Hukam Singh vs State Of U.P.
2018 Latest Caselaw 469 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							A.F.R.
 
							Reserved On 7.4.2018
 
							Delivered On 10.5.2018
 
Case :- JAIL APPEAL No. - 4482 of 2012
 

 
Appellant :- Hukam Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Rajiv Lochan Mehrotra,J.

Hon'ble Aniruddha Singh,J.

(Delivered by Hon'ble Aniruddha Singh,J.)

1. Present Criminal Jail Appeal has been filed by appellant Hukam Singh, against judgment and order dated 25.8.2012 passed by Additional Sessions Judge, Court No.18, Agra in Sessions Trial No. 157 of 2010 (State of U.P. Vs. Hukam Singh) arising out of Case Crime No. 433 of 2009, under Sections 304 & 308 I.P.C., Police Station Jagadishpura, District Agra whereby the appellant has been convicted under Section 304 IPC and sentenced to undergo rigorous imprisonment for life with fine of Rs. 5,000/- and in default, one year's simple imprisonment and under Section 323 IPC one year's rigorous imprisonment.

2. Prosecution story in brief is that on 21.9.2009 at 00:50 night, Rambeti, maternal aunt (mausi) of complainant was sleeping in her house; her husband accused Hukam Singh came his house after taking wine and assaulted Rambeti by pounder (musal) on her head, she received head injury and became unconscious. Subsequently, Rambeti (wife of accused-appellant) died. He also assaulted his son Chhotey Lal who received head injury.

3. On the basis of written report (Ext. Ka-1) case was registered and investigation started. Prepared recovery memo of Bamboo 'Danda' is exhibited as (Ext. Ka-2); recovery memo of blood-stained and plain floor are exhibited as (Ext. Ka-3), Panchayatnama as (Ext. Ka-5), Chik F.I.R. as (Ext. Ka-6), G.D. entry as (Ext. Ka-7), postmortem report as (Ext. Ka-8), recovery memo of Iron 'Khallar Musal' as (Ext. Ka-11), site plan as (Ext. Ka-12) and charge sheet as (Ext. 13).

4. After inspection of site, site plan was prepared with index which is exhibited as (Ext. Ka-12). One bloodstained, 'Khallar Musal' was recovered at the pointing out of the accused. After completing all formalities, charge-sheet was submitted which is exhibited as (Ext. Ka-13).

5. After taking cognizance by the concerned Magistrate on the charge-sheet, the case was committed to the court of Sessions for trial and after transfer it was received in the court of Additional Sessions Judge, Court No. 18, Agra. On 6.3.2010 charges under Sections 304 & 308 IPC were framed against the accused to which he denied and claimed for trial.

6. In order to prove the charges on behalf of prosecution besides documentary evidence, examined eleven witnesses in all i.e. P.W.1 Chandrawati, P.W.2 Rakesh Kumar, P.W.3 Mahesh Kumar, P.W.4 Pooran Chandra, P.W.5 Kamal Sharma, P.W.6 Parshuram, P.W.7 Chhotey Lal, P.W.8 Doctor A.K. Singh, P.W.9 Sub-inspector Nand Kishore, P.W.10 Sub-inspector Ram Autar Gautam and C.W.1 Constable Ramesh Singh.

7. After closure of the prosecution evidence, statement of the accused-appellant under Section 313 Cr.P.C was recorded. He specifically stated in his statement that he is innocent, he has not committed any offence and has been falsely implicated.

8. Trial Court after hearing parties, vide impugned judgment and order, convicted and sentenced the accused appellant for the offence under Section 302 and 323 IPC. Hence this appeal.

9. In this matter, on previous occasion when the matter was taken up, no one appeared to argue the appeal on behalf of the appellant, hence, notice was sent through concerned Superintendent of Jail to the accused appellant to engage counsel. On showing his in-ability to engage private counsel, Court appointed Smt. Kalpana Singh as Amicus Curiae.

10. Heard Smt. Kalpana Singh, Amicus Curiae for the appellant and Sri Vikas Sahai, learned A.G.A. for the State.

11. Learned Amicus Curiae submitted that recovery of pounder (musal) and lathi were falsely planted; F.I.R. was lodged ante-timed with consultation of police personnel. Chhotey Lal is not injured witness. There are major contradictions between evidence of facts and medical evidence. There is no cogent and reliable evidence against the appellant. F.I.R. was lodged ante-timed.

12. Learned A.G.A submitted that there is sufficient evidence against the accused-appellant to convict him under Section 302 & 323 IPC.

13. We have considered rival submissions made by the learned counsel for the parties and gone through entire record.

14. The F.I.R was lodged on 21.9.2009 at 1.50 a.m. and incident took place on 21.9.2009 at 00.50 a.m. It appears that F.I.R. was lodged after one hour of the incident. Distance between place of incident and police station is one kilometre, hence F.I.R. was lodged promptly. Argument advanced by learned amicus curiae has no force, F.I.R. was not lodged ante-timed. Deceased died on the spot, hence after incident, immediately complainant went to police Station and lodged F.I.R.

15. P.W. 7 Chhotey Lal is the eye-witness as well as injured witness. He is son of deceased and accused-appellant. Testimony of P.W. 7 is very material and relevant in this case. He deposed before the court that in the night of 21.9.2009 this accused-appellant entered in the house in drunken position; his mother Rambeti was sleeping and accused assaulted Rambeti with pounder (musal), when he tried to save his mother then accused-appellant also assaulted him, he received head injury and was medically examined in Bardhman Mahavir Medical College, Delhi and his mother died. In our opinion, evidence of this witness cannot be disbelieved at any cost.

16. According to postmortem report, four antemortem injuries were found on the body of deceased Rambeti which are as follows:-

(i) Lacerated wound 3 c.m. X ½ c.m. scalp deep in temporal region.

(ii) Stitched wound 3 c.m. in parietal region

(iii) left eye black

(iv) contusion 2 c.m. X 2 c.m. middle side forehead.

On the internal examination, frontal and temporal bones were found fractured and clotted blood was present in-side the skull and cause of death was shock and hemorrhage. It was specifically stated that injuries received by the deceased was caused by Musal.

17. Statement of P.W. 7 Chhotey Lal about this incident are fully corroborated by medical evidence. P.W. 1 Chandrawati (sali of appellant) and P.W. 2 Rakesh Kumar (relative of appellant) also supported the prosecution case and stated that accused appellant has assaulted his wife. Evidence of these witnesses of facts also can not be disbelieved unless specific or special reason is shown by the appellant. Three witnesses of facts have specifically stated in their statements before the court that this crime was committed by the accused-appellant.

18. This Court after scanning the evidence on record has to adjudicate whether the prosecution has proved charges levelled against accused appellant beyond reasonable doubt or not.

19. Word 'proved', 'disproved and 'not proved' are defined under Section 3 of Evidence Act as under:-

"Proved".-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."

"Disproved".-A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist."

"Not proved".- A fact is said not to be proved when it is neither proved nor disproved.

20. The question is whether a prudent man under these circumstances can believe that the facts deposed by the witnesses do exist beyond reasonable doubt.

21. P.W. 3 Mahesh Kumar, eye witness of recovery of 'danda', clotted blood and cot, proved Ext. Ka-2, Ka-3 and Ka-4. P.W. 4 Pooran Chandra and P.W. 5 Kamal Sharma are the witnesses of inquest report, they proved Ext. Ka-5, P.W.-6 Parshuram has proved Ext. Ka-6 (chick F.I.R. and G.D. entry). P.W.-8 Dr. A.K. Singh proved Ext. Ka-8, Ka-9 and Ka-10 (postmortem report and C.M.O form no. 9 and police for no. 379). P.W. 9 Nand Kishore presented papers relating to postmortem to the doctor. P.W. 10 Investigating Officer Ram Autar Gautam proved Ext. Ka-11 and Ka-12 (recovery of musal, cloths, relevant papers, clotted blood which are taken from the spot) & charge-sheet as Ext. Ka-13.

22. All witnesses of facts as stated above are son & relatives of accused appellant and there is no reason that they would give false evidence against accused, his relative and in favour of deceased. Hence credibility of these witnesses cannot be disbelieved generally.

23. P.W.7 is eye-witness, son of deceased as well as injured witness, and there is no strong ground for rejection of his evidence, and there is no major contraction or discrepancy and his presence on the scene of occurrence stands established. It is also proved that he suffered injuries during said incident. Hence statement of this witness is reliable and cannot be disbelieved as it was held by the Apex Court in the case of Jarnail Singh vs. State of Punjab, 2009(6) Supreme, 526.

24. Submission of learned Amicus Curiae on behalf of appellant that P.W.-7 is neither eye witness nor injured witness because no injury report was submitted and proved before the trial Court, has no force because it has been clearly stated that he was admitted in Bardhman Mahavir Medical College, Delhi for treatment of head injury caused by accused (his father) and this fact has not been denied by the accused. Moreover, it has also not been shown by the accused why his son would depose against him falsely. It is also admitted fact that incident took place in the house of accused as well as deceased and if any other person had killed the wife of accused and injured his son, it was first duty of the accused to inform police about the incident but it was not done by the accused which is unnatural conduct of the accused. It denotes that this incident was done by this accused only.

25. It is also pertinent to mention here that it was suggested by the accused in cross-examination from prosecution witnesses that wife of deceased was a lady of bad character, hence some unknown person has killed her and the appellant has been falsely implicated. It denotes that due to suspicion of bad character of his wife, he killed her as well as assaulted his son(P.W.-7) when he went to rescue his mother.

26. Learned Amicus Curiae submitted that it is admitted by P.W.1 that accused was not drunkard, then why would he kill his wife and he is liable to be acquitted. This submission has no force because it has been proved by witnesses of facts that at the time of incident accused was in drunken state but not unconscious and due to suspicion of his wife having bad character, he killed his wife.

27. Learned Amicus Curiae has also submitted that P.W.-7 is not injured witness and his statement is not reliable. In the circumstances as stated above, we find that he is injured witness and statement of P.W.-7 cannot be said to be unreliable or disbelieved as has been held by the Apex Court in the case of Maqsoodan vs. State of U.P., (1983) 1 SCC 218(three Judges Bench).

28. Learned Amicus Curiae on behalf of appellant submitted that there was no motive of the accused and why would he kill his wife, hence he may be acquitted. This submission has no force. It was held in the State of U.P. vs. Nawab Singh, 2005 SCC (Criminal) 33 that motive is not a sine qua non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence the element of motive does not play such an important role as to cast any doubt on the credibility of prosecution witnesses even if there be any doubt raised in this regard. If the eye witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to prosecution case when other reliable evidence available on record unerringly establishes the guilt of the accused.

29. Learned Amicus Curiae on behalf of appellant submitted that according to site plan, recovery has not been properly proved and police has planted recovery. This submission has no force as P.W.-1 Chandrawati has deposed in her statement that when she went at the place of occurrence, deceased was carrying bloodstained pounder(Musal) in his hand.

30. Submission of learned Amicus Curiae on behalf of appellant that FIR was lodged on the dictation of police, is not acceptable.

31. Learned Amicus Curiae on behalf of appellant further submitted that there are major contradictions in statement of witnesses of facts. This submission has also no force as there is no major contraction which may fatal the case of prosecution.

32. It is also pertinent to mention here that deceased was firstly married to Jagdish, elder brother of accused and on death of elder brother, she got married with this accused(real younger brother of his previous husband) and after some time due to suspicion of bad character of wife, relation of this accused and deceased was not good. The accused was in suspicion/doubt that his wife is of bad character lady. Hence the motive to kill the deceased is also proved.

33. In the case of Lallu Manjhi & Another vs. State of Jharkhand reported in AIR 2003 SC 854, the Supreme Court has held as below:-

"The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness. {See - Vadivelu Thevan etc. v. State of Madras, AIR 1957 SC 614}."

34. After analying judgment of Supreme Court in the case of Lallu Manjhi & Another vs. State of Jharkhand(supra) we find that the testimony of injured witness P.W.7 Chhotey Lal is "wholly reliable".

35. P.W.-1 Chandrawati has seen blood on the cot and blood-stained pounder (musal) which accused was carrying in his hand. She stated in her statement that her son Rakesh and other persons brought Rambeti and injured Chhotey Lal to the hospital. P.W.-2 Rakesh Kumar corroborated statements of P.W.-1 Chandrawati. Testimony of P.W.1 and P.W.-2 are also wholly reliable and corroborated by statements of each other as well as corroborated by medical evidence i.e. injuries received on the body of deceased and also by injured Chhotey Lal. All these witnesses are neither inimical nor partisaned witnesses.

36. Hence A prudent man under these circumstances can believe that the facts deposed by the witnesses would have existed beyond reasonable doubt.

37. For the foregoing discussions and in the backdrop of law laid down by Apex Court, we find that charges levelled against the appellant stand proved beyond reasonable doubt. The appeal is dismissed. Conviction and sentence awarded to appellant Hukam Singh in the Sessions Trial No. 157 of 2010 (State of U.P. Vs. Hukam Singh) arising out of Case Crime No. 433 of 2009 under Sections 304 and 323 IPC are hereby affirmed.

38. Let Smt. Kalpana Singh, Amicus Curiae be paid Rs.7000/- by the Registry of this High Court within two months.

39. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within one month. Office is directed to keep the compliance report on record.

(Aniruddha Singh, J.) (Rajiv Lochan Mehrotra, J.)

Order Date :- 10.5.2018

A. Singh/P.P.