Ram Khelawan Yadav vs State Of U.P.
2016 Latest Caselaw 3006 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
AFR
 
Case :- CRIMINAL APPEAL No. - 683 of 2014
 
Appellant :- Ram Khelawan Yadav
 
Respondent :- State Of U.P.
 

 
Hon'ble Arvind Kumar Mishra-I,J.

The instant jail appeal has been preferred at the instance of the appellant Ram Khelawan Yadav from District Jail, Pratapgarh against the judgment and order of conviction dated 11.12.2013 passed by Special/Additional Sessions Judge, Pratapgarh in Sessions Trial No.457 of 2011, under Sections 302, 309 IPC arising out of Case Crime No.133 of 2011, Police Station Manikpur, district Pratapgarh, whereby the appellant has been convicted and sentenced to 7 years rigorous imprisonment with fine of Rs.5000/- under Section 304 (2) IPC, in case of default, he will have to suffer one year additional imprisonment. Appellant has been acquitted of charge under Section 309 IPC.

Heard Sri Dheeraj Srivastava, amicus curiae for the appellant and Sri S.A.M. Zaidi, learned AGA for the State and perused the record.

Prosecution story, as reflected from record appears to be that Vimla Devi wife of Rajesh Kumar Yadav, lodged a written report at Police Station Manikpur, District Pratapgarh on 23.4.2011 to the effect that today i.e. 23.4.2011 at about 11:30 a.m., her father-in-law Jagdish Prasad Yadav was carrying wheat stack on his head from agricultural field to his home. As soon as he reached in front of house of Ram Khelawan Yadav on road, suddenly Ram Khelawan Yadav appeared on the scene possessing farsa (axe like weapon) in his hand and assaulted with it her father-in-law Jagdish Prasad Yadav on his right leg below knee. On alarm being raised, Ram Khelawan Yadav fled away inside his home. Having seen a good number of people who had arrived on the spot, he consumed poison standing on the doorstep of his house. Report be lodged and action be taken. This written report is Exhibit Ka-1 on record.

The entry of Exhibit Ka-1 was taken down in the Check FIR at Crime No.133 of 2011, under Sections 324, 309 IPC at Police Station Manikpur, district Pratapgarh at 12.15 P.M. on 23.4.2011. Check FIR is Exhibit Ka-7. On the basis of above entry case was registered at Report No.22 of General Diary dated 23.4.2011 at 12.15 P.M. at Police Station Manikpur at case crime no.133 of 2011, under Sections 324, 309 IPC against accused-appellant. Copy of the same is Exhibit Ka-8 on record.

Thereafter, it is so reflected that the injured was taken to the hospital from where he was referred to Allahabad and on way to hospital, the injured scummed to his injuries. Consequently, on information being received at the police station, Section 304 IPC was also added in the aforesaid crime number vide Report No.30 of General Diary dated 23.4.2011 at 6.30 P.M. at Police Station Manikpur. Copy of this General Diary is Exhibit Ka-9 on record.

The investigation followed and inquest report was prepared. Preparation of inquest report commenced at 7.30 P.M. and was completed at 9 P.M. on 23.4.2011. The inquest report is Exhibit Ka-2 on record. Relevant papers were prepared for sending the dead body of the deceased for postmortem examination. Letter to R.I. is Exhibit Ka-10. Letter to C.M.O. is Exhibit Ka-11. Photonash is Exhibit Ka-12. Police Form-13 is Exhibit Ka-13. Specimen seal is Exhibit Ka-14. Thereafter postmortem examination on the dead body of deceased Jagdish Prasad Yadav was conducted on 24.4.2011 at mortuary, Pratapgarh at 3.50 P.M., wherein the following ante-mortem injuries were noted:-

AMI;- 1. Deep lacerated wound on right leg posterior side (calf muscles vessels lacerated and visible) (middle portion of right leg) about circumference of leg lacerated 4 cm deep. Febula bone of right leg fractured.

2. Abrasion right knee 1x1 cm (ant. side).

3. Abrasion left knee 1x1 cm (ant. side)

In the opinion of doctor, cause of death was shock and haemorrhage as a result of ante-mortem wound as shown in the A.M.I. The duration was said to be about one day. Dr. Israr Ahmad P.W.5 has proved the postmortem report as Exhibit Ka-6 on record.

During course of investigation, the appellant was arrested and after his arrest recovery of farsa (axe like weapon) was made on 24.4.2011 at his pointing out from his house. Recovery memo is Exhibit Ka-3. During investigation one bottle of insecticide was also recovered from the house of appellant on 24.4.2011. Recovery memo was prepared, which is Exhibit Ka-4.

Investigating Officer also took simple and blood stained soil from the place of occurrence on 24.4.2011 and prepared a memo of the same, which is Exhibit Ka-5 on record.

The Investigating Officer also prepared site plan of the occurrence, which is Exhibit Ka-15 on record. After completing investigation, charge-sheet Exhibit Ka-16 was filed against appellant Ram Khelawan Yadav.

Consequently, the case was committed to the court of Sessions from where it was transferred to the court of Additional Sessions Judge/Special Judge, Pratapgarh for disposal. The appellant was heard on point of charge and prima facie ground was found existing for framing charges under Sections 302 and 309 IPC. Charges were read over and explained to the accused, who denied the same and opted for trial. Prosecution was asked to produce its testimony whereupon eight witnesses were produced by it. Brief sketch of the same is as here under:

Smt. Vimla Devi P.W.1 is the first informant and claims to be an eye-witness of the incident.

Manoj Kumar Yadav P.W.2 also claims himself to be an eye-witness of the incident.

Dinesh Kumar Yadav P.W.3 is the witness of inquest report and has proved the same as Exhibit Ka-2.

Bhaiya Lal P.W.4 is witness of fact that he also arrived on the spot when the incident took place.

Dr. Israr Ahmad P.W.5 has conducted autopsy on the dead body of Jagdish Prasad Yadav on 24.4.2011 and has proved postmortem report Exhibit Ka-6.

Constable Shravan Kumar Pandey P.W.6 has made relevant entries in the Check FIR, concerned General Diary- whereby the case was registered against the appellant and entry in General Diary regarding addition of Section 304 IPC in Case Crime No.133 of 2011 and has proved the same as Exhibits Ka- 7, Ka-8 and Ka- 9, respectively.

S.I. Ram Kedar Pandey P.W.7 has prepared the inquest report and has conducted the investigation of this case and has also prepared the relevant papers for sending the dead body (of Jagdish Kumar Yadav) for postmortem examination and has proved certain papers Exhibit Ka-10 to 14.

Satendra Singh Pawar P.W.8 is the Investigating Officer of this case and has proved various steps for completing investigation besides proving certain material exhibits from 1 to 6.

Thereafter evidence for the prosecution was closed and statement of accused was recorded under Section 313 Cr.P.C., wherein he termed his implication false due to enmity and submitted that the witnesses belong to the same family and they are interested witnesses.

After hearing both the sides on merit, learned trial court convicted the appellant and passed aforesaid sentence for 7 years R.I. coupled with fine of Rs.5000/- and in case of default, the appellant was directed to suffer additional one year imprisonment.

Consequently, this appeal.

It has been vehemently contended that all the prosecution witnesses of fact are interested one and the complainant side wants to grab property of the appellant by falsely implicating him in this case. It appears that some unknown person has committed the offence, who remained untraced. The very injury and particularly injury no.1, which has been described in the postmortem report, cannot be caused by farsa (axe like weapon), because the injury caused would be incised wound and not lacerated wound. This fact exclusively suggests that the so called eye-witness Vimla Devi P.W.1 was neither present nor did she witness the incident. There was no motive whatsoever assigned in the first information report for committing the crime. Even names of witnesses have not been mentioned in the first information report.

Sri S.A.M. Zaidi, learned AGA has in reply submitted that the circumstances and testimony of witnesses is clinching, consistent and inspires confidence. Doctor witness Israr Ahmad P.W.5 has proved the nature of injury and he has been cross-examined by the defence, wherein possibility of this sort of injury being caused by such weapon has not been ruled out. No such specific question was put to doctor witness on this point. Testimony of witnesses of fact-particularly of P.W.1 and P.W.2 corroborates the nature of injury and to say that the eyewitnesses were not present on the spot is nothing but an evasive contention not supported by circumstances and testimony on record. The presence of prosecution witnesses on the spot is natural and their version regarding the incident inspires confidence. The weapon used for committing the offence has also been recovered at the pointing out of the appellant from inside his house under a cot. The trial court has taken consistent view of the whole testimony on record and has recorded just finding of conviction, which need no interference.

Also considered above submissions.

After considering the allegations made in this case against the appellant in the first information and the rival submission the moot point for adjudication of this appeal becomes confined to fact whether the incident was caused by the appellant or by some one else and whether the prosecution has been able to prove beyond reasonable doubt its case against the appellant?

On bare perusal of the first information report, it is reflected that a report was lodged at police station Manikpur at 12.15 P.M. with accusation of specific assault by 'farsa' by the appellant. The distance from to the place of occurrence to the police station is stated to be five kilometers. The incident took place at 11.30 A.M. Obviously, the lodging of the report is prompt. As per contents of first information report, it has been alleged that the incident took place at 11.30 A.M. on 23.4.2011 when deceased Jagdish Prasad Yadav, who was carrying wheat stack on his head and was coming from his agricultural field back home when the incident took place. As soon as the deceased reached infront of Ram Khelawan's house on the road, Ram Khelawan appeared on the scene, suddenly possessing farsa (axe like weapon) in his hand and assaulted the deceased on his right leg below knee. Alarm was raised, whereupon a number of people arrived on the spot. Ram Khelawan Yadav ran away inside his house then appeared on his door and consumed the poison. The first informant Vimla Devi went to the police station along with the injured for lodging the first information report.

In view of such allegations, testimony of eye-witnesses is to be scrutinized in order to arrive at just conclusion. In this regard the star witness appears to be the first informant Smt. Vimla Devi P.W.1, who claims herself to be an eyewitness and has stated in her examination-in-chief that Jagdish Prasad Yadav was his father-in-law. Incident occurred at 11.30 A.M. on 23.4.2011. At that point of time, her sister-in-law (devrani) Reena Devi, her brother-in-law Manoj Kumar Yadav, mother-in-law Prema Devi were carrying wheat stack from their field back home. As soon as deceased reached in front of Ram Khelawan's house she saw Ram Khelawan Yadav on the scene possessing farsa (axe like weapon) and he assaulted with the same her father-in-law on his right leg due to which he fell down. On alarm being raised, the appellant ran away inside his house and stood on the door of his house by holding one bottle in his hand and saying that he will consume this poison and will implicate all of them. She further stated that she went to the police station along with her father-in-law Jagdish Prasad Yadav and got scribed report with his brother Rajkumar and handed over the same at the police station. She has also stated that the accused is real 'Mausa' of her father-in-law. Deceased had given some land to accused Ram Khelawan Yadav for constructing house, but the appellant tried to sell out the same and when asked not to sell the same the accused became abhorrent towards her father-in-law. She has also stated that after the incident and after about three hours (of the incident) her father-in-law succumbed to his injuries while on way to hospital. She has been cross-examined at length, wherein many a number of questions have been put to her. She has specifically stated that she witnessed the incident. The occurrence took place within two minutes and she remained present at the place of occurrence for about five minutes and thereafter Jagdish Prasad Yadav was taken to police station by Marshal jeep. She took Jagdish Prasad Yadav to police station in Marshal Jeep and she was accompanied by her dever Manoj Kumar, uncle Dinesh Kumar Yadav and her brother Rajkumar also. She also stated that after her report was lodged at police station Manikpur she went to Kunda Hospital. At Kunda Hospital when the doctors found the case serious one, they referred injured Jagdish Prasad Yadav for Allahabad. She has also stated on page-6 of her cross-examination that after the incident the accused remained present at his house. When the police came, then he was arrested. She has denied suggestion that Ram Khelawan Yadav did not cause assault on Jagdish Prasad Yadav- the deceased. She has also stated on page-7 that she saw Ram Khelawan Yadav first time coming out of his house possessing farsa (axe like weapon). She raised alarm and in the meanwhile, Ram Khelawan Yadav caused assault on the leg of her father-in-law Jagdish Prasad Yadav. After the assault was caused her father-in-law became unconscious. Blood oozed out in plenty from the wound. This area was bandaged by tightening the wound with 'lungi' of her father-in-law. The 'lungi' was socked with blood. On page-9, she has stated that while on way to Allahabad, her father-in-law expired near Lalganj, thereafter they returned home. Further, she has stated that police arrived on the spot after she arrived at home with the dead body.

Similarily, Manoj Kumar Yadav, the son of deceased Jagdish, who was also carrying wheat stack at that point of time, claims to have witnessed the incident but perusal of his testimony on the whole reflects that he arrived on the spot a little later when the appellant was holding bottle in his hand on his door because there are certain contradictions appearing in his statement given to the Investigating Officer. However, his presence on the spot at that point of time is very much proved and his description from this stage onwards finds corroboration from testimony of P.W.1-the first informant.

Investigating Officer has also proved preparation of site plan Exhibit Ka-15 at the instance of the first informant. The place where assault was caused has been marked by word 'X' and similarly place marked by 'A' is the place where the appellant assaulted the deceased and tried to give second blow by farsa (axe like weapon). Mark shown by words 'B' and 'C' are the places from where the witnesses saw the incident. The place marked by word 'D' is the door of Ram Khelawan's house where he is stated to have consumed poison from bottle. The place marked by single arrow is the path way, followed by the deceased Jagdish Prasad Yadav and the place marked by double arrows indicates passage of the appellant from his house upto the spot (of occurrence) and then back to house. This site plan also confirms the version of the first informant Vimla Devi P.W.1 and no anomaly is discovered.

Relevant to mention that the recovery of farsa (axe like weapon) has been proved by the Investigating Officer Satyendra Singh Pawar P.W.8. He has stated specifically that on 24.4.2011 recovery of farsa (axe like weapon) was made from the house of arrested accused Ram Khelawan Yadav at his pointing out, which contained blood stains. The shirt, underwear and vest of deceased was sent for chemical examination at Vidhi Vigayan Prayogshala, Lucknow along with simple and blood stained soils and the farsa (axe like weapon) was examined and a report dated 30.3.2012 was submitted. This report has been placed on record of lower court as Paper No.24-Ka-2, which reflects that all the aforesaid items were containing blood. Therefore, fact of recovery of farsa (axe like weapon) at the pointing out of appellant is also established against the appellant.

In so far as the ante-mortem injuries on the body of the deceased are concerned, all the three ante mortem injuries have been noted on the leg of the deceased. Injury No.1 was serious i.e., deep lacerated wound on right leg posterior side (calf muscles vessels lacerated and visible) (middle portion of right leg) about circumference of leg lacerated 4 cm deep. Febula bone of right leg fractured. Abrasion right knee 1x1 cm (ant. side). Abrasion left knee 1x1 cm (ant. side).

Contention has been raised that farsa (axe like weapon) being edged weapon, lacerated wound will not be caused by its use and injury caused by farsa (axe like weapon) will always be incised wound.

In this context testimony of Dr. Israr Ahmad is quite relevant. Doctor witness has proved the postmortem report, which is Exhibit Ka-6 and has proved all the ante-mortem injuries on the deceased and has stated that the deceased died due to shock and haemorrhage as a result of ante-mortem injuries. He has stated in his cross-examination that injury no.1 was deeply lacerated wound, therefore, he did not mention length and width of this wound and this wound cannot be caused by fall of the deceased on stone. This is worth mentioning that not a single question has been put to doctor on point whether injury no.1 as noted in the postmortem report cannot be caused by use of farsa (axe like weapon). It cannot be suggested that in case blow is given by farsa (axe like weapon), then in all eventuality, the wound would be incised wound. It depends on the condition of edge and its roughness and its angle when the weapon touched the affected surface of the body. It heavily depends on the angle of the weapon, causing such blow. Therefore, possibility of ante-mortem injury no.1 being caused on the deceased on his right leg, by farsa cannot be ruled out, instead fact of causing such wound is proved consistently by the testimony of at least Vimla Devi P.W.1-the eyewitness.

Presence of the witnesses of fact and particularly Vimla Devi P.W.1 on the spot is most natural and her testimony is innocuous, giving each detail of the incident and she is the first informant and there is no plausible reason to hold that she, instead of naming the real culprit, would spare him and will name the appellant falsely in the first information report.

Recovery of farsa (axe like weapon) very much corroborates version of Vimla Devi P.W.1. The incident is consistently proved not by the testimony of Vimla Devi P.W.1 but also by the attending circumstances. However, the motive for committing crime has been shown to be grudge of appellant towards deceased because he was against sale of land. The accused on being asked not to sell out the land became abhorrent towards the deceased and that alone was the prime reason for causing the assault. P.W.1 has specifically stated that apart from above there was no any other dispute between the deceased and the appellant. More so, in the presence of eye-witness account of the occurrence motive becomes insignificant.

The learned trial court has justifiably weighed entire evidence and looking to the nature of the offence confined the same to Section 304 part II IPC instead of convicting the accused under Section 302 IPC. Finding of conviction so recorded by the trial court under Section 304 part II of the Indian Penal Code is just and consistent.

For the reasons aforesaid, it is obvious that the prosecution has been able to prove its case beyond reasonable doubt against the appellant and the trial court has taken holistic view of the case and has recorded conviction based on record and accordingly imposed just sentence (on the appellant).

The judgment and order of conviction dated 11.12.2013 passed in S.T. No.457 of 2011 arising out of Case Crime No.133 of 2011, Police Station Manikpur, district Pratapgarh, is hereby affirmed.

Consequently, this appeal being devoid of merit is hereby dismissed.

Appellant is in jail. He will serve out the remaining part of the sentence as ordered by the learned trial court.

Let a copy of this order be certified to the learned trial court for its intimation and necessary follow-up action.

Dt.26th May, 2016/

RK