Aniruddha Singh (In Jail) vs State of U.P.

R.N. Misra, J.—This appeal has been preferred by the appellant Anirudh Singh against the judgment and order dated 8.2.2006, passed by Shri Sushil Kumar, the then Addl. Sessions Judge (F.I.C. Court No. 2), Kushinagar in Sessions Trial No. 227 of 2003, by which the appellant was convicted for the offence, punishable u/s 302 of the Indian Penal Code and sentenced for life imprisonment and fine of Rs. 1,00,000/- only.

The facts giving rise to this appeal are as under:

That the complainant-informant Shkhdeo Paswan and the accused-apellant Anirudh singh are resident of village Khagi Mundera, police station Hata, district Kushinagar. There was old enmity between the parties. On 22.4.2002, the complainant-informant along with his brother Jai Kishun alias Jai Krishna, nephew Shaym Badan and village people Santraj and Indal went to village Lihni, where the harvesting of the wheat crop was going on by the combined machine. It was about 5:00 PM, the accused Anirudh Singh came there along with his brother Kamlesh and father Radha Krishna. All of them had country made pistols. Anirudh Singh opened fire from pistol, which hit the neck of Jai Kishun alias Jai Krishna. Kamlesh also made fire from his country made pistol. Radha Krishna made fire in air to terrorise the persons assembled there. Jai Kishun alias Jai Krishna died on the spot. The accused persons ran away from there. The complainant and his companion chased the accused persons but Radha Krishna made fire in air, therefore, due to fear, they could not catch them.

Sukhdeo Paswan lodged FIR Ext. Ka-1 at police station Hata on the same day at about 7:05 PM. The Chik is Ext. Ka-9. Since Lehani was under police station Ahirauli, district Kushinagar therefore, Hata police did not mark any crime number on the FIR and transferred the matter to Ahirauli police. In the meantime, Sub Inspector Ram Bahadur Shukla of police station Hata went on spot. He found the dead body there. He prepared the inquest report Ext. Ka-5. Photo copy of the dead body Ext. Ka-6, Challan Ext. Ka-7, letter to CMO Ext. Ka-8 and letter to police station Ahirauli, Kushinagar Ext. Ka-10. He sealed the dead body, the sample of which is Ext.Ka-9. The dead body was sent by him for post-mortem examination through constable, Shailesh Kumar Singh (PW-8) and Imtiyaz. Dr. Rakesh Dubey (PW-6) conducted the post-mortem examination of the deceased, the report of which is Ext. Ka-14. When the FIR was transferred to police station Ahirauli, the case was registered at crime No. 126 of 2002 there, as is evident from the copy of the G.D. Entry Ext-Ka-2 Deputy Superintendent of Police, Shivaji (PW-10) investigated the case. During investigation, he visited the place of occurrence, prepared site plan Ext. Ka-12, recorded the statement of witnesses, sent blood stained clothes, simple and blood stained mud and chappal of the deceased to the Scientific Laboratory for testing through constable Arjun Ram (PW-12) and after completing the investigation submitted charge-sheet Ext., Ka-11 against three accused persons namely Anirudh Singh, Kamlesh and Radha Krishna.

The appellant along with two other accused persons were charged for the offences, punishable u/s 302 of the Indian Penal Code and Section 3(2)(5) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused-appellant denied the allegations levelled against him and alleged his false implication in this case.

In support of its case, the prosecution had examined Sukhdeo PW-1, Santraj PW-2, Indal PrasadPW-3 and; Dharmendra Paswan PW-4 as eye witnesses of the ''occurrence. Constable Ramesh Chandra Pandey PW-5 was examined to prove the report registered at police station Ahirauli, Dr. Rakesh Dubey PW-6 had conducted the post-mortem examination of the deceased, Constable Basant Lal Chaudhary PW-7 proved the registration of FIR and entry in the GD at police station Hata from where the matter was transferred to police station Ahirauli. Constable Shailesh Kumar Singh PW-8 had taken the dead body to the mortuary for post-mortem examination, Sub-Inspector Ram Bahadur Shukla of police station Hata had prepared the inquest and other papers relating to the dead body and sent the same for post-mortem examination, Deputy Superintendent of Police namely Shivaji PW-10 had conducted the investigation and submitted charge-sheet against the accused, Shashikant Pandey PW-11 was the head Moharrir on the relevant date and had registered the case and entered the same in the GD at police station Hata, Constbale Arjun Ram PW-12 had transmitted the blood stained mud chappal etc. of the deceased to the Scientific laboratory for chemical examination. Besides these witnesses, Dr. Nalin Kumar Tiwari was examined as court witness No. 1 as Ballistic Expert. The accused persons did not adduce any evidence in their defence.

We have heard learned Counsel for the appellant, learned AGA for the State and perused the record.

The motive behind the occurrence is enmity. The accused persons have simply denied the prosecution case and have alleged their false implications.

In the FIR Ext. Ka-1, it has been alleged by the complainant/informant Sukhdeo Paswan that there was enmity between the parties. In his statement on oath PW-1 Sukhdeo Paswan has stated that there was political rivalry between the parties. He has further stated that he belongs to scheduled caste (''Pasi'') caste. He has further stated that his wife was ''Block Pramukh'', on a seat which was reserved for scheduled caste candidate. He has further stated that the accused persons wanted to win the post of Gram Pradhan in the Panchayat election and for that reason they wanted to kill him. In the last Panchayat election accused Radha Krishna had won the election of Gram Pradhan. One Chhedi Lal had contested the election against Radha Krishna and they had supported Chhedi Lal. That was also one of the reasons for the murder. Further, PW-1 has stated that the accused persons had made complaint to Block Development Officer concerned against his wife, who had won the election of ''Block Pramukh''. He and his wife had also given a complaint against Radha Krishna, the gram pradhan at that time, to Block Development Officer because Radha Krishna was absconding for a long time and the official work of Gram Pradhan was suffering. These facts have not been rebutted by any cogent evidence by the accused persons. Thus, the motive as alleged by the prosecution is proved and the learned Trial Court''s finding on this point is correct.

The occurrence took place in Village Lehni situate within the limit of police station Ahiruali. The FIR was lodged at police station Hata on 22.4.2002 at about 7:05 P.M. The incident had taken place on the same day at about 5:00 P.M. This has come in the evidence that the distance of police station Hata and Ahirauli from the place of occurrence was almost the same. It has been argued by the learned Counsel for the appellant that the complainant-informant lodged the FIR at police station Hata instead of Ahiruali because Station House Officer Police Station Hata belonged to his caste. The suggestion was also given to this effect to the complainant-informant Sukhdeo Paswan PW-1, who denied it. Nowhere, it has come on the record that the Station House Officer, Hata was pasi by caste. Nowhere, it has come in evidence, who was the SHO, Hata at that time. Therefore, this argument of the learned Counsel for the appellant is not based on record. From the side of the prosecution, it has been alleged that the report was lodged at police station Hata because village Khagi Mundera, the native village of complainant/informant was situate within the limits of police station Hata. PW-1 sukdheo has admitted this fact in his statement on oath that he was knowing this fact that village Lehni was situate within the limits of police station Ahiruali, but he went to lodge the FIR at police station Hata because his village Khagi Mundera was situate within the limits of police station Hata. This appears to be a bonafide act of the complainant/informant. There appears no malafides on his part. Moreover, the information of any crime can be given to a police anywhere in the country. As soon as the information of crime was given to police station Hata the FIR was taken down there without assigning any crime number and immediately the same was transferred to police station Ahiruali for investigation. Thus, there was no harm in lodging the FIR at police station Hata instead of police station Ahiruali and the appellants cannot get benefit of the said situation. The view taken by the learned Trial Court on this point is also correct.

The prosecution has examined four witnesses to give eye account of the occurrence and they are Sukhdeo PW-1, Santraj PW-2, Indal Prasad PW-3 and Dharmendra Paswan PW-4. Admittedly, PW-1 Sukhdeo Paswan is the real brother of the deceased and PW-4 Dharmendra Paswan is the nephew of the deceased. PW-3 Indal Prasad, is neighbour of the complainant/informant and PW-2 Santraj, p is alleged to be the friend of PW-1 Sukhdeo Paswan. All these witnesses have given a very clear picture of the occurrence, which took place in the agricultural field situate in village Lehni. The Investigating Officer has prepared the site plan Ext. Ka-12 of the place of occurrence, which shows that murder was committed in the agricultural field of Om Prakash in which the wheat crop had already been harvested. The place of, occurrence has been shown by letter ''A'' in the site plan. The wheat field of the complainant/informant was situate towards east of the field of Ram Adhar and Om Prakash. In all sides, the agricultural fields of different person were situated. Nowhere it has been denied by the accused persons that there was no agricultural land belonging to the complainant/informant in village Lehni. The occurrence had taken place on 22.4.2002 and that was the season of harvesting of Rabi crops. The Investigatin Officer collected the blood stained chappal of deceased at place ''C'' which was situate towards east of place ''A''. The blood stained mud was also taken by the Investigating Officer from there. The dead body was also found there.

PW-1 Sukhdeo has stated that on the date of occurrence his brother Jai Kishun alias Jai Krishna along with his nephew Shyam Badan and neighbours Santraj and Indal Prasad had gone to harvest the wheat crop by combined machine in village Lehni. The crop was harvested. He also went there and at the time of occurrence he (Sukhdeo) was present there. The wheat grains were being taken out from the combined machine. In the meantime, appellant Anirudh along with co-accused Kamlesh and Radha Krishna came there. The appellant wished his brother Jai Kishun and he (Jai Kishun) reciprocated the same and asked the appellant in which class he was studying. Jai Kishun''s face was towards combined machine and in the meantime the appellant made fire on him from the country made pistol, which hit his neck and he fell down and died on spot. Co-accused Kamlesh also made fire from his country made pistol but it could not be ascertained by him whether the fire made by Kamlesh had hit the deceased or not. Another co-accused Radha Krishna made airy fire from his country made pistol to threaten the persons assembled there. The complainant/informant and his associates chased the accused persons but they successfully ran away by making fire in the air from their country made pistols and due to fear of the firing, they could not catch them. The complainant/informant has further stated that he lodged the FIR Ext. Ka-1 immediately at police station Hata. The distance of Hata was about 8 or 9 kilometres from the place of occurrence as has been stated by PW-1. However, in the chik Ext. Ka-4, the distance was not noted by the constable moharrir. There was no delay in reporting the matter to the police. The place of occurrence was situate at a distance of two kilometres from the house of the deceased. The complainant/informant came to his house on feet from the place of occurrence and thereafter he went to police station Hata on motorcycle. In his cross-examination PW-1 has stated that the combined machine belonged to the relative of Ram Kanwal Singh but he could not name the driver of the same. The tractor belonged to the relative of Gulab Yadav, resident of the adjoining village. The tractor and combined machine were also there when the incident took place. PW-1 has further stated that he had reached his wheat field at about 1:00PM. The fire was made by Anirudh when the deceased was in the field of Om Prakash from a distance of about 2 or 3 steps. When the deceased fell down, co-accused Kamlesh made fire but whether the fire had hit the deceased or not, it could not be ascertained. No blood was found on the clothes of the complainant/informant. He has stated that he was weeping near the dead body of his brother sitting towards feet side. Since his brother died on spot therefore, he did it not make any attempt to take him to the hospital. The blood was spreading on the earth near the dead body and the fire made by the appellant had gone through and through the neck of the deceased.

PW-2 Santraj, PW-3 Indal Prasad and PW-4 Dharmendra Paswan have also corroborated the prosecution story as narrated by PW-1 Sukhdeo Paswan. They have stated that they were present in the field of the deceased where the wheat crop was being harvested by the combined machine. Santraj and Indal Prasad were engaqed as labourers. Dharmendra Paswan was the family Member of the deceased. This was a natural factor regarding the presence of the family members in the field where the crop was being harvested. There was nothing surprising in it. In his cross-examination, PW-2 Santraj has stated that the crop of the accused had been harvested before the harvesting of the deceased. He has further stated that at time of firing the deceased was present towards the west of the combined machine. In the site plan Ext.Ka-12 also the Investigating Officer has shown the place of occurrence towards the west of the combined machine at place ''B''. This witness was also the witness of inquest of the dead body.

PW-3 Indal Prasad, has stated in his cross-examination that he had seen the firearm injury on the neck of the deceased. The total fire made by the three accused persons were 4 or 5 in number. He has further Stated that Ram Kishun and Kamlesh had made fire in air. The fire was made on the deceased from a distance of 4 or 5 steps. He ran away from the spot after firing. Later on the wheat grains were transported by him to the house of the complainant/informant. He did not tell about the incident in his village (Khagi Mundera) because when he reached the village from the place of occurrence, all the village people had already come to know about the incident. This witness admitted that he also belonged to the caste of complainant/informant but ho relation between him could be proved.1 He hag further stated that he was engaged as labourer and he got his labour charges after the incident.

PW-4 Dharmendra Paswan, the nephew of the deceased has stated that he had reached his wheat field at about 4:00 PM. At that time, the combined machine had come to his field. Santraj and Indal Prasad also reached there along with him. The tractor was taken by him in his field. The driver of the tractor was Awadhesh Yadav resident of village Gumari Basantpur. In his cross-examination, he has further stated that the fire was made by Anirudh on the deceased at a distance of about one feet. The fire had hit the right side of the neck of the deceased.

From the perusal of the entire evidence of these prosecution witnesses, it appears that they were natural witnesses and present on the spot. There is no material on record to suspect their presence on spot.

The learned Counsel for the appellant has pointed out some contradictions in the eye-account and the medical evidence. PW-6 Dr. Rakesh Dubey had conducted the post-mortem examination on the dead body on 23.4.2002 at about 4:00 PM, which was brought there by constable Shailesh Kumar Singh and Imtiyaz. It may be pointed out here that the prosecution has'' examined constable Shailesh Kumar as PW-8. He has stated that he had brought the dead body of the deceased from the place of occurrence to the mortuary in sealed condition. The seal was found intact by the Doctor also. The following injuries were found on the person of the deceased:

An elliptical shaped lacerated wound of entry of the firearm 0.4 CM � 0.3 CM � through and through on the middle of left side cheek 4 CM lateral from outer angle or mouth. Collar of abrasion present around the wound. No tattooing was found. The surrounding skin is light pink.

Lacerated wound of exit 1.2 CM � 1 CM though and through on the level of 1st cervical vertebra on the posterior lateral aspect of the right neck. The track of bullet is directed from cheek to base of the brain and diverted form its way.

In the opinion of Doctor, the fire was made from a close contact in slightly upward direction.

Almost all the witnesses of fact have stated that the fire was made by the appellant, which hit the right side of the neck of the deceased. But as we have discussed above, according to the medical evidence, the fire had hit the left side of the cheek and it had gone though and through towards the rights side of the neck wand there was wound of entry and exit both. The direction of the bullet was from left to right. On this basis, the learned Counsel for the appellant has argued that these witnesses had not seen the occurrence. But this argument is not acceptable. When the fire is made by three persons discretly, it becomes very difficult for the persons present there to minutely observe where the bullet is hitting the person aimed at. This is a natural conduct of the human being that when such incident takes place and the assailant run away from the spot, the persons assembled there observe the injury on the person of injured/deceased. The eye-witnesses of this case also did the same. They saw the injury on the neck of the deceased. Blood was coming out of the wound. The Witnesses/family members of the deceased were naturally stunned from the occurrence in such Situation, their observation was a natural conduct that the deceased had sustained injury on the right side of his neck because there was injury on the right side of neck also though it was wound of exit. The village people were not expected to know medical jurisprudence. Since, there was bleeding it was but natural for the witnesses to be confused regarding place of the wound. Hence, on the basis of this contradiction the presence and testimony of PWs 1 to 4 cannot be discarded.

In the FIR Ext. Ka-1, it was mentioned that the fire was made by Anirudh Singh from the close range on the deceased. All the eye-witnesses also gave different distances of fire, which were almost in the close range. Since the Doctor did not found tattooing, blackening, charring etc. in the wound, therefore, it was argued by the learned Counsel for the appellant that the eye-witnesses did not see the occurrence. The prosecution has examined Dr. Nalin Kumar Tiwari as CW-1 to remove all the doubts. He has specifically stated that the injuries on the dead body were possible from a cartridge having bullets. He has further stated that bullets are used in the cartridges of pistol, revolver, country made pistol and rifle etc. However, he has clarified that the injuries on the deceased could also be caused from a close range. In his cross-examination made by the prosecution, Dr. Nalin Kumar Tiwari clarified that the fire was probably made from a distance of 2 or 3 steps. In his cross-examination made by the accused persons, he has stated that the injury on the, person of deceased could not be caused by Bhala because the size of the wound of entry was lesser than the wound of exit. In the case of firearm injury, such situation was possible. Regarding the change in the direction of the wound he has stated that after the bullet comes in the contact of the bones, the direction is changed and a difference of 14 or 15 degree comes there. However, he has stated that this injury could be caused even when the fire was made from a close contact of the skin of the deceased. The blackening normally comes where the fire is made from a distance of 1 or 1.5 feet. Thus, there is no doubt regarding the injuries sustained by the, deceased from a country made pistol, fired from enclose range. The learned Trial Court has rightly believed the prosecution witnesses.

Another point raised by the learned Counsel for the appellant is that in the inquest report Ext. Ka-5, the place of occurrence was shown to be the village Khagi Mundera but at the same time it was also mentioned that the dead body was found in village Lehni. PW-9 Ram Bahadur Shukla, who had prepared the inquest report has stated that it was a bonafide mistake, because the borders of village Khagi Mundera and Lehni were adjoining, therefore, due to this confusion he had written village Khagi Mundera in the inquest report and nobody had raised objection on it. The agricultural fields of both the villages were adjoining to each other. PW-10 Shivaji, Deputy Superintendent of Police, who had made the investigation of the case, has also given the same explanation. The site plan prepared by the Investigating Officer also corroborates the same therefore, on the basis of this mistake on the part of the police, the prosecution cannot be allowed to suffer. In the case of Karnail Singh v. State of Madhya Pradesh 1995 ACrR 831 , the Hon''ble Apex Court has clearly observed that on the basis of casual and defective investigation by police the acquittal of the accused cannot be justified, because it would tantamount to playing in the hands of Investigating Officer. In the case of Munshi Prasad and Others Vs. State of Bihar, , it was observed by the Hon''ble Apex Court that any defect in the inquest report couldn''t be fatal for the prosecution. In the case of Ram Bali Vs. State of Uttar Pradesh, , it was observed by the Hon''ble Apex Court that the court has to be circumspect in evaluating the evidence but it would not be right in acquitting the accused solely on account of defect in the investigation and to do so, it would tantamount to playing in the hands of the Investigating Officer. Since both the police1 officials participating in the investigation have admitted their faults in mentioning village Khagi Mundera in the inquest report, therefore, it is clear that the dead body was found in the agricultural field situate in village Lehni. The blood was also found by the Investigating Officer on the earth there. It was agricultural field of Om Prakash as stated by all the eye-witnesses. The learned Trial Court was right in accepting the testimony of eyewitnesses regarding place of occurrence.

The learned Counsel for the appellant has pointed out that the witnesses produced by the prosecution to give eye account of occurrence were related with each other. As we have discussed earlier also PW-1 Sukhdeo Paswan is the brother of the deceased and PW-4 Dharmendra Paswan is the nephew of the deceased. The remaining two witnesses namely Sant raj and Indal prasad belong to the village of complainant/informant and they were engaged as labourers. They were not as such Related with the complainant/informant. Therefore, there was no reason to discard their testimony. Moreover, the unconcerned persons who are termed as dependent witnesses do not come forward to give evidence of any occurrence, which took place in their presence due to sharp decline of the ethical values in the public life and due to fear of the accused as has been observed in the case of Krishna Mochi and Others Vs. State of Bihar, . The cases are decided on the basis of a quality of the evidence and not on the basis of a quantity of the evidence. The witnesses produced by the prosecution have given a clear picture of the incident. Nothing has been found in their statements to create any suspicion in the prosecution version or to disapprove any fact.

Some discrepancies in the statements of Investigating Officer and prosecution witnesses have been pointed out regarding the presence of PW-1 at the time of preparation of inquest report but that is very minor and immaterial contradiction and does not affect the genuineness of present case.

In the last, the learned Counsel for the appellant has argued that the deceased was of a criminal character and he had so many enemies and it was possible that he might have been murdered by anyone of them. PW-1 Sukhdeo Paswan has admitted in his cross-examination that the deceased was accused with him in murder cases of Shyam Sunder, Ram Awadh and Paras Nath. But as we have discussed in the body of the judgment there is clear evidence against the appellant of making fire on the if deceased. No doubt the deceased was accused in several murder cases and having so many enemies but when there is clear evidence against him regarding this murder, he'' cannot be acquitted on the basis of presumption that he was murdered by anyone of his enemies.

In view of our above discussions, we are of the clear opinion that the learned Trial Court has rightly convicted the appellant for the murder of Jai Kishun alias Jai Krishna and there is no force in this appeal, which is liable to be dismissed.

The appeal is accordingly dismissed.

Let a copy of this judgment be sent within 15 days to the Chief Judicial Maigstrate, Kushinagar to get the appellant arrested and sent to jail to serve out the sentence awarded him by the learned Trial Court. The compliance report be submitted within six weeks of the receipt of the copy of the judgment in his office.