Bhola Rai and Another vs State of Uttarakhand

U.C. Dhyani, J.—PW1 Tushar Rai wrote a complaint (Ext. Ka-1) to Chowki In-Charge, Shakti Farm, police station Sitarganj, District Udham Singh Nagar on 28.09.2008, regarding murder of his father by accused persons namely, Bhola Rai and his brother Paritosh Rai. P.W. 1 wrote the complaint with the assistance of P.W. 14 Sambal Sarkar (scribe). After the investigation, charge-sheet (Ext. Ka-26) was submitted against both the accused persons under Sections 302, 394, 411 of IPC. A separate charge-sheet (Ext. Ka-20) was also submitted against accused Bhola Rai u/s 25 of the Arms Act. The case was committed to the Court of Sessions. When the trial commenced and prosecution opened it''s case, charges for the offences punishable under Sections 302, 394 and 411 of IPC were framed against both the accused-appellants, to which they pleaded not guilty and claimed trial. A separate charge was also framed against accused Bhola Rai for the offence punishable u/s 25 of the Arms Act.

P.W. 1 Tushar Rai (eyewitness), PW2 Devendra Mehrotra (eyewitness), PW3 Ravindra Nath (eyewitness), PW4 Dr. H.S. Kathayat (Medical Officer), PW5 Constable Pooran Singh (who prepared chik FIR), PW6 Constable Harish Gurrani (signatory to recovery memo (Ext. Ka-17), PW7 Shivpad Vishwas [signatory to recovery memo (Ext. Ka-10)], PW8 Samar Chand Mandal (signatory to the inquest report), PW9 Constable Deepak (who recovered country made pistol and looted property from accused Bhola), P.W. 10 S.I. Sudhir Kumar (who arrested accused Bhola Rai), P.W. 11 S.I. Shankar Nath (who took permission from the District Magistrate to prosecute accused Bhola u/s 25 of Arms Act), P.W. 12 S.H.O. D.R. Arya (who submitted charge-sheet), P.W. 13 Shivpad Mandal [signatory to the memo (Ext. Ka-9)] and P.W. 14 Sambal Sarkar (scribe of the FIR) were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons u/s 313 of Cr.P.C., in reply to which they said that prosecution witnesses told a lie and they were falsely implicated in the case. No evidence was given in defence. After considering the evidence on record, learned Sessions Judge, Udham Singh Nagar, vide judgment and order dated 07.04.2011, convicted both the accused-appellants namely, Bhola Rai and Paritosh Rai u/s 302 of IPC. Both of them were sentenced to undergo imprisonment for life alongwith a fine of Rs. 10,000/- each. Accused Bhola Rai was, however, exonerated of the charge of offences punishable under Sections 394 and 411 of IPC as also of the charge of offence punishable u/s 25 of the Arms Act. Accused Paritosh Rai was also exonerated of the charge of offence punishable u/s 394 of IPC. Aggrieved against their conviction and sentence u/s 302 of IPC, present criminal appeal was preferred by the convicts-appellants.

Prosecution led the evidence through P.W. 1, PW2, PW3 and P.W. 14, which were supported by the scientific, medical and peripheral evidence.

PW4 conducted postmortem on the dead body of Vimal Krishan Rai on 29.09.2008, at 03:45 P.M. and proved PMR (Ext. Ka-2). PW4 found lacerated wound over occipital region, which was bone deep and in which the blood clots were present; multiple abrasion with contusion; abrasion; laceration; multiple abrasions and contusions on vital parts. According to PW4, the cause of death of victim was ante mortem head injury with smothering (caused by shutting the mouth and nose of a person with some cloth or hand forcibly).

P.W. 1 was the son of the deceased. He said, in his examination-in-chief, that although he originally belonged to Pilibhit (U.P.), but he alongwith his father and maternal uncle were engaged in the packing of bidi in Tagore Nagar, Shakti Farm, Sitarganj. P.W. 1 and his father just retired to bed at around 09:00 P.M. in the night of 28.09.2008, in the bidi workshop in different rooms. Electric light in the room where the father of P.W. 1 was sleeping was on. P.W. 1 could see everything from his room. P.W. 1 heard some noise coming from the room of his father. P.W. 1 went to his father''s room to see that accused persons, who are the real brothers, tied the face and mouth of his father with a cloth. P.W. 1 knew the accused persons much before this incident. They were trying to kill P.W. 1''s father. Accused Bhola Rai was armed with a country made pistol. P.W. 1 was frightened. P.W. 1 immediately rushed out of his house. PW2 and PW3 met P.W. 1 on the way. P.W. 1 intimated PW2 and PW3 that the accused persons were trying to kill his father. PW2 immediately made a phone call to the police. PW 1, PW2, PW3 thereafter, rushed towards the room of PW 1 ''s father. In the meantime, the accused persons ran away from the room. P.W. 1, PW2 and PW3 saw that PW 1''s father was dead. The accused persons also looted approximately Rs. 10,000/- from P.W. 1''s house. Since PW2 earlier rang to the police, therefore, police personnel came on the place of occurrence. Police personnel also saw the accused persons fleeing away from the place of incident. Police personnel chased the accused persons, but to no avail. P.W. 1 wrote the complaint with the assistance of P.W. 14 and proved the same as Ext. Ka-1. P.W. 1 was also a signatory to inquest report, which was prepared by the police. P.W. 1 opined in the inquest report that his father died due to smothering and other ante mortem injuries sustained by him. In the cross-examination, P.W. 1 said that he alongwith PW2 and PW3 saw the assailants fleeing away towards East. P.W. 1, PW2 and PW3 saw the assailants from a distance of five paces. P.W. 1 admitted that he did not see the accused persons looting Rs. 10,000/- from the bidi workshop. P.W. 1 did not know the residence of PW2 and PW3. P.W. 1 further said in the cross-examination that he saw the accused persons wrapping the cloth around the nose and mouth of his father. Accused persons also put country made pistol on the temple of his father. P.W. 1 was emphatic in saying that he saw the accused persons trying to kill his father, in as much as they tied the cloth around the mouth and face of the victim. P.W. 1 also proved the fact that Rs. 7,200/- were recovered by the police from the possession of accused Bhola Rai. The recovered currency was also placed before the trial court. PW1, thus, not only supported the prosecution story, but also proved the contents of his complaint (Ext. Ka-1).

PW2 supported the prosecution story and corroborated the testimony of P.W. 1. PW2 said, among other things, that he saw the accused persons fleeing away in the light of electric bulb. In the cross-examination, PW2 said that he and PW3, both were residents of the same locality. Both of them started from the market together. Many a people assembled after the incident took place. PW2 and PW3 did not chase the assailants, in as much as the police arrived at the place of incident in the meantime. Police personnel told P.W. 1, PW2, PW3 to remain inside and they would chase the assailants. PW2 denied the suggestion that he was giving the evidence because of his acquaintance with P.W. 1. Nothing adverse to the prosecution came in the cross-examination of PW2.

PW3 further supported prosecution story and corroborated the testimony given by P.W. 1 and PW2. PW2 and PW3 belonged to the same locality. They were together in the market when P.W. 1 met them. P.W. 1, PW2, PW3 came together inside the bidi workshop to find that P.W. 1''s father was dead and accused persons were fleeing away from the scene of occurrence. In other words, PW2 and PW3 saw the accused persons fleeing away from the scene of crime. PW3 said that they saw the accused persons in the light of electric bulb. The victim was killed. P.W. 1 informed PW2 and PW3 that Rs. 8,000/- to Rs. 10,000/- were also stolen. PW3 said in the cross-examination, that he did not see the accused persons smothering the victim. PW3 also said that Ext. Ka-1 was written by P.W. 14 in his presence. Many other questions were put to PW3 in the cross-examination, much to the discomfiture of the defence side.

Thus, it is clearly established on the basis of oral testimony of P.W. 1, PW2, PW3 that the accused-appellants committed the murder of PW1''s father. P.W. 1 himself was sleeping in the adjoining room when he heard the noise of some outsiders coming to the bidi workshop. When PW 1 went to the room of his father, he found that the accused-appellants were tying the cloth around the mouth and face of the victim. P.W. 1 was frightened. He rushed outside. He met PW2 and PW3 and all of them came together inside the room only to find that P.W. 1''s father was dead. All the three witnesses saw the accused-appellants fleeing away from the scene of crime. The source of light was disclosed. P.W. 1, PW2 and PW3 were cross-examined, but nothing came out in their cross-examination to indicate that they were telling a lie. Their evidence cannot be treated with suspicion. Nothing was brought on record to suggest that the accused-appellants were implicated due to any previous enmity.

Prosecution story was further strengthened by the oral testimony of P.W. 14, who was not only the scribe of the complaint, but followed PW2 and PW3 on the place of occurrence on the fateful night. P.W. 14 wrote the complaint as per the dictation of P.W. 1 in the night itself. P.W. 14 said in the cross-examination that when he reached at the place of occurrence, accused persons had already left the place. P.W. 14 confirmed the presence of P.W. 1, PW2 and PW3 at the place of occurrence. P.W. 14 also said that he saw the injuries on the face of the deceased. Thus, prosecution story was further established by the evidence of P.W. 14. P.W. 1, PW2, PW3 and P.W. 14, all of them, gave consistent statements. There was no inconsistency in their testimony. They are wholly reliable witnesses.

The FIR was promptly lodged, in as much as the incident took place on 28.09.2008, at 09:00 P.M., and the criminal law was set into motion on the same night at 11:30 P.M., within a span of two and a half hours.

When accused-appellants Bhola Rai was arrested on 29.09.2008, at 04:30 A.M., from Forest Barrier, Shakti Farm, it was found that his pant, t-shirt and undershirt were stained with blood, recovery memo (Ext. Ka-9) whereof was prepared by the police. Blood stained earth and simple earth were also taken by the police on 29.09.2008, a memo (Ext. Ka-10) whereof was also prepared. The wearing apparels of accused-appellant Bhola Rai were sent to Forensic Science Laboratory, Dehradun for chemical examination.

The wearing apparels of the deceased were taken by PW4 while conducting postmortem on the dead body of the victim. The undershirt and underwear of the deceased were also sent to FSL for chemical examination alongwith blood stained earth and simple earth.

The report of FSL, Dehradun (Ext. Ka-25) more than clearly established the involvement of accused-appellant Bhola Rai in the commission of murder of Vimal Krishan Rai. Human blood was found on the pant, t-shirt and underwear of accused-appellant Bhola Rai. Blood of group ''B'' was found on the same. The blood found on the undershirt and underwear of the deceased was also of group ''B''. Thus, same blood group was found in the undershirt & underwear of the deceased and on the pant, t-shirt and underwear of accused-appellant Bhola Rai, leaving no scope of doubt that Bhola Rai committed murder of Vimal Krishan Rai. Eyewitnesses have clearly established the presence of both the accused-appellants on the scene of crime. When incriminating evidence was put to the accused-appellants u/s 313 of Cr.P.C., they did not say anything except denying the same. The accused-appellants failed to discharge their burden. Accused-appellant Bhola Rai also failed to account for the recovery of Rs. 7,200/- from his possession. Thus, the prosecution has been able to prove it''s case to the hilt that the accused-appellants committed the murder 10 of Vimal Krishan Rai. Since there is direct evidence of the presence of accused-appellants duly corroborated by the scientific, medical and peripheral evidence, therefore, the (absence of) motive fades into oblivion. Prosecution was able to prove the case against the accused-appellants beyond a shadow of reasonable doubt.

Prosecution evidence was correctly appreciated by the trial court. Learned trial court rightly held both the accused-appellants guilty and convicted them of the charge u/s 302 of IPC. This Court is unable to take a view contrary to what was taken by the Court below. No interference is, thus, called for in the impugned judgment and order.

Criminal appeal preferred by the accused-appellants is, accordingly, dismissed. The conviction and sentence awarded to the accused-appellants is hereby affirmed. Both the accused-appellants are in jail. They will serve out the remaining part of the sentence as was awarded to them by the trial court and thus affirmed by this Court.

Let a copy of this judgment be sent to the Superintendent of jail concerned where the accused-appellants are currently serving out their sentence. A copy of this judgment alongwith the lower court records be also sent to the Court below for compliance.