Guddu Pal vs State Of U.P.
2022 Latest Caselaw 2334 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved On :  23.03.2022
 
Delivered On : 09.05.2022
 

 
Court No. - 1
 

 
Case :- CRIMINAL APPEAL No. - 2228 of 2008
 

 
Appellant :- Guddu Pal
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Balram Singh,Amrendra Kumar,Anand Mohan,Anil Pratap Singh,Jayant Singh Tomar,L K Gupta,Manjusha Kapil,O.P.Tiwari
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Brij Raj Singh,J.

(Per: Brij Raj Singh, J.)

1. The present appeal has been preferred against the judgment and order dated 05.09.2008 passed by the Additional Session Judge, Court No. 5, Sitapur in Session Trial No. 602 of 2006 (State Vs. Guddu Pal and Another) in Case Crime No. 168 of 2006, under Section 302 read with Section 34 I.P.C., Police Station - Ataria, District Sitapur thereby convicting and sentencing the appellants, under the aforesaid sections for life imprisonment and fine of Rs. 10,000/- each and in case of default of payment of fine additional six months rigorous imprisonment.

2. The First Information Report was lodged on 13.07.2006 by Pappu Pal at 12:30. The complainant stated in the F.I.R. that his wife Gudda had gone to her field on 13.07.2016 to weed out the peppermint crop and he was present in his house. At about 10:30 a.m., Guddu S/o Sohanpal, Lala @ Lalji S/o Gokaran Pal of his own village and another person came to the place of incident and they outraged the modesty of his wife and tried to commit rape with her. His wife made protest and ran away from the field while making alarm. All the three accused caught her and thereafter Guddu armed with Banka and Lalji with knife caused injury to her. On alarm being raised by his wife, he and his brother Ram Singh, Prakash Pasi S/o Lekhai and Raju S/o Mahesh Pasi and other witnesses came to the place of incident. Accused Guddu and Lalji along with a third unknown person ran away from the place of incident towards the west side of the village.

3. On the said application Case Crime No. 168 of 2006, under Section 302 I.P.C., Police Station Atariya, District Sitapur, was registered. The inquest was prepared and the Investigating Officer sent the dead body for post mortem. The Investigating Officer investigated the case and a charge sheet was filed under Section 302 I.P.C. against the accused after collecting the evidences. The case was committed on 26.08.2006 before the Sessions Court by the Chief Judicial Magistrate, Sitapur and thereafter the charges were framed under Section 302/34 I.P.C., which was denied by the accused. The post mortem report indicates three ante mortem injuries on the body of the deceased which follows as under:

"(i) Incised wound 8cm X 3 cm X abdominal cavity deep on the right side of upper abdomen obliquely placed, underlying liver cut.

(ii) Incised wound 1.5 cm X 0.5 cm X deep abdominal cavity depth present on the illegible of abdomen. Right side illegible with underlying liver cut, plenty of clotted blood on the back of abdominal cavity, discending arte cut.

(iii) Incised wound 2 cm X 0.5 cm X abdominal cavity deep. On the left side of upper abdomen 12 cm below to right nipple underlying. stomach cut."

4. The doctor has opined the cause of death is due to shock and hemorrhage due to ante mortem injuries sustained.

5. Prosecution had produced six witnesses, namely, who were examined. (1) Pappu Pal, the complainant, (2) Sri Ram Singh, the eye witness, (3) P.W. -3 Sriram, who proved the recovery of Banka, (4) P.W. -4 Mukesh Kumar Chaturvedi, the constable who lodged the F.I.R., (5) P.W. -5 S.I. Harilal Kardam and P.W. -6 Dr. B.R. Jaiswal who conducted the post mortem.

6. The accused-appellants were afforded opportunity under Section 313 Cr.P.C. The accused Guddu Pal stated that he was falsely implicated due to enmity of elections of Gram Pradhan and he stated that he was caught from his house and false recovery has been shown against him. Accused Lala @ Lalji in his statement under Section 313 Cr.P.C. stated that he too was implicated due to election of Gram Pradhan and stated that the witnesses have given false statements.

7. After adducing the evidences on record, the trial court passed judgment on 05.09.2008 and the accused have been convicted under Section 302/34 I.P.C. and sentenced with life imprisonment. Hence the present appeal.

8. We have heard Ms. Manjusha Kapil, learned Counsel for the appellant and Shri Pankaj Tewari, learned A.G.A. for the State-respondents and perused the record.

9. P.W. -1 was examined before the court and he stated in examination in chief that the incident took place prior to nine months at 10:30 a.m. He was present in his house and his wife had gone to weed out the peppermint crop in her field. The field was 70-80 steps away from his house. When he heard the alarm raised by his wife, he reached to the field and saw that accused Lala armed with knife, Guddu armed with Banka were assaulting and causing injury to his wife and there was another man assisting the accused in commission of offence. He has further stated in examination in chief that in the meantime his elder brother Ram Singh, Raju and Prakash and other witnesses of the village came to the place of incident. The accused ran way from the place of incident after causing the injuries. He saw that his wife was dead. He orally stated the fact to Jagdev Prasad who wrote the tehreer. Whatever, he stated before the scriber of the written report, the same was heard by him and then he made his signature thereon. The said report was submitted to Munshi of Police Station who lodged the report.

In the cross examination, P.W. -1 stated before the court that he has no relation with accused Guddu. Gokaran is father of accused Lala and Lala has got another brother, namely, Chhotanne and prior to two years from the date of incident, the election of Gram Pradhan took place. In the said election Chhotanne, Vijaivir and others were contesting candidates. He further stated in the cross examination that there was no occasion to falsely implicate accused Lala out of grudge of election of Gram Pradhan. Chhotanne was doing business of dairy/milk and he saw Chhotanne at 5 p.m. in the village. He further admitted that Chhotanne used to go Lucknow for selling milk. The P.W. -1 further suggested in the cross examination that there was no occasion to falsely implicate Lala at the place of Chhotanne. In the cross examination, it has been stated by the P.W. -1 that boundary of Ram Sewak is situated towards the eastern side of peppermint field and there was no other adjoining field towards the eastern side. There lies a field related to Guddu son of Sohan towards the northern side of peppermint field. It is further admitted in the cross examination that he and his brother Ram Singh were witness of inquest and the body of the deceased was not found in the field of Guddu. He further suggested in the cross examination that he was unable to suggest as to why the dead body was shown in the field of Guddu. He stated that his wife had gone for weeding out the peppermint in the field at 10 O' Clock in the morning and after half an hour, she was killed. She had eaten paratha and kheer. He further denied the suggestion that he was not present in his house at the time of incident. He further denied that the deceased was killed in the morning when she had gone to ease out herself.

He further deposed before the court that Khurpa was lying in the peppermint field when he reached there. After lodging the report police reached to the spot. The spot was inspected by the police but the Khurpa was not present at the time of spot inspection. He further stated that his brother Ram Singh and his mother were present. He admitted that he could not point out the presence of Khurpa at the time of spot inspection. He did not ask his brother Ram Singh and his mother regarding Khurpa. He admitted that he had seen the entire incidence and accused were assaulting his wife at the eastern side of the peppermint field. When he raised an alarm, the accused ran away from the place of occurrence. Ram Singh had also reached to the place of occurrence. He further admitted that firstly, he reached to the place of occurrence and thereafter the villagers reached there. The accused ran away towards the western side of the village. He further admitted that he told Darogaji that accused ran away towards the southern side. He further deposed that he saw the knife used by the accused and he saw that the knife had sharpness at one side. He denied the charges of the defence side that he was not eye witness. He went to the police station through bicycle and reached within twenty minutes. The hand-written tahreer was given to the police station. The report was handed over to Munshiji in the police station who handed over the same to the Darogaji. The report was read before him by Moharrir.

10. P.W. -2 Ram Singh was also examined and in his examination in chief he also supported the prosecution case as stated by his brother i.e. P.W. -1. P.W. -2 Ram Singh stated before the court that he was real brother of complainant - P.W.- 1 and deceased was wife of the P.W. - 1. he deposed that as soon as he started ploughing his field, he heard the alarm raised by wife of the complainant and reached to the spot. He saw that accused Guddu Pal armed with Banka and accused Lala armed with knife, were assaulting his brother's wife. He could not recognize the third person who caught hold of the deceased. He and his brother Pappu tried to catch the accused but they fled away towards Nayagaon. He further stated that as soon as he reached to deceased he saw that she was dead. He further admitted that inquest was prepared in front of him and he signed on the same and his statement was recorded.

11. P.W. -3, Sriram was also examined before the court and he stated that the Banka was recovered in his presence which was found in the flooded field of Moolchand, under the water. The recovery memo was signed by him. P.W. -3, Sriram deposed that on the date of the occurrence he was present in the outside of his village at 7:30 a.m. The Inspector (Darogaji) Ataria met him and asked him to accompany him to recover Banka which was pointed out by accused Guddu. He and Ranjeet went to the place of recovery by police jeep . The jeep was stopped at the road side of Nayagaon. Accused Guddu reached to the field of Moolchand which was flooded with water. He brought out Banka from the field of Moolchand and confessed that he killed deceased Gudda with that Banka. Darogaji sealed the Banka and thumb impression of P.W. -3, Sriram was obtained on the same. The memo was written in torch light. The bundle was opened before the court and Banka was shown to P.W. -3, Sriram who admitted that it was the same Banka which was sealed by the police at the time of recovery.

12. P.W. -4 Mukesh Kumar Chaturvedi stated that he was posted as Moharrir in Police Station Atariya and chick report -66 of 2006 was prepared and he proved the said F.I.R. whichwas entered at G.D. Rapat No. 18 at 12:30 p.m. Mukesh kumar stated before the court that he was posted as Moharrir at Polie Station Ataria on 13.07.2006. He also admitted that Pappu Pal had come to the police station at 12:30 along with a written report. He further admitted that on he basis of the said report, he prepared Chik Report No. 66/2006 in his own handwriting. He proved Exhibit :- Ka-2, which was lodged at GD Rapat No. 18, timing 12:30 hours.

13. P.W. -5, S.I. Harilal Kardam is the Investigating Officer and he stated before the Court in his examination in chief that the said case was registered in his presence at the police station. He investigated the case and thereafter he recorded the statement of Pappu Pal and Ram Singh under Section 161 Cr.P.C. He further admitted that he had gone to the place of occurrence and the inquest was prepared and thereafter the fard was prepared and the body was sent for post mortem. He also stated before the Court that accused Guddu was arrested on 18.07.2006 and his statement was recorded who confessed the guilt. He further stated that he recovered the Banka at the pointing out of Guddu Pal, the accused.

14. P.W. -6, Dr B.R. Jaiswal was also examined before the Court and he has deposed that post mortem of the deceased was conducted by him and three injuries were found on the body of the deceased and all the three injuries were cut wound injuries. He also admitted that 100 ml. Liquid was found in the stomach of the deceased. The liver was torn, kidneys were pale. The doctor has opined the cause of death as shock and hemorrhage due to ante mortem injuries.

15. The accused has made following submissions in his defence.

(i) It has been argued by the counsel for the appellant that after taking the meal the deceased was killed just after half an hour and thus 100 ml. Liquid could not have been found because she had taken food just prior to half and hour. It is further argued by the counsel for the appellant that the deceased was not killed at 10:30 a.m. rather she was killed in the early hours of morning and thus the prosecution was doubtful.

(ii) Counsel for the accused appellant has submitted that the investigation is faulty and there is no recovery of knife. It has been further submitted that there are contradictions in the statement of the Investigating Officer and the witnesses.

(iii) The defence has taken plea that there was no recovery of knife from accused Lala @ Lalji. It has been further submitted that the knife was quarter to two inches wide as per the statement of the witness but there was punctured wound found on the body of the deceased. As per the post mortem report, the injury has been shown as incised wound but the same is punctured wound. There is no evidence of outraging the modesty of the victim. It is further submitted that when P.W. -1 stated that he and his brother reached to the place of occurrence where as P.W. -2 has said that he was in his field and reached to the spot and further stated that his brother P.W. -1 came from the house; thus it has been submitted that there are contradictions in the statement of P.W. -1 and P.W. -2. The argument has been advanced that the witnesses are interested witnesses and there is no independent witness.

(iv) The accused has further argued that as per the inquest report the dead body of the deceased was found at different place whereas the dead body has been shown at different place as per the F.I.R. The inquest prepared by the I.O. indicates that prosecution case is highly doubtful.

(v) The accused has further submitted that the recovery against Guddu is not in accordance with law. The witness of recovery Sriram is resident of 3 k.m. away. Neither soil nor grass was found on the dead body and the recovery at the pointing out of Guddu is also not admissible in the evidence.

(vi) Counsel for the appellant has further submitted that the appellants are in jail for the last fifteen years, therefore they may be given benefit of undergone period of imprisonment and case may be commuted.

16. We proceed to consider the aforesaid submissions of the counsel for the accused appellants as well as to discuss the case in light of the statement made by the counsel for the appellant one by one.

(i) Pappu Pal has specifically mentioned that his wife Smt. Guddu had gone for weeding out the peppermint crop in the field and the accused outraged her modesty on which she raised alarm. After hearing her alarm, P.W. 1 reached to the place of occurrence which was just 70-80 steps away from his house. He saw accused Lala @ Lalji was armed with knife and Guddu with Banka and they were assaulting his wife. Ram Singh, Raju and Prakash reached to the spot. P.W. -2, Ram Singh has also supported the prosecution case mentioning that at 10:30 a.m. he was ploughing his field and heard the alarm raised by Gudda, thereafter he reached to the place of occurrence and saw the accused were making assault on her. P.W. 1 has admitted in the cross examination that the deceased had taken meal i.e. two paratha and 250 gms. Kheer. There was no cross examination to the extent as to when the deceased had taken the meal. In the rural areas normally, it is found that people used to take break fast in between 6-7 O' clock in the morning because they have to leave for their work. It is thus clear that there is no doubt regarding the time of incident and she was assaulted at 10:30 for which already the examination of the witnesses have taken place and they are consistent that the incident took place at 10:30. The doctor was examined who has admitted that 100 ml. liquid was found in the intestine of the deceased and he admitted that the digestion activities of the body organs stops functioning after death. The decomposition process continues after death. Doctor further admitted that after taking meal the food stored in the large intestine passes through to small intestine slowly slowly after one and half hours. It is thus clear that no adverse inference can be drawn sofar as the date and time of occurrence is concerned.

(ii) The second argument placed by the counsel for the appellant is also not sustainable. It is pointed out that P.W. -1, Pappu Pal and P.W. -2 Sriram have specifically stated the fact of the prosecution case and there is no contradiction. The recovery of Banka has also been proved by P.W. -3 who is an independent witness. The Investigating Officer has not committed any fault while doing investigation. The defence side was unable to point out any major discrepancy in the investigation or lapses on the part of the Investigating Officer. The accused Guddu was arrested on 18.07.2006 and thereafter he confessed the guilt and he admitted that Banka was used in committing the murder of Smt. Gudda. On the pointing out of Guddu, Banka was recovered and the recovery was made in presence of P.W. -3, Sriram. The blood stain was found on the Banka which was proved in the report of F.S.L. dated 01.08.2006. It is thus clear that the investigation conducted by the I.O. is not faulty.

(iii) It is evident that the knife was not recovered but the opinion of the doctor clearly indicates that the injuries could have been caused by Banka and knife. The injuries were not punctured wound rather they were incised wound. It is also evident that the modesty of the deceased was outraged that is why she made alarm upon which P.W. -1 and P.W. -2 reached to the place of the incident. Insofar as the witness Raju Pal and Prakash are concerned, though they are independent witnesses and they filed discharge application did not come forward before the court for giving evidence but P.W. -1 and P..W.-2 have given a consistent statement before the court against the appellant and there is no reason to disbelieve their testimony. The place of occurrence was just 70-80 steps from the house of the P.W. -1 and he was able to reach to the spot on the alarm raised by the wife within short span of time. The doctor has also given opinion that the deceased received three incised wound. The doctor had not admitted that any injury out of three was caused by any other weapon because the injuries were incised wound and no injury was punctured wound. The place of occurrence has been proved as per site plan and the same cannot be doubted.

(iv) The inquest was prepared in the presence of witnesses by S.I. Ramlal on 13.07.2006 as Exhibit Ka - 4. It is mentioned in the inquest report that body of the deceased was found in the vacant field of Guddu S/o Sohan. The I.O. has prepared the site plan (Exhibit Ka -10) which was prepared on 13.07.2006 itself. In the site plan the field of Ram Avatar has been shown and room of boring is shown in dilapidated condition and the dot line is shown. The field of peppermint crop of Pappu has been shown towards south side of the field of the Ram Avtar where place (A) is shown. Place (D) is towards south of the Place (A) which is field of Mulla whereas the accused has been shown from where they reached to the place of deceased. Place (B) is shown where the deceased was caught by the accused. The deceased has been shown running from Place (C). P.W. -1 has already stated that the accused made assault in the field of peppermint and the incident was seen by the witnesses. The site plan is matching with the statement of the witnesses. In the inquest report, it is mentioned that the body of the deceased was found in the field of Guddu son of Sohan. In the site plant Exhibit - 10, there is no field of Guddu Pal mentioned by the I.O. It is thus clear that the site plan proves the prosecution and there is no fault in the investigation while Investigating Officer has prepared the site plan. The entire description as mentioned in the site plan is corroborative to the prosecution case and it is held that the incident took place at the place mentioned by the witnesses.

(v) The recovery of Banka has been shown at the pointing out of the accused Guddu Pal. The recovery was made on 18.07.2006 in the presence of independent witness Sriram. The accused confessed that he committed the crime along with the other co-accused with the help of Banka and knife. The I.O. took him into custody on 18.07.2006 and on his pointing out he went to the field of Moolchand which was flooded with water and on the pointing out of the accused, Banka was recovered. The entire recovery process was done in the presence of independent witness Sriram. The Banka was recovered from the field of Moolchand at the pointing out of the appellant himself and he confessed that the said Banka was used for commission of crime. The Banka was sealed in cover and the same was signed with thumb impression by the accused and other witnesses including Sriram. It is thus clear that there is no iota of doubt that the crime was committed by the accused-appellant with the respective weapons as mentioned in the F.I.R. The recovery of Banka was proved before the trial court.

(vi) Counsel for the appellant argued that the appellants have undergone for about fifteen years of imprisonment in jail and they are entitled to be released. The prosecution case is intact and we are of the opinion that the judgment of the trial court needs no interference. Once the appeal is dismissed there is no argument left for the appellants that they may be released or their sentence may be commuted on the basis of fifteen years of imprisonment. The appellants have to undergo the period of sentence because they have been awarded punishment for life imprisonment.

17. The Apex Court in catena of cases categorically held that the Court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witnesses.

18. The Supreme Court, in Rohtash Kumar v. State of Haryana, [(2013) 14 SCC 434] held:-

"24. ... The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic version of the prosecution witness..."

19. In Kuriya and Anr. v. State of Rajasthan, [(2012) 10 SCC 433], the Supreme Court held:

"30. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis for doubting the case of the prosecution. The courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence, is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur v. State of Gujarat, [(2012) 5 SCC 724; Narayan Chetanram Chaudhary v. State of Maharashtra, [(2000) 8 SCC 457]; Gura Singh v. State of Rajasthan, [(2001) 2 SCC 205] and Sukhchain Singh v. State of Haryana, [(2002) 5 SCC 100].

31. What is to be seen next is whether the version presented in the Court was substantially similar to what was said during the investigation. It is only when exaggeration fundamentally changes the nature of the case, the Court has to consider whether the witness was stating the truth or not. [(Ref. Sunil Kumar v. State (Govt. of NCT of Delhi)], [(2003) 11 SCC 367].

32. These are variations which would not amount to any serious consequences. The Court has to accept the normal conduct of a person. The witness who is watching the murder of a person being brutally beaten by 15 persons can hardly be expected to a state a minute by minute description of the event. Everybody, and more particularly a person who is known to or is related to the deceased, would give all his attention to take steps to prevent the assault on the victim and then to make every effort to provide him with the medical aid and inform the police. The statements which are recorded immediately upon the incident would have to be given a little leeway with regard to the statements being made and recorded with utmost exactitude. It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the court has to be reasonable and practicable. Reference in this regard can be made to Ashok Kumar v. State of Haryana, [(2010) 12 SCC 350] and Shivlal v. State of Chhattisgarh, [(2011) 9 SCC 561]."

20. In Shyamlal Ghosh v. State of West Bengal, [(2012) 7 SCC 646], the Supreme Court held:

"46. Then, it was argued that there are certain discrepancies and contradictions in the statement of the prosecution witnesses inasmuch as these witnesses have given different timing as to when they had seen the scuffling and strangulation of the deceased by the accused. ............ Undoubtedly, some minor discrepancies or variations are traceable in the statements of these witnesses. But what the Court has to see is whether these variations are material and affect the case of the prosecution substantially. Every variation may not be enough to adversely affect the case of the prosecution.

49. It is a settled principle of law that the court should examine the statement of a witness in its entirety and read the said statement along with the statement of other witnesses in order to arrive at a rational conclusion. No statement of a witness can be read in part and/or in isolation. We are unable to see any material or serious contradiction in the statement of these witnesses which may give any advantage to the accused."

21. We do not find any infirmity, illegality or perversity in the judgment and order of the trial court and are unable to persuade ourselves to take an opinion other than that of the trial court.

22. Consequently, the appeal lacks merit and is accordingly dismissed.

23. The appellant is in jail, he shall serve out the sentence awarded by the trial court.

24. Let a copy of this order along with lower court record be transmitted to trial court concerned for necessary information and follow up action.

[Brij Raj Singh, J.] [Ramesh Sinha, J.]

Order Date :-09.05.2022

Arun K. Singh