Bablu Yadav @ Surendra Singh vs The State Of U.P.
2021 Latest Caselaw 8185 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 02.02.2021
 
Delivered on 19.07.2021
 
Court No. - 48
 

 
Case :- CRIMINAL APPEAL No. - 3891 of 2007
 

 
Appellant :- Bablu Yadav @ Surendra Singh
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- Manoj Gauram,B.V. Manglic,Jitendra Singh,Noor Mohammad,Rajul Bhargava
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Anjani Kumar Mishra,J.

Hon'ble Shekhar Kumar Yadav,J.

Heard Sri Noor Mohammad, learned counsel for the appellant and Sri L.D. Rajbhar, learned AGA for the State-respondent.

The instant appeal is directed against the judgment in Sessions Trial No. 136 of 2005, under Section 302 I.P.C. and Sessions Trial No. 137 of 2005, under Section 25 of the Arms Act.

Appellant has been convicted by the Additional Sessions Judge, Fast Track Court, Mahoba, vide judgment dated 20.04.2007 in Sessions Trial No. 136 of 2005 and has been sentenced to life imprisonment with a fine of Rs. 5,000/- and in default thereof, six months further imprisonment has been provided for.

Insofar as Sessions Trial No. 137 of 2005 is concerned, the appellant has been acquitted, therein.

The prosecution case as per the first information report, lodged on 28.04.2005, at about 11.30 p.m. at Police Station Panwari, District Mahoba, is that the first informant's brother, deceased Munna Lal, had gone to the chakki of one Chatrapal Singh to collect flour. While returning with the sack of flour on his cycle, he had a brief conversation with the accused-appellant. As he turned to proceed to his house, the accused shot him of a country made pistol. The deceased fell down and was assaulted with a laathi by the appellant. This was witnessed by the first informant, who was taking his cattle for grazing, from a distance of about 25 steps. The owner of the chakki, Chatrapal Singh and one Khalak Singh are also stated to be eye witnesses of the incident. The accused, after shooting the deceased and after inflicting blows with a laathi escaped towards the jungle. After the incident, the first informant is stated to have proceeded to the police station situated at a distance of eight kilometers on foot and thereafter the first information report was lodged at 11.30 a.m.

As many as 10 witnesses have been examined by the prosecution. The three witnesses of fact are PW-1 Gulab Singh, the first informant and brother of the deceased PW-2 Khalak Singh, the eye witness of the incident PW-3 Bhagirath Lodhi, the father of the deceased, is not an eye witness but the person in whose supurdgi the bicycle and the sack of flour of the deceased were given. The other formal witnesses are PW-4, Head Constable, Hari Shanker Singh has proved the F.I.R. PW-5 Dr. A.R. Siddiqui, who has proved the post mortem report. PW-6 Sundar Lal is the independent witness of the recovery of the katta and laathi used for assaulting the deceased. PW-7 Shiv Ram, Constable 174 who delivered the body of the deceased for post mortem. PW-8 Jamirul Hasan is the S.H.O. and investigating officer. PW-9 M.P. Verma, S.H.O. Panwari is the one in whose presence the weapons of assault are stated to have been recovered at the pointing out of the accused-appellant and PW-10 S.I. P.M. Chaudhary, P.S. Kulpahad, District Mahoba.

The appellant's statement under Section 313 Cr.P.C. was also recorded, wherein he has denied the allegations against him and stated that he has been falsely implicated on account of enmity.

The only witness examined in defence is Chatrapal Singh, DW-1 who is stated to be the second eye witness of the incident from whose chakki the deceased had gone to collect flour and outside which chakki the deceased was assaulted leading to his death.

PW-1 Gulab Singh, the brother of the deceased Munna Lal has, in his cross-examination, stated that while he was taking his cattle for grazing, he saw his brother who had gone to collect flour from the chakki of Chatrapal Singh and was returning with the flour, in conversation with the appellant Bablu Yadav. They talked for about a minute. As soon as his brother turned to proceed to his house, Bablu Yadav fired at him with a country made pistol. Munna Lal fell down and was thereafter, assaulted six times by Bablu Yadav with a laathi. The accused thereafter escaped. When the first informant reached the spot, he found that his brother was already dead. He has also stated in his cross-examination that the F.I.R. was transcribed by Karan Singh on his dictation in the village, itself and he carried the same to the police station in his pocket. However, during cross-examination, no folds were found in the F.I.R. This witness has also stated that Chatrapal saw the incident from the door of his chakki while Khalak Singh, the other eye witness was standing in front of the house of one Basarat.

Further, in his cross-examination, PW-1 has denied knowledge that one Jhakar, who earlier resided in the village and was responsible for the murder of the parents of Bablu, the appellant and his maternal grand mother. He has also denied any knowledge of conviction of Jhakar, Jagdish and others of his village in the said case. Most importantly he has categorically stated that there was no enmity between the deceased and the appellant Bablu.

PW-2 Khalak Singh in his cross-examination stated that he had gone to the house of Basarat to pay him Rs. 150/- for the tilling of his fields by Basarats' tractor. He has also stated that he was returning after making the payment when he heard a shot being fired. Thereafter, he saw the accused-appellant assaulting the deceased with a laathi. In cross-examination, he has denied any relationship with the first informant or with the persons convicted for the murder of the appellant-Bablu Yadav's parents and maternal grant mother.

PW-3 Bhagirath Lodhi, the father of the deceased has stated that the police arrived on the spot at 9.15 a.m. He has also stated that he reached the spot three hours before the investigating officer arrived on the spot and further, that Gulab Singh, the first informant was not present on the spot as he had gone to graze his cattle. He arrived on the spot after being informed of the incident.

PW-4 Hari Shankar Singh, the Head Constable has proved the F.I.R. which was marked Ex. Ka-4. He has also stated that the C.O. was not present in the police station when the F.I.R. was being lodged and that he arrived 15 to 20 minutes later and departed for the spot 15 to 20 minutes after the F.I.R. had been loged.

PW-5 Dr. A.R. Siddhqui, Physician, District Hospital, Mohaba has proved the post mortem report. He has stated that the following injuries was found on the body of the deceased:-

1. Lacerated wound 3.5 c.m. x 3.0 c.m. bone deep on the forehead 2 cm above the left eyebrow.

2. Incised wound 4 c.m. X 2 cm (6.5 cm above right ear) on the right side of the forehead bone deep.

3. Incised wound 2 c.m. x 1.5 c.m. right side of head 8 cm above the right ear 2 c.m. above injury no. 1, directed posteriorly, bone deep.

4. Lacerated wound 7 c.m. x 4 c.m. bone deep 5 c.m. above the right ear present in the top right side of the head.

5. Incised wound 4 c.m. x 1.5 c.m. bone deep on right side of head, 3 c.m. above injury no. 4 directed right to left, horizontally.

6. Lacerated wound 3 c.m. x 2 c.m. right side of head, 12 c.m. above the right ear.

7. Incised wound 1.5 cm. x 1.5 c.m. right mastoid 2 c.m. behind the right ear bone deep directed posteriorly.

8. Firearm wound of entry 1.5 cm x 1 cm x cavity deep on right side of back 10 cm above the right illiac spine, 1 cm right to midline, margins inverted, abraided collar present, directed upwards anteriorly, whole right kidney lacerated and underface of liver lacerated in area of 10x__cm. About 1.5 liter of free and clotted blood present in abdominal cavity. One bullet recovered from cavity.

He has also stated that the right parietal, right temporal, right occipital bone were fractured and that 250 grams of digested food was present in the stomach. He has opined that the death was due to trauma and excessive bleeding due to anti-mortem injuries. He has further opined that the death took place about 24 hours ago. The time of death was about one day because stiffness had left the above part of the body but was present in the lower part. The stomach was swollen. There were blisters on the body and skin had peeled at placed. He has further opined that it is possible that the deceased died on 28.04.2005 at about 8 to 9 a.m. and that injuries 1, 4 and 6 were caused by a blunt hard weapon while injuries 2, 3, 5 and 7 could be caused by a sharp ring on the laathi.

During the cross-examination, he has stated that the body had started decomposing. There were blisters on the body of the deceased. He has denied the suggestion that this condition is possible only between 36 to 72 hours after death. He has further stated that since rigor has passed from the upper body and was present only on the lower part of the body and that his is given precedence in giving an opinion about the time of death. He has also denied the suggestion that rigor mortis passes completely 24 hours after death and that rigor mortis passes completely from 36 to 24 hours. Since rigor mortis was present in the lower part, it was possible that the death occurred within 34 hours and that it could have occurred on the night on 27th to 4 a.m. on 28.04.2005.

Lastly, he has stated that if a ring was attached to the laathi both incised and lacerated wounds could have caused by it. The deceased must have had food two and half to three hours before death as the food gets completely digested within two and a half hours.

PW-6 Sunder Lal is the public witness of the recovery of the laathi and katta, the weapon of assault on the pointing out of the appellant on 11.05.2005. He has stated that he and another person were waiting for a bus when he was ask to act as a witness and did so.

PW-7 Shivram CP. 174 is the person who took the body of the deceased to District Hospital, Mahoba for post mortem.

PW-8 Zamirul Hasan, SHO Mahoba, initially investigated the matter, prepared the panchayatnama, site plan and collected soil from the spot. He also recorded the statement of the witnesses. He has also filed the charge-sheet against the accused. He has categorically stated that he was never informed about any metallic ring being attached to the laathi, second weapon of assault.

PW-9 M.P. Verma, SHO Panwari, District Mahoba, is the second Investigating Officer who tool over the investigation on 06.05.2005 and who has recovered the weapons of assault at the pointing out of the accused-appellant.

PW-10 P.M. Chaudhary, S.I., P.S. Kulparad, District Mahoba, was handed over investigation of Case Crime No. 236 of 2005 under Section 25 of the Arms Act and has recorded the statements of Sunder Lal and Man Singh, two witnesses of the recovery of the fire arm and laathi. He filed the charge-sheet under Section 25 of the Arms Act against the appellant.

In the statement under Section 313 Cr.P.C. the appellant has denied the allegations against him. He has categorically stated that the alleged recovery on his pointing out is false. He has also denied the charge-sheet filed against him and has stated that that it is incorrect. He has stated that the evidence of PW-1 and PW-2 is false and that the case has been registered against him on account of enmity.

DW-1 Chatrapal Singh, one of the eye witnesses named in the FIR, has deposed as a defence witness. He has stated that Bablu (appellant) and the deceased Munna Lal were both known to him as they belonged to his village. He has stated that Munna Lal was murdered on 28th about 8.30 a.m. At that time he was inside his chakki and he did not see anybody assaulting the deceased. He has further stated that he is the one who sent word to Gulab Singh (PW-1), who thereafter came and after looking at the dead body, went away. The police arrived at the spot around mid day.

In his cross-examination, he has stated that the deceased have come to his shop to collect the flour and that after keeping the sack of flour on his cycle, he departed. He was killed about 10 feet from his chakki. He has also stated that he did not hear the conversation between the appellant and the deceased on account of the noise of the flour mill itself. He did hear a gun shot but never tried to come out to take a look. He has, subsequently, during cross-examination, stated that no sack of flour of the deceased was lying in his chakki. The deceased had come to enquire about it and he had informed him that his aunt had taken away the sack. He has denied deposing before the Investigation Officer that on hearing the gun shot, he came out of his chakki and saw Bablu (appellant) armed that a Tamancha or that Bablu had assaulted the deceased with a laathi.

The submission of learned counsel for the appellant is that the incident has been anti timed by the prosecution. The deceased was assaulted and killed at night and nobody witnessed the incident. The appellant has been falsely implicated on account of enmity. This is amply proved by the post mortem report as also the statement of PW3 Bhagirath Lodhi, the father of the deceased who has categorically stated that Gulab had gone to graze his cattle and that he arrived on the spot after being informed about the death of his brother. The FIR as also the allegations made therein, are completely false and belied by the said statement of PW3, Bhagirathi Lodhi. Under the circumstances, Gulab could not have been an eye witness.

It is also submitted that the prosecution case is belied by the post mortem report,which shows the presence of 250 grams of digested food in the stomach of the deceased. Even the condition of the body indicates that death took place much earlier than 8.30 a.m. as is the prosecution case. The statement made by the prosecution witnesses about the existence of a ring on the laathi is an improvement as no such thing has been stated earlier or alleged in the FIR.

It is next submitted that the ballistic report also does not support the prosecution case. This has resulted in acquittal in the case under Section 25 of the Arms Act. Moreover, PW1 has admitted that there was no enmity between the appellant and the deceased. Therefore, there is no motive for the alleged crime. The appellant is innocent and has already remained in jail for well over 15 years and a half.

Learned AGA on the other hand submitted that ten witnesses have been examined by the prosecution, of which three are witnesses of fact. The prosecution case is fully corroborated by their testimony. He has also stated that PW1 in his statement under Section 161 Cr.P.C. had stated that the laathi used for assaulting the deceased had a metallic ring attached at one end. He has lastly submitted this the instant case is one of direct evidence, therefore, the question of motive is of no consequence. Motive can be relevant only in a case of circumstantial evidence.

The main trust of the defence case is that Munna Lal was murdered in the dead of the night and that no one had witnessed the incident and, therefore, the appellant was wrongly convicted by the trial Court.

In support of his contention reliance has been placed on the statement of PW-3 Bhagirath Lodhi, the father of the deceased. On the basis of the statement, it is sought to be conveyed that the eye witness and first informant Gulab Singh, the brother of the deceased, was not an eye witness as he was not present on the spot. He had gone to graze his cattle and, therefore, the entire prosecution case is completely false and totally untrustworthy. Bhagirath Lodhi has deposed that his son Gulab Singh had taken his animals for grazing and he came to the site of occurrence after getting news of the same, long after after Bhagirath Lodhi arrived on the spot.

In our considered opinion, the statement of PW-3 Baghirath Lodhi is enough to put the testimony of Gulab Singh under a serious cloud.

The other aspect, which has been submitted is on the basis of the post mortem report and the statement of PW-5 Dr. A.R. Siddhiqui, who has proved the post mortem report. The defence case is that the condition of the body, which had started to decompose and was covered the blisters as also the fact that digested food was present in the stomach coupled with the testimony of the doctor that the incident could have taken place on the proceeding night or up til 4:00 A.M. on 28.04.2005, it is sought to be argued that the time of the incident given by the prosecution is incorrect.

The time of the incident accordingly to the prosecution is 8.30 A.M. The post mortem has been held at about 3.30 P.M., the next day. It therefore, means that the post mortem was held almost 30 to 31 hours after the alleged time of death. It needs to be borne in mind that the incident is of 28th April, 2005, by which time, the summer has fully set in.

Under the circumstances and if composition had started by the time of post mortem took place, the same cannot be said to be an impossible occurrence.

For the same reason, the presence of digested food in the stomach at the time of death namely at 8.30 A.M. cannot be said to be totally inconsistent with the alleged time of death. PW-5 Dr. A.R. Siddhiqui has clearly stated that during summer months food gets fully digested within two and a half hours, meaning thereby that the deceased had had a meal at around 6:00 A.M., which again cannot be said to be improbable or impossible in a rural area during summer months when sunrise is around 5:00 A.M.

The argument is that the factum of a ring being attached at one end of the laathi with which the appellant is said to have assaulted, the deceased after shooting him, is an improvement as this factum was not mentioned in the F.I.R.

We are not impressed by this argument by two reasons. First, each and every fact is not required to be stated in the F.I.R. nor can the same be so stated. Secondly, the presence of a ring on the end of the laathi has been stated also in the statement under Section 161 Cr.P.C. as has been pointed out by learned A.G.A. The person, who made this statement under Section 161 Cr.P.C. has not been confronted with the same during his cross-examination. Moreover, PW-5 has clearly opined that the presence of lacerated and incised wounds on the body of the deceased were possible in case a metalic object was attached to one end of the laathi, the alleged weapon of assaulted.

We have also observed that the statement of PW-1 Gulab Singh, the first informant and is being an eye witness is under a serious cloud in view of the statement of PW-3 Bhagirath Lodhi. However, this discrepancy loses significance because the defence witness DW-1 Chhatrapal Singh has admitted that the deceased came to his chakki to collect a sack of flour. He has also clearly admitted that he heard a shot being fired, although, he has denied having tried to find out as to who had fired the shot. However, his statement is in our considered opinion is enough to fix the time and place of incident as it amounts to an admission. Since the defence witness himself had admitted that a shot was fired at 8:30 A.M. and that the deceased was done to death only ten feet from his chakki, the entire defence that the deceased was killed elsewhere during the night and nobody witnessed the killing, cannot be accepted. The position undoubtedly would have been different had DW-1 Chattrapal not admitted hearing a shot being fired.

Moreover, the testimony of Khalak Singh, PW-2, an eye witness of the assault by the appellant is unshaken and in our opinion the testimony of PW-2 and DW-1 is enough to record an order of conviction, even if it is held that PW-1, the first informant was not an eye witness or that his testimony is entirely false and or doubtful.

It is also relevant to note that the recovery of weapon of assault has been made in the presence of an independent public witness. Nothing in this regard has been submitted by learned counsel for the appellant. The recovery also therefore, stands unshaken.

In view of what has been stated above, we do not find any good reasons to interfere in the judgment of the trail court convicting the appellant. The prosecution has been able to prove its case beyond reasonable doubt even if the statement of PW-1, the first informant is discared.

Under the circumstances, the appeal is dismissed.

Order Date :- 19.07.2021

Mayank