Raju Regmi vs State Of U.P.
2017 Latest Caselaw 8014 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved.
 
Court No. - 47
 

 
Case :- JAIL APPEAL No. - 1433 of 2014
 

 
Appellant :- Raju Regmi
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Ashutosh Upadhyay
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Shri Narayan Shukla,J.

Hon'ble Krishna Singh,J.

[Delivered by: Hon'ble Krishna Singh, J.]

This criminal jail appeal has been preferred by the appellant-accused Raju Regmi against the impugned judgment and order dated 29.11.2013 passed by the Trial Court/Additional Sessions Judge, Varanasi in S.T. No. 53 of 2013 (State of U.P. vs. Raju Regmi), under Section 302 IPC.

By means of impugned judgment and order, trial court has convicted the appellant-accused for the offence under Section-302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.2,000/- with default sentence of two months imprisonment.

The case against the appellant-accused has been arised on the basis of written report Ext. Ka-1 dated 2.10.2012, lodged by the informant/complainant Veer Bahadur Singh son of Late Naina Singh, resident of A/36, K.F.I. Rajghat, Basant School Campus, Rural Center, Rajghat Fort, Police Station Adampur, District Varanasi. The facts mentioned therein are that complainant's son Gyan Bahadur was doing the mess work at Basant School and was residing with him at House No.A36, K.F.I. Rajghat, Basant School Campus. Accused Raju Regmi was also residing at A/36, KFI Rajghat, Besant School Campus, Rajghat Fort, PS Ram Nagar Varanasi and working at the mess with the son of the complainant. On 02.10.2012, both were sitting in accused Raju's room and were watching a match on television while having alcohol together and at the said point of time due to some personal dispute, Raju Regmi stabbed a knife into the belly of complainant's son Gyan Bahadur at about 9 pm. On an alarm being raised; the complainant, Dinesh Kumar Singh, Chhabi Lal, Sher Bahadur and many persons from the locality reached on the spot and saw that Raju Regmi whose hand was stained with blood was fleeing away. The complainant, with the help of other persons, took his son to Shiv Prasad Gupta Hospital where he was declared dead.

On the basis of written report submitted by the informant, a chik FIR Ext. Ka-8 was prepared on 2.10.2012 at about 11:25 p.m. by Constable Clerk, Shiv Kumar Tiwari and case crime No.133 of 2012 was registered against the appellant-accused under Section 302 IPC at Police Station Adampur.

The case was investigated by Sub-Inspector Vinod Yadav, PW-6. During investigation, the Investigating Officer arrested the appellant-accused and on the information furnished by him made recovery of weapon (blood stained knife Ext.3) used in the crime at his instance, under fard Ext. Ka-2. After completing investigation, he had submitted the charge-sheet Ext. Ka-7, under Section 302 IPC against the appellant-accused.

The case was committed by the Chief Judicial Magistrate, Varanasi to the Court of Sessions.

The Court of Sessions/Trial Court after hearing the prosecution and defence and perusing the material, available on record, framed charge against the appellant-accused under Section 302 IPC. The charge framed was read over and explained to the appellant-accused, he pleaded not guilty and claimed to be tried. Hence, the prosecution was called upon to led evidence.

In support of charge, prosecution had examined PW-1 Veer Bahadur Singh-informant, PW-2 Dilip Kumar Singh, PW-3 Prem Kumar Seth, PW-4 Rohit as witnesses of facts. PW-5 Dr. Dinesh Kumar Singh, PW-6 S.I. Vinod Yadav, Investigating Officer and PW-7 Constable Ramasre Yadav.

After conclusion of the prosecution evidence, the appellant-accused was examined under Section 313 Cr.P.C. In his statement under Section 313 Cr.P.C. the appellant-accused pleaded not guilty and denied his participation in the alleged crime.

No evidence has been adduced on behalf of the appellant-accused in his defence.

We have heard learned Amicus Curiae as well as learned AGA for the State and perused the entire material on record.

Learned Amicus Curiae for the appellant-accused has contended that appellant-accused is innocent and has been falsely implicated in the present case by the informant Bahadur Singh. Learned Amicus Curiae has further contended that Trial Court has committed manifest error of law in convicting the appellant-accused on the basis of the evidence of prosecution witnesses, who were closely related to each other. Learned Amicus Curiae has further contended that the evidence of prosecution witness of facts are contradictory in nature, therefore, reliance cannot be placed upon their testimony. Learned Amicus Curiae has further contended that PW-2 Dilip and PW-3 Prem Kumar are said to be the witnesses of facts but their names are not mentioned in the FIR Ext. Ka-1. In view of the above, reliance cannot be placed upon testimony of the aforesaid witnesses. Learned Amicus Curiae has further contended that during investigation, appellant-accused did not made any confessional/disclosure statement for the recovery of weapon (blood stained knife Ext.3) used in the crime before the Investigating Officer and alleged recovery of knife is false and fictitious. Learned Amicus Curiae alternatively contended that it appears from the prosecution evidence available on record that alleged offence was committed by the appellant-accused without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without having taken any undue advantage. In view of the above facts and circumstances, appellant-accused may be held guilty of commission of an offence under Section 304 of the Indian Penal Code.

Per contra, learned AGA for the State has contended that from the prosecution evidence available on record, the case of prosecution is proved beyond reasonable doubt against the appellant-accused. Learned AGA has further contended that impugned judgment and order passed by the trial court, is based upon proper appreciation of evidence available on record and findings recorded by the trial Court did not suffer from any infirmity and as such, this appeal is devoid of merit and is liable to be dismissed.

PW-1 Veer Bahadur Singh complainant/informant while corroborating the facts mentioned in the FIR, testified that his son, deceased Gyan Bahadur, and the accused Raju Regmi worked together at the mess in Basant School and on the date of occurrence deceased and accused were watching TV in a room taking alcohol together. All of a sudden, at about 9 pm, the accused stabbed deceased's abdomen with a knife. On an alarm being raised, the witnesses, Dinesh Kumar Singh and Chhabi Lal entered in the accused's room and saw accused running out of the room holding blood-stained knife in his hand. All the persons saw and identified the accused in the electric light. He has further stated that his injured son Gyan Bahadur being hit with knife was writhing in pain and blood was splattered on the nearby floor on the site. The injured with the help of other persons was taken to Shiv Prasad Gupta Hospital, Kabir Chaura, where the doctor declared him to be dead. He has further stated that he had dictated the complaint to his nephew Dilip Kumar and got it scribed by him; and having made him to read it over to him and having understood its contents, put his thumb impression. The witness proved the complaint being Ext. Ka-1.

PW-2 Dilip Kumar Singh has stated in his statement on oath that he had gone to Adampur Police Station along with his uncle Vir Bahadur Singh after his cousin Gyan Bahadur was murdered by accused Raju Regmi and he had given written complaint to him for presenting the same at the police station after having written as dictated by the complainant on the basis of which the case was registered. PW-2 has also testified that the panchayatnama dated 03.10.2012 was prepared by the Investigating Officer in his presence; he was appointed as Panch witness and he had told the Investigating Officer that the cause of the death of Gyan Bahadur was injury caused with knife. He has further stated that at the time of occurrence, the deceased Gyan Bahadur was watching TV in the accused Raju Regmi's room, and both of them were drinking and all of sudden on any issue Raju Regmi stabbed a knife into the abdomen of the deceased. When the witnesses, his uncle Vir Bahadur and others reached the quarter of the accused on the alarm being raised by Gyan Bahadur, Raju Regmi holding a blood stained knife came out and went towards the road, thereafter, all persons took the deceased to the hospital where he was declared dead.

PW-3 Prem Kumar Seth, who is also a resident of Nepal, used to live at the room no. 1/2 on the campus of Rajghat Basant School along with his father Bhim Bahadur Seth. He has further stated in his statement on oath that his father Bahadur Seth also works for the Rajghat Basant School. In the premises, he had obtained room no. 1 /2. On 02.10.2012, when he came out of the room to urinate at about 9:00 p.m., he saw that Raju Regmi and Gyan Bahadur were engaged in a heated conversation and when he returned, he saw that in the midst of quarrels, screams and high pitched shouts were also emanating. On hearing the screams, he reached before the room of accused Raju Regmi and saw that Raju Regmi holding a blood stained knife in his hand, was taking out the knife after stabbing Gyan Bahadur in his abdomen. At that time, an electric bulb was illuminating the room. He witnessed the occurrence in the light thereof. Sustaining injuries, Gyan Bahadur had fallen down on the floor. Hearing the screams, Dinesh Singh, Vir Bahadur, Dileep Singh and other persons had also come there. At the said point of time, Raju Regmi was very angry, hence, witnessing the occurrence, the witnesses got frightened, carrying the blood stained knife in his hand, the accused went out of the room. Sher Bahadur tried to restrain him, but he did not stop. Chhabilal and others were trying to the console deceased because he was writhing and crying in pain. The deceased was taken to hospital on a school-bus.

PW-4 Rohit is a witness of recovery of the knife used in the crime. He has stated in his statement on oath that he works at the mess of the hostel of the Basant School and serves food to children. He has been given a room in the premises of the school, wherein he resides. On 02.10.2012 at about 9:00 p.m., he was in his room and taking food. At some distance from his room, there was the room of Raju Regmi. Hearing noise, he came out of his room and saw that Vir Bahadur Singh, father of Gyan Bahadur Singh and others were standing outside the room of Raju Regmi. He also reached the room and saw that Gyan Bahadur had fallen on the floor and he was drenched in blood. There was blood on the floor as well. The deceased was taken to hospital in a school vehicle by the father of deceased and other persons. He has further stated that he was returning towards school carrying some articles when he met the Adampur Police at the Rajghat trisection, and they asked him if he wished to be a witness. He agreed. In the police vehicle, accused Raju Regmi was present as well. All of them proceeded. Near the Union Bank situated in the premises of the school, Raju Regmi got the vehicle stopped. Getting down from the vehicle, he led others towards the shrubs grown in the southern side of the Basant College. Searching through the shrubs, he took out a blood stained knife and handed it over to the police in his presence. It was around 6-7 p.m. The memo Ex.Ka-2 of recovered knife was prepared immediately and signatures of all the witnesses were taken thereon, and the knife was sealed properly at the spot.

PW-5 Dr. Dinesh Kumar conducted the post mortem examination on 3.1.2012 at about 4:30 p.m. of deceased Gyan Bahadur Singh son of Veer Bahadur Singh, aged about 32 years and deposed that he found on the body of the deceased the following injuries:-

I. Ante-mortem injury:- One stabbed wound on left side of chest 1.5 cm x 0.5 cm x cavity deep. This wound was 15 cm lateral from midline on the left side of the body, 113 cm above the left heel and 12 cm below the left axil and was inwards. On probing the wound, muscles were found lacerated, sixth and seventh ribs were found fractured and left lung was ruptured

II. Post-mortem injury:- (i) Post-mortem animal bite 10 cm x 6 cm of left side of face touching to left pinna.

(ii) Post-mortem animal bite 7 cm x 4 cm on left forearm facing the leftelbow joint.

(iii) Post-mortem animal bite 3 cm x 3 cm on right elbow joint.

He opined that deceased appear to have died of shock and haemorrhage, as a result of stabbed injury on left side of chest with evidence of repture of left lung. In his opinion, death may have occurred 3/4th day prior to the examination. He has also opined that deceased's injuries might have been caused on 2.10.2012 at 9 p.m. by some sharp-edged weapon such as a chhura (knife).

PW-6 S.I. Vinod Yadav is the Investigating Officer of this case, who has stated in his statement on oath that after assuming the investigation of the case on 03.10.2012, he had recorded the statements of complainant/witnesses and having inspected the place of occurrence and prepared the site plan Ex.ka-4. Taking the samples of plain and blood stained earth from the place of occurrence, the memo Ex.-ka-5 thereof was prepared. On 04.10.2012, he perused the post-mortem report. On 06.10.2012, accused was arrested by him at about 5:20 p.m. and made disclosure/confessional statement before him. Accused having admitted the offence had assured recovery of the weapon used in the crime, on the basis thereof, he alongwith others got down from the vehicle near the shrubs by the Southern side of the boundary wall closed to Union Bank on the campus of Basant College and leading others, he went to the spot near the shrubs and got a blood stained knife used in the crime recovered, the memo whereof was prepared, the knife, the clothes of the deceased, samples of plain and blood stained earth taken from the place of occurrence were sent for chemical analysis. On 26.10.2012, the statements of witnesses i.e. Prem Kumar Seth, Sumant and Mangala Prasad were recorded. On 12.11.2012, the statements of the witnesses for the recovery of Knife, Rohit Gaud, Sangam Kumar Soni, Irafan and others were recorded. On 30.11.2012, the statements of FIR scribe constable Moharrir Shiv Kumar Tiwari and the witnesses of Panchayatnama Vir Bahadur Singh, Dilip Kumar Singh and Nar Bahadur Singh were recorded. On 10.12.2012, the statements of the witnesses of panchayatnama Shri Vjay Shridhar Ojha and Manoj Kumar Singh and the statement of Bhim Bahadur Singh were recorded. After recording the statement of constable Chandrashekhar on 31.12.2012, the report Ex.Ka-6 obtained from the Forensic Science Laboratory was recorded in the case diary; and after completing the investigation, he had submitted the charge-sheet against the appellant-accused.

PW-7 Constable Ram Aashray Yadav has proved Chik FIR and the copy of GD for registration of the case, and he is a formal witness.

In the case of Shyam Babu vs. State of U.P. AIR 2012 SC 3311, Hon'ble Apex Court has held as under:-

"Where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence, it will not be permissible for the Court to discard the statement of such related or friendly witnesses. There is no bar in law on examining family members or any other person as witnesses. In fact, in cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. If the statement of witnesses, who are relatives or known to the parties affected is credible, reliable, trustworthy and corroborated by other witnesses, there would hardly be any reason for the court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party or friend etc".

In the case of Gangabhavani vs. Rayapati Venkat Reddy & Ors AIR 2013 SC 3681, Hon'ble Apex Court has held as under:-

"The evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. Thus, natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased."

It is evident from the record that PW-2 Dilip is the scribe of FIR Ext. Ka.1. It is true that he is the nephew of complainant/informant Veer Bahadur Singh PW-1. It also appears from the testimony of PW-2 Dilip that after hearing hue and cry, he reached inside the room of appellant-accused. It is not in dispute that place of occurrence is the room of appellant-accused. Aforesaid prosecution witness has stated in his statement on oath that he had seen the appellant-accused running away from the place of occurrence alongwith blood-stained knife Ex.3 after commission of offence. It is also true that name of PW-2 Dilip is not mentioned in the FIR but on these grounds, the testimony of the aforesaid witness cannot be discarded because at the time of occurrence, he was residing in the same locality in which deceased and accused were residing and he has no motive to make a false statement against the appellant-accused. In our opinion, his statement is nothing but truthful disclosure of actual facts leading to the occurrence.

In the case of State of Rajasthan vs. Smt. Kalki and another (1981) 2 SCC 752, Hon'ble Apex Court has held as under:-

"In the deposition of witnesses there are always normal discrepancies due to normal errors of observation, loss of memory, mental disposition of the witnesses and the like. Unless, therefore, the discrepancies are "material discrepancies" so as to create a reasonable doubt about the credibility of the witnesses, the Court will not discard the evidence of the witnesses".

In the case of Mritunjoy Biswas vs. Pranab alias Kuti Biswas and another 2013 CRI. L.J. 4212, Hon'ble Apex Court has held as under:-

"It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omision cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect prosecution case but not every contradiction or omission."

It is true that there are some minor contradictions in the depositions of the prosecution witnesses of facts. We feel that contradictions are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the Court is recorded after an inoridinate delay . Considering the entire facts and circumstances of the case, we are of the opinion that contradictions are not so material which go to the root of the case and materially affect the core of the prosecution case. Therefore, minor contradictions cannot be taken to be grounds to reject the testimony of the prosecutions witnesses of facts.

PW-1 Veer Bahadur Singh is the father of the deceased Gyan Bahadur. He has stated in his statement on oath that on 2.10.2012 after hearing hue and cry, he went on the place of occurrence at about 9 p.m. i.e. room of the appellant accused and in the light of electricity seen the appellant-accused running away from the place of occurrence alongwith blood-stained knife after commission of the offence. Thereafter, injured Gyan Bahadur was taken to Shiv Prasad Gupt Hospital, Varanasi for treatment where he was declared dead. It is evident from the testimony of PW-1 that he had lodged the FIR Ext. Ka-1 on the same day at about 11:35 p.m. at Police Station Adampur. The FIR was written by PW-2 Dilip on his dictation. It is important to mention here that PW-1 Veer Bahadur Singh was put to lengthy cross-examination by defence but nothing could be elicited by way of cross-examination so as to create doubt about his presence at the place of occurrence. Testimony of PW-1 Veer Bahadur Singh has been well supported by other witnesses namely PW-2 Dilip, PW-3 Prem Kumar and PW-4 Rohit. Appellant-accused is named in the FIR, there is complete consistency and co-herence in the examination-in-chief and cross-examination of the aforesaid prosecution witnesses, the name, time, date and place on which the offence was committed and by whom the offence was committed has been revealed in the FIR lodged by PW-1 Veer Bahadur Singh and the same find corrobration from the testimony of the aforesaid witnesses, which is also in co-herence with the story set-up in the FIR.

PW-5 Dr. Dinesh Kumar has conducted the post mortem examination and prepared post-mortem report of deceased. As per post-mortem report, death of deceased may have occurred 3/4th day prior to the time of examination. Doctor opined that deceased's injuries might have been caused on 2.10.2012 at 9 p.m. by some sharp-edged weapon such as a chhura-knife. In our opinion, the prosecution case stands further, supported by the medical evidence.

It is not in dispute that place of occurrence is the room of the appellant-accused. During investigation, PW-6 Investigating Officer, S.I. Vinod Yadav has recovered/collected the blood-stained and plain earth from the place of occurrence. According to the prosecution story, alleged occurrence took place on 2.10.2012 at about 9 p.m. inside the room of the appellant-accused. Prosecution had brought home the evidence of the presence of appellant-accused at the scene of the crime. It will not be out of place to mention here that it was not the defence of the appellant-accused that at the time of occurrence, he was not present in his room. If according to the appellant-accused he was not present at the time of occurrence in his room, then, in veiw of the Section 106 of the Indian Evidence Act, 1872, it was for him to explain as to how the blood was found in his room, no step was taken by the appellant-accused to explain the situation of presence of blood of deceased inside the room. It is relevant to mention here that no evidence has been adduced on behalf of appelalnt-accused in defence to substantiate his plea.

It is evident from the testimony of the Investigating Officer, PW-6 S.I. Vinod Yadav that on 6.10.2012, during investigation, police caught hold of the appellant-accused and then appellant-accused voluntarily made the disclosure/confessional statement. Thereafter, at about 5:20 p.m, weapon (blood stained knife Ext.3) used in the crime was recovered on the disclosure made by appellant-accused from the shrubs situated near the boundary wall of Basant College and in this connection, a recovery memo/fard Ext. Ka 2 was prepared on the spot. PW-4 Rohit is the witness of recovery of blood stained knife Ext.3 in his statement on oath, has also supported the prosecution version.

There is nothing on record to show if the prosecution witnesses had any animus against the appellant-accused so as to implicate falsely in the present case. In view of the above facts and circumstances of the case, there appears no justification to disbelieve the statements of the aforesaid prosecution witnesses.

Keeping the reasoning of trial Court in mind when we examine the submissions, we also notice that there was only one stab wound on outer aspect of the left side of chest noted in the post-mortem report Ext. Ka-3 by PW-5, Dr. Dinesh Kumar Singh and the cause of death was stated to be due to shock and haemorrhage, as a result of anti-mortem stab injury on left side of the chest. PW-5 Dr. Dinesh Kumar Singh also confirmed that the stab wound might have been caused on 2.10.2012 at 9 p.m. by a knife, the F.S.L. report Ext. Ka-6 disclosed that though the origin of the blood-stains could not be determined, human blood was detected on clothes, knife and blood-stained earth. The overall consideration of the evidence available on record only substantiates the guilt of the appellant-accused in the killing of the deceased.

We have noticed hereinbefore that only one blow was hurled by the appellant-accused on outer aspect of left side of chest of the deceased. The genesis of the occurrence appears not to have been disclosed by the prosecution. It is not the case of the prosecution that appellant-accused had been nurturing, any grudge against the deceased or the informant from before or had any motive to commit the aforementioned offence. It is, thus, difficult to accept that part of the prosecution case.

It appears from the prosecution evidence available on record that alleged offence was committed by the appellant-accused without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage. From the prosecution evidence it also appears that appellant-accused as well as deceased was labourer. We, therefore, are of the considered view that the appellant-accused is guilty of commission of an offence culpable homocide not amounting to murder under Section 304 Part-I of the Indian Panel Code and not under Section 302 thereof.

Keeping in view the facts and circumstances of the case, we are of the opinion that imposition of a sentence of 10 years rigrous imprisonment and a fine of Rs.10,000/- with a default sentence of simple imprisonment of one year under the aforementioned provision shall meet the ends of justice. Out of the fine recovered Rs.9,000/- shall be paid to the father of the deceased as compensation.

The appeal is allowed in part and to the extent mentioned hereinabove.

Let a copy of judgment and order alongwith original record be transmitted to the trial Court for information and necessary compliance.

The learned Amicus Curiae Ms. Nishi Mehrotra shall be paid Rs.10,000/- for providing active assistance to the Court from the fund of State Legal Services Authority.

                                          (Krishna Singh, J.)    (Shri Narayan Shukla, J.)
 

 
Order Date :- December 15, 2017
 
Rishabh