Ajay Pal @ Mintoo and Another vs State of Uttaranchal

Rajesh Tandon, J.—Present appeal has been filed by accused Ajaypal @ Mintoo and Khempal against the judgment and order dated 17th June, 1996 passed by the Sessions Judge, Nainital in Sessions Trial No. 122 of 1995 convicting the accused-appellants under Sections 302 read with Section 34 I.P.C. and Section 394 read with Section 34 I.P.C. and sentencing them to imprisonment for life.

Briefly stated the prosecution story as came out from the first information report and the statement of P.W. 1 is that deceased Prem Prakash Agarwal was running a flour mill at Kunda Chauraha, PS. Kashipur. On 5.10.1994 at 4 P.M. he instructed his son Sunil Kumar (P.W.1) on telephone to bring Rs. 10,000/- to his shop. Sunil Kumar reached Kunda Chauraha at about 5 PM. and handed over the cash to his father at the Mill. Prem Prakash Agarwal kept the money in his trouser''s pocket Thereafter, Prem Prakash proceeded to answer the call of nature asking his son Sunil Kumar to stay over there as on coming back. Prem Prakash had also to accompany Sunil Kumar to Kashipur. Prem Prakash went towards the grove with water in a bottle. In the meantime witnesses Vijay Kumar (P.W.2) and Arvind Kumar (P.W.3) also came over there. On inquiry Sunil Kumar told them that he was waiting for his father, as they had to go to Kashipur. The bus was likely to arrive shortly and they expected Sri Prem Prakash Agarwal to come back from the nature''s call but when he did not come back they all proceeded towards the grove where they saw accused Ajaypal alias Mintoo and Khempal having surrounded Prem Prakash. Accused Ajaypal gave him a blow of Danda on the head of Prem Prakash due to which he fell down. Thereafter, accused Khempal inflicted incised wound by knife on the throat of Prem Prakash. When the witnesses approached the place of incident both the accused-persons had fled away. Prem Prakash was brought to the flour mill but he died on the way. The money, which Prem Prakash had kept in his pocket, was also missing.

Sunil Kumar (P.W.1) submitted a written report (Ex. Ka-1) regarding this incident at the Police Station, Kashipur on 5.10.1994, on the basis of which chick F.I.R. (Ex.ka-7) was prepared at 7.10 P.M. A case was registered on the General Diary, copy of which is Ex. Ka-8 on record.

The investigation of the case was entrusted to S.I. Shyam Nath Pandey (P.W.6). He recorded the statements of witnesses and on 6.10.1994, he prepared the inquest report (Ex. Ka-4). He inspected the place of occurrence and took into custody the plain earth, blood stained earth, Danda, water bottle etc. He sent the dead body of the deceased for post-mortem examination. He arrested the accused-persons and interrogated them. The investigating officer made recovery of the weapon used in the crime and blood stained clothes of the accused-persons on the pointing out of the accused. The amount looted by the accused had also been recovered by the police. The recovered articles were sent for chemical examination. The report of the Chemical examination is (Ex.ka-18). After completing the investigation, the police submitted charge-sheet Ex. Ka-15 against the accused persons.

Charges under Sections 394 read with 34 I.RC. and 302 read with 34 I.P.C. were framed against the accused-persons by the Sessions Judge but they pleaded not guilty and claimed to be tried.

To prove its case, the prosecution has examined informant Sunil Kumar as P.W. 1, Vijay Kumar as PW. 2, Arvind Kumar as P.W. 3, Harbir Singh as P.W. 4, Balbir Singh as P.W. 5, S.I. Shyam Nath Pande as PW.6, Dr. PK. Dixit as PW.7, Constable Beer Singh as P.W. 8 and Head Constable Prempal Singh as PW.9.

Dr. PK. Dixit PW.7 has conducted post-mortem examination on the dead body of deceased Prem Prakash Agarwal on 6.10.1994 at 10.30 A.M. and found the following ante-mortem injuries:

(1) Lacerated wound 6 cm. x 1 cm. x bone deep on the left side of scalp, 10 cm. above the left ear, transverse in direction.

(2) Lacerated wound 5 cm. x 1 cm. x bone deep on the right side of scalp, 6 cm. above right ear.

(3) Lacerated wound 8 cm. x 2 cm. x bone deep and bone fractured under the wound on the middle of scalp, 10 cm. above the bridge of nose, (4) Incised wound 6 cm. x 2 cm. x 4 cm. deep on the front of neck, tranchia, oesophagus, right carotid artery and other structures under the wound were cut.

In the opinion of the doctor the death was caused due to shock and haemorrhage as a result of the ante mortem injuries. P.W. 7 Dr. P.K. Dixit proved the post mortem report as Ex. Ka-16.

P.W. l Sunil Kumar is the informant and eye-witness. He proved the written report Ex.Ka-1. He narrated the entire prosecution story in his statement. He has also stated that both the accused-persons are known to him from before the incident. Accused Ajaypal was running a tea stall near his flour mill and accused Khempal used to come to his flour mill for grinding wheat. His father called him to bring ten thousand rupees from home at about 4.00 PM on 5.10.1994. He reached near Kunda Chauraha and handed over two packets of currency notes of Rs. 50/- each. His father kept these notes in his pocket. His father told him that now the work of purchase of grain had over and he would also return to home by bus. His father told him to wait for the bus and till then he would come from nature''s call. His father went inside the grove with a bottle of water for nature''s call. At that time witnesses Vijay Kumar and Arvind also came there who were also intent to go to Kashipur by bus. As the stoppage of the bus was near the grove they all proceeded to the bus stop. They heard hue and cry from the side of grove and they all proceeded towards the grove. They saw that Ajay Kumar alias Mintu gave a blow of Danda on the head of his father due to which he fell down. Thereafter, accused Khempal chopped the neck of his father by a knife. They tried to apprehend the accused-persons but both of them fled away from the scene of occurrence. Sunil Kumar with the help of witnesses brought his father Prem Prakash to his flour mill but by the time he succumbed to the injuries. He found that the money which he gave to his father was missing from his pocket. P.W. 1 Sunil Kumar has further stated that he scribed report of the incident Ex. Ka-1 at his flour mill. This witness also recognized the accused-persons in the Court. He has stated that accused Ajaypal was having tea stall near his flour mill and accused Khempal used to come to his flour mill for grinding wheat.

Witnesses Vijay Kumar (P.W. 2) and Arvind Kumar (PW.3) are also witnesses of fact. They were with the informant at the time of occurrence. They fully supported the statement made by the informant P.W. l.

PW.4 Harbir Singh has stated that Police has taken blood stained Baan of cot in his presence and prepared Fard Ex.Ka-1. He proved Baan as Ex. 1 and its Fard as Ex. Ka-2. He also stated that Police also took hair from the fist of deceased in his presence. He proved his signatures on its Fard Ex.Ka-3. This witness also proved Panchayatnama Ex.Ka-4. He has stated that Investigating Officer also took in his possession a pair of chapels, water bottle, blood stained Danda, blood stained earth. This witness has proved material Exhibit-Ill to VII and Fard Ex.Ka-5.

P.W. 5 is the witness of discovery u/s 27 of the Evidence Act. He has stated that the accused-persons told before him that they had concealed blood stained clothes, knife and currency notes underground in a field. On the pointing out of accused-persons two bundles of currency notes if Rs. 50/- and 20 notes of Rs. 100/- were recovered from the cane field of Dr. Malhotra. He proved material Exhibit-VII to XIII. He also proved his signature on Fard Ex.Ka-6.

S.I. Shyam Nath Pande P.W. 6 has investigated the case. He narrated details regarding investigation in his statement and also stated about recovery of articles and weapon u/s 27 of the Evidence Act. He proved Chick F.I.R. Ex. Ka-7 and Copy of G.D. Ex. Ka-8. He has stated that he took into custody the Baan of the cot on which the deceased was lying and prepared hard Ex. Ka-2, he also took hair of the accused from the fist of the deceased and prepared Fard Ex.Ka-3. He has stated that he collected a pair of chappal, a bottle of water blood stained and plain earth and a Danda from the place of occurrence. He has stated that he arrested the accused-persons and interrogated them. On interrogation they confessed their guilt and stated that they had concealed the blood stained cloths, knife and money looted in the field of Dr. Mahendra Malhotra. All these articles were recovered on the pointing out of the accused-persons in presence of public witnesses P.W. 4 Harbir Singh and P.W.5 Balbir Singh. This witness has stated that on 7.10.1994 the investigation was transferred to SHO Ram Singh, who completed the rest of investigation and submitted charge-sheet against the accused-persons. He proved Charge Sheet Ex.Ka-15.

P.W. 7 Dr. P.K. Dixit has conducted post-mortem examination on 6.10.1994 on the dead body of Prem Prakash Agarwal. He proved postmortem report Ex.Ka-16.

P.W. 8 Constable Beer Singh. He took the dead body to mortuary for postmortem examination. He is a formal witness.

P.W. 9 Head Constable Prem Pal Singh has stated that in October 1994, he was posted at Police Outpost, Kunda. He has stated that accused were arrested in his presence. He proved G.D. entry dated 6.10.1994 and stated that he submitted the recovered articles for chemical examination to Forensic Laboratory, Agra. He is also a formal witness.

Accused-persons in their statements u/s 313 Code of Criminal Procedure. has denied the prosecution allegations. Accused Ajay-pal @ Mintoo has stated that he had been falsely implicated in the case by Sunil as he wanted to grasp his shop and during his detention in jail, he gave some money to his brother and took possession over the shop of accused. Accused-persons have not adduced any evidence in defence.

On the careful consideration of the evidence on record the learned Sessions judge held the accused-persons guilty for the offences punishable under Sections 302 read with Section 34 and Section 394 read with Section 34 I.P.C. and sentenced them to undergo imprisonment for life. Feeling aggrieved the present appeal has been filed by the accused-persons.

We have heard Sri Arvind Vashist, learned Amicus Curiae for the accused and Sri G.S. Sandhu, Government Advocate and have gone through the record of the case.''

The conviction rests on the ocular evidence of Sunil Kumar P.W.l, Vijay Kumar P.W. 2 and Arvind Kumar P.W. 3. We have, in the light of the submissions made by the learned Amicus Curiae, carefully examined the testimony of eye witnesses. P.W. 1 Sunil Kumar is the son of deceased and P.W. 2 Vijay Kumar and P.W. 3 Arvind Kumar are the friends of P.W. 1 Sunil Kumar, therefore, the testimony of these witnesses need to be subjected to careful scrutiny.

P.W. 1 Sunil Kumar has given detailed statement regarding the occurrence. He told that accused Mintoo gave a blow of Danda on the head of deceased due to which he fell down and thereafter accused Khempal chopped the neck of his father by a knife. He was cross-examined at length but nothing has come out to disbelieve his statement.

P.W. 2 Vijay Kumar and P.W. 3 Arvind Kumar have also fully supported the statement of P.W. 1 Sunil Kumar and there is no contradiction in their statements regarding the manner of incident.

The learned Amicus Curiae has pointed out some minor variations regarding distance of place of occurrence from the flour mill and distance of the place where the accused committed murder from the place from where the witnesses saw the occurrence. We find that the witnesses have expressed the distance in steps and cubit and thus contradictions are bound to arise in the statements of witnesses but we find none of them is material.

When an incident is narrated by the same person to different persons on different occasions some difference in the mode of narrating the incident is bound to arise. However, such differences do not militate against the trustworthiness of the narration unless the variations and be held to be so abnormal or unnatural as would not occur if the witness would have really witnessed what it was narrating.

The Apex Court in the case Narayan Chetanram Chaudhary v. State of M.P. 2001 (42) ACC 229 (SC). has held as under:

"Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of P.W. 2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness.

The testimony of eye-witnesses also finds corroboration from the promptly lodged FIR. The informant Sunil Kumar (P.W.1) have narrated the entire incident in his written report Ex.Ka-1 and no variation has been found in his ocular testimony made before the Sessions Judge.

The Learned Counsel for the accused has pointed out that the statements of eye-witnesses find no support from the medical evidence. All the three eyewitnesses have stated that the accused gave only one blow of Danda on the head of deceased while as per postmortem report Ex. Ka-16 there were three lacerated wounds on the scalp of the deceased. All the eyewitnesses have consistently stated that they saw the accused Mintu giving one Danda blow on the head of the deceased and deceased fell down. The witnesses had reached the place of occurrence much after when the accused had surrounded the deceased and in the process of looting the deceased there was struggle between them. However, the eye-witnesses could have seen the last movement of the occurrence when accused Mintu gave Danda blow on the head of deceased and accused Khempal chopped his neck. FW.2 Vijay Kumar in his cross-examination has given explanation of the other wounds found in the post-mortem examination on the dead body of deceased Prem Prakash. He stated as under:

Thus, from the above statement of P.W. 2 Vijay Kumar it is clear that witnesses could have seen the accused inflicting only one Danda blow on the head of deceased, after receiving which the deceased had fell down but it was quite probable that earlier they had inflicted other Danda blows on the head of the deceased and there was struggle in between them.

Another incriminating evidence collected by the prosecution is that some hair were found in the fist of deceased. On clinical examination the hair were found resembling with the hair of the head of accused Ajaypal.

So far as the motive of the accused to commit crime is concerned, from the evidence of the prosecution it is clear that the motive behind the murder of Prem Prakash was robbery.

The Apex Court in State of Karnataka v. Main Patel 1995 (Suppl.) ACC 607 (SC). has held as under:

The High Court also doubted the prosecution case for its failure to satisfactorily prove the motive ascribed for the murders. Even if we proceed on the assumption that the finding of the High Court in this regard is correct still then it would not affect the prosecution case in any manner, the law is well settled that if the prosecution case regarding the commission of the offence itself can be safely relied upon, the question of motive pales into insignificance.

Further in the case Arvind Prakash Vs. State of U.P., the Apex Court has held that where the eye-witnesses to the incident supporting the prosecution case in a consistent manner, the question of motive, loses importance.

In the case Miller v. Minister of Pension, All England Law Reports 1947(2) 373. Lord Denning has observed as under:

The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "Of course it is possible, but not in the least probable," the case is proved beyond reasonable doubt, but nothing short of that will suffice.

In the present case, three witnesses have categorically deposed that they had seen the accused-persons committing the murder of deceased Prem Prakash and the money which the deceased was having with him at the time of occurrence was found missing and later on the same was recovered on the pointing out of the accused-persons from the cane field of Dr. Malhotra and as such the present case being of direct evidence, motive has become insignificant.

So far as the discovery u/s 27 of the Evidence Act is concerned, the same was made on the joint statement by the accused-persons before the police in the form of confessional statement, which is not admissible in evidence to connect the accused-persons with the crime. However, from the statement of P.W. 6 Section 1. Shyam Nath Pande and P.W. 5 Balbir Singh it has been established that recovery of blood stained knife, currency notes and blood stained clothes were made from the cane field of Dr. Malhotra.

The learned Amicus Curiae has stated that P.W. 2 Vijay Kumar and P.W. 3 Arvind Kumar are the chance witnesses and no reliance can be placed on their testimony. Both these witnesses have stated that they used to come to Painth (weekly market) at Kunda for purchasing vegetables. When they were returning to Kashipur they saw P.W. 1 Sunil Kumar standing in front of his flour mill and on inquiry he told that he would also come to Kashipur by bus with his father who had gone towards the grove for nature''s call. Thus, the presence of the witnesses at the place of occurrence is not unnatural or doubtful in any way.

The learned Amicus Curiae has also submitted that there is difference in the amount which P.W. 1 Sunil Kumar alleged to have given to his father and the amount recovered from the field of Dr. Malhotra. P.W. 1 Sunil Kumar has stated that he had given two packets of currency notes of Rs. 50/- amounting a total sum of Rs. 10,000/- to his father. Besides this Rs. 2,000/- which were in the shape of 20 currency notes of Rs. 100/- each were also recovered, which were already with deceased Prem Prakash from before. Thus, there is no adverse effect on the prosecution case by the recovery of more amount as P.W. 1 Sunil Kumar has nowhere stated that there were only Rupees ten thousand with deceased Prem Prakash.

The learned Amicus Curiae has also submitted that no opportunity was given to the accused-person to adduce defence evidence. This argument of the learned Defence Counsel has no force. The learned Sessions Judge in the statement of accused u/s 313 Code of Criminal Procedure. had asked question No. 31 to accused Ajaypal @ Mintu that as to whether he would adduce any defence and he answered in negative. Similar question was asked to accused Khempal, who stated that he would adduce evidence in defence. The statements of accused-persons u/s 313 Cr.RC. were recorded on 25.1.1996. Later on accused Khempal has further given statement on 3.2.1996 that the would not want to adduce any evidence in defence. Thus, it cannot be said that the Trial Court has not afforded opportunity to the accused to adduce evidence in defence.

The statements of all three eyewitnesses find support from the medical evidence. The learned Sessions Judge has carefully scrutinized the evidence of the witnesses and found it worthy of reliance. The learned Sessions Judge has held that the prosecution has proved the guilt of the accused by overwhelming evidence. Thus, the conviction of the Appellant is well founded and cannot be interfered with.

So far as the sentence is concerned, the learned Sessions Judge awarded a sentence of imprisonment of life, which is minimum sentence prescribed u/s 302 I.P.C. In our opinion the sentence awarded to the accused-persons is appropriate.

The Apex Court in the case State of Karnataka v. Puttaraja, 2004 (13) AIC 767 (SC), has held as under

The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong.

For the above said reasons, the appeal lacks merit and is liable to be dismissed.

The appeal is dismissed accordingly. The conviction of the accused-appellants and the sentence passed thereon as recorded by the Trial Court is upheld.

Let a copy of the judgment along with Trial Court''s record be sent to the Sessions Judge concerned forthwith.