Amresh Singh and another vs State of U.P.

A.K. Roopanwal,J.

This Criminal Appeal has been filed by the appellants challenging the validity and correctness of the judgment and order dated 30.11.1999 passed by the Sessions Judge,Mau in S.T. No. 93 of 1998 convicting and sentencing the appellants under Section 302 read with Section 34 IPC to imprisonment for life.

The facts as culled out from the record are that there was a dispute between Udayee Singh, deceased, the grand father of the first informant Sri Vinit Kumar, P.W.1 and accused appellants, who are the nephews of the deceased, over landed property for a long time. The occurrence took place on 17.2.1998. It is stated that at about 6.30 A.M. accused Amresh Singh was prevented by deceased Udayee Singh from passing over the Khoiya spread infront of his house. On this Amresh Singh hurled abuses to Udayee Singh and the mother of the informant. When they protested, Amresh Singh went towards his house on the same day at about 7.30 A.M., when Udayee Singh was giving fodder to his cattle, Amresh Singh armed with lathi and axe and his brother Ram Awadh Singh armed with Danda came to his house. They assaulted Udayee Singh, who tried to run away but was caught hold of by the accused appellants. Accused Amresh Singh inflicted blows with "tangi"(a sharp edged weapon) and Ram Awadh used Danda for beating him. Udayee Singh fell on the ground and was again inflicted repeated blows with the Tangi on his face. When mother of the first informant Smt. Kalwati tried to intervene and save Udayee Singh, was also caught hold of by the assailants and beaten with "danda and tangi". Both the victims succumbed to the injuries received in the incident.The first informant, his brother and grand mother were in the mean time, crying for the help but no one came forward.

A written report of the occurrence ( Ex.Ka1) was prepared by Sri Vinit Kumar Singh, P.W.1 and was given at the Police Station Mohammdabad. Sri Rana Pratap Singh Constable Moharrir of P.S. Mohammdabad prepared the chick FIR ( Ex.Ka8) on its basis and registered the same on the same day at 9.30 A.M. Its entry in the G.D. was made at sl. no.12 at 9.30 A.M., which was exhibited as Ex.Ka9. S.I. Sri Balbir Singh prepared the inquest reports of the dead bodies of Udayee Singh and Smt. Kalwati, which are Ex.Ka10 and Ex.Ka11 respectively.

After necessary documentation, the dead bodies were sent for post mortem examination which was conducted by Dr. R.P. Singh, the Medical Officer of District Hospital, Azmagarh on 18.2.1998 at 4.30 P.M.which were exhibited as Ex.Ka6 and Ex.Ka7 respectively.

Sri Kripa Shankar Shukla, P.W.5 investigated the case. He inspected the spot and prepared site plan ( Ex.Ka20) of deceased Smt. Kalawati. He prepared fard ( Ex.Ka3) of the hair. He also prepared Fard Ex.Ka4 and Ka5 in respect of blood stained and simple earth collected from the place of occurrence where the dead bodies were lying. The blood stained axe was recovered on 19.2.98 on the pointing out of accused Amresh Singh of which fard Ex.Ka2 was prepared.Site plan of the place of recovery of axe Ex.Ka21 was prepared and after completing the investigation he submitted chargesheet (Ex.Ka22) against the accused appellants.

The accused appellants were charged under Section 302/34 IPC . They pleaded not guilty and claimed to be tried.

The prosecution in order to prove its case examined five witnesses namely, P.W.1, Sri Vinit Kumar Singh, P.W.2 Shrawan Kumar Singh, P.W.3, Dr. R.P. Singh, P.W.4 Sri Ram Pratap Singh and P.W.5 Sri Kripa Shankar Shukla.

The statements of the accused persons were recorded under Section 313 Cr.P.C. in which they denied the prosecution story. Accused Amresh Singh gave written statement giving the manner in which the occurrence had taken place and had stated that he had been falsely implicated in this case.

The relevant portion of the statement of accused Amresh Singh is as under:

@ Hindi=

The accused appellants did not lead any evidence in their defence.

The Trial Court after hearing the learned counsel for the parties and analyzing the evidence found the case of the prosecution proved beyond all reasonable doubts against the accused appellants for the offence punishable under Section 302/34 IPC and accordingly, recorded the order of conviction and sentence as stated above.

During the pendency of the appeal, accused appellant Amresh Singh died and by order dated 4.2.2008 his appeal was ordered to be abated. Therefore, at present we are only concerned with the appeal of appellant Ram Awadh Singh.

This appeal was listed on 5th October, 2009 and the names of the counsels Sri V.C. Tiwari, Sri A.K. Awasthi, Sri Manish Tiwari and Sri M.K. Srivastava were printed in the cause list for the appellant Ram Awadh Singh. They did not appear even in the revised list and in the interest of justice, the case was passed over for three days. When this appeal was taken up today, no one appeared to press this appeal inspite of the notice of the appeal.

We are conscious of the fact that we are proceeding to decide the appeal in the absence of accused or his legal representative that is why we have thoroughly gone through the entire grounds taken in the appeal,the entire jdugment of the trial Court and have also perused the complete evidence on record . The situation that has compelled us to proceed to decide the appeal that there are more than 21000 criminal appeals pending since 1986 as on date. In this situation only 50 cases are listed for hearing for whole of the week but the Bench is able to decide not more than two criminal appeals finally per day as only about 10 counsels appear in the aforesaid cases on any day and they mostly seek adjournment on the grounds that either they do not have instructions or not able to do the case stating some personal difficulty. In rest of the cases no counsel(s) for the appellant (s) appear at all, though names of more than one counsel is shown for the appellant(s). The Amicus Curaie appointed in some of the cases also do not appear.This situation is alarming and upsetting both and ultimately results in the erosion of public faith in the efficacy of eroding of judicial administration. Off and on we have come across the cases in which many a times most of the accused have already expired by the time their appeals come up for hearing or those accused who are on bail, are absconding for years together. In such a situation, the Court can not remain silent spectator and can indefinitely not allow the noncooperation of the accused appellants or his legal representative to hold the entire judicial administation at ransom.

We have been taken through the judgments rendered by the Apex Court in Bani Singh & others versus State of U.P. ( A.I.R. 1996 SC2439) and 2008 CRI.L.J. 1016 page 1016, Dharam Pal & others versus State of U.P.and Shyam Deo Pandey and others versus The State of Bihar, AIR 1971 SC1606, therefore, following the ratio laid down in these cases, we proceed to hear and decide the appeal on merits after hearing the learned Additional Government Advocate on perusal of the record.

At this stage, Sri A.K. Awasthi, Advocate appeared for the appellant and stated that he has no instructions in the matter.

We have heard Sri K.N.Bajpai, learned Additional Government Advocate and perused the record.

The judgment of the Trial Court is assailed on the following grounds:

According to the prosecution case many axe blows were inflicted upon both the deceased but a perusal of the post mortem examination report of deceased Smt. Kalawati shows only one lacerated wound and the post mortem examination of the deceased Udayee Singh had only two incised wounds and as such medical evidence completely falsifies the prosecution story on many counts. This also goes to show that no one had witnessed the said incident as such there are serious discrepancies in the prosecution case with the medical evidence. If the manner of assault does not corroborate the prosecution story then it can also be said that the eye witnesses had not at all seen the incident. This also jeopardise even the time of the incident. The facts mentioned above have not at all been properly considered by the learned Sessions Judge in convicting the appellants.

The First Information Report of the present case is antetimed as the dead bodies along with other papers were not sent to the Police Headquarters directly from the spot but were sent from police station because photo copy of the chick First Information Report on which true photo copy is written was sent along with other papers as such it is proved that the First Information Report was not in existence as alleged by the prosecution and has come into the existence much after the said time even after the preparation of the Panchayatnama and is made antetimed.

The dead bodies were said to have been dispatched for post mortem examination on 17.2.1998 at 3.00 P.M. by Jeep which reached at Police Headquarters on 18.2.1998 at 12.30 P.M. The distance between the place of occurrence and Police Headquarters is only 22 kms. as such there is great delay in receiving the dead bodies at Police Headquarters. In this regard it is also submitted that Police Constable who had taken the dead bodies for post mortem examination has not been produced during the trial in order to substantiate the delay in receiving the dead bodies at the Police Headquarters and that different directions of the place of occurrence from police station is mentioned in the Panchayatnama. The weapons of assault is also not mentioned in the Panchayatnama.

The special report (copy of the FIR) was sent to the C.J.M., Mau after six days of the registration of the case but the learned Sessions Judge while convicting the appellants has not at all considered the facts stated in the foregoing paras and that during the trial only P.W.1 Vineet Kumar Singh, who is mentioned in the First Information Report has been produced as an eye witness. The name of P.W.2 Shravan Kumar Singh is not at all mentioned in the First Information Report as such it can be said that conviction of the appellant is based solely on the testimony of P.W.1 alone. It is also submitted here that if P.W.2 Shravan Kumar Singh at all was present at the time of the incident and had seen the name then in all probabilities his name must have been mentioned in the First Information Report. Moreover, he is a chance witness as such in convicting the appellant no reliance can be placed on the testimony of P.W.2 Shravan Kumar Singh.

Smt. Parmi Devi whose name is mentioned in the First Information Report and is an independent eye witness has not been produced by the prosecution during the trial and that independent witnesses of the nearby locality have not at all been produced during the trial as such the prosecution case is enveloped only within the testimony of P.W.1 alone, who is apart from the partisan witness is also inimical with the appellants.

According to the prosecution case there is recovery of ''axe'' and ''danda'' under Section 27 of the Evidence Act on 19.2.1998. In this respect it is submitted that the accused appellants were arrested on 17.2.98 and during the deposition P.W.1 has stated that on the day of the incident itself he had stated to the Investigating Officer that ''axe'' and ''danda'' were concealed by the accused appellants in ''Sarpat'' as such no reliance can be placed on the socalled recovery under Section 27 of the Evidence Act. This part of the prosecution case has not at all been considered by the learned Sessions Judge while convicting the appellants. It is not the prosecution case that hair of the deceased Smt. Kalawati were cut off for comparison of the same from the hair found in the axe but P.W.5 has stated the aforesaid facts as such P.W.5 is a rank lier. The Sessions Judge brushed aside the same by saying that it may be an overact on the part of the Investigating Officer, which cannot be believed in any manner in convicting the appellants.

That learned Sessions Judge has not at all considered the facts that the motive assigned by the prosecution was not at all adequate for the accused persons to cause deaths of the deceased; there are so many contradictions and omissions which have come during the evidence of the prosecution witnesses affecting the prosecution case which have not at all been considered by the learned Sessions Judge. The investigation of the present case is not at all fair. The conviction of the appellants is against the facts and law as he has not at all considered the probabilities and circumstances in favour of the appellants and sentence is too severe.

It has been stated in the grounds that the FIR was made antetime. It is because of the fact that different direction of the police station from the place of occurrence has been mentioned in the FIR and in the inquest reports Exhibit Ka10 and Exhibit Ka15. There is no mention of crime number in the inquest report. The details of the weapons have also not been mentioned in these documents. The report was sent to the C.J.M.,. Mau, after six days of the registration of the case.

We have gone through the aforesaid grounds of appeal.

A perusal of the chik FIR and the inquest reports goes to show that the distance from the place of occurrence and the police station is 2 kms. The direction from the place of occurrence to the police station though does not tally. As the inquest report is prepared for a limited purpose and therefore, the absence of all the above facts in the inquest report cannot make the FIR a suspicious document. There is also no requirement of law or any rule that the inquest report shall clearly state all minute details contained in the FIR. The chik FIR was prepared on the written report of PW1 Vinit Kumar Singh at 9.30 A.M. and had been registered in the G.D. at sl. no.12 at the same time. His statement could not be belied and thus there can be no question of inferring that the FIR is antetimed.

So far as the delay in sending the copy of the FIR to the concerned C.J.M. Is concerned, that is not so as the I.O. has stated that a special report was sent to the authority concerned on the same day of the occurrence and on this ground also there can be no question of treating the FIR antetime.

The ground has been taken that the name of P.W.2 Shravan Kumar Singh was not mentioned in the FIR as eye witness of the occurrence, therefore, his testimony should not have been relied upon by the trial Court.

It is true that the name of P.W.2 has not been mentioned in the FIR but that only requires close scrutiny of his statement and from the statement of this witness which has been recorded by the trial Court it appears to us that he was a reliable witness and was present at the spot and had witnessed the occurrence. He had given the complete narration of the incident in the fashion as told by PW1 and was the prosecution case in the FIR.

The next ground that Smt. Parmi Devi whose name was mentioned in the FIR was not produced by the prosecution, in this regard, we are of the opinion that the prosecution had not rightly produced this witness as she was the close relative of the deceased persons.

In the same way, if no independent witness of the locality was produced that could not be a ground for discarding the whole prosecution story as two reliable witnesses of fact i.e. P.W.1 and P.W.2 were produced by the prosecution.

This ground has also been taken that the trial Court has wrongly relied upon the discovery of ''axe'' and ''danda'' alleged to have been used in the incident. We agree with this ground.

As that information was not proved by the prosecution which distinctly related to the fact of discovery of ''axe'' and ''danda, hence alleged discovery could not be used as incriminating circumstances against the appellants''. However, this deficiency in the judgment of the trial Court can not be sufficient to disbelieve the statements of those material witnesses who are said to have witnessed the occurrence.

This ground has also been taken that there was no motive for the appellants to commit the crime. In this regard, we are of the opinion, that there was sufficient motive for the accused appellants to commit the crime as there was long drawn enmity between the deceased persons and the accused appellants regarding the landed property. Thus, it can not be said that there was no motive for the appellants to commit the murder.

We have gone through the entire judgment of the trial Court and find that the trial Court has rightly accepted and believed the statements of P.W.1 and P.W.2, who were said to be the eye witnesses of the occurrence. Merely because they are related to the deceased their evidence can not be discarded on this ground alone. Their presence at the time of occurrence was very much natural and believable. They had stated the date, time and place of occurrence in the same fashion as was the story of the prosecution.Their statements got full support from the medical evidence on record. Nothing was brought out in their statements by which it could be said that for some ulterior motive they had come to depose falsely against the accused appellant.

The prosecution story was also liable to be believed in view of of prompt lodging of the FIR, the trustworthiness of which could not be belied.

Moreover, the defence which has been taken in the written statement of the accused quoted in the body of the judgment stands completely falsified by the site plan which established that the bodies of the deceased were found in the open land much away from the verandah.The blood stained earth was collected by the I.O. from the spot where the deceased were found dead. The Khoiya was also found by the I.O. On the spot which was the genesis of the crime. This spot examination done by the I.O. not only disproves the defence case but lends credibility and strong corroboration to the prosecution story.

In view of the above, we feel that the judgment of the conviction and sentence was rightly recorded by the trial Court and it is liable to be upheld. Consequently, the appeal is liable to be dismissed.

The appeal is hereby dismissed. The judgment is certified to the Court below through the Chief Judicial Magistrate concerned who is hereby directed to ensure the arrest of appellant Ram Awadh Singh and send him to jail for serving out the sentence awarded by the trial Court.

Let a copy of this order be sent immediately to the Chief Judicial Magistrate concerned for compliance.