Kharag Singh vs State Of U.P.
2019 Latest Caselaw 4749 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 15.04.2019
 
Delivered on  20.05.2019
 
Court No. - 1
 
Case :- CRIMINAL APPEAL No. - 767 of 1985
 

 
Appellant :- Kharag Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- K. Sahai,B.K.Singh 							Raghuvanshi,Sunil Kumar Tiwari
 
Counsel for Respondent :- A.G.A.
 

 
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 appellant against the judgment and order dated 20.3.1985 passed by the IV Additional Sessions Judge, Ghaziabad in S.T. No.285 of 1983, under Section 302 I.P.C. by which the appellant has been convicted and sentenced for life imprisonment.

2. The prosecution case in brief is that the informant, namely, Jai Prakash submitted a written report at Police Station Bhojpur, District Ghaziabad stating therein that his uncle Rajveer was working in Modi Steel Factory, Modi Nagar with a Contractor Mohan Lal on commission basis for cutting of 'dhekchun'. His uncle had engaged the son of Chhutan, namely, Kharak Singh @ Kharka prior to two months of the incident for the work, but he was removed by the his uncle Rajveer (deceased) from the said work as the accused appellant was indulged in bungling of accounts and since then the accused Kharak Singh @ Kharka was annoyed with his uncle and bore ill-will with him. The accused was having the 'Parchis' of the work worth Rs.2000/- which he had not given to the deceased though he had asked for the same on several occasions but he avoided the same. On 2.8.1983 at about 8.30 p.m. when the complainant's uncle, namely, Rajveer (deceased) had gone to the house of Fakira in village Kilhora, Police Station Bhojpur, District Ghaziabad to request him to allow irrigation of his field from his tubewell, the informant had also followed him. At the house of the Fakira, a lantern was burning but he was not found at his house and he came to know that Fakira had gone to jungle on the tube-well. At that time at the house of Fakira, accused Kharak Singh @ Kharka and another uncle of the informant, namely, Hari Chand (PW1) were found having conversation while smoking bidi, then Rajveer, uncle of the informant (deceased) had again asked about the 'parchis' from the accused appellant, then the accused appellant Kharak Singh @ Kharka told him that he is going to his house to bring the same and went away and returned after some time having a 'Farsa' in his hand and assaulted his uncle at his temporal region and uttered that 'Aaj teri parchion ka pura hisab kiye deta hu". On this, the informant and his another uncle Hari Chand scolded the accused, tried to save the deceased and raised an alarm, but the accused Kharak Singh @ Kharka again gave 5-7 blows of 'Farsa' to the deceased who received injuries on his neck, head and face and on account of which he fell down on the cot and after being heard the hue and cry the mother and sister, namely, Panmeshri and Santi respectively and many other villagers had arrived there and seeing them the accused appellant Kharak Singh @ Kharka had fled away towards jungle having 'Farsa' in his hand. The uncle of the informant Rajveer died on the spot and thereafter the informant along with his another uncle Hari Chand (PW1) went to the police station to lodge the First Information Report and submitted a written report for necessary action.

3. On the basis of written report submitted by the informant Jai Prakash (PW2) on 2.8.1983, an FIR was registered against the accused appellant Kharak Singh @ Kharka as Case Crime No.103 of 1983, under Section 302 I.P.C. on 2.8.1983 at 22.30 p.m.

4. The investigation of the case was taken over by B.K.Singh (PW7) who proceeded with it. He recorded the statements of the informant Jai Prakash and witness Hari Chand at the police station itself and then set out for the place of occurrence in village Kolhora in the company of S.I. Santosh Kumar and Constables J.P. Singh, Shyam Lal and Rajvir. He reached the place of occurrence, due to night he could not prepare the panchayatnama etc. but went to search for the accused but the accused could not be traced out. In the morning at about 6 O'clock on 5.3.1983, the Investigating Officer prepared panchayatnama (Ext. Ka.5), conducted inquest upon the dead body and after completing other formalities he sent the dead body for post mortem examination through Constable. He inspected the spot and prepared the site plan (Ext. Ka.11). He took samples of blood stained and plain earth from the spot and prepared recovery memo of the same. He also took the blood stained 'strings (doris)' of cot and inspected the lanterns which were burning at the time of occurrence. He prepared the recovery memo of the said items, thereafter recorded the statements of other witnesses and after completing the investigating submitted charge sheet (Ext. Ka.17) accused before the competent court.

5. After committal of the case to the Court of Sessions, trial court framed charge against the accused for the offefnce under Section 302 I.P.C., who denied the prosecution case and claimed trial.

6. The prosecution in support of its case has relied upon the documents such as, Ext. Ka.1-Written report of the occurrence, Ext. Ka.2-Chik FIR, Ext. Ka.3-Extract of G.D., Ext. Ka.4-Post mortem examination report dated 4.8.1983, Ext. Ka.5-Inquest report Ext. Ka.6-Challan of the dead body, Ext. Ka.7-Photo of dead body, Ext. Ka.8-letter to RI, Ext. Ka.9-letter to CMO, Ext. Ka.10-Specimen seal, Ext. Ka.11-Site plan, Ext. Ka.12-Fard relating to taking of samples of blood stained and plain earth by I.O., Ext. Ka.13-Fard prepared for the search of the accused, Ext. Ka.14-Fard for taking blood stained strings (dori) of the cot from the spot, Ext. Ka.15-Fard prepared for the inspection of the lantern belonging to Mangey Ram, Ext. Ka.16-Fard prepared for inspection of lantern belonging to Fakira and Ext. Ka.17-Charge sheet.

7. The prosecution further in support of its case has examined PW1-Hari Chand, PW2-Jai Prakash, PW3-Lahsana, PW4-Charan Singh, PW5-Shyam Lal, PW6-Dr. Jai Prasad & PW7-B.K.Singh.

8. The accused in his statement under Section 313 Cr.P.C. has stated that he did not commit the murder of the deceased and has been falsely implicated in the present case on account of animosity. It was further stated by him that the witnesses Jai Prakash and Hari Chand wanted to take forcible possession over his house and land. His father sold the land and left the village and they had taken illegal possession of the house in village Kilhora.

9. The defence has examined DW1 Mahendra Kumar in support of its case.

10. PW1-Hari Chand has deposed before the trial Court that on the day of the incident at about 8.30 p.m. he along with Mangey were smoking in front of the house of Fakira. The accused Kharak Singh @ Kharka came to them and he also lighted the bidi and all of them were having conversation. The deceased Rajveer also came there and asked about Fakira and stated that he wanted to take water from his tubewell for irrigation. Mangey told him that Fakira had gone at his tubewell and he would be coming to take his meal and he should wait for some time and if he is in hurry then he may go to the tubewell. On which, Rajveer sat on the cot there and waited for Fakira. Rajveer asked the accused Kharak Singh @ Kharka to bring his parchis worth Rs.2000/-, then accused Kharak Singh @ Kharka told him that he would bring the same and he should remain seated. After this, accused Kharak Singh @ Kharka went to his house and after time some he returned having Farsa in his hand and assaulted the deceased Rajveer with Farsa on his temporal reason and stated to him that "Aaj teri parchion ka pura hisab kiye deta hu", This witness along with Jai Prakash and Mangey objected him not to assault but the accused Kharak Singh @ Kharka did not pay any heed to the request and gave 5-7 blows of Farsa on the deceased, on which this witness and other persons shouted. On the alarm raised, Panmeshri and Santi, mother and sister of the the informant respectively and many other villagers had arrived there and after seeing them the accused appellant Kharak Singh @ Kharka had fled away towards jungle having Farsa in his hand. The deceased died on the spot.

11. This witness further stated that he along with Jai Prakash went to the police station Bhojpur after leaving the family members and other persons of the village near the dead body, where Jai Prakash submitted a written report. This witness further stated that the deceased Rajveer used to do the work of contractor and also took commission for cutting of iron work. The house of Mangey and Fakira were adjacent to each other.

12. In his cross-examination, this witness has stated that the accused is his nephew. The father of the accused appellant Kharak Singh @ Kharka is having 7-8 bighas of land. Father of the accused is an old man and he could not tell whether he has a weak sight or not.

13. This witness has denied the suggestion that that prior to the incident the accused used to plough his field himself. Prior to 2-3 years, the accused might have done ploughing. As the accused got the job, hence, he had left his father's agricultural work. He further denied the suggestion that he and his uncle Jai Prakash wanted to grab the land of Chhutan, i.e., father of the accused. There was no litigation between this witness and Fakira. He also does not know whether Fakira had filed any case against Rajveer, Jai Prakash and others as he is not aware of the same and whether they have been bailed out from Meerut or not. No case was filed by Fakira against him. He stated that he did not see the deceased Rajveer working in the factory as no other person can enter in the factory. Prior to two months of the incident, deceased Rajveer had ousted the accused and he had taken the work from the accused for about 2-3 months only. He is not aware of the fact that what work the deceased used to take from the accused in the factory. He also could not tell that what type of parchis worth Rs.2000/- were being demanded by the deceased Rajveer and possibly the said parchis were related to the work of factory. He further stated that when the deceased demanded the parchis, at that time family members of Fakira and Mangey were having their meal.

14. This witness has further stated that he had gone to the place of occurrence just to sit over there. At the place of occurrence, there was one cot on the Chabutura.He cannot tell about the distance of the house of the Jai Prakash from the place of occurrence but it is stated that it is nearby. Jai Prakash had come to the place of occurrence and he cannot tell to whom he followed. This witness was present at the place of occurrence at prior point of time before the Jai Prakash had come there. When he reached at the place of occurrence, Rajveer and accused Kharak Singh @ Kharka were not present there and only Mangey was present there who was smoking bidi and four sons of Fakira were also taking their meal.This witness along with Mangey and Rajveer were talking about their household things. The house of the accused Kharak Singh @ Kharka is adjacent to the place of occurrence at a distance of about 8-10 paces. The light of the lantern of Fakira travels upto the house of accused Kharak Singh @ Kharka. He stated that he did not see the accused Kharak Singh @ Kharka returning from the house but saw him in the light of lantern while he was assaulting the deceased with Farsa. Raje and Lahsana were not present at the place of occurrence at the time while the accused Kharak Singh @ Kharka assaulted the deceased with Farsa and they had come after hearing the alarm. When the accused had firstly assaulted the deceased with Farsa, on the alarm raised, he along with Mangey,Jai Prakash, Agania and small children reached and in presence of the Raje and Lahsana accused also inflicted some blows of Farsa to the deceased. Raje and Lahsania chased the accused to some distance but when the accused showed 'Farsa' to them they moved aside. Lahsana and Raje belong to other village. Both of them are known by this witness and both of them are having land in his village.

15. This witness further stated that from where Raje and Lahsana had come at the place of occurrence he cannot tell. The accused was being chased by about 20 peoples of the village and Raje and Lahsana were one of them and the persons who were chasing the accused, none of them were having any lathi or any weapon in their hands.

16. This witness has further stated that when the deceased Rajveer demanded the parchis from the accused then he was sitting on the cot. Rajveer was sitting on the cot when the first blow of Farsa was inflicted on him, which was made from the back side. The accused had inflicted 5-7 blows of Farsa which was witnessed by this witness and the same was inflicted from the sharp edged side. The blows were inflicted on the temporal region, neck and head which he saw. The deceased Rajveer could not stand after receiving the Farsa injuries. Jai Prakash submitted the report at police station after preparing the same out side the police station.This witness further stated that he along with Jai Prakash has gone from the village to police station and no one had accompanied them. When the Inspector had arrived in the village he had seen the dead body and at that point of time about 100-150 persons had gathered. Both the lantern were burning, there was sufficient light and in the light it was seen that the blood was oozing out from the dead body of the deceased. The blood was also fallen on the ground and nearby areas. The Investigating Officer had taken the sample of blood from the spot as soon as he arrived there and at time it was 11.30 p.m. The Investigating Officer remained there for about 2 hours and after leaving two constables there, returned to police station. He further stated that his statement was recorded by the Investigating Officer at police station and statement of Jai Prakash was also recorded separately. After returning from the police station, he remained with the dead body whole night. The dead body was lying on the cot at the place of occurrence and they were guarding the dead body. There were 5-7 persons including the two constables.

17. This witness denied the suggestion that he and his uncle Jai Prakash wanted to grab the land of the accused and when they failed to get the same, he is falsely deposing against the accused. The house of Jai Prakash is at a distance of 20 paces from the house of this witness. Jai Prakash is also having agricultural land and he is also working in a mill. He does not know whether the 'Buggi' of the accused is with the Jai Prakash or not. He denied the suggestion that he got a false prosecution launched against the accused and had taken the 'Buggi' of the accused and further wanted forcibly to grab the land.

18. PW2-Jai Prakash who is informant of the case has deposed before the trial Court that Rajveer (deceased) was his uncle and he used to do the work in Modi Steel Factory, Modi Nagar with contractor Mohan Lal and did the work of cutting of 'dhekchun'. The deceased Rajveer had engaged the accused along with him and had kept him for about 2 months on work and when the accused started committing bungling in the accounts, then the deceased ousted him. The accused Kharak Singh @ Kharka was having 'parchis' worth Rs.2000/- of the deceased with him. After cutting the 'dhekchun' it is weighed and parchis are given to the persons who used to cut 'dhekchun' and in the end of the month on the basis of the said parchis, payments were being made to them for the work they had done. Such parchis of deceased Rajveer were with the accused Kharak Singh @ Kharka. Prior to the occurrence, Rajveer had asked about the said parchis from the accused accused Kharak Singh @ Kharka repeatedly.

19. On the day of incident at about 8.30 p.m. Rajveer had gone to the house of Fakira for taking water from his tubewell for the purpose of irrigation and this witness also followed the his uncle. Lanterns were found burning at the house of Fakira and Mangey. Accused Kharak Singh @ Kharka and another uncle of this witness, namely, Hari Chand were standing and smoking. Besides them, Mangey and his mother were also present there. This witness further stated that when the deceased Rajveer asked about Fakira then it was informed that he had gone to his tubewell and at time the deceased Rajveer had demanded the parchis worth Rs.2000/- from the accused Kharak Singh @ Kharka at once, on which accused accused Kharak Singh @ Kharka stated that he is going to bring the same and after some time the accused had come having a Farsa in his and and assaulted the deceased Rajveer on his temporal region with it and he gave 5-7 blows of Farsa and told that "Aaj teri parchion ka pura hisab kiye deta hu". When the accused assaulted the deceased, this witness scolded the accused and tried to save the deceased, then the accused Kharak Singh @ Kharka threatened him to stop otherwise he would also be killed. The accused assaulted the deceased with 5-7 blows by Farsa. The deceased received injuries of Farsa on his neck, face and head. After receiving the injuries, the deceased fell on the cot. Besides this witness at the place of occurrence Hari Chand and Agania and Mangey were also present there from before and on the alarm raised, the mother and sister of the witness, namely, Panmeshri and Shanti respectively, Lahsana, Raje and many other persons of the village arrived. On the alarm raised by him and other witnesses, the accused Kharak Singh @ Kharka had fled away towards east of jungle with Farsa in his hand and Rajveer after receiving the injury died on the spot. Thereafter, he along with his uncle Hari Chand went to the police station Bhojpur and he had written a report about the incident which he proved as Ext. Ka.1 which is in his hand writing and under his signature.

20. In the cross-examination this witness has stated that he knew the the contractor Mohan Lal as he is residents of village Ahmadpur. Mohan Lal was the contractor of Modi Steel Factory and the deceased Rajveer was not the contractor of the factory. He used to receive Rs.50/- per quintal as commission out of which Rs.40/- was taken by the the deceased Rajveer, whereas Rs.10/- was taken by Mohan Lal. The parchis were made in the name of Mohan Lal and not in the name of Rajveer. Soon after the death of the Rajveer this witness along with his uncle Hari Chand proceeded to police station and when he proceeded to the police station, at that time about 200 people had gathered at the place of occurrence near the dead body of the deceased. He stated that while writing the report he remembered that Tilak Ram, Mangey Ram, Sunita, Aghania, Lahsana and Raje were the eye witness of the occurrence and when he gave the statement to the Investigating Officer he did not remember the name of the witnesses Tilak Ram and others. Before receiving the injuries by Farsa, Rajveer was standing away from the cot and he does not remember that on which direction of the cot he was standing.

21. He further stated that the police station is at a distance of 5-6 Kms. away from the village and they left the village at about 10.30 p.m. Constable prepared the chik FIR and gave a copy of the same to him. The Investigating Officer recorded his statement. The Investigating Officer had visited the place of occurrence along with constables. He stated that when they returned to the village from the police station then it was raining. The dead body was covered by a quilt and he cannot tell as to who had covered the dead body and from where the said quilt had come. He had left the place at 7.00 a.m. where the dead body was kept and till then the dead body was not sent. He had returned back to his house in the night and went to the place of occurrence from his house at 6.00 a.m. in the morning. He did not have any Buggi. He is not aware of the fact whether Chhutan, father of the accused, was having any Buggi or not. He had left the place of occurrence at 3.00 a.m. in the night. He is also not aware of the fact whether the father of the accused had sold his and or not. The land of his witness is at Mirzapur village in Meerut Tehsil and land of the father of the accused is also in the village Mirzapur.

22. This witness denied the suggestion that he had damaged the 'Mend' of the father of the accused. He denied the suggestion that the accused has not committed any murder and he is falsely deposing against him. He further denied the suggestion that on the day of occurrence, the accused was at the house of his maternal uncle at village Budana. The Investigating Officer had gone in search of the accused in the night at 11.30 p.m. and he also denied the suggestion that he was not present at that time and he came to know about the said fact from his mother Panmeshri who told him about the same on the next day.

23. PW3- Lahsana has deposed before the trial Court that on the day of incident he had gone to Hapur with Banarsi Bania who is a residents of village Kilhora. The distance of village Kilhora and Nahli is about one furlong. He along with Raje and Banarsi Bania had gone to Hapur with regard to a an agreement to sell and after finishing the work all of the three had returned to village Kilhora. At that time it was dark and vision of Banarsi Bania in the night is low, hence, to drop him he along with Raje had gone to his house. They stayed there for some time. There they heard some alarm coming from Malian and heard that some one was shouting, then he saw that accused Kharak Singh @ Kharka was assaulting the deceased Rajveer with Farsa. The accused was known to him from before. At the place of occurrence besides him, Harish Chand, son of Rajveer and Bishambhari and many other persons had also arrived and when they raised an alarm, then the accused displayed faras towards them and thereafter jumped over the wall and fled away. At that time, it was 8.00 p.m. and at the place of occurrence a lantern was burning. He used to do ploughing in the village Kilhora and he knows the persons of the village very well.

24. He further stated that the deceased died on the spot on account of the injuries caused to him by the accused. There was some dispute between the deceased Rajveer and the accused Kharak Singh @ Kharka with respect to some parchis.

In his cross-examination, this witness has stated that when the accused assaulted the deceased Rajveer with Farsa, he was at the house of Mangey and Fakira at that time. He does not remember whether on 2.8.1983 or on which date he had gone to Hapur and probably he must have told said date to the Investigating Officer that on which date he went to Hapur, hence, he had written on 2.8.1983. He further stated that his brother had taken 2 Bighas 15 Biswa of land worth Rs.5000/-from Banarsi Bania. On the said date he taken Rs.1000/- after settling the amount of the agreement to sell. The agreement to sell was written by Banarsi Bania. At that time Latif son of Wajid was not present there. The said money was taken by him prior to 1-1/2 years of the incident. On 28.7.1983 there was no transaction between Mahendra son of Banarsi and Rajeev son of Teshan.

25. This witness denied the suggestion that on 28.7.1983 he had taken Rs.5000/- towards 2 Bigha, 14 Biswa and 16 Biswansi of land from Raje. He further denied the suggestion that he had not gone to Hapur with Banarsi Bania on the day of incident. On the day of incident he had given Rs.1000/- to Banarsi Bania but did not make any endorsement of the same in writing. He had given the said money in Tehsil but no receipt was issued as there was transaction done between them. He might have given the statement to the Investigating Officer under Section 161 Cr.P.C. that Raje had made an agreement to sell of his land in favour of Banarsi Bania in Tehsil. He does not remember whether he had given the said statement to the Investigating Officer or not that there was some other person present at the time of preparation of the papers regarding agreement to sell and no signatures were made by him as well as of Raje on any document. He further stated that at about 12.00 noon to 1.00 p.m. they had gone to Hapur. They did not go to Registry office. Rs.1000/- which was given by Raje also, there was nothing in writing. He had given the said money to Banarsi. It was summer and it was about 6.00 p.m. when the money was given and he had told the Investigating Officer that Banarsi was given Rs.1000/- and in the bus Ramjani and Kasim of his village had also come. Banarsi had taken him along with him so that no one may snatch Rs.1000/- from him as he had a low vision.

26. This witness further stated that Banarsi with whom he had gone to Hapur died three months back and his son Mahendra Kumar is alive and 14 Biswa 16 Biswansi of land was in the name of Mahendra Kumar on which he does the agricultural work. The said land was taken by Mahendra from Raje son of Tesan. The agreement to sell was executed for a sum of Rs.5000/- and they had gone to Hapur to give the interest of the said money. Raje had purchased the land from Banarsi worth Rs.5000/- and Raje had taken the said money prior to one year of the incident in presence of this witness. The said money was taken by him in front of Sub Registrar. On the date when Rs.5000/- which was given at Hapur, he was with Banarsi. On the agreement, there were signatures of this witness along with Mahendra an Latif. The interest of Rs.5000/- was given by Raje after one year of the agreement to sell.

27. This witness denied the suggestion that he did not go to Hapur and the money was not given in front of him. The Investigating Officer had recorded his statement in the morning and he was called by a constable from the village for recording the statement. The constable had come on the next day in the morning at 4.00 a.m. to call him. He cannot tell correctly that at what time he had reached the village Kilhora but as soon as the constable reached, he started along with him. When he reached at the place of occurrence he saw the dead body lying on the cot. The Investigating Officer had taken the sample of blood from the cot in his presence. When he reached to the village it was early morning. The recovery of blood etc. which was taken, a memo of the same was prepared but his signature was not taken and signatures of Pradhan, Teja and others were taken on the same. The Investigating Officer had taken into custody the shirt, trouser etc. of the deceased. He cannot tell whether the said clothes were sealed or not. There is a wall of 1-1/4' of between the house of the accused and the place of occurrence. The said wall is at north-south side. The cot was on the Chabutra. The police had arrived there at 4-5 a.m.. Moolchand Pradhan had reached after 1/2 hours and Raje was not with this witness. Hari Chand was present from before. At the place of occurrence, all the persons of the village had gathered.

28. This witness denied the suggestion that he had not gone to Hapur on the day of incident nor he was present at the place of occurrence. He further denied the suggestion that he had gone along with Banarsi to drop him to his village on the day of incident. He denied the suggestion that he is falsely deposing against the accused under some pressure.

29. PW4-Charan Singh has deposed before the trial Court that on 2.8.1983 he was posted as Head Moharrir at police station Bhojpur and prepared the chick FIR on the basis of Ext. Ka.1 and proved the same under his hand writing and signature as Ext.Ka.2 and he endorsed the same in G.D. Rapat No.32 at 22.30 p.m. on 2.8.1983 under his handwriting and signature and proved the same as Ext. Ka.3.

30. In his cross-examination, this witness has stated that the Station Officer had proceeded for investigation on 22.30 p.m. and the same is endorsed in the G.D. The Investigating Officer had not gone by jeep. The returning of the Investigating Officer has been mentioned in the G.D. on 5.8.1983 at 9.05 p.m. He was not present at the police station between the time he left and returned after the investigation. Along with the Investigating Officer, Sub Inspector Santosh Kumar and three other constables were there. The returning of Santosh Kumar has been mentioned on 3.8.1983 at 14.30 hours. The two constables ShyamLal and Jaipal had returned on 4.8.1983 at 21.40 hours after the post mortem and third constable had returned along with the Station Officer.

31. PW5- Constable 344 Shyam Lal has deposed before the trial Court that on 3.8.1983 he was posted as Constable at police station Bhojpur and on the said date in the morning he handed over the dead body of the deceased Rajveer in a sealed condition along with Constable Jaipal Singh after panchayatnama to the doctor at Narendra Mohan Nagar Hospital and doctor after conducting the post mortem had given him the post mortem report of the deceased in a sealed envelope and also the clothes of the deceased in a sealed bundle and thereafter the dead body of the deceased was given in the supurdi of h is family members.

32. In his cross-examination, this witness has stated that he proceeded with the Station Officer possibly at about 9-10 p.m. in the night and he does not remember the correct time, five persons had proceeded from the police station and all of them were on cycle. He further stated that whole night he along with Constable Jai Pal was present near the dead body of the deceased and rest of the police personnel had gone in search of the accused. In the night, no blood was taken. The blood was seen in the night but sample of the same was not taken. The dead body of the deceased was lying on the cot and no cloth was on it. He does not remember whether the dead body was covered with any cloth or not. The Investigating Officer had taken the blood stained earth in the morning but he does not remember the time of the same. The dead body was sealed in his presence and whether the blanket was on it or not he does not remember. The blood was seen in the light of lantern which was hanging on the peg (khooti) . The Investigating Officer after searching the accused came back on the spot.

33. PW6-Dr. Jai Prasad has deposed before the trial Court that on 4.8.1983 he was posted as Medical Officer in the District Hospital, Ghaziabad for post mortem and on the said date at 3.15 p.m. he was handed over the dead body in sealed condition by Constables Jai Pal and Shyam Lal and found the following ante mortem injuries on his person"

"1. Incised wound size about 1.5 cm. x .5 cm. x bone deep just above left eyebrow.

2. Contusion size about 9 cm. x 2 cm. on the right side of face.

3. Incised wound size about 18 cm. x 3 cm. x bone cut at after middle deep Cheek to 4" below to left pinna.

4. Incised wound 8 cm.x 2 cm. x bone cut just below of head middle of IIIrd injury.

5. Incised wound 3 cm.x1 cm. skin deep.

6. Incised wound size about 3.5 cm. x 1.5 cm. x bone deep just above the left clavicle.

7. Abraded contusion size 7 cm. x 1 cm. on left side of shoulder.

8. Incised wound size about 7 cm. x 1.5 cm. x bone cut on middle of head.

9. Incised wound size of about 1.5 cm.x .5 cm. x skull deep."

34. On the internal examination of the dead body, the bones of the head were found to be fractured. The bones from the forehead to the back of parietal region was found to be fractured .The brain matter was coming out. Membrane of the brain were also lacerated. The blood was clotted out in the cavity of the skull. In the stomach semi-digested food about 150 gms. was found. In the small intestine digested food and gases was found and in the large intestine fecal matter and gases were found.

35. In the opinion of the doctor, the deceased died on account of shock and hemorrhage as a result of ante mortem injuries. The doctor has opined that the incised wound could be caused by Farsa. The death could be possible on 2.8.1983 at 8.30 p.m.

36. The clothes of the deceased was taken of and kept in a bundle which was sealed and which was also opened in the Court in presence of the said doctor. He has proved the post mortem report to be in his hand writing and signature as Ext. Ka.4.

37. PW7-B.K.Singh has deposed before the trial Court that on 2.8.1983 he was posted as Station Officer of police station Bhojpur and had taken over the investigation of the case on 2.8.1983. He proceeded in the night at the place of occurrence. After recording the statements of informant Jai Prakash and witness Hari Chand he proceeded to the place of occurrence in village Kolhora and reached there. He conducted the panchayatnama of the deceased on 3.8.1983 at 6.00 a.m. and finished the same at 7.45 a.m. He proved the panchayatnama to be in his own hand writing as Ext. Ka.5 and further had prepared the other police papers and proved the same as Ext. Ka.6 to 10 under his hand writing and signature. He had prepared the site plan of the place of occurrence which is in his hand writing and under his signature and marked as Ext. Ka.11. He had also taken taken sample of blood stained soil and plain soil which was found on the spot and sealed them in two separate boxes and recovery memo of the same was also prepared in his hand writing and signature and marked as Ext. Ka.12 on which signatures of the witnesses were also taken by him.

38. He further deposed that the lantern which were found to be burning at the house of Mangey and Fakira were taken in the custody and were found in working condition and recovery memo of the same was also prepared in his hand writing and signature which is marked as Ext. Ka.15 & 16. Thereafter, the said lanterns were returned to Mangey and Fakira. He recorded the statements of the witnesses Lahsana and others and had also gone to Tehsil for inspection and after completing the inspection submitted charge sheet against the accused appellant which is marked as Ext. Ka.17

39. This witness in his cross-examination has stated that the witness Hari Chand had stated before him that the 'parchis' which were being demanded by the deceased were of debt. The said witness also stated that besides them, many other persons of the village had also reached on the spot who witnessed the incident. The witness has not stated to him that accused had jumped over the wall and fled away. Lahsana had not told this witness that he had given Rs.1000/- to Banarsi. The witness stated that he had gone on bicycle to the place of occurrence from the police station and not on motorcycle. He had gone straightway to the place where the dead body was lying at 11.00 p.m. and the same was covered with a blanket and he had seen the blood fallen on the ground. He had not taken the sample of blood in the night. He had not sealed the dead body of the deceased with the blanket and he had not taken off the clothes of the deceased. The wall of the house of the accused was adjacent to the place of occurrence. On the peg of the wall, lanterns of Mangey Ram and Fakira were burning and on the roof no lantern was burning and no lantern was hanging on the 'kunda' as the breeze was blowing and light of lantern was not sufficient in which inquest proceeding could be conducted. He tried to arrange petromax but the same could not be arranged and he also did not think it proper to ask for any lantern as it was not required. His vision was not low. The blood was seen in the light of lantern. The lanterns were burning at about 2 to 5 paces of distance from the dead body. He stated that he could read and write in the light of lantern. He remained with the dead body for the whole night and thereafter had made search of the accused. He had gone in search of the accused for about 15 minutes or ½ hours but the accused was not found in his house nor any family members of the accused could be found as they had also fled away. He stated that before initiating the attachment proceeding the accused had surrendered. This witness had handed over the dead body to the Constables at 7.45 p.m. or 8.00 p.m. Probably in the night there was little rain but it did not rain heavily. The dead body of the deceased was on the cot and it was covered with a quilt, hence, there was no possibility of the blood being flown out because of rain. He recorded the statements of Raje and Lahsana on 3.8.1983. Lahsana was called by him by sending a Constable Ramveer. Raje was also called through a Constable. He had taken the statement of Lahsana first and thereafter of Raje.

40. This witness denied the suggestion that when the report was to be lodged then he got the compromise/estoppel. He denied the suggestion that he did not go on the spot in the night. He had seen three injuries on the neck of the deceased. He had taken the statements of the informant and Hari Chand prior to the inquest. The lantern which he had seen on the spot, was not before him in the Court.

41. The trial Court after examining the prosecution evidence and defence version convicted the appellant of the charge and sentenced him for life imprisonment under Section 302 I.P.C., hence, the present appeal by the appellant.

42. Heard Sri Sunil Kumar Tiwari, learned counsel for the appellant, Sri Pawan Shukla, learned AGA appearing for the State and perused the impugned judgment and order passed by the trial Court as well as lower court record.

43. It has been contended by learned counsel for the appellant PW2-Jai Prakash who is informant of the case is nephew of the deceased whereas PW1- Hari Chand is also a nephew of the deceased and they both have falsely deposed against the appellant as they wanted to grab his property. It was further argued that the motive which has been suggested for the murder of the deceased by the appellant, appears to be not correct as it has been stated that the deceased was demanding the 'parchis' worth Rs.2000/- from the appellant who was his nephew as for two months he had got the appellant employed in Modi Steel Factory and the appellant had made some bungling in account there, hence, the deceased had got him ousted but the parchis worth Rs.2000/- was with the appellant which was repeatedly being demanded by the the deceased and the appellant was not giving the same and making excuses and on the day of the incident when the deceased again asked the accused appellant for the said parchis, on which the appellant stated that he is going to bring the said parchis but he came back from his house with a Farsa in his hand and assaulted the deceased with the same.

44. He further argued that the two eye witnesses,i.e., PW1 and PW2 being inimical to the appellant and related to the deceased, their evidence is also not a reliable one as they are highly interested and partisan witnesses.

45. He next submitted that there was no evidence to show that the appellant actually worked with the deceased as labourer in Modi Steel Factory. The incident is said to have been witnessed by many persons of the village including the mother and sister of PW2, namely, Panmeshri and Shanti respectively but they were not examined nor any independent witness of the village who had seen the incident arrived at the place of occurrence were also not examined. It was further submitted that even the son of the deceased had also arrived at the place of occurrence as it appears from the evidence of PW2, but he too was not produced before the trial Court.

46. So far as PW3- Lahsana is concerned, it is argued that his presence at the place of occurrence appears to be doubtful as he was a resident of another village and there was no occasion for him to be remain present in the village Kilhora where the incident had taken place.The reason which has been given by him to be present at the place of occurrence that he along with one Banarsi Bania had gone for Hapur for executing agreement to sell with respect to land which belong to Raje also does not show that any such agreement to sell was executed between the Banarsi Bania and Raje. He submitted that even if the presence of PW3 is taken to be true at the place of occurrence he can at the best be said to be a chance witness and his testimony does not seems to be reliable, hence, his evidence should be discarded by this Court.

47. He further submitted that the presence of PW1 and PW2 at the place of occurrence appears to be doubtful as there was no occasion for the said two witnesses to be present at the house of Fakira where the deceased had gone to take water for the purpose of irrigating his field. He next submitted that no recovery of Farsa was made either at the pointing out or from his possession.

48. Learned AGA on the other hand, has vehemently opposed the arguments advanced by learned counsel for the appellant and submitted that from the testimony of PW1, PW2 & PW3 goes to show that all the said three witnesses have seen the incident and their ocular testimony corroborates the prosecution case as the deceased had received as many as eight injuries on his person which includes several incised wounds and the trial Court has rightly convicted the appellant who is main assailant as he had also motive to commit the murder of the deceased as has been suggested by the prosecution.

49. Having heard learned counsel for the parties, we have given thoughtful consideration of the submissions advanced by learned counsel for the parties and have perused the impugned judgment and order passed by the trial Court as well as lower court record.

50. Admittedly, the incident had taken place on 2.8.1983 at 8.30 p.m. and as per the prosecution case as narrated by PW2-Jai Prakash it is apparent that the deceased Rajveer had gone to the house of Fakira for taking water from the tubewell of Fakira for irrigating his land and when Fakira was not found at his house, then he was asked by Mangey to wait for him and PW1-Hari Chand (uncle of the informant), PW2-Jai Prakash (informant) along with accused Kharak Singh @ Kharka who had also arrived there, were having conversation and smoking bidi. Rajveer (deceased) who was also present there, asked Kharak Singh @ Kharka to give the 'parchis' (receipts) of Rs.2000/- to him, on which the accused appellant Kharak Singh @ Kharka told him that he would bring the same. Shortly, thereafter he came with a Farsa in his hand and assaulted the deceased with it. PW1 and PW2 who were present there, scolded the accused appellant and tried to save the deceased but the appellant inflicted 5-7 blows of Farsa on the deceased, on account of which he fell down on the cot and on the alarm raised by the said two witnesses, other persons of the village including the mother Panmeshri and sister Shanti of PW2 respectively had arrived there and on the alarm raised by the witnesses the accused appellant threatened them showing Farsa and fled away towards jungle. The deceased died on the spot after receiving Farsa injuries. The incident was witnessed in the light of lantern which was burning at the house of Fakira. The house of the appellant was adjacent to the place of occurrence. PW2 Jai Prakash had followed the deceased Rajveer (his uncle) to the place of occurrence when he went to the house of Fakira for taking water for the purpose of irrigating his field, PW1 had also arrived there and both of them had witnessed the incident.

51. The motive which has been suggested by the prosecution that the deceased was demanding 'parchis' (receipts) of Rs.2000/- from the accused appellant on several occasions as the appellant had also worked for about 2 months in the Modi Steel Factory, Modi Nagar where the contractor Mohan Lal had engaged the deceased for the work on commission basis and accused appellant was avoiding to give the said parchis to the deceased and he became annoyed when the same was again asked by the deceased while he was in the company of PW1, PW2 and Mangey at the house of Fakira and the appellant did not give parchis to the deceased but on the other hand, he came with a Farsa in his hand and inflicted the deceased with it who died on the spot on account of Farsa injuries.

52. He further submitted that the FIR of the incident was promptly lodged at 22.30 p.m. on the same day by PW2 Jai Prakash who had gone at police station Bhojpur, District Ghaziastring along with his uncle Hari Chand and had given a written report. On the basis of said written report lodged by PW2, Constable Charan Singh (PW4) who was Head Moharrir of the concerned police station, registered the FIR of the present case and endorsed the same in the G.D. which has been proved as Ext. Ka.3.

53. The contention of learned counsel for the appellant that presence of PW1 and PW2 at the place of occurrence appears to be doubtful as there was no occasion for them to be present at the place of occurrence, is not acceptable to us because PW2 Jai Prakash had followed his uncle PW1 Hari Chand and both of them had reached there. Had they not been present at the place of occurrence and witnessed the incident, it would not be possible for them to proceed to the police station for lodging the FIR which is found to have been lodged promptly soon after the incident at 20.30 p.m. Thereafter the Station Officer along with the Police Constables also arrived there at the place of occurrence and as it was the late in the night and there was no sufficient source of light, the panchayatnama of the deceased was conducted by the Investigating Officer on the next day in the morning and after completing the formalities, the dead body of the deceased was sent for post mortem.

54. PW6-Dr. Jai Prasad who conducted the post mortem of the deceased was of the opinion that the cause of death of the deceased was coma as a result of head injury and the deceased received as many as 9 injuries on his person, out of which 6 injuries were incised wounds which were on the head and other injuries were abraded contusion and lacerated wound.

55. PW3-Lahsana who was also residing in the village where the incident had taken place, it appears from his evidence that he had also witnessed the incident and he being an independent witness of the occurrence had no animosity with the accused to falsely depose against him. His presence at the place of occurrence also found to be established and his ocular testimony too corroborates the post mortem report of the deceased.

56. The contention of learned counsel for the appellant that the appellant was falsely implicated in the present case by PW2 as they wanted to grab his land can also not be accepted as the deceased was also related to them, as the accused was nephew of the informant PW2.The blood was found at the place of occurrence and blood stained earth and simple earth was taken by the Investigating Officer for which he prepared the recovery memo and proved the same as Ext. Ka.12 in the presence of the independent witnesses Mool Chand. The blood was also found on the cot and blood stained found on the 'string" was also taken into custody by the Investigating Officer who prepared the recovery memo Ext. Ka.14.

57. Two lanterns which were found to be burning of Mangey and Fakira at the place of occurrence and recovery memo of the same was prepared by the Investigating Officer (Ext. Ka. 15 & 16) and independent witness had signed the same which was found to be in working condition and thereafter the same were returned to the said two persons.

58. The Investigating Officer who had reached the place of occurrence, had also prepared the panchayatnama on the dead body of the deceased and after completing the inquest proceedings prepared the police the police papers and sent the dead body for post mortem through police constables. He prepared the site plan of the place of occurrence, hence, the prosecution has proved its case beyond reasonable doubt against the accused appellant for the murder of the deceased on the date and time of the incident.

59. The finding of conviction and sentence recorded by the trial Court goes to show that it has rightly arrived at a conclusion that it was the appellant who had committed the murder of the deceased, hence, the same does not required any interference by this Court, hence the conviction and sentence of the appellant by the trial Court is hereby upheld.

60. The appeal lacks merit. It is, accordingly, dismissed.

61. The accused is on bail, his bail bonds and sureties are cancelled. He shall be taken into custody forthwith to serve out the sentence, as has been awarded by the trial Court.

62. Let a copy of this order along with the lower court record be sent to the trial Court concerned for its immediate compliance forthwith.

    (Dinesh Kumar Singh-I, J.)    (Ramesh Sinha,J.)
 
Order Date :- 20.05.2019
 
NS