Mallu @ Mahesh Chandra vs State Of U.P.
2019 Latest Caselaw 5844 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on : 05.02.2019
 
  Delivered on : 09.07.2019
 
Court No. - 34
 

 
Case :- JAIL APPEAL No. - 4911 of 2013
 

 
Appellant :- Mallu @ Mahesh Chandra
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Shiv Vilas Mishra (A.C.)
 
Counsel for Respondent :- A.G.A., Nikhil Chaturvedi (AGA)
 

 
Hon'ble Sudhir Agarwal, J.

Hon'ble Rajendra Kumar-IV,J.

(Delivered by Hon'ble Rajendra Kumar-IV,J.)

1. Against judgment and order dated 7.8.2013 passed by Special Judge (S.C./S.T.) Act, Farrukhabad in Special Sessions Trial No. 609 of 2007, State v. Mallu @ Mahesh Chandra, under Section 302 IPC, Case Crime No. 391 of 2007, Police Station Shamshabad, District Farrukhabad, accused-appellant has preferred this appeal under Section 383 Cr.P.C. from Jail through Superintendent Jail, Farrukhabad. By impugned judgement, appellant has been convicted under Section 302 IPC and sentenced to undergo life imprisonment with fine of Rs. 10,000/- and in default of payment of fine, three months simple imprisonment.

2. Factual matrix of case as emerging from First Information Report (hereinafter referred to as "FIR") as well as material placed on record is as follows.

3. P.W.-1 presented a written report Ex.Ka-1 in Police Station Shamshabad, District Farrukhabad at about 21:25 p.m. on 12.8.2007 stating that his mother Ram Pyari at about 8 o'clock in the morning had gone to weed out the corn field, situated towards eastern side of village. Informant also went to the field at about 1:00 p.m. and had also weeded out a little and thereafter returned to house along with grass for his Buffalo. His mother remained at the field. Informant again went to the field by cycle and at about 6:30 p.m., Informant along with his mother had been returning to their home along with bundle of grass kept on cycle. When they reached near the grove of Vedpal, mother of Informant asked him to go by bicycle and give bath to the buffalo. Hardly, he went ahead about 30-40 paces, when he heard shrieks of his mother whereupon returned back and saw that accused-appellant Mallu @ Mahesh Chandra was dragging her mother to the grove of guava. When Informant's mother protested, accused-appellant started assaulting her by Axe (Takora). Hearing noise of Informant and screams of his mother, Informant's uncle Ramveer and Amar Singh Kori of the village, coming from eastern side, rushed to save his mother. The accused-appellant fled away through guava grove waving his hands with Axe. The labourers working in nearby field on account of fear also fled away from their fields. Informant's mother died instantaneously on the spot.

4. On the basis of written report Ex.Ka-1, PW-5 Constable Omveer Singh prepared Chick F.I.R. Ex.Ka-9 and made corresponding entry in General Diary, copy of which is Ex.Ka-10 on record. After registration of F.I.R. as Case Crime No. 39 of 2007 under Section 302 I.P.C., initially investigation was conducted by PW-4 S.I. Surendra Kumar Singh in the absence of Station Officer Anjani Kumar Srivastava PW-8. On resuming duty, PW-8 Anjani Kumar Srivastava took over investigation from PW-4.

5. Immediately after registration of case, investigation was handed over to S.I. Surendra Kumar Singh P.W.-4, who took copies of F.I.R. and G.D. and recorded statement of P.W.-5 Constable Omveer Singh as well as Informant P.W. 1. Thereafter, he proceeded to spot along with S.I. Muddasir Hussain P.W.-6, who held inquest over the body of deceased; prepared Panchayatmana (Ex.Ka-3) and other necessary documents relating thereto; sealed and sent dead body for post mortem examination; took simple earth and blood-stained earth and prepared recovery memos (Ex. Ka-4 and 5). He also took in possession nine pieces of Bangles of deceased from the spot in his custody, duly sealed and prepared recovery memo (Ex.Ka-6). During investigation, P.W.-4 Investigating Officer apprehended the accused-appellant at about 12:30 p.m. On 14.8.2007 on the turning of Nawabganj. On being apprehended, accused-appellant Mallu @ Mahesh Chandra made disclosure to Investigating Officer, confessing his guilt stating that after the death of Mahendra, husband of Ram Pyari, he kept her as wife but a few months prior to incident, Ram Pyari became characterless. About 10 to 15 days prior, Ram Pyari threatened him to get assassinated. On pointing out of the accused, Investigating Officer P.W.4 Surendra Kumar Singh recovered blood stained Axe used in the incident, from sugarcane field of one Indesh and recovery memo Ex.Ka-11 was prepared.

6. Autopsy over dead body of deceased Ram Pyari was conducted by PW-3, Dr. Ajay Kumar, posted at District Hospital, Farrukhabad, who prepared postmortem report (Ex.Ka-2) on 13.8.2007 at about 2:50 p.m. and found incised wounds as ante-mortem injuries. On external examination, deceased was found of average body built, aged about 40 years; rigor mortis had passed all over the body. In the opinion of doctor, death had occurred about one day before at the time of autopsy. He found following ante mortem injuries on his person :-

(i) Incised wound 9.0 cm x 1.0cm x bone deep or right side face, underline maxilla bone fractured.

(ii) Incised wound 8.0 cm x 1.5 cm x mouth cavity deep right side face, 5.0 cm below injury no. 1.

(iii) Incised wound 2.0 cm x 0.5 cm x muscle deep over right check.

(iv) Incised wound 4.0 cm x 1.0 cm x muscle deep back of right shoulder.

(v) Incised wound 6.0 cm x 1.5 cm x bone deep on posterior lateral aspect of right upper arm underling bone fracture.

(vi) Incised wound 9.0 cm x 0.2 cm x subcutaneous deep outer side right upper arm.

(vii) Incised wound 6.0 cm x 2.5 cm x bone deep outer side right upper arm, just above the right elbow front.

(viii) Incised wound 6.0 cm x 3.0 cm x bone deep, dorsal side, right wrist underling fractured.

(ix) Incised wound 4.0 cm x 1.0 cm x muscle deep dorsal side left forearm middle part.

7. On internal examination, doctor found both chambers of heart empty; loose teeth 16/16; stomach contained 100 gram blood mixed pasty food. In the opinion of doctor, death had occurred due to shock and hemorrhage as a result of ante-mortem injuries. PW-6 prepared postmortem report Ex.Ka-2 under his signature and handed over dead body after sealing the same along with clothes of deceased and necessary papers to Constables who brought the corpse.

8. Ultimately, investigation was completed by PW-8 Inspector Anjani Kumar Srivastava, who submitted charge sheet Ex.Ka-12 under his signature against accused-appellant under Section 302 IPC in the Court of Chief Judicial Magistrate concerned, who took cognizance of offence on 25.9.2007. The case being triable by Court of Sessions, C.J.M. After compliance of Section 207 Cr.P.C. Committed the case to the Court of Sessions for disposal where-from it was transferred to Additional Sessions Judge, Court No.2, Farrukhabad.

9. Trial Court framed charge against the accused-appellant under Section 302 I.P.C. on 6.11.2007 to which accused-appellant pleaded not guilty and claimed trial. Charges against accused-appellant under Sections 302 I.P.C. reads as under :-

"I, Rajiv Kumar Tripathi, Additional Sessions Judge, Court No. 2, Farrukhabad, hereby, charge you Malloo alias Mahesh as follows :-

That you on 12.8.2007 at about 6:30 p.m. near grove of Neta Sri Vedpal situated in village Roshanbad under police circle of P.S. Shamshabad District Farrukhabad did commit murder by intentionally causing the death of Ram Pyari the mother of complaint Ranjeet Kumar by inflicting Takora injuries and that you thereby committed an offence punishable under Section 302 I.P.C. And within the cognizance of this court.

And, I hereby direct that you be tried on the said charge by this Court."

10. In order to establish its case prosecution examined as many as nine witnesses, out of them P.W.-1 Ranjeet Kumar and P.W. 2 Ramveer are the witnesses of fact and deposed ocular account of occurrence. PW-3 Dr. Ajay Kumar, P.W. 4 Surendra Kumar Singh, P.W.-5 Omveer Singh, P.W-6 Muddasir Hussain, P.W.-7 Rajesh Kumar, P.W.-8 Anjani Kumar Srivastava and P.W.-9 Satyabhan Singh are the formal witnesses and have proved documents prepared by them.

11. PW-3 Dr. Ajay Kumar has conducted autopsy on the dead body of deceased and has proved post mortem as Ex.Ka.-2. PW-4 is First Investigating Officer, who had visited the spot after registration of the case and has prepared necessary documents. He has proved inquest, Ex.Ka-3, and recovery memos, Ex.Ka-4, 5 and 6 prepared by him in respect of blood-stained soil, simple soil and peaces of bangle respectively. Site plan, Ex.Ka-7 and Ka-8, and material Exhibit-1 have also been proved by this witness. PW-5 Constable Moharrir Omveer Singh has proved the Chick F.I.R., Ex.Ka-9, and copy of G.D. Entry, Ex.Ka-10. PW-6 S.I. Muddasir Husain along with police party had arrested the accused-appellant on 14.8.2007. He has proved the recovered weapon used in the offence. He has proved recovery memo, Ex.Ka-11. PW-7, Rajesh Kumar is the witness of inquest. He has admitted his signature on Panchayatnama, Ex.Ka-3. PW-8 Anjani Kumar Srivastava was the second Investigating Officer, who has concluded the investigation and submitted charge sheet, Ex.Ka-12, against accused-appellant and has proved the same.

12. On closure of prosecution evidence, statement of accused-appellant under Section 313 Cr.P.C. was recorded by the Court wherein accused has denied prosecution story in toto, claimed false implication in the present case on account of enmity of village Pradhan. He further stated that he is innocent and has falsely been Challaned by police after taking him from his house in collusion with village Pradhan and he did not commit murder of Ram Pyari. However, he did not adduce any oral and documentary evidence.

13. Ultimately, the case came to be heard and decided by Special Judge (S.C./S.T.) Act, Farrukhabad by the impugned judgement. After hearing learned counsel for both the parties and evaluating entire evidence led by the prosecution, learned Trial Court found accused-appellant Mallu @ Mahesh Chandra guilty under Section 302 I.P.C. and convicted him, as stated above. Feeling aggrieved with impugned order of conviction and sentence, appellant has preferred this appeal through Superintendent District Jail, Fatehgarh.

14. We have heard Sri Shiv Vilas Mishra, learned Amicus Curiae for appellant and Sri Nikhil Chaturvedi, learned A.G.A for State-respondents at length and have gone through the record available on file carefully.

15. Learned Amicus Curiae assailed the impugend judgement by advancing following submissions :-

(i) There is no motive to accused-appellant to commit the crime.

(ii) There is no independent witness of the crime inasmuch, P.W.-1 and P.W. 2 are close relatives of deceased.

(iii) P.W.-1 is a minor witness, who appears to be tutored.

(iv) Ocular evidence adduced by prosecution is not compatible and consistent with the medical evidence.

(v) There are major contradictions in the statement of P.W.-1 and P.W.-2 rendering the prosecution case doubtful.

(vi) Recovery shown from the possession of appellant is not supported by independent witness and inspires no confidence.

(vii) Prosecution has failed to establish its case beyond reasonable doubt.

16. Per contra, learned AGA appearing for State respondents supported the impugned order and objected the submissions made by Amicus Curiae for the appellant by submitting that accused is named in F.I.R.; PW-1 and 2 are eye witnesses of fact; relation with the deceased could not be a ground to disbelieve them; F.I.R. is prompt and medical evidence is consistent with the ocular evidence. Trial Court has rightly convicted and sentenced the accused.

17. We now proceed to briefly consider the evidence led by prosecution available on record.

18. PW-1 Ranjeet Kumar happens to be of 13 years at the time of incident, deposed, that on the fateful day in the morning his mother Ram Pyari (now deceased) had gone to weed out corn field situated at eastern side of village. He went to the field at about 1:00 p.m. and weeded out a little where-after returned to house along with bundle of grass. His mother remained at the field. He again went to the field by bicycle at about 4 O'clock and after two hours, he along with his mother was returning to their house along with bundle of grass kept on cycle. At about 6:00 p.m., when they reached near the grove of one Vedpal, his mother asked him to go by bicycle and give bath to the buffalo. He hardly went ahead about 30-40 paces, when heard shrieks of his mother, whereupon he returned back and saw accused-appellant Mallu @ Mahesh Chandra was dragging her mother towards grove of guava. Her mother was objecting accused-appellant, who dropped her on the earth and started assaulting by Axe (Takora). Hearing noise and screams of his mother, his uncle Ramveer and one Amar Singh Kori of the village rushed to save his mother. On seeing them, accused appellant fled away through guava grove waving his Axe, her mother succumbed to injuries on spot. He presented a written Tehrir Ex.Ka-1 to Police Station concerned getting it scribed by one Ram Ratan.

19. PW-2, Ramveer, deposed that on fateful day i.e. 12.8.2007, his Bhabhi Smt. Ram Pyari (now deceased) and his nephew Ranjeet Singh (PW-1) had gone to weed out Corn field. He was also cutting the grass in a nearby field. At about 6:00 p.m., on hearing shrieks of Ram Pyari, he and one Amar Singh rushed there to save her and defied the accused whereupon accused-appellant Mallu @ Mashesh Chandra waving Axe in air, fled away through guava grove. Ram Pyari succumbed to injuries on spot.

20. Both the witnesses withstood lengthy cross-examination but nothing material has been brought on record which may dent the prosecution story or veracity of the witnesses.

21. PW-1, evidently son of deceased and PW-2, Dewar of deceased are closely related to deceased. PW-1 categorically stated that he had seen accused-appellant giving repeated Axe blow to victim Ram Pyari, who sustained injuries and fell down on spot and succumbed to death. It has come in evidence of PW-1 that he and his mother were coming to house together when they reached near the grove of Vedpal, victim asked to him to go by bicycle and give bath to buffalo whereupon he went about 30-40 paces and heard shrieks of his mother. He returned back and saw accused-appellant Mallu @ Mahesh Chandra inflicting Axe blow on her.

22. PW-2 stated that he was cutting grass in nearby field. On hearing noise of victim, he and Amar Singh Kori rushed to save her and saw accused appellant fleeing away from spot waving Axe in air.

23. Both witnesses appeared to be natural witness. It is true that from bare perusal of statement of PW-2 Ramveer Singh, It appears that he has not seen the accused inflicting blows on victim but on challenge he saw accused-appellant running from spot waving blood stained Axe in the air.

24. From the statement of PW-4, Surendra Kumar Singh, I.O., it is established that blood stained Axe was recovered from the possession of accused himself at his pointing out from the sugarcane field of one Indesh.

25. PW-3, Dr. Ajay Kumar, who conducted post mortem of deceased Ram Pyari deposed that he found 9 ante-mortem incised wounds on the person of deceased (description of injuries are noted at page 4 of the judgement). He further opined that death had occurred due to shock and hemorrhage as a result of ante-mortem injuries. PW-1 stated that accused-appellant Mallu @ Mahesh Chandra had given repeated blow of Axe on his mother. In this way ocular evidence of PW-1 is compatible with medical evidence.

26. Evidence of PWs-1, 2 and 3 establishes that accused-appellant has inflicted serious injuries to victim Smt. Ram Pyari, who received serious injuries and fell down on spot and succumbed to injures.

27. So far as argument of relation of witnesses is concerned, we are not impressed with submission made by learned Amicus Curiae for accused-appellant for reasons that if relation witnesses are found to be reliable, natural and trustworthy, their evidence cannot be discarded on the ground of their relationship with deceased or accused.

28. In Ganga Bhawani v. Rayapati Venkat Reddy and Others, 2013(15) SCC 298, Court has held as under :-

"11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon.

(Vide: Bhagalool Lodh & Anr. v. State of UP, AIR 2011 SC 2292; and Dhari & Ors. v. State of U. P., AIR 2013 SC 308)."

29. It is settled law that merely because witnesses are closely related to deceased, their testimonies cannot be discarded. Relationship with one of the parties is not a factor that affects credibility of witness, more so, a relative would not conceal actual culprit and make allegation against an innocent person. However, in such a case, Court has to adopt a careful approach and analyse evidence to find out that whether it is cogent and credible evidence.

30. In so far as discrepancies, variations and contradictions in prosecution case are concerned, we have analysed entire evidence in consonance with submissions raised by learned counsel's and find that the same do not go to the root of case and accused-appellant is not entitled to get benefit of the same.

31. In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124, Court has held that minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person.

32. We lest not forget that no prosecution case is foolproof and the same is bound to suffer from some lacuna or the other. It is only when such lacunae are on material aspects going to the root of the matter, it may have bearing on the outcome of the case, else such shortcomings are to be ignored. Reference may be made to a recent decision of Apex Court (3 Judges) in Criminal Appeal No. 56 of 2018, Smt. Shamim v. State of (NCT of Delhi), decided on 19.09.2018.

33. So far as motive is concerned, it is well settled that where direct evidence is worthy, it can be believed, then motive does not carry much weight. It is also notable that mind set of accused persons differs from each other. Thus merely because that there was no strong motive to commit the present offence, prosecution case cannot be disbelieved. We do not find any substance in the argument advanced by learned Amicus Curiae. Despite legal position regarding motive, PW-1 deposed that accused-appellant used to have bad eyes on victim after death of his father. This motive finds support statement made by accused before police that he kept Smt. Ram Pyari as a wife after the death of her husband but few months prior to incident, she became characterless and she threatened him to get assassinated though motive alleged by prosecution has been established. Further it is notable to mention here that PW-1 deposed that he saw the accused-appellant giving repeated Axe blows to deceased. PW-2 saw the accused fleeing away waving his hands with Axe in air. PW-3 Dr. Ajay Kumar found 9 ante-mortem sharp cutting injuries on the person of deceased. In this way ocular evidence are compatible with medical evidence. In a case of occular evidence, even otherwife motive losses importance.

34. In Lokesh Shivakumar v. State of Karnataka, (2012) 3 SCC 196, Court has held as under :-

"As regards motive, it is well established that if the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive looses practically all relevance. In this case, we find the ocular evidence led in support of the prosecution case wholly reliable and see no reason to discard it."

35. In the present case, it is fully established that Smt. Ram Pyari succumbed to injures caused by accused-appellant. Evidence shows that dead body of deceased was found in village at the time of inquest. Medical evidence shows that death of Smt. Ram Pyari might have occurred due to ante-mortem injuries at that time, as alleged by prosecution. Accused-appellant in his statement under Section 313 Cr.P.C. has given reply that witnesses gave false statement but he did not suggest as to why PW-1, PW-2 and PW-3 gave false statements against him, therefore, there cannot be any hesitation to come to conclusion that accused caused death of Smt. Ram Pyari by causing several injuries on her body by Axe due to which, she succumbed to injuries.

36. In view of facts and legal position discussed hereinabove, we find that Trial Court has rightly analyzed evidence led by prosecution and found him guilty and convicted accused for having committed murder of Smt. Ram Pyari, an offence punishable under Section 302 IPC. Conviction and sentenced awarded by Trial Court is liable to be maintained and confirmed. No interference is warranted by this Court.

37. So far as sentencing of accused-appellant is concerned, it is always a difficult task requiring balance of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in individual cases.

38. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation upon court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].

39. Hence, applying the principles laid down in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we find that punishment awarded to accused-appellant by Trial Court in impugned judgment and order is not excessive and it appears fit and proper and no question arises to interfere in the matter on the point of punishment imposed upon him.

40. In the result, Appeal lacks merit and is hereby dismissed.

41. Lower Court record along with a copy of this judgment be sent back immediately to District Court and Jail concerned for compliance and apprising the accused-appellant.

42. Before parting, we provide that Sri Shiv Vilas Mishra Advocate, who has appeared as Amicus Curiae for appellant in present Jail Appeal, shall be paid counsel's fee as Rs. 10,000/- for his valuable assistance. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer, posted in the office of Advocate General at Allahabad, without any delay and, in any case, within one month from the date of receipt of copy of this judgment.

Order Date :- 09.07.2019

Manoj