Rajn @ Chandra Shekhar vs State Of U.P.
2017 Latest Caselaw 6734 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on 16/09/2017.
 
Judgment delivered on 13/11/2017.
 
AFR
 
Court No. - 49 
 

 
Case :- JAIL APPEAL No. - 5990 of 2010 
 

 
Appellant :- Raju @ Chandra Shekhar 
 
Respondent :- State Of U.P. 
 
Counsel for Appellant :- From Jail, Anil Kumar Pandey (AC), Sita Ram Vishwakarma (AC) 
 
Counsel for Respondent :- AGA 
 

 
Hon'ble Mrs. Vijay Lakshmi, J. 

Hon'ble Ifaqat Ali Khan, J.

(Delivered by Hon'ble Ifaqat Ali Khan, J.)

1. This appeal is filed by convict Raju @ Chandra Shekhar son of Karvari Lal, R/o. Miyanpur, P.S. Divyapur, District Auraiya, against the judgment dated 24.04.2001 passed by District and Sessions Judge, Kannauj in S.T. No. 346 of 1999 State Vs. Raju @ Chandra Shekhar under Section 302 I.P.C, Case Crime No. 982 of 1999, P.S and District Kannauj through the Senior Superintendent, Central Jail, Fatehgarh. Vide impugned judgment dated 24.04.2001, applicant Raju @ Chandra Shekhar was convicted under Section 302 I.P.C and was sentenced with life imprisonment.

2. The facts giving rise to the appeal are that on 25.10.1999 at 7:30 A.M. The first informant Sri Shyam Babu presented a written complaint at P.S. Kotwali, Kannauj with the allegations that he alongwith other porters and contractor work at coldstorage of Mukhiyaji in Manimau. In the night of 24.10.1999 they had fallen asleep after taking the meal. He was sleeping alongwith Ram Prasad porter in varanda of coldstorage where the weighing scale was installed and contractor Asha Ram was sleeping alongwith Santosh and Sanju under the thatch out side the quarter of northern side. At about 3:00 O'clock in the night, hearing the noise he woke up and he saw that Raju @ Chandra Shekhar son of Karvari Lal porter came out of varanda of coldstorage picking up a heavy weight from among the other weights lying near the scale, then he awaken Ram Prasad and both of them sitting silently, saw that Raju @ Chandra Shekhar went towards the thatch of the northern quarter with iron weight and hit it on the head of contractor Asha Ram who was sleeping on the plank. We were astonished. By that time Santosh had challenged Raju. We both and other porters rushed, then Raju @ Chandra Shekhar ran away towards the road after hitting the weight on the head of Asha Ram two or three times. We saw the whole occurrence in the electric light, we could not chase Raju due to night and fear. When we reached near the plank, we saw Asha Ram, who was lying in the pool of blood, had expired. Raju @ Chandra Shekhar had left the blood stained weight near the plank. In the morning he sent the information to Sri Girish Chand Dubey, the owner of coldstorage.

3. On the basis of this written complaint of Sri Shyam Babu, F.I.R was lodged at P.S. Kannauj and the case was registered and entry was made in general diary accordingly. The matter was investigated by Investigating Officer Sri Anand Kumar Srivastava, inquest report was prepared blood stained earth and plain earth and 10 kilogram weight used as weapon of offence were taken into custody. The postmortem examination of dead body of Asha Ram was done in District Hospital Fatehgarh and the postmortem examination report was prepared by Dr. B.G. Tiwari.

4. After investigation Investigating Officer Sri Anand Kumar Srivastava, submitted the chargesheet against accused/applicant Raju @ Chandra Shekhar, under section 302 I.P.C.

5. The charge under section 302 I.P.C was framed against Raju @ Chandra Shekhar under section 302 I.P.C of 23.12.1999 by Sessions Judge, Kannauj.

6. Prosecution examined four witnesses in all to prove its case. Out of them PW-1 Shyam Babu is the complainant as well as the eyes witness of the occurrence, who in his statement has supported the prosecution case.

7. PW-2, Dr. B.G. Tiwari has conducted the autopsy of dead body of Asha Ram and prepared the postmortem examination report. In his statement as PW-2 he has mentioned about the following 11 ante-mortem injuries found on the body of deceased Asha Ram:-

(1) Abraded contusion 11X10 cm left side head.

(2) L.W. 1X1.5 cm contilage deep front of left ear.

(3) Abraded contusion 6X4 cm left side face.

(4) L.W. 3X1 cm bone deep right side back of head oecipitol region.

(5) Abraded contusion 3X2 cm on right side forehead that above eyebrow.

(6) L.W. 2X0.5 cm bone deep over left eyebrow.

(7) Contusion 3X2 cm on top of the shoulder.

(8) L.W 1X0.5 cm muscle deep dorsas side right wrist.

(9) Abraded contusion 7X4 cm dorsas side right hand.

(10) Abrasion 1X0.5 cm base of right thumb dorsum side.

(11) Contusion 5X3 cm over left mostord Region.

8. PW-2 has also stated that in his opinion the cause of death of Asha Ram was shock and hemorrhage as a result of ante-mortem injuries.

9. Third witness examined by the prosecution is the Investigating Officer Sri Anand Prakash Srivastava, who has prepared the inquest report Ex. 3 to Ex. 6. He has collected the blood stained and plain earth (Ex. A-7), and has prepared the site plan (Ex. Ka-9) and on the same day at 7:30 A.M. accused Raju @ Chadra Shekhar was arrested by him near railway station of Kannauj. After the completion of investigation, he (PW-3) has filed the charge sheet under section 302 I.P.C against the accused/applicant Raju @ Chandra Shekhar. PW-3 has duly proved the charge sheet and inquest report during his examination.

10. PW-4 Head Constable Raj Nath Tiwari, has prepared the check report no. 383 of 1999 of crime no. 982 of 1999 under Section 302 I.P.C. He has also made relevant entries in the general diary regarding the registration of the case and he has prepared the special report. He has proved check F.I.R and general diary. On the basis of being acquainted with the hand writing and the signature of constable Raj Bahadur, he has also proved the general diary of the departure of police party.

11. In his statement under section 313 Cr.P.C accused/applicant denied all allegations of the prosecution and stated that witnesses have given false evidence and the false case is registered against him. In the night of occurrence he went to pass the urine and witnesses saw him and seeing the dead body of Asha Ram in morning on the ground of suspicion, he is made accused in this case and police has arrested him from the coldstorage.

12. Learned Sessions Judge, after hearing the arguments and perusal of record, passed the impugned judgment dated 24.04.2001 convicting the accused/applicant under section 302 I.P.C and punishing him with the sentenced of life imprisonment.

13. We heard the learned counsel for the appellant Sri Anil Kumar Pandey, who is the Amicus Curiae in this case and Sri Chandrajeet Yadav, learned A.G.A for the State.

14. Assailing the impugned judgment learned counsel for the accused/applicant argued that in this case prosecution has not disclosed the motive of committing the offence by accused/appellant Raju @ Chandra Shekhar which makes the prosecution case doubtful.

15. We do not agree with this argument of the learned counsel for the appellant on the ground that it is the case of direct evidence and accused is named in F.I.R and in case of direct evidence, it is not necessary to prove the motive of offence. Hon'ble Division Bench Allahabad High Court in ruling Ragghu and other Vs. State of U.P. Cr.R 1993 page 246 has held that it is not always possible for prosecution to know the motive behind offence. Hon'ble Supreme Court in the case of State of Haryana Vs. Sher Singh and others AIR 1981 Supreme Court page 1021 has held that prosecution is not bound to prove the motive of any offence in a criminal case. Motive is known only to the preparator of the crime and may not be known to other. In the cases of direct evidence failure to prove motive does not shatter the prosecution case.

16. Learned counsel for the appellant advanced his second argument that blood stained and plain earth is not sent for the chemical examination and thus the place of occurrence is not proved in this case.

17. In our opinion, this argument of learned counsel for the accused/applicant does not help the accused because sending of blood stained and plain earth for chemical examination is necessary only in that case where the entire case hinge upon fixing of the site of the assault. Hon'ble Supreme Court in Luxmi Singh Vs. State of Bihar 1976 (4 SCC) 394, has held that the failure to send blood stained earth to chemical examination can prove fatal where the entire case hinge upon fixing the site of the assault. This ruling applies to the facts of present case.

18. In this case accused himself has admitted that in the night of 24/25-10-1999 he was also present at the coldstorage. Deceased Asha Ram was found murdered under the thatch in the premises of coldstorage and it is not the case of accused/applicant that Asha Ram was murdered somewhere else and his dead body was thrown at alleged place of occurrence. The Division Bench of This court in Kunwar Vs. State of U.P. A.C.R. 1993 page 241 has held that blood stained earth having not been sent for chemical examination by itself is not a ground to disbelieve the prosecution case Hon'ble Apex Court in Ramesh Chander Vs. State (Delhi Administration) 1992 (4) J.T. Page 405 has held that the failure of prosecution to send the blood stained recovered material for chemical examination by itself is not a ground to doubt the place of occurrence and discard the prosecution case. These ruling applies to the facts of this case. Therefore, in our opinion non chemical examination of blood stained earth does not create doubt about the place of occurrence in this case, nor it is the ground to declared the prosecution case, in this respect it is also important that lacuna of investigation cannot be the ground of acquittal of accused as Hon'ble Supreme Court has held in State of U.P. Vs. Hari Mohan ACC 2001 (42) page 91, Karnail Singh Vs. State of M.P. AIR 1995 Supreme Court page 277 Zahira Habib Ullah. H. Shekh and another Vs. State of Gujrat and others 2004 Supreme Court cases (Cri 999), State of Rajasthan Vs. Kishore 1996 Criminal law general 203.

19. Learned counsel for the appellant argued that as per the prosecution case the occurrence took place in the night of 24/25-10-1999 at about 3:00 A.M. in premises of coldstorage situated in Mani Mau within the area of P.S. Kannauj, and on 25.10.1999 at 7:30 P.M. accused/appellant has been arrested near the railway station of Kannauj, it is highly improbable that after the 15 hours of the occurrence accused will remain near the place of occurrence which creats doubt on the prosecution case. We disagree with this argument of learned counsel for the appellant on the two grounds :-

(i) Firstly, there is no evidence in this case that Kannauj railway Station is how far away from the coldstorage where the offence is committed.

(ii) Secondly, this argument is hypothetical there may be so many reasons of not fleeing of the accused beyond the local area of occurrence. It is also possible that accused could not have the opportunity of fleeing from local area of occurrence due to fear of arrest.

20. Learned counsel for the appellant argued that recovery of memo of blood stained and plain earth is not proved by the witnesses Amar Singh and Arun Kumar. In our opinion this argument of learned counsel for the appellant has no force as the recovery memo of blood stained and plain earth is proved by PW-3 Sri Anand Prakash Srivastava, and examination of all witnesses of recovery memo is not required.

21. Learned counsel for the appellant argued that PW-1 Shyam Babu in his statement has stated that at the time of assault by Raju @ Chandra Shekhar Asha Ram he was sleeping lying on the right hand side and putting his right hand below the head, in such situation Asha Ram should have sustained all the injuries on the left side but the postmortem report reveals that Asha Ram sustained injuries on the both left and right side of his head which makes the prosecution story doubtful.

22. We find no force in this argument of the learned counsel for the appellant because it is very much possible that Asha Ram would have tried to save himself and in saving himself the side of his head would have been changed, secondly, the force of weight with which accused Raju @ Chandra Shekhar was assaulting, would have turned the side of the face of Asha Ram.

23. Learned counsel for the appellant argued that the prosecution witness PW-1 Shyam Babu is brother-in-law of deceased Asha Ram hence his statement is not reliable. This argument is not tenable as the Hon'ble Supreme Court in ruling of Surendra Singh and another Vs. State of U.P. 2004 Supreme Court cases Criminal page 717 has held that relationship of witness is not a factor to effect the credibility of witness. Hon'ble Supreme Court again in ruling of Prasad Mahto Vs. State of Bihar 1994 Division Bench Supreme Court cases criminal page 55 (page 54) has held that the witness who is the son of deceased would not left the real assailant escape and substitute him by an innocent person. Hon'ble Supreme Court in this ruling believed the testimony of the witness who was the son of deceased.

24. Learned counsel for the appellant argued that as per prosecution case witnesses have seen the occurrence in the light of electric bulb. PW-1 Shyam Babu said in his statement that bulb was installed in the thatch whereas PW-3, Investigating Officer, Sri Anand Prakash Srivastava, in his statement has said that he saw the electric bulb installed on the wall of the coldstorage. This contradiction in the statement of witnesses creates doubt on the prosecution case.

25. In our opinion, this contradiction is not important because PW-1 Shyma Babu has said that he did not remember that he told this fact to Investigating Officer or not that the electric bulb was installed in the thatch and it is a matter of common parlance that so many electric bulbs are installed in different places in coldstorage premises for the purpose of security, and for working in night as it is usually done. If the Investigating Officer says that electric bulb was installed in the wall of coldstorage and PW-1 Shyma Babu says that electric bulb was installed in thatch is a minor contradiction.

26. Some contradictions and inconsistencies between the statement of witnesses is natural Hon'ble Supreme Court in Surendra Singh and another Vs. State of U.P. 2004 Supreme Court cases Criminal page 717 (55) has held that contradiction inconsistencies exaggeration or embellishment in the statement of witnesses are not fatal unless the medical evidence shows the ocular evidence totally impossible. Division Bench of Hon'ble Supreme Court in case of State of H.P. Vs. Lekhraj and another 2000 Supreme Court cases criminal page 147 has held that contradictions inconsistencies exaggeration and embellishment does not make prosecution case doubtful if they are minor, These rulings applies to the facts of this case.

27. Learned counsel for the appellant argued that according to the F.I.R besides PW-1 Shyam Babu, porters Ram Prasad, Santosh and Sanju were present at the time of occurrence on the spot and as PW-1 in his statement PW-1 has admitted that 26/27 porters were also sleeping at the time of occurrence but only PW-1 Shyam Babu is examined as the witness of fact and no other witness is examined statement of PW-1 Shyam Babu is not sufficient to prove the prosecution case.

28. We disagree with this argument to the learned counsel for the appellant in the light of following rules of Hon'ble Supreme Court in ruling Parveen Vs. State of Haryana 1997 Supreme Court cases criminal page 63 has held that if the testimony of solitary witness is corroborated by other evidence then conviction can be based upon the solitary witness Hon'ble Supreme Court in ruling Bahul Bhushan @ Bahuna Krishan Vs. State of U.P. Tamil Nadu 1989 Supreme Court cases Criminal page 353 has held that this is no rule of law that the testimony of single witness cannot be accepted and conviction can be based on testimony of the single witness when it was straightforward cogent enough to prove the prosecution case and stood corroborated by medical evidence. These ruling applies to fact of this case because there is no enmity of PW-1 Shyam Babu with the accused-appellant and there is no reasons of giving the false statement by Shyam Babu against appellant. The statement of PW-1 Shyam Babu is fully corroborated by the postmortem examination report in which it is mentioned that 11 injuries were found on the body of the deceased Asha Ram and they all are contusion, abraded contusion and lacerated wound which can be caused by hitting weight on head of deceased Asha Ram. In the postmortem report it is also mentioned that the death of Asha Ram is caused due to shock and hemorrhage caused due to anti mortem injuries. As per prosecution case occurrence took place in the night of 24/25-10-1999 at 3:00 P.M. Postmortem is done on 26.10.1999 at 2:30 P.M that is near about 1 1/2 days after the occurrence and in the postmortem itself it is mentioned that the death of Asha Ram is caused about 1 1/2 days before the time of postmortem. This also corroborated time of occurrence. Thus the statement of PW-1 Shyam Babu is fully corroborated by medical evidence and his statement is reliable.

29. The statement of PW-1 to prove the occurrence is fully reliable being supported by the medical evidence. Postmortem report supports the prosecution case that deceased Asha Ram was assaulted by weight on his head at about 3:00 P.M. in the night of 24/25-10-1999 occurrence took place at in the night of 24/25-10-1999 at 3:00 A.M and the F.I.R is promptly lodged at 7:30 A.M. on 25.10.1999. The police station is at the distance of 9 kilometers from the place of occurrence.

30. On the basis of above discussion, we come to the conclusion that the prosecution has proved its case beyond doubt and there is no illegality and irregularity in the judgment dated 24.04.2001 passed by Sessions Judge, Kannauj in S.T. No. 346 of 1999 State Vs. Raju @ Chandra Shekhar under Section 302 I.P.C, Case Crime No. 982 of 1999, P.S and District Kannauj and there is no reason to interfere in the impugned judgment. We confirm the judgment dated 24.04.2001 passed by Sessions Judge, Kannauj in S.T. No. 346 of 1999 and the appeal is liable to be dismissed.

31. Appeal is dismissed. The learned Amicus Curiae Sri Anil Kumar Pandey, who has very efficiently assisted this Court, will get Rs. 11,000/- as fee.

Order Date :- 13/11/2017.

Vikram