Prem Narain And Others vs State Of U.P.
2019 Latest Caselaw 3970 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 4								   A. F. R.
 

 
Case :- CRIMINAL APPEAL No. - 501 of 1987
 

 
Appellant :- Prem Narain And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- V.C. Katiyar,P.C.Srivastava
 
Counsel for Respondent :- D.G.A.
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Ghandikota Sri Devi,J.

(Delivered by Hon'ble Bala Krishna Narayana, J.)

(1) Heard Sri Heard Sri P. C. Srivastava, learned counsel for the appellants and Smt. Manju Thakur, learned A.G.A.-I for the State.

(2) This criminal appeal has been filed by the appellants against the judgment and order dated 13.2.1987 passed by Sessions Judge Farrukhabad in S.T. No. 493 of 1984 (State Vs. Prem Narain and others) by which they have been convicted and sentenced to undergo imprisonment for life and pay fine of Rs. 1000/- each and in default of payment of fine to undergo further rigorous imprisonment for a period of 1 year under Section 302/34 I.P.C.

(3) The prosecution story, briefly stated is as follows :

(4) Prem Narain A1, Rajoo A2 and Kashi ram A3 were real brother and sons of Gobardhan Lal Kurmi and residents of village Naika Pur, police station Indergarh, district Farrukhaad, Co-accused Channu was also a resident of the same village. He was said to be a close associate of Prem Narain A1, Rajoo A2 and Kashi Ram A3. The deceased-Rameshwar was the father of the complainant Satyapal P. W. 2. He was also a resident of village Naika Pur, police station Indergarh, district Farrukhabad.

(5) The prosecution claimed that prior to the occurrence of this case Prem Narain A1 and others had assaulted one Ram Swarup Pandit. In that incident Ram Nath, the brother of the complainant, Satyapal P. W. 2 and Ram Kishan, the uncles of the complainant had given evidence. Prem Narain A1 was convicted therein. About 7 and 8 months before the date of the occurrence of this case, Prem Narain A1 was proceeded against under Sections 107/117 Cr.P.C. About 15 days before the date of the occurrence, Prem Narain A1 had assaulted the mother of the complainant. The mother of the complainant had lodged the report about the incident at police station on 29.7.1984. The deceased Rameshwar had taken some land on lease. The accused had unlawfully occupied the said land. The deceased had made a complaint against the accused about that matter. The prosecution maintained that the accused bore enmity with the deceased on that score also.

(6) The incident took place on 11.8.1984 at about 6:30 P.M. near the culvert of villgae Naika Pur, police station Indergarh, district Farrukhabad about 5 kms away from police station Inergarh. At that time the deceased Rameshwar was returning from the side of the culvert after discharging his natural call. His son Satyapal P. W. 2 was grazing cattle nearby. His brother Ram Kirpal P. W. 3 was chit chatting at the Kothari of Ganga Ram @ Buddha with other villagers. While the deceased was coming towards his house, he was accosted by the accused. Prem Narain A1 was armed with a lathi, Kashi Ram A3 was armed with a knife, Rajoo A2 was armed with a spear and co-accused-Channu was armed with a country made pistol. Prem Narain A1, Kashi Ram A3 and Rajoo A2 assaulted the deceased by lathi, knife and bhala respectively. Upon hearing the cries of the deceased, P. W. 2 Satyapal, the son of the deceased, P. W. 3 Ram Kirpal, the brother of the deceased, Ganga Ram, Subhash and Ram Mohan and other villagers reached the scene of the occurrence and saw Prem Narain A1, Kashi Ram A3 and Rajoo A2 assaulting the deceased. The deceased fell down in a near by pit. Accused-Chhannu threatened the witnesses and restrained them from rescuing the deceased and opened fire from a country made pistol upon Ram Mohan. However, they escaped unhurt. The accused fled thereafter.

(7) P. W. 2 Satyapal and P. W. 3 Ram Kirpal brought the body of the deceased to their house. P. W. 2 Satyapal wrote a report of the occurrence Ext. Ka3. He lodged the same at about 9:10 P.M. on 11.8.1984 at police station Indergarh. On the basis of Ext. Ka3 case crime no. 99 of 1984, under Section 302 was registered against the accused and investigation followed.

(8) Prem Narain A1, Rajoo A2 and Kashi Ram A3 were committed to stand trial before the court of sessions by the Munsif Magistrate Farrukhabad on 23.10.1984.

(9) The co-accused-Channu was separately committed to stand trial before the Court of Session by Vth Additional Munsif Magistrate Farrukhabad on 21.11.1984.

(10) Two separate sessions trial namely 493 of 1984 and 528 of 1984 were registered against Prem Narain A1, Rajoo A2 and Kashi Ram A3 and co-accused Channu respectively. As all the four accused were involved in one and the same occurrence, both the sessions trials were heard together and were decided by a common judgment.

(11) Charges under Sections 302/34 and 307/34 I.P.C. were framed against Prem Narain A1, Rajoo A2 and Kashi Ram A3 by the then Sessions Judge Farrukhabad vide his order dated 21.1.1986 while Co-accused Channu was charged under Section 307 and 302/34 I.P.C.

(12) The accused pleaded not guilty to the charges framed against them and claimed trial.

(13) The accused-appellants in their statements recorded under Section 313 Cr.P.C. denied to have assaulted the deceased. They pleaded that the deceased-Rameshwar Dayal had a bad character. He was prosecuted in several cases. He was killed by some unknown persons. These accused pleaded that their house is situate at a distance of about 10 miles from the place of occurrence and that they had been falsely implicated in the case.

(14) The prosecution in order to prove its case examined as many as five witnesses.

(15) P. W. 2 Satyapal was the son of the deceased, an eye-witness of the occurrence and is the scribe of the F.I.R. Ext. Ka3. He narrated the prosecution story as stated above.

(16) P. W. 3 Ram Kirpal, the brother of the deceased, another witness of fact who fully supported the case of the prosecution.

(17) P. W. 1 Head Constable Bhola Prasad, formal witness who proved chik report and injury report.

(18) P. W. 5 Dr. Ram Manohar Singh, Medical Officer of district hospital Farrukhabad had conducted autopsy on the dead body of the deceased and found the position of the deceased as under on 13.8.1984 :

The deceased was aged about 53 years. He had died about 2 days back. His body was well built, eyes closed, mouth open, tongue swollen, rigor mortis passed off, blisters present over the body at places, maggots present, penis and scrotum swollen.

Ante mortem injuries

(i) lacerated wound 7.5 cm x 2.5 cm x bone deep over the right side of head. 10 cm above the right eyebrow.

(ii) lacerated wound 1.5 cm 1 cm x scalp deep over the left side of head.

(iii) Abraded contusion 6 cm x 4 cm over the left side face.

(iv) contusion 7 cm x 3 ½ cm on left shoulder.

(v) penetrating wound 1.5 cm x 1 cm x bone deep over the back of left upper arm 6 cm above the elbow.

(vi) penetrating wound 0.75 cm x 0.5 cm x muscle deep shaped oval, margins lacerated over the back of left upper arm 7 cm below just left shoulder.

(vii) contusion 6 cm x 2.5 cm on outer and lateral aspect of left upper arm in the middle.

(viii) contused wound 3.5 cm x 1.5 cm x muscle deep, margins clean cut on back of right dorsum 7 cm below the elbow.

(ix) lacerated wound 4 cm x 1.5 cm x bone deep over the front of left leg 12 cm below the left knee joint.

(x) contusion 16 cm x 4 cm over the left scapular region.

(xi) contusion 5 cm x 3 cm over the right scapular region.

(xii) contusion 7 cm x 6 cm over the left hip.

(xiii) multiple contusion in an area of 18 cm x 14 cm over the posterior aspect of right buttock and thigh.

P. W. 5 Dr. Manohar Singh opined that the deceased died due to shock and hemorrhage which resulted from the aforesaid ante mortem injuries.

(19) P. W. 4 Ram Manohar Singh, was the investigating officer of the case who investigated into the matter and chargesheeted the accused.

(20) The documents relied upon the prosecution consist of the F.I.R., chik report, inquest report, postmortem report, site plan and chargesheet etc. which are Ext. Ka1 to Ext. Ka12.

(21) Learned Sessions Judge Farrukhabd by the impugned judgment and order convicted all the three accused-appellants under Sections 302/34 and awarded aforesaid sentences to them. However, co-accused Channu was acquitted of all the charges framed against him.

(22) Hence this appeal.

(23) Learned counsel for the appellants has firstly submitted that the F.I.R. in this case is ante timed and was scribed by P. W. 2 Satyapal after holding elaborate consultations and deliberations with the police, concocting a story falsely implicating the appellants due to previous enmity. Substantiating his submission in this regard, further he submitted that failure of the investigating officer to hold the inquest on the same night on which the F.I.R. was lodged and to mention the case crime on the inquest report and the other related documents prepared by him is in itself indicative of the fact that the F.I.R. was not in existence at the time when the inquest was held and the body of the deceased dispatched for postmortem examination.

(24) Rebutting the aforesaid submission of the learned counsel for the appellants, Smt. Manju Thakur, learned A.G.A. I submitted that the investigating officer has given a plausible reason for not holding the inquest in the night of 11.8.1984 after the F.I.R. was registered on the same night at about 21:10 hours. Moreover the failure of the investigating officer to mention the number of case crime on the inquest report and the other documents prepared at that time is merely an irregularity on the part of the investigating officer which is not sufficient to render the entire prosecution case unreliable specially in view of the fact that the complicity of the appellants in committing the murder of Rameshwar, father of the informant stands fully proved from the reliable and consistent evidence of the two witnesses of fact produced during the trial by the prosecution. She also submitted that no suggestion was given to P. W. 4 Ram Manohar Singh before whom the case was registered on 11.8.1984 at 21:10 hours on the basis of the written report Ext. Ka3 given by P. W. 2 Satyapal at police station Indergarh, district Farruhkabad that the F.I.R. in this case was not registered at the time mentioned in the chek F.I.R. Ext. Ka1 and the G.D. entry Ext. Ka2.

(25) It is true that as per the prosecution version the incident had taken place at 6:30 P.M. on 11.8.1984 near the culvert in villgae Naika Pur and the F.I.R. of the incident was registered at 21:10 hours on the same day but the inquest was conducted by P. W. 4 Ram Manohar Singh, the investigating officer of the case on 12.8.1984 between 6:30 P.M. and 7:45 P.M. but P. W. 4 Ram Manohar Singh in his examination-in-chief has clearly deposed that although he had reached the place of occurrence at about 10 P.M. after the registration of the case and had taken the dead body of the deceased in his possession but due to lack of any proper arrangement of light he could not hold the inquest on that night. He further deposed that he had held the inquest on 12.8.1984 and prepared the inquest report and other related documents namely challan lash, photo lash, and letters addressed to R.I. and C.M.O. Ext. Ka4 to Ext. Ka8 and had thereafter sealed the dead body and dispatched it to the district hospital through Constables Kamlesh Devdutt for postmortem examination.

(26) P. W. 4 Ram Manohar Singh in his examination-in-chief further deposed that the distance between the place of occurrence and the police station is about 5 kms and when no adequate arrangement of light could be made he had stayed in the village for the whole night and had not returned to the police station. He denied the suggestion given to him that the F.I.R. in this case was ante timed and that the same was written in the morning and that he had gone to the place of incident for the first time in the morning. In our opinion the reason given by the investigating officer for holding the inquest in the morning of 12.18.1984, is plausible and merely because the inquest was held in the morning, it cannot be presumed that the F.I.R. in this case is ante timed.

(27) From the perusal of the chek F.I.R. it is also proved that the special report of the case was sent from police station to the Superior Officer on 12.8.1984.

(28) Thus, in view of the above, we do not find any merit in the submission of the learned counsel for the appellants that the F.I.R. in this case is ante timed.

(29) The second ground on which the learned counsel for the appellants has challenged their conviction is that the glaring contradictions in the testimonies of P. W. 2 Satyapal and P. W. 3 Ram Kirpal who are the son and real brother of the deceased with regard to the distance between the place of incident and the point from where the witnesses had seen the occurrence and irreconcilable discrepancy between the medical evidence and the ocular version vis-a-vis the weapons used by the appellants in allegedly committing the murder of Rameshwar and the nature of the injuries found on his dead body clearly belie their claim of being the eye-witnesses of the occurrence.

(30) Per contra Smt. Manju Thakur, learned A.G.A. I has submitted that there is neither any conflict between the ocular version and the medical evidence on record nor any major contradictions in the evidence of two eye-witnesses with regard to the place from where the witnesses had seen the occurrence and the distance between the two points which may render the whole prosecution story unreliable. In order to examine the aforesaid ground of challenge, we would have a glance at the medical evidence on record and the evidence of the two eye-witnesses of the occurrence produced by the prosecution during the trial namely P. W. 2 Satyapal and P. W. 3 Ram Kirpal because in case we find that their evidence is unimpeachable and fully reliable then minor discrepancies in their evidence or medical evidence qua ocular version may not be sufficient to vitiate the trial. Record shows that in the F.I.R. of the incident which was lodged by P. W. 2 Satyapal, in which he has mentioned that on the date of incident he was grazing his cattle near the irrigation channel (bamba) which has been shown in the site plan Ext. Ka10 by the letter 'B'. The place where the deceased was assaulted has been shown by letter 'A' in the site plan while the point at which his dead body was found has been indicated by letters 'XB'. The place near the ghati where the accused were hiding and waiting for the deceased has been depicted by letter 'A'. The place from where the other witnesses had seen the occurrence has been shown by letters 'XXX' in the site plan.

(31) P. W. 2 Satyapal in his cross-examination deposed that he had seen the occurrence from a distance of about 15-20 metres and as regards the other witnesses, he stated on page 26 of the paper book in his cross-examination that they were at a distance of about 60-70 feet from the place of occurrence.

(32) Similarly P. W. 3 Ram Kirpal deposed that on the date of occurrence he was in front of the door of the house of Ganga Ram @ Buddha and chit chatting with him when the incident had occurred. He in his cross-examination on page 33 of the paper book stated that he and the other witnesses were standing at a place which was about 4-5 yards north-west of the place of incident below the road.

(33) After carefully perusing the statements of P. W. 2 Satyapal and P. W. 3 Ram Kirpal who are the son and brother respectively of the deceased-Rameshwar, we find that the evidence of both the witnesses is quite clear and consistent on the points that on the date of the occurrence at about 6:30 P.M. while the deceased was returning after discharging his natural call, he was accosted by Prem Narain A1, Rajoo A2 and Kashi Ram A3 and was assaulted by lathi, Bhala and knife. It was specifically stated by both the witnesses that Prem Narain A1 was armed with lathi, Rajoo A2 was armed with Bhala and Kashi Ram A3 was armed with knife and all the accused had assaulted the deceased by their respective weapons and had killed him on the spot. It is clearly established from the evidence of P. W. 5 Dr. Manohar Singh that injuries consisting of lacerated wounds and penetrating wounds which could be caused by lathi, bhala and knife were found on the person of the deceased and that the deceased had died as a consequence of the said injuries. It would thus be seen that the ocular evidence of P. W. 2 Satyapal and P. W. 3 Ram Kirpal is quite consistent with the medical evidence of P. W. 5 Dr. Manohar Singh and deserves to be relied upon.

(34) The inconsistency if any in the evidence of the two witnesses of fact with regard to the distance from where they had witnessed the incident in our opinion is not so material so as to doubt the entire prosecution version. Thus, we do not find any merit in the second ground of challenge made by the learned counsel for the appellants to the impugned judgment and order.

(35) The third ground on which the learned counsel for the appellants has challenged the impugned judgment and order is that the prosecution has failed to prove by leading any cogent evidence that the incident had occurred at the place mentioned in the F.I.R. as admittedly no stains of blood were found at the scene of the occurrence upto the house of the deceased where the dead body of the deceased was alleged to have been brought and kept and therefore, the entire theory of the prosecution deserves to be discarded.

(36) In reply, Smt. Manju Thakur, learned A.G.A. I submitted that the incident having taken place in the month of August which is a rainy season and it being proved that it had rained in the night of the incident and the deceased was thrown in a pit near the culvert after being assaulted which was filled with water, the possibility of any blood or stains of blood being found on the next day of the incident was absolutely nil and the prosecution story cannot be doubted on that account alone.

(37) There is no dispute that the incident had taken place in the month of August. The investigating officer had inspected the spot on the next day of the murder about 12 hours after the occurrence. The month of occurrence being that of rainy season and the site of the occurrence being near the culvert, the body of the deceased having fallen in the pit after being assaulted, there is nothing unusual or unnatural about no blood or bloodstains being found at or near the place of occurrence after 12 hours. Thus, the absence of blood on spot does not prove that the incident in question had not taken place at the point mentioned in the F.I.R.

(38) It is noteworthy that when there is direct ocular evidence of two eye-witnesses, consistent and clinching throughout proving the guilt of the three accused, the absence of the blood at the place of occurrence looses significance and it cannot be said that the prosecution has failed to prove the place of occurrence.

(39) This brings us to the last ground of the challenge by the learned counsel for the appellants to the impugned judgment and order that the appellants were falsely implicated by P. W. 2 Satyapal (informant) and P. W. 3 Ram Kirpal who are the son and the brother of the deceased after the dead body of the deceased was found with multiple injuries, due to previous enmity.

(40) Rebutting the aforesaid ground of challenge, Smt. Manju Thakur, learned A.G.A. I submitted that since the complicity of the appellants in committing the murder of the deceased stands fully proved from the evidence of the two eye-witnesses, the theory of false implication due to previous enmity is of no relevance at all.

(41) We do not find any merit in the aforesaid ground of challenge also. Enmity is a double edged sword, if it can be a reason for false implication then it can also be a very strong motive for committing the crime. Long standing enmity between the accused-appellants and the deceased's family is admitted and from the evidence laid at the trial by the prosecution, it stands proved that the appellants had committed the murder of the deceased. Hence we cannot doubt the otherwise unimpeachable and wholly reliable evidence of the two eye-witnesses of the occurrence on account of there being the previous enmity.

(42) Thus, upon a wholesome consideration and a careful scrutiny of the facts of the case, attending circumstances and the evidence on record, we do not find that the learned trial judge committed any illegality or material infirmity in convicting all the three appellants under Section 302/34 I.P.C. for having committed the murder of Rameshwar by assaulting him with lathi, spear and knife.

(43) We do not find any reason to interfere either with the finding of the guilt or the sentence awarded to the appellants by the Learned Trial Judge vide impugned judgment and order dated 13.2.1987 passed by Sessions Judge Farrukhabad in S.T. No. 493 of 1984 (State Vs. Prem Narain and others).

(44) This appeal lacks merit and is accordingly dismissed.

Order Date :- 2.5.2019

SA