Indal Pasi vs State Of U.P.
2019 Latest Caselaw 4924 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 22.01.2019
 
Delivered on 23.05.2019
 
Court No. - 34
 

 
Case :- JAIL APPEAL No. - 5295 of 2017
 
Appellant :- Indal Pasi
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Vikas Singh (A.C.)
 
Counsel for Respondent :- A.G.A., Ratan Singh
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Rajendra Kumar-IV,J.

(Delivered by Hon'ble Rajendra Kumar-IV)

1. Present jail appeal is directed against the judgement and order dated 18.8.2017 passed by Additional Session Judge, Fast Track Court-II, Kaushambi in Session Trial No.509 of 2011 (State Vs. Indal Pasi) under Section 302, 504, 506 IPC, P.S. Pipari, District Kaushambi whereby Trial Court has convicted accused, Indal Pasi, and sentenced him to rigorous imprisonment for life with a fine of Rs.10,000/- under Section 302 IPC and in default of payment of fine, further simple imprisonment of two years; two years rigorous imprisonment with a fine of Rs.2000/- under Section 504 I.P.C. and in default of payment of fine, further imprisonment of three months is directed; and three years simple imprisonment with a fine of Rs.5000/- under Section 506 I.P.C. and in default of payment of fine, further simple imprisonment of six months is directed to be under gone.

2. Prosecution case in brief is that P.W.-1 Jitendra Kumar, (husband of village Pradhan) presented written Tehrir (Ex- Ka-1) on 5.8.2011 in the Police Station Pipari, District Kaushambi stating therein that on 05.08.2011 at about 10:30 p.m. accused Indal Pasi son of Ram Khelawan Pasi caused serious injuries to his wife Sangeeta by Ballam. On alarm being raised by victim Sangeeta, many persons of the village reached at the spot whereupon accused Indal Pasi ran away towards the river with bloodstained Ballam, abusing and extending threat to take life. Victim was taken to PS by P.W.1 from where she was sent to Hospital for medical examination which was done by P.W.11 Dr. Arun Kumar Arya where she scummed injuries during the course of treatment. Tehrir (exhibit Ka-1) was got scribed by one Raj Singh son of Late Mewalal.

3. On the basis of written tehrir (exhibit Ka-1) P.W.-8 H.M. Ram Adhar Maurya registered Chick F.I.R. (exhibit Ka-3) as Case Crime No.152 of 2011, under Sections 326, 504, 506 IPC, P.S. Pipari, District Kaushambi, made entry of case in G.D. copy whereof is exhibit Ka-4 on record and sent victim Sangeeta for medical treatment to P.H.C. Chayal. She was medical examined by P.W.11 Dr. Arun Kumar who prepared the medico legal report Ex. Ka-17.

4. P.W.9 held inquest over the dead-body of Sangeeta, Panchayatnama exhibit Ka-6 and other papers relating thereto send the body to post-mortem to mortuary Allahabad.

5. P.W.6. Dr. Ashutosh Pandey conducted autopsy of dead body, prepared P.M. report exhibit ka-2.

6. P.W. 10 S.O. Devendra Kumar Singh (P.W.-10) commenced investigation, visited the spot and prepared site plan (exhibit Ka-13) and recorded statement of P.W.-1, collected blood stained and sample of earth from the spot and arrested accused Indal Pasi along with offending weapon from semi constructed temple in the presence of witnesses at 7:25 a.m. on 6.8.2011. On interrogation by police, accused confessed to commit murder of his wife Sangeeta Devi, prepared recovery memo of blood stained weapon Ex. Ka.12. After completing all formalities, he submitted charge sheet (exhibit Ka-15) against the accused Indal Pasi under Sections 302, 504, 506 I.P.C. in the court of C.J.M. concerned.

7. Case, being triable by court of session was committed to the Court of Session Judge wherefrom it was transferred to Additional Sessions Judge, Court No.6 Kaushambi.

8. Trial Court framed charges against the accused/appellant Indal Pasi under Sections 302, 504, 506 I.P.C. He denied the charges levelled against him and claimed trial. The charges framed by Trial Court are as under;-

"1. That on 05.08.2011 at around 10:30 a.m. at the accused's house at Rehi, PS - Pipari, District - Kaushambi, you, the accused, committed murder of your wife Sangeeta by repeatedly stabbing her with ballam (spear), thereby committing an offence punishable u/s 302 IPC, which is in the cognisance of this court.

2. That on the aforesaid date and time, the complainant of the case and other persons reached there to help your wife on an alarm raised by her while being stabbed by you with the spear, but you abused and humiliated them, thereby committing an offence punishable u/s 504 IPC, which is in the cognisance of this court.

3. That on the aforesaid date and time, you, the accused person, intimidated the complainant of the case and other persons by issuing threat to their lives, thereby committing an offence, which is punishable u/s 506 IPC, which is in the cognisance of this court."

9. To substantiate its case, prosecution examined as many as 11 witnesses, out of whom P.W.-1 Jitendra Kumar, P.W.-2 Rajendra Prasad, P.W.-3 Munni Lal, P.W.-4 Vijendra and P.W.-5 Ramesh Kumar are witnesses of fact. P.W.4 Vijendra is the witness of taking sample of plain and bloodstained soil. P.W.3 Munni Lal is the witness of inquest. Rest are formal witnesses. P.W.-6 Dr. Ashutosh Pandey had conducted post mortem on the dead-body of deceased Sangeeta and has proved post mortem report Ex. Ka-2. P.W.-7, S.I. Chandra Kumar Jha is the witness who arrested accused Indal Pasi. P.W.-8, Head Constable Ram Adhar Maurya is the scribe of chik FIR. He has proved chik FIR Ex. Ka-3 and a copy of G.D. Entry Ex. Ka-4. P.W.-9, S.I. Dhanraj Singh is the Investigating Officer and has proved various documents namely Inquest Ex. Ka-6, Copy of Specimen Seal Ex. Ka-7, letter to R.I. Ex. Ka-8, letter to C.M.O. for post mortem Ex. Ka-9, Photo Nash Ex Ka-10 and Challan Lash Ex. Ka-11. P.W.-10 Devendra Kumar Singh, the then S.O. of P.S. Pipari had entrusted the investigation to S.I. Dhanraj Singh. He has proved site-plan Ex. Ka-13, recovery memo in respect of weapon of crime Ex. Ka-12, site-plan of the place of recovery of weapon Ex. Ka-14 as also the charge-sheet, Ex. Ka-15. P.W.-11 Dr. Arun Kumar Arya had initially examined injured Sangeeta and has proved injury report Ex. Ka-17.

10. Statement of accused under Section 313 Cr.P.C. was recorded by Trial Court explaining all evidence and incriminating circumstances wherein he denied the prosecution story in toto. All formalities of investigation are said to be wrong and claimed false implication in the present offence. In response to question no. 15, he answered that he has committed no offence, his wife had fallen on the pointed iron rod due to which she sustained injuries.

11. After analysing the evidence adduced by the prosecution, Trial Court found the case of prosecution, proved beyond reasonable doubt and convicted and sentenced accused Indal Pasi as stated above.

12. We have heard Sri Vikas Singh, Advocate (Amicus Curiae) for the appellant and Sri Ratan Singh, learned A.G.A for the State-respondent at length and have gone through the record available on file carefully.

13. Learned Amicus Curiae took us through the material on record and advanced his arguments in the following manner;-

(i) There is no motive to accused to commit the murder of his wife Sangeeta and there is no eye witnesses of the incident.

(ii) Ballam is said to be used by the accused Indal Pasi as stated by prosecution. But as per recovery memo blood stained Iron rod is shown to be recovered from the possession of the accused on his pointing out from semi constructed temple.

(iv) Medical evidence is not compatible with the oral evidence.

(v) Children of the deceased Sangeeta had not been produced to support the prosecution whereas they may be the natural witnesses of the incident. Non production of children renders prosecution case doubtful.

(vi) P.W. 5 Ramesh Kumar, alleged eye witness, has resiled from prosecution story in the cross-examination, so it cannot be reliable witness.

(vii) Prosecution could not be successful in proving its case beyond reasonable doubt, therefore, accused is entitled to get benefit of doubt and liable to be acquitted.

14. Per contra learned AGA opposed the submissions made by counsel for the appellant by stating that victim Sangeeta, wife of accused Indal Pasi was injured in the wee hour in night, in the house of accused. Accused Indal Pasi did not deny his presence in the house at the time of incident. He explained that his wife was injured on being fallen on the pointed iron rod, meaning thereby that he admits his presence in the house and it is only the person present who can explain the circumstances in which incident occurred but accused has failed to discharge his burden. It is also contended by learned AGA that accused was arrested with offending blood stained weapon by police before the witnesses and medical evidence is compatible with oral evidence. He further contended that Court below has rightly convicted accused and appeal is liable to be dismissed.

15. Now, we proceed to consider rival submissions on merits and briefly consider the evidence on record.

16. In the present case, it is established by the evidence of witnesses that victim Sangeeta sustained injuries at the relevant time, date and place as stated by prosecution and thereafter succumbed to injuries. Blood was found by Investigating Officer in the house. Place, time and date and nature of injuries found on the body of Sangeeta could not be disputed from the side of defence.

17. Now only question remains for consideration is, who caused injuries to the victim Sangeeta (deceased) because injuries found on the person of the victim Sangeeta could not be self inflicted or accidental. Death of Sangeeta is admittedly homicidal.

18. P.W. 1 Jitendra Kumar, not an eye witness, deposed that at the time of incident that he was out of village. He did not see the incident of his own eyes. When he came to village, he came to know that accused Indal Pasi beat his wife Sangeeta and ran away. Being the husband of village Pradhan, he simply presented tehrir Ex. Ka.1 at Police Station concerned.

19. P.W.-2 Rajendra Prasad deposed that deceased Sangeeta was her cousin sister; he saw Sangeeta in police station in injured condition where she told him that her husband Indal Pasi had beaten her by pointed weapon (Ballam) and she succumbed to injuries at about 3:00 to 4:00 p.m., on the next day. It is further stated in that inquest of Sangeeta was held before him by police. He signed the inquest and proved inquest report (Ex. Ka.6).

20. P.W.-3 Munni Lal, proved inquest report. P.W. 4 Vijendra is the witness of recovery of blood stained and simple earth proved memo.

21. P.W.-5 Ramesh Kumar deposed that on 5.8.2011 at about 10:30 a.m. he was present in his house, heard noise, arrived at the house of accused Indal Pasi and saw that accused was assaulting his wife Sangeeta by pointed Iron rod, who was lying in blood, on the earth in injured position. By that time P.W.-1 Jitendra, P.W.-4 Vijendra and many other people reached there, tried to stop him whereupon accused/appellant ran away towards the river with rod/ballom, abusing and extending threats. Victim was taken to police station with the help of villagers. P.W.-1 Jitendra Kumar made an application regarding alleged incident in the police station concerned wherefrom she was sent to hospital for medical treatment. During the course of treatment, victim succumbed to injuries. Thereafter, she was taken back to police station. He further deposed that police arrested accused Indal Pasi with offending weapon in the next morning at about 1:15 p.m. near the semi constructed temple, in his presence. It is notable that statement of witness in Chief was recorded on 11.9.2014 but cross-examination got deferred. It was started again on 15.11.2014 when witness resiled from the statement given in Chief after a lapse of two months. This witness has neither been declared hostile by prosecution nor his previous statement was put to be explained by defence.

22. P.W.-11 Dr. Arun Kumar Arya conducted medical examination of victim Sangeeta and found following injuries;-

"1. Two incised wounds in an area of 1 x 2 x 0.5 cm on the right    side of the chest of injured caused with a sharp-edged weapon.
 
In the same way, there were 4 incised wounds in an area of 1 x 2 x 0.5 cm on the right side of the chest of injured caused with a sharp-edged weapon.
 
2. Two incised wounds in an area of 2 x 2  x 1 on the stomach.
 
3. Incised wounds on lower part of the leg; one in the area of 2 x 1 x 1 cm and another in the area of 2 x 2 x 1 cm.
 
4. Incised wound in an area of 2 x 1 x .15 on lower part of right leg as well.
 
5. Incised wound on right hand in an area of 2 x 2 x .05 cm."
 

23. P.W.-6 Dr. Ashutosh Pandey conducted post mortem of deceased, prepared Autopsy Report, Ex. Ka.2, expressing his opinion that death of victim might have occurred 1-1/2 to 2 days prior to post mortem due to shock and haemorrhage on account of ante mortem injuries. He noted following ante mortem injuries on the person of the deceased;-

"1. Stab wound, 2 cm x 1 cm x bone deep, 4 cm below the collar bone (clavicle) and 1 cm left to the sternum.

2. Stab wound, 1 cm x 1 cm x muscle deep, on the left chest, 1 cm below the wound 1.

3. Stab wound, 1 cm x 1 cm x muscle deep, on the left chest, 6 cm below the wound 2.

4. Stab wound, 1 cm x 1 cm x muscle deep, on the left chest, ½ cm below the wound 3.

5. Stab wound, 1 cm x 1 cm x muscle deep, on the left chest, 4 cm below the injury no. 4.

6. Stab wound, 2 cm x 2 cm x muscle deep, on the left chest, 6 cm below the left nipple.

7. Stab wound, 1 cm x 1 cm x muscle deep, on the right lung, 5 cm below the right shoulder.

8. Stab wound, 1 cm x 1 cm x on the right lung, 2 cm below the collar bone (clavicle).

9. Stab wound, 2 cm x 2 cm x muscle deep, on the right chest, 5 cm below the injury no. 8.

10. Stab wound, 1 cm x 1 cm x muscle deep, 6 cm below the injury no. 9.

11. Stab wound, 1 cm x 1 cm x muscle deep, on the right abdominal region, 6 cm below the xiphisternum.

12. Stab wound, 1 cm x 1 cm x muscle deep present on right side of abdomen, 4 cm below to injury no.11.

13. Stab wound, 1 cm x 1 cm x muscle deep present on right side of abdomen 2 cm below the injury no.12.

14. Stab wound, 1 cm x 1 cm x muscle deep, present on right shoulder.

15. Stab wound, 1 cm x 1 cm x muscle x muscle deep present on right elbow joints.

16. Two stab wound with a gap of 3 cm present on 6 cm above the right knee joint which is muscle deep.

17. Stab wound 2 cm x 1 cm x muscle deep present on right lower leg 6 cm above the right ankle joint."

24. This is a case of direct evidence rest upon the statement of P.W.5, happens to be an eye witness. It is pertinent to mention here that examination in Chief of P.W.5 Ramesh Kumar was recorded on 11.9.2014. Later on his cross-examination got deferred and after a lapse of about two months cross-examination of this witness was done on 15.11.2014 when he resiled from his previous statement and said that he did not see the accused Indal Pasi assaulting his wife; did not see who caused injuries to her; when he arrived at spot he did not see accused there; he came to know about the incident from villagers.

25. According to defence since witness turned hostile and there is nothing to support him, his evidence cannot be termed as reliable and worthy to credence. We are not influenced by the submissions of learned counsel for defence for the reasons that witness turned hostile after a lapse of about two months in his cross-examination and he was not given an opportunity to explain his previous statement.

26. In Binay Kumar Singh and others v. State of Bihar, Criminal Appeal No. 277 of 1987 decided on 31.10.1996, Court held as under :-

"12. The credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in court. This principle is delineated in Section 155(3) of the Evidence Act and it must be borne in mind when reading Section 145 which consists of two limbs. It is provided in the first limb of Section 145 that a witness may be cross-examined as to the previous statement made by him without such writing being shown to him. But the second limb provides that "If it is intended to, contradict him by the writing his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." There is thus a distinction between the two vivid limbs, though subtle it may be. The first limb does not envisage impeaching the credit of a witness, but it merely enables the opposite party to cross-examine the witness with reference to the previous statements made by him. He may at that stage succeed in eliciting materials to his benefit through such cross-examination even without resorting to the procedure laid down in the second limb. But if the witness disowns having made any statement which is inconsistent with his present stand his testimony in Court on that score would not be vitiated until the cross-examiner proceeds to comply with the procedure prescribed in the second limb of Section 145.

13. In Bhagwan Singh's case, Vivian Bose, J. pointed out in paragraph 25 that during cross-examination of the witnesses concerned the formalities prescribed by Section 145 are complied with. The cross-examination in that case indicated that every circumstance intended to be used as contradiction was put to him point by point and passage by passage. Learned Judges were called upon to deal with an argument that witnesses" attention should have been specifically drawn to that passage in addition thereto. Their lordships were, however, satisfied in that case that the procedure adopted was in substantial compliance with Section 145, and hence held that all that is required is that the witness must be treated fairly and must be afforded a reasonable opportunity of explaining the contradictions after his attentions has been drawn to them in a fair and reasonable manner. On the facts of that case, there is no dispute with the proposition laid therein."

(emphasis added)

27. Keeping in view the examination of P.W. 5 recorded on 11.9.2014 and his cross-examination resiling his own statement recorded on 15.11.2014 and legal propositions of law held by Supreme Court, we do not find any substance in the argument made by the learned counsel for the appellant.

28. In the present case incident took place within four walls which was in exclusive possession of appellant as established by PW-1, 2, 4 and 5.

29. P.W.-6 Dr. Ashutosh Pandey conducted post mortem of deceased Sangeeta and found 11 stabbed wounds which found support with the evidence of P.W.-11. Dr. Arun Kumar, who conducted medico legal examination of victim Sangeeta.

30. P.W.-7 Chandra Kumar Jha established the arrest of accused and recovery of blood stained Iron rod.

31. In the background of these evidence, we find further that the accused appellant Indal Pasi, husband of the deceased Sangeeta, disappeared from the house. He was not present when police reached the house. It is also true that he was arrested subsequently elsewhere. He did not give any information to the police about the crime. All these facts support prosecution version that he was only and only person to commit the crime. In the statement recorded under Section 313 Cr.P.C., there is a complete denial of accused appellant as to where he was in the night and why he did not inform the police if his wife sustained injuries otherwise. He would have been the first and natural person for giving this information. Though statement under Section 313 Cr.P.C. is not a substantial piece of evidence but from the reply given in respect of question put to the accused regarding the fact and evidence which are to be relied against him, reply given by such person showing his conduct can be considered to be corroborating evidence with the prosecution evidence.

32. In the present case, it is fully established that Smt. Sangeeta was seriously injured by accused. Evidence shows that victim was injured within the four walls of house, admittedly, in exclusive possession of accused. Medical evidence shows that death of Smt. Sangeeta 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 did not suggest as to why PWs gave false statements against him and admittedly accused disappeared from spot after incident and arrested next day with offending weapon. He did not offer any explanation as to how his wife sustained injuries in the house. Therefore, there cannot be any hesitation to come to the conclusion that accused caused death of Smt. Sangeeta by causing several injuries by Ballam (iron rod) on her body due to which, she succumbed to injuries.

33. In view of facts and legal position discussed hereinabove, we find that Trial Court has rightly analysed evidence led by prosecution and found him guilty and convicted accused for having committed murder of Smt. Sangeeta, an offence punishable under Sections 302, 504 and 506 IPC. Conviction by Trial Court is liable to be maintained and confirmed. No interference is warranted by this Court.

34. 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.

35. 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].

36. 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.

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

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

39. Before parting, we provide that Sri Vikas Singh, Advocate, who has appeared as Amicus Curiae for appellant in present Jail Appeal who assisted the Court very diligently, 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 judgement.

Order Date :- 23.05.2019

Neeraj