Bhagwan Din vs State
2015 Latest Caselaw 5599 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 

 
Case :- JAIL APPEAL No. - 5325 of 2005
 

 
Appellant :- Bhagwan Din
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Amit Tripathi,Deba Siddiqui,R.N.Singh,S.D. Yadav
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Arvind Kumar Tripathi,J.

Hon'ble Arvind Kumar Mishra-I,J.

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

Present criminal appeal has been preferred by appellant Bhagwan Din (wrongly spelt out as Bhagwan Dei) R/o Garhi, Police Station- Narwal, District Kanpur Nagar against judgment and order of conviction and sentence dated 29.1.2003 and 30.1.2003 passed in Sessions Trial No.1648 of 1997, under Section 302/34 IPC, Police Station Narwal, District Kanpur Nagar arising out of Case Crime No. 103 of 1997 passed by Additional Sessions Judge, court no.12, Kanpur Nagar, whereby the appellant has been sentenced with life imprisonment along with fine of Rs.10,000/-, in case of default, the appellant will suffer additional imprisonment for one year.

Facts giving rise to this appeal are that Jahari Devi wife of Prasad Dobhi, R/o Garhi, Police Station- Narwal, District Kanpur Nagar lodged a written report at police station to the effect that her son Chottey Lal was sleeping in his room on cot along with his wife Soni and daughter Nanhi. A lamp was burning in the room. The first informant was sleeping under a thatched roof (Chapper) along with grand-daughter Kiran. All of a sudden some shriek was heard and she (informant) saw his son Chottey Lal running out from the house upto the house of Kallu where he fell down, in the meanwhile, naati (grand-son) of complainant Bhagwan Din and Suresh, both sons of late Dhani Ram bearing knife in their hands were also seen running away towards the western side. First informant's son Chottey Lal had performed second marriage with Soni six months prior to the incident from Gaya (Bihar). His first wife had died 10 years ago. Wife of Bhagwan Din had also expired six to seven months before and Bhagwan Din wanted to enter into wedlock with Soni as such he was aggrieved with the marriage of Chottey Lal with Soni. It was due to above reason that Bhagwan Din and Suresh murdered Chottey Lal by assaulting him with knife on his neck. The incident was witnessed by informant's grand-daughter Kiran and Nanhi and by her daughter-in-law in the light of lamp placed in niche. It was also alleged in the first informant report that the first informant is an old lady. It was raining. Report be lodged and action be taken. This report was lodged at police station Narval on 1.9.1997 at 11 a.m. at Crime No. 103 of 1997, under Section 302/34 IPC, thereafter investigation took place. During investigation the investigating officer prepared various memos relating to the blood stained piece of pillow and towel, which are Exhibit Nos.-12 and 13, respectively. The Investigating Officer also prepared memo of lamp (diya), which was allegedly burning inside the room in the niche. The memo of the same is Exhibit Ka-14. The inquest report was also prepared by the Investigating Officer and after preparing relevant papers regarding deceased Chottey Lal, his body was sent for postmortem examination, whereupon postmortem examination on the dead body of Chottey Lal was conducted on 2.9.1997 at 12.30 p.m in U.H.M. Hospital Kanpur by Dr. A.K. Nigam. In the postmortem examination following ante-morem injuries was found:-

Stabbed wound (incised) 1.5 cm x 0.5 cm x 9 cm deep going obliquely downwards medially (backward) and towards left side. On the right side of neck 1 cm above the medial end of clavicle horizontal.

In the opinion of the doctor cause of death was shock and haemorrhage due to ante-mortem injuries. This postmortem examination report is Exhibit Ka-4 on record.

The report of Vidhi Vigyan Prayogshala regarding presence of blood on piece of pillow etc. is Exhibit Ka-16 and Exhibit Ka-17, respectively. The I.O. also prepared site plan of the place of occurrence and recorded statement of witnesses.

After completing investigation the I.O. filed charge-sheet against the appellant under Section 302/34 IPC. The charge was read over and explained to the appellant who denied the charge and opted for trial.

Thereafter the case of the appellant was committed to the court of Sessions for trial from where it was made over for trial to the Additional Sessions Judge XIIth, Kanpur Nagar, who after hearing the appellant and the prosecution on the point of charge found prima facie ground existing for framing charge under Section 302/34 IPC. Consequently, he framed charge under aforesaid Section of IPC on 21.11.1997. Thereafter the prosecution was asked to produce its witnesses. The prosecution in all produced seven witnesses. P.W.1 Nanhi is the eye-witness and daughter of deceased Chottey Lal. She has narrated about the incident. P.W.2 Smt. Jahari Devi, is the first informant. She has proved the written report as Exhibit Ka-1 before the trial court. She also claims to be an eye-witness of the incident. P.W.3 is Constable Rakesh Kumar. He testified about preparing the Chik report and making GD entry in his capacity as Constable of the concerned police station- Narval as Exhibit Ka-2 and Ka-3, respectively. P.W.4 is Constable Sushil Kumar. He has testified regarding fact for sending the dead body for postmortem examination to the hospital. He has also proved the inquest report. P.W.5 is witness Kiran. She is also an eye-witness of the incident and she is stated to have been sleeping with her grand-mother (informant) under thatched roof (chhapper) in the intervening night of the incident. P.W.6 is Dr. A.K. Nigam, who conducted the postmortem examination on the dead body of Chottey Lal and has proved the same as Exhibit Ka-4. P.W.7 Sri Sagir Ahmad is the Investigating Officer. He has proved the various steps taken by him in completing the investigation and has proved relevant papers as Exhibit Ka-6 to Ka-16 and has filed the charge-sheet. Thereafter evidence for the prosecution was closed and the statement of the accused appellant Bhagwan Din was recorded under Section 313 Cr.P.C., wherein he has stated to have been falsely implicated on ground of enmity.

The defence did not lead any evidence.

We have heard respective submissions of both the sides and perused the record.

Learned counsel for the appellant submitted that in this case the prosecution has not been able to prove its case and no one infact saw the incident. There was no occasion and motive for the appellant to commit murder of Chottay Lal and there was no such idea like the one to arrange marriage with Soni for the appellant. The only witness Nanhi is alleged to be the eye-wtiness of the incident but she is child witness of tender years and was around 9 to 10 years of age at the time of incident and her testimony is on the face tutored one, contradictory and improving all the time. Similar is the position with the other prosecution witnesses of fact- say- Jahari Devi P.W.2- the first informant and Kiran P.W.5. Stress has been made on point that no blood stains have been found on the spot. The alleged spot of incident is changed. Had the incident taken place inside the room then blood stains must have been found over there and on the wall of the room but from the place of occurrence upto the house of Kallu no blood stains were discovered by the Investigating Officer. In such backdrop of facts, it is obvious that the deceased was killed by some unknown persons at some unknown place and his body was taken back home and the appellant was falsely implicated in this case on the ground of false motive. The very motive suggested in the first information report against appellant being wish to marry Soni is weak and not proved. The FIR is delayed.

Learned AGA has while refuting contention raised on behalf of the appellant submitted that the case of the prosecution has been proved beyond reasonable doubt. The testimony of the eye-witness particularly P.W.1 Nanhi is most natural and creditworthiness of the same cannot be minimized in the facts and circumstances of the case, as the witness was strenuously cross-examined by the defence. To say that P.W.1 Kumari Nanhi was a child witness is not fair in this case, because the learned trial court after examining the capacity of the child witness and her mental capacity to understand question put to her recorded specific finding that the witness was competent as she intelligently understood the questions put to her and she was able to answer to the same in a reasonable manner. The entire evidence taken as a whole proves the case of the prosecution. The very motive for committing the crime itself is not weak but sufficient to commit the crime so imputed. In so far as the blood stains are concerned it is obvious that it was raining at that point of time when the incident took place and because of this there is every possibility of soil being swamp and marshy may dilute the very blood stains and soak it in rainy season. To show that first information report is anti-timed is absolutely without any base because incident in question took place in the night intervening of 31.8.1997/1.9.1997 and the distance of the place of occurrence from the police station is about 9 kilometers and the complainant was an old lady and explanation has been given that due to rain the report could not be lodged earlier than 11 a.m. on 1.9.1997. More so, lapses committed by the Investigating Officer or police personnel shall not throw away case of the prosecution if the testimony in regard to commission of the crime is consistent and inspiring confidence. Appeal is liable to be dismissed.

On the basis of above rival submission the core consideration that arises for adjudication of this appeal relates to fact as to whether the prosecution has been able to prove its case against appellant Bhagwan Din beyond reasonable doubt and the conviction and sentence is based on material on record and is justified under the facts and circumstances of the case?

In this view of the matter, very perusal of the first information report Exhibit Ka-1 itself reflects that the report was lodged at police station Narval relating to fact that informant's son deceased Chottey Lal was sleeping on a cot inside his room along with his wife Soni and daughter Nanhi and a lighted lamp was also placed in the niche inside the room. The informant was also sleeping under a 'chhapper' infront of the door along with her grand-daughter Kiran. All of a sudden a shriek was heard and informant's son Chottey Lalj was seen rushing out of the house and running upto the house of Kallu where he fell down. In the meanwhile, appellant Bhagwan Din along with Suresh wielding knife in their hands were sighted at the spot. They fled away from the place of occurrence. The very motive imputed in the first information report relates to fact that the deceased had wedded with one Soni six months prior to the incident. His first wife had died 10 years ago. Accused Bhagwan Din wanted to marry Soni hence was annoyed and aggrieved with Chottey Lal, because he (deceased) got married with Soni. As per version of first information report knife blow was given on the neck of the deceased, due to which he died. The incident was allegedly witnessed by grand-daughter Kiran and Nanhi and daughter-in-law of the first informant in the light of lamp. It was raining at that point of time. The informant submitted that she being old lady could not come to lodge the FIR promptly because of rain.

The Investigating Officer has prepared memo of piece of towel and pillow on which the dead body was placed after the alleged murder. The Investigating Officer also prepared memo of bottle shaped lamp. As per the postmortem report a stabbed wound (incised) of dimensions 1.5. cm x 0.5. cm x 9 cm deep was found on the neck of the deceased. The death in question is admitted to both the sides. However, centre of controversy relates to fact as to who was the author of fatal blow caused on the neck of deceased due to which he died.

As per the statement of the appellant recorded under Section 313 Cr.P.C., he has been falsely implicated in the case on ground of enmity. It is obvious that as per testimony of the first informant say P.W.2 Jahari Devi, the accused appellant happens to be her close relative and grand son (naati). Therefore, there cannot be apparently any intent on her part to falsely implicate the accused in this case instead of the real culprit. In this context, the core consideration appears to be the alleged happening- that is to say- causing of fatal assault on the neck of the deceased. In this context, eye-witness account of the incident has been testified in Court by P.W.1 Nanhi, daughter of deceased Chottey Lal. At that point of time when her testimony was recorded, she was about 11 years old. The trial court before examining this witness has also asked several questions to test her intelligence/capacity to be an witness and has, after some questions and answers found the witness competent, which fact cannot be doubted as per the answers given by the witness before the trial court. It is obvious that Nanhi P.W.1 is competent witness. In her testimony this witness has testified that the incident relates back to two years around 1 a.m. in the night. This witness was sleeping inside the room with her father (deceased) and mother. A lamp (diya) was burning inside the room. Some rattling sound woke her up and she saw Bhagwan Din and Suresh entering into the room from its rear wall, which was damaged. Suresh asked Bhagwan Din to kill otherwise Chottey Lal (deceased) will escape. Bhagwan Din at that point of time assaulted deceased on his neck with his knife, whereupon deceased raised alarm and rushed outside the room ran to some extent and fell down in front of Kallu's door. Suresh and Bhagwan Din made their escape good after jumping over the damaged rear wall. This witness has also stated that at that particular point of time when the incident took place, it was raining. This witness has been cross-examined by the defence, wherein she has confirmed to what she has stated in her examination-in-chief. However, she has also stated in her cross-examination that her mother Soni is not her real mother, her real mother died about 10 years ago and her father Chottey Lal later on married Soni. Marriage of Chottey Lal with Smt. Soni took place five to six months prior to this incident. She has also stated in her cross-examination that appellant had covered his face with a towel but she identified Bhagwan Din the appellant. She has also stated that Bhagwan Din gave only one knife blow to her father. She has also stated that the blood stains were made on the way covered by his father while he rushed out of room upto Kallu's door after the knife blow was given. However, argument has been advanced by the learned counsel for the appellant that no such blood stains or blood marks have been discovered by the Investigating Officer, therefore, the witness cannot be set to have seen the incident.

Learned AGA has also pointed out that it is admitted case that incident took place while it was raining and mud surface will become a bit swampy and there is strong possibility that it may soak and dilute blood stains (in rainy season). Therefore, possibility of disappearance of blood stains on the surface is very much natural. This witness has been strenuously cross-examined but nothing irrelevant or immaterial of such magnitude has surfaced, which may show that the witness was neither present on the spot nor telling the truth. Presence of this witness (P.W.1) at the spot is natural and same cannot be doubted. It has come innocuously in her testimony that Bhagwan Din assaulted the deceased on his neck with his knife and gave single blow, which infact caused his death. Rest of the prosecution witnesses, say P.W.2 Jahari Devi and P.W.5 Kiran Devi are not the witnesses of fact of assault being made inside the room. However, they are witnesses of fact that they saw Bhagwan Din and Suresh on the spot while they were leaving the room. Their testimony on the whole is believable, under the facts and circumstances of the case. These two witnesses have corroborated version of P.W.1 even in their cross-examination. These two witnesses P.W.2 Jahari Devi and P.W.5 Kiran Devi have also testified to the extent that when deceased came outside the room, he ran upto the door of Kallu where he fell down and died. As discussed above, there is no point for the first informant to falsely implicate her own grand-son in this murder and allow the real assailant to go unpunished. Even the doctor witness P.W.6 Dr. A.K. Nigam, who conducted postmortem examination, has also testified that the injury as on the neck of the deceased could have been caused around 12 mid night to 1 a.m. This kind of injury can be caused while person/deceased is standing or in sleeping posture. This doctor witness has specifically stated that this injury cannot be caused in the morning of 31.8.1997, but it can be caused in the morning of 1.9.1997 around 4 to 5 A.M. Therefore, from the testimony of doctor also the possibility of assault being caused on the neck is reasonably established. Theory of one blow on the neck if amply born out by the post-mortem report (Ext. Ka-4).

In so far as other points regarding manner and style of investigation being done by the Investigating Officer is concerned, the same will not on account of some irregularity by itself throw away the prosecution version, which otherwise is strengthened by inspiring testimony of the prosecution witnesses of fact carrying weight in its entirety vis-a-vis circumstances. There is no such adverse circumstance either brought on record or so inferable from attending circumstances, which may give clue to suggestion that the deceased was killed by some unknown persons and his body was thrown away and the same was brought back home by the complainant side. The innocuous testimony of P.W.1 Nanhi regarding the manner of assault is inspiring and creditworthiness of the same becomes innocuous in the sense that the presence of this witness (P.W.1-Nanhi) on the spot is very much natural. No unnatural conduct has been assigned to this witness and possibility of this witness being tutored for false implication of her own cousin brother cannot be reasonably believed in this case. There is no motive for false implication. The complainant side was not going to extract any advantage by falsely implicating Bagwandin, who happens to be grand son of complainant- Jahari Devi.

In so far as the site plan Exhibit Ka-11 is concerned, this also depicts the correct position. The place where Chottey Lal was sleeping on cot was marked by letter 'X' and on the same place, he was assaulted by the appellant. Place shown by letter 'A' inside the room is the place where Smt. Soni and Nanhi were sleeping on the cot. Place 'L' has been shown as the place where the illuminated lamp was kept in the niche. Similarly the other places have also been shown like the place where the first informant along with grand daughter Kiran was sleeping. The path (way) followed by the deceased while running away from the scene after the assault was caused, has also been marked by arrows and the place marked by 'F' indicates the place where the deceased fell down and died. The site plan has also been proved by the Investigating Officer P.W.7 S.I. Sagir Ahmad. The pieces of blood stained pillow and its scientific report also tallies with the description of prosecution and the same is Exhibit Ka-16 and Ka-17 on record. The very motive alleged for commission of the crime, under the facts and circumstances of the case is very much established and the same cannot be said to be weak motive for the reason that Bhagwan Din was willing to marry Soni, who was got married by the deceased Chottey Lal. It appears that Bhagwan Din out of above reason and jealously assaulted Chottey Lal in the intervening night of 31.8.19976/1.9.1997 around 1 a.m., which assault on the neck proved fatal and consequently he died. The prosecution has been able to successfully bring home the charge against the appellant under Section 302 IPC. The trial court has also taken note of entirety of the evidence under the facts and circumstances of the case and has recorded just finding of conviction and sentence.

It is settled principle of criminal jurisprudence that in all such cases where the prosecution has proved any charge beyond reasonable doubt by cogent and clinching evidence then finding of conviction will be the natural outcome, as is the case in hand.

In this view of the matter, appeal lacks force and is accordingly, dismissed. The appellant is in jail. He will serve out the remaining period of sentence for life imprisonment.

Dt.21st December, 2015

RK