Govinda & Others vs State Of U.P.
2014 Latest Caselaw 6675 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 

 

 
Criminal Appeal No.128 of 1995
 

 
Govinda & others ..................................................Appellants
 
Versus
 
State of U.P. .................................................Opposite Party.
 

 

 
Hon'ble Arun Tandon, J.

Hon'ble Arvind Kumar Mishra-I, J.

(Delivered by Hon'ble Arvind Kumar Mishra-I J.)

The appellants have filed this appeal against judgment and order impugned dated 21.1.1995 passed by Sessions Judge, Lalitpur in Sessions Trial No. 8 of 1993, State Versus Govinda and others arising out of Case Crime No.32 of 1992, under Sections 147, 302/149, 323/149, 148 IPC, Police Station Pali, District Lalitpur. By the aforesaid impugned judgment, appellants, namely, Govinda, Kalle, Dunne, Bhaboodi, Asha, Ghansoo, Gopi and Nathoo have been convicted and sentenced for offences under Sections 302/149 IPC with life imprisonment; under Section 323/149 IPC simple imprisonment for one year; appellant no.4 Bhabhoodi (now deceased) has been sentenced with 6 months R.I. for offence under Section 148 IPC and appellants, namely, Govinda, Kalle, Dunne, Bhaboodi, Asha, Ghansoo, Gopi and Nathoo have been convicted under Section 147 IPC and sentenced to 3 months R.I.. All the above sentences have been directed to run concurrently.

Relevant to mention that during pendency of this appeal, appellant no.4 Bhabhoodi and appellant no.7 Nathoo died, therefore, their appeal was abated vide order of this Court dated 22.5.2014. This appeal is confined now to the six surviving appellants, namely, Govinda, Kalle, Dunne, Asha, Dhansoo and Gopi.

As per prosecution case, first information report was lodged at police station Pali, district Lalitpur on 6.5.1992 at 1.30 a.m. at the instance of complainant Raja Ram son of Kisore, police station Pali, district Lalitpu, wherein, it was stated that on 5.5.1992 at about 9.30 p.m. Nandoo brought his brother's wife by bus from her parent's home. After alighting the bus, when he was going to his home with his brother's wife and was in front of the house of accused Nathoo, when accused Asha used filthy languages. Complainant asked the accused not to behave in such a manner for the married wives and daughters of the village, whereupon, the accused Bhaboodi, Ghansoo, Nathoo, Govinda, Kalle, Dunne and Gopi, who were also sitting over there used filthy language in a loud voice. Hearing the noise, complainant's father Himmat, his uncle Kishore and cousin brother Raja Ram arrived at the spot and intervened by asking the accused persons not to utter such absurd words for a lady whom they well knew was a house wife. Simultaneously, other villagers also arrived at the spot. In the meanwhile, accused persons- Govinda, Kalle, Dunne, Gopi, Nathoo- armed with lathi, danda and spear in their hands started beating complaint's father Kishore. Himmat came to his rescue but he was also beaten by the accused persons. Kishore and Himmat sustained injuries and thereafter the accused returned to their respective houses. The complainant went to the police station by bullock-cart with injured Kishore and Himmat, but Kishore died on the way (to police station). This report is exhibit Ka-6 on record.

On the basis of aforesaid report, entries were noted down in chik FIR no.21 of 1992 at police station Pali at 1.30 a.m. on 6.5.1992 at Crime No.32 of 1992, under Sections 147, 148, 323, 504, 506, 302 IPC. The aforesaid chik FIR is Exhibit Ka-3 on record.

Thereafter investigation was taken up by S.O. Rudra Pal Singh, who is stated to have taken over charge at police station Pali at 7 a.m. on 6.5.1992. The Investigating Officer prepared inquest report and the dead body was handed over to the Constable Naimuddin and Chowkidar Halkai after being kept in a sealed cover for being taken to mortuary. Statement of witnesses were recorded. Site plan was prepared at the instance of the informant Raja Ram. Blood stained and simple earth were taken from the spot and the memo of the same was prepared, which is Exhibit Ka-13. Accused persons were also arrested, in the meanwhile. It emerges out from record that Dr. Hari Om medically examined injured Himmat son of Sukh Lal Barahi at P.H.C. Birdha Lalitpur on 6.5.1992 at 11.45 a.m., wherein he found following injuries on his person;

1.Contusion 6 cms x 6 cms on dorsal surface of left palm, 2 cms below from wrist joint with abrasion 1.0 cm x 1.0 cm 2 in number. Colour of contusion reddish blue

2. Contusion 5 cms x 4 cms on left fore-arm, 11 cms below elbow joint with abrasion 2.5 cms x 1.5 cms colour of contusion reddish blue.

3.Contusion 4 cms x 4 cms with multiple abrasion in 3 cms x 2 cms area of medial side of left leg, 10 cms above the knee joint. Colour of contusion reddish blue.

4.Laceration 3 cms x .5 cm x skin deep in post part of scalp, 13 cms from left pinna, bleeding stopped.

All the injuries were opined to be simple in nature and caused by blunt object and duration was stated to be between 12 to 18 hours. This medical examination report is Exhibit Ka-1 on record. The post-mortem examination on the dead body of Kishore, aged about 60 years was done on 6.5.1992 at the mortuary at 2.30 p.m. wherein, following ante-mortem injuries were found;

1.A lacerated wound 7 cms x 1.0 cm x deep to bone, bone visible on the right parietal area of scalp, 12.5 cms above from the right ear. On cut, muscles are infiltrated with blood.

2.An oblique contusion 18 cms x 3 cms on the right lateral side of chest, 6 cms lateral from the right nipple. On cut, muscles are infiltrated with blood.

3.Contused swelling 14 cms x 8 cms on the right lateral side of scalp just above to the right ear. On cut, muscles are infiltrated with blood.

4.A vertical abrasion 5 cms x 1 cm with a vertical penetrating blood 1.8 cms x 0.5 cm x cavity deep on the right side of back just medial to right scapula. Margins are clean cut and regular. On cut, muscles are infiltrated with blood.

5.A transverse contusion 22 cms x 4 cms on back, just on and below to both scapulae and 4 cms below from the injury no.4. On cut muscles are infiltrated with blood.

6.An abrasion 2 cms x 1 cm on the lateral side of right upper arm, in the lower part. Scab present.

Duration between death and the post-mortem examination was stated to be 2/3 days old (16 hours). The cause of death was stated to be Coma as a result of ante-mortem injuries. This post-mortem report is Exhibit Ka-2 on record.

After completing the investigation, the Investigating Officer filed charge-sheet, Exhibit Ka-14, in Case Crime No.32 of 1992, under Sections 147, 148, 323, 504, 506, 302 IPC, police station Pali, district Lalitpur. Thereafter case was committed to the court of Sessions whereupon the accused persons were heard on the point of charge and prima facie ground was found existing against accused persons under Sections 147, 148, 323/149 and 302/149 IPC. Charges were read over and explained to the accused persons, who denied charges and opted for trial.

In order to prove its case, prosecution produced as many as seven witnesses apart from affidavit of Head Constable 17 C.P. Durga Prasad, who has deposed (through affidavit) that case property was sent to Vidhi Vigayan Prayogshala through Constable Ramesh Chand Shukla and this case property was kept intact while it remained in his custody. This affidavit is dated 30.9.1994.

P.W.1 Dr. Hariom, who had medically examined the injured Himmat on 6.5.1992 proved the injury report as Exhibit Ka-1. Dr. Ramesh Chandra Sahu, who had conducted autopsy on the dead body of deceased Kishore was examined as P.W.2. The Head Constable -87 CP Ram Prakash Yadav was examined as P.W.3. Raja Ram the complainant, who had he lodged the first information report and is stated to be an eye-witness of the incident was examined as P.W.4. Nandu, the other eye-witness of the incident was examined as P.W.5. Himmat the injured witness was examined as P.W.6. Rudra Pal Singh, the Investigating Officer, who conducted the investigation and submitted the charge-sheet in the case against aforesaid accused persons was examined as P.W.7.

Thereafter evidence for the prosecution was closed and statement of accused persons were recorded under Section 313 Cr.P.C., wherein, accused persons denied their complicity in the offence. Accused Govinda stated that marriage of his sister was to be performed on that day. 'Barat' stayed at the temple and he stayed at home. He was at his house when Himmat and Kishore quarreled with members of the marriage party and they were beaten by them. Baratis fled away from the scene after they came to know about death of Kishore. Similar statements have been made by other co-accused persons.

Defence produced D.W.1 Ajuddi, D.W.2 Laxmi Narayan, D.W. 3 Bhagwan Singh and D.W.4 Janki Prasad Rathore in support of their case.

After hearing both the sides, the learned Sessions Judge found charges under aforesaid sections of Indian Penal Code proved against accused persons and convicted and sentenced them, as above. Consequently, this appeal.

We have heard respective submission made on behalf of both the sides and perused the record.

Learned counsel for the appellants has submitted that the charges alleged against the appellants were not proved beyond reasonable doubt. The ocular testimony of so called eye-witnesses is shaky, scratchy and full of contradictions and the same can never form the basis for convicting the appellants. The very place of occurrence is in doubt. The investigation is faulty. Circumstances shows that accused persons were attending a marriage party and they were not involved in the incident. No previous motive had been attributed for committing the assault. He further submitted that it was the complainant side, who actually quarrelled with some members of marriage party, due to which, they were assaulted by some 'baratis'.

Liability under common object cannot be fastened on the appellants. No case under Section 302 IPC is made out. Appellants are innocent.

Learned AGA has vehemently opposed the aforesaid argument and submitted that the evidence and circumstances placed on record prove the charges against the accused appellants beyond shadow of reasonable doubt. The testimony of eye-witnesses is consistent and natural. Occurrence is admitted to the appellants themselves. Only suggestion has been given that some quarrel took place between the baratis and the complainant's side. Trial court has taken note of every aspect of the case viz-a-viz the attending circumstances and it has rightly recorded a finding of conviction. The ante-mortem injuries found on the body of Kishore- the deceased- show the nature of assault intended, which may allude to the inference of prevailing common object in the mind of the assailants to cause death. To say that no case under Section 302 IPC, is made out is absolutely baseless.

We may take note of the first information report Exhibit Ka-3, wherein, we find the time and place of the incident as 9.30 p.m. on 5.5.1992 in front of house of accused Natthoo. The cause of assault is attributed to the taunting- "randi berhni", made by accused Asha Ram while complainant's brother Nandu was coming along with her. The taunt was obnoxious. The first information report was lodged at 1.30 a.m. in the night after the incident.

So far as contention of the appellants regarding FIR being delayed is concerned, we notice that there is no such inordinate delay in lodging the FIR. The incident is stated to have occurred at 9.30 p.m. and the first information report was lodged in the same night around 1.30 a.m. The distance from place of occurrence to the police station Pali is stated to be 10 kms. This distance was covered by use of bullock-cart. It cannot be said that there is any inordinate delay in lodging the FIR.

Mere late arrival of FIR in the Magistrate's court will not make it ante-timed.

In so far as the ocular testimony is concerned, on careful examination of the same we notice that the informant Raja Ram is the son of the deceased and injured Himmat is informat's real uncle. The occurrence took place on the taunting made by accused persons when Nandu brought his brother's wife Smt. Sukhwati and was proceeding towards home. Nandu P.W.5 has unfolded the prosecution story and has testified that while he was proceeding along with his brother's wife and was passing in front of house of accused Nathoo, accused Asha Ram called her brother's wife "randi berhni", which was objected to by him thereupon he was abused by the accused persons. Upon hearing noise deceased Kishore and his uncle Himmat and cousin brother Raja Ram arrived at the spot. All accused challenged and brought weapons from their respective houses and assaulted Kishore and Himmat. The accused surrounded the deceased and the injured Himmat, due to which he could not save him (Kishore).

The above version regarding the incident and the assault by the accused persons has been corroborated by the other two eye-witnesses of the incident- P.W.4 Raja Ram and P.W.6 Himmat-, with some minor contradictions.

The submission that the above mentioned witnesses of fact are relatives of deceased, therefore, interested witnesses and their testimony is not credible, cannot be accepted on its face value because the evidence of eyewitness (relatives) is only to be viewed with caution and need not be discredited only because of relationship. Further, at this juncture, we notice that presence of interested witnesses on the spot is not only natural but the same is admitted to the defence by categorical statement that these prosecution witnesses along with Kishore opened assault on the marriage party. Further, the defence could not come out with any evidence about absence of prosecution witnesses from the scene. The presence of prosecution witnesses in the village, at the time of occurrence, could not be doubted. The very genesis of the occurrence had its seed in calling of names of the wife of Nandu's brother by Asha Ram.

The defence has set up a case that the marriage of Nathoo's daughter was to be performed on that day and marriage party had already arrived by the same bus by which Nandu had brought his brother's wife and some members of the marriage party had called her names.

Learned counsel for the appellants has submitted that in view of denial of the marriage of the daughter of Sukhe and the sister of Govinda by the prosecution witnesses deliberately and for falsely discredits the worthiness of their evidence. The above contention need not detain us for long as the above piece of evidence of prosecution witness is separable from rest of their testimony. The putrefied testimony of the prosecution witnesses is to be discarded and the piece of evidence, which is worthy of credence is to be taken into consideration.

We may note that in criminal jurisprudence principle of 'falsus in uno, falsus in omnibus' is not followed. It is true that the such part of the testimony which is inseparable form falsehood will alone be discarded.

Now, we may consider the vital aspect of the case- the place of occurrence- as suggested by the prosecution witnesses. All the prosecution witnesses have categorically stated that the occurrence took place in front of the house of accused Nathoo. In this context, we notice that blood stained earth was taken by the Investigating Officer from that place and the same was sent to the Chemical Examiner. The Chemical Examiner's Report (Exhibit Ka-15) shows presence of human blood. In so far as the place where the marriage party was staying is concerned, the same is found to be located at some short distance from the house of Nathoo. The presence of blood stained earth in front of Nathoo's house alone corroborates the assertion of the eye-witnesses that the assault was caused in front of the house of Nathoo. So far as source of light outside Nathoo's house is concerned the availability of electric light in the close vicinity has not been disputed. It is hard to imagine that no arrangement for light would be made at the house of the bride while marriage was to be performed over there.

No FIR on the part of baratis or Nathoo has been lodged regarding any assault being committed on the part of Kishore, Himmat, Nandu and Raja Ram. Therefore, the theory of snatching away lathis from Himmat, Raja Ram and Nathoo by the members of barat cannot be accepted. No member of barat has come out with any injury having been caused by these three persons. Therefore, the version regarding the incident appearing in the testimony of prosecution witnesses, is found to be worthy of credence.

It may be noticed that the injuries found on the person of Himmat are not superficial and are admitted to have been caused during the occurrence in question by the defence witnesses also. How and why the real assailants will be spared is also beyond imagination. Thus, we notice that the testimony as adduced by the prosecution witnesses inspires confidence and the same is worthy of credence and the place of occurrence happens to be the place in front of the house of accused Nathoo. Therefore, testimony of witnesses of fact P.W.4 Raja Ram, P.W.5 Nandu and P.W.6 Himmat cannot be brushed aside merely on the ground that they happen to be relatives of deceased Kishore and they are interested witnesses. We find testimony of all the eye-witnesses of fact worthy of credence on point of involvement and complicity of accused-appellants in the very commission of the offence. Hon'ble Apex Court in the case of Waman & others vs. State of Maharashtra (2011) SCC 295 has elaborated principles regarding testimony of interested witnesses and has observed that in case testimony of interested witness is found to be consistent, then there there is no reason to discard the same. A careful scrutiny of their testimony establishes veracity of their version.

It has been urged on behalf of the appellants that assuming it to be that the accused caused assault even then the case is not covered under Section 302 IPC instead the assault may be termed as assault without any pre-meditation and as an outcome of sudden development and may be confined at the most within the periphery of Section 325 and 304 part 2 IPC.

The contention so raised is not acceptable for the reason that the nature of the injuries caused on the deceased Kishore tell otherwise. Head of deceased Kishore was the center of attack. Serious injuries have been caused on the scalp of deceased. In view of above, the assault made is covered under Section 302 IPC. Further assault made on the person of Himmat cannot be said to be superficial because view of Dr. Hariom P.W.1, that these injuries may be caused by use of 'lathi' and 'luhangi' has not been challenged by the defence. Thus, unchallenged testimony as given by both the doctors corroborates version of injury caused on the person of injured Himmat and the deceased Kishore.

In so far as testimony of prosecution witnesses of fact (P.W.4, P.W.5 and P.W.6) is concerned it can be observed that there are contradictions in their testimony but the contradictions, on the face, are trivial and natural in ordinary course, which do not hit to the root of prosecution case.

In so far as the point of common object is concerned, it is obvious from the testimony on record that a joint assault was made by a group of at least eight persons, who have been specifically named in the first information report and the forthcoming evidence in that regard proves intention and object of the accused to commit the crime. In such specific circumstance, we find flow of common object shared by each one of the accused while committing the offence. Relevant to mention that Kishore is stated to be aged 60 years in the post-mortem examination report, Exhibit Ka-2. Therefore, vital blow on scalp of a person aged 60 years is by itself ample proof of the intention of the accused, who formed group of assailants. Therefore, common object in committing the murder on the part of the accused is very well established in this case. We may observe that presence of common object is to be inferred and gathered from the testimony that is appearing in a case and particularly from the conduct of the accused persons.

In view of above prolix discussion, we observe that there does not appear any apparent or inherent infirmity in the finding of conviction recorded by the trial court and consequently the sentences imposed on the accused persons.

Accordingly, appeal is dismissed.

Accused appellants are on bail. Their personal bonds and security bonds are cancelled and sureties are discharged and they will be taken into custody forthwith by the trial court for serving out sentences awarded against them.

Let copy of this order be certified to the learned trial court for necessary compliance and follow up action.

Dt.19th September, 2014

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