Chhoteylal and Ors. vs State of U.P.

V. P. Mathur, J.—Out of the three appellants, Chhotey Lal and Manik Chand are real brothers, being sons of Ram Bharos and are residents of village Tirhara, Police Station Manjhanpur, Distric Allahabad and Lakhan son of Saddhu is kewat by caste and belongs to village Alpika Pura, pertaining to the same There. All the three have been convicted on a charge under Section 302 read with Section 34, I. P. C. and sentenced to imprisonment for life by Mr. K. P. Asthana, the then 1st additional Sessions Judge, Allahabad, vide his order dated 4978 passed in Session Trial No. 491 of 1976. Feeling aggrieved, they have now come up in appeal.

The deceased of this case was one Ram Chandra Dwivedi, who was the uncle of the appellants Chhotey Lal and Manik Chand. During consolidation operations, it appears, an agricultural field fell to the share of these three persons. Half of it belonged to the two appellants and the remaining half to Ram Chandra Dwivedi hut it appears that Chhotey Lal and Manik Chand were in exclusive possession of the whole and though Ram Chandra was asking them to agree to a partition, they were not prepared. A month prior to this incident there was a quarrel between the deceased and these two appellants regarding the partition of this field. There was thus bad blood between the deceased and these two persons on account of this land. So far as Lakhan Kewat is concerned, there has been a litigation between the deceased on one hand and Lakhan''s father on the other regarding an agricultural field, measuring 51/2 bighas during the consolidation operations and this case was pending even at the time of this incident. It is said that on account of this enmity the three appellants who were already very close inter se combined against the common enemy.

The occurrence took place at about midnight on 29/3061976 in the Chhappar outside the main door of the house of the deceased in village Tirahara. About a few minutes before this occurrence there had been a whirlwind as a result of which the deceased as well as his two sons Shiv Kumar (P. W. 1) and Awadh Narain (P. W. 2) and his wife Smt. Nanki, who were sleeping outside the house in the open land brought their cota under the Chhappar. The deceased lay just infront of the door at a slightly lower level while his wife and sons lay on the Chabutra on both sides a of this passage. At about midnight Shiv Kumar got up to pass urine and after doing so when he returned back to lie down on the bed he saw the three appellants come near the Charpoy of his father. Chhotey Lal was armed with an axe (Kulhari), Manik Chand had a pharse and Lakhan had a spear and a torch. He flashed his torch to locate the deceased and gave an alarm on which all the appellants started to assault the deceased with their respective weapons. Shiv Kumar cried out. This woke up his mother and his brother. His sister Smt. Sumitra who was sleeping inside the house also came out of the house and saw the incident in part. Some of the neighbours were also woken up and they raised cries from their houses. Within all this time the accused had done their job and after killing Ram Chandra Dwivedi on the spot, ran away before the neighbours could come there. Shiv Kumar was only 14 years of age. He is the oldest of the sons of the deceased. His younger brother Awadh Narain was only 9 years of age at that time. There was no other adult nale member in the family and, therefore, Shiv Kumar sent for his brotherinlaw through a messenger. By the time he came, Shiv Kumar scribed the first information report Ext. Ka 1 and along with his brotherinlaw he went to Police Station, Manjhanpur, covering a distance of 10 kilo metres, on foot and lodged the report in the Thana at 10.30 a.m. on 3061976.

Mr. Ram Babu Singh, SubInspector, was present in the Thana and he took up the investigation. He has been examined in this case as P. W. 6. He came to the village Tirhara and took custody of the dead body, which was still lying on a Charpoy in the Chhappar. He Conducted the investigation and prepared inquest memo Ext. Ka 5 and other papers and then sealed the dead body and sent it to the mortuary. He recorded the statements of the witnesses, inspected the scene of occurrence and prepared the site plan. He searched for the accused persons but did not find them. He also took search of their houses but could not get hold of any thing connected with this murder. Since the accused persons were absconding, he took steps under Sections 82 and 83, Cr. P. C. and got their properties attached, as a result of which Manik Chand and Chhotey Lal surrendered in Court on 8776 and Lakhan surrendered on July 9, 1976.

The potmortem examination on the dead body was made by Dr. Harish Chandra Verma, P. W. 4, on 171976 at 3.45 p. m. The report is Ext. Ka 2 Rigor mortis had passed from both the limbs and following antemortem injuries were noted on the dead body, which may be looked into with reference to the diagram made by the Doctor on the form of the postmortem Enamination report:

Incised wound 4" X 1" over front of chinbone but through 4 incisor teeth loose and cut. injuries on back of scalp as shown in figure.

Incised wound 41/2" bone cut 2" above right ear, eye, bulging.

Incised wound 3" X 1/2" bone cut.

Incised wound 5" x 1" bone cut. Incised wound 2" x 1/2" x 1/2" Incised wound 21/2" x 3/2" x 1/2" Incised wound 11/2" X 1/2" x 1/2"

12" x 4" x scapule cut and fractured incised wound, Incised wound 9" x 1/2" x muscle deep. Incised wound 4" x 2/10" x 2/10"

Incised wound 5" X 2/10" X 2/10"

In middle of back 71/2" X 21/2" muscle deep (incised wound)

Punctured wound 3" x 11/2" x 6" deep below the right nipple (6") and near epigastrium intestines protruding cut,

Incised wound 3"x 1/2" x bone cut on outer and back of left wrist.

Incised wound 3" x 2/10 x 3/10" on back of right wrist.

Incised wound I" x 1/2" bone broken on back of right index figure, phalynx.

Incised wound 3/4" X 1/2" x bone deep back of first joint of right thumb.

Incised wound 2" x 3/4" X 3/10" on outside or right shoulder.

Contusion 3" x 1", outside upper part of left arm.

Contusion 21/2" x 1", right forearm.

The internal examination revealed the fracture of the neck and skull, which had been cut due to injuries described and memberances were also cut. Digested food was present in the abdomen. The death was due to shock and haemorrhage which was a result of injuries sustained.

In all, the prosecution examined 8 witnesses and submitted the affidavits of some formal witnesses. The three eyewitnesses are Shiv Kumar (P. W. 1), Awadh Narain (P. W. 2) and Smt. Nanki Devi (P. W. 3). One other witnesses Mullu (P. W. 8) is a neighbour and he reached the scene of occurrence on hearing the cries and noise but by that time the culpits had already run away. He, however, found the dead body lying on a Charpoy under the Chhappar infront of the main door of the house of the deceased. All others are formal witnesses.

The defence contention appears to be that the murder had been committed in the mango grove of the deceased in the night and subsequently the dead body was brought and kept under the Chhappar of the house and because of enmity the appellants had been falsely implicated. Although in their statements the appellants indicated that they would adduce evidence, it appears that they did not adduce any defence evidence.

So far as the question of murder is concerned, it is not disputed. Even the appellants Chhotey Lal and Manik Chand say that Ram Chandra was murdered between the night of 29th and 30th of June, 1976. This is, however, not the only evidence. The occular account tendered by the three close relatives of the deceased, namely Shiv Kumar and Awadh Narain (Sons) and Smt. Nanki Devi (wife) establishes that fact. It is also established from the statement of Dr. Harish Chandra Verma (P. W. 4) and his postmortem examination report Ext. Ka 2. The deceased did not die a natural death but died as a result of violence. He had received in all 20 injuries, out of which one was a punctured wound, 17 were incised wounds and two were contusions which could have been caused to him when he was trying to ward off the blows of Shis assailants and the lathi parts of the weapons hit him there. The actual dispute by the defence is as regards the time and place of the occurrence and as regards the complicity of the appellants besides the statements of three eye witnesses Shiv Kumar and Awadh Narain and Smt. Nanki Devi, one absolutely independent witness Mulla alias Bhullu has been examined as P. W. 8, In the site plan his house has been shown as existing towards north of the house of the deceased and he says that he heard the weeping and cries from the house of the deceased and he went there but by that time the culprits had already run away and the deceased was lying dead under his Chhapper. There is nothing on record to show that the occurrence took place else where. On the ground under the Chhapper blood was found by the Investigating Officer and he took the samples which were sent to the Serologist and Chemical Examiner and the sample was found of human blood. The Investigating Officer when he reached the spot found the dead body lying on a Charpoy under the Chhapper. In his statement it has been elicited from the Investigating Officer that there was some smearing of blood on the Charpoy itself but it was a highly irresponsible omission on his part that he did not take the ''BANS'' of the Charpoy into custody. Similarly, under his head the deceased had put a Chadar and it was also smegred with blood. The Investigating Officer again showed height of irresponsibility when he wrapped the dead body into this Chadar and sent it to the mortuary. He should have taken the Chadar into custody separately and sent it along with the Bans for Serologist''s examination. But for this lapse on the part of the Investigating Officer the prosecution cannot be made to suffer when the witnesses say in unison that blood had fal''en on the Charpoy and also on the Chadar. The learned Sessions Judge has very correctly considered this aspect of the matter and we agree with him that the injuries had been sustained on such parts of the body that most of the blood would have gone into the Chadar and rest would have trickled down on the ground through the Charpoy and very little might have been left on the Bans of the Charpoy itself. In our opinion, the evidence on record was satisfactory enough to prove beyond doubt that the occurrence took place in the dead of night at about midnight under the Chhapper of the deceased infront of the main door of his house.

As we have already mentioned above, the only eye witnesses are the close relatives of the deceased, namely Shiv Kumar and Awadh Narain (his sons) and his wife Smt. Nanki Devi. The two sons were minors when this occurrence took place. Almost two years after the occurrence when Shiv Kumar and Awadh Narain were, examined they were 16 years and 11 years of age only and Smt. Nanki Devi was a young widow of 36 years. There is no dispute that Chhotey Lal and Nank Chand were closely related to the deceased and these three witnesses also. Under these circumstances, it will be extremely difficult to hold that these close relatives would have gone out of their way to falsely implicate these collaterals on such a serious charge. The enmity which is alleged by the prosecution and admitted by the defence was that Chhotey Lal and Manik Chand were trying to usurp the share of the decased in a plot of land in which the deceased had half share and the former were not allowing the deceased to have his possession on it and Lakhan''s father was having a litigation with the deceased with regard to an agricultural field measuring 5� bighas. By themselves these enmities might not have been so potent as to impel the appellants to put the end to the life of the deceased and so also to motivate the complainant Shiv Kumar and his brother and mother to falsely implicate the appellants. Nevertheless, the eyewitnesses'' testimony is there the when the occurrence is sought to be proved by the occular testimony, the motive part of the case loses much of its importance. The three witnesses named above are interested witnesses but the evidence of relatives cannot be rejected on that ground alone. It has only to be scrtunized with care and caution and in the background of the fact that the relatives would be the last persons to screen the real culprits and implicate innocent persons, especially when they are related.

The statements of Shiv Kumar, Awadh Narain and Smt. Nanki Devi are very straight forward and impress us very much. All these witnesses speak about the burning latern. They also about the weapons with which the culprits were armed. They are very clear to say that although in response of their cries, wailing and weeping the neighbours also raised cries from their houses, they did not come put of their houses till the occurrence lasted. 20 injuries have been caused. Three persons wielded various weapons. It should not have taken very much time to accomplish the purpose. By the accused and the run away. If out of fear the neighbours did not turn up well in time to see the culprits that would not be a circumstance against the prosecution.

The eye witnesses have all stated that in the earlier part of the night they were all sleeping outside in the open land but since there was some sort of storm they dragged their Charpoys under the Chhapper and the occurrence took place at about midnight when they were sleeping under the Chhapper. They all speak about the lighted lantern hanging in a part of this Chhapper and they also say that Lakhan flashed his torch. There is nothing on record to show that the two Chabutras were separated from the passage infront of the door, where the deceased was lying, by any partition wall. The Investigating Officer had made that position very clear when his attention was drawn to the site plan. The testimony of Awadh Narain (P. W. 2) is very straight forward and convincing. He cannot be said to be a totured witness because he has been subjected to a lengthy crossexamination. He was only 9 years of age at the time of the incident. Sinilarly, the testimony of Shiv Kumar, who was only 16 years of the age when he made the statement and 14 years of age when the occurrence took place is also extremely convincing. From these witnesses it has been elicited that the neighbours ran raising shouts and the accused ran away. Thus tlure is no discrepancy in the statement made in the first information report and the statements of the witnesses that so long as the accused remained on the spot, the neighbours had not come. It appears that on hearing the cries, weepings and wailings of these witnesses the neighbours also raised cries in response but took time to come out and by that time the culprits had already run away. The statement of Mullu alias Bhullu confirm this fact. No material contradiction in the testimony of these three witnesses has been pointed out to us.

The contention of the learned counsel for the defence, that there was only one lantern in the house and although a married daughter with a minor child was sleeping in the house, that lantern was kept outside and in this manner there was no light where the infant was sleeping, does not help the defence at all. It is true that the witnesses admitted that they were possessed of only one lantern but no attempt has been made to elicit as to whether inside also there was any light. The possibility of an earthen lamp or Dibbi inside the house cannot be ruled out and unless evidence had been elicited to exclude that possibility, no argument can be advanced on the same.

The medical evidence completely supports the prosecution version. The injuries could have been caused by three types of weapons, namely two heavy cutting weapons like Kulhari and Pharsa causing incised wounds and one sharp pointed weapon like a Ballam also causing incised wounds and penetrating wound.

Our attention was drawn to the statements of Shiv Bhushan Singh Pradhan, the Investigating Officer as well as the Constable Clerk that the F.I.R. was lodged at 10.30 a.m. and to the statement of Smt. Nanki Devi (P. W. 3) where she stated that the Investigating Officer came at about sun rise and hence it was argued that the first information report was written out after the arrival of the Investigating Officer. The statement of Smt. Nanki Devi in this respect is an inadvertant wrong statement. It does not find support from any other evidence on record. The Investigating Officer could not have come on the spot before the lodging of the report. In a family which consisted only one adult male member who had been killed and in which minor children and ladies were left, there was nobody to go to the Thana and inform the police after covering a distance to 10 kilo metres. In such manner how the Investigating Officer could have come on the spot early in the morning at sun rise. P. W. 5 Shiv Bhushan states that the Investigating Officer came at about 1.00p.m. His statement is that he went to the house of the deceased at 6.00 a.m., stayed there for about ten minutes and then revisited the house at 1.00 p.m. when the SubInspector recorded his statement. He does not state about the presence of SubInspector early in the morning. We agree with the learned Sessions Judge that the statement of Smt. Nanki Devi does not in any way discredit the testimony of other witnesses and it cannot be argued that the first information report is antetimed and had been scribed after the arrival of the investigating Officer.

It is true that Section 157, Cr. P. C. was not properly complied with inasmuch as the Special Report was not sent forthwith to the Court concerned but this by itself, without any other circumstance, is nothing to come to a conclusion that the investigating was tained or that the F.I.R. was not in existence at the time when it is alleged to have come into existence. In the case of Pala Singh and another v. State, AIR 1972 SC 2679, it has been held that mere delay in receipt of report of occurrence by the Magistrate will not make the investigation tainted without any other circumstance which may lead to that conclusion. In the present case since the prosecution evidence has been found to be reliable, this delay in seeding of the special report to the Magistrate will have no bearing on the prosecution case.

Much of the argument of the learned counsel for the defence revolves round the fact that Shiv Bhushan Singh said that he visited the house of the deceased at 6.00 a.m. and there was no talk about the assailants and this indicates that the identity of the accused was not established by that time and subsequently, the names of the appellants were picked up and a false report was lodged. The entire statement of this witness will have to be looked into. He says that he reached the spot at about 6.00 a.m. There was a huge crowd of 100 persons. He remained on the spot for 10 minutes and then left. In his presence there was no talk about the identity of the assailants. He also says that at that time the kith and kin of the deceased were weeping. This statement clearly shows that so far as he concerned nobody told the names of the culprits but what happened with those who had reached the spot earlier to him? Shiv Kumar clearly says that he had given out the names of the culprits to those who arrived soon after the occurrence. If he did not do so with this witness and the witness says that he did not hear the names of culprits, it will not in any manner take us to the conclusion that the names of the culprits upto that time were not yet decided.

In this manner after analysing the entire evidence on record and considering the entire facts and circumstances, we are in complete agreement with the learned Sessions Judge that the guilt of the accused was proved without any reasonable doubt and that unimpechable evidence of reliable witnesses establishes completely that the three appellants participated in this occurrence and committed the murder of Ram Chandra Dwivedi at about midnight on 29/3061976 while he was sleeping on his Charpoy under his Chappar infront of his main door. They have rightly been convicted and the sentence awarded to them also does not call for any interference.

The appeal has no force and is hereby dismissed. The conviction of the appellants under Section 302 read with Section 34, I. P. C. and the sentence of imprisonment for life awarded to them is upheld and stands confirmed. The appellants are on bail. They shall surrender and will be taken into custody forthwith to serve out their sentences and their bail bonds and surety deeds shall be cancelled.