Ram Pal And Others vs State Of U.P.
2016 Latest Caselaw 5747 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Judgment Reserved on 22.08.2016
 
Judgment Delivered on  08.09.2016 
 
AFR
 

 
Court No. - 18
 

 
Case :- CRIMINAL APPEAL No. - 246 of 1998
 

 
Appellant :- Ram Pal and others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- M.L.Syal,P.K. Singh,Param Shankar (Amicus Curiae)
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Anil Kumar,J.

Hon'ble Anil Kumar Srivastava-II,J.

(Per Anil Kumar Srivastava-II, J)

(1) Heard Sri Param Shankar, Amicus Curiae on behalf of the accused-appellants and Sri Sharad Dixit, learned AGA for the State.

(2) Instant criminal appeal has been preferred by the accused-appellants Rampal, Munshi, Sri Krishana and Surendra challenging the judgment and order dated 27.3.1998 passed by Special Judge (E.C. Act)/ Additional District and Sessions Judge, Hardoi in Session Trial No.14 of 1996, arising out of Case Crime No. 267 of 1995, under Section 302/307 IPC, Police Station Pihani, District Hardoi convicting and awarding them imprisonment for life under Section 302/34 IPC, they have been further convicted and sentenced to three years' R.I. under Section 308/34 IPC.

(3) According to the prosecution version, complainant Sri Prakash lodged an FIR at Police Station-Pihani, District-Hardoi on 19.10.1995 at about 19.15 hours alleging that Sukhai and Chhatai were the real brothers. Sukhai was physically disabled so he was not able to look after his field. As such, the work to look after the field had been entrusted to accused who were son of brother of Sukhai. On 18.10.1995 Ramkali wife of Sukhai, had got the field ploughed through Prabhu, as a result of which the accused got annoyed. On 19.10.1995 at about 6.00 PM, accused Munshi armed with Ballam, Rampal, Sri Krishna and Surendra armed with lathi came to the house of Ramkali and started beating her in front of the house. On raising alarm by Ramkali, brother of the complainant Prabhu along with Rajendra, Chhannoo son of Radhey Shyam and Sitaram son of Bhagwati Dhobi and others residents of the same village/muhalla reached at the spot Prabhu in order to rescue Smt. Ramkali firstly reached the spot. When Prabhu tried to rescue Smt. Ramkali then he was beaten by the accused. Prabhu, received the injuries. He was being taken to Pihani Hospital but succumbed to his injuries on the way. Ramkali also received the injuries in the incident.

(4) FIR was lodged at case crime no.267 of 1995 under Section 302/307 IPC. Investigation was handed over to S.I. Harish Chandra. S.I. Harish Chandra proceeded to hospital; prepared the inquest, recorded the statements of witnesses and prepared a site plan. The dead body was sealed and sent for postmortem and postmortem was done on 20.10.1995 at 3.00PM by Dr. A.K. Srivastava P.W.4. at District Hospital, Hardoi.

(5) After conclusion of the investigation charge-sheet was submitted against the accused-appellants. Accused-appellants were charged under Section 302 IPC read with Section 34 and Section 307 IPC read with Section 34 IPC. They denied the charges and claimed trial.

(6) Prosecution has produced P.W.1 Prakash complainant and eye witness, P.W. 2 Sitaram eye witness, P.W.3 Smt. Ramkali injured and eye witness, P.W. 4 Dr. A. K. Srivastava who has conducted the postmortem examination of the dead body of the deceased and found the following ante mortem injuries on the body of the deceased:-

(1) A incised wound 2.5cm x 1cm x bone deep on left side parietal region skull. Direction oblique. Clotted blood present.

(2) A stab wound 1.5cm x 1 cm x abdominal cavity on right side upper part abdomen at right nipple hypocnondrium region, 11cm from left nipple at 5 O'Clock position.

(3) A stab wound 1cm x .5cm x abdominal cavity deep on right side abdomen, 11cm above from right iliac crest.

(4) A lacerated wound 1/2cm x1/2cm x skin deep on back of left index finger, 4cm above from the base of index finger.

(7) On internal examination, he found fracture on left parietal bone under injury no.1 membranes of skull of brain was also found lacerated. According to Dr. A. K. Srivastava cause of death was shock and haemorrhage as a result of ante mortem injuries. Duration was about one day.

(8) P.W. 5 S.I. Ram Samujh Misra is the investigating officer in whose presence, the case was registered at the police station. He conducted the inquest proceedings recorded the statement of complainant, prepared the site plane and sent the dead body for postmortem. P.W.6 Constable Shiv Mangal Yadav has taken the dead body in sealed condition to the hospital to the postmortem. P.W. 7 S.I. H.C.Jagdish Prasad Dwivedi has prepared the chick FIR and entered the same in the G.D. of the Police Station. P.W. 8 S.O Harish Chandra Singh has taken over the investigation from S.I. Ram Samuj Misra concluded the investigation and submitted the charge against the accused. P.W. 9 Dr. Chandra Kishore Gupta has conducted the medico legal examination of injured Ramkali on 19.10.1995 at 9.40PM and found following injuries on her body:-

(1) Lacerated wound scalp right side 6cm above right ear, size 3.5cm x 0.5cm subcut deep. Fresh clot present.

(2) Complaint of pain right shoulder. No visible injury.

             (3) Complaint of pain right, ankle. No visible injury.   	Condition Poor, Pulse 96p.m. B.P.100/70.
 
(9)	X-ray of injury no.1 was also advised but after the receipt of the X-ray plate and X-ray report he had opined that the injuries of the injured were simple in nature. 
 
(10)	In statement under Section 313 Cr.P.C. of the accused were recorded and they have stated that they have been falsely implicated in this case. Two papers were filed in their defence.
 

(11) After appreciating the evidence on record, learned trial court has recorded a finding of guilt against the appellants and came to the conclusion that the prosecution has successfully proved the charges against the accused-appellants. Accordingly convicted and sentenced them under Section 302 IPC read with 34 IPC and Section 308 read with 34 IPC.

(12) Feeling aggrieved by the impugned judgment and order appellants have preferred the present appeal.

(13) Learned Amicus Curiae for the appellants has submitted that the prosecution has failed to prove the charges against the accused beyond reasonable doubt.

(14) It is submitted by him that prosecution has failed to establish the place of occurrence. Incident might have been taken place at some other place. Accused have falsely been implicated by the prosecution. In order to substantiate his argument. It is submitted that no blood was found at the place of occurrence by the investigating officer. P.W. 3 Ramkali has sustained self inflicted injuries. It is further argued that there was no motive for commission of the offence. Motive as alleged has not been proved. Accused are the son of the brother of the husband of Ramkali. They have no grudge against the deceased. They were ploughing field of Ramkali. There was no reason as to why Prabhu ploughed the field. It is further argued that no specific role has been assigned to any accused rather a general role has been assigned to all the accused except Munshi. P.W.1 Prakash is real brother of deceased whose evidence could not be relied upon. Evidence of P.W.3 Ramkali could not also be relied upon as her presence at the scene of occurrence is doubtful.

(15) Per contra, learned AGA submits that the first information report was lodged promptly. There was no reason to falsely implicate the accused rather there was a definite motive to commit the crime by the accused as earlier they were ploughing the field of Ramkali and enjoying fruit but when Ramkali did not get anything out of her field from the accused then she got it ploughed through the deceased Prabhu. Accused got annoyed resulting in the commission of crime. It is further submitted that the evidence of injured P.W. 3 Ramkali as well as P.W.1 Prakash is fully reliable evidence. P.W. 1 Prakash cannot be disbelieved only on the ground of being a relative and interested witness rather he is a natural witness who was present at the scene of occurrence. It is further submitted by learned AGA that presence of P.W.3 Ramkali at the place of occurrence is also established as she got injuries in the incident and was medically examined at 09.40 PM on the same day. Even, if the blood stained earth was not recovered by the investigating officer or he did not find any blood at the place of occurrence it does not mean that the place of occurrence was different as it could be a case of defective investigation only.

(16) Occurrence took place on 19.10.1995 at 6.00PM while the first information report was lodged on the same day at 07.15PM. According to the prosecution version, injuries were inflicted by ballam as well as lathi. Before proceeding further we would like to deal with the medico legal aspect of the matter. Specific case of causing injuries by ballam and lathi has been taken by the prosecution. According to the postmortem report, which was duly proved by P.W.4 Dr. A.K. Srivastava, two stabbed wound, one incised wound and one lacerated wound were found on the body of the deceased Prabhu. According to Dr. Srivastava injuries no.1, 2 and 3 could have been caused by ballam while injury no.4 could be caused by hard and blunt object like lathi. Injuries no.1, 2 and 3 are sufficient in the ordinary course to cause death.

(17) P.W. 9 Dr. Gupta has medico legally examined the injuries of Ramkali and found lacerated wound on her head. According to Dr. Gupta, this injury was caused by hard and blunt object like lathi. X-ray was also advised but no fracture was found. Dr. Gupta opined that the injuries was simple in nature. Hence, it is fully established that the injuries which were found on the body of the deceased as well as injured Ramkali could have been caused by the weapons like ballam and lathi as alleged by the prosecution.

(18) P.W. 1 Prakash is brother of deceased Prabhu who along with deceased and Rajandra was sitting at the door of his house while accused came and assaulted Ramkali. When she cried then Prabhu, Rajendra, Chhannoo proceeded towards her to protect her from the assault. Since Prabhu was first to reach then accused Munshi hit him by ballam while Rampal and Sri Krishana caused injuries by lathi. According to P.W.1 Prakash, after the incident he took the deceased in injured condition to Pihani Hospital who succumbed to his injuries on the way. Dead body was left by him in the hospital. He got the report written by one Ramchand Gupta and tendered the same at the police station. P.W. 3 Ramkali is the injured who has also supported the version of P.W.1 Prakash and stated that after the incident Prakash along with Prabhu took her to P.H.C. Pihani. Prabhu succumbed to the injury on the way, thereafter, written report was written scribe of the report was a hotel owner report was submitted at the police station from where she was sent for medico legal examination. This statement further find support from the statement of P.W.7 H.P. Jagdish Prasad Dwivedi who prepared the chick FIR and made an entry of the same in the G.D. Distance of the police station from the place of occurrence is about 1 and ½ furlong. It was a prompt FIR just after the incident first information report was lodged at the police station.

(19) It has been held by the Apex Court in the case of in Kishan Singh through LRs v. Gurpal Singh and others reported in (2010) 8 SCC 775 the Supreme Court held that "Prompt and early reporting of the occurrence by the informant with vivid details gives assurance regarding truth of its version. In case there is some delay in recording the FIR the complainant must give an explanation for the same. Undoubtedly, delay in lodging FIR does not make the complainant's case improbable when such delay is properly explained."

(20) It has been held by the Hon'ble the Apex court in the case of Nanhe Vs. State of Uttar Pradesh reported in 1973 (3) SCC 317 has held that a prompt F.I.R. eliminates the chances of cooking up of a false story.

(21) In this case, FIR was lodged promptly without any undue delay. There was no occasion for the complainant for any consultation or deliberation prior to the lodging of FIR.

(22) Learned counsel for the accused-appellants submitted that P.W.1 Prakash is a real brother of the deceased while P.W.3 Ramkali is also an interested witness. Hence their evidence could not be held reliable.

(23) In a recent judgment in the case of Nagappan Vs. State (by Inspector of Police, Tamil Nadu) reported in (2014) 3 SCC (Cri) 660 Hon'ble the Apex Court in paragraph no. 10 has observed as under :-

"10. As regards the first contention about the admissibility of the evidence of PW 1 and PW 3 being closely related to each other and the deceased, first of all, there is no bar in considering the evidence of relatives. It is true that in the case on hand, other witnesses turned hostile and have not supported the case of the prosecution. The prosecution heavily relied on the evidence of PW 1, PW 3 and PW 10. The trial court and the High Court, in view of their relationship, closely analysed their statements and ultimately found that their evidence is clear, cogent and without considerable contradiction as claimed by their counsel. This Court, in a series of decisions, has held that where the evidence of "interested witnesses" is consistent and duly corroborated by medical evidence, it is not possible to discard the same merely on the ground that they were interested witnesses. In other words, relationship is not a factor to affect the credibility of a witness. " (emphasis added)

(24) We have to scrutinize the evidence on record to find out as to whether evidence of P.W.1 Prakash and P.W.3 Ramkali is wholly reliable, trustworthy or not?

(25) Specific motive has been alleged by prosecution. Admittedly Chetai and Sukhai were son of one Bahadur. P.W.3 Ramkali is the wife of Sukhai. It is also admitted that Sukhai was physically disabled person who was suffering from disease of leprosy. According to the prosecution agricultural land of Sukhai and Chetai was divided on family partition basis. 4 and 5 years prior to the incident Sukhai stopped cultivating the field due to his illness. Hence, field was given on 'batai' to the sons of Chetai. Accused are sons of Chetai. Subsequently, Ramkali did not get the fruits of her land then prior to 2-4 days before the date incident, she gave her share to Prabhu on 'batai' and one day prior to the incident Prabhu and Ramkali have also ploughed the filed by tractor, so accused were very much annoyed. This fact further finds support from the statement of P.W.3 Ramkali who has stated that she gave her land to Prabhu for ploughing due to which accused persons got annoyed. It was a motive due to which accused have committed crime.

(26) In the case of Darbara Singh Vs. State of Punjab (2012) 10 SCC 476; Hon'ble the Apex Court has observed in paragraph no.15 and 16 as under:-

"15. So far as the issue of motive is concerned, it is a settled legal proposition that motive has great significance, but where direct evidence is available, which is worth relying upon, motive loses its significance. In the instant case, firstly, there is nothing on record to reveal the identity of the person who was convicted for rape, there is nothing on record to determine the identity of this girl or her relationship to the co-accused Kashmir Singh. More so, the conviction took place 20 years prior to the incident. No independent witness has been examined to prove the factum that the Appellant was not on talking terms with Kashmir Singh. In a case where there is direct evidence of witnesses which can be relied upon, the absence of motive cannot be a ground to reject the case. Under no circumstances, can motive take the place of the direct evidence available as proof, and in a case like this, proof of motive is not relevant at all.

16. Motive in criminal cases based solely on the positive, clear, cogent and reliable ocular testimony of witness is not at all relevant. In such a fact-situation, the mere absence of a strong motive to commit the crime, cannot be of any assistance to the accused. ................"

(Underlined by us)

(27) Although the motive is alleged by the prosecution which is also established even otherwise also it is a case of direct evidence where even motive is not proved an incident is proved by the direct evidence then accused could be held guilty.

(28) P.W.3 Ramkali is an injured witness who has specifically stated that at the time of occurrence, she was present outside her house when accused Munshi armed with ballam and Sri Krishana, Surendra and Rampal armed with lathi came and started abusing her. Surendra inflicted a lathi blow on her head. When she cry then Prabhu along with Prakash, Rajendra, Sitaram, Chhannoo came and then Rampal gave a lathi blow on the head of Prabhu, Munshi inflicted injuries by Ballam, Sri Krishana also inflicted injuries by lathi. P.W. 3 Ramkali was standing outside of her house at the time of occurrence while deceased and Prakash etc. were sitting at the door of the house. As soon as Surendra inflicted lathi blow, all of them came Single blow was given to P.W. 3 Ramkali by Surendra which finds support from the statement of P.W.9 Dr. Gupta and the medical examination report wherein only one lacerated wound was found on the head of Ramkali. Although, the said injury was found simple in nature. P.W.3 Ramkali has further stated that stabbed wound were caused to deceased Prabhu by Munshi by ballam. P.W.1 Prakash is also an eye witness who was present at the spot. P.W.1 Prakash has stated that Surendra did not give lathi blow to Prabhu. Munshi inflicted the injuries by Ballam.

(29) In the cross examination it has specifically been stated that all the accused have caused injuries to Prabhu by their respective weapons.

(30) P.W. 1 Prakash has given categorical statement that as soon as Prabhu reached near the house of Ramkali all the accused started attacking by their respected weapons. Prabhu felled down on the ground. This statement further found support from the statement of P.W.3 Ramkali her statement finds support from the medico legal examination. She was an injured witness whose presence at the place of occurrence is fully established. In fact, she is the lady who was attacked by Surendra by lathi then the whole prosecution story comes out. Genesis of the incident begins from the point when Ramkali was attacked on head by Surendra when she cried then Prabhu went to the spot who was attacked by the accused.

(31) At this stage, we may also analyze the argument as advanced by learned counsel for the appellant that the place of occurrence as alleged by the prosecution is not established. According to P.W.1 Prakash place of occurrence is outside the house of Ramkali. P.W.3 Ramkali has also stated that she was standing outside of her house. Prakash and other were sitting on the house of door. When accused came and started abusing her. On her residence Surendra gave a lathi blow on her head. It is also admitted that blood oozed out from the injuries and also fallen on the earth. P.W.5 Ram Samujh Misra investigating officer has stated that he has prepared the site plane on the pointing out of complainant. In the site plane, place of occurrence is shown by letter ''B' which is in front of house of Sukhai while complainant along with deceased and Rajendra was sitting at point ''A' which was in front of the house of the deceased. Distance of the house of deceased from point ''A' is about three steps. Investigating officer P.W.5 S.I. Ram Samujh Misra stated that he did not find any blood at the place of occurrence.

(32) Ram Avtar Rai and Ors. vs. State of Uttar Pradesh (1985)2 Supreme Court Cases 61; it has been held in para 10 of the judgment:

"10. We agree with the High Court that the occurrence had taken place about 15 paces away from the house of the deceased and PW.1. It is true that blood-stained earth has not been recovered from the scene of occurrence by the investigating officer though as stated earlier the deceased had sustained as many as 5 lacerated injuries besides a number of contusions and abrasions. From the failure of the investigating officer to recover blood-stained earth from the scene of occurrence it is not possible to infer that the occurrence had not taken place in front of the house of the deceased and PW 1."

(33) Even if the investigating officer has not recovered or found the blood at the place of occurrence, it cannot be doubted that the place of occurrence has been changed by the prosecution. Consistent statement is given by P.W.1 Prakash and P.W.3 Ramkali regarding place of occurrence. P.W.3 Ramkali was also an injured witness whose statement cannot be discarded on any count. She is in the center point of the occurrence wherein deceased Prabhu was asked by her to plough her field on ''batai he agreed to it. Thereafter, since accused were earlier plouging the field on ''batai' they got annoyed consequently, they commit the crime. We, in no manner, believe that either P.W.1 Prakash and P.W 3 Ramkali were not present at the place of occurrence. Their statement are totally reliable.

(34) First information report was lodged promptly without any undue delay wherein accused-appellants were named in the report. Ocular statement of P.W.1 Prakash and P.W. 3 Ramkali finds support from the medico legal report as well as postmortem report. We do not find any contradiction or infirmity in the prosecution case. Accordingly, we are of the view that prosecution has successfully proved the charges against the accused-appellants and the appeal is liable to be dismissed.

(35) The appeal is dismissed. Judgment and order dated 27.3.1998 passed by learned trial court is confirmed. Accused Munshi is in jail. Appellants Rampal, Sri Krishna and Surendra are on bail. Their bail is cancelled and sureties are discharged. They should surrender before the trial court immediately to serve out the sentence as imposed by the learned trial court and confirmed by this court.

(36) Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance.

Order Date :- 08.09.2016     (Anil Kumar Srivastava-II,J)   (Anil Kumar,J.)
 
Subodh/-