty.

We have perused the impugned judgement of Trial Court. Trial Court has considered the evidence of parties at length. In view of conclusion drawn above we are of view that the learned Trial Court has rightly placed reliance on the statement of witnesses examined by prosecution and has rightly held accused-appellants guilty.

Perusal of records shows that the charge has been framed against accused-appellants by Trial Court for offence punishable under Section 302 read with Section 34 I.P.C. but Trial Court has recorded their conviction for offence punishable under Section 302 I.P.C. From the version of F.I.R. as well as statements of PW1 complainant Prem Prakash and PW2 Veerbhan Singh it is apparent that all the three accused-appellants have caused injuries to deceased Ram Swaroop in furtherance of common intention of all. PW4 Dr. Jawahar Lal has specifically stated in his statement that anti mortem injuries of deceased caused on his head were sufficient for causing death in the ordinary course.

Therefore, on the facts and circumstances of the case we are of the view that the offence under Section 302 read with Section 34 I.P.C. has been proved against all the three accused-appellants namely, Inder Singh, Jayanti Prasad and Prabhudyal, therefore, we modify the judgement of Trial Court and hold accused-appellants guilty of offence punishable under Section 302 read with Section 34 I.P.C.

Life imprisonment awarded to accused-appellants by Trial Court is not excessive and no appeal has been filed by prosecution for enhancement of sentence, therefore, sentence awarded by the Trial Court does not require interference. Therefore, accused-appellants shall under go imprisonment for life for offence punishable under Section 302 read with Section 34 I.P.C.

In view of above, we are of the view that appeal has no merit and is liable to be dismissed. Appeal is dismissed accordingly.

Accused-appellants are on bail. They shall surrender before the Trial Court within 30 days from the date of this judgement for serving sentence, failing which, Trial Court shall ensure their arrest and shall send them jail for serving sentence awarded to them.

Office is directed to send copy of this judgement and order to Trial Court for compliance.

Send back records of Trial Court immediately.

Order Date :- 31.07.2014

M/A.

(Hon'ble Akhtar Husain Khan, J.)          (Hon'ble Arun Tandon,J.)