Chandra Prakash (In Jail) vs State of U.P.

M. Chaudhary, J.—This appeal has been filed by accused Appellant Chandra Prakash from judgment and order dated 20th of December, 1980 passed by 1st Additional Sessions Judge, Etah in Sessions Trial No. 722 of 1979, State v. Hari Om and another convicting the accused Appellant u/s 302 read with Section 34, I.P.C. and sentencing him to imprisonment for life thereunder. Co-accused Hari Om was acquitted by the trial court.

Brief facts giving rise to this appeal are that at about 7.20 a.m. on 15th of August, 1979 Sudhir Kumar Pandey lodged an F.I.R. at police station Sidhpura, District Etah that early in the morning on 15th of August, 1979 he had gone to his fields to see the crop ; that at about 5.45 a.m. his uncle Girish Chandra in a small bullock-cart (Firak) driven by his servant Gopal keeping the ploughshare therein was coming to his fields ; that as the bullock-cart reached near the field of Naman, Hari Om and Chandra Prakash emerged from the sugarcane crop and on reaching near the bullock-cart they fired at Girish Chandra with country made pistols and immediately Girish Chandra screamed and then both the miscreants fled away. Sustaining the firearm injuries Girish Chandra died on the spot instantaneously. He also mentioned in the F.I.R. that the said incident was witnessed by Rajendra Pal and Nahar Singh who were going towards Etah on bicycles. The police registered a crime against the accused accordingly on the basis of the written report handed over at the police station and made entry regarding registration of the crime in the general diary (Exts. Ka-4 and Ka-7).

It appears that S.I. N. P. Singh who took up investigation of the case in his hands visited the scene of occurrence and drew inquest proceedings on the dead body of Girish Chandra lying in the bullock-cart. He prepared inquest report of the dead body of Girish Chandra (Ext. Ka-9) and other necessary papers (Exts. Ka-8 and Ka-10) and handed over the dead body in a sealed cover to the police officials for being taken for its post-mortem. Then he inspected the place of occurrence and prepared its site plan map (Ext. Ka-6). He also collected blood stained and simple earth from the scene of occurrence and also from the bullock-cart and prepared their memos (Ext. Ka-5). He also recorded statements of the witnesses and did other necessary things.

Autopsy on the dead body of Girish Chandra conducted by Dr. P. K. Jain on 15th of August, 1979 at about 5.45 p.m. revealed below noted ante-mortem injuries:

(1) Multiple firearm wounds of entry 1 cm. x 1 cm. x cavity deep on right side back of chest in an area of 15 cm. x 10 cm. Margins inverted and lacerated. No blackening. Direction forward obliquely upward and right to left.

(2) Three firearm wounds of exit 1-1/2 cm. x 1-1/2 cm. on left side of front of chest upper part and root of neck in an area of 6 cm. x 5 cm. Margins everted and lacerated.

(3) Firearm wound of entry 2 cm. x 2 cm. x cavity deep on the right lumber region just above the post superior iliac spine. Margins inverted and lacerated. No blackening present. Direction forward, obliquely upward and from right to left.

On an internal examination both the lungs and pleurae were grossly lacerated and the doctor recovered five pellets from left cavity. Pericardium was also found grossly lacerated. Haematoma present in the layers of abdominal walls below ante-mortem injury No. 3 and peritoneum also grossly lacerated. The abdominal cavity contained 12 ozs. of free and clotted blood and the doctor recovered one Gatta piece and 3 pellets. Small intestines was empty and large intestine full. Right kidney was grossly lacerated. In the opinion of the doctor death was caused due to shock and haemorrhage as a result of ante-mortem injuries about half a day ago.

After completing the investigation police submitted charge-sheet against the accused accordingly.

After framing of charge against the accused the prosecution examined Sudhir Kumar (P.W. 1), Gopal (P.W. 2) and Nahar Singh (P.W. 3) as eye-witnesses of the occurrence in their support. Testimony of the remaining witnesses examined by the prosecution is more or less of formal nature. P.W. 4 Dr. P. K. Jain, the then Medical Officer District Hospital, Etah who conducted autopsy on the dead body of Girish Chandra has proved the post-mortem report, stating that the ante-mortem injuries sustained by the deceased were sufficient to cause his death in ordinary course.

The accused pleaded not guilty denying the alleged occurrence altogether and stating that he was got implicated in the case falsely on account of enmity.

On an appraisal of the evidence on record and after hearing the parties'' counsel learned Additional Sessions Judge found accused Chandra Prakash guilty of the offence with which he was charged and recorded his conviction accordingly and sentenced him as stated above.

Feeling aggrieved by the impugned judgment and order the accused Appellant preferred this appeal for redress.

We have heard learned amicus curiae for the Appellant and the learned A.G.A. for the State and also gone through the record. Now we shall deal with the arguments advanced by the learned amicus curiae in support of the appeal and see if they have got any substance.

It has first been argued emphatically by the learned amicus curiae that since co-accused Hari Om named in the F.I.R. has been acquitted and evidence against both the accused so far as ocular testimony of the eye-witnesses is concerned was the same, the accused Appellant should also be acquitted. In our view, the said argument advanced by the learned amicus curiae is wholly misconceived. Merely because the co-accused named in the F.I.R. has been acquitted, though evidence against both of them consisting testimony of the eye-witnesses was the same, does not lead as a necessary corollary that one who has been convicted must also be acquitted as it is always open to the Court to distinguish the case of the accused who had been acquitted from that of the co-accused who was convicted. In the instant case both the eye-witnesses, namely, P.W. 1 Sudhir Kumar and P.W. 3 Nahar Singh consistently stated that out of the two assailants, one was Chandra Prakash and the other had wrapped cloth on his face and by his stature and structure, he appeared as Hari Om. P.W. 2 Gopal stated that the alleged morning, he was driving the bullock-cart (Firak) taking Girish Chandra towards his fields and as he, taking the bullock-cart, reached near the field of Naman, he heard the sound of shot and on turning back, he saw Chandra Prakash firing shot at Girish Chandra and another miscreant running away and that since he saw the person running away from back side, he appeared to him similar to Hari Om. Thus, neither of these three eye-witnesses categorically stated that one of the assailants was Hari Om. Under these circumstances, he was rightly given benefit of doubt by the learned trial Judge. The said argument is therefore, repelled.

Secondly, it has been argued by the learned amicus curiae that the doctor conducting autopsy on the dead body of Girish Chandra found his stomach and small intestine empty and large intestine full with faecal matter which indicates that he was murdered at some dark hour and none witnessed his murder. In our opinion, the said argument advanced by the learned amicus curiae is also fallacious. P.W. 1 Sudhir Kumar and P.W. 3 Nahar Singh both the eye-witnesses consistently stated that Girish Chandra was going to his fields in the bullock-cart (Firak) driven by Gopal keeping the ploughshare therein and at about 5.45 a.m. as he reached in the bullock-cart near the field of Naman, both the miscreants armed with country made pistols emerged from the sugarcane crop and reached near the Firak and that then he saw each of them firing a shot at Girish Chandra and sustaining the fatal injuries, he died in the bullock-cart itself instantaneously. P.W. 2 Gopal who was servant of the deceased and driving the bullock-cart corroborated them on all the material points stating likewise. The said murder of Girish Chandra was committed at about 5.45 a.m. and it is not necessary that he must have evacuated as he might not have felt pressure by that time. The said argument has got no substance in it and falls to the ground.

Thirdly, it has been argued by the learned amicus curiae that in the inquest report, there is over-writing at the time of lodging of the F.I.R. and in ''Chitthi Ravangi'' time of lodging the F.I.R. and time of reaching the dead body at the police headquarter has not been mentioned in the columns meant therefor, and by these circumstances, he wanted that it should be concluded that the F.I.R. is ante-timed. In our opinion, the said argument has no substance in it. It has come in evidence that the alleged incident took place on 15th of August, 1979 at about 5.45 a.m. and the F.I.R. of the occurrence was lodged at the police station Sidhpura situate at a distance of about one and a half mile from the place of occurrence at 7.20 a.m. and the police registered a crime against the accused accordingly and made entry regarding registration of the crime in the G.D. (Exts. Ka-4 and Ka-7). We see no plausible reason to doubt the veracity of the G.D. entry and the time of occurrence mentioned in the check report. Further no doubt there appears to be some over-writing over the time of lodging of F.I.R. in the entry made in the inquest report. It is also true that time of lodging of F.I.R. and the time of reaching the dead body at the police headquarter is not mentioned in the ''Chitthi Ravangi'' ; but a perusal of the inquest report goes to show that the inquest proceedings were concluded at about 10.00 a.m. that very morning and the dead body in a sealed cover along with necessary papers was handed over to the police officials to be taken for its post-mortem. And post-mortem on the dead body was conducted by Dr. P. K. Jain, Medical Officer, District Hospital, Etah at 5.45 p.m. the same day. For the above, the said argument has got no life.

Lastly, it has been argued by the learned amicus curiae that P.W. 1 Sudhir Kumar and P.W. 2 Gopal are interested witnesses and P.W. 3 Nahar Singh is a chance witness. Admittedly, P.W. 1 Sudhir Kumar was the nephew of the deceased and P.W. 2 Gopal his servant. It is also true that the incident took place at village Memrah and P.W. 3 Nahar Singh is a resident of village Damai. Explaining his presence at the scene of occurrence that morning P.W. 3 Nahar Singh stated that at that time he was going to Etah as he had to make some purchases from the market there, that that morning he had first gone from his house to Chandpur as he had to realize money lent by him and that thereafter he along with Rajendra Pal who met him there were going to Etah. The sworn testimony of interested witnesses or of a chance witness cannot be thrown overboard on that ground alone if on close and careful scrutiny, their testimony appears to be trustworthy and is above the reproach of suspicion. All these three eye-witnesses withstood the test of cross-examination firmly and nothing could come out to shake the central core of their assertion in respect of the prosecution version.

The sworn testimony of the three eye-witnesses stands corroborated by the prompt F.I.R. and the medical evidence on record, and considering all the relevant aspects we find that the learned trial Judge was perfectly justified in believing the prosecution case and evidence against the accused Appellant. The appeal has got no merit and is liable to be dismissed.

The appeal is hereby dismissed. Conviction of the accused Appellant u/s 302 read with Section 34, I.P.C. and sentence of imprisonment for life awarded thereunder are affirmed. Since the accused Appellant was absconding, he shall be arrested and lodged in the jail to serve out the sentence imposed upon him.

Rs. 1,000.00 (Rs. One thousand) only shall be paid to Sri A. K. Awasthi the amicus curiae as his legal remuneration.

Certified copy of the judgment along with record of the case be transmitted to the Court below to ensure compliance under intimation to this Court within three months from today.