Allahabad High Court

Asharam And Another vs State Of U.P. on 7 August, 2023

Bench: Surya Prakash Kesarwani, Nand Prabha Shukla




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 



 
Neutral Citation No. - 2023:AHC:157700-DB
 

 
(Judgment reserved on 25.07.2023)
 
(Judgment delivered on 07.08.2023)
 
Court No. - 42
 

 
Case :- CRIMINAL APPEAL No. - 474 of 1983
 

 
Appellant :- Asharam And Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- A.C. Chaturvedi,Mukhtar Alam,S.S. Tewari,Saquib Mukhtar,Satyaveer Singh,Yawar Mukhtar
 
Counsel for Respondent :- D.G.A.,A.G.A.
 

 

 
Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Ms. Nand Prabha Shukla,J.

(Per: Surya Prakash Kesarwani, J.)

1. Heard Shri Mukhtar Alam alongwith Shri Satyaveer Singh and Shri Saquib Mukhtar, learned counsel for the appellant no.1 and Shri A.N. Mulla, learned AGA for the Opposite party.

2. Accused-appellant no.2 had died and the appeal qua the accused-appellant no.2 was abated by order dated 23.11.2020. Thus, this appeal is being pressed only on behalf of the surviving appellant i.e., accused-appellant no.1.

Facts:-

3. Briefly stated facts of the present case are that with respect to an incident at about 4 p.m. on 11.03.1982 (Holi festival day), a first information report being Case Crime No.91 of 1982 under section 302/34 IPC, P.S. Bewar, Sub-District Bhogaon, District Mainpuri was lodged at about 4.45 p.m. on the same day by the informant Amar Singh son of Nanaku, resident of Khake Tal, P.S. Bewar, Mainpuri against the accused Gyani son of Bhajanlal Kahar and Aasha Ram son of Umrai Dhobi, both residents of Khake Tal. As per F.I.R. version, while the informant Amar Singh, his brother Lallu-deceased, PW3 Ram Bharosey son of Chheda, Rameswar son of Ramdayal, Ramkishan son of Lalta Prasad, Ved Prakash Mistri and Dwarka son of Angad, were celebrating Holi in front of the house of the aforesaid Ram Bharosey, the accused persons Aasha Ram and Gyani, having enmity on account of an abadi land, started abusing which was opposed by the deceased Lallu, and thereupon the accused Asha Ram exhorted the accused Gyani to kill Lallu. Thereupon the accused persons Gyani and Aasha Ram took out their country made pistol/ tamancha, and fired at Lallu, and consequently Lallu fell on the north side of the house of Ram Bharosey beneath a mango tree and died. Autopsy was conducted on 12.03.1982 and following ante-mortem injuries were found on the body of the deceased Lallu:

"1. Multiple oval gun-shot wounds in an area of 10 cm. X 4 cm. on the front and left side of whole forehead, each size .3 cm. X 3 cm. X craniel cavity deep.

2. Multiple oval gun-shot wounds in an area of 7 cm X 5 cm. on the left side of face involving upper half of left side of cheek, around left eye and left side of nose, each size has .5 on. X .5 om. X craniel cavity deep.

3. Multiple oval gun-shot wounds in an area of 10 cm. X 6 cm. on the back and outer side of middle of left forearm, each size .5 cm. X .5 cm. X bone.

There was no blackening charring or tattooing around any of the wounds. The margins of all the wounds were averted and they were the wounds of entrance.

4. On internal examination of the deceased Lallu, the left frontal bone was found fractured and the brain and its membrane were found lacerated and contained clotted blood. Fracture of anterior craniel fossa was also found. There was about 500 c.c. of semi digested food found in the stomach. Twenty four pellets were recovered from the body, which were sealed and sent to the Superintendent of Police as also the deceased's clothes namely 'baniyan', a 'taulia' and an underwear. The cause of death was shock and haemorrhage and brain injury as a result of the ante-mortem injuries. PW-5 Dr. S.C. Agrawal has proved the post-mortem report Ex Ka 4 which he had prepared.

5. P.W.6 is Sri Ranveer Singh Solanki S.H.O. G.R.P. Allahabad, who was S.O. Police Station Bewar at the time of the occurrence. The chik report Ext. Ka- 2 was written in his presence and bears his signatures. He has deposed that after examining the informant and the clerk constable, he started from the P.S. at 5.45 P.M. and arrived at the spot at 6 P.M. He prepared the 'panchayatnama', the photo lash, challan lash and letters to the R.I. and C.M.O. These papers are Exts. Ka-5 to Ka-9. He also prepared the sample seal, material Ext. IV. The siteplan prepared by him is Ext. Ka- 10. He collected blood-stained and ordinary earth, material Exts. V and VI. The 'fard' prepared by him for this is Ext. Ka-11. He searched the house of the two accused but could not find any incriminating material; the memos prepared by him in that respect are Exts. Ka-12 and Ka-13. The charge-sheets which he submitted are Exts. Ka-14 and Ka-15. He stated that he sent articles for examination to Chemical Examiner on 03.04.82.

6. Prosecution has produced six witnesses, namely PW-1 informant Amar Singh (eyewitness), PW-2 Ved Prakash (eyewitness), PW-3 Ram Bharosey (eyewitness), PW-4 Prem Chandra Dubey, inscriber of the FIR, PW-5 Dr. S C Agarwal who conducted post-mortem and PW-6 Ranveer Singh Solanki investigating officer. Accused had merely made a statement under Section 161 Cr.P.C. They had not made any oral or documentary evidence. The prosecution has led two other documentary evidences, namely copy of 'akar patra 2k' of village Bajhera and copy of the order dated 21.10.1969 of Consolidation Officer Kishni, Passed in Case No.6154/258 (Laltu v. Ram Bharosey) under Section 9A of the Consolidation of Holdings Act. The trial court considered the evidences and passed the judgment and order dated 21.02.1983 in Session Trial No. 282 of 1982 (State v. Asharam and Gyani) under Section 302, 34 IPC, P.S. Bewar, District, Manpuri. Both the accused persons, Asharam and Gyani, were convicted under Section 302/34 IPC and each of them were sentenced to imprisonment for life and a fine of Rs.2000/- and in default of payment of fine to undergo further RI for one year.

7. Aggrieved with the aforesaid impugned judgment and order dated 21.02.1983 in Session Trial No. 282 of 1982 (State v. Asharam and Gyani), passed by the Court of Special Judge (under E.C. Act) and Additional Sessions Judge, Manpuri, the accused appellants have filed the present appeal. Since the accused appellant No. 2, Gyani, had died. Therefore, the appeal was abated qua the appellant No.2 by order dated 23.11.2020. Thus, the present appeal now survives only with respect to the accused appellant - Aasha Ram.

Submissions on behalf of surviving accused appellant No.1:-

8. Shri Mukhtar Alam, learned counsel for the accused-appellant no.1 has carried us to the evidences of all the prosecution witnesses, the inquest report, the post mortem report, defence statement under Section 313 Cr.P.C. and the site plan and submitted as under:

(i) F.I.R. alleged to have been lodged at 4:45 P.M. on 11.03.1982 is ante time.

(ii) P.W.-1, P.W.-2 and P.W.-3 were neither present at the place of incident nor have seen the incident. In fact, they have falsely implicated the accused-appellant no.1, as is evident from their own evidences. The false implication has been made by the P.W.-1 on account of enmity with the accused-appellant no.1.

(iii) Neither the distance from the place from where the accused allegedly fired at the deceased is known nor it has been shown in the site plan nor specifically stated by the P.W.-1, P.W.-2 and P.W.-3 in their evidences, therefore, it is absolutely clear that the deceased-Lallu was killed or died at some other place in some other incident, but to falsely implicate the accused-appellant no.1, a false case has been set up by the prosecution.

(iv) As per prosecution case, the deceased was fired from country-made pistol from the front whereas, as per post mortem report, the injuries are oval in shape, which cannot be caused by a fire arm fired from the front. The injuries are on the left side of the face. Therefore, the entire case set up by the prosecution, for committing murder of the deceased-Lallu by the accused-appellant no.1 by gun shot injury caused from the front, is not supported by scientific evidence.

(v) Although, 24 pellets were recovered by the doctor, who conducted the post mortem but these pellets were not sent for forensic examination. The I/O has also failed to recover the alleged country-made pistol from which the deceased-Lallu received gun shot injury resulting in his death.

(vi) Evidence of prosecution witnesses is full of contradictions, particularly, the time of incident, the place where the deceased received gun shot injury and the distance from where he was allegedly fired by the accused-appellant by country-made pistol.

(vii) The police has not sent special report to the concerned Magistrate immediately in terms of Regulation 101 of the U.P. Police Regulations. Therefore, not sending the special report immediately support the case of the defence that the F.I.R. is ante time.

(viii) The entire prosecution case is based on falsehood and the accused-appellant no.1 has been falsely implicated. Therefore, the conviction of the accused-appellant no.1 under the impugned judgement and order passed by the Sessions Court deserves to be set aside and the accused-appellant no.1 deserves to be acquitted.

Submissions on behalf of the opposite party/ State:-

9. Shri A.N. Mulla, learned AGA has also carried us to the evidences of prosecution witnesses, the inquest report, the post mortem report and the site plan and submitted as under:

(i) There is no glaring contradiction in the evidences of prosecution witnesses more particularly in the evidences of the eye witnesses i.e., P.W.-1, P.W.-2 and P.W.-3. Neither any suggestion was made by the defence nor any question was put during cross examination of eye witnesses regarding the point and the distance from where the accused-appellant no.1 fired on the deceased-Lallu by country-made pistol. The evidences of eye witnesses to the effect that the accused-appellant no.1 caused gun shot injury to the deceased-Lallu is totally consistent and is also corroborated with the evidence of P.W.-5 i.e., the doctor, who conducted the post mortem. When the evidences of eye witnesses are viewed in totality, it leaves no manner of doubt that the accused-appellant no.1 has caused gun shot injury to the deceased-Lallu at about 4 P.M. on 11.03.1982 at the place mentioned in the F.I.R., which resulted in the death of the deceased-Lallu. If either there are some minor contradictions or if there are some lapses on the part of the police or the I/O, it cannot adversely affect the prosecution case or the evidence of prosecution witnesses.

(ii) P.W.-3 (Ram Bharosey) is an eye witness. His evidence cannot be doubted by any stretch of imagination inasmuch as he is the person in front of whose house the incident took place. Therefore, neither his presence can be doubted nor his consistent evidence can be disbelieved. His evidence is also corroborated by other prosecution witnesses and scientific evidences and the post mortem report.

(iii) Copy of bail application filed by the defence during trial cannot be considered, as it is not admissible in evidence, even if it was taken on record by the learned Trial Court. That apart, bald allegations made by the accused-appellant no.1 in his aforesaid bail application allegedly said to be the written statement, is neither supported by any documentary evidences nor any such documentary evidences to support the contents of said application were even filed by the accused-appellant no.1 during trial, which fact has also been noted by the learned Sessions Court in paragraph no.7 of the impugned judgement.

(iv) P.W.-5 (the doctor, who conducted the post mortem) nowhere stated specifically that the injuries received by the deceased-Lallu was one shot injury.

(v) The eye witnesses have given their evidences that the accused-appellant no.1 fired on the deceased, which caused injury to the deceased on left side of the forehead and face. Even, if the eye witness has stated that it was fired from the front, it does not render the evidence to be incorrect inasmuch as the fire was made from the front not at 90 degree angle but at a different angle, which resulted in the death of the deceased.

(vi) Entry wound of injury no.1 and injury no.2, as per post mortem report; itself establishes that two fires were made from different arms, inasmuch as the sizes of entry wound of injury no.1 and injury no.2 are different.

(vii) The defence in cross examination only asked questions regarding the distance between the witnesses and the accused-appellant. No specific question was put by the defence regarding distance between the place from where accused fired and the place where the deceased received injuries, resulting in his death.

(viii) The case set up by the defence showing enmity was compromised and, as such, there is no question of enmity between P.W.-1 and the accused-appellant no.1, which fact is evident from the findings recorded in paragraph nos.13 to 15 of the impugned judgement passed by the Sessions Court.

(ix) The evidences of eye witnesses and other evidences on record clearly prove commission of offence by the accused-appellant no.1 under Section 302/34 I.P.C. for murdering the deceased-Lallu. There is no mandatory requirement of ballistic expert report. Even if there is no ballistic expert report, but the commission of offence by the accused-appellant no.1 is proved by evidences, it shall not adversely affect the case of the prosecution.

(x) As per post mortem report, semi-digested food was found in the stomach of the deceased-Lallu. Therefore, the submission of learned counsel for the accused-appellant no.1 that merely 500cc liquid food was found and the deceased-Lallu had not eaten 'Papad' some time before the incident, is rendered incorrect inasmuch as the post mortem report records that the semi-digested food was found in the stomach of the deceased.

(xi) In support of his submissions, has relied upon the following judgements:

(a) 2016 (2) SCC 607 State of Rajasthan vs. Daud Khan for the proposition that the purpose of forthwith communication of the coy of F.I.R. to the Magistrate is to check the possibility of manipulation. Therefore, delay in transmitting the special report to the Magistrate, if no question is put to the Investigating Officer concerning the delay, the prosecution is under no obligation to give an explanation.

(b) Criminal Appeal No.982 of 2011 (Ombir Singh vs. State of U.P. and Another) passed on 26.05.2020 for the proposition that delay in compliance of Section 157 Cr.P.C. i.e., special report cannot itself be a good ground to acquit the appellant.

Discussion and Findings:-

10. We have carefully considered the submissions of the learned counsels for the parties and perused the record of the appeal and the impugned judgment of the Session Court.

11. Admittedly the incident took place at 04:00 P.M. on 11.03.1982 in front of the house of Ram Bharosey (PW-3), near his chabootara. The first information report being Case Crime No.91/1982 under Section 302/34 I.P.C. was lodged in Police Station Bevar, District Manpuri on 11.03.1982 at 04:45 P.M., informing murder of deceased - Lallu who was the real brother of the informant - Amar Singh - PW-1. Thus, the FIR lodged by the informant PW-1 was prompt. The Investigating Officer proceeded to the place of occurrence Village Khake Tal and collected blood and stained plain earth from the spot (Ext. ka-11). He searched the house of the accused Aasha Ram on 11.03.1982 (Ext. ka-12) but nothing could be recovered. He also searched the house of the accused Gyani son of Bhajan Lal resident of Village Khake Tal on 11.03.1982 (Ext. ka-13) but nothing could be recovered. The body of the deceased was sent for post-mortem on 11.03.1982 at 07:00 P.M. The samples of blood stained plain earth and cloths of the deceased were sent for chemical examination and as per report of Assistant Chemical Examiner's report addressed to the Chief Judicial Magistrate, Mainpuri, on item Nos.2 to 4 human blood was found, on item No.1 blood stains were found disintegrated, on item Nos.3 and 4 the blood of O-group was found and on item No.2 the blood stains were unfit for classification. Inquest report (Ext. ka-5) was prepared on the same day, i.e. 11.03.1982. Panchnama was also prepared on the same day. Autopsy was conducted on the next day on 12.03.1982 at 03:00 P.M. in which the injuries as mentioned in paragraph-3 of this judgment were found on the body of the deceased. The cause of death was mentioned in the post-mortem report to be shock and haemorrhage and brain injuries as a result of ante-mortem injuries. Chargesheets were filed against the accused persons (Ext. ka-14 and Ext. ka-15). The recovery memos, the inquest report and the post-mortem report etc. as aforementioned, have been proved by prosecution witnesses.

12. There is nothing on record to show that the first information report lodged at 04:45 P.M. on 11.03.1982 ante-time. Therefore, the first submission of learned counsel for the appellant that the FIR is ante-time is rejected.

13. As per FIR version, the accused Aasha Ram and the accused Gyani have fired from country-made pistol at Lallu near the Chabootara of Ram Bharosey and the deceased Lallu fell and died beneath the mango tree. As per post-mortem report, 24 pellets were recovered form the body of the deceased Lallu which was sealed and sent to Superintendent of Police, Mainpuri. This post-mortem report has been proved by PW-5 (Dr. S.C. Agrawal) who conducted the post-mortem. He proved the gunshot wounds on the left side of the forehead of the deceased measuring 10 c.m. x 4 c.m. x 4 c.m., gunshot wounds measuring 7 c.m. x 5 c.m. on upper-left side of the face, gunshot wounds surrounding the left eye and nose measuring .5 c.m. x .5 c.m. cravial cavity deep and wounds inverted having signs of entry of pellets. He also proved oval gun-shot wounds in an area "10 c.m. x 6 c.m." He also opined the approximate time of death to be at about 04:00 P.M. on 11.03.1982. The PW-1 informant who is real brother of the deceased, has clearly stated in his evidence that on the date, time and place of occurrence, the accused persons came and started abusing. They were standing on the west side of the chabootara. He stated that when the deceased Lallu objected, the accused Aasha Ram exhorted Gyani to kill and thereupon both the accused took out their country-made pistol and fired at the deceased Lallu, who fell and died near the mango tree. The defence has extensively cross-examined the PW-1 but could not extract any contradictory statement. In paragraphs-20, 25, 26, 27 and 29 of the cross-examination, the P.W.-1 has clearly stated his presence at the place of occurrence since 02:00 P.M., taking out of country-made pistols by the accused persons and firing by them at the deceased Lallu causing gunshot injury. He also described the approximate distance. There is no material inconsistency in his statement-in-chief or cross-examination and the site plan. The PW-2 is also an eyewitness who also clearly stated causing of gunshot injury by the accused persons to the deceased Lallu on the date, time and place of occurrence. He also stated in his cross-examination that accused persons were standing little side in front of the deceased Lallu. There is no inconsistency or material contradiction between the evidence of PW-1, PW-2 and the site plan.

14. The PW-3, Ram Bharosey is also an eyewitness. His evidence assumes more importance inasmuch as the incident occurred few steps away from his house and the Chabootara on which the PW-1, PW-2 and PW-3 and others were sitting and which was in front of his house and the place of occurrence, causing gunshot injuries and resultantly the death of the deceased Lallu, few steps from the aforesaid Chabootara/house. Therefore, the presence of the PW-3 cannot be doubted rather he is an important and natural witness. The PW-3 has also clearly stated in his evidence that when the accused persons Aasha Ram and Gyani came to the north side of his Chabootara and started abusing in his presence and presence of other persons, namely Dwarka, Rameshwar, Ramkishan, Ved Prakash, Amar Singh, Ram Bharosey and when Lall went and told the accused persons not to abuse, then the accused Aasha Ram exhorted Gyani to kill and there upon the accused Aasha Ram and accused Gyani both fired at Lallu from their country made pistols and Lallu after receiving gunshot injury caused by the accused persons, fell near the mango tree and died. The PW-3 was extensively cross-examined by the defence but nothing could be brought out which may give rise even to slightest belief to disbelieve the evidence of PW-3. The evidence of PW-3 is consistent with the evidence of PW-1, PW-2 and site plan. There is no material inconsistency as per medical evidence. Firearm wounds were found on the body of the deceased Lallu and 24 pellets were recovered from his body during post-mortem.

15. The post-mortem report has been proved by the PW-5, i.e. the doctor who conducted the post-mortem. He also proved the date and time of death of the deceased Lallu. There is no inconsistency in the evidence of PW-5 and the post-mortem report.

16. The PW-6 Ranveer Singh Solanki is the investigating officer who proved the panchnama, inquest report, the site plan and the recovery memos/ collection of blood samples etc. As per chemical examiner's report, human blood was found on the samples collected from the place of occurrence as well as on the cloths of the deceased Lallu.

17. In their statement under section 313 Cr.P.C., the accused Aasha Ram stated while answering question No.10 that on account of ranjish and village partibandi, they have been falsely implicated. Learned counsel for the appellants has heavily relied upon the bail application dated 02.01.1983 which is part of the paper book and has been perused by us. We find that there is nothing in the bail application of the accused Aasha Ram which may falsify the consistent ocular evidence of three eyewitnesses, the medical evidence of PW-5, the post-mortem report and chemical examiner's report etc.

18. Thus, there can be no doubt that occurrence took place to the north of the house of Ram Bharosey on the common pathway near the mango tree where the body of the deceased was found with gunshot wounds which was caused by country made pistol by the accused persons Aasha Ram and Gyani. It is proved from evidences and circumstances that the deceased was murdered at about 04:00 P.M. near the house of Ram Bharosey. The evidences led by the prosecution against the accused persons are reliable and natural. The prosecution has successfully proved the guilt of the accused persons - Aasha Ram and Gyani beyond reasonable doubt. Hence the impugned judgment and order dated 21.02.1983 passed in Session Trial No.282 of 1982 (State vs. Aasha Ram and Gyani), neither suffers from any infirmity nor the findings recorded by the learned trial court suffer from any perversity. The accused persons Aasha Ram and Gyani having been found guilty of committing offence under Section 302/34 I.P.C. have been correctly, justly and lawfully convicted under the impugned judgment and order passed by the Session Judge, Manpuri in the aforesaid Session Trial No.282 of 1982.

19. For all the reasons aforestated, we do not find any merit in this appeal. Consequently, the appeal is dismissed. Accused Appellant No.2 has already died and the appeal was abated on 23.11.2020. Therefore, if the accused Appellant No.1 Aasha Ram is on bail, then his bail bond is cancelled and he is directed to surrender forthwith before the C.J.M. concerned and to complete the sentence awarded to him under the impugned judgment and order dated 21.02.1983 in Session Trial No.282 of 1982. In the event, the Appellant No.1 does not surrender forthwith for undergoing the remaining sentence, then all necessary steps shall be taken for his arrest by all concerned.