Chotey Lal, Tappu @ Kishore and Om Prakash vs State of U.P.

Imtiyaz Murtaza, J.—Both these appeals have been filed against the judgment and order dated 4.6.2005 passed by Addl. Sessions Judge,. Court No. 2 District Ghazipur in S.T. No. 118 of 1995 whereby the appellants have been convicted u/s 302/34 I.P.C. and sentenced to life imprisonment.

Briefly stated the prosecution case is that on 2.8.1994 at 9 a.m. the informant Rakesh Kumar Singh and his father were going on a Cycle. He had to attend his duty in Hydel Department, Mau. The informant was silting on the carrier of Cycle for going to his school situated in village Mardah. There was enmity between his family and family of Chhotey Lal Kashmira. As they came out of the village Chhotey Lal, Tappu alias Kishore Kashmira and Om Prakash carrying Gandasa in their hands and Potu aliis Chaitanya Swaroop armed with knife came running from the back side and started assaulting his father Surya Nath Singh with Gandasa and a knife. He ran and raised cries. His mother Savitri and Udhav Misra, Ram chandar Yadav, Maniram Yadav, Ramesh Chandra Sharma and several other persons reached there and witnessed the occurrence. The accused persons ran away towards the eastern side after assaulting his father who died and his dead body was lying on the spot. The report was registered at police station Mardah on 2.S.1994 at 10 a.m. On the basis of a written report of Rakesh kumar, Head Constable Shankar Sharan Pandey prepared the chik F.I.R. and G.D entry which are Ext. Ka-2 and 3. After registration of the case Station House Officer Ganga Prasad commenced investigation. He prepared the inquest report on the dead body of Surya Nath Singh and handed over in a sealed condition to constable Nagendra Yadav and Mukteshwar Pandey for carrying the same to the mortuary for post mortem examination. The inquest memo is Ext. Ka-4 and the relevant papers for the post mortem examination are Ext. Ka-5 and 6. He recorded the statements of Rakesh Kumar Singh and Smt. Savitri Devi. On the pointing of the informant he prepared the site plan, which is Ext. Ka-10. Cycle of the deceased, a bag containing a diary, a wrist watch, Rs. 120/- cash, one dot pen and two pencils were recovered and handed over to Savitri Devi. He also collected blood smeared and plain earth from the place of occurrence under a recovery memo, which is Ext. Ka-12. After conclusion of the investigation he submitted the charge sheet against the accused persons.

Post mortem on the dead body of Surya Nath Singh was conducted by Dr. S.C. Pandey and he noted following ante mortem injuries on the person of the deceased:

Incised wound 18 cm. x 3 cm. x 3 cm. over the right side of skull 2 cm. above the right ear;

Incised wound 7 cm. x 2 cm. x 3 cm. over right side of face just above the right eye;

Incised wound 5 cm. x 1.5 cm. x 2 cm. over right side of face 1.5 cm. below injury No. 2;

Incised wound 4 cm. x 1 cm. x 2 cm. over right side of face 1 cm. below injury No. 3;

Incised wound 3 cm. x 1 cm. x 1 cm. over right side of neck 3 cm. below injury No. 4;

Incised wound over right side of chest 4 cm. above the right nipple.

Incised wound 2 cm. x 2 cm. x organ deep with protruding large intestine over right side abdomen 10 cm below the umbilicus at 8 O''clock position.

Incised wound 3 cm. x 2.5 cm. x 3cm. over the right hand just above front of the wrist joint.

Incised wound 3 cm. x 2 cm. x 2 cm. over the left hand on the front side 4 cm above the left wrist joint.

10.Incised wound 4 cm. x 3 cm. x 1 cm. over the left side of neck 4 cm. above the mid clavicle.

Incised wound 2 cm. x 1 cm. x 1 cm. over the back in midline.

In the opinion of the doctor cause of death of the deceased was due to coma as a result of ante mortem head injury.

After the submission of the charge sheet the case was committed to the court of Session. The Sessions Judge has framed charges u/s 302/34 I.P.C against the accused persons.

The ease of the defence was of denial and false implication and they did not examine any witness in their defence.

In order to prove its case, the prosecution has examined 7 witnesses in all.

P.W. 1 Rakesh Kumar Singh and P.W. 2 Savitri Devi and P.W. 3 Udhav Mishra are the eye witnesses of the ease, P.W. 4 Shankar Sharan Pandey prepared the chik F.I.R. P.W. 5 Ganesh Prasad Yadava is the investigating officer of the case, P.W. 6 Mukteshwar Pandey had escorted the dead body from the place of occurrence to mortuary for post mortem examination, and P.W. 7 Dr. S.C. Pandey conducted the autopsy on the dead body ot Surya Nath Singh, deceased.

The Sessions Judge after considering the evidence on the record convicted the appellants as aforesaid, hence this appeal.

We have heard Shri Sudish, learned Counsel for the appellants and the learned A.G.A. Shri R.K. Singh and Shri M.S. Yadav.

Learned Counsel for the appellants submitted that presence of the informant at the time of occurrence is not probable. He is the son of the deceased. He did not receive any injury nor any blood was found on his clothes. There is conflict in medical and direct evidence. According to the prosecution case the deceased was pushed from the Cycle but he did not receive any abrasion. The age of P.W. 1 informant of the case is such that he could not lodge a detailed report, his presence is also not corroborated by the fact that no school bag was recovered from the place of occurrence. The post mortem report also contradicts the time of occurrence because the stomach of the deceased was found empty.

On the contrary, learned A.G.A. submits that recovery of Cycle and bag containing diary, pencil and pen corroborates the prosecution case that deceased was going to attend his duty in Hydel Department. Post mortem report fully corroborates the prosecution ease because according to the eye witness account deceased was assaulted by Gandasa and knife and in the opinion of the doctor injuries could be caused by these weapons. It is further submitted by the learned A.G.A. that the time and place is proved by overwhelming evidence on record and there is no chance of false implication and the place of occurrence is very close from the village. The counsel for the State also pointed out that P.W. 2 explained the reasons for stomach of the deceased being empty at the time of occurrence. She deposed that the deceased used to keep fast on Tuesday.

In order to appreciate the rival contentions of the learned Counsel for the parties, brief discussion of the evidence of the eye witnesses is necessary.

P.W. 1 Rakesh Kumar Singh is the informant of the case and he is son of the deceased. He deposed that on the date of occurrence he was going to his school alongwith his father who was plying the Cycle and he was sitting on the carrier. As soon as they came out of the village accused persons who were hiding behind the bush came out and pushed his father from the Cycle and they surrounded him and assaulted with Gandasa and knife. He raised alarm and his mother Savitri Devi, Udhav Mishra, Ramehandra yadav and Ramesh Chandra Sharma reached there. Ram Chandra belongs to village Mahegava and other witnesses belong to his village. After assaulting his father accused persons ran away towards the eastern side. His father succumbed to his injuries. He prepared the report and lodged at the police station, which is Ext. Ka-1. His statement was recorded and investigating officer had also prepared the inquest memo. It is further deposed that on account of litigation there was old enmity. His testimony was recorded after 8 years of the occurrence and at the time of occurrence he was a student of Class IX.

P.W. 2 Savitri Devi deposed that her husband was resident of village Karanpur police station Jahanaganj District Azamgarh and she was married with him in the year 1974. Six children were born and five of them are still alive. At the time of occurrence Rakesh Kumar Singh was aged about 13 years and he was a student of Mardah School. The occurrence took place on 2.8.1994 at about 9 a.m. Her husband was going on a Cycle to Hydel Department. He used to go Mardah on a Cycle and his son was accompanying him. Her husband used to go Mardah on Cycle and he used to take a bus for Man and he used to return in the same manner. After about 2 minutes when her husband left the house on the date of occurrence she heard the cries of her son, she came out and saw that Chhotey Lal, Om Prakash, Tappu alias Kishorc and Potu alias Chaitanya Swaroop were assaulting her hushand. Chhotey Lal, Om Prakash and Tappu were armed with Gandasa and Potu was armed with a Knife. Udhav Mishra, Ram Chandra Yadav, Ramesh Chandra Patrakar also reached there and witnessed the occurrence. The accused persons ran away towards the eastern side and by that time her husband was dead. Her son prepared the report and lodged at the police station. She also deposed that she was the only issue of her parents. Her father had enough property and there was litigation between her father and accused persons. They were trying to grab the property of her father. After the marriage Surya Nath Singh used to live in the house of her father. The accused were protesting her marriage with her husband. On account of the litigation of property this occurrence his taken place.

P.W. 3 Udhav Mishra deposed that he knew deceased Surya Nath Singh who was working in the Hydel Department in Mau. Surya Nath had married with Savitri and after the marriage Surya Nath started living in Dodsar. Surya Nath used to go on Cycle to attend his duty. There was litigation pending between Surya Nath and Chhotey Lal accused and Chhotey Lal used to do pairvi of the cases and on that account there was enmity. This occurrence took place at 9 a.m. on Tuesday. He heard the cries of Rakesh, and at that time he was at a short distance. Cries were coming from the southern side of house of Munni Lal. He reached at the place of occurrence and saw that Chhotey la, Om Prakash, Tappu and Potu were assaulting Surya Nath Singh. Tappu, Om Prakash and Chhotey Lal were armed with Gandasa and Potu was carrying a knife. Ram Chandra Ahir and Ramesh Patrakar also reached there. Savitri wife of Surya Nath was also present there and she also witnessed the occurrence. Surya Nath died instantaneously. His statement was recorded by the investigating officer.

According to the prosecution case occurrence took place at 9 a.m. when deceased was going alongwith the first informant to Mardaha. P.W. 2 and P.W. 3 also corroborated the time of occurrence. The investigating officer had collected the cycle, a bag containing diary, Pen and Pencils and Rs. 120/- of the deceased which shows that he was going on a cycle. The time of occurrence is also supported by the testimony of P.W. 7 Dr. S.C. Pandey who stated that the death of the deceased could be possible o 2.8.1994 at 9 a.m.

Learned Counsel for the appellants submitted that the stomach of the deceased was found empty and that the occurrence might have taken place very early in the morning. We do not find any force in this submission. The testimony of Savitri wife of the deceased shows that on the day of occurrence her husband was fasting. There is nothing on the record to disbelieve this part of testimony of P.W. 2 Savitri. It was also pointed out by the learned Counsel for the appellants that in 161 Cr.P.C. statement P.W. 2 did not tell about the fast of the deceased to the investigating officer but it is not disputed that the day of occurrence was Tuesday and she also stated that she also keeps fast on Tuesdays. This clearly explains the absence of food in the stomach of the deceased and if this fact she did not disclose to the investigating officer about the fast it cannot be a ground that the statement in court of P.W. 2 cannot be accepted.

The recoveries of Cycle, Rag etc. clearly shows that the deceased was going on his duty and it is not possible that occurrence might have taken place very early in the morning.

The next submission of learned Counsel for the appellants is that the medical evidence and direct evidence are conflicting. We do not find any force in this submission also because it is a consistent case of the prosecution from the F.I.R. that the deceased was assaulted by Gandasa and a knife and the post mortem report fully corroborates the testimony because the deceased had sustained 11 incised wounds which are possible by Gandasa and knife. It is further pointed out by learned Counsel for the appellant that the case of the prosecution that the deceased was pushed from the cycle and there was no abrasion and contusion and he was surrounded and then assaulted and most of the injuries are on the right side of the body. This submission has also no substance because if the victim had not chance of escaping the blows he can remain lying on one spot and there arc two injuries which are on the left side of the body also. The absence of abrasion and contusion cannot be a basis for disbelieving the eye witnesses account. It is quite possible that at the time when he was pushed from cycle he was fully alive and must have tried to avoid any possible injury by falling. It is further submitted that the informant had introduced bushes in his testimony in court where the accused were hiding. It is important to mention that if this fact is not mentioned in the F.I.R. no adverse inference can be drawn because at the time of occurrence P.W. 1 informant was only aged about 13 years old boy and he witnessed the murder of his father and he may not be in a mental disposition to describe each and every part of the prosecution case in detail.

The presence of P.W. 1 was also doubted on the ground that his school bag was not found at the place of occurrence but there was no suggestion to P.W. 1 that at the time of occurrence he did not carry any bag or as to what happened to his school bag at the time of occurrence. Another submission of the counsel for the appellant that presence of the informant is doubtful because he was not assaulted by the accused persons. We do not find any force in this submission as if a child of 13 years old was not assaulted by the accused persons, his presence cannot be disbelieved on that account. He was a child and he also stated that he was standing at a short distance and was raising alarm. It is further submitted that no independent witness has been examined in this case and the counsel for the appellants has placed reliance on the decision of Supreme Court in the case of Hem Raj and Ors. v. State of Haryana 2005 SCC 1646 in which the Apex Court has held that non examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, while the evidence of alleged eye witnesses raises serious doubt on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance.

We are of the view that the decision cited by the counsel for the appellants has no application in the present case. The presence of the witnesses is proved beyond reasonable doubt. The testimonies of the witnesses are credible and truthful.

We have carefully examined the testimonies of the witnesses. The time and place of the occurrence is proved beyond reasonable doubt. The place of occurrence is very close from the village and the occurrence look place in broad day light. The eyewitnesses were extensively cross examined and they withstood the test of grueling cross examination. They have described the prosecution case in a most natural and truthful manner. The Sessions Judge has rightly recorded the findings of conviction and we also affirm the same.

In view of the above the appeals are decided as under:

Crl. Appeal No. 2708 of 2005 (Chotey Lal, Tappu alias Kishore and Om Prakash) is dismissed. The conviction and sentence of the appellants awarded by the trial court, as aforesaid, is affirmed. The appellants Chotey Lal, Tappu alias Kishore and Om Prakash are in jail. They shall he kept there to serve out the sentences awarded by the trial court and affirmed by us.

Crl. Appeal No. 2528 of 2005 (Potu alias Chaitanya Swaroop ) is dismissed. The conviction and sentence of the appellants awarded by the trial court, as aforesaid, is affirmed. The appellant Potu alias Chaitanya Swaroop is in jail. He shall be kept there to serve out the sentences awarded by the trial court and affirmed by us.

Office is directed to communicate this order to the court concerned within fifteen days from today for information.