Alwar Dhanuk vs State Of U.P.
2017 Latest Caselaw 2632 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
AFR
 

 
Case :- CRIMINAL APPEAL No. - 1863 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 AMICUS CURIAE,R.P. Tripathi
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Shailendra Kumar Agrawal,J.

(Delivered by Hon'ble Bharat Bhushan,J.)

1. Appellant Alwar Dhanuk has assailed the judgement and order dated 28.04.2004 passed by Additional Sessions Judge, Court No. 3, Fatehgarh (Farrukhabad) in Session Trial No. 287 of 1999 arising out of Crime No. 543 of 1998, Police Station (in short "P.S.") Kotwali, Farrukhabad, District Farrukhabad whereby appellant was convicted under section 302 of the Indian Penal Code 1860 (in short "IPC") and sentenced to life imprisonment and a fine of Rs. 5000/- with default stipulation.

2. The prosecution story in brief is that boys of family of Raja Ram (deceased) had some altercation (Mar-peet) with accused Alwar Dhanuk two months prior to present incident, which created animus between the rival families. On 08.07.1998 at 7.00 A.M., deceased Raja Ram Jatav had gone to agricultural field. Suddenly appellant/accused Alwar Dhanuk, armed with pistol, arrived on the spot and shot Raja Ram Jatav twice. The injured fell down but the informant and some other village folks challenged appellant whereupon Alwar Dhanuk fled from the place of occurrence. Raja Ram succumbed to those injuries immediately. The informant Atma Ram wrote First Information Report (in short "FIR") and lodged it at P.S. Kotwali, Farrukhabad at 8.30 A.M., i.e., within 90 minutes of the incident. Police Station was located at 5.00 Kms away from village Masaini, the place of occurrence. FIR is available on record as Exhibit Ka-1.

3. Report written by P.W.-1 Atma Ram (informant) was recorded by P.W.-4 Constable Kunwar Pal Singh at P.S. A Chik report , Exhibit Ka-3, was carved out by him and relevant entries were made into General Diary (in short "G.D.") of the P.S., extract of which is available on record as Exhibit Ka-4. P.W.-5 Sub Inspector (in short "S.I.") ML Sonker conducted inquest proceedings, report of which is available on the record as Exhibit Ka-5. Further documentation was done. Two empties of 12 bore (Fard Exhibit Ka-9) were also recovered from the spot. Cadaver of deceased was sent to the mortuary through Constable Moti Lal and Constable Raghu Raj Singh. Autopsy was conducted by P.W.-3 Dr. Saket Mohan, who found following ante-mortem injuries on the person of the deceased:

(i) Multiple pellet wounds entry over right side of chest upper in the area 38 cm. x 21 cm. Margin inverted lacerated echinosed measuring 0.3 x 02 cm skin and muscle and cavity deep.

(ii) Multiple pellets wound of entry in area 11 x 9 cm on back middle parts at level of L I vertebrae measuring cm 0.3 x 0.2 to 0.2 x 0.2 cm muscle and skin deep.

4. Doctor found 18 small pellets from chest and abdomen cavity of the corpse of deceased. Post mortem report, Exhibit Ka-2, reflects that deceased could have died at 7.00 A.M., on 08.07.1998 from firearm injuries. The case was investigated by S.I. TK Singh, who submitted charge sheet, Exhibit Ka-11 under section 302 IPC against Alwar Dhanuk.

5. The trial judge framed charge against appellant Alwar Dhanuk under section 302 IPC on 07.02.2000. The appellant denied charge and claimed to be tried. Prosecution adduced evidence of five witnesses namely; P.W.-1 Atma Ram (informant/eye witness), P.W.-2 Ramesh (eye witness), P.W.-3 Dr. Saket Mohan (conducted autopsy), P.W.-4 Constable Kunwar Pal Singh (recorded FIR) and P.W.-5 S.I. ML Sonker (conducted inquest proceedings and also proved charge sheet) submitted by Investigating Officer (in short " I.O.") S.I. TK Singh.

6. The statement of appellant Alwar Dhanuk was recorded under section 313 of the Code of Criminal Procedure 1973 (in short "Cr.P.C.") wherein he denied all allegations and claimed false implication on account of previous enmity with informant Atma Ram.

7. Appellant Alwar Dhanuk, himself appeared as defence witness (D.W.-1) during trial. On conclusion of trial, the learned Additional Sessions Judge held appellant Alwar Dhanuk guilty of offence under section 302 IPC and sentenced him, as aforesaid. This judgment is under challenge before this Court.

8. Heard Sri Harish Chandra Tiwari, Advocate Amicus Curiae for appellant Alwar Dhanuk and Sri Ajit Ray, learned Additional Government Advocate (in short "AGA") for the State.

9. Learned Amicus Curiae has argued that there is no evidence of previous incident, which is said to have been the reason for subsequent murder. Argument is that no family member of deceased Raja Ram Jatav appeared as a witness. Fact of the matter is that no other independent witness has been produced by prosecution. The presence of both the eye witnesses is doubtful. Surprisingly, deceased was not taken to the hospital for medical treatment. There is no evidence of lifting blood stained soil from the place of occurrence.

10. On the contrary, learned AGA has argued that testimony of P.W. 1 Atma Ram and P.W.-2 Ramesh is without any blemish. Their evidence is credible and there is absolutely no reason to disbelieve them. He has argued that there is no necessity to produce all persons, present at the time of incident, in the evidence. His submission is that stated mistakes allegedly committed by I.O., by themselves are not sufficient to discard the trustworthy eye witness account of witnesses.

11. This entire case is based on the eye witness account of two witnesses namely; P.W.-1 Atma Ram and P.W.-2 Ramesh. It is alleged that Atma Ram is related to accused appellant. P.W.-1 Atma Ram has stated that he was going to ease himself in open fields in the morning. Morning times are usually meant for ablution. Usually village folks, especially of hinterland go to open fields in the morning for easing themselves. This precisely has been the reason for presence of Raja Ram Jatav on the spot.

12. Atma Ram has testified that Raja Ram Jatav too was probably going for defecation, suddenly, appellant Alwar Dhanuk arrived there. He was carrying firearm. He shot Raja Ram Jatav twice and killed him.

13. P.W.-1 Atma Ram has admitted that appellant Alwar Dhanuk is a member of his clan but he has declined to accept existence of any previous enmity with Alwar Dhanuk. Several suggestions have been given to P.W.-1 Atma Ram in this regard and he has denied all such suggestions. Some allegations have been repeated by accused appellant Alwar Dhanuk in his statement recorded under section 313 Cr.P.C., but no evidence in this regard is available except the bald statement of accused Alwar Dhanuk as D.W. -1. It is pertinent to point out that Alwar Dhanuk has stated that there were some property disputes with Atma Ram. Property disputes usually results in litigation or in some sort of documentation but no such evidence has been placed on record by appellant Alwar Dhanuk except making a bald statement about property dispute.

14. We have carefully perused the statement of P.W.-1 Atma Ram. The evidence adduced by P.W.-1 Atma Ram is highly natural, in accordance with normal human conduct, credible and trustworthy. An intense cross-examination was conducted and yet nothing adverse could be extracted from him.

15. Learned Amicus Curiae has argued that Atma Ram has also lodged a report for murder of his son Dharmendra against Alwar Dhanuk, which indicates prior enmity. We are afraid that this argument is misleading and misconceived. The murder of Dharmendra took place on 24.07.1998 i.e., after sixteen days of present incident. It is true that appellant Alwar Dhanuk was named for the murder of Dharmendra and subsequently, he was also convicted for the murder of Dharmendra, son of Atma Ram but the present case is certainly not result of that case. In fact, the murder of Dharmendra perhaps is a result of enmity created on account of initiation of this present case.

16. P.W.-1 Atma Ram has depicted the entire incident in a trustworthy manner. His testimony is consistent with the original prosecution story as well as in consonance with the site plan, Exhibit Ka-10.

17. Learned Amicus Curiae has argued that P.W.-1 Atma Ram was at quite a distance with the appellant at the time of the incident, therefore, it was difficult for him to recognize the appellant.

18. We are not convinced of this argument at all. The distance referred by P.W.-1 Atma Ram between appellant and the witness is merely a guesstimate. Atma Ram did not certainly measure the distance. The site-plan discloses that line of visibility between the place of occurrence and place of witness was very clear. There was no impediment between them. It must be kept in mind that appellant Alwar Dhanuk is, in fact, the nephew of Atma Ram (P.W.-1). The incident occurred in day time, therefore, there was no obstruction and problem in recognizing the assailant.

19. P.W.2 Ramesh has also reinforced the prosecution story. This witness too was also going for defecation in the morning. He has testified that appellant Alwar Dhanuk shot deceased Raja Ram Jatav in his visibility. He has further testified that he was easing himself at the time of the incident and as soon as firearm was discharged, he started running but he had recognized accused Alwar Dhanuk at the place of occurrence.

20. Learned Amicus Curiae has pointed out that the statement of P.W.-2 Ramesh wherein he has stated that the police arrived at 9.00 A.M., and then he along with Atma Ram reached the place of occurrence. The argument is that this shows that both witnesses were not present at the time of the incident.

21. We are afraid that this argument is also not convincing at all. The testimony of P.W.-5 S.I. ML Sonker indicates that inquest proceedings were initiated at 9.30 A.M. FIR was lodged by Atma Ram at 8.30 morning at P.S. Kotwali, Farrukhabad. Meaning thereby that subsequent to the incident Atma Ram went to the P.S. for filing FIR. Extract of G.D., Exhibit Ka-4 also indicates the presence of Atma Ram (P.W.-1) at P.S. around 8.30 A.M. P.W.-2 Ramesh has repeatedly stressed that he was present at the time of the incident and had, in fact, witnessed the incident. We are convinced that the testimony of P.W.-2 Ramesh wherein he has stated that he has reached the place of occurrence along with P.W.-1 Atma Ram at 9.00 A.M., only means that he did not remain at the place of occurrence continuously and he again arrived at the place of occurrence subsequent to the arrival of the police. This statement does not at all means that either he or Atma Ram was not present at the time of the incident.

22. Learned Amicus Curiae has argued that it is strange that neither Atma Ram (P.W.-1) nor P.W.-2 Ramesh took the deceased to doctor. This strange conduct creates doubt about their presence on the spot.

23. First of all it must be understood that deceased Raja Ram was not family member of either Atma Ram or Ramesh. Both witnesses unwittingly became witness of the incident. Murder of a human is not everyday affair in the life of a person. The fact that Atma Ram was able to go to the P.S. to lodge FIR, itself is testimony of his perseverance. It appears that his previous job as a Chowkidar of village impelled him to go to the P.S., immediately but to expect more from them was not reasonable. In any case both witnesses have very clearly stated that Raja Ram died instantly. Raja Ram, in fact, fell down in an agricultural farm full of water. His whole body was stained with mud and water. This mud was subsequently noticed by P.W.-3 Dr. Saket Mohan. The record reveals that the agricultural field, where deceased fell down was full of water, at that time and the deceased fell down with his face down. He did not get up again. There was no possibility of his survival. In this scenario, it was natural for Atma Ram to go to P.S. for lodging of the FIR instead of lifting the dead body and taking him to a doctor. There was no use of taking a corpse for the medical treatment.

24. We have carefully perused the testimony of P.W.-2 Ramesh as well. We believe that the evidence of P.W.-2 Ramesh is highly credible and trustworthy. There is no reason to disbelieve him. Even appellant Alwar Dhanuk has not given any reason for the falsity of P.W.-2 Ramesh. He has leveled allegations against P.W.-1 Atma Ram, his uncle, but his testimony as D.W.-1 is totally silent about P.W.-2 Ramesh. We do not believe that there was any reason for P.W.-2 Ramesh to lie about the incident.

25. Learned Amicus Curiae has also argued that not a single member of the family of deceased Raja Ram, appeared in the witness box despite the fact that as many as three sons of deceased Raja Ram were living in the village Masaini. Submission is that this creates doubt about the veracity and credibility of two eye witnesses.

26. We are not satisfied with this argument also. Record reveals that no member of family of deceased was present at the time of the occurrence. In fact, there is no evidence on record to demonstrate their presence on the spot even subsequently. In fact, appellant Alwar Dhanuk, as D.W.-1, himself has admitted that none of the sons of the deceased witnessed the incident. In fact, this witness has admitted that as soon as he got the information of involvement of his name in the incident, he disappeared from the village. If the sons of deceased Raja Ram Jatav were not present on the spot obviously their evidence would have been superfluous in the instant case.

27. Learned Amicus Curiae has argued that the I.O., was not produced in this case, which is a fatal flaw in the prosecution case.

28. It is true that P.W.-5, S.I. ML Sonker conducted inquest proceedings and initial documentation but investigation was done by S.I. TK Singh, who has not been produced in the evidence. The learned trial judge has acknowledged this fact saying that despite repeated attempts, the presence of this witness could not be procured.

29. We feel that it would have been better if the aforesaid I.O. had been produced as a witness but mere failure to produce the said I.O. as a witness, is not sufficient to discard the testimony of trustworthy eye witnesses.

30. We believe that non examination of the I.O. is not fatal for prosecution in each and every case. No serious contradiction has been pointed out in the statements of the witnesses by the learned Amicus Curiae, therefore, the absence of non examination of the I.O., in this case will have no adverse affect. Learned Amicus Curiae has not shown any prejudice caused to the accused because of non examination of the I.O. We have carefully examined each material and we believe that non examination of I.O. in this case, will have no adverse affect as far as proof of guilt of the accused is concerned.

31. The evidence of P.W.-3 Dr. Saket Mohan discloses that the medical report is consistent with the oral testimony. Eye witnesses have testified that first shot was fired at back of the deceased, and then the injured turned around and requested the assailant to spare him, thereupon second shot was fired. The first fire shot hit the deceased on his back and the second shot hit the deceased on his chest. Same story has been given by P.W.-2 Ramesh. Post mortem report, exhibit Ka-2 and testimony of P.W. 3 Dr. Saket Mohan have also disclosed that one firearm wound was found on the back and second firearm wound was found on his chest. Oral testimony and the testimony of Dr. Saket Mohan are in consonance with each other, this further reinforces the prosecution story.

32. Learned Amicus Curiae has argued that the FIR pretend that P.W.-1 Atma Ram was village Chowkidar. Fact of the matter is that Atma Ram was not village Chowkidar.

33. Reason for this discrepancy can be explained very easily. Chhotey Lal, father of P.W.-1 Atma Ram (informant) was village Chowkidar and after his death Atma Ram assumed the responsibility of Chowkidar of the village. He has testified that he remained Chowkidar of the village for fifteen years but he left this Chowkidari in the year 1980. Meaning thereby, that at the time of incident he was not the Chowkidar of the village but he has indicated that most of the village folks now address him as Chowkidar. In fact, police personal, P.W.-4 Constable Kunwar Pratap Singh has admitted that informant Atma Ram is not a Chowkidar but he is referred as Chowkidar. There is nothing strange about it. There are people, who are addressed with the names of their profession and sometimes these names stuck with a particular person. There are several people who are known as "Vakil Saheb", "doctor Saheb" etc., but that does not mean that they are doctor or Vakil. There may be various reasons for people to acquire such nick names. In any case, this description of Atma Ram does not create any doubt about his testimony. His testimony is completely trustworthy.

34. We have carefully examined all materials, placed on record. Evidence produced by the prosecution is convincing. We believe that prosecution has successfully brought home the stated guilt of the accused Alwar Dhanuk. The impugned judgment and order does not warrant any interference.

35. Accordingly, this criminal appeal is dismissed. The impugned judgment and order dated 28 .04.2004 passed by Additional Sessions Judge, Court No. 3, Fatehgarh (Farrukhabad) in Session Trial No. 287 of 1999 arising out of Crime No. 543 of 1998, under section 302 IPC, P.S. Kotwali, Farrukhabad, District Farrukhabad is, hereby, affirmed.

36. Office is directed to certify this judgment to the court concerned through Sessions Judge, Farrukhabad within ten days. The court concerned is directed to send compliance of this judgment within one month thereafter.

Order date:24.07.2017

shailesh