Alwar Dhanuk vs State Of U.P.
2017 Latest Caselaw 2629 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 44
 
Case :- CRIMINAL APPEAL No. - 1864 of 2004
 
Appellant :- Alwar Dhanuk
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Vinay Saran,D.P.S.Chauhan,H.D.Singh,Haridwar Singh,Harish Chandra Tiwari Ac,R.P.Tripathi
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Shailendra Kumar Agrawal,J.

(Delivered by Hon. Bharat Bhushan, J.)

1. The appellant Alwar Dhanuk has assailed the judgment and order dated 26.2.2004 passed by learned Addl. Sessions Judge, Court No. 3 Fatehgarh, Farrukhabad in Sessions Trial No. 265 of 1999 arising out of Case Crime No. 578 of 1998, Police Station (in short PS) Kotwali Farrukhabad, District Farrukhabad whereby the appellant was convicted under Section 302 Indian Penal Code, 1860 (in short IPC) and sentenced to undergo life imprisonment and fine of Rs. 10,000/- with default stipulation.

2. Prosecution story, in brief, is that just 10-15 days prior to the present incident appellant Alwar Dhanuk had committed murder of one Raja Ram Jatav wherein the first information report (in short FIR) was lodged by informant of this case namely Aatma Ram. It is said that appellant Alwar Dhanuk, a member of clan of Aatma Ram developed animosity on account of earlier FIR. It is alleged that on 24.7.1998 at about 6.30 a.m. deceased Dharmendra son of Aatma Ram went to defecate in the agriculture field of one Bhagrani.

3. Informant Aatma Ram (P.W.-1) had also gone to defecate near the same venue and was standing near the boundary of Bhagrani's agriculture field. Suddenly, appellant Alwar Dhanuk armed with firearm weapon surfaced there and shot deceased Dharmendra while abusing him. Dharmendra fell down as a result of injuries. Informant Aatma Ram (P.W.-1) rushed towards his son. Appellant fled from the spot. Informant took his son to Ram Manohar Lohiya Hospital, (in short R.M.L. Hospital) Farrukhabad. The incident was allegedly witnessed by several persons. But because of audacity of appellant Alwar Dhanuk in committing two murders within a short span of almost two weeks, terror was created in the village. The village folks closed doors of their residences subsequent to this murder.

4. It is alleged that Aatma Ram (informant) went to the police station to lodge the FIR (Ex-Ka-1) wherein details of the incident were given. The FIR was, of-course, registered under Section 307 of the IPC. P.W.-3 Shyam Lal Yadav, the then Head Clerk (H.C.) of Kotwali Farrukhabad recorded the FIR and carved out chick report (Ex-Ka-2). Relevant entries were made in the General Diary (G.D.) of P.S. Kotwali Farrukhabad, extract of which is available on record as Ex-ka-3.

5. Deceased Dharmendra succumbed to his injuries in R. M. L. Hospital at about 9.15 a.m. This information was communicated from the said Hospital to PS Kotwali Farrukhabad at about 10.20 a.m. This information was entered into concerned G.D. at page no. 19 at about 10.20 a.m. on same day. The case was also converted from Section 307 IPC to Section 302 IPC. Extract of this G. D. is available on record as Ex-ka-4. P.W.-4 Dr S.C. Tiwary, who conducted postmortem found the following ante-mortem injuries on the person of deceased:-

1. A firearm wound of entry 3.5 cm X 3 cm X abd cavity deep on left lateral side of upper part abdomen at sub costly region. Margins lacerated ecchymosed inverted and blackened. Direction on dissection peritoneum left side both injuries left kidney, stomach and spleen lacerated and from left to right.

2. A gutter shaped firearm wound 5 cm X 3 cm X muscle deep on anterior lateral aspect of left fore arm 4 cm above left wrist.

6. P.W.-7 Sub Inspector (SI) M. L. Sonkar conducted the inquest proceedings in the R.M.L. Hospital, Farrukhabad. Inquest report (Ex-Ka-11) is available on record. Other documentation was also done.

7. P.W.-8 Deewan Giri, the then Inspector of Kotwali Farrukhabad commenced investigation by recording the statement of P.W-3 H. C. Shyam Lal Yadav of P.S Kotwali Farrukhabad and informant Aatma Ram (P.W.-1). He along with police party rushed towards the venue of occurrence in village Masaini. The venue was inspected and site plan (Ex-Ka-10) was prepared. The Investigating Officer (in short IO) also collected one pair of slipper (pIiy) and one mug (yksVk) from the spot and prepared fard Ex-Ka-7. Blood stained soil and simple earth were also lifted from the venue of occurrence and prepared fard Ex-Ka-8. The I.O. also found one empty cartridge of 12 bore from the spot in presence of witnesses P.W.-2 Narendra Kumar Katiyar and one Ashok Kumar Sharma.

8. I.O. and his police companions received information about the death of deceased Dharmendra on the place of occurrence. I.O. reached the district hospital. As stated earlier he directed the P.W.-7 M. L. Sonkar (SI) to conduct inquest proceedings etc. Statements of some other witnesses were also recorded. Statement of appellant Alwar Dhanuk was recorded inside Kanpur Jail. Thereafter, this I.O. was transferred. Investigation was entrusted to the then S.I. Radhey Shyam Pandey and subsequently the investigation was entrusted to P.W.-6 Inspector B. R. Premi, the then Incharge of PS Kotwali Farrukhabad. He recorded the statement of Ramesh Bhadauriya and constable Kanha Ram etc. and thereafter submitted a charge sheet (Ex-Ka-6) against the appellant Alwar Dhanuk under Section 302 IPC. The then Addl. Sessions Judge, Farrukhabad formally indicted the appellant under Section 302 IPC on 7.2.2000. Accused denied the charge and claimed to be tried.

9. Prosecution has adduced as many as eight witnesses in support of their allegations namely P.W.-1 Aatma Ram (eye witness), P.W-2 Narendra Kumar (witness of recovery), P.W-3 Head Clerk (HC) Shyam Lal Yadav (recorded FIR), P.W.-4 Dr. S. C. Tiwari (conducted autopsy), P.W-5 Ramesh (witness of motive), P.W.-6 B.R.Premi (3rd I.O.), P.W-7 Sub Inspector M. L. Sonkar (conducted Inquest proceedings) and P.W.-8 Inspector Deewan Giri (first I.O.). Thereafter statement of appellant Alwar Dhanuk was recorded under Section 313 Cr.P.C. wherein he denied all allegations and claimed false implication due to previous enmity. One defence witness namely D.W.-1 Hari Ram the then Chief Pharmacist of R. M. L. Hospital, Farrukhabad was also produced on behalf of appellant Alwar Dhanuk who proved two documents; one photocopy of the initial medical examination report of deceased Dharmendra (Ex-Kh-1) and other photocopy of chick report lodged by informant Aatma Ram on 8.7.1998 naming appellant Alwar Dhanuk as accused in the case of murder of one Raja Ram Jatav.

10. On conclusion of trial, learned Addl. Sessions Judge, Farrukhabad convicted appellant of offence under Section 302 IPC and sentenced him as aforesaid vide judgment and order dated 26.2.2004. It is this order which is under challenge before this court.

11. We have heard Sri Harischandra Tiwari, learned Amicus curiae for appellant and Sri Ajit Ray, learned AGA for the State.

12. Learned Amicus curiae has argued that only solitary witness of fact namely P.W.-1 Aatma Ram has appeared in this case. No other witness was produced despite the stated presence of several persons at the time of incident. No independent witness was produced. Presence of informant Aatma Ram on the spot is not established. It is contended that fecal matter was found inside the body of the deceased during the postmortem examination despite the claim that he had already eased himself creating uncertainty about timing of incident. Learned Amicus curiae has also pointed out some discrepancies in the statements of the witnesses. He has further submitted that the FIR was ante-timed.

13. To the contrary, learned AGA has argued that credibility of witnesses is important and not number of witnesses. He has drawn the attention of court towards famous legal maxim wherein it is said that evidence is weighed and not counted. Learned AGA has denied the argument of ante-timing and said that the fact that only one witness has been produced indicates desire of prosecution not to manufacture or create evidence.

14. Prosecution evidence almost entirely depends upon the solitary testimony of P.W-1 Aatma Ram (informant), father of deceased. This witness has testified that he and his son went to an open agriculture field of one Bhagrani for defecation early in the morning. Appellant Alwar Dhanuk armed with firearm surfaced there and started abusing his son and immediately shot him and fled away from the spot. Meanwhile P.W.-1 Aatma Ram rushed towards his son and took him to R. M. L. Hospital. This witness has also described the backdrop of this incident by saying that on 8.7.1998, the appellant Alwar Dhanuk had committed another murder of one Raja Ram Jatav in similar fashion. The FIR of this incident was lodged by Aatma Ram informant of this case.

15. Incidentally record reveals that appellant Alwar Dhanuk and P.W.-1 Aatma Ram belong to the same clan. The appellant himself has admitted this fact and infact filed the copy of the earlier FIR in Case Crime No. 543 of 1998 under Section 302 IPC. The fact of earlier FIR is accepted to rival parties. Only difference is that P.W-1 Aatma Ram is citing the earlier case as motive for this subsequent murder of his son while appellant Alwar Dhanuk is trying to use it as a sign of continuous efforts of Aatma Ram to implicate him in some case or other.

16. The fact that Dharmendra (deceased) was assassinated on 24.7.1998 early in the morning is established and we are not depending solely on the contents of the FIR to establish this fact. The depositions of P.W-1 Aatma Ram, P.W-2 Narendra Kumar and P.W-4 Dr S. C. Tiwari have clearly established this fact. There is no dispute that deceased Dharmendra died on account of homicide. There is no dispute that firearm weapon was used to commit the murder of deceased Dharmendra. The evidence further establishes this fact that deceased was admitted in district hospital somewhere at 7.10 a.m. This is established by the photocopy of the medical examination report (Ex-Kha-1) submitted by appellant himself. This report indicates two things that deceased Dharmendra was examined in the hospital at 7.10 a.m. and that he was brought to the hospital by his father P.W.-1 Aatma Ram. The record as well as the testimony of P.W.-4 further disclose that deceased died at 9.15 a.m. in the district hospital. Few prosecution points have been established by the defence evidence itself. First, deceased Dharmendra was shot prior to 7.10 a.m. in the morning; that he was taken to the district hospital and examined at 7.10 a.m.; that injured was admitted to the hospital by his father and that subsequently he died at 9.15 a.m. This precisely is the prosecution story.

17. Obviously time of attack is prior to 7.10 a.m. in the morning. Fact that the deceased was taken from village Masaini to district hospital in Rickshaw and in that process some time must have been spent which establishes time of incident as alleged by the prosecution. This fact is virtually acceptable even to defence. Now only question is who committed this murder ?

18. P.W.-1 Aatma Ram, father of deceased boy of 15 years says that his son was murdered by appellant Alawar Dhanuk in his presence. Morning time is usually time for everyday ablutions. Incident occurred in 1998 in hinterland of this state where it is usual practice, even these days, to go to agriculture fields for defecation purposes. P.W.-1 himself has testified that several other persons were also there for same reason. Infact some small children were also easing themselves in Bhagrani's agriculture field. Therefore, in this scenario, presence of either Dharmendra or his father P.W.-1 Aatma Ram was quite natural. It appears that this practice of open defecation infact made it possible for the appellant to trace his target quite easily.

19. Prosecution has also established the motive for this incident. Infact the appellant himself has filed an earlier FIR lodged against him by father of deceased just few days prior to the present incident. Obviously, the appellant was infuriated at the stated audacity of Aatma Ram (P.W.-1).

20. Learned AGA has also pointed out that earlier case has also resulted into conviction of appellant Alwar Dhanuk. Motive is therefore evident. Claim of appellant that he has some dispute with informant Aatma Ram regarding partition of house appears to be afterthought because there is no document on record to substantiate this claim. If there was any dispute regarding partition of house, there would have been some litigations or documentary evidence in support of this claim. Some person might have been testified in this regard. But there is no evidence to demonstrate any property dispute with informant Aatma Ram (P.W.-1).

21. As far as argument regarding solitary nature of evidence is concerned we are convinced that this is not sustainable. It is settled law that conviction of accused can be based solely on the testimony of solitary witness, if same is found wholly reliable. There is no rule of law or evidence which says that corroboration is required for the testimony of solitary witness provided the sole witness passes the test of reliability. We have absolutely no doubt that so long single eye witness is wholly reliable witness, courts will have no difficulty in basing conviction on his sole testimony.

22. We have carefully examined the evidence of P.W.-1 Aatma Ram. His evidence is in consonance with normal human conduct, credible and wholly reliable. We have absolutely no reason to disbelieve his testimony. There is no reason for him to spare the real culprit and to falsely implicate member of his own clan. This witness has testified that his son got up at 4 a.m. in the morning on the day of incident and spent two to two and half hours in studies and then he left for easing himself. His father also left almost at the same time. His son Dharmendra went to the agriculture field of one Bhagrani while his father sat at slight distance towards western side. Appellant arrived within five minutes and shot his son. We are convinced of veracity of his deposition. He has depicted the entire events in a trustworthy manner.

23. Learned Amicus curiae has argued that the FIR was ante-timed. This argument is not sustainable for several reasons; first the copy of medical report submitted by accused himself indicates that deceased was hospitalized prior to 7.10 a.m.; incident occurred in village Masaini which was located almost 3 Kms away from the Kotwali Farrukhabad; transportation must have been arranged. P.W.-1 Aatma Ram has testified that injured was taken to hospital in Rickshaw. Obviously Rickshaw is a slow moving vehicle and yet deceased was admitted in the hospital by 7.10 a.m. as indicated by the copy of the medical report submitted by accused himself. This clearly establishes the time of incident. It proves that indicated time of incident i.e. 6.30 a.m. is correct.

24. The FIR was lodged at 8.55 a.m. This FIR was lodged under Section 307 IPC. If this FIR had been lodged subsequently then it would have been recorded under Section 302 IPC and not under Section 307 IPC. Fact that the FIR was lodged at 8.55 a.m. under Section 307 IPC clearly indicates that it had been lodged prior to death of deceased occurred at 9.15 a.m.

25. P.W-4 Dr. S. C. Tiwari has indicated time of death at 9.15 a.m. in the morning. Extracts of General Diaries Ex-Ka-3 and Ex-Ka-4 also clearly show that the FIR had been lodged under Section 307 IPC at 8.55 a.m. and subsequently case was converted under Section 302 IPC at 10.20 a.m. (Ex-Ka-4). Inquest proceedings contain crime number at the top of report as well as on second page in the contents of the inquest report. This rules out any possibility of ante-timing of FIR. Photonash (Ex-Ka-12), letter of I.O. to the CMO, Farrukhabad (Ex-Ka-11), police form No. 13 (Ex-Ka14) all display crime number. In view of aforesaid entries it was virtually impossible to manipulate the FIR.

26. Learned Amicus curiae has pointed out that postmortem report discloses that fecal matter was found inside the body of deceased. He has also drawn the attention of the court towards the opinion of the doctor that deceased had not been able to ease himself prior to his death. Argument is that this is contrary to the prosecution story and that this inconsistency between the medical report and the oral testimony is fatal to the prosecution case. We are afraid that this argument is not acceptable at all. First medical report primarily deals with the injuries and they are consistent with the oral account. Fifteen pellets and one plastic wading was found from the body of deceased. Fact that fecal matter was found in the intestine does not mean anything. P.W.-1 Aatma Ram was not sitting next to his son at the time of defecation. He was at some distance. Obviously no body watches defecation habits of others. It is possible that deceased had not yet been able to ease himself fully or may be he was actually not defecating or may be he could not evacuate completely. There could be various reasons for finding fecal matter in the intestine. Presence of fecal matter does not indicate any inconsistency between the oral testimony and medical evidence. As far as core of prosecution case is concerned, both oral and medical evidence are completely and absolutely in consonance with each other.

27. Apex Court in G.S. Walia Vs State of Punjab, (1998) 5 SCC 150 has held that medical evidence should not be mechanically compared with oral testimony. In the case of G.S. Wallia (supra) certain injuries caused by sharp edged weapon were found on the body but oral testimony did not refer any sharp edged weapon yet the Apex Court declined to reject the oral testimony.

28. Learned Amicus curiae has pointed out some alleged discrepancies in the testimonies of prosecution witnesses. At one place P.W.-1 Aatma Ram has admitted that he reached hospital at 8 a.m. while medical examination of Dharmendra had already been conducted at 7.10 a.m. in the morning. This argument is nothing but nit-picking. It is obvious that his young son has been murdered. Nobody was actually counting the time. Stated time is merely guesstimate of P.W.-1 Aatma Ram. He was of-course travelled in Rickshaw with his grievously wounded son for almost three kilometers before reaching the said hospital. It is not required that witnesses should give precise time of each events.

29. Learned Amicus curiae has also argued that the I.O. and other police personnel first went to the place of occurrence rather than to hospital. It appears that P.W.-8 Deewan Giri has stated that as soon as report was lodged, he recorded the statements of Shyam Lal Yadav and P.W.-1 Aatma Ram and then went to the venue of occurrence. Learned counsel has stated that it was incumbent upon the Investigating Officer to first go to the hospital and to record the statement of injured. We are afraid that this argument is totally misconceived. Criminal cases are not decided on the basis of conjectures. Cases are decided on the basis of evidence already on record.

30. Apex Court in Vishnu Deo Poddar and another Vs State of Bihar, 2003 CR.L.J. 1558 has held that fate of prosecution does not depend on what prosecution or investigating officer ought to have done. The fate depends on the material already available on record. If the available material is sufficient to hold the accused guilty of offence then the court cannot refuse to convict the accused merely because some part of investigation was poor or done in lackadaisical manner.

31. Considering all facts and circumstances of the case, it is evident that prosecution has been able to bring home the guilt of accused-appellant by trustworthy and unimpeachable evidence. Sufficient evidence has been placed to establish the guilt of the appellant.

32. In view of the aforementioned discussion, we are of the view that the appeal lacks merit and deserves to be dismissed. It is accordingly dismissed and impugned judgment and order dated 26.2.2004 of the trial court is affirmed.

33. Office will certify this order to the court concerned within 10 days. Trial court shall thereafter communicate compliance of this judgment within a month thereafter.

(Justice S. K. Agrawal)      (Justice Bharat Bhushan)
 
Order Date :-  24.07.2017 	
 
RavindraKSingh