Chhotkanna and Others vs State

Maithli Sharan, J.—This appeal has been preferred by the seven Appellants against the judgment of conviction and sentence dated 5.7.1980, passed by Sri J.S. Singhal, IVth Additional Sessions Judge, Sitapur, convicting and sentencing the Appellants to imprisonment for life u/s 302/149, I.P.C. and to undergo eighteen months'' R.I. u/s 148, I.P.C, both the sentences were ordered to run concurrently.

This is a double murder case. One Khusal Pasi and his wife Smt. Phulbasa are alleged to have been murdered by the Appellants. Admittedly, Appellant Nos. 1 to 5 are closely related to the deceased Khusal, being his nephews and nephew''s son. Thus, they were undisputedly the members of the same family. Appellant No. 6 Lawa is the father-in-law of Appellant Chhotkanna and Appellant No. 7 Ramley is the son of accused-Appellant No. 6. Thus, these two Appellants are also related to the deceased.

The prosecution case, in brief, is that since much before the date of occurrence, some dispute regarding the ''Ahata'' and cattle-trough was going on between the deceased Khusal and accused-Appellant Chhotkanna, and about 4-5 months prior to the incident in question there had occurred some quarrel also in this regard. According to the prosecution, the incident in question occurred during the midnight of 14/15th July. 1976 in village Dudhiapur. for Manpur, police-station Talgaon, district Sitapur at the house of deceased Khusal. Both the deceased persons, namely, Khusal and Smt. Phulbasa were sleeping outside their house under the thatching called ''Tarwaha'' their son Bisram (P.W. 1) and married daughter Smt. Kamla (P.W. 4), besides Ors. daughters, were sleeping inside the house. One ''Dibbi'' was burning in the ''Tarwaha'' outside the house. According to the prosecution Bisram (P.W. 1) and Smt. Kamla (P.W. 4) got awakened when they heard cries of their parents during the midnight, and slightly opening the door they saw that all the accused-Appellants were severely assaulting their parents by ''Candasa'' and ''Banka''. They could see all this with the help of ''Dibbi'' which was burning in the ''Tarwaha'' where their parents were sleeping and also when Bishram (P.W. 1) had flashed his torch. They could not dare to come out of the room because of the fear of the accused-Appellants. They had also heard the accused-Appellants saying ''Vara Nyara Karke Hi Hazir Honge''. They raised alarm to attract the villagers for help. Their uncle Bhoop (P.W. 5) and Ors. persons reached over there. After committing murder of Khusal and his wife Smt. Phulbasa, accused-Appellants had run away. Bisram (P.W. 1) and Smt. Kamla (P.W. 4) then came out and found that their parents had died. Next day at about 10 a.m. P.W. 1 Bisram reached the police station and lodged the first information report which was written by the Police Head Moharrir and a criminal case was registered against all the seven accused-Appellants and the investigation was started by Station House Officer Syed Ajlal Hussain (P.W. 8).

Syed Ajlal Hussain (P.W. 8), Investigating Officer, had recorded the statements of Bisram (P.W. 1), informant and son of deceased persons, at the police station itself and then reached the place of occurrence, summoned the main witnesses and conducted the inquest proceedings. He prepared the relevant documents, seized dead bodies and sent them through Constables Bans Gopal and Munna Lal (P.W. 9) to the District Hospital, Sitapur for their post-mortem examination. The bloodstained ''KathrV lying over the cot under the dead bodies, blood-stained earth lying below the cot and unstained earth were seized and sealed separately. The ''Dibbi'' which was burning in the ''Tarwaha'' in the night and the torch which was alleged to have been flashed by informant Bisram (P.W. 1) were also seized and sealed, and connected memos were prepared in the presence of the witnesses. The site-plan was also prepared by the Investigating Officer Syed Ajlal Hussain (P.W. 8). The statements of Smt. Kamla (P.W. 4), daughter of the deceased persons, and Bhoop (P.W. 5), brother of the deceased Khusal were recorded. The accused persons could not be traced at that time but afterwards they were arrested at the Bus Station, Sitapur. They were also interrogated by the Investigating Officer Syed Ajlal Hussain (P.W. 8), and on their information weapons of offence, namely, ''Gandasa'' and ''Banka'' were got recovered and relevant memos were prepared in this regard. The ''Gandasa'' and ''Banka'' were seized and sealed and along with other collected materials they were also sent for chemical examination. Dr. Shashank Tandon (P.W. 3) had conducted the autopsy on the dead bodies of Khusal and his wife Smt. Phulbasa. Reports of post-mortem examination are Exts. Ka2 and Ka3 respectively, and reports of the doctor for post-mortem examination are Ext. Ka11 and Ka12. The other exhibits prepared by the Investigating Officer Syed Ajlal Hussain (P.W. 8) are inquest reports of the dead bodies (Exts. Ka5 and Ka6), sketch memos of the dead bodies (Exts. Ka7 and Ka8), despatch memos of the dead bodies (Ext. Ka9 and Ka-10), the memos of blood-stained earth and torch (Ext. Ka-13 and Ka14). site-plan (Ext. Ka-15), G. D. reports (Exts. Ka-16 and Ka17), memos of delivery of weapons by the accused persons (Exts. Ka-18 and Ka-19), site-plan of the place of delivery of weapons (Ext. Ka-20 and G.D. report Ext. Ka-21).

After completing the investigation in the case, the Investigating Officer Syed Ajlal Hussain (P.W. 8), filed the charge-sheet in the Court of the concerned Magistrate where from the case was committed to the Court of Sessions. Charges for the offences Under Sections 148 and 302 read with Section 149, I.P.C. were framed by the learned Additional Sessions Judge against all the seven accused-Appellants. Charges were read over and explained to them in Hindi: they pleaded not guilty and claimed to be tried. In their statements u/s 313, code of Criminal Procedure the accused-Appellants have denied their complicity with the crime in question; their version is that they had been falsely implicated due to enmity. However, they did not examine any witness in their defence.

To prove the complicity of the accused-Appellants with the crime in question, the prosecution examined nine witnesses, out of whom Bisram (P.W. 1) and Smt. Kamla (P.W. 4) are the son and daughter respectively of the deceased persons and they are the eyewitnesses of the incident in question, Bhoop (P.W. 5) is the brother of the deceased Khusal who, according to the prosecution, is also an eyewitness, but he did not support the prosecution and simply alleged that he had not seen the assailants, and Dr. Shashank Tandon (P.W. 3) is the surgeon who conducted the autopsy on the dead bodies of both thve deceased persons. Natthu (P.W. 2) is the witness of recovery of the weapons of offence but he did not support the prosecution and turned hostile. V. K. Tandon (P.W. 7) is a formal witness as he was a clerk in the hospital and he simply deposed regarding the sending of the various bundles of the seized articles for chemical examination. Ram Avtar Singh (P.W. 6) and Munna Lal (P.W. 9) are Police Constables and they are formal witnesses. Syed Ajlal Hussain was Station Officer of the police station Talgaon, he conducted the investigation in the case and filed the charge-sheet in the Court.

Scrutinising the prosecution evidence available on record, it becomes clear that in this case the material and crucial oral evidence consists of the statements of Bisram (P.W. 1) and Smt. Kamla (P.W. 4), son and daughter respectively of the deceased persons, besides of course the evidence of Dr. Shashank Tandon (P.W. 3) who conducted autopsy on the dead bodies of both the deceased persons. Undisputedly, it has already been observed, the accused-Appellant Nos. 1 to 5 are the members of the family of the deceased persons, being closely related to them, and accused-Appellant Nos. 6 and 7 are related through accused Chhotkanna. It is also admitted that murder of Khusal and his wife Smt. Phulwasa did take place. The only point to be pondered over is as to whether it is the accused-Appellants who had committed their murder.

At the outset, it would be proper to scrutinize the evidence of the informant Bisram (P.W. 1), the son of the deceased persons. He has deposed that there had been dispute between his father Khusal on one hand and accused Chhotkanna on the Ors. hand in regard to cattle-trough and the ''Ahata'', and that quarrel and marpeet had also taken place about 4-5 months back in the month of March, and thereafter Panchayat was summoned. This point was not-seriously disputed and challenged in his cross-examination. On this point, Bhoop (P.W. 5), the brother of the deceased Khusal, also deposed and stated that there was a dispute between Khusal and accused Chhotkanna in regard to the cattle-trough and ''Ahata'' and further that Panchayat was summoned. Though this witness Bhoop did not support the prosecution in regard to the killing of the deceased persons by accused-Appellants and was got declared hostile by the prosecution, but the fact remains that he did support the prosecution version that there was a dispute between the accused persons and Khusal in regard to cattle-trough and ''Ahata''. This aspect of the case goes to indicate motive of the accused-Appellants to commit the crime in question. True, it may not be taken to be a very strong motive, but it is also true that this aspect of the matter cannot be lost, sight of, and coupled with the eye-witness account of the crime in question given by Bisram (P.W. 1) and his sister Smt. Kamla (P.W. 4), this aspect of the matter would certainly go to corroborate the prosecution case.

Bisram (P.W. 1), son of the deceased persons, has deposed that during the opportune night, his parents were sleeping outside the house at the ''Mohra'' beneath the ''Chhappar'', and he (P.W. 1) and his sister Smt. Kamla (P.W. 4) and Ors. Sisters were sleeping inside the ''Barotha''. He further deposed that he got awakened on hearing the hue and cry of the parents and then he saw, from behind the door in his torchlight and in the light of the ''Dibbi'' which was burning outside the ''Barotha'', that all the accused-Appellants were severely assaulting his mother and father who were lying on the cot. He has deposed that accused persons, namely, Chhotkanna, Raja Ram Kunwar and Chingan were having ''Gandasa''. while Ram Dayal, Lawa and Ramley were having ''Banka'' in their hands. The accused persons were crying and saying that "Vara Nyara Karke Hi Hazir Honge". He has deposed that he - did not go outside the ''Barotha'' on account of fear, and raised alarm from inside itself. He has further deposed that after severely assaulting his parents the accused persons had fled away, and thereafter he came out and found that his parents had died and the dead bodies were stained with blood. On the next day at about 9 a.m., he went to the police station for lodging the first information report.

In the cross-examination of this witness Bisram (P.W. 1), nothing significant could be brought to doubt his testimony. Some suggestions were no doubt put to him regarding the enmity of his father Khusal with one Gangoo or with Bhagwan Din, but he denied. In his cross-examination, he has specifically deposed that he had taken meal at about 8.00 p.m. and his parents took meal afterwards and had gone to sleep outside the ''Barotha''. He has clearly deposed, that he and his sisters had made hue and cry. It is true that minor contradictions are there in his statement on oath before the Court and his police statement but they are not material contradictions which might go to belittle his testimony. In his cross-examination, he has also very vividly deposed that faces of the accused-Appellants were open, and not covered, hence he could see them very well.

Smt. Kamla (P.W. 4) is the married daughter of the deceased persons and at the opportune time, she was also there in her parents'' house. Regarding her presence (P.W. 4), learned Counsel for the Appellants has argued that it was doubtful that she was there at the place of occurrence because she is a married daughter and she must have been at her ''Sashural''. and, therefore, she becomes a chance witness. True, Smt. Kamla was a married daughter of the deceased persons, but looking to the month of the incident in question, i.e., July, her presence at her parents'' place becomes more probable because that was the time of ''Shravan'' when usually married daughters come to their parents'' place. In this regard, a question was also put to her (P.W. 4), and she replied that she had come to her ''Maika'' for Shravan'' as the married daughters do come to their ''Maika'' in ''Shravan'' month. She further deposed that she had been there, for the last about 20 days, in her ''Maika''. Thus, she could not only not be said to be a chance witness, but, all the more, her presence becomes more probable. Therefore, the argument of the learned Counsel in this regard does not appear to be sound.

Smt. Kamla (P.W. 4) has deposed that at about 8.30 p.m. that day she had taken food and along with her brother and Ors. Sisters she was sleeping in ''Barotha''; she was the eldest among her brother and sisters. She has deposed that her parents had taken food afterwards and had gone to sleep in Tarwaha''. She further deposed that she and her brother got awakened on hearing the cries of the parents, and they saw from behind the door in the torch light and the ''Dibbi'' which was burning outside the ''Barotha'' that accused Chhotkanna, Raja Ram, Kunwar and Chinga were assaulting her parents with ''Gandasa'' while accused Ram Dayal, Lavva and Ramley were assaulting with ''Banka''. She (P.W. 4) and her brother Bisram (P.W. 1) made hue and cry. At the time of assaulting accused were saying "Vara Nyara Karke Hi Hazir Honge". Afterwards, she went outside the ''Barotha'' and found that her parents had died. In her cross-examination also nothing significant could be elicited to disprove her testimony. On the point of burning of ''Dibbi'' outside the ''Barotha'', she was contradicted that she had not told this fact in her police'', statement but she denied and deposed that she did state this fact in her police statement. Even assuming that she did not state this fact to the police, it could not be said that she could not see and identify the assailants who were closely related to her and were not wearing and mask. Besides, there was torch light also, and she has very specifically deposed that her brother Bisram had flashed torch from behind the door. Thus, on this count alone it cannot be said that she had not witnessed the incident.

Discussing the evidence of Bisram (P.W. 1) and his sister Kamla (P.W. 4), it is very clear that their statements are supportive to each Ors. and nothing in their cross-examination could be brought to disprove their testimony. An eyewitness account given by them very clearly goes to indicate that they did witness the assailants severely assaulting their parents. The assailants were closely related to them and hence their identity could have been easily recognized by them (P.W. 1 and P.W. 4). From arrange also they have to be taken to be truthful witnesses because they would not falsely implicate their kith and kin leaving behind the real culprits.

The first information report Ext. Ka-1 lodged by Bisram (P.W. 1) son of the deceased persons further goes to corroborate the evidence adduced by eye-witnesses P.W. 1 Bisram and P.W. 4 Kamla. Learned Counsel for the Appellants has argued that there was delay in lodging the first information report Ext. Ka-1 and hence the prosecution case becomes suspicious. Looking to the factual aspects of the case, the argument of the learned Counsel is not tenable. The explanation given by Bisram (P.W. 1) is plausible. He has deposed that on account of fear, he did not go to the police station in the night itself and in the morning he went there, at a distance of about 8 miles, and lodged the report. Under these circumstances, it could not be said that there was delay in lodging the F.I.R.

The medical evidence further goes to support the prosecution case. Dr. Shashank Tandon (P.W. 3) conducted the autopsy on the dead bodies of Khusal and his wife Smt. Phulbasa. According to him on the person of Khusal he found as many as 11 incised wounds and on the person of Smt. Phulbasa he found as many as 13 incised wounds. He has deposed that the said injuries could be caused by sharp-edged weapons like ''Gandasa'' and ''Banka''. Considering these injuries, found on the person of both the dead bodies, it is but clear that most of them were caused on the vital parts of the bodies. Dr. Shashank Tandon (P.W. 3) has deposed that injuries were sufficient in the ordinary course of nature to cause death, and the alleged time of the occurrence should have been in the night of 14/15th July, 1976. He further deposed that injuries might have been caused when the victims were lying. Thus, the medical evidence lends support and goes to corroborate the prosecution story and the evidence of eye-witnesses in material respects.

So far as the aspect of the recovery of weapons of offence at the instance of accused persons is concerned, learned Sessions Judge has rightly held that it could not be proved by the prosecution. Nattb Under (P.W. 2} is the witness of recovery but he has not supported the prosecution stand in this respect. He has specifically deposed that the accused -Appellants Kunwar and Raja Ram had not stated anything regarding the recovery of the said weapons in his presence. Though the recovery aspect of the weapons of offence no doubt is not proved by the prosecution, but certainly this weak limb of the prosecution cannot in any way go to destroy the important fabric of the prosecution evidence discussed above which goes to pin pointedly connect the accused-Appellants with the crime in question. In the result, we find that the prosecution has been successful in bringing home the guilt of the accused-Appellants that they had formed unlawful assembly and in furtherance of its common object they had committed the offence of rioting and intentionally and knowingly caused the murder of Khusal and his wife Smt. Phulbasa. Therefore, the conclusions arrived at by the learned Additional Sessions Judge in convicting and sentencing the accused Appellants for the offences Under Sections 148 and 302/149, I.P.C. are upheld.

Consequently, this appeal fails and is dismissed as such. Bail bonds of the Appellants are cancelled. C.J.M. concerned is directed to take accused persons into custody and send each of them to Jail to serve out the sentences as passed by the learned Additional Sessions Judge, Sitapur. Material exhibits shall be disposed of as per rules. Accused-Appellants be given benefit of Section 428. Code of criminal Procedure