Sonpal And Another vs The State Of U.P.
2019 Latest Caselaw 826 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 4								   A. F. R.
 

 
Case :- CRIMINAL APPEAL No. - 371 of 1988
 

 
Appellant :- Sonpal And Another
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- Rajesh Ji Verma,Dileep Kumar,H.D.Singh,J.N.Sharma-Amicus Curiae,Prakash Chandra Shakya
 
Counsel for Respondent :- A.G.A.
 

 
Connected with
 

 
Case :- CRIMINAL APPEAL No. - 105 of 1988
 

 
Appellant :- Hashim And Another
 
Respondent :- State
 
Counsel for Appellant :- Sri A.N. Mishra,S P.Verma
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Ghandikota Sri Devi,J.

1. Heard Sri S. P. Verma and Sri Vibhu Rai, Advocate holding brief of Anoop Trivedi for appellants-Chunnu and Hashim in criminal appeal no. 105 of 1988 and Sri J. N. Sharma, learned amicus curiae and Sri S.D. Singh, learned counsel for appellants-Son Pal and Ram Chandra in criminal appeal no. 371 of 1988.

2. These two criminal appeals have been preferred by Sonpal and Ram Chandra, appellants in criminal appeal no. 371 of 1988 and Chunnu and Hashim, appellants in criminal appeal no. 105 of 1988 against the judgment and order dated 14.1.1988 passed by Special Judge (E.C. Act), Farrukhabad in S.T. No. 69 of 1986 (State Vs. Sonpal and others) convicting and sentencing the appellants for imprisonment of life under Section 302/34 I.P.C.

3. Chunnu A2 in criminal appeal no. 105 of 1088 and Sonpal A1 in criminal appeal no. 371 of 1988 had died during the pendency of these appeals and these appeals qua appellants- Chunnu and Sonpal were dismissed as abated by this Court. These appeals are now being heard on behalf of Ram Chandra A2 in criminal appeal no. 371 of 1988 and Hashim A1 in criminal appeal no. 105 of 1988.

4. Briefly stated the facts of this case are that on 8.3.1985 Kunwar Bahadur had gone with his brother-Raj Bahadur (informant) from his village Bachajapur to village Tirwa on the auspicious occasion of holi festival and when after doing some marketing and meeting with their relatives, they were returning to their village, they met Kunwar Bahadur's daughter-Vimla and his son-in-law-Raj Bahadur and from there they started walking towards Bachajapur together on the banks of the irrigation canal. Kunwar Bahadur who was walking about 20-25 paces ahead of his daughter, informant and his son-in-law, as soon as he reached the field of Sattar in his village near the banks of irrigation canal, Sonpal (deceased A1), Ram Chandra A2 in criminal appeal no. 371 of 1988 and Chunnu (deceased A2) and Hashim A1 in criminal appeal no. 105 of 1988 caught hold of Kunwar Bahadur and pinned him to the ground while Ram Chandra and Sonpal severed his head from his body by assaulting him with gandasa and khurpi. When the witnesses, P. W. 2 Vimla and her husband-P. W. 1 Raj Bahadur shouted and challenged the accused, they left the deceased-Kunwar Bahadur on his injured state and ran towards south. The unfortunate incident had taken place after sunset at about 6:30 P.M. As regards the motive for committing the murder of Kunwar Bahadur by the accused-appellants it was stated that the appellants used to forcibly take out their bullock cart through the narrow piece of land in front of the house of deceased-Kunwar Bahadur forcibly on account of which in the morning of the day on which the incident had occurred, an altercation had taken place between Kunwar Bahadur and Sonpal (deceased A1), Ram Chandra A2 and one Vishambhar son of Kanhai and the aforesaid person had threatened Kunwar Bahadur with dire consequences. Chunnu (deceased A2) and Hashim A1 who were friends of Ram Chandra A2 and Sonpal (deceased A1) as well as their well wishers committed the murder of Kunwar Bahadur on account of enmity.

5. Narrating the aforesaid facts, a written report Ext. Ka1 was lodged by P. W. 1 Raj Bahadur, brother of the deceased at police station Tirwa, district Farrukhabad at 20:45 hours on 8.3.1985 and on the basis thereof case crime no. 50 of 1985, under Section 302 I.P.C. was registered against all the four accused, chek F.I.R. Ext. Ka2 and the relevant G.D. entry Ext. Ka3 were prepared by P. W. 5 S.S.I. Ram Autar Singh, I.O. of the case who also reached the place of occurrence and after inspecting the same prepared it's site plan Ext. Ka5 on the same day. He held the inquest on the body of the deceased and after completing the inquest, prepared inquest report Ext. Ka6 and other connected documents namely letter addressed to C.M.O., report to R.I., challan lash and photo lash Ext. Ka8 to Ext. Ka11. Thereafter, he dispatched the dead body of Kunwar Bahadur to the district hospital for postmortem examination. He also collected plain soil and bloodstained earth from the place of occurrence and prepared it's recovery memo Ext. Ka7.

6. The postmortem on the body of deceased-Kunwar Bahadur was conducted by P. W. 4 Dr. C. N. Bhalla on 9.3.1985 at about 5 P.M. who also prepared his postmortem report Ext. Ka4. He found following antemortem injuries on the body of Kunwar Bahadur :

1- कटा घाव सिर व धड़ को अलग करता हुआ गर्दन पर गर्दन की रीढ़ की पांचवी हड्डी के लेविल पर था। इस लेविल के सभी स्ट्रक्चर्स (Structure) कटे हुये थे। कटे हुये थे। कटे हुये स्थान पर जमा हुआ खून मौजूद था। किनारे साफ कटे हुये व रेग्ड (Ragged) थे।

2- कटा घाव 6 से० मी० x 2 से०मी० x हड्डी की गहराई तक । सिर पर दाहिनी तरफ कान के बिल्कुल उपर । किनारे साफ कटे हुये व रैग्ड थे।

3- कटा घाव 7 से०मी० x 2 से०मी० x हड्डी की गहराई तक। हेरीजेन्टल पोजीशन में सिर के पीछे के भाग पर ओक्सपिटल हड्डी के ऊपर था।

4- कटा घाव तिर्छी, 6 से०मी० x 1-1/2 से०मी० x हड्डी की गहराई तक (जबड़ा) चेहरे पर वांई तरफ। नीचे की हड्डी व कान का कुछ भाग कटा हुआ था। किनारे साफ कटे हुये व रैग्ड थे।

5- निशान खरास 6 से० मी० x 2 से०मी० दाहिनी जांघ पर पीछे की ओर ऊपरी हिस्से पर। आन्तरिक परीक्षण में दाहिनी टेमर्पल, पेराइटिल, ओसीपिटल, टेनडिविल हड्डिया कटी हुई जो मस्तिष्क में जमा हुआ खून मौजूद था व झिल्लियाँ कटी हुई थी। गर्दन की पांचवी हड्डी कटी हुई थी। सांस की नली व भोजन की नली कटी हुई थी। पेट में अधपचा भोजन लगभग 100 ग्राम था।

इस साक्षी की राय में मृत्यु से पूर्व आई हुई चोटों के फलस्वरूप सदमें व अत्याधिक श्राव की वजह से मृतक से पूर्व आई हुई चोटों के फलस्वरूप सदमें व अत्याधिक श्राव की वजह से मृतक की मृत्यु हुई थी।

7. After completing the investigation, the I.O. filed chargesheet against all the four accused Ext. Ka12 before C.J.M. Farrukhabad.

8. Since the offence mentioned in the chargesheet was triable exclusively by the Court of Sessions, C.J.M. Farrukhabad committed the case for the trial of the accused to the Court of Sessions Judge, Farrukhabad where the case was registered as S.T. No. 69 of 1986 (State Vs. Sonpal and 3 others) and made over for trial from there to the Court of Special Judge (E.C. Act) Farrukhabad who on the basis of the material on record and after affording opportunity of hearing to the prosecution as well as the accused, framed charge under Section 302/34 I.P.C. against all the four accused, who abjured the charge and claimed trial.

9. The prosecution in order to prove the charge framed against the accused examined as many as five witnesses of whom P. W. 1 (informant) Ram Bahadur, brother of the deceased and P. W. 2 Vimla, daughter of the deceased were examined as eye-witnesses of the occurrence while P. W. 3 Head Moharrir Sultan Singh who had prepared the chek F.I.R. Ext. Ka2 and the relevant G.D. entry vide rapat no. 21 time 20:45 hours on 8.3.1985 Ext. Ka3. P. W. 4 Dr. C. M. Bhalla who had conducted autopsy of the body of deceased-Kunwar Bahadur and prepared his postmortem report Ext. Ka4 and P. W. 5 S.S.I. Ram Autar Singh, the I.O. of the case who had conducted the investigation and filed chargesheet Ext. Ka12 against all the four accused were produced as formal witnesses.

10. The accused in their statements recorded under Section 313 Cr.P.C. denied having committed the murder of Kunwar Bahadur and also denied the prosecution story as false and concocted. Although the accused did not examine any witness in defence but they filed copies of the application filed by them in criminal revision no. 290 of 1983 (Hamid Khan vs. Mohammad Jama Khan) Ext. Kha1 and in case under Section 43/39 L.R. Act Ext. Kha2.

11. Learned Special Judge (E.C. Act) Farrukhabad 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 all the four accused and awarded aforesaid sentences to them.

12. Hence this appeal.

13. Sri S. P. Verma and Sri Vibhu Rai, Advocate holding brief of Anoop Trivedi, learned counsel for appellant-Hashim in criminal appeal no. 105 of 1988 submitted that Hashim A1 was falsely implicated in the present case by P. W. 1 Raj Bahadur due to previous enmity between him and his family arising out of pendency of civil and criminal litigation between their families. He next submitted that the motive, if any, to commit the crime was attributed to Sonpal (deceased A1) and Ram Chandra A2 in the instant case and Hashim A1 has been falsely implicated in the present case only on account of his being a friend of Sonpal (deceased A1) and Ram Chandra A2. Both the eye-witnesses of the occurrence namely P. W. 1 Raj Bahadur and P. W. 2 Vimla being brother and daughter of the deceased are highly interested witnesses and the trial court erred in law in relying upon their testimony for the purpose of convicting him without seeking corroboration from the evidence of any independent witness. He lastly submitted that neither the recorded conviction of Hashim A1 nor the sentence awarded to him can be sustained and is liable to be set aside.

14. Sri J. N. Sharma, learned amicus curiae and Sri S.D. Singh, learned counsel for Ram Chandra A2 in criminal appeal no. 371 of 1988 submitted that the incident having taken place after sunset and there being no evidence on record indicating existence of any source of light at the place of incident which would have enabled the witnesses to see the occurrence and identify the miscreants, it is apparent that after the dead body of Kunwar Bahadur was found, P. W. 1 Raj Bahadur (informant) prepared the first information report in consultation and after due deliberations with the police falsely implicating Ram Chandra A2 due to previous enmity between the deceased and Sonpal (deceased A1) and Ram Chandra A2. He lastly submitted that the medical evidence on record does not corroborate the manner of assault as narrated in the F.I.R. and later testified by the two eye-witnesses. He lastly submitted that this appeal deserves to be allowed and the impugned judgment and order are liable to be set aside.

15. Per contra Sri Awadhesh Kumar Shukla, learned State Law Officer appearing for the state submitted that it is fully proved from the evidence of P. W. 1 Raj Bahadur and P. W. 2 Vimla that the surviving appellants along with the deceased-appellants had with a common object committed the murder of Kunwar Bahadur in a very gruesome and brutal manner by severing his head from his body. There was sufficient light at the place of occurrence as even after sunset in the month of March, it is not totally dark and moreover the accused-appellants were previously known to the witnesses, hence the argument of the learned counsel for the appellants that there was no source of light available on the spot, is wholly misconceived. There is absolutely no conflict between the medical evidence and the ocular version. The F.I.R. in this case was lodged promptly within half an hour of the occurrence and considering the distance of 3 kms between the place of occurrence and the police station, there was no time for holding any discussions or deliberations with the object of falsely implicating the appellants. He lastly submitted that neither the recorded conviction of the appellants nor the awarded sentence merit any interference by this Court. This appeal lacks merit and is liable to be dismissed.

16. We have very carefully considered the submissions made by the learned counsel for the parties and perused the entire lower court record.

17. 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-appellants beyond all reasonable doubts or not.

18. Record shows that the incident had taken place at about 6:30 P.M. on 8.3.1985 in village Bachajapur. As per the prosecution story while P. W. 1 Raj Bahadur was returning from Tirwa to his village along with his brother Kunwar Bahadur, he met his daughter-P. W. 2 Vimla and his son-in-law-Ram Bahadur on the way. They all started walking towards their Village Bachajapur together. Kunwar Bahadur who was walking alone 20-25 steps ahead of his companions was intercepted by the accused in the field of Sattar who caught hold of him from behind. While Hashim A1 and Chunnu (deceased A2) in criminal appeal no. 105 of 1988 threw him on the ground. Sonpal (deceased A1) and Ram Chandra A2 who were armed with gandasa and khurpi assaulted him with their respective weapons and severed his head from his body.

19. On being challenged by P. W. 1. Raj Bahadur, P. W. 2 Vimla and on the cries of help raised by them, the accused ran away from the place of occurrence. The motive for committing the crime as suggested by the prosecution was that Sonpal (deceased A1) and Ram Chandra A2 used to forcibly take out their bullock carts through the small space in front of the house of the deceased to which he objected. On the date of occurrence, in the morning, an altercation had taken place between the deceased and Sonpal (decesed A1) and Ram Chandra A2 and one Vishambhar on the same issue on which Sonpal (deceased A1) and Ram Chandra A2 and Vishambhar had threatened the deceased with dire consequences and in the evening of the same day Sonpal (deceased A1) and Ram Chandra A2 with the help of Hashim A1 and Chunnu (deceased A2) who were their friends committed the murder of the deceased.

20. The prosecution in order to prove that the occurrence had taken place in the manner as spelt out in the F.I.R. examined P. W. 1 Raj Bahadur and P. W. 2 Vimla as eye-witnesses. P. W. 1 Raj Bahadur (informant) in his examination-in-chief has fully supported the prosecution case as spelt out in the F.I.R. P. W. 2 Vimla has also corroborated the evidence of P. W. 1 Raj Bahadur on all material points pertaining to the occurrence namely time, place and the manner of assault and the identity of the perpetrators of the crime. Both the witnesses were cross-examined at great length by the defence counsel but he failed to extract anything adverse from them except a few minor discrepancies which do not go to the core of the prosecution story which may persuade us to hold their testimonies to be unreliable or untrustworthy.

21. As regards the submission made by the learned counsel for the appellants that Hashim A1 in criminal appeal no. 105 of 1988 had falsely been implicated in the present case only on account of his being a friend of Sonpal (deceased A1) and Ram Chandra A2 as he had no motive to participate in the crime with them, due to pendency of civil and criminal litigation between him and chaukidar of the village, is concerned the same is also without any merit. The F.I.R. in this case was lodged by P. W. 1 Raj Bahadur. There is no evidence on record indicating any interference of the chaukidar of the village in the preparation of the F.I.R. P. W. 1 Raj Bahadur had deposed that the chaukidar had accompanied him to the police station. The law is settled in a case based upon direct evidence, motive looses significance, if the evidence of the witnesses produced during the trial appears to be cogent and correct, no fault can be found with the conviction recorded, sans any motive.

22. Coming to the submission made by Sri J. N. Sharma, learned amicus curiae appearing on behalf of Ram Chandra A2 in criminal appeal no. 371 of 1988 that the medical evidence on record does not corroborate the ocular version, we find that the same is also wholly misconceived. Although, Sri J.N. Sharma has very strenuously urged that the clothes of the deceased including his undergarments could not have been drenched with blood in case the injuries were inflicted on the deceased on his head while he was pinned to the ground, but we find upon a careful consideration of the evidence of P. W. 4 Dr. C. N. Bhalla who had conducted autopsy on the body of the deceased that no such suggestion was given to him by the defence counsel. There is also no evidence on record indicating that the clothes of the deceased were blood soaked. Surprisingly the manner of assault has not been challenged by the defence by giving any suggestion to the two eye-witnesses of the occurrence during their cross-examination. Even otherwise after giving anxious consideration to the arguments of the learned counsel for the appellants and the evidence on record, both oral as well as medical, we do not find any force in their submissions.

23. Upon a wholesome consideration of the facts and attending circumstances of the case and the evidence on record both oral as well as documentary, we find that the learned trial judge did not commit any illegality or legal infirmity in holding the appellants for the murder of Kunwar Bahadur. The evidence of both the eye-witnesses has through out remained consistent and clinching.

24. Both the appeals lack merit and are accordingly dismissed.

25. Ram Chandra A2 in criminal appeal no. 371 of 1988 and Hashim A1 in criminal appeal no. 105 of 1988 are on bail. Their bail bonds are cancelled and sureties are discharged. Chief Judicial Magistrate, Farrukhabad is directed to take them in custody and send them to jail for serving out the remaining part of their sentences and submit his report in this regard to the Registrar General of this Court.

26. Office is directed to transmit a copy of this judgment and order to Court concerned/Chief Judicial Magistrate, Farrukhabad for necessary follow up action.

27. There shall be however no order as to costs.

Order Date :- 08.03.2019

SA