Mahendra Singh vs State Of U.P.
2017 Latest Caselaw 5367 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.  
 
Reserved 
 
Court No. - 29
 

 
Case :- CRIMINAL APPEAL No. - 3392 of 2006
 

 
Appellant :- Mahendra Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Lav Srivastava,Gauri Singh,Madan Gopal Sharma,Mamta Singh,Nikhil Kumar,R S Mishra,Rajneesh Sharma,Sudhindra Kumar Singh,V.P. Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Tarun Agarwala,J.

Hon'ble Rajul Bhargava,J.

( Delivered by Justice Rajul Bhargava )

(1) The present appeal has been preferred by the appellant against the judgment and order dated 22.5.2006 passed by Special Judge, (S.C./S.T. Act) District Banda in Special Sessions Trial No.90 of 2005 (State of U.P. Vs. Mahendra Singh), under Sections 302/504 IPC and 3(2)5 of S.C./S.T. Act, Police Station Rajapur, District Banda, whereby the appellant was convicted and sentenced for life imprisonment with a fine of Rs.20,000/-. In default of payment of fine he has to further undergo additional six months rigorous imprisonment.

(2) In the instant appeal, the case of the prosecution may be summarized as under :-

That on 30.1.1995 at 5.15 P.M. a first information report was lodged at Police Station Rajapur District Banda regarding an incident which is said to have taken place on 30.1.1995 at about 4 P.M.

(3) The prosecution case, in brief, is that about 20 days before the incident the accused-appellant Mahendra Singh forcibly wanted to cut the Neem tree situated in the field of the informant's grand father. However, Mahaveer (deceased) and did not permit him to cut the tree. On that day the accused-appellant left the place. However, on 30.1.1995 he again came at the tube-well of the first informant at about 4 P.M. armed with his licensed double barrel gun. The informant's grand father looking to his agitated mood permitted him to cut the tree, but it was strongly opposed by his father Mahaveer (deceased). Upon it, the accused started hurling abuses and fired on the deceased which hit on his near the neck due to which he fell down. Then the accused-appellant again fired which hit on the left side of chest. The informant and other family members who are present there had witnessed to the incident. Then the first informant Bachcha scribed first information report in the village and got it registered as Case Crime No.12 of 1995, under Sections 302/504 IPC and 3(2) 5 of S.C./S.T. Act, police station Rajapur District Banda.

(4) After the registration of first information report, the investigation was taken over by P.W.3 Sub-Inspector Prasuram Verma posted as Station Officer at police station Rajapur, District Banda. After thorough investigation he submitted charge sheet against the sole accused-appellant Mahendra Singh under Section 302/504 IPC and 3(2)5 of S.C./S.T. Act. After committal of the case to the Court of Session the same was tried by Special Judge (S.C./S.T. Act) Banda, who vide impugned judgment and order found the appellant guilty of the charges and sentenced him as noted above.

(5) In order to prove the charges against the appellant, the prosecution examined six witnesses in all. Out of which P.W.1 Bachcha is the first informant as an eye-witness, P.W.2 Budhraj eye-witness of the incident and remaining four witnesses are formal witnesses. P.W.3 Sub-Inspector Prasuram Verma is the Investigating Officer, P.W.4 Dr. Bharat Bhushan Kathoriya conducted the post-mortem examination on the dead body of the deceased Mahaveer on 31.1.1995 at 3.30 P.M. P.W.5 C.P. 85 Hariom is an eye-witness of the recovery of licensed D.B.B.L gun of the appellant recovered by P.W.3 from his house on 8.2.1995. P.W.6 Swatantra Kumar Clerk, Additional Chief Judicial Magistrate, Banda proved the statement of witness Shiv Balak recorded under Section 164 Cr.P.C. by Judicial Magistrate Sri Ram Narayan Maurya.

(6) Thereafter the statement of the appellant was recorded under Section 313 Cr.P.C. in which he has categorically denied the facts stated by the prosecution witnesses about the recovery of his D.B.B.L. Gun. He has stated that he had no knowledge about it and the recovery shown by the prosecution is false. He has stated that he has been implicated on account of enmity. It may be noted that on being questioned as to whether he wants to be lead any defence evidence he stated in the affirmative. However, the fact remains that the appellant did not examine any witness in defence.

(7) Learned Special Judge after hearing the arguments of both the sides and after appreciating and discussing the evidence on record held the appellant guilty of murdering the deceased and convicted and sentenced him accordingly by the aforesaid judgment and order which is impugned in this appeal.

We have heard learned counsel for the appellant, learned AGA for the State and carefully perused the record.

(8) Briefly summarized the arguments as advanced by learned counsel for the appellant that the appellant has assailed the reliability and truthfulness of the prosecution case mainly on the following grounds:-

(i) The first information report in the present case has been made ante timed and the same has come into existence much later after deliberation and consultations.

(ii) The medical evidence on record is in conflict with the occular testimony.

(iii) The presence of witnesses at the spot is highly doubtful.

(iv) The deceased was done to death at some other place and the first informant in collusion with the Investigating Officer has changed the place of incident.

(v) There are material contradiction between the statements of eye-witnesses P.W.1 and P.W.2, therefore, no reliance can be placed on their testimony.

(vi) Lastly it is contended that the Trial Judge has erroneously believed and has placed reliance on eye-witnesses account and the incident was not fairly investigated.

(9) On behalf of the State-respondent learned AGA submitted that the first information report in the present case has been lodged promptly. The presence of eye-witnesses is very natural and probable as the incident had taken place at the tube well of the deceased and the same finds corroboration from the recovery of the blood, the pellets found embedded on the wall of the room near the tube well where the deceased was shot twice by the appellant and also the recovery of two empty cartridges, pellets and tickly recovered from the spot. He has further submitted that the contradiction as alleged by the defence in the statements of prosecution witnesses are minor which does not shake the credibility of the eye-witnesses of P.W.1 and P.W.2. The findings recorded in the impugned judgment are well substantiated from the record.

(10) Before we deal with the submissions made by learned counsel for the appellant, we would like to discuss in brief the statement of witnesses on record.

(11) Bachcha, the first informant of the instant case and examined as P.W.1 has reiterated the version set up in the first information report and he has stated that two fires were made by the appellant from his licensed gun which has hit his father Mahaveer, who died on the spot. Immediately after the incident he went to his village and scribed the first information report in his own handwriting. After scribing the first information report he went to police station Rajapur and got the first information report registered. He has also proved that in his presence the Investigating Officer had recovered two empty cartridges lying at the place of incident. P.W.1 in his statement has given graphic description of the manner in which the incident had taken place and has also proved the motive for the appellant to commit the murder of his father. The said witness was given a suggestion by defence that deceased Mahaveer was not murdered at the time and place as alleged by prosecution which was specifically denied by P.W.1. It was also suggested that on account of village party faction between the Pandits and Thakurs, the appellant has been falsely implicated.

(12) Budhraj P.W.2 is also an eye-witness of the incident. He is the nephew of deceased-Mahaveer and has stated that on 30.1.1995 at about 4 P.M. he along with grand father Shiv Balak and other family members were present near the tube well when the appellant made two fires on the deceased, who died on the spot. The defence has also given him a suggestion that the deceased was murdered at an unknown place by some unknown miscreants and no such incident as alleged by prosecution had taken place at the time and place as alleged which was specifically denied by the said witness.

(13) P.W.3 Sub-Inspector Prasuram Verma is the Investigating Officer of this case. The first information was registered in his presence. He has proved the handwriting of Constable Chandra Prakash, who had prepared the chick report exhibit Ka-2 and also the General Diary of the case of 30.1.1995 vide G.D. No.24 at 5.15 P.M. He has stated that he recorded the statement of first informant at the police station and proceeded at the place of incident along with him. Thereafter he inspected the spot and conducted inquest proceedings on 30.1.1995 at 7.15 P.M. and concluded the same at 8.15 P.M. and despatched the dead body for post-mortem along with relevant papers. He also recovered two empty cartridges, two tickli and pellets from the spot also took in possession the blood stained and plain earth from the Chabutra where the dead body of the deceased was found lying. On the same day he recorded the statement of eye-witness Shiv Balak, Smt. Maini and other witnesses. He has also proved other documents marked as exhibits Ka-5 to Ka-14. He is stated to have recovered the licensed factory made D.B.B.L. Gun on 8.2.1995. The recovery memo of gun has been proved by him as exhibit Ka-15 and the charge-sheet as exhibit Ka-16. In his cross-examination he has categorically stated that after the registration of first information report he left the police station at about 6 P.M. on 30.1.1995 and reached at the spot within 15 minutes.

(14) P.W.4 Dr. Bharat Bhushan Kathoriya conducted autopsy on the dead body of the deceased on 31.1.1995 at 3.30 P.M. and he has noted the following ante-mortem injuries on the dead body of Mahaveer, which are as under:-

i) A gun shot wound of entry on left side of chest in lower part anteriorly 7 cm. below left nipple in mammary line 2.5x2.5 cm. Circular, margins of wound inverted blackening around the margins of wound present. This wound is through and through with injury no.2 piercing stomach, diaphragm left lung and anterior chest wall on right side.

ii) A gun shot wound of exit on right side of chest, 4.0 cm. X4.0 cm. circular, margins of wound back everted, 2 cm. below right clerical 8 cm. from mid line through and through with injury no.1.

iii) Multiple 12 small wounds of exit 0.5 cm. to 1.5 cm. over right shoulder anteriorly.

iv) 5 pellets withdrawn from back and axillary region on the right side.

In his opinion, the cause of death due to shock as a result of ante-mortem injuries noted above. In the post-mortem, Doctor noted that the stomach and small intestine contains partiall y digested food and gases.

(15) So far as P.W.5 CP Hariom is a witness of recovery of gun from the appellant along with cartridges and has also admitted his signature on the recovery memo.

(16) P.W.6 is the clerk of Additional Chief Judicial Magistrate, Banda. He has simply proved the handwriting of Sri Ram Narayan Maurya, Judicial Officer, who had recorded the statement of the grand father of the informant namely Shiv Balak recorded under Section 164 Cr.P.C., we find that the evidence of P.W.6 is of no relevance as the statement of a witness recorded under Section 164 Cr.P.C. and who has not been examined during trial does not have any evidentiary value as the same is not a substantive piece of evidence.

(17) Now, we will examine the submissions of learned defence counsel assailing the prosecution version. One of the main argument of defence counsel is that the first information report though stated to have been lodged promptly but in fact it is ante timed which would make the entire prosecution case suspicious and the implication of the appellant doubtful. It has been submitted that according to prosecution the alleged incident is said to have taken place on 30.1.1995 at about 4 P.M. and the alleged registration of the first information report on the same day at 5.15 P.M. by the informant after covering a distance of 10 kilometres is unbelievable as the lodging of the first information report is too prompt and the only inference which can be drawn is that it was registered much later. Thus, the prosecution in order to show the promptitude in lodging the first information report after manipulation has shown its registration at 5.15 P.M. In this behalf, learned counsel has drawn the attention of the Court to the statement of the first informant P.W.1, who in his cross-examination has stated that after the incident he remained present at the spot for about 15 minutes and during this period he did not even touch his father. Thereafter, he went to his village and scribed the first information report in which he took about 15 minutes and then it took twenty minutes to reach the police station by bus. Based on this fact, learned counsel for the appellant has argued that it was not possible for the first informant to have scribed the first information report within such a short time and lodge the same within one hour 15 minutes of the incident after covering the distance of 10 kilometres as noted in the chick report.

(18) First of all, we deal with the first limb of the submission of learned counsel for the appellant regarding the time taken in lodging of the first information report, we may observe that it is not expected of rustic villager before whose eyes brutal murder of his father has taken place in broad day light would narrate or describe the time consumed by him in scribing the first information report or the time taken by him to reach the police station with precision. The statement of such a witness is his own estimation of time in which they may be some variation.

(19) The Hon'ble Apex Court in reference to rustic witness has made a very illuminating observation in the case of Dimple Gupta Vs. Rajeev Gupta 2008 (60) ACC 14 (S.C.). According to it villagers are prone to misjudge time and distance and they are not skilled in narrating chain of evidence with precision. It may be noted that the statement of P.W.1 was recorded almost after 4 and half years from the date of incident and on account of which certain discrepancy with regard to timing, distance, manner and mode of assault was bound to occur which unless are too major and go to the root of the prosecution not much importance can be attached to such insignificant and minor discrepancies. We find that the Trial Court had dealt with the aforesaid arguments of the defence about the timing of registration of the first information report within one hour and 15 minutes of the incident in extenso on page 61 and 62 of the paper book. It is recorded that the timing given by his informant are based on his estimation and the same cannot be considered independently but the entire statement of the first informant has to be taken into account.

(20) Learned defence counsel also argued that according to statement of P.W.1, the Investigating Officer arrived at the spot at 7 P.M. and after staying there for about one hour took the dead body along with him to the police station where it was kept for the whole night and next day the dead body was sent from the police station Karvi for post-mortem. From this statement the defence has tried to draw an inference that since the first information report was not in existence and the accused was not known therefore, the dead body was taken to the police station and the first information report was thereafter made ante timed. We do not find any merit in the submissions made by learned defence counsel inasmuch as after the registration of the first information report it was read over to him by the concerned clerk and he was given a copy of the same. P.W.1 has denied the suggestion of the defence that the first information report was scribed by him on the dictation of Daroghaji at the police station in the night. We also find from the evidence of P.W.3, the Investigating officer on being cross-examined and suggested by the defence that he had taken the dead body to the police station and the same was kept throughout the night has been specifically denied by him. He has stated that before despatching the dead body for the post-mortem he had already inspected the place of incident recovered the pellets found embedded on the wall of the room near the tube well. The defence has not been able to elicit anything very material from the said witnesses about the alleged ante timing of the first information report.

(21) However, we may record that in the inquest report the crime number, sections and other requisite particulars on other spot papers namely site plan, recovery memos etc. have been mentioned which only indicate that the first information report had already been registered. There is no interpolation, cutting or manipulation in the inquest report exhibit Ka-6 to suggest that the first information report was not in existence when the inquest report was prepared.

(22) One of the other main argument of defence counsel is that the ocular testimony of the prosecution witnesses is completely belied by medical evidence and, therefore, no reliance can be placed on it. He has argued that according to the statements of P.W.1 and P.W.2, who are son and nephew of the deceased have specifically stated that the accused Mahendra Singh had made two fires from his gun. The first one had hit near the neck of the deceased and when he fell down he made second fire which caused injury on the left side of chest. It is submitted that according to post-mortem report, only one gun shot injury of entry was found and the other two injuries, injury nos. 2 and 3 are wounds of exit. Therefore, on this very material point the ocular version of the eye-witnesses is wholly unreliable and indicates that they have not witnessed the incident and in consultation with the Police the case was concocted and the appellant was falsely implicated.

(23) We find agreement with the finding recorded by the Trial Court that the prosecution case of two fires made by the accused-appellant cannot be out-rightly rejected as it appears that the first informant on the basis of wrong judgment or description has given a description of two fires being hit on the deceased. However, the fact remains that the evidence of P.W.1 and P.W.2 is that the appellant-accused had fired at the deceased after hurling abuses from a very close range. This fact also finds corroboration from the post-mortem report in which the first gun shot injury contained blackening around it indicating thereby that the firing was resorted from a very close range. We may also record that it is not necessary that every fire made by the accused-appellant would certainly hit the deceased or injured. As a normal reaction any human being in his instinct of self preservation would try to move and save himself and there is every possibility that only one fire out of the two fires made by the appellant-accused, only one had hit him from a very close range which had caused extensive damage to vital parts of the body.

(24) The next argument about the alleged medical conflict raised by the defence counsel is that P.W.1 has stated that his father (deceased) had eaten food about half an hour before the incident. However, according to post-mortem report partially digested food was found in small intestine and according to P.W.4 Dr. Kothariya the food must have been consumed within 8 hours of the death. Submission of defence counsel is that if the deceased had eaten food half an hour before the incident then in his stomach and intestine undigested food should have been found present. We may record that according to Modis' Medical Jurisprudence, the digestion process continues even after the somatic death whereby the heart stops functioning whereas, molecular death takes place after about two hours of somatic death, therefore, till the dead body reaches the stage of molecular death, the digestion process continues to take place. Besides it, according to medical treaties the estimation of duration of death based on the digestion process is not very authentic and it only gives a rough estimation about the duration inasmuch as the time taken by individual for digestion of food differs from person to person depending on his age, general physical condition and climate etc.

(25) Here we would recall the observation of the Hon'ble Apex Court made in the case of Jitender Kumar Vs. State of Haryana 2012 SCC 204 para 61.

"In view of the above medical references, the view expressed in Modi's book (supra) and the principles stated in the judgments of this Court, it can safely be predicated that determination of the time of death solely with reference to the stomach contents is not a very certain and determinative factor. It is one of the relevant considerations. The medical evidence has to be examined in light of the entire evidence produced by the parties. It is certainly a relevant factor and can be used as a significant tool by the Court for coming to the conclusion as to the time of death of the deceased but other factors and circumstances cannot be ignored. The Court should examine the collective or cumulative effect of the prosecution evidence along with the medical evidence to arrive at the correct conclusion."

(26) We, therefore, do not find any substance in the argument of the learned defence counsel about any such medical ocular conflict in order to discard the testimony of eye-witnesses.

(27) Submission of defence counsel is that the alleged incident had taken place at the tube well of the deceased and had taken place elsewhere. We reject it out-rightly. We may record that from the bare perusal of the site plan, we find that the Investigating Officer has shown that the pellets were found embedded on the walls of the room near the tube well. The two empty cartridges, pellets and tiklis were also recovered from the place of incident and from the Chabutara itself. The Investigating Officer recovered blood stained earth which has clearly fixed the place of incident.

(28) During cross-examination, same normal discrepancies have occurred in the statements of P.W.1 and P.W.2 which are quite natural. We could not find any of them to be major contradiction between the statements on oath and the version contained in the first information report, therefore, the testimony of P.W.1 and P.W.2 even after long cross-examination remained unshaken. There is no material on record to discard the eye-witness account of these witnesses. It was a broad day light incident in which the first information report was lodged promptly and the appellant Mahendra Singh is sole accused to whom the main role of firing has been attributed which finds corroboration by the medical evidence. The said weapon used by the appellant was recovered from his possession and, thus, we may record that the prosecution has proved its case against the appellant beyond shadow of reasonable doubt. The defence has not cross-examined the prosecution witnesses on motive and thus the same remained unchallenged.

(29) There is one more ground that investigation was not fairly conducted. In support of his ground learned counsel for the appellant could not indicate a single fact from the record. This argument is not substantiated from any evidence aliunde hence rejected.

Now remains one illegality noticed by us that in addition to appellant's conviction under sections 302 and 307 IPC the appellant has also been convicted under section 3 (2) (V) SC/ST Act and he has been sentenced separately under this section also.

(30) Before we discuss this point it would be gainful to reproduce provisions contained in section 3 (2) (v) of the Schedule Caste and Schedule Tribe Act. They read as under:

"Commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine"

It is evident from the plain reading of this provision, that no distinct separate offence is created by it. It only enables the Court, while convicting a person not being member of a scheduled caste or scheduled tribe who has committed any offence punishable under the Indian Penal Code, to award enhanced sentence. However, conviction and sentence under section 3 (2) (V) of the S.C.S.T. Act simpliciter is not permissible and the offender has to be convicted for the offence under the Indian Penal Code read with this section and he can be sentenced to undergo imprisonment for life and to pay fine also. Our view gets fortified from the observations made by the division Bench of this Court in Majaja Lal Vs. State of U.P. 2009 (65) ACC 446 (All).

(31) In the present case under both sections of Indian Penal Code the appellants have been awarded sentence of imprisonment for life with fine. Thus the maximum sentence prescribed under section (3) (2) (v) of the S.C.S.T. Act has already been awarded to the appellants. There remains no further area for the applicability of the said section.

(32) Except this all other findings recorded by the learned trial Judge are well substantiated from the record supported by cogent reasons. We are in agreement with him on other points. We conclude except the defect noticed by us the impugned judgment requires no interference.

(33) In view of above the conviction and sentence awarded to the appellant under section 3 (2) (V) of the said Act are not warranted by law. To this extent the impugned judgment and orders require to be modified.

(34) Criminal appeal is dismissed. We affirm the conviction and sentences of the appellant awarded under section 302/504 IPC whereas his conviction and sentence under the Scheduled Caste and Scheduled Tribe Act are set aside. The appellant is in jail. The Special Judge shall send his modified conviction warrants to the jail, where he shall serve out the sentence in accordance with law.

(35) Office is directed to certify this order to the court concerned forthwith and send back the lower court record.

Order Date :- 12.10.2017

Hasnain