Sahukar And Ors. vs State Of U.P.
2018 Latest Caselaw 764 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 10.04.2018
 
Delivered on 22.05.2018
 

 
Case :- CRIMINAL APPEAL No. - 2875 of 1983
 
Appellant :- Sahukar And Ors.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ramji Saxena, Anshu Chaudhary, Jai Saxena 
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Naheed Ara Moonis,J.

Hon'ble Chandra Dhari Singh,J.

(Per Hon'ble Chandra Dhari Singh,J)

01. Heard Sri V.P. Srivastava, Senior Advocate, assisted by Sri S.S. Pandey, learned counsel for the appellants, Sri Syed Ali Murtaza and Sri Satish Pandey, learned Additional Government Advocate appearing for the State-respondent and perused the lower court record.

02. The instant criminal appeal, filed on behalf of the appellants, is directed against the judgment and orders dated 22.11.1983 passed by Sri Dharam Singh Ram, the then Additional Sessions Judge-VI, Mainpuri in Sessions Trial No. 83 of 1983 [State Vs. Sahukar and others] whereby the appellants, namely, Sahukar, Sadho Singh, Pratap Singh and Jagdish, have been convicted under Section 302/34 IPC and sentenced to undergo life imprisonment.

03. The facts which can be enumerated from the record may briefly be stated thus :

(i). In brief, prosecution story is that the complainant Sri Yadhunath Singh (P.W.1), was a school teacher in village Pathrai and he was living in the said village for last 9 or 10 years. In the said village his father's sister Smt. Chandrawali (deceased) was living and she was widow of Laturi Singh, who was issuless. Smt. Chandrawali had become widow at young age, therefore, Sri Yadhunath Singh and his wife and children were living with Smt. Chandrawali and were helping her in cultivation of her land. As Smt. Chandrawali had no child, the complainant Sri Yadhunath Singh was her heir. Smt. Chandrawali had executed a will in favour of complainant Sri Yadhunath Singh and his brothers on 22.07.1982 i.e. about two months' prior to the occurrence. The accused-appellants, namely Pratap Singh, Sadhu Singh and Sahukar sons of Panna Lal and accused-appellant Jagdish son of Pratap Singh, were very much annoyed with Smt. Chandrawali on account of execution of the said will in favour of the complainant and his brothers, because the accused-appellants were intending to grab her property.

(ii). On 02.10.1982, the complainant Sri Yadhunath Singh (P.W.1), his younger brother Vijay Singh and his sister's daughter Km. Asha P.W.4, complainant's wife Smt. Reshma were present at the house of Smt. Chandrawali, at about 6.15 am, Smt. Chandrawali was going to take care of the fodder to the cattle, the accused-appellants, namely, Sahukar, Pratap Singh, Sadhu Singh and Jagdish, immediately came out from the house of accused-appellant Pratap Singh and came near Smt. Chandrawali, the accused-appellant Sahukar was armed with country made pistol and other accused-appellants Jagdish, Sadho Singh and Pratap Singh were armed with knives. The accused-appellant Jagdish caught hold the deceased Smt. Chandrawali and the accused-appellant Sahukar exhorted to other accused persons to kill her. Thereupon all the remaining three appellants, namely, Jagdish, Sadho Singh and Pratap Singh started assaulting Smt. Chandrawali with knives till she breathed her last. On seeing the incident the complainant, his brother Vijay Singh, his wife Reshma and niece Km. Asha raised alarm and wanted to rescue Smt. Chandrawali but the accused-appellant Sahukar pointed his country made pistol towards them, therefore, they could not move forward to rescue the deceased. On hearing the alarm, Sri Taley Singh pradhan, Sri Niwas, Kehri Singh and many other villagers had reached there and had seen the occurrence. The accused persons after committing the murder of Smt. Chandrawali, left the place of occurrence and ran away.

(iii). On the written report (Ext. Ka-1) of the complainant, a chik FIR was scribed and case crime no.115 of 1982, under section 302 IPC, P.S. Eka, District Mainpuri was registered on 02.10.1982 against the accused-appellants, namely, Sahukar, Pratap Singh, Sadho Singh and Jagdish. The investigation was handed over to Sri Kripal Singh (P.W.7), Station Officer, P.S. Eka, District Mainpuri. He recorded the statement of scribe of chik FIR constable Kanchi Lal and then proceeded to the place of occurrence. He recorded the statement of complainant Sri Yadhunath Singh at the spot. Sub Inspector Veer Bahadur Singh was also accompanied with him for help. Site plan as Ext. Ka-3 and inquest report Ext. Ka-4 of the dead body of Smt. Chandrawali were prepared by S.I. Veer Bahadur Singh under the supervision of Station Officer Sri Kripal Singh. He prepared the challan of dead body as Ext. Ka-5, photo of dead body as Ext. Ka-6, letter to Chief Medical Officer Ext. Ka-7. He kept the dead body in sealed cover and sent the same for postmortem examination through constable Om Prakash Singh and Ram Saharey Dixit to Civil Hospital, Etah. Thereafter, the Investigating Officer recorded the statement of Sri Vimal Prakash and Mohar Singh, who were the witnesses of the inquest proceedings.

(iv). The Investigating Officer went in search of the accused persons but no one was found. The postmortem examination was conducted by Dr. Satya Prakash Varshani (P.W.6) on 03.10.1982 at 4.50 p.m. and he prepared the postmortem examination report as Ext. Ka-2. The doctor found as many as 10 injuries on person of the deceased. According to the opinion of the doctor, the death took place due to shock and heamorrhage as a result of anti mortem injuries. The doctor has reported that the wall, ribs and cartridges were found damaged. The pleura was also damaged. Right and left lungs were also damaged. The heart, vessels, peritoneum were also found damaged.

(v). The doctor found blouse material Ext. Ka-1, Dhoti Ext. Ka-2, Churi pieces Ext. Ka-3, nose ring Ext. Ka-4, Bichua pair Ext. Ka-5 and four rings Ext. Ka-6 and sent the same to the S.S.P. Mainpuri in sealed cover.

(vi). S.I. Veer Bahadur Singh, under the directions of the S.O. took the simple and blood stained earth Ext. Ka-6 and 7 and kept the same in the sealed cover.

(vii). The Investigating Officer got information on 08.11.1982 regarding surrender of the accused persons. He recorded the statement of the witnesses Reshma, Km. Asha on 19.11.1982. He recorded the statement of the accused Sahukar, Pratap Singh, Sadhu Singh and Jagdish in jail on 26.11.1982. He recorded the statement of constable Om Kar Singh, Ram Saharey Dixit on 08.12.1982. He recorded the statement of the witnesses Vijay Singh, Taley Singh, Kehri, Ulfat Singh, Sunhari Singh and others on 10.12.1982, thereafter submitted the charge-sheet Ext. Ka-7 against the accused persons on 17.12.1982.

(viii). The accused-appellants Sahukar, Sadhu Singh, Jagdish and Pratap Singh were charged with the offence punishable under section 302 read with 34 and 307 read with 34 IPC. The appellants pleaded not guilty and alleged that they had been falsely implicted in the present case crime no. 115 of 1982. They claimed for trial.

(ix). The prosecution in order to prove its case, examined Sri Yadhunath Singh complainant as P.W.1, eye witness, Sri Sriniwas as P.W.2, another eye witness, Vijay Singh as P.W.3, eye witness, Km. Asha aged about 14 or 15 years as P.W.4, eye witness, Sri Taley Singh as P.W.5, Dr. S.P. Varshani, who conducted the postmortem examination as P.W.6, S.O. Sri Kripal Singh as P.W.7 and the clerk constable Govind Narain Tiwari, who prepared the chik report/and G.D. as P.W.8.

(x). After appreciation of the evidence on record and other circumstances, the trial court had convicted the appellants for offences punishable under section 302/34 IPC and sentenced them imprisonment for life.

04. The criminal appeal bearing no. 2875 of 1983 was filed against the order/judgment dated 22.11.1983 passed by the court of VI Additional Session Judge, Mainpuri in S.T. No. 83 of 1983 before this Court.

05. Sri V.P. Srivastava, Senior Advocate, appearing for the appellant has submitted that the prosecution did not disclose the genesis in the inquest report. Crime number, time of the incident and time of dispatch of the special report have not been mentioned. Therefore, the prosecution was not sure about its case and the FIR had not come into existence. Learned Senior Counsel has thus submitted that these features show that the FIR had in fact not been lodged by the time the inquest was held and the same has been ante timed. So, there is manipulation in the case of the prosecution.

06. Learned Senior counsel submitted that there are material contradictions in the statement of P.W.4 Km. Asha, P.W.1 Yadhunath Singh, P.W.2 Sri Niwas and P.W.3 Vijay Singh. The P.W.4 Km. Asha, in her testimony stated that the occurrence took place between 5.00 to 5.15 am. The complainant P.W.1 in his testimony has stated that the incident took place at about 6.00 to 6.30 am. Learned counsel for the appellants lastly submitted that the appellants had no motive to commit the murder of the deceased.

07. Learned Additional Government Advocate appearing for the State-respondent has vehemently opposed the instant criminal appeal and submitted that the FIR had been lodged promptly without any loss of time. The incident took place on 02.10.1982 at about 6.00 am and the FIR was lodged at 8.50 am on the same day. The distance of the police station from the place of occurrence is about 8 Kms. He further submitted that the medical evidence corroborates with the prosecution version. He further submitted that omission in the inquest report are not sufficient to put the prosecution out of court. The basic purpose of holding an inquest is to report regarding the cause of death of the deceased, namely, whether it is suicidal, homicidal, accidental or by some machinery. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. The inquest report cannot be treated as substantive evidence. There were strong motive to murder the deceased Smt. Chandrawali as she executed a will in favour of P.W.1 (Yadhunath Singh) and his brother and the accused persons were interested in the property of the deceased. The accused persons were bent upon to grab her property by all means and therefore, they committed her murder. There are sufficient materials on record against the accused persons to convict them for the offence punishable under section 302/34 IPC, therefore, the appeal lacks merit and is liable to be dismissed.

08. Sri Yadhunath Singh P.W.1 stated that Smt. Chandrawali victim was his father's sister, who had become widow in her young age. He further stated that for the last 9 or 10 years, he along with his wife and children were living with Smt. Chandrawali and was managing her cultivation etc. because he was posted as a school teacher in the same village. He further stated that the accused persons were the family members of Laturi Singh, Late husband of deceased Smt. Chandrawali had no issue, therefore, the accused persons were bent upon to grab her property by all means and therefore, they committed her murder. The statement of Sri Yadhunath Singh has been fully corroborated by Km. Asha P.W.4. He submitted that the accused-appellants Pratap Singh, Sadhu Singh and Sahukar are the sons of the said Panna Lal and the accused-appellant Jagdish is the son of accused-appellant Pratap Singh. All the accused-appellants related to one family, whose karta was Panna Lal.

09. The P.W.1 Yadhunath Singh (complainant) further stated that on the date of occurrence at about 6.00 am, his father's sister Smt. Chandrawali victim was going to take care of the fodder to the cattle because the same was falling on the ground. He further stated that the accused-appellants Sahukar, Pratap Singh, Sadhu Singh and Jagdish immediately came out from the house of accused-appellant Pratap Singh and came near Smt. Chandrawali in the chowk where she was present. He stated that the accused appellant, Sahukar was having a tamancha and the remaining accused appellants were having knives in their hands. He further stated that as soon as the accused came near Smt. Chandrawali, accused-appellant Jagdish caught hold her and the accused-appellant Sahukar exhorted to his associates to kill her. It is stated that thereupon, all the remaining three accused-appellants, namely, Pratap Singh, Sadhu Singh and Jagdish started assaulting Smt. Chandrawali with knives till her death. He further stated that he and his brother Vijay Singh P.W.3, wife Reshma and sister's daughter Km. Asha P.W.4 raised alarm. It is stated that the accused-appellant Sahukar pointed the tamancha, therefore he could not move forward and on hearing the alarm Sri Taley Singh, Pradhan, Kehri Singh, Sri Sriniwas and other villagers had arrived there and had seen the occurrence.

10. Sri Niwas, P.W.2 was also an eye witness of the occurrence and he supported the prosecution version in 161 Cr.P.C. But turned hostile in court. However, he stated that he reached at the house of Smt. Chandrawali in the morning and saw her dead body. It shows that the occurrence took pace in the morning and not in the night.

11. Sri Vijay Singh P.W.3 is the real brother of the complainant and he stated that he had seen the accused-appellants Sahukar, Pratap Singh, Sadhu Singh and Jagdish committing murder and running from the place of occurrence. He stated that Km. Asha, Smt. Reshma Devi and others were also present there. He further stated that the accused persons had killed Smt. Chandrawali by stabbing. since he stated in the testimony that he saw the accused persons running from the place of occurrence, therefore, the prosecution has declared him hostile. But his statement gives support to the version of the complainant P.W.1 and prosecution case.

12. Km. Asha P.W.4 aged about 15 years has fully supported the version of the complainant and the FIR. She clearly stated that the accused persons came at the chowk where deceased was present and committed murder of Smt. Chandrawali by stabbing. She further stated that the accused persons were clearly seen by her though it was the time of early morning. The complainant P.W.1 and Km. Asha P.W.4 stated that she was living with her maternal grand mother Smt. Chandrawali. She further stated that her maternal uncle Sri Yadhunath Singh and his family members were also living with Smt. Chandrawali in the same house. As Smt. Chandrawali was near about 80 years old and was having much landed property, she would be keeping her relatives with her for managing her property.

13. Taley Singh P.W.5 was the eye witness of the occurrence. He went at the house of Smt. Chandrawali at 4.00 to 4.30 am in early morning and saw the dead body of the deceased. He was declared hostile as he had not supported the previous statement. It was suggested to him by the defence that Smt. Chandrawali widow had married with Panna Lal. It shows that accused persons were very much interested in her property, therefore, they became annoyed and committed her murder after knowing that she had executed the will in favour of her brother's sons.

14. The postmortem of the dead body of the deceased was conducted by Dr. Satya Prakash Varshani, P.W.6 and has noticed the following injuries on the dead body of the deceased.

(1). Incised wound 2 cm x 1 cm x cavity deep in front of chest 2 cm from mid line wound left side at 2 cm above xiphisternum lying obliquely. Another incised wound 3 cm above this inj. Size2.5 cm x 15 cm x cavity deep. Both the inj are directions back wound and (sic) in horizontal plain. On dissection of both the injuries subcutaneous tissue found and contain haematoma (sic) Rib No.5 and (sic) are on left side. On further dissection pericardium and heart was cut in the direction and inj at two places.

(2). Multiple incised wound in an area of 12 cm x 8 cm x on front of chest (Rt. Side). Larger inj 3 cm x 1.5 cm x cavity deep smaller inj 1 cm x 1.5 cm x stab cut tissue deep. On dissection subcutaneous tissue found to contain haematoma layer in which cavity. Deep shows cut in 7the rib, pleura and Rt. Lung. Rt. Pleura cavity contain 10 ounce ? Of free and clotted blood. Direction is backward and medially in horizontal plain.

(3). Multiple incised wound on Rt. side back of chest in an area of 18 cm x 10 cm. Larger is 3 cm x 12 cm x sub cut? Tissue deep and smallest is 1 cm x 0.5 cm x sub cut tissue deep. Haemotoma is present in the layer of sub cut tissue deep.

(4). Incised wound 3 cm x 1.5 cm x cavity deep on Rt. side of abdomen 2 cm below? Coastal margin 2 cm from mid line layer obliquely? Direction is backward, horizontally and medially. Haemotoma is present in the line of inj and peritoneum is cut in the line of inj. cavity contain about 2 ounce of free and clotted blood.

(5). Multiple incised wound in part of outer side of right thigh in an area of 20 cm x 25 cm. Larger inj cavity 6 cm x 3 cm x muscle deep and smallest is 1 cm x 0.5 x sub cut tissue deep. Haematoma is present below the inj (sic) in (sic) direction.

(6). Abrasion below right knee size 4 cm x 3.5 cm x on front (sic).

(7). Two abrasions measuring 2 x 1 cm and 3.5 x 2 cm on front of left thigh 2.5 cm about.

(8). Two abrasions on back of left elbow measuring 2.5 cm x 2 cm & 1 cm x 1.5 cm, 3 cm apart.

(9). One incised wound 1 cm x 0.5 cm skin deep on back and right side just below 7th cervical vertebrae 1 cm from mid line.

(10). Abrasion on back of right leg. Size 2.5 x 2 cm in upper ¼.

15. Dr. S.P. Varshani P.W.6 stated that he conducted the postmortem examination on the dead body of Smt. Chandrawali on 03.10.1982 at 4.50 pm and prepared the postmortem report Ext. Ka-2. He further stated that he found as many as 10 injuries and in his opinion, the death took place due to shock and haemorrhage as a result of anti mortem injuries. It is thus clearly established that the murder of Smt. Chandrawali was committed on 02.10.1982 at 6.15 am at the place of occurrence. On a careful perusal of the postmortem conducted by P.W.6, it is very much clear that the death is caused by means of sharp edged weapon and that too possibly by means of knife. The evidence given by P.W.6 fully corroborates with the version given by P.W.1 and P.W.4 that the appellants herein caused the death of the deceased using their respective knives.

16. Sri Kripal Singh P.W.7, is the Investigating Officer of the case, who proved the site plan Ext. Ka-2, inquest report of the deceased and the paper relating to challan photo of dead body Ext. Ka-5 to Ext. Ka-7 as well as collected the simple and blood stained earth Ext. Ka.4.

17. Sri Govind Narain Tiwari P.W.8, he proved the chik report on the basis of written report and entry of the General Diary.

18. We have considered the rival submissions made by the learned counsel for parties and perused the records. Before deciding the factual controversies, we will first deal with legal issues.

Evidentiary value of inquest report.

19. The provision for holding of inquest is contained in section 174 of the Code of Criminal Procedure and heading of the section is police to enquire and report on suicide etc. Sub-section (1) and (2) of Section 174 Cr.P.C. reads as under :

"174. Police to enquire and report on suicide, etc.

(1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub- divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two' or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any); such marks appear to have been inflicted.

(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub- divisional Magistrate."

20. The language of the aforesaid statutory provision is plain and simple and there is no ambiguity therein. An investigation under section 174 Cr.P.C. has limited scope and is confined to the ascertainment of the apparent cause of death. It is for the limited purpose that persons acquainted with the facts of the case are summoned and examined under section 175 Cr.P.C. The details of the overt acts are not necessary to be recorded in the inquest report.

21. The evidentiary value of the inquest report under section 174 of the Code of Criminal Procedure has been settled through series of judicial pronouncements of the Hon'ble Apex Court. It is well established that the column for filling up the nature of weapons used in the crime was left open as it could be ascertained only by the Doctor what weapons had been used in the commission of crime and the basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery etc. or stating as in what manner, or by what weapon or instrument such injury appears to have been inflicted. In the present case non recording of the certain relevant entries in the inquest report do not constitute a material defect, therefore, on that very basis it cannot be said that the testimonies of the witnesses and the prosecution case is false.

22. The omissions in the inquest report are not sufficient to put the prosecution out of court. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery etc. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report.

23. In the case of Radha Mohan Singh alias Lal Sahab & Ors. v. State of Uttar Pradesh, (2006) 2 SCC 450, the Apex Court in paras 13, 14 and 15 held as under:

"13. The provision for holding of inquest is contained in Section 174 Cr.P.C. and the heading of the Section is Police to enquire and report on suicide etc. Sub-sections (1) and (2) thereof read as under :

174. Police to enquire and report on suicide, etc. (1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.

(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub- divisional Magistrate.

14. The language of the aforesaid statutory provision is plain and simple and there is no ambiguity therein. An investigation under Section 174 is limited in scope and is confined to the ascertainment of the apparent cause of death. It is concerned with discovering whether in a given case the death was accidental, suicidal or homicidal or caused by animal and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. It is for this limited purpose that persons acquainted with the facts of the case are summoned and examined under Section 175. The details of the overt acts are not necessary to be recorded in the inquest report. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted or who are the witnesses of the assault is foreign to the ambit and scope of proceedings under Section 174. Neither in practice nor in law it is necessary for the person holding the inquest to mention all these details.

15. In Pedda Narayana v. State of A.P. AIR 1975 SC 1252 it was held that the proceedings under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under S. 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Their omission is not sufficient to put the prosecution out of Court. In Shakila Khader v. Nausher Gama AIR 1975 SC 1324 the contention raised that non-mention of a person's name in the inquest report would show that he was not a eye- witness of the incident was repelled on the ground that an inquest under Section 174 Cr.P.C. is concerned with establishing the cause of death and only evidence necessary to establish it need be brought out. The same view was taken in Eqbal Baig v. State of Andhra Pradesh AIR 1987 SC 923 that the non-mention of name of an eye-witness in the inquest report could not be a ground to reject his testimony. Similarly, the absence of the name of the accused in the inquest report cannot lead to an inference that he was not present at the time of commission of the offence as the inquest report is not the statement of a person wherein all the names (accused and also the eye-witnesses) ought to have been mentioned. The view taken in Pedda Narayana v. State of A.P. (supra) was approved by a three-Judge Bench in Khujji @ Surendra Tiwari v. State of Madhya Pradesh AIR 1991 SC 1853 and it was held that the testimony of an eye-witness could not be discarded on the ground that their names did not figure in the inquest report prepared at the earliest point of time. The nature and purpose of inquest held under Section 174 Cr.P.C. was also explained in Amar Singh v. Balwinder Singh 2003 (2) SCC 518. In the said case the High Court had observed that the fact that the details about the occurrence were not mentioned in the inquest report showed that the investigating officer was not sure of the facts when the inquest report was prepared and the said feature of the case carried weight in favour of the accused. After noticing the language used in Section 174 Cr.P.C. and earlier decisions of this Court it was ruled that the High Court was clearly in error in observing as aforesaid or drawing any inference against the prosecution. Thus, it is well settled by a catena of decisions of this Court that the purpose of holding an inquest is very limited, viz., to ascertain as to whether a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence. There is absolutely no requirement in law of mentioning the details of the FIR, names of the accused or the names of the eye-witnesses or the gist of their statement nor it is required to be signed by any eye-witness. In Meharaj Singh v. State of U.P. (supra) the language used by the legislature in Section 174 Cr.P.C. was not taken note of nor the earlier decisions of this Court were referred to and some sweeping observations have been made which are not supported by the statutory provision. We are, therefore, of the opinion that the observations made in paras 11 and 12 of the reports do not represent the correct statement of law and they are hereby over-ruled. The challenge laid to the prosecution case by Shri Jain on the basis of the alleged infirmity or omission in the inquest report has, therefore, no substance and cannot be accepted."

24. In the case of Munshi Prasad and others Vs. State of Bihar [2002 (1) SCC 351], the Hon'ble Apex Court in para-6 has held as under:

"6. Let us, however, examine the omissions in either of the documents as produced before the Court and consider for ourselves as to whether there is any material difference which would otherwise affect the trial by reason of a doubt as regards the reliability of the prosecution case. Item Nos. 4 and 5 in the inquest report are the two basic items, which are said to be missing in the postmortem report, as such the contention of existence of suspicious nature of prosecution. We, however, cannot lend our concurrence thereto. There may or may not be injuries on the left or the right foot but the fact remains that there is no mention of the same in the postmortem report - does it otherwise affect the credibility of the prosecution case? Postmortem report is prepared by the doctor, who held the postmortem examination on the body of the deceased Indrasan Prasad and his findings have been recorded therein. The document by itself is not a substantive evidence but it is the doctor's statement in Court, which has the credibility of a substantive evidence and not the report, which in normal circumstance ought to be used only for refreshing memory of the doctor witness or to contradict whatever he might say from the witness box. In this context reference may be made to a decision of the Madras High Court in Re. Ramaswarni, AIR (1938) Madras 336. In the similar vein the inquest report also cannot be termed to be a basic or substantive evidence being prepared by the police personnel being a non- medical man and at the earliest stage of the proceedings. On the wake of the aforesaid, a mere omission of a particular injury or indication therein of an additional one cannot however invalidate the prosecution case. The evidential value of inquest report cannot be placed at a level as has been so placed by the appellant, preparation of an inquest report is a part of the investigation within the meaning of the Criminal procedure Code and as noticed above neither the inquest report nor the postmortem report can be termed to be a basic evidence or substantive evidence and discrepancy occurring therein can neither be termed to be fatal nor even a suspicious circumstance, which would warrant a benefit to the accused and the resultant dismissal of the prosecution case. On the factual score Mr. Venkataramani relied heavily on the evidence of PW-7 being the Jagdishpur Police Camp-in-charge. In his evidence. PW-7 stated that the inquest report was prepared on the basis of the information contained in Sanah No. 306 and since the Sanah has not been produced, it has been contended that Sanah being the basic information sheet, non-production there of would entail the consequences of adverse presumption as regards the involvement of the accused persons. Obviously, thus it has been contended that nobody had any clue as to how the incident had occurred. Eloquent us always, Mr. Venkataramani has. in our view. over-emphasized the issue. Non-production of a substantive piece of evidence can under certain circumstances bring forth an adverse inference, but not in the present context. Technicality ought not to outweigh the course of justice on the face of trustworthy credible evidence on record and more so when the failure to produce docs not go to the root of the prosecution case. Situations, obviously would entail such consequences but in the present context, one cannot possibly stretch it that far."

25. In the case of Krishna Pal (Dr.) Vs. State of U.P. (1996) 7 SCC 194, the Hon'ble Supreme Court held that even where, the attention of the author of the inquest is drawn to the alleged discrepancy, overwriting, omission or contradiction in the inquest report and the author in his deposition has also admitted that through a mistake he omitted to mention the crime number in the inquest report, this Court has held that just because the author of the report had not been diligent did not mean that reliable and clinching evidence adduced by the eyewitnesses should be discarded by the Court.

26. In view of the law referred to here-in-above, it cannot be held that any omission or discrepancy in the inquest is fatal for the prosecution case and such omissions would not necessarily lead to the inference that FIR is ante-timed.

27. Learned counsel for the appellants have lastly submitted that the appellants had no motive to commit the murder of deceased Smt. Chandrawali. The prosecution has failed to prove the motive to commit the crime, therefore, the conviction under section 302 r/w section 34 IPC is illegal and deserves to be set aside. In this connection it is necessary to refer the legal proposition regarding the evidential value of the motive.

Motive

28. A motive is the cause that moves people to induce a certain action. Motive, in itself, is not an element of any given crime, however, the legal system typically allows motive to be proven in order to make plausible the accused, reasons for committing a crime, at least with those motives may be obscure or hard to identify with. However, a motive is not required to reach a verdict.

29. The determination of motive was not a sine qua non for determining the liability, it was nonetheless important to examine the motive behind the commission of offence. In fact, motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime.

30. In the case of Shivji Genu Mohite Vs. State of Maharashtra [AIR 1973 SC 55], the Hon'ble Supreme Court held that in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye- witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy.

31. In the case of Arvind Prakash Vs. State of U.P. [2002 (10) SCC 37], the Hon'ble Apex Court has held that where the eye witnesses to the incident supporting the prosecution case in a consistent manner, question of motive losses its importance.

32. In the case of Badam Singh vs. State of U.P., (2003) 12 SCC 792, the Hon'ble Supreme Court held that :

"We also find that there was no motive for the appellant to kill the deceased. Even though existence of motive loses significance when there is reliable ocular testimony, in a case where the ocular testimony appears to be suspect the existence or absence of motive acquires some significance regarding the probability of the prosecution case. In this case the brother of the deceased, PW-7 clearly stated that even though there was some dispute between the appellant and the deceased three years before the occurrence, that dispute was amicably settled and the disputed land was shared half and half by them. Thereafter they continued to cultivate their respective plots of land peacefully and no untoward incident took place whatsoever. We must, therefore, hold that the prosecution has failed to establish any motive for the offence. The fact that the deceased met a violent death is not surprising. He was a history sheeter and he was involved in large number of criminal offences including dacoity, robbery, abduction, kidnapping and attempt to murder etc. The possibility of his having been killed by one of his enemies cannot be ruled out."

33. In the case of State of U.P. Vs. Kishanpal & Ors., (2008) 16 SCC 73, the Hon'ble Supreme Court has held as under:

"The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."

34. It is a settled legal proposition that even if the absence of motive, as alleged, is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime, therefore, in the case in hand there is direct and trustworthy evidence of witnesses as to commission of offence, hence motive looses its significance.

35. Keeping in mind the aforesaid proposition of law, we shall examine the arguments advanced and the evidence adduced by the parties as also the materials on record and see in view of the nature of offence alleged to have been committed by the appellants.

36. The point for consideration in this case is whether the accused persons had any motive to commit the murder of the deceased Smt. Chandrawali, for the reason of proving the motive part, the prosecution has examined P.W.1 Yadhunath Singh. P.W.1 Yadhunath Singh stated in his deposition that Smt. Chandrawali was his Bua, who had become widow in her young age and she was staying with his family. Smt. Chandrawali had no issue, therefore, the accused persons were bent upon to grab her property by all means. The deceased had executed a will in favour of complainant Sri Yadhunath Singh and his brothers on 22.07.1982. Therefore, the accused-appellants became annoyed.

37. After perusal of the statements of P.W.1 Yadhunath Singh, P.W.2 Shri Niwas and P.W.4 Km. Asha and some records related to the property of the deceased, it is sufficient to show that the accused persons were bent upon to grab the property of Smt. Chandrawali and to resist the consolidating the possession of her brother's sons over her property, therefore, they thought convenient to treat her as the obstruction in their way and to remove the said obstruction by committing her murder. The accused persons had thus sufficient motive to commit the murder of Smt. Chandrawali.

38. The complainant and others have clearly stated that Smt. Chandrawali was murdered by the accused persons on 02.10.1982 at about 6.15 am. The Investigating Officer Sri Kripal Singh, S.O. P.W.7 has stated that Sri Veer Bahadur Singh, Sub Inspector prepared the inquest report Ext. Ka-4, Chalan lash Ext. Ka-5, Photo lash Ext. Ka-6, letter to CMO Ext. Ka-7 of the dead body of Smt. Chandrawali under his supervision and direction. He further stated that Sri Veer Bahadur Singh, Sub Inspector prepared the site plan Ext. Ka-3 and the same was duly signed by him also. He further stated that Sri Veer Bahadur Singh, Sub Inspector took the blood stained and simple earth from the place of incident and prepared the recovery memo Ext. Ka-8 on 02.10.1982 under his supervision and directions.

39. Dr. S.P. Varshani P.W.6 stated that he has conducted the postmortem examination on the dead body of Smt. Chandrawali on 03.10.1982 at 4.50 pm and prepared the report. He proved the postmortem report as Ext. Ka-2. He stated that he found as many as 10 injuries on the body of the deceased and in his opinion, the death took place due to shock and haemorrhage as a rersult of ante mortem injuries.

40. Sri Yadhunath Singh P.W.1 (complainant) stated that on the date of occurrence at about 6.00 am, his Bua Smt. Chandrawali victim was going to take care of the fodder to the cattle. He further stated that the accused-appellants Sahukar, Pratap Singh, Sadhu Singh and Jagdish immediately came out from the house of accused-appellant Pratap Singh and came near Smt. Chandrawali in the chowk where she was present. He further stated that as soon as the accused came near Smt. Chandrawali, accused-appellant Jagdish caught hold her and the accused-appellant Sahukar ordered his associates to kill her. He stated that the accused-appellant Sahukar has having a tamancha and the remaining accused-appellants were having knives in their hands. He further stated that on the instruction/direction of accused-appellant Sahukar all the remaining three accused-appellants, namely, Pratap Singh, Sadhu Singh and Jagdish started assaulting Smt. Chandrawali with knives till her death.

41. Km. Asha P.W.4 aged about 15 years has supported the version of the complainant and the FIR. She clearly stated that the accused persons came in the chowk and committed murder of Smt. Chandrawali by stabbing with knives. She further stated in her testimony that the accused persons were clearly seen by her, though it was the time of early morning. Km. Asha P.W.4 stated that she was living with her maternal grand mother Smt. Chandrawali victim. She further stated that her maternal uncle Sri Yadhunath Singh and his family members were also living with Smt. Chandrawali victim at her house, as Smt. Chandrawali was near about 80 years old and was having much landed property.

42. Thus, from the foregoing discussion it is clear that the complainant Yadhunath Singh P.W.1 and Km. Asha P.W.4 and other family members were the truthful witnesses and there is no reason to disbelieve their testimonies. The occurrence took place in their chowk in an open area and not inside the house, therefore, the possibility of the murder in the night time is ruled out. The situation of the place of occurrence gives support to the version of the FIR that the murder was committed in the morning about 6.00 am when Smt. Chandrawali came out to take care of her cattle etc. and at that time the accused persons came there and started assaulting the deceased with knives, in which the victim sustained multiple incised wound from knives and due to she succumbed to the injuries.

43.The remaining witnesses Sri Kripal Singh, S.O. P.W.7, who investigated the case and constable Govind Narayn Tewari, P.W.8, who prepared the G.D. and chik report on the basis of written report have fully supported the prosecution case and the statement given by the witnesses corroborate with each other and also corroborated the medical evidence.

44. It was argued on behalf of the appellants that there is some contradictions in the statement of Km. Asha P.W.4. Km. Asha P.W.4 has stated that occurrence took place at 5.00 to 5.15 am, therefore, it was contradictory to the statement of the complainant. The complainant stated that the incident took place at about 6.15 am, thus, there are minor contradictions between the testimonies of the two witnesses, which will not corrode the entire prosecution case.

45. In the present case, we do not find any major contradiction either in the evidence of witnesses or any conflict in medical or ocular evidence which would tilt the balance in favour of the appellants. The minor improvements, embellishments etc. apart from being for yield of human faculties are insignificant and ought to be ignored since the evidence of the witnesses is otherwise overwhelming corroborate each other in material particulars.

Conclusion

46.The prosecution has examined material witnesses viz. P.W.1, P.W.2 and P.W.4, who are the eye witnesses to the alleged incident. The presence of the above witnesses at the place of occurrence is clearly established and is not at all doubtful. Though there are certain discrepancies but those are so minor in nature that it cannot effect the case of the prosecution. Their evidences inspire confidence and is a natural one which clearly shows that the accused persons had common intention to murder the deceased, which was done by causing injuries an 80 years old lady in a very relentless and devilish manner to her person using knives, which fully corroborates with the oral evidence as well as the postmortem examination report of the Doctor (P.W.6), who conducted the postmortem. We do not find any conflict between the oral evidence of the above witnesses and medical evidence of P.W.6.

47. In view of the report dated 11.12.2015 of the Incharge Chief Judicial Magistrate, Firozabad, the appellant nos. 1 and 3, namely, Sahukar and Pratap Singh had died seven years ago, therefore, the appeal on behalf of appellant nos.1 and 3, stood abated.

48. The prosecution evidence and the circumstances of the case has clearly established that all the accused persons did overt act in furtherance of their common intention, they had vicariously committed the offence punishable under section 302 read with 34 IPC, hence the prosecution has fully proved its case beyond all reasonable doubts, therefore, considering the facts and circumstances of the case, we do not find any substance in the arguments raised on behalf of the appellants to interfere with the judgment and order dated 22.11.1983 passed by the court of the then 6th Additional Sessions Judge, Mainpuri in Sessions Trial No. 83 of 1983 (State Vs. Sahukar and others), under section 302/34 IPC, P.S. Eka, District Mainpuri. Hence, the criminal appeal no. 2875 of 1983 deserves to be dismissed.

49. Accordingly, the criminal appeal is dismissed.

50. The appellant nos.2 and 4, namely, Sadhu Singh and Jagdish are on bail. They are directed to surrender their bail before the learned Sessions Judge, Mainpuri, who shall take them into custody and send them to jail to serve their sentences. In case, appellants do not surrender forthwith, the learned Sessions Judge, Mainpuri, shall take appropriate steps to procure their arrest so that they shall serve the sentence awarded to them.

51.Office is directed to communicate this order to the court concerned to ensure compliance and further sent back the lower court record.

52. Judgment be certified and be placed on record.

Order Date :- May 22nd, 2018

Prajapati

[C.D. Singh, J] [N.A. Moonis, J]