Nafees vs State Of U.P.
2017 Latest Caselaw 1720 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
	Court No. - 44
 
											AFR
 

 
Case :- CRIMINAL APPEAL No. - 5741 of 2005
 
Appellant :- Nafees
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Arvind Kumar Srivastava,Ambrish Kumar,Jag Narayan
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Prabhat Chandra Tripathi,J.

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

1. Present criminal appeal has been filed by appellant Nafees against the impugned Judgement and order dated 21.11.2005 passed by the then Sessions Judge Kannauj in Sessions Trial No.466 of 2003, arising out of Case Crime No.390 of 2003 Police Station (in short P.S.) Kotwali Kannauj, District Kannuaj, whereby, he was convicted under Section 302 Indian Penal Code 1860 (in short I.P.C.) and sentenced to life imprisonment.

2. Prosecution story in brief is that 19 years old deceased Sridevi alongwith her younger sister Kusuma (P.W.-1), went to collect yellow soil (Pili Mitti) from Gram Sabha land near the orchard of one Shyam Bihari. Appellant Nafees surfaced there and started teasing Sridevi who protested and resisted his advances whereupon the appellant Nafees stabbed her repeatedly. Sridevi got badly injured. She was shifted to Vinod Dixit Hospital, Kannauj for treatment but considering the gravity of her condition, she was referred to Kanpur for treatment. She succumbed to her injuries on her way to Kanpur.

3. It is stated that incident was also witnessed by Kishan Pal (P.W.-3) who had also gone near the orchard of Shyam Bihari for defecation. Informant Ved Prakash alias Guddu (P.W.-2) also reached the place of occurrence on hearing the commotion. Injured Sridevi conveyed the name of assailant to P.W.-2 Ved Prakash alias Guddu (brother of deceased).

4. Informant brought the corpse of deceased Sridevi on the same Jeep back to P.S. Kotwali Kannauj. First Information Report (in short F.I.R.) was scribed by him outside the police station and lodged it (Ex.Ka-1). A chick report Ex.Ka.-7 was carved out. Relevant entries were made in General Diary (in short G.D.) of the police station- extract of which is available on record as Ex.Ka.-8. Inquest proceedings were conducted then and there. Inquest report Ex.Ka.3 is available on record. Cadaver was sent for postmortem through constable Vijay Kumar Singh (P.W.-10) and Homegaurd Surendra Singh. P.W.-4 Dr. Ram Kumar conducted postmortem (Ex.Ka.-2) on 11.6.2003 at about 3:00pm and found following ante-mortem injuries on the person of deceased Sridevi:-

(i). Stab wound 3cm x 1.5cm x chest cavity deep position left side lower part of chest.

(ii). Stab wound 4 cm x 1.5cm x abdominal cavity deep position left side abdomen 4cm away umbilicus at 2 O'clock position antrum easing and bleeding wound.

(iii) Stab wound 2cm x 1cm x chest cavity deep position right side of chest 5cm below axilla.

(iv) Incised wound 3cm x 1cm x muscle deep posterior top left side shoulder.

(v) Incised wound 2cm x 1cm x muscle deep posterior part of right arm 10 cm below right shoulder.

(vi) Incised wound 5cm x 1.5cm x bere deep position anterior side of right elbow joint.

(vii) Incised wound 4cm x 1.cm x muscle deep position ...right forearm middle part.

(viii) Incised wound 2cm x 6cm below side left 5cm x1cm muscle deep.

(ix) Incised wound 2.5cm x 1cm x muscle deep... side left position.

(x) Incised wound 2.5cm x 1 cm x muscle deep front of left side... middle part.

(xi) Incised wound 5cm x 1cm x muscle deep ... of left leg.

(xii) Stab wound 4cm x 1 cm x muscle deep ........ lower of left abdomen.

5. Initially the investigation was entrusted to P.W.-5 Hoti Lal who conducted inquest proceedings and prepared the relevant documents. After preliminary investigation, investigation was entrusted to P.W.-8 Nand Kumar Ojha who recorded statement of complainant, prepared site plan (Ex.Ka.-16), lifted samples of bloodstained and simple earth (Fard Ex.Ka-17) from the spot. This Investigation Officer (in short I.O) also recorded statement of P.W.-1 Kusuma, Pappu, Satyaprakash and other witnesses. Several attempts were made to arrest the appellant Nafees on various placed but he disappeared from the village. Ultimately appellant Nafees was arrested at about 1:30pm on 22.6.2003 on information furnished by some informant. A memorandum of arrest is available on record as Ex.Ka.18.

6. Prosecution says that appellant Nafees also gave information about the knife used in the assassination of deceased Sridevi and on the same day bloodstained knife was recovered from his residence. Relevant fard is available on record as Ex.Ka.-19.

7. The bloodstained knife, bloodstained clothes of deceased Sridevi, samples of soil bloodstained and simple earth lifted from the spot were sent for Forensic Examination to Forensic Laboratory, Lucknow. The report says that bloodstained earth, Kurta and Salwar of deceased were found stained with human blood. However, disintegrated blood was found on knife and bandage etc., because of which their origin could not be ascertained. Forensic report is available on record as Ex.Ka.15. Subsequently, the investigation was handed-over to one Satish Chandra Dubey (P.W.-7). He also recorded the some statements and submitted chargesheet (Ex.Ka.-14) against appellant Nafees.

8. Then Session Judge, Kannauj framed charge under Section 302 I.P.C. against appellant Nafees on 4.12.2003. Accused denied charge and preferred trial.

9. Prosecution has produced as many as 10 witnesses in support of their allegation, namely P.W.-1 Kasuma (eye witness), P.W.-2 Ved Prakash alias Guddu (informant), P.W.-3 Kishan Pal (eye witness), P.W.-4 Dr. Ram Kumar, P.W.-5 S.I. Hoti Lal (first I.O.), P.W.-6 H.C.P. Mahaveer Singh (recorded F.I.R.), P.W.-7 Satish Chandra Dubey (third I.O.), P.W.-8 S.I. Nand Kumar Ojha (second I.O.), P.W.-9 Dr. R.P. Singh (provided first aid) and P.W.-10 constable Vijay Kumar Singh (transported cadaver).

10. The statement of appellant Nafees under Section 313 Cr.P.C. was recorded by Trial Judge, wherein appellant Nafees denied all allegations and claimed false implication at the instance of village Pradhan Raja Ram. He has also adduced the evidence of one Naeem D.W.-1. who was not present at the spot at the time of the incident however he has testified that dead body of deceased Sridevi was lifted from sunflower farm of one Amruddin at the about 2:00pm in the day and then she was first taken to Vinod Dixit Hospital at about 2-3:00pm, where she was declared dead.

11. On conclusion of trial the then Sessions Judge Kannauj held Nafees guilty of offence under Section 302 I.P.C. and sentenced him to life imprisonment vide impugned judgment and order dated 21.11.2005. This judgment is under challenged before this Court.

12. Heard Sri Ambrish Kumar, learned counsel for sole appellant Nafees and Sri Ajit Ray, learned AGA for State.

13. Learned counsel for appellant has submitted that no independent witness has been produced by prosecution; F.I.R. was ante timed; time of incident is not certain and defence witness has disputed the time of incident and place of death. There is no reason to disbelieve the testimony of D.W.-1 Naeem @ Papdu.

14. Per contra, learned AGA has argued that incident occurred early in the morning at about 6:30am, therefore, possibility of large number of witnesses on the spot was highly unlikely.

15. Learned AGA has further, submitted that defence witness is not trustworthy in view of the testimony of P.W.-9 Dr. R.P. Singh of Vinod Dixit Hospital, Kannauj who has specifically testified that deceased Sridevi was brought to his Hospital somewhere at about 8:00am in the morning, where she was provided first aid and then referred to District Kanpur for further treatment. He has argued that absence of motive per say is not fatal to the prosecution case in view of direct evidence of incident in this case. In any, case, specific motive has been put forward by the companion of deceased Sridevi.

16. Prosecution story discloses that two sisters namely deceased Sridevi and her younger sister P.W.-1 Kusuma went to collect the yellow soil (Pili Mitti) from the Gram Sabha land near the orchard of Shyam Bihari on 10.6.2003 at about 6:30am. P.W.-1 Kusuma has testified that as soon as they reached the agricultural field of one Amruddin near the orchard of Shyam Bihari appellant Nafees surfaced from the sunflower farm nearby. He caught the hand of deceased Sridevi and started teasing her. He asked her to accompany him and also proclaimed that he will not permit her marriage with third person. This strange announcement does indicate some previous inclination, probably one-sided.

17. It is pertinent to point out that record discloses that Sridevi was engaged with one Raghuvendra who subsequently married P.W.-1 Kusuma after the murder of Sridevi. The marriage of Sridevi was to be performed within 7 days of the incident.

18. P.W.-1 Kusuma has further, testified that her deceased sister Sridevi refused to accompany appellant Nafees and protested whereupon appellant Nafees stabbed her repeatedly. Sridevi fell down. Both deceased Sridevi and P.W.-1 Kusuma made commotion whereupon P.W.-3 Kishan Pal also arrived. He challenged appellant Nafees but Nafees fled away from the spot with his bloodstained knife. This commotion also attracted P.W.-2 Ved Prakash and other villagers on the spot. Injured Sridevi communicated the entire story to her brother P.W.-2 Ved Prakash. Ved Prakash and other village folks took the injured Sridevi first to Vinod Dixit Hospital Kannauj and thereafter towards Kanpur, though, they could not reach Kanpur as injured Sridevi succumbed to her injuries before reaching Kanpur.

19. P.W.-3 Kishan Pal has also reinforced the prosecution story as well as testimony of P.W.-1 Kusuma. He had gone to field near orchard of Shyam Bihari for easing himself. He was coming back, when he heard the commotion raised by sisters. He has specifically stated that Nafees was still stabbing Sridevi when he reached the place of occurrence. It was the arrival of P.W.-3 Kishan Pal which made appellant Nafees flee from the spot. Within few minutes, P.W.-2 Ved Prakash and other villagers also arrived.

20. We have carefully examined all material on record. Evidence of P.W.-1 Kusuma and P.W.-3 Kishan Kishan Pal, is highly natural, credible, in accordance with normal human conduct and trustworthy. There is no reason for them to implicate appellant Nafees falsely and spare the real culprit. The background of this incident must be kept in mind. Marriage of Sridevi was to be performed after 7 days. P.W.-1 Kusuma accompanied her deceased sister Sridevi for collecting yellow soil (Pili Mitti) apparently for domestic use. Narration of prosecution story by these witnesses is consistent with original prosecution case.

21. It is true that P.W.-2 Ved Prakash (informant) was not present at the time of incident. Infact no such claim has been made by informant himself even in the F.I.R. (Ex.Ka.-1). Both P.W.-1 Kusuma and P.W.-3 Kishan Pal have very clearly stated that P.W.-2 Ved Prakash alias Guddu arrived within few minutes to the place of occurrence. This witness Ved Prakash (P.W.-2) has testified that he was busy in extending invitations in the village. Suddenly he heard the alarm raised by his sister so he rushed towards the source of noise and found Sridevi in injured condition. P.W.-1 Kusuma and P.W-3 Kishan Pal were also present. Appellant Nafees had already left the spot. The information about the incident was communicated by deceased Sridevi as well as information furnished by P.W.-1 Kusuma and P.W.-3 Kishan Pal are relevant under Indian Evidence Act 1872 (in short Evidence Act). It is true that P.W.-2 Ved Prakash was not present at the time of incident but his immediate arrival on the spot in the wake of incident makes him an important witness.

22. We have carefully perused the evidence of P.W.-2 Ved Prakash. His testimony has established ancillary circumstances in the wake of the main incident which in turn help in establishing the main incident i.e. the murder of deceased Sridevi. The information furnished by deceased Sridevi to informant Ved Prakash (P.W.-2) about the incident, is relevant and admissible.

23. Learned Counsel for appellant has argued that there is doubt about the timing of incident in view of statement of D.W.-1 Naeem. He has also argued that F.I.R. was lodged at about 4:05pm at police station, which was merely nine kilometer away from the incident. His submission is that prosecution has failed to prove any satisfactory explanation for delay in lodging the F.I.R. and for the testimony of D.W.-1 Naeem.

24. We are not convinced of this argument. Claim of uncertainty about the time of incident is not acceptable. The prosecution has alleged that incident occurred at about 6:30am in the morning on 10.6.2003. F.I.R. was lodged at 4:05pm in the evening. Police Station was nine kilometer away from the place of occurrence. It cannot be said that F.I.R. was delayed. In any case, the delay in lodging the F.I.R. per-se is not necessarily fatal to the prosecution case. Delay is problematic only when it is demonstrated that delay occurred on account of manipulation. The allegation of manipulation have to be proved by the party raising it. In this case there was no reason for prosecution to manipulate the F.I.R. Fact of the matter that there is no evidence on record to support such claim.

25. The perusal of evidence would disclose that incident allegedly occurred at about 6:30am in the morning but Sridevi did not die immediately. The record reveals that his brother P.W.-2 Ved Prakash arrived within few minutes of the incident. Some villagers also gathered at the place of occurrence. Then a transport was arranged and injured was then taken to first Vinod Dixit Hospital, Kannauj. It was quite natural conduct for family members to take victim to the nearby Doctor. The arrival of victim at Vinod Dixit Hospital has also been proved by P.W.-9 Dr. R.P. Singh. This independent person has testified on oath that 19 years old injured Sridevi was brought to his hospital at about 8:00am in the morning for her treatment. He has also testified that deceased Sridevi had sustained various injuries on her person. First aid was provided to Sridevi but considering the gravity of situation, she was referred to Kanpur Hospital for treatment. The reference made by this Doctor is available on record as Ex.Ka-20. This reference slip (Ex.Ka.-20) clearly indicate that 19 years old Sridevi was first admitted to Vinod Dixit Hospital, Kannauj for treatment. This reference slip (Ex.Ka.-20) not only indicates the injured condition of Sridevi but also establishes her presence in the hospital. This reference slip also discloses the presence of P.W.-2 Ved Prakash who brought the injured to Vinod Dixit Hospital, Kannauj.

26. Testimony of P.W-9 Dr. R.P. Singh alongwith reference slip (Ex.Ka.-20) clearly shows that Sridevi sustained injuries prior to 8:00am on 10.6.2003. It further, belie the argument of learned counsel for appellant that deceased was lifted from the sunflower farm somewhere about 2-3:00pm. It also falsify the testimony of D.W.-1 Naeem. Dr. R.P. Singh has established that victim was seriously injured and needed higher surgical and medical aid. The patient had spent about 10-15 minute's time with the Doctor. We can safely conclude that she must have spent some 30-40 minutes in the hospital and thereafter, she was again transported towards District Kanpur but injured Sridevi could not make it and died near Uttaripura on her way to Kanpur.

27. The family member brought the corpse of deceased Sridevi to back Police Station Kotwali, Kannauj, where subsequent proceedings were conducted. The evidence of P.W.-6 H.C.P. Mahaveer Singh also noted, the arrival of the complainant alongwith cadaver to the police station in afternoon at about 4:05pm. P.W.-6 H.C.P. Mahaveer Singh recorded the F.I.R. and carved out chick report as Ex.Ka.-7. The fact that in-charge of the police station, P.W-8 Nand Kumar Ojha was not present to the police station and investigation had to be initiated by P.W.-5 S.I. Hotilal itself, establishes the veracity of prosecution story. The record discloses that in-charge of the police station was busy in Ganga Mela of Dashehara at Mehdi Ghat. Information was given to him on wireless set. Nand Kumar Ojha rushed towards the police station and took over the investigation from P.W.-5 S.I. Hoti Lal. This chain of circumstances establishes the truthfulness of prosecution story. It further, establishes that no unnecessary delay was caused in lodging the F.I.R. There is no evidence on the record to demonstrate the F.I.R. was manipulated. This evidence discloses that deceased Sridevi had already sustained injuries prior to 8:00am which further reinforce the core of prosecution story.

28. Learned counsel for appellant has also argued that presence of P.W.-1 Kusum and P.W.-3 Kishan Pal on the spot at the time of incident is doubtful. We are afraid that this argument too is not acceptable. It is not unusual for sister to accompany another sister. Deceased Sridevi had been dispatched by family for domestic work. She was to be married within 7 days. Usually young person likely to be married in near future are not allowed by families to go out alone from the residence especially in the hinterland of this State. The testimony of P.W.-1 Kusuma is so clear and normal that her presence cannot be doubted at all.

29. P.W.-3 Kishan Pal has also disclosed the reason for his presence on the place of occurrence. Initially when attack was made, injured and her sister P.W.-1 Kusuma raised alarm which brought him to the place of occurrence in a jiffy. There is nothing on record to create any doubt about their presence on the spot. We have carefully examined all material on record. Two eye witnesses had seen the incident. P.W.-3 Ved Prakash was apprised of assailants identity within few minutes of the incident. The transport of victim first to Vinod Dixit Hospital, Kannauj and thereafter her departure towards Kanpur has been delineated and established both by oral evidence and documentary evidence.

30. The arrival of cadaver to the police station has been proved by P.W.-5 (first I.O.) Hoti Lal and P.W.-6 H.C.P. Mahaveer Singh. The fact that information was sent on wireless set to P.W.-8 Nand Kumar Ojha has also reinforced the prosecution story. The testimonies of P.W.-9 Dr. R.P. Singh of Vinod Dixit Hospital, Kannauj and P.W.-4 Dr. Ram Kumar disclose that medical evidence is also consistent with oral evidence. P.W.-9 Dr. R.P. Singh has established the critical condition of injured Sridevi at about 8:00am in the morning of incident.

31. P.W.-4 Dr. Ram Kumar, conducted postmortem and found as many as 12 injuries on the person of deceased including 4 stab wounds and 7 incised wounds. All injuries are consistent with the prosecution story and the eye witness account of P.W.-1 Kusuma and P.W.-3 Kishan Pal. We believe that one lacerated wound (injury no.6) does not create any inconsistency in the prosecution case. The victim first fell down on the road and thereafter she was transported in the vehicle to Vinod Dixit Hospital, Kannauj and subsequently taken towards Kanpur. It is very much possible that her fall on the earth or her quick transportation in rugged vehicle may account for this lacerated wound. In any case, medical evidence is never compared with oral evidence in mechanical fashion. Overall the medical evidence is completely consistent with the prosecution story and oral evidence.

32. We have carefully examined all material on record. We believe that prosecution has established its case beyond all reasonable doubt. The impugned judgment does not warrant any interference.

33. Criminal Appeal of appellant Nafees is dismissed. Impugned Judgment and order dated 21.11.2005 passed by Sessions Judge Kannauj in Sessions Trial No.466 of 2003, arising out of Case Crime No.390 of 2003 Police Station-Kotwali Kannauj, under Section 302 I.P.C. is hereby affirmed.

34. Office is directed to certify this judgment to the concerned Court within 10 days. The concerned Court shall send the compliance report within one month thereafter.

Order Date :-15.6.2017

Neeraj