Om Prakash And Others vs State Of U.P.
2019 Latest Caselaw 2559 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 21.02.2019
 
Delivered on 05.04.2019
 
Court No. - 1
 

 
Case :- CRIMINAL APPEAL No. - 67 of 1984
 

 
Appellant :- Om Prakash and others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Keshav Sahai,Sudhir Dixit
 
Counsel for Respondent :- Dga
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

(Delivered by Hon'ble Ramesh Sinha, J.)

1. The present criminal appeal has been preferred by the appellants against the judgment and order dated 03.01.1984 passed by Sri Naseem Uddin, 3rd Additional Sessions Judge, Aligarh in S.T. No. 125 of 1981 convicting the appellant Om Prakash @ Oma under Section 302 I.P.C. and sentencing him to life imprisonment, further convicting him under Section 148 I.P.C. and sentencing him to one year rigorous imprisonment and convicting appellants Rajendra and Kailash under Section 302/149 I.P.C. and sentencing them to life imprisonment, further convicting them under Section 147 I.P.C. and sentencing them to six months rigorous imprisonment. All the sentences were directed to run concurrently.

2. The brief facts of the case are that a first information report was lodged by Guru Charan against the 4 accused namely Om Prakash @ Oma son of Ganga, Rajendra son of Ganga, Kailash son of Om Prakash @ Oma, Sonpal son of Chanda and Om Prakash Tyagi son of Karan Singh which was registered as Case Crime No. 349 of 1980 P.S. Sasnigate, Aligarh under Sections 147, 148, 302 I.P.C. on the same day at 19.15 p.m.. The allegations made in F.I.R. are that accused Om Prakash @ Oma son of Ganga, Rajendra son of Ganga, Kailash son of Om Prakash @ Oma, Sonpal resident of Ladiya, District Aligarh wanted to forcibly grab the land of Kishori son of Khacheda, resident of Ladiya and on account of which the accused bore enmity with him. On 02.12.1980 at about 6 p.m. in the evening Om Prakash Tyagi son of Karan Singh who is relative of the aforesaid accused persons came on the spot and on his exhortation, Jai Pal son of Babulal who is cousin brother of Kishori son of Khachedi caught hold of him and Om Prakash Tyagi told the aforesaid accused persons to kill him and he should not be left alive and at the instance of Om Prakash @ Oma, Jai Pal was brought to his house and he was stabbed by Om Prakash @ Oma. The said incident was witnessed by the witnesses Rajesh, Guru Charan, Hari Shankar and others who saw the accused committing atrocities on him. The injured Jai Pal was brought in an injured condition by the informant to the hospital where he was admitted and the doctors had declared him dead. On the written report submitted by the informant against the accused, he prayed necessary action be taken against them. On the basis of the written report (Ex. Ka-4), chik F.I.R. (Ex. Ka-6) was prepared and a case was registered vide G.D. entry (Ex. Ka-10). The investigation of the case was done by S.I. Naresh Pal who was the station officer of the concerned police station. The investigating officer visited the spot, prepared the site plan, recorded the statements of the witnesses, prepared inquest report and other papers and sent the dead body of the deceased Jai Pal from the hospital for the purpose of postmortem. He also collected the blood stained and plain pieces of floor earth and also the knife from the room of the accused Om Prakash @ Oma and prepared recovery memos and sealed the said articles and sent them to police station. The blood stained clothes and knife, etc. were also sent for chemical examination and in the report of the Serologist, human blood was found on these articles. The postmortem of the dead body was conducted by Dr. H.M. Athwal. After investigation, the investigating officer submitted charge-sheet against accused Om Prakash @ Oma, Rajendra and Kailash whereas he submitted final report against accused Sonpal and Om Prakash Tyagi. Mother of the deceased Jai Pal viz. Smt. Basanti Devi filed a complaint against Sonpal and Om Prakash Tyagi but the said two accused died during the pendency of the trial. Ex. Ka-1 and 2 are the copies of the telegram sent to S.S.P., Aligarh by Smt. Pista wife of Jai Pal deceased complaining all the inaction of the police. Ex. Ka-3 is the complaint filed by Basanti Devi against the two accused Sonpal and Om Prakash Tyagi who died during the pendency of the trial.

3. The prosecution relied upon the documentary evidence referred to above as well as Ex. Ka-20 which is the charge-sheet against the three accused along with Ex. Ka-21 and 26 which are the site plan of the place of occurrence, recovery memo of the blood stained and simple earth prepared by the investigating officer, recovery memo of blood stained knife prepared by investigating officer on the spot, chemical examination of the clothes and knife. Ex. Ka-27 and 28 relates to the sending of the bandals to the maalkhana.

4. The prosecution in support of its case has examined 6 witnesses in the Court i.e. PW-1 Pista, PW-2 Basanti, PW-3 Hari Shankar, PW-4 Guru Charan, PW-5 Dr. H.M. Athwal, PW-6 S.I. Naresh Pal and CW-1 Constable Jagdish Prasad was examined as Court witness.

5. PW-1 Smt. Pista has deposed before the trial Court that deceased Jai Pal was her husband and Kishori resided in her neighbourhood. On 02.12.1980 at about 6 p.m. in the evening while she was preparing food and her husband and Hari Shankar were taking food, her mother Smt. Basanti was serving the same, then 5 accused came inside her house and Om Prakash Tyagi ordered the other 4 accused to lift Jai Pal up and to kill him. Then the said persons lifted Jai Pal from his house and catered him but when she and other persons tried to interfere, they were threatened with knife. Jai Pal was taken by the said 5 accused persons to the paudi of accused Om Prakash @ Oma and the accused Om Prakash @ Oma stabbed him in his chest by a knife whereas the other 4 accused had caught hold of Jai Pal. Jai Pal fell down on the ground and the 5 accused persons ran away from the side of roof. The said occurrence was seen by Guru Charan, Basanti, Saroj, Hari Shankar and Rajesh. After the accused had fled from the place of occurrence, they saw the injured who was lying in paudi of Om Prakash @ Oma from where they took him to the hospital where he was declared dead by the doctor. Prior to the incident, no occurrence had taken place with the deceased but the accused were of inimical terms with the deceased because he used to sit with Kishori and had good terms with him.

6. PW-1, in her cross-examination, has deposed that there happened no maar-peet between Om Prakash @ Oma and Rajendra 8-10 prior to the incident with Shivcharan, Shivpujan, Jai Pal, Rajesh, Kishori, Anguri, Shivdayal. She also had no knowledge that Guru Charan and Rajendra had made any report regarding the said incident. She further showed her unawareness that there was proceedings going on under Section 107, 116 Cr.P.C. between the two parties. Her husband was not arrested by the police nor any other person or the above persons mentioned were arrested in her knowledge. She further had no knowledge about the fact that there was any quarrel going on between Kishori and Om Prakash @ Oma with respect to a land. Her husband did not help Kishori and her husband had no enmity with the accused but the accused were inimical to her husband. She denied the suggestion that her husband had consumed liquor. She further denied that she had not given any statement that "yesterday there was any quarrel between Guru Charan, Guru Bachan, Rameshwar and others and Om Prakash @ Oma, Kailash, Rajendra, Sonpal and others and ladies also. Then, at that moment, her husband had come to the house and Kailash, Rajendra and Om Prakash @ Oma had lifted up her husband from his house saying that he should not be left alive as he used to help Kishori and was taken to the house of Om Prakash @ Oma" and she stated that she was unaware of the fact that how the investigating officer had recorded such incorrect statement of her. She further deposed that 5 accused had lifted up her husband and dragged him to the house of Om Prakash @ Oma. She further deposed that all the ladies had raised alarm but no one from the mohalla had come out and only Rajesh and Guru Bachan, on hearing the alarm, had come out and had seen the accused dragging the deceased. She denied the suggestion that the incident had taken place in some other manner and not in the manner as stated by the prosecution and further denied the suggestion that Jai Pal was murdered by some persons in a drunken state. She further stated that she had taken her husband to the hospital and on reaching there, doctor declared him dead. She further denied the suggestion that she along with Guru Bachan, Guru Charan and Shyam Bihari, after due deliberation, on account of enmity has falsely implicated the accused Om Prakash @ Oma.

7. PW-2 Basanti Devi, the mother of the deceased, has also reiterated the prosecution case as has been stated by PW-1 before the trial Court. Hence, for the sake of brevity, the same is not being reproduced. She further deposed that the police was exonerating the accused Sonpal and Om Prakash Tyagi though F.I.R. was registered against five accused persons including the said two persons and when she came to know that they were being exonerated by the police, she filed a complaint after 18 days of the death of Jai Pal before the Magistrate and had reiterated the prosecution case. She proved the complaint as Ex.Ka-3 lodged against the two accused persons. She stated that while the report was being written, she was present along with Pista and Saroj and she told Guru Charan that all the three including her had witnessed the incident and when the report was being written, Guru Charan had written their names also. Guru Charan is son of her Nandoi. She further deposed in her cross-examination that she was not aware that there was any dispute of land and she denied the suggestion that on the date of incident initially there was a quarrel between Guru Charan, Guru Bachan, Rameshwar and wife of Sonpal. She further denied the suggestion that because of the quarrel between the ladies of the two parties, the accused were falsely implicated.

8. PW-3 Hari Shankar who is the brother-in-law (Behnoi) of the deceased has deposed before the trial Court that he was living at his in-laws' house 2-3 months prior to the incident as he could not find any work in his village and he had come to Aligarh in search of work. He also reiterated the prosecution case as has been stated by PW-1 and 2. He stated that after the incident, all of them had taken the injured Jai Pal to the hospital by a rickshaw and he had tied a muffler and a cloth of his wife on the wound of the injured and when they reached the hospital, the doctor declared the deceased dead. Thereafter, he along with Guru Charan, Rajesh, Pista, Basanti and Guru Bachan had gone to the police station along with Saroj and lodged a report of the incident which was narrated by them. He also proved the written report as Ex.Ka-4. He deposed that the investigating officer had told Basanti to drop the name of Sonpal and Om Prakash Tyagi from the case. The investigating officer had colluded with the two accused, hence the complaint was filed against them before the Magistrate.

9. PW-3 in his cross-examination has stated that in Aligarh he used to pull rickshaw and he had no license of pulling rickshaw and he used to pull rickshaw from 8 AM to 4 p.m. but on the date of incident he did not go on his work and he had no reason for the same. He stated that all of them were taking food and Basanti was serving food whereas Pista was preparing and Saroj was sitting and the investigating officer has not written the same in 161 Cr.P.C. statement as the investigating officer has colluded with the accused and wanted to exonerate the two accused. He further stated that he had told the investigating officer that Om Prakash @ Oma on the exhortation of the other accused persons had stabbed the deceased and if the investigating officer had not written the same in his statement, he could not tell any reason. He denied the suggestion that because of the quarrel between the ladies of the two families, on the date of the incident at about 5 p.m. in the evening till 7 p.m., Sonpal was at the police station for lodging the report. He showed his unawareness about the fact that on the date of the incident, the deceased had confessed his guilt before the Court.

10. PW-4 Guru Charan who is the informant of the case has stated that he is resident of mohalla Ladiya and he has seen the house of Om Prakash @ Oma and Kishori and on the date of incident at 6 p.m. in the evening, he was standing at the house of Rajesh and from there the house of Om Prakash @ Oma and Kishori can be seen. Om Prakash Tyagi, Kailash, Rajesh, Sonpal, Om Prakash @ Oma and Rajendra were carrying away Jai Pal and taking him to the house of Om Prakash @ Oma. Accused Om Prakash Tyagi was exhorting to kill him. Jai Pal was taken to the house of Om Prakash @ Oma. There besides him, Rajesh was standing and Hari Shankar, Pista and Basanti had also reached and he also followed the house of Om Prakash @ Oma and the accused Om Prakash @ Oma had stabbed Jai Pal on his chest by knife and all the accused fled away. He sought that Jai Pal was being taken to the hospital where he was declared dead. He had got the report of the incident written by his brother Guru Bachan which is Ex.Ka-4 which was produced before him and he has identified the same to be the said report which he had lodged.

11. PW-5 Dr. H.M. Aathwal has stated before the trial Court that on the date of incident i.e. 03.12.1980, he was posted as Medical Officer in Malkhan Singh Hospital and on the said date at 12.15 p.m. he conducted the postmortem on the dead body of the deceased Jai Pal which was brought in a sealed condition by the two constables Kishan Lal and Santosh Kumar of police station Sasnigate who had brought him and identified the same. He found following injuries on his person-:

1. Incised wound 2" x 1" x cavity on the front of chest left side, ½" below the left nipple, horizontally oblique. Inner, enclosures of the injury is at 6 o' clock position from the nipple. Over end is oblique and upwards.

Semi digested food was present and pieces of potatoes and of green chilly were seen.

In the opinion of the doctor, the cause of death was shock and hemorrhage resulting from the injuries described above and he has proved postmortem report as Ex.Ka-5. He further stated that the injuries caused to the deceased were possible to have been caused on 02.12.1980 at 6 p.m. in the evening. He was also examined as CW-2 by the trial Court on some issues.

12. PW-6 S.I. Naresh Pal has stated that on 02.12.1980 he was posted as S.O. at police station Sasnigate and in his presence the F.I.R. of Case Crime No. 349 under Sections 147, 148, 302 I.P.C. was registered and chik of the same was prepared which he has proved as Ex. Ka-6 which was prepared in his hand-writing and signatures. The chik report was also endorsed in the G.D. on the same date and he took over the investigation of the case. He recorded the statement of the witnesses under Section 161 Cr.P.C., prepared site plan, etc. He proved the recovery memo prepared by him as Ex.Ka-22 and Ex.Ka-23. The inquest report and other police papers from Ex.Ka- 7, 8, 9, 16, 17, 18 and 19 were prepared by him and after completing the investigation, he submitted the charge-sheet against the accused Om Prakash @ Oma, Rajendra, Kailash as Ex.Ka-20.

13. CW-1 constable Jagdish Prasad proved the sending of articles to the maalkhana, etc. and he is a formal witness.

14. Heard Sri Sudhir Dixit and Diwakar Tiwari, learned counsel for the appellant and learned A.G.A. for the State and perused the entire record.

15. It has been argued by learned counsel for appellant that the appellant Om Prakash @ Oma S/o Ganga is said to have assaulted the deceased with knife and caused a single injury on his person and on account of which the deceased died. He states that so far as the appellant Rajendra who happens to be real brother of the appellant No.1 Om Prakash @ Oma and appellant No.3 Kailash who is son of appellant No.1 Om Prakash @ Oma are named in the F.I.R. along with appellant No. 1 but no overt act has been assigned to them and they have been falsely implicated in the present case as it appears from the prosecution evidence as during the course of the trial, they have been stated to have caught hold of the deceased by the informant Guru Charan and PW-1 Pista wife of deceased and PW-2 who is the mother of the deceased and PW-3 Hari Shankar. The participation of appellant Nos. 2 and 3 appears to be an afterthought and no reliance can be placed on the evidence of the prosecution witnesses who have assigned the role of catching hold of the deceased by the two appellants whereas the deceased was stabbed by appellant Om Prakash @ Oma. It was argued that there appears to be no common intention of the said two appellants along with co-accused Om Prakash @ Oma for killing the deceased. Hence, their conviction and sentence under Section 302/34 I.P.C. by the trial Court is against the evidence on record.

16. So far as appellant No. 1 Om Prakash @ Oma is concerned, it has been argued that he has caused one single blow on the deceased by knife who succumbed to his injuries and from the prosecution evidence, it cannot be said that he had any intention to kill the deceased. Hence, if the entire prosecution case is taken at its face value, the case would not travel beyond Section 304 Part-II I.P.C. and he has pointed that as on the date the appellant No.1 is aged about 90 years.

17. Learned A.G.A., on the other hand, has opposed the arguments of learned counsel for appellant and has argued that so far as appellant No.1 is concerned, he is the main assailant who has caused the death of a young boy aged about 25 years by assaulting him with knife and the other two appellants have also participated in the crime and they have been assigned the role of catching hold of the deceased by the eye-witness. Hence their participation in the incident cannot be ruled out and the ocular testimony corroborates the medical evidence and the trial Court has rightly convicted the appellants.

18. After having considered the submission advanced by the learned counsel for the parties and perused the impugned judgment and order passed by the trial Court as well as the lower court record, it is an admitted case that though all the three appellants including Om Prakash Tyagi and Sonpal have been named in the F.I.R. which was lodged by PW-4 Guru Charan who happens to be a relative of the deceased but in which the appellant Om Prakash @ Oma is said to have assaulted the deceased Jai Pal son of Babulal at 6 p.m. in the evening on the date of incident, but so far as the other appellants namely Rajendra son of Ganga and Kailash is concerned, they have not been assigned any overt act in the F.I.R. nor in 161 Cr.P.C. statement of the informant or any of the witnesses during the course of the investigation and it was only for the first time during the course of trial it has been alleged that the said two co-accused have caught hold of the deceased while the appellant Om Prakash @ Oma has stabbed the deceased with knife. As has been argued by learned counsel for the appellants, it is not all correct and cannot be accepted because in the F.I.R. itself the informant Guru Charan has stated that all the accused wanted to forcibly grab the land of one Kishori son of Khacera resident of Ladiya and due to which there was inimical relations with them. Hence, on the date of the incident at 6 p.m. accused Om Prakash Tyagi who was relative of accused-appellant was present at the place of occurrence and on his exhortation, deceased Jai Pal who was the counsin brother of Kishori was caught hold from his house and Om Prakash Tyagi exhorted that "saale ko jaan se maar do aaj zinda na jaane paye" and on his order (hukum) the accused lifted the deceased to the house of Om Prakash @ Oma son of Ganga and Om Prakash @ Oma stabbed him and the incident was seen by Rajesh, Hari Shankar and others. Further, from the perusal of the statement of PW-1 Pista wife of the deceased, Basanti Devi mother of the deceased PW-2, Hari Shankar, bahnoi of the deceased PW-3, it is evident that during the course of the trial, they also have narrated the prosecution story as has been stated by PW-3 and PW-4. It is true that in the F.I.R., the informant PW-4 has not stated about the incident being witnessed by Pista wife of deceased and Smt. Basanti Devi mother of the deceased but it is to be noted that PW-4 in the F.I.R. has stated that Rajesh, Hari Shankar and others also witnessed the incident which means that the wife and mother of the deceased were also present and they were the witnesses in the charge-sheet also.

19. From the evidence of the prosecution, PW-3 Hari Shankar and PW-4 Guru Charan, it is absolutely evident that the deceased Jai Pal was taken by all the three appellants including appellant No.1 Om Prakash @ Oma from his house to the house of Om Prakash @ Oma where the deceased was stabbed by him. Hence, the common intention of the three appellants to murder the deceased Jai Pal is quite evident and to say that it was only appellant No.1 Om Prakash @ Oma who has caused the injury to the deceased by knife is the only person who should be convicted other than the two appellants who are his son and brother respectively. The evidence of PW-1 Smt. Pista wife of the deceased and PW-2 Smt. Basanti Devi who is the mother of the deceased have also in their evidence before the trial Court categorically stated that all the accused persons named in the F.I.R. had come to the house of deceased Jai Pal and at the instance of co-accused Om Prakash Tyagi, they lifted the deceased from his house and took him to the house of appellant No.1 Om Prakash @ Oma where he was stabbed to death. From the evidence of the said two witnesses also, the participation of the accused-appellants Rajendra and Kailash who are the brother and son of the appellant No.1 Om Prakash @ Oma shows very active participation in the incident.

20. PW-1 and PW-2 in their evidence have stated that the police colluded with the two accused and tried to exonerate them from the present case but they had made a complaint to the higher official and PW-2 had filed a complaint case against the said two accused for being exonerated by the police from the present case. The prosecution against the two accused-appellants Om Prakash Tyagi and Sonpal could not take place as both of them died during the pendency of the trial. As already stated above that the evidence of PW-1 Smt. Pista and PW-2 Smt. Basanti Devi cannot be discarded by this Court on the ground that they were not cited as eye-witnesses of the incident in the F.I.R. by PW-4 Guru Charan as it is clear from the F.I.R. that PW-4 had stated in the F.I.R. that the incident was witnessed by Hari Shankar, Rajesh, Guru Charan and others which goes to show that the said two witnesses who were the wife and mother of the deceased were also present and moreover they were also the witnesses mentioned in the charge-sheet and their statements under Section 161 Cr.P.C. were also recorded by the I.O.

21. The conviction of all the three appellants by the trial Court under Section 302 I.P.C. read with Section 149 I.P.C. is wholly justified on the basis of the evidence led by the prosecution. The trial Court had rightly convicted and sentenced them for the offence which they have been charged with as the prosecution has proved its case beyond reasonable doubt against them. Thus, the conviction and sentence of all the three appellants by the trial Court does not suffer from any infirmity or illegality and no interference is required by this Court. Hence the same is hereby confirmed.

22. Accordingly, the appeal stands dismissed. The appellants Om Prakash @ Oma, Rajendra and Kailash are on bail. Their bail bonds are cancelled. Let these accused-appellants be taken into custody to serve the remaining sentence.

23. A copy of this judgment be provided to the trial Court with a direction that the trial Court shall ensure that the accused-appellants serve out the remaining sentence according to law.

Order Date-05.04.2019

Nirmal

(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)