Vinay vs State Of U.P.
2018 Latest Caselaw 89 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 1
 
Case :- CRIMINAL APPEAL No. - 6525 of 2009
 

 
Appellant :- Vinay
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Km. Akanksha Yadav,Amit Tripathi,Prem Prakash
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Krishna Pratap Singh,J.

1. Heard Sri Amit Tripathi, learned counsel for the appellant, Sri Ashish Pandey, learned A.G.A. for the State and perused the record.

2. This criminal appeal has been filed against a judgment and order dated 13.10.2009 passed by IV-Additional District and Sessions Judge, Kanpur Nagar in Sessions Trial Nos. 652 of 2005 and 653 of 2005 arising out of case Crime Nos. 140 of 2005 and 150 of 2005, under Section 302 I.P.C. and under Section 25/4 Arms Act, Police Station Barra, District Kanpur Nagar, whereby the learned Additional Sessions Judge convicted and sentenced the appellant Vinay to life imprisonment under Section 302 I.P.C. along with a fine of Rs. 10,000/- and in default of payment of fine the appellant was further directed to undergo six months' rigorous imprisonment. Accused-appellant has also been convicted and sentenced to one year rigorous imprisonment and a fine of Rs. 1,000/- under Section 25/4 of the Arms Act and in default of payment of fine the appellant-accused was further directed to undergo one month imprisonment. Learned Additional District and Sessions Judge has further directed that both the aforesaid sentences of the appellant-accused shall run concurrently.

3. In short compass, the facts of the case are that a written report was handed over by first informant Ghasite son of Bhairav resident of Chhedi Singh Ka Purwa, police station Barra, District Kanpur Nagar to the effect that he had married his daughter Asha Devi (now deceased) to Pintoo resident of Meerut on 17.05.2005. After Vidai on the fourth day of her marriage, his daughter had come to his house on 28.05.2005. On 06.06.2005 at around 4.00 P.M. his daughter Asha Devi aged about 18 years along with his elder son-in-law was coming home after shopping. All of a sudden, accused-appellant Vinay, son of Bhairav Pasi, resident of Chhedi Singh Ka Purwa stopped her on the road in front of the Navyug Vidya Mandir School and asked her that after your marriage you are not talking to me." On this, his daughter replied that she had married and that she will not talk to him. Thereupon, accused-appellant pushed his daughter down by stabbing her with a knife. His son-in-law by raising an alarm, rushed to the house of the informant. By the time first informant reached the spot of crime, her intestine had come out. It is also mentioned in the report that he took his daughter to Rama Shiv Hospital for treatment, where the doctor declared her dead. This incident was witnessed by some other people as well. He had brought his daughter's dead body to the police station. After the incident, the accused-appellant fled away from the spot. On the basis of the aforesaid information a case was lodged and (Ext. Ka-1) a chik FIR was prepared by Baleshwar Prasad PW-5 (Ext. Ka-3) at case Crime No. 140 of 2005, under Section 302 I.P.C.

4. The knife which was used in commission of crime was also recovered on the pointing out of the accused-appellant on 19.06.2005 at 3.00 P.M. On the basis of memo Exhibit Ka-5, a case at Crime No. 150 of 2005, under Section 25/4 Arms Act was also register on 19.06.2005. On the basis of recovery aforesaid memo a chik FIR was also prepared by Head Constable 80 Kailash Nath PW-8 (exhibit Ka-7) at case Crime No. 150 of 2005.

5. After registration of the case, the law set in motion and investigation of the case was entrusted to the Sub-Inspector Adil Rasheed PW-9, who got the inquest on the body of the deceased conducted and recorded the statement of first informant and witnesses. After getting the papers formalities done, the dead body was handed over to Constable 3247 Daya Shankar Tripathi and Head Constable 2072 Abhai Kumar Sharma for getting the postmortem examination done. This witness also inspected the spot of occurrence and prepared site plan which he proved as (Exhibit Ka-9). After completing the investigation and making necessary formalities, he submitted the charge-sheet (Exhibit Ka-10) against accused-appellant under Sections 302 I.P.C.

6. The investigation of the case which was registered at Crime No. 150 of 2005, under Section 25/4 Arms Act was entrusted to Sub-Inspector Mulayam Singh PW-10 who recorded the statements of the witnesses of recovery. Investigating Officer, during the course of investigation, recorded the statement of the witnesses and accused-appellant and after completing the investigation charge-sheet (Exhibit K-18) was forwarded against the accused-appellant under Section 25/4 Arms Act.

7. As the case was exclusively triable by the court of Sessions, learned Magistrate committed the case to the Court of Sessions, where case was registered as Sessions Trial Nos. 652 of 2005 and 653 of 2005 and learned IV Additional District and Sessions Judge, Kanpur Nagar vide order dated 07.09.2005 frame the charges against the accused-appellant under Section 302 I.P.C. and under Section 25/4 Arms Act, which were read and explained to him. The accused-appellant abjured his guilt and claimed to be tried.

8. To bring home guilt of the accused-appellant, the prosecution has examined as many as ten witnesses, out of whom four witnesses namely first informant Ghasite PW-1, Kamla Devi PW-2, Ghanshyam PW-3 and Suraj PW-4 are the witnesses of fact. Dr. Kamal Kumar PW-7 conducted autopsy on the body of the deceased, Sub-Inspector Adil Rasheed PW-9 and Sub-Inspector Mulayam Singh PW-10 are the investigating officer, who conducted the investigation and submitted charge-sheet. Head Constable Vijay Kumar Yadav PW-6 also formal witness who has proved the recovery memo of knife Exhibit Ka-5. Constable Baleshwar Prasad PW-5 and Head Constable. Kailash Nath PW-8 are also formal witnesses.

9. Ghasite PW-1 is the complainant of the case. He reiterated the versions given in the first information report.

10. Kamla Devi PW-2 is the wife of the first informant Ghasite PW-1 and mother of the deceased, who has deposed in her examination-in-chief that deceased Asha Devi was her daughter. On the date of incident her daughter along with her son-in-law had gone to the market. Her daughter was married with Pintoo resident of Meerut last year. She further deposed that when her daughter along with her son-in-law was coming home from market, all of sudden accused-appellant Vinay snatched the Dupatta of her daughter in front of school and had said her to come with him. In reply, the deceased had said that she had been married and that she would not go with him. Accused-appellant suddenly stabbed her daughter with knife, her intestine had come out and she fell down on the road. She has also deposed that she along with her husband reached the spot of occurrence and took her daughter to Rama Shiv Hospital for treatment where doctor declared her dead. This incident was witnessed by her son-in-law, Suraj PW-4 and her husband first informant Ghasite PW-1 as well. Investigating officer has also interrogated her.

11. Ghanshyam PW-3 has proved recovery memo of simple earth and blood stained earth Exhibit Ka-2, which was collected by Investigating Officer from the place of occurrence.

12. Suraj PW-4 is elder son-in-law of the first informant Ghasite PW-1 and brother-in-law of deceased Asha Devi. He deposed that on the date of incident he had gone to market with deceased to purchase 'ring' but he had not found it. He along with deceased were coming back to home, on the way accused-appellant met them. Accused-appellant came from behind and stabbed by knife into the abdomen of deceased. He further deposed that when he tried to rescue the deceased, the accused-appellant also chased him. He rushed to call his father-in-law, but before his coming over there, accused-appellant had fled away. He also deposed that they took the deceased to the hospital where doctors refused to give her treatment because all her abdominal organs had protruded. Thereafter they took her to another hospital but on the way, she succumbed to the injuries.

13. Head Moharir 207 Baleshwar Prasad PW-5 has proved chik report as (Exhibit Ka-3) and carbon copy of the G.D. as (Exhibit Ka-4). H.C. Vijay Kumar Yadav PW-6 is also formal witness who has proved recovery memo of knife (Exhibit Ka-5).

14. Dr. Kamal Kumar PW-7 in his examination-in-chief has deposed that on 07.06.2005 he was posted as senior consultant at UHM Hospital, Kanpur Nagar. He had conducted the postmortem examination on the body of the deceased and found following ante-mortem injuries on the person of the deceased:

1. Lacerated wound 1 ½ Cm. x 0.5 Cm. x skin deep on 3.5 Cm. above the right eyebrow.

2. Abraded contusion 4.0 Cm. x .05 Cm. present on right breast.

3. Abraded contusion 1.0 Cm. x .5 Cm. on left breast.

4. Lacerated wound 1 Cm. x 0.5 Cm. on posterior aspect of left elbow.

5. Lacerated wound 1.5 Cm. x 0.5 Cm. on base of first phalange of middle and ring finger of left hand.

6. Stabbed wound 6 Cm. x 4 Cm. x cavity deep. Bowel was protruding out through the wound. Wound is situated on left side of abdomen 10 Cm. above left iliac crest.

7. Stabbed wound 7 Cm. x 4 Cm. x cavity deep situated on lateral aspect of abdomen 6 Cm. above the left iliac crest, bowel was protruding through the wound.

In the opinion of the doctor, the cause of death was shock and haemorrhage as a result of ante-mortem injuries.

15. Head Constable 80 Kailash Nath PW-8 has proved chik FIR as (Exhibit Ka-7) and carbon copy of G.D. as (Exhibit Ka-8).

16. Sub-Inspector Adil Rasheed PW-9 and Sub-Inspector Mulayam Singh PW-10 are the investigating officer of the case who completed the investigation and submitted charge-sheets against the accused-appellant.

17. After the closure of prosecution evidence the statement of the accused-appellant recorded under Section 313 Cr.P.C. in which he has denied the occurrence and stated that he has falsely been implicated in this case.

18. Having considered the submissions of the parties and scrutinizing the evidence on record the learned Additional District and Sessions Judge, Kanpur Nagar convicted the accused-appellant and sentenced him accordingly vide judgment and order dated 13.10.2009 which decision has now been called in question in instant appeal.

19. Learned counsel for the accused-appellant has submitted that the accused-appellant is innocent and has been falsely implicated in the present case. It was further submitted that there is delay in lodging FIR and it is an ante time document. Moreover the testimony of the prosecution witnesses suffers from contradictions and inconsistencies and they could not be said to be reliable. All these aspects were not considered by the trial Court. It was also submitted that according to the prosecution there were several independent witnesses present at the time of incident but no independent witness has been examined. Only interested and related witnesses have been examined by the prosecution withholding of the independent witnesses which creates doubt regarding genuineness of the prosecution story. Lastly, it was submitted that all the injuries of the deceased except injury nos. 6 and 7 were simple in nature. Accused-appellant had no intention to cause such bodily injury which in all probability would have resulted in deceased death or which would cause death. The case against the accused shall not travel beyond the purview of Section 304 Part II of Indian Penal Code.

20. Learned Additional Government Advocate for the State has submitted that there is no material contradiction in the testimony of the prosecution witnesses affecting their credibility. It was further submitted that at the time of occurrence accused-appellant was armed with knife with which he inflicted injuries to the deceased Asha Devi. It was further submitted that prosecution has discharged its burden by establishing the guilt of the accused-appellant beyond reasonable doubts. He also submitted that judgment is well reasoned and calls for no interference by this Court and appeal is liable to be dismissed.

21. In the present case, there is no delay in lodging first information report. The incident of this case is alleged to have taken place on 06.06.2005 at 4.00 P.M. and first information report of this case was lodged on the same day at 17.00 P.M. after one hour of the incident. According to chik report (Exhibit Ka-3) the distance of the village Chhedi Singh Ka Purwa from the police station was two kilometers towards North-West. As per prosecution version after the incident deceased was taken to the Rama Shiv Hospital for treatment where she was declared dead. During this time, the complainant must have made arrangements to go to police station. In these circumstances in our considered view, there is no delay in lodging first information report. In catena of decisions Hon'ble Apex Court has held that promptness in lodging first information report gives assurance of veracity of the informant witnesses and reflects first hand account of occurrence and person or persons responsible therefor. Object to insist upon prompt FIR is to obtain information regarding the circumstances in which the crime was committed, name of actual culprits, parts played by them as well as the names of eye witnesses. In this case prompt FIR has been lodged with specific allegations that deceased was stabbed by the accused-appellant.

22. Learned counsel for accused-appellant submitted that FIR is ante-timed which he tried to demonstrate from the FIR and the inquest report of deceased. But this submission appears to be misconceived. As we have seen that FIR was lodged without any delay just after one hour of the incident at police station Barra, two kilometers from the place of occurrence but for a bald argument, no material could be brought before us which can even remotely suggests that the FIR is cooked up or fabricated and was lodged ante-timed. Accused-appellant is specially named in the FIR as real culprit and it is not difficult to arrive at the conclusion that in such a short span of time, prosecution would not have been able to fabricate a story and lodged it at the police station. In our considered opinion, FIR is a genuine piece of evidence and on the inchoate submissions the same cannot be discarded as unauthenticated piece of corroborative evidence.

23. The next submission of the learned counsel for the appellant-accused is that although at the time of incident several persons were present at the spot, but only father, and mother of the deceased and husband of the elder sister of the deceased were examined and no independent witnesses have been examined by the prosecution, which makes the entire prosecution story doubtful. So the testimony of aforesaid witnesses should be discarded as they all are interested and related witnesses.

24. From perusal of the statements of Ghasite PW-1, Kamla Devi PW-2 and Suraj PW-4 show that at the time of occurrence no independent witness was present at the place of incident. Therefore there was no question to examine independent witnesses. It is true that Ghasite PW-1 and Kamla Devi PW-2 are the father and mother of the deceased and Suraj PW-4 is the husband of the elder sister of the deceased. They may be said that they are interested and related witnesses but the testimony of a such witnesses in criminal trial cannot be discarded merely because the prosecution witnesses are relative or family members of the deceased. Ghasite PW-1, Kamla Devi PW-2 and Suraj PW-4 may be said to be interested and related witnesses but they are not chance witnesses. The incident is said to have taken place in front of the Navyug Vidya Mandir School in broad day light at 4.00 P.M. in presence of eye witness Suraj PW-4. Suraj PW-4 has supported the prosecution version and deposed that on the day of occurrence he and deceased Asha Devi were coming back home from the market. When they were on the way accused-appellant came from behind and gave blow by knife on the abdomen of deceased. When he tried to rescue Asha Devi, the accused-appellant also chased him. He further deposed that he rushed to call his father-in-law, the first informant Ghasite PW-1 to that place of occurrence, but before his coming over there, accused-appellant Vinay had fled away. Deceased Asha Devi was taken to the Hospital where doctor declared her dead. Suraj PW-4 was put to lengthy cross-examination, but nothing adverse could be elicited from his mouth to destroy the prosecution case. His presence at the place of occurrence is not doubtful and stands established, he has been found trustworthy and reliable. This testimony cannot be rejected merely because he is interested and related witness. Ghasite PW-1 and Kamla Devi PW-2 are father and mother of the deceased. They were also reached the place of occurrence immediately after the occurrence and deceased was taken to the Hospital by them. Their presence at the place of occurrence is also not doubtful though they are related to the deceased but their evidence cannot be thrown out on this factum. In State of A.P. vs. S.R. Rayappa & Others 2006 (54) ACC 828.

"...testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons. On the contrary it has now almost become a fashion that the public is reluctant to appear and depose before the Court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are a harassed lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy cross-examination. In such a situation, the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously."

25. In Arjun and others Vs. State of Rajasthan, 1994 Suppl (1) SCR 616, it was argued before the Hon'ble Supreme Court that as the parties were on inimical terms and some criminal proceedings were pending between them even at that time when the occurrence took place. Further PW-1 in that case was the brother of the deceased and informant in that case was son of the deceased.

The Hon'ble Supreme Court brushed aside the argument of the learned counsel for the appellants therein and has held as under:

"We are not convinced by the aforesaid arguments that either on account of animosity or on account of relationship, they did not divulge the truth but fabricated a false case against the appellants. It is needless to emphasise that enmity is a double edged sword which can cut both ways. However, the fact remains that whether the prosecution witnesses are close relatives of the deceased victim or on inimical terras with the deceased involved in the crime of murder, the witnesses are always interested to see that the real offenders of the crime are booked and they are not, in any case, expected to leave out the real culprits and rope in the innocent persons simply because of the enmity. It is, therefore, not a safe rule to reject their testimony merely on the ground that the complainant and the accused persons were on inimical terms. Similarly the evidence could not be rejected merely on the basis of relationship of the witnesses with the deceased."

26. In Hari Obula Reddy and Others Vs. State of Andhra Pradesh, (1981) 3 SCC 675, a three Judge Bench of the Hon'ble Supreme Court has observed thus:

"It is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence."

27. In State of U.P. Vs. Kishan Chand and Others, (2004) 7 SCC 629, the Hon'ble Supreme Court observed as under:

"The submission of the counsel for the accused that the testimony of PWs cannot be acted upon, as they are the interested witnesses is to be noted only to be rejected. By now, it is well-settled principle of law that animosity is a double-edged sword. It cuts both sides. It could be a ground for false implication and it could also be a ground for assault. Just because the witnesses are related to the deceased would be no ground to discard their testimony, if otherwise their testimony inspires confidence. In the given facts of the present case they are but natural witnesses. We have no reason to disbelieve their testimony. Similarly, being the relatives, it would be their endeavour to see that the real culprits are punished and normally they would not implicate wrong persons to the crime, so as to allow the real culprits to escape unpunished."

28. Thus evidence of Ghasite PW-1, Kamla Devi PW-2 and Suraj PW-4 cannot be rejected on the ground that they being related to the deceased. We find that statement of the informant Ghasite PW-1, Kamla Devi PW-2 and Suraj PW-4 are not only corroborate one another and are consistent with the FIR but also the documentary evidence including medical evidence on record. Their statements are trustworthy and credible.

29. Learned counsel for the appellant-accused has submitted that the crime of the accused-appellant does not travel beyond the purview of Section 304 Part-II of the Indian Penal Code. This submission of learned counsel for appellant has no leg to stand. A perusal of postmortem report shows that there are two stabbed wounds on the abdomen of the deceased and her intestine had come out. A careful examination of all the facts and circumstances of the present case, we are of the considered view that ante-mortem injuries no. 6 and 7 of the deceased i.e. (6) Stabbed wound 6 Cm. x 4 Cm. x cavity deep. Bowel was protruding out through the wound. Wound is situated on left side of abdomen 10 Cm. above left iliac crest, and (7) Stabbed wound 7 Cm. x 4 Cm. x cavity deep situated on lateral aspect of abdomen 6 Cm. above the left iliac crest, bowel was protruding through the wound) were sufficient in the ordinary course of nature to cause her death. Accused-appellant had intended to cause injuries on vital part of her body like abdomen and had administered two stabbed wound on the abdomen. Certainly the crime committed by the accused-appellant will come within the murder and not culpable homicide not amounting to murder.

30. In view of the above discussions, we are of the view that the prosecution has established its case beyond reasonable doubt. The impugned judgment and order of conviction and sentence dated 13.10.2009 passed by IV Additional District & Sessions Judge, Kanpur Nagar in S.T. No. 652 of 2005 and 653 of 2005 which has been sought to be assailed, calls for no interference.

31. Accordingly, the appeal is dismissed. The appellant is in jail. He shall remain in jail to serve out the remaining sentence awarded to him by the trial Court.

32. Let two certified copies of the judgment be transmitted to the Court concerned for record. Learned trial Court would send one copy of judgment to the Superintendent of Jail concerned for conveying the result of appeal to the accused-appellant and also to apprise him of his legal remedy against this judgment. Compliance report be positively submitted to this Court within eight weeks.

(Krishna Pratap Singh,J.)        (Ramesh Sinha,J.)
 
Order Date :-20.04.2018
 
A.K.Verma