Khushhal Singh vs State
2018 Latest Caselaw 653 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Case :- JAIL APPEAL No. - 2217 of 2011        AFR
 
Appellant :- Khushhal Singh
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Dr. Abida Syed..A.C.
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Arvind Kumar Mishra-I,J.

Heard Sri Dr. Abida Syed, learned amicus curiae for the appellant, Sri Pradeep Kumar, learned AGA for the State and perused the record.

By way of instant Jail Appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 24.2.2011 passed by the Sessions Judge, Pilibhit in Session Trial No.445 of 2009 pertaining to case crime no. 207 of 2009, under sections 307, 504, 506 I.P.C. Police Station- Sehramau Uttari, District Pilibhit, whereby the accused-appellant has been convicted and sentenced to undergo ten years' R.I. under Section 307 IPC; and he has been acquitted of charges under sections 504, 506 I.P.C.

The brief prosecution story as discernible from record appears to be that the informant- Shiv Pal Singh P.W.-4, lodged written report - Ext. Ka.-5, at police station- Sehramau Uttari, District- Pilibhit on 12.6.2009 at about 4.30 P.M. at aforesaid case crime no. 207 of 2009 against the Khushhal Singh (accused- appellant) s/o Gurubaksh Singh to the effect that the informant's sister- Surender Kaur- was wedded to the appellant about 10 years ago. The informant's sister Surender Kaur was the owner of 10 acres of land, to which the accused- appellant was willing to occupy the same. The sister of the informant refused to give her land, due to which, the accused (informant's brother-in-law) became inimical towards his sister. Informant's sister began to reside separately in a house in informant's village- Singhpur- and also took one Sarafat Ali s/o Hamid Ali as her servant. On 10.6.2009 at about 10.00 P.M. Khushal Singh accused- appellant came to the house of his sister and asked for the land in question to be given to him, which was refused by her then the accused appellant abused her and threatened that he will kill her and will become successor of the land in question and began to assault sister of the informant by inflicting repeated knife blows. On alarm being raised, servant Sarafat Ali tried to save sister of the informant, whereupon, he too was assaulted by causing knife blow on his neck by the appellant, due to which, he fell down and in the meanwhile, on hearing the noise, the informant along with his wife- Kuldeep Kaur- rushed to the spot and saved his sister. Khushhal Singh (accused- appellant) fled away from the scene.

It has been described in the first information report that informant's sister received injuries on several parts of her person and sustained serious injuries. The informant somehow took his sister and her servant to the Government Hospital but their condition did not improve, therefore, they were taken to another hospital- Dhanwantari Tomar Hospital, Bareilly, where both of them were admitted.

In the ending part of the written report, it was mentioned that the informant was busy in treatment of his sister, now he has spared time for lodging the first information report.

Record shows that the contents of aforesaid written report were taken in the concerned check first information report at case crime no. 207 of 2009, under sections 307, 504, 506 I.P.C. at police station- Sehramau Uttari, district Pilibhit, which is Ext. Ka.-9 and case was registered at Rapat No. 25 at 4.30 P.M. on 12.6.2009 at aforesaid police station and crime number, which is Ext. Ka.-10 and proved by the Constable Udaiveer Singh P.W.-7.

Investigation ensued and the same was initially taken over by the Investigating Officer Suresh Bahu Sharma P.W. 6, who reached to the spot on 13.6.2009, after lodging of the first information report and after making relevant note in the concerned C.D., recorded statement of constable Udaiveer Singh and also noted contents of injury report of the injured and on the pointing out of the informant, he prepared site map Ext. Ka.-8. After 16.6.2009, he was transferred, thereafter, investigation was continued by subsequent Investigating officer Ram Gopal Singh P.W.-8, who recorded statement of various persons and prepared memo of blood stained clothes of both the injured and proved the same as Ext. Ka. -11, and Ext. Ka.12, and after completing the investigation filed charge sheet Ext. Ka.-13. Apart from that, he also proved the sample of simple and blood stained clay- roll collected and prepared by the previous Investigating Officer as Ext. Ka. 14.

Relevant to take note of fact that prior to the lodging of the first information report, informant Shivpal Singh PW.-4 took both injured to the District Hospital, Pilibhit where Emergency Medical Officer examined both of the injured. Sharafat was examined at 1.15 Am on 11.6.2009 and following injuries were noted on his person:

1. Incised wound on the Ant. Aspect of neck size 8 cm. x 6 cm.x muscle deep 8 cm. above from medial end of left clavicle. Inj. kept under observation. X-ray of neck AP and lateral view was advised.

2. Abrasion on the Lateral aspect of Left upper arm size 2 cm. x 1 cm. About 5 cm. Above the Left elbow joint.

In the opinion of doctor, Injury no. 1 was kept under observation. It was caused by sharp & cutting object. Injury No. 2 was simple in nature and it was caused by friction. Duration of these injuries was fresh.

Injuries on the person of Surindar Kaur.

1. Incised wound on the Right Temporal Aspect of scalp size 8 cm. x 2 cm. x Bone deep 5 cm. Above from Right ear. Injury was kept under observation. X-ray of AP and lateral view of skull was advised.

2. Incised wound on the Right Ear Pinna size 4 cm. x 2 cm.

3. Incised wound on the Right side of neck size 9 cm. x 5 cm. x Muscle deep just below the Right Ear lobule.

4. Incised wound on the Ant. Aspect of neck 3 cm. x 1 cm. x skin deep 4 cm. Above the sternum.

5. Incised wound on the Left eye 8 cm. x 2 cm. x Bone deep adjacent to the nose Left Eye Globe is Ruptured & there is loss of vision.

6. Incised wound on the Left Maxilla size 4 cm. x 2 cm. x Bone deep 9 cm. from Left Ear. Injury kept under observation. X-ray of AP and lateral view of face was advised.

7. Incised wound on the Left side of nose size 5 cm. x 2 cm. x Bone deep 2 cm. Above from upper lip.

8. Incised wound on the Post. Aspect of Right upper Arm size 8 cm. x 7 cm. x muscle deep 5 cm. Above from Right Elbow joint.

9. Incised wound on the Ant. Aspect of Right Leg size 5 cm. x 2 cm. x Bone deep 7 cm. below the Right knee joint. Injury kept under observation. X-ray of AP and lateral view of leg and knee joint was advised.

10. Incised wound on the Lat. Aspect of the Left knee joint size 5 cm. x 2 cm. x muscle deep.

11. Incised wound on the Ant. Aspect of the Left Leg just below the knee joint 3 cm. x 2 cm. x muscle deep.

12. Incised wound on the medial Aspect of Left Leg size 5 cm. x 2.5 cm. x muscle deep 8 cm. below the Left knee joint. Injury kept under observation. X-ray of AP and lateral view of knee joint was advised.

13. Incised wound on the medial aspect of Lower end of Left thigh size 5 cm. x 2.5 cm. x muscle deep.

14. Incised wound on the Ant. Aspect of lower end of Left upper Arm size 6 cm. x 3 cm. x Bone deep 2 cm. Above the elbow joint. Injury kept under observation. X-ray AP and lateral view of upper arm elbow joint was advised.

15. Incised wound on the Post Aspect of Left of Back size 7 cm. x 1.5 cm. 17 cm. Above the Ileacereast.

16. Multiple Abrasion on the Back at the area of 16 cm. x 4 cm. just Above the Injury no. 16.

17. Incised wound on the Right side of Abdomen size 5 cm. x 0.5 cm. x skin deep 6 cm. from umbilicus at 11 O' Clock position.

In the opinion of doctor, injury nos. 1, 6, 9 and 12 are kept under observation. Injury nos. 2, 3, 4, 7, 8, 10, 11, 12, 13, 14, 15, 16 & 17 are simple in nature. Injury no. 5 is grievous in nature. All injuries from 1 to 17 caused by sharp & cutting object. Pt. Is so serious, Altered sensorium & Admitted in Hospital. Duration of all the injuries was fresh.

Both the inuries reports are Ext. Ka.-1 and Ka.-2, respectively.

Supplementary report of Surindar Kaur.

Injury nos. 1, 6, 9 & 12 was kept under observation and x-ray was advised.

A black mole present on Left side of Abdomen 10 cm. away from umbilicus at 10 O' Clock position.

X-ray done from Distt. Hospital, Pilibhit. X-ray NO MLVC 835/096.

X-ray Adv - Skull AP and lateral view, face, Rt. Leg with knee. Lt. knee joint.

Skull - No Traumatic Bony lesion seen.

Face - Fracture at Lt. Maxilla seen.

Rt. leg and knee - No Traumatic Bony lesion seen.

Lt. knee joint - No Traumatic Bony lesion seen.

Hence, Injury no. 1 was simple in nature. Injury no. 6 was grievous in nature. Injury no. 9 is simple in nature. Injury no. 12 is simple in nature.

Supplementary report of Sharafat

Injury no. 1 was kept under observation & X-ray advised.

X-ray done from Distt. Hospital, Pilibhit. X-ray Report NO MLVC 834/09

Black mole on Left side of chest 10 cm. away from Left nipple at 6 O' Clock position.

X-ray of neck AP and lateral view

Neck - No Traumatic bony lesion seen.

Hence, injury no. 1 is simple in nature.

Record further reveals that the supplementary reports of both the aforesaid injured were prepared and the same has been proved by Dr. Mahavir P.W. 2. Supplementary injury report of Sharafat did not disclose dislocation of any limb or bone which is Ext. Ka.-4 and injury was found to be simple in nature. Supplementary report of Surender Kaur is Ext. Ka.-3 which indicates fracture at left maxilla and nothing adverse was seen except as above. Injury no. 6 was rated grievous in nature. These supplementary injury reports were based on X-Ray examination report prepared by Dr. R.K. Maheshwari P.W. 5, who has proved these X-Ray reports Ext. Ka.-6 and Ka. 7.

Pursuant to the filing of the charge-sheet, proceeding of the case was committed to the court of Sessions, for conduction of trial and disposal and it was numbered as S.T. Nos.445 of 2009, State Vs. Khushhal Singh. The appellant was heard on point of charge and the trial court was, prima facie, satisfied with the case under sections 307, 504, 506 IPC against the accused-appellant. Therefore, it framed charges against the accused-appellant under Sections 307, 504, 506 IPC. Charge was read over and explained to the accused, who abjured charge and opted for trial.

The prosecution, in order to prove guilt of the accused examined as many as eight prosecution witnesses. Brief sketch of the witnesses is herein below:-

Smt. Surender Kaur P.W. 1 is the injured eyewitness. Dr. Mahavir P.W. 2 has medically examined both the injured and has proved the medical examination as well as supplementary reports of both the injured witnesses. Sarafat Ali is P.W. 3, he is also injured witness in this case. Shiv Pal Singh P.W. 4 is informant. Dr. R.K. Maheshwari P.W. 5 has proved X-Ray examination report of both the injured witnesses. S.I. Suresh Babu P.W. 6 is the first Investigating Officer and he has proved his part of investigation. Constable Udaivir Singh P.W. 7 has proved contents of check first information report and the concerned G.D. which are Ext. Ka.-9 and Ext. Ka. 10. S.I. Ram Gopal Singh P.w. 8 is the subsequent Investigating Officer. He carried out the left over and the remaining part of the investigation and completed the same by filing charge sheet Ext. Ka.-3.

No other testimony was adduced by the prosecution. Thereafter, evidence for the prosecution was closed and statement of the accused was recorded u/s 313 Cr.P.C., wherein, he has described various reasons for his false implication and has alleged that he has been falsely implicated in this case because the informant' side wanted to grab his property, whereas the fact is that the accused himself sold out his property at Punjab and bought property mentioned in the name of his wife P.W.-1 Surender Kaur. Accused did not lead any ocular testimony. However, he filed petition moved by his wife Surender Kaur for divorce under section 13 of Hindu Marriage Act before the Court of District Judge Pilibhit.

No other evidence (except petition for divorce) whatsoever was led by the defence.

The learned Sessions Judge, Pilibhit, after appraisal of facts and merit of the case and the evidence on record, returned aforesaid finding of conviction under section 307 I.P.C. and passed sentence for ten years' R.I.

Consequently, this appeal.

It has been vehemently claimed on behalf of the appellant that there is no concrete evidence against the appellant. In fact the informant's side was interested in grabbing the entire property of the accused with that motive in mind, lodged false first information report. No injury whatsoever was caused by the appellant on the injured - say Surender Kaur and Sarafat. There are a lot of contradictions in the testimony of the injured witnesses. The appellant himself had purchased the property for his wife Surender Kaur. Thus, there is no point for asking her to give her property to him. The court below failed to appreciate the facts and circumstances of the case and recorded erroneous finding of conviction.

The learned A.G.A. has supported the finding of conviction and sentenced awarded and submitted that the the facts and circumstances of the case are justified and conviction is based on material on record.

I have considered the above rival submissions.

In the light of the submissions so made and in the light of the claim made by the rival side, the point that arises for adjudication of this appeal relates to fact, whether the prosecution was able to prove charge under Section 307 IPC beyond reasonable doubt?

In this context, perusal of the first information report Ext. Ka-5 itself is indicative of fact that the injured Surender Kaur, sister of the informant and wife of accused appellant, was residing separately from the accused for quite some time at the time of occurrence which took place on 10.6.2009, and in the meanwhile, on the date of occurrence at about 10.00 P.M. accused came to the house of his wife Surender Kaur and asked her for her landed property in his name but she refused which infuriated the accused and he threatened to kill her and caused repeated knife blows on her. In the meanwhile, after hearing noise, servant Sarafat Ali rushed to the spot for her rescue, whereupon, he too sustained injuries on his person i.e. on the neck and elbow caused by the accused. He fell down on the ground. In the meanwhile, the informant Shivpal Singh, brother of Surender Kaur along with his wife Kuldeep Kaur arrived on the spot, then, the accused appellant fled away from the scene. He took both the injured to the Govt. Hospital at Pilibhit where the condition of the injured did not improve, therefore, next day both the injured were taken to the Dhanwantari Tomar Hospital, Bareilly, where their condition was serious. Due to aforesaid reason, the informant could not lodge the first information report, but as and when the condition of the patient improved, he lodged the report on 12.6.2009 at Police Station Sehra Mau Uttari, district Pilibhit.

As per the testimony of Surender Kaur - injured, it transpires that two years prior to the incident, she had gone to her Maika (parental home), she was possessing some land over there given to her by her Tau (brother of her father) and she had her house on this land and was residing there. She had also engaged one servant Sarafat Ali and was doing agricultural work there. In the meanwhile, the accused used to extend threat to her on the ground that she should give her entire landed property to him, but she refused. P.W. 1 Surender Kaur as per testimony has stated that she had great apprehension that in case property is given to the accused, he will sold out and destroy the same. As regards the incident, she has testified that it was 10th June 2009, she was sleeping inside her house at about 9-10 P.M. and it was moonlit night and visibility was good. Her husband came to her and began to abuse her besides asking for giving her landed property. She said to him that the land previously given by her has been mortgaged by him, therefore, the land shall not be given to him. Thereafter, the accused started assaulting her with knife. He assaulted her on the cot itself. His servant Sarafat who was sleeping 10 to 15 steps away from her saved her whereupon he too was assaulted. He (Sharafat) also sustained a number of injuries. On alarm being raised, her brother Shivpal and his wife Kuldeep Kaur arrived on the spot then her husband fled way from the scene. She was taken to the Govt. Hospital, thereafter taken to Bareilly where she was given medical treatment. In her cross- examination, she has testified that her husband was in the habit of taking Alcohol and was doing nothing (no work). Due to the injuries, she has lost her eye sight. Nothing adverse has emerged in her testimony, which may reflect any doubt about the veracity of her testimony and her creditworthiness. This witness appears to be worthy of credit and there is no reason for falsely implicating her own husband in this case. Injuries caused on person of this witness are self explanatory.

At this stage, testimony of Dr. Mahavir is quite relevant. He has medically examined both the injured and has proved supplementary and medical examination reports. P.W. 1 Surender Kaur received as may as 17 injuries all caused by use of knife, which is opined by the doctor to have been caused by sharp edged weapon. Injuries no. 5 and 6 has been stated to be grievous in nature. He has also proved both the supplementary reports viz - that of Surender Kaur which is Ext. Ka.-3 and that of Sarafat Ext. Ka.-4 and he has categorically stated that the injury caused on Surender Kaur were fair enough to cause her death. In the supplementary report of Surender Kaur Auxiliary bone was seen fractured on left maxilla. Fracture at left maxilla on face was seen. Very nature of these injuries sustained by the injured and the claim raised by the prosecution and testimony given by P.W. 2 Mahavir Singh remains unimpeachable and it is established in unequivocal terms that the accused has caused all the injuries by knife and he alone is the author of injuries received by P.W.1 and P.W. 3. There is no explanation that these injures were in fact caused by any other agency or in any other manner by any other person than the accused.

Similarly, testimony of Shiv Pal Singh, brother- in- law of the accused is also in consonance with the testimony of P.W.1 Surender Kaur, Sarafat Ali P.W. 3 and it is a case of absolute consonance between ocular testimony and medical testimony. Investigating Officer P.W.6 has also prepared the site plain Ext. Ka. 8, which also proves the place of occurrence.

It is cardinal principle of criminal jurisprudence that prosecution would have to prove its case beyond all reasonable doubt by producing convincing and clinching testimony in order to prove guilt of the accused. Here in this case testimony of witnesses of fact is consistent, clinching and creditworthiness of the witnesses of fact is found to be intact and inspiring confidence.

The above critical scrutiny regarding the evidence, facts and circumstances of the case goes to unravel the truth in favour of the prosecution that it has successfully proved the incident to have been caused by the appellant on 10.6.2009 at 10.00 A.M., whereby, he tried to murder both the injured by using knife- and consequently, the conviction recorded and sentence awarded by the learned trial Judge in Sessions Trial No.445 of 2009 arising out of Case Crime No.207 of 2009, under Section 307 IPC against the appellant is justified and the same is upheld.

Argument advanced in support of this appeal sans merit and the appeal is dismissed.

Let a copy of this order be certified to the concerned trial court for its intimation and necessary follow up action.

Dt. 18.05.2018

Iss/