Devi Chand vs State
2019 Latest Caselaw 299 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 4								   A. F. R.
 
Case :- CRIMINAL APPEAL No. - 359 of 1988
 
Appellant :- Devi Chand
 
Respondent :- State
 
Counsel for Appellant :- H.N.Sharma,Pawan Singh Pundir,Pawan Singh Pundir A.C
 
Counsel for Respondent :- D.G.A.
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Ghandikota Sri Devi,J.

(1) Heard Sri Pawan Singh Pundir, learned amicus curaie for the appellant and Sri J. K. Upadhyay, learned A.G.A. appearing for the State-respondent assisted by Sri Awadhesh Kumar Shukla, Brief Holder for the State.

(2) This appeal has been filed by appellant-Devi Chand challenging the correctness and the propriety of the judgment and order dated 28.1.1988 passed by Sessions Judge, Saharanpur in S.T. No. 255 of 1987 (State Vs. Devi Chand), case crime no. 56 of 1988, under Section 302 I.P.C., P.S. Nakur, District Saharanpur by which he has been convicted and sentenced to imprisonment for life under Section 302 I.P.C.

(3) Briefly stated the prosecution case, is that deceased-Darshan Singh had his field in village Gokulpur. He had constructed his residential house in his field where he was residing with his wife P. W. 2 Smt. Tarsen Kaur, daughter P. W. 3 Kumari Autar Kaur and other members of the family. Accused-Devi Chand was also residing in village Gokulpur since three months before the occurrence. One day before the occurrence Darshan Singh was consuming wine with P. W. 8 Chhota Singh, P. W. 7 Pawan Singh and accused-Devi Chand, deceased-Darshan Singh and accused-Devi Chand started quarreling and deceased-Darshan Singh slapped accused-Devi Chand on which accused-Devi Chand threatened him with dire consequences.

(4) On 18.3.1987 at about sunset, accused-Devi Chand came to the farmhouse of deceased-Darshan Singh and called him saying that he wanted to talk to him urgently. He took the deceased to the 'mend' of his field which was at a distance of about 80 steps from his house and thereafter, he struck him with a dagger causing injuries to him. On hearing the noise made by Darshan Singh, his wife P. W. 2 Tarsen Kaur and his children including his daughter, P. W. 3 Kumari Autar Kaur reached the place of occurrence and saw the incident. P. W. 2 Tarsen Kaur tried to catch the accused but he slipped away leaving his 'khes' in her hands and ran into the sugarcane field of Mohammed Hasan. The shouts of P. W. 2 Tarsen Kaur and her children attracted witnesses P. W. 4 Satnam Singh and Karam Singh to the place of occurrence. On their arrival, the accused ran towards the west along with the dagger. The witnesses chased him for some time but they could not catch him. Darshan Singh who had fallen on the ground was bleeding profusely. He was carried infront of his farmhouse where he expired a few minutes later. A number of villagers had by then reached the place of occurrence. P. W. 6 Irshad Khan scribed the written report of the occurrence Ext. Ka1 on the spot on the dictation of informant P. W. 2 Tarsen Kaur. The F.I.R. was then sent to the police station through Satnam Singh and others. The case was registered at police station Nakur at 9:05 P.M. on the same day. The investigation was conducted by P. W. 11 Inspector Dalbir Singh who reached the place of occurrence and found the dead body of the deceased lying infront of his farmhouse. The inquest could not be conducted in the night due to lack of sufficient light. The Investigating Officer recorded the statements of P. W. 2 Tarsen Kaur and P. W. 3 Kumari Autar Kaur. He searched for the accused but could not find him. The inquest on the body of the deceased was conducted by P. W. 10 Sub-Inspector Satyapal Singh who prepared the inquest report Ext. Ka3A in the morning of 19.3.1987. He also prepared other connected papers Ext. Ka10 to Ext. Ka12 and after sealing the dead body, sent it for postmortem examination through Constables Suresh Chand and Ramesh Chand. He also took in his possession the bloodstained and plain clay Ext. Ka3 and Ext. Ka4 from the place where the dead body was kept. The same were sealed and the 'Fard' Ext. Ka4 was prepared. He also took in his possession the 'khes' Ext. 1 belonging to the accused and prepared it's recovery memo Ext. Ka5.

(5) P. W. 11 Inspector Dalbir Singh recorded the statements of the witnesses of inquest and 'fards'. He also prepared the site plan Ext. Ka13 after local inspection. The Investigating Officer found blood at the place of occurrence. He took in his possession the bloodstained and plain clay Ext. Ka5 and Ext. Ka6 and prepared the 'fard' Ext. Ka14. He again searched for the accused but could not find him. The accused was ultimately arrested at 5 P.M. on the same day and at his pointing the dagger Ext. 2 allegedly used in committing the murder was recovered from his room. The 'fard' Ext. Ka6 was prepared in respect of the same. The Investigating Officer again reached the place of occurrence on 24.3.1987 and recorded the statements of witnesses-Satnam Singh and others. The statements of some other witnesses were recorded on 12.4.1987. The Investigating Officer had also prepared the site plan of the place of recovery of the dagger Ext. Ka16.

(6) The postmortem examination on the dead body of Darshan Singh was conducted by P. W. 5 Dr. R. K. Sharma at S.B.D. Hospital, Saharanpur at 4:15 P.M. on 19.3.1987. He found following antemortem injuries on the body of Darshan Singh :-

(i) Incised wound 7 cm x 0.5 cm x muscle deep on front of neck, 0.5 cm below the mandible. Margins clean cut.

(ii) Contusion 2 cm x 1 cm on left side of chest, 5 cm below left clavicle.

(iii) Incised wound 3 cm x 1 cm x chest cavity deep on the left side back of the chest just touching the inner border of left scapula, direction is transverse, margins clean cut.

(iv) Abrasion of 0.5 cm x 0.25 cm on the left side back from in the injury no. 3.

On internal examination, it was found that the pleura on the left side and left lung were punctured. The pleural cavity on left side contained 300 millilitres of blood. Intestines contained faecal matter and gasses.

In the opinion of P. W. 5 Dr. R. K. Sharma, the death was due to shock and haemorrhage as a result of injury no. 3. P. W. 5 Dr. R. K. Sharma proved the postmortem examination report Ext. Ka2. He stated that the death could have been caused at about 5 or 6 P. M. on 18.3.1987. He has also stated that the injury nos. 1 and 3 could have been caused by some sharp edged weapon such as a dagger. He further stated that these injuries could have been caused by the dagger Ext. Ka2. He has further stated that the injury nos. 2 and 4 could have been caused by falling on the ground. He in his cross-examination stated that the deceased could have died within one or two hours of receiving the injuries. There could be a variation of 2 or 3 hours in the duration of the death mentioned by him in the postmortem report.

(7) After completing the investigation, the I.O. submitted chargesheet Ext. Ka15 against appellant-Devi Chand under Section 302 I.P.C. before C.J.M. Saharanpur who committed the case for the trial of the accused to the Court of Sessions Judge, Saharanpur where it was registered as S.T. No. 255 of 1987 and made over for trial from there to the Court of Sessions Judge Saharanpur who on the basis of the material collected during investigation and after affording opportunity of hearing to the prosecution as well as the accused, framed charge under Section 302 I.P.C. against accused-Devi Chand who abjured the charge and claimed trial.

(8) The prosecution in order to prove its case examined as many as 11 witnesses of whom P. W. 2 (informant) Tarsen Kaur and her daughter P. W. 3 Kumari Autar Kaur were examined as eye-witnesses of the occurrence while P. W. 1 Constable Sureshpal Singh who had taken the body of the deceased for conducting postmortem to the hospital tendered his evidence on affidavit stating therein that the blood recovered from the place of occurrence and the bloodstained dagger allegedly recovered on the pointing out of the appellant pursuant to his disclosure statement were sent to the Chemical Examiner and Serologist. P. W. 4 Satnam Singh who was the witness of the fact of the appellant running away from the place of occurrence with bloodstained dagger in his hand, P. W. 5 Dr. R. K. Sharma who had conducted the postmortem on the body of the deceased and prepared his postmortem report Ext. Ka2, P. W. 6 Irshad Khan who had scribed the written report of the occurrence Ext. Ka1 on the dictation of informant P. W. 2 Tarsen Kaur, P. W. 7 Pawan Singh and P. W. 8 Chhota Singh who were the witnesses of the recovery of crime weapon on the pointing out of the appellant, P. W. 9 Virendra Singh, Head Moharrir who had prepared the chek F.I.R. Ext. Ka7 and the relevant G.D. entry, P. W. 10 Satyapal Singh who had conducted the inquest and prepared the inquest report and other connected documents and P. W. 11 Dalbir Singh, the I.O. of the case were produced as formal witnesses.

(9) The accused-appellant in his statement recorded under Section 313 Cr.P.C. denied the allegations made against him and alleged false implication due to enmity. He did not examine any witness in defence.

(10) Learned Sessions Judge, Saharanpur after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record both oral as well as documentary, convicted the appellant under Section 302 I.P.C. and awarded aforesaid sentence to him.

(11) Hence this appeal.

(12) Sri Pawan Singh Pundir, amicus curiae appearing for the appellant submitted that the prosecution having failed to prove its case against the accused-appellant beyond all reasonable doubts hence neither the recorded conviction of the appellant nor the sentence of life imprisonment awarded to him can be sustained. He further submitted that it is proved from the facts and circumstances of the case as well as the evidence of the prosecution witnesses that the incident had taken place in dark and after some unknown person had stabbed the deceased to death and his body was found, he was falsely implicated in the present case by P. W. 2 Tarsen Kaur due to previous enmity. Both the eye-witnesses namely P. W. 2 Tarsen Kaur and P. W. 3 Kumari Autar Kaur are the wife and the daughter of the deceased, hence no reliance could be placed on their evidence for the purpose of convicting the appellant. He lastly submitted that this appeal deserves to be allowed and the appellant acquitted of all the charges framed against him.

(13) Per contra Sri J. K. Upadhyay, learned A.G.A. appearing for the State-respondent submitted that it is proved from the evidence of P. W. 2 Tarsen Kaur and P. W. 3 Kumari Autar Kaur that it was the appellant who had stabbed the deceased twice causing injuries to him which eventually resulted in his death on the spot. The evidence of P. W. 2 Tarsen Kaur and P. W. 3 Kumari Autar Kaur is not liable to be discarded merely on the ground of their being the relatives of the deceased. In support of his aforesaid submission learned A.G.A. has placed reliance upon Waman and others v. State of Maharashtra 2011 Crl. LJ 482. The medical evidence on record fully corroborates the manner of assault as spelt out in the F.I.R. This appeal lacks merit and is liable to be dismissed.

(14) We have heard the learned counsel for the parties present and perused the entire lower court record very carefully.

(15) The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove its case against the accused-appellant beyond all reasonable doubts or not.

(16) With the aforesaid object in mind, we proceed to evaluate and analyze the evidence on record.

(17) The statements of P. W. 2 Tarsen Kaur, P. W. 3 Kumari Autar Kaur and P. W. 4 Satnam Singh together with the medical evidence, referred to herein above show that Darshan Singh had died in the evening of 18.3.1987 as a result of stab injuries received by him. One of these injuries was sufficient to cause the death of Darshan Singh in the ordinary course of nature as stated by P. W. 5 Dr. R. K. Sharma. It is now to be seen whether the injuries of Darshan Singh were caused by accused-Devi Chand at the time, place and in the manner as alleged by the prosecution.

(18) As regards the place of occurrence, both the prosecution witnesses of fact namely P. W. 2 Tarsen Kaur and P. W. 3 Kumari Autar Kaur have stated that the accused had inflicted injuries to Darshan Singh on the 'mend' of the field of the deceased near the 'hauz' (water tank). The investigating officer found blood at the place of occurrence. He took in his possession the bloodstained and the plain clay from that place. According to the report of the Chemical Examiner and Serologist Ext. Ka17, the clay taken from that place was stained with human blood. The investigating officer also found that wheat plants near the place of occurrence had traces of blood and some of the plants had also been trampled. On behalf of the accused there was not even a suggestion that the occurrence had taken place at some other place. Considering the facts and circumstances, it can safely be held that the occurrence had taken place on the southern 'mend' of the field of deceased-Darshan Singh near the 'hauz'.

(19) As regards the time of occurrence, P. W. 2 Tarsen Kaur and P. W. 3 Kumari Autar Kaur have deposed that the occurrence had taken place when the sun was setting. According to them, sufficient day light was available at that time. P. W. 4 Satnam Singh who had allegedly reached the place of occurrence immediately after the occurrence has also stated that the occurrence had taken place at sunset. According to the postmortem report, Darshan Singh could have died at about sunset time on 18.3.1987. On behalf of the accused it was not even asserted or suggested that the occurrence had taken place at some other time. In the circumstances it is believed that the occurrence had taken place at about sunset time on 18.3.1987. Obviously sufficient day light must have been available at the place of occurrence at that time.

(20) We will now examine as to whether the prosecution evidence is sufficient to establish that it was accused-Devi Chand who had caused injuries to the victim as a result of which he died. It will be proper at this stage to consider the motive for the crime. According to the prosecution allegations, a quarrel had taken place between deceased-Darshan Singh and accused-Devi Chand on 17.3.1987 in the house of witness-P. W. 8 Chhota Singh when both of them were in a drunken state. It is also alleged that at that time deceased-Darshan Singh had slapped Devi Chand on which the accused had threatened the deceased. P. W. 2 Tarsen Kaur has stated that her daughter-P. W. 3 Kumari Autar Kaur had told her about the incident which had taken place on the preceding day. In the F.I.R. Ext. Ka1, this fact has been mentioned. P. W. 3 Kumari Autar Kaur has stated that on the previous day her father had gone with P. W. 8 Chhota Singh and P. W. 7 Pawan Singh and when she went to call her father from their house, P. W. 8 Chhota Singh told her that her father and Devi Chand were quarreling with each other after they had taken drinks and that her father had beat Devi Chand. She stated that P. W. 8 Chhota Singh also told her that her father was in the house of P. W. 4 Satnam Singh. She then asked Abdul Malik to take her father to her father's residence. P. W. 8 Chhota Singh also stated that there was a quarrel between the deceased and the accused on the previous day when both of them were under the influence of alcohol. He also stated the deceased had slapped accused-Devi Chand on which he had threatened to kill Darshan Singh. He also stated that P. W. 3 Kumari Autar Kaur had come to his house to enquire about her father when he told her about this incident.

(21) The fact that there was a quarrel between the accused and the deceased on 17.3.1987 is not disputed by the accused himself. The accused in his statement recorded under Section 313 Cr.P.C. stated that he and the deceased had taken drinks. He also admitted that it was due to the quarrel which had taken place on the previous day that he was implicated in this case. He, however, denied that he had threatened the deceased. Considering these facts, we have no reason to disbelieve the prosecution assertion that there was a quarrel between the accused and the deceased on 17.3.1987 when both of them were under the influence of liquor. Considering the aforesaid evidence, it can safely be inferred that the appellant had motive to commit the murder of the deceased as a measure of vendetta.

(22) Now coming to the occurrence, the prosecution has placed reliance on the statements of P. W. 2 Tarsen Kaur and P. W. 3 Kumari Autar Kaur who claimed themselves to be the eye-witnesses of the occurrence. The fact that both the witnesses were residing with deceased-Darshan Singh, is disputed. The place of occurrence as shown in the site plan Ext. Ka13 is at a distance of about 85 steps from the house of these persons. In between there was a small wheat field. The height of the wheat plants, according to P. W. 2 Tarsen Kaur, was only about 1 ½ feet. The presence of these witnesses at the place of occurrence cannot be doubted. Both the witnesses have stated that accused-Devi Chand had come to their house and had called Darshan Singh saying that he had to talk to him urgently. He then took Darshan Singh towards the south when P. W. 3 Kumari Autar Kaur followed them, the accused asked her to go away as he wanted to talk to her father. Both the persons then went to the southern 'mend' and sat there. When P. W. 2 Tarsen Kaur proceeded towards the south to find out as to what was the matter, she saw accused stabbing the deceased with a dagger, causing injuries on his neck and the left side of back. Both the witnesses have further stated that when P. W. 2 Tarsen Kaur tried to catch the accused, he slipped away leaving his 'khes' in the hands of P. W. 2 Tarsen Kaur. They also stated that the accused then entered into the sugarcane field of Mohammed Hasan. On hearing the shouts of both the witnesses, P. W. 4 Satnam Singh and Karam Singh also reached the place of occurrence and thereafter, the accused ran away from the sugarcane field of Mohammed Hasan. The statements of the witnesses find corroboration from the statement of P. W. 4 Satnam Singh and this witness has stated that when he was proceeding from his farmhouse towards village Gokulpur and had reached near the farmhouse of Darshan Singh, he heard the shrieks of the wife and children of Darshan Singh. He found these persons near the 'hauz'. When he asked them as to what was the matter, they told him that Devi Chand was hiding in the sugarcane field of Mohammed Hasan after killing Darshan Singh. He has also stated that Karam Singh also reached there and when they started shouting, accused-Devi Chand came out from the sugarcane field and ran towards the west. He has also stated that Devi Chand had a dagger Ext. Ka2 in his hand. This witness also stated that Darshan Singh was lying near the 'hauz' and was bleeding. He was carried to the front of his farmhouse where he died a little later.

(23) Thus, upon a careful perusal of the testimony of the two eye-witnesses of the occurrence, it is established that appellant-Devi Chand had inflicted injuries on deceased-Darshan Singh on 18.3.1987 in the evening at the place alleged by the prosecution as a result of which he died. The medical evidence on record indicates that appellant-Devi Chand had caused two injuries on vital parts of the body of Darshan Singh. Seats of the injuries are sufficient for us to infer that two dagger blows were inflicted by the appellant to the deceased with the intention of causing his death. From the evidence of P. W. 4 Satnam Singh, it is further proved that the appellant after assaulting the deceased with the dagger, had hidden himself in the sugarcane field of Mohammed Hasan and after he and the other witnesses had arrived at the place of occurrence, he had come out of the sugarcane field and made his escape good towards the west.

(24) Now coming to the submission of the learned amicus curiae that the learned trial judge should not have relied upon the evidence of P. W. 2 Tarsen Kaur and P. W. 3 Kumari Autar Kaur who are the wife and the daughter of the deceased hence highly interested in securing appellant's conviction for the purpose of convicting the appellant for the murder of Darshan Singh without seeking corroboration from independent witnesses, we noticed that in the case of Waman (supra), it has been observed by Hon'ble Apex Court that merely because witnesses are related to the complainant or deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being relative cannot by itself discard their evidence. In other words, relationship is not a factor to affect credibility of witness and Courts have to scrutinize their evidence meticulously with care. It has also been observed that if testimony of the related eyewitnesses, or a close relative of the deceased is found to be convincing and trustworthy about incident, the same cannot be disbelieved.

(25) We have already found that the two eye-witnesses of the occurrence P. W. 2 Tarsen Kaur and P. W. 3 Kumari Autar Kaur examined by the prosecution during the trial have given cogent and correct description of the occurrence despite subjected to gruelling cross-examination have stood by the evidence tendered by them in their examination-in-chief. We do not find any reason to disbelieve their evidence or to discard their testimony merely on the ground of their being close relatives of the deceased.

(26) Thus, upon a wholesome consideration of the facts and circumstances of the case and the evidence on record and the law report on which learned A.G.A. has placed reliance, we have no hesitation in holding that the prosecution has fully succeeded in proving its case against the accused-appellant beyond all reasonable doubts. We do not find any reason to interfere either with the recorded conviction of the appellant or the sentence awarded to him. This appeal lacks merit and is accordingly dismissed.

(27) Appellant-Devi Chand is on bail. C.J.M. Saharanpur shall ensure that appellant-Devi Chand is immediately arrested and sent to jail for serving out the remaining part of his sentence.

(28) Sri Pawan Singh Pundir, learned amicus curiae for the appellant shall be paid Rs. 15,000/- towards his remuneration as per High Court Rules.

Order Date :- 28.2.2019

SA