Bantu Lala vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Mr. Rajiv Dubey, learned counsel for the appellant, Ms. Ruhi Siddiqui, learned A.G.A. for the State were heard at length.

Under challenge in this appeal is the judgment and order dated 18.9.2010 passed by learned Sessions Judge, Lakhimpur Kheri in Sessions Trial Nos. 13 of 2008 and 14 of 2008 arising out of Case Crime No. 2438 of 2007 and 2439 of 2007 Police Station Kotwali Lakhimpur District Kheri whereby sole appellant Bantu Lala was convicted for the offence under Section 302 I.P.C. and was sentenced with imprisonment for life and also with fine of Rs. 1,000/- with default stipulation of ten days simple imprisonment. For the offence under Section 506 I.P.C., he was convicted and sentenced with rigorous imprisonment for a period of two and half year and for the offence under Section 4/25 of the Arms Act, he was convicted and sentenced with rigorous imprisonment for a period of one year and also with fine of Rs. 500/- with default stipulation of five days simple imprisonment. All the sentences were directed to run concurrently.

In brief the case of the prosecution was that complainant Pratap Gupta, who happens to be the husband of the deceased lodged an F.I.R. On 23.5.2007 at 13:14 a.m. alleging therein that his wife was having friendship with appellant Bantu Lala. Few days prior to this incident some dispute arose between them. On 23.5.2007 in the morning at about 11:00 a.m. his wife told the complainant that she is going to take medicines. Since the complainant had also to go to his tea shop, so he was also going behind his wife. Near Durbal Ashram, the complainant saw Chhotali and his sister Suman coming from the otherside so he stopped near the house of Dixit. They started talking with each other. In the meantime, at about 11:45 a.m. his wife cried for her rescue and said that Bantu Lala is killing her. Hearing the cries of his wife, the complainant and other two persons went towards the place then they saw that towards east of the house of Dixit and towards west of Krishak Samaj Inter College on Kachcha Road, the appellant was giving repeated blows of Chhura to his wife. His wife succumbed to the injuries. When the complainant made an effort to catch hold of appellant Bantu Lala then he hurled the Chhura and threatened him with dire consequences. So these persons, in order to save their lives, started running. Because of this incident, the persons, who were present there started crying and the persons closed the doors of their houses. The complainant was going to Kotwali but near the Durbal Ashram, he saw two constables then he informed them about the incident. They went to the place of occurrence and the complainant went to the police station and got the F.I.R. of this case scribed by Ashok Kumar Mishra son of Mata Prasad Mishra and lodged the same. On the basis of this F.I.R., the case was registered and investigation proceeded and the place of occurrence was inspected. Site plan was prepared. From the place of occurrence, seven shoes/chappals were recovered and its memo was prepared. Inquest proceedings were conducted and the dead body of the deceased was sent for postmortem, which took place on 24.5.2007 at 3:00 p.m. According to the postmortem report, the age of the victim was about 28 years and duration was about one day and following ante-mortem injuries were noted by the doctor in the postmortem report:-

"(i) Punctured wound 3 c.m. x 1 c.m. x chest cavity deep on left side of chest, 6 c.m. Away from the supra sternal notch. Membrane of heart and left lung was punctured and one litre blood was found in the chest cavity.

(ii) Punctured wound 3 c.m. x 1 c.m. x chest cavity deep 8 c.m. Left side chest, 6 c.m. Below supra sternal notch.

(iii) Multiple incised wound in an area of 10 c.m. x 4 c.m. x abdomen cavity deep on front of left side abdomen 7 c.m. below injury No. 2. 4 tags were present over wound of dissection peritoneum, spleen, stomach, liver found cut at multiple places.

(iv) Incised wound 4 c.m. x 1 c.m. x muscle deep over inner aspect of right thigh, 15 c.m. above right knee.

(v) Incised wound 6 c.m. x 1 c.m. Muscle deep over front of right thigh, 6 c.m. above right knee joint.

(vi) Incised wound 2 c.m. x 1 c.m. x muscle deep over front of left upper arm, 10 c.m. Away from shoulder joint.

(vii) Incised wound 2 c.m. x 1 c.m. x muscle deep over front of left forearm."

In the opinion of the doctor, cause of death was shock and hemorrhage as a result of ante-mortem injuries.

Two constables, who were informed by the complainant about this incident, had chased the appellant and after a long effort, they apprehended the appellant along with bloodstained Chhura and the appellant was handed over to the Investigating Officer, who had reached at the place of occurrence in the meantime. A separate case under Section 4/25 of the Arms Act was registered on the basis of the said recovery. After concluding the investigation, charge sheet was filed against the appellant.

The defence of the appellant was of total denial. He had pleaded that police personnel had taken him from his house and subsequently this false case has been concocted against him. It was suggested to the witnesses that the deceased was murdered at some other place by some unknown persons and the appellant has been falsely implicated in this case.

In order to prove its case, the prosecution has examined PW-1 complainant Pratap Gupta and PW-2 Suman as witnesses of fact. PW-3 Dr. H.G. Singh, who had conducted the postmortem on the body of the deceased. PW-4 Constable Ram Prakash, who has prepared chik report and G.D. of this case. PW-5 S.I. Ram Karan Singh, who has investigated the case under Section 4/25 of the Arms Act. PW-6 Shashi Kumar Pandey, who had conducted the inquest proceedings on the body of the deceased. PW-7 Constable Rajesh Kumar Pandey, who has given eyewitness account of the incident and has also stated that he along with one other constable chased the appellant and handed over to the Investigating officer. PW-8 Ramesh Pratap Singh, Investigating Officer of this case.

In defence as DW-1 Smt. Shakuntala, mother of the appellant was examined. She has stated about the relationship between Bantu Lala and the deceased. She also filed some photographs wherein the deceased was sitting along with the appellant. She has further stated that in the morning at about 5:00 a.m. when she got up then she heard about the murder of the deceased. At that time, the appellant was present in the house. Subsequently the police had taken her son Bantu Lala in the afternoon at about 3:00-4:00 p.m. to Kotwali and on the next day, he was challaned.

After appreciating the evidence available on record, the trial court has convicted the appellant as above, hence the instant criminal appeal.

Submission of learned counsel for the appellant was that the trial court has not appreciated the evidence in correct perspective. The motive was for the complainant to falsely implicate the appellant and not for the appellant to commit this offence. He has further submitted that the evidence of his arrest as alleged by the prosecution that he was chased for a long time of about two hours, does not appeal to reason. He has also argued that one of the prosecution witness has stated that the police constable was sent to the house of the appellant and on the basis of this statement an argument has been raised that the appellant was arrested from his house and has been falsely implicated in this case.

Ms. Ruhi Siddiqui, learned A.G.A. has submitted that the incident has taken place in broad day light. The appellant is the sole accused in this case. The allegation of F.I.R. stands fully corroborated by the medical evidence. The deceased was brutally assaulted by the appellant with knife. There is no evidence that the appellant was arrested from his house and the trial court has not committed any illegality in convicting the appellant and the judgment of the trial court is well reasoned and needs no interference.

In view of the rival submissions, the evidence on record has to be re-appreciated. The first attack is on the F.I.R. It is alleged that F.I.R. was ante-timed. We have given our anxious consideration to all the documents to verify whether the F.I.R. of this case was lodged at the time as claimed by the prosecution or it was ante-timed. After a careful scrutiny of all the documents relied upon by the prosecution, it appears that the F.I.R. came into existence at the time as shown in the F.I.R. because in the inquest report, all the details of the case have been entered correctly including the case crime number, name of the complainant, time at which the F.I.R. was lodged. Copy of the chik report and the copy of the G.D. of the registration of the case were sent as annexures to the inquest report for postmortem. There is absolutely no cutting, overwriting in all the said entries. The inquest proceedings were conducted on the place of occurrence and stood concluded on the same date. Copy of the chik F.I.R. and G.D., which were sent for postmortem, were also signed by the doctor conducting the postmortem. The only ground in support of this point is that the copy of the F.I.R. was seen by C.J.M. On 16.6.2007. When there is voluminous evidence to conclude that the F.I.R. came into existence at the time when it is alleged by the prosecution then simply on the ground that the same reached before the Magistrate late on 16.6.2007 cannot be a ground to hold that the F.I.R. was not even in existence till then. Whether delay in production of the copy of the F.I.R., before the Magistrate would itself be a sufficient ground to discard the entire case of the prosecution or the genuineness of the F.I.R? Our considered reply to this question is in negative. On this point, reference may be made to the pronouncement of Hon''ble the Apex Court in the case of Sahdeo and other v. State of U.P. reported in , (2004) 10 SCC 682 wherein Hon''ble Apex Court has observed in paragraph No. 8 as under:

"8. The counsel for the appellants seriously contended that the First Information Report was received by the Magistrate only on 18.1.2000 and the prosecution did not explain the six days delay in sending the F.I.R. to the court. It is important to note that the Investigating Officer was not asked to explain how the delay occurred in sending the F.I.R. to the Magistrate. The counsel further contended that the F.I.R. must have been concocted later after the inquest and post mortem examinations were over. It was submitted that the delay in sending the F.I.R. to the Magistrate enabled the prosecution to cook up a false case against the appellants. We are not inclined to accept this contention for the reason that the F.I. Statement contains only a brief statement of events. If the F.I.R. had been prepared later after the inquest and post mortem were over, many more matters could have been incorporated in the F.I.R. The absence of any further details in the F.I.R. shows its genuineness and the delay probably would have happened due to some other reason, which the Investigating Officer was not given any opportunity to explain...."

Hon''ble the Apex Court in the case of Guiram Mondal v. State of W.B. reported in , (2013) 15 SCC 284 has observed in paragraph No. 15 as under:

"15. This Court in State of J. & K. v. S. Mohan Singh , (2006) 9 SCC 272 held that:

"11. ...the mere delay in sending the first information report to a Magistrate cannot be a ground to throw out the prosecution case if the evidence adduced is otherwise found credible and trustworthy."

In the facts of the instant case not even a single question was put to PW-8 Ramesh Pratap Sigh, Investigating Officer as to why F.I.R. was sent late to the C.J.M. So this ground loses its significance because all other documents supports that F.I.R. came into existence at the time as shown in the F.I.R.

The next ground to attack is motive to commit the offence. It is submitted that the motive as alleged by the prosecution was strong enough for the complainant to falsely implicate the appellant in this case rather for the appellant to commit the offence because as per the case of prosecution and the evidence of the witnesses, the appellant had illicit relations with the deceased, who was wife of the complainant. So in this background, it was very natural for the complainant to falsely implicate the appellant. We find no substance in this argument because on one hand, it is a case of direct evidence and the appellant is the sole accused in this case and the second is that when we go through the entire evidence then it is clear that whatever relations would have been between the deceased and the appellant but the complainant and his sister on this point have stated that they had asked the deceased to dis-continue her relationship with the appellant and thereafter she discontinued this relationship. Though this fact was mentioned in the F.I.R. in different words. It was mentioned in the F.I.R. that for the last sometimes, some differences between the two had taken place. So conclusion from the prosecution evidence is that the deceased had some relationship with the appellant but for the last sometime, there were some differences between the two. Motive is a thing, which remains embedded within the heart of the accused and there cannot be any direct evidence regarding the motive that prevailed in the mind of the appellant to commit the offence., therefore, law does not emphasise on motive when it is a case of direct evidence. On this point reference may be made to the pronouncement of Hon''ble the Apex Court in the case of Darbara Singh v. State of Punjab reported in , (2012) 10 SCC 476 has observed in paragraph No. 15 as under:-

"15. So far as the issue of motive is concerned, it is a settled legal proposition that motive has great significance in a case involving circumstantial evidence, but where direct evidence is available, which is worth relying upon, motive loses its significance...."

Hon''ble the Apex Court in the case of Habib v. State of Uttar Pradesh reported in , 2013 (12) SCC 568 has observed in paragraph No. 8 as under:-

"8. ...It is settled legal position that if there is direct trustworthy evidence of witnesses as to the commission of offence, motive part loses its significance. Therefore, if the genesis of the occurrence is proved, the ocular testimony of the witnesses could not be discarded only by the reason of the absence of motive, if otherwise the evidence is worthy of reliance. This legal position has been settled by this Court in its judgment in Sheo Shankar Singh v. State of Jharkhand , (2011) 3 SCC 654 and Bipin Kumar Mondal v. State of West Bengal , (2010) 12 SCC 91."

Hon''ble the Apex Court in the case of Birendra Das and another v. State of Assam reported in , (2013) 12 SCC 236 has observed in paragraph Nos. 21 and 23 as under:-

"21. The last ground of attack on the sustainability of the conviction is that the prosecution has not been able to prove any motive. The Learned Counsel would submit that when the animosity between some of the witnesses and the deceased has been admitted, there can be a ground for false implication. We have already analysed the evidence brought on record and there is nothing to discard the same. In Balram Singh and Anr. v. State of Punjab , (2003) 11 SCC 286, it has been clearly stated that

"11. ...If the incident in question as projected by the prosecution is to be accepted, then the presence or absence of a motive or strength of the said motive by itself would not make the prosecution case weak."

"23. In State of Uttar Pradesh v. Kishanpal and Ors. , (2008) 16 SCC 73, while dealing with the presence of motive, a two-Judge Bench had to say thus:

The motive may be considered as a circumstance which is relevant for Assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."

(Emphasis added by us)

Now the evidence of all the prosecution witnesses has to be considered. PW-1 complainant runs a tea stall. The deceased was going to take medicines. The incident has taken place near the Nagriya Swasthya Kendra, which corroborates the fact that she was going to take medicines. The complainant was also going towards his tea stall. It has come in the evidence that the complainant had sent his son and his younger brother to the tea stall in the morning to open the tea stall and he used to go to his tea stall after taking meals. As per the site plan, the complainant, his sister and her father in law were talking to each other at place "K", which is Pakki Road to Nighasan. From place "K", place "A" where the incident has taken place was not visible. PW-1 complainant in his cross examination has stated that he heard the cries thereafter he ran towards east, thereafter towards north and he saw that his wife was lying on the ground and the appellant was giving blows of knife to her. This details of the incident stands fully corroborated by the site plan prepared by the Investigating Officer on the date of incident. PW-2, is the sister of the deceased and she has also supported the case of the prosecution. Her evidence has been challenged on the ground that she is a related witness. Law is settled on the point that simply because a witness is related even then on this score alone her evidence cannot be discarded. For the sake of argument even if we discard the evidence of PW-2, even then there is also direct evidence of PW-7 Constable Rajesh Kumar Pandey, who has arrested the accused-appellant. He has also stated that on the information given by the complainant, when he reached the place of occurrence, he saw that the appellant was giving blows with knife to the deceased one or two blows of knife were given to him. No prior enmity with the deceased of this witness could be suggested and a bald suggestion has been given that he is giving false evidence. So there is direct evidence of PW-7 Rajesh Kumar Pandey also, who is an independent witness.

It has also been argued that not even a single independent witness of the vicinity could be examined by the prosecution in support of its case. It is true that the incident has taken place on the broad day light in an inhabited area, so the presence of other persons of the vicinity or the locality on the place of occurrence was natural and it is also true that none of such witnesses could be produced by the prosecution. Presence of the other witnesses on the place of occurrence stand established by recovery of seven shoes/chappals which reflect that the persons present there ran away out of fear and in that process their footwear''s left on the spot. While appreciating the evidence the court cannot ignore the ground realities. In the present day-world, people avoid to become a witness as they consider the incident of heinous offence as a civil dispute between the two parties and this apathy of the public is a great hurdle for the courts in the effective administration of criminal justice. So the evidence of the witnesses, who are coming before the Court and whose presence on the place of occurrence stands established then their evidence cannot be discarded only on the ground of other independent witnesses have not been examined. On this point, reference may be made to the pronouncement of Hon''ble the Apex Court in the case of Appabhai v. State of Gujarat reported in 1988 (supp) Supreme Court Cases 241 has observed in paragraph No. 11 as under:-

"11. ...Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves...."

Hon''ble the Apex Court in the case of Chakali Maddilety and others v. State of A.P. reported in , (2010) 12 SCC 72 has observed in paragraph No. 13 as under:-

"13. The depositions of close relatives cannot be discarded merely because they are relatives, but their evidence has to be considered with due care and caution. In a case like this, independent witnesses may not come forward to depose, as out of fear, people prefer to run away from the place of occurrence and avoid witnessing the crime, but that does not mean that the case can be discarded only on the ground of non-examination of independent witnesses of the locality."

As per the case of prosecution, the appellant was apprehended by PW-7 Rajesh Kumar Pandey with the help of another police constable. The evidence of PW-7 Rajesh Kumar Pandey has been assailed on the ground that the other police constable, who had accompanied this witness was not produced by the prosecution. Law is settled on the point that it is a quality of the evidence and not the quantity that matters. As per evidence of this witness, long time was consumed in arresting the appellant and he could be arrested at about 1:00 p.m. In this case the incident has taken place in an inhabited area. There were several houses, so it must have consumed a lot of time in apprehending the appellant by these persons. It has also been argued that the two police constables were armed with rifles and they could have fired at the appellant to arrest him. But this ground has no force. In an inhabited area to fire on a running person it might hit some other person. So the conduct of the two police constables was very natural that they did not fire. It has come in the evidence that one Kiran obstructed the way of the appellant only then the two police constables apprehended the appellant along with the weapon of offence i.e. knife. Arrest has also been challenged that said Kiran has not been examined. But Kiran was not a witness of the main incident. As stated earlier people avoid to become a witness in a crime. Apart from it, no person of the vicinity came to depose in support of the appellant that he was not arrested, as stated by the prosecution or he has not committed any offence as alleged by the prosecution. Apart from it, a suggestion has been given to the Investigating Officer to the effect that he first sent the appellant to the police station thereafter he proceeded with investigation. So the arrest of the appellant and the fact that he was handed over to the Investigating Officer stands admitted. Therefore, in our considered view this argument has no substance. Non examination of the other police constable does not adversely affect the evidence of PW-7 Rajesh Kumar Pandey. The recovered weapon of offence was sent for chemical examination and the same was found to be stained with human blood, however, the said blood was found to be disintegrated and it could not be classified.

Learned counsel for the appellant has also stressed on the evidence of DW-1 Shakuntala, who happens to be the mother of the appellant. Admittedly she was not present on the place of occurrence. Her evidence is on the point that the appellant had relations with the deceased. She has filed photographs of the deceased and appellant but the prosecution itself admits relations of the deceased with the appellant. She has also stated that she heard about the incident at about 5:00 a.m. in the morning while she was about to go for a walk. So on this point her evidence is only hearsay. She could not state as to who gave her this information. She has also stated that her son was taken in the afternoon at about 3:00-4:00 p.m. to Kotwali and he was falsely challaned. Therefore, the evidence of this witness is of no consequence. If the appellant could have produced any witness of the vicinity to say that the incident was caused by some other persons then the evidence would have mattered but the evidence of this witness is only hearsay, therefore, is of no help to the appellant. It has also been argued that one of the prosecution witness has stated that the police has sent one constable to the house of the appellant. On this strength, an argument has been built up that the appellant was called from his house. We are not the least impressed with this argument in absence of any other evidence that he was arrested from his house and keeping in mind that no person of his vicinity could be produced by the appellant to say that the police had taken him from his house at about 3:00-4:00 p.m. Admittedly the appellant was arrested by the police constables, therefore, the police was legally bound to inform the family of the appellant in compliance of the direction given by Hon''ble the Apex Court in the case of D.K. Basu v. State of West Bengal reported in , 2015 (8) SCC 744. In absence of any evidence to the contrary, simply sending of a constable to the house of the appellant would give rise only to the inference that said police constable was sent to comply with the mandate of Hon''ble the Apex Court. So this ground of attack has absolutely no substance.

In view of the discussion made above, we are of the considered view that learned trial court has correctly appreciated the evidence available on record and by a reasoned judgment has convicted the appellant. Therefore, this appeal deserves to be dismissed and is hereby dismissed. The appellant is in jail. He shall serve out the sentence as awarded by the trial court.

Office is directed to certify this order to the court concerned forthwith to ensure compliance and also to send back the lower court record.