Hargovind and Others vs State of U.P.

Rakesh Tiwari, J.—Heard Sri Azad Khan, learned Counsel for the appellants, Ms. Meena, learned AGA and perused the record. This criminal appeal has been preferred challenging the validity and correctness of the impugned judgment and order dated 6.4.1988 passed by the Special Judge, (E.C. Act) Hamirpur in S.T. No. 47 of 1986 (crime No. 69 of 1985) whereby the appellants have been convicted for the offence punishable under section 302/34 IPC and have been sentenced to imprisonment for life.

The facts, in brief, as culled out from the record are that complainant Jai Singh son of Thakur Das Lodhi resident of village Rihuta, P.S. Majhagawa District Hamirpur submitted a written report at police station Majhagawa on 8.6.1985 at about 11.30 A.M., inter alia, stating that on 7.6.1985 he alongwith his brother Karan Singh and other persons had gone to village Badebara, P.S. Jariya to see a religious sacrifice. After seeing the Ramlila when in the night he along with his uncle Mahipat was returning towards his village he heard the cry of his brother Karan to save him from being killed near the culvert of Bani pond at Orai Rath road. His uncle Mahipat ran towards the orchard of Har Dayal Lodhi, Sambhu son of Sukka Kachchi and Gajja son of Goverdhan Lodhi who were watching the mango grove, hearing the hue and cry, also ran towards mat direction. They saw that Hargovind son of Ram Nam Lodhi, armed with Kulhari, Kishan son of Harnarain, armed with Farsa and Jagdish son of Raghunath Lodhi, armed with spear, were assaulting his brother Karan. The assailants were saying that this was the result of teasing the wife of Hargovind. Upon exhortation they fled away towards south. On account of fear they could not follow the assailants. Witnesses Sambhu Kachhi and Gajja Lodhi also saw the assailants in moonlight and torch light by the time, he alongwith other persons could have reached the spot, his brother had succumbed to his injuries.

On the basis of written report, a case was registered at the police station Majhgawa at crime No. 69/1985, under section 302 IPC. It was entrusted to S.O. B.S. Rana for investigation. After recording the statement of the complainant, the Investigating Officer reached the place of occurrence, prepared the inquest report and sent the dead body of the deceased for autopsy in sealed condition along with related papers. Dr. A.K. Nigam conducted post mortem examination of the cadaver of the deceased on 9.6.1985 at 2.10 P.M. His postmortem notes in brief are as under--

Following ante mortem injuries were found on the cadaver of the deceased:

In the opinion of the doctor the death had occurred due to shock and haemorrhage.

The Investigating Officer after completing the investigation submitted charge-sheet against the accused-appellants. After committal of the case to the Court of Session the IInd Addl Sessions Judge, Hamirpur framed charge for the offence punishable under section 302 read wife section 34 IPC against the appellants, who pleaded not guilty and claimed trial in order to prove its case the prosecution has examined complainant Jai Singh (PW-1), Mahipat (PW-2), I.O. B.S. Rana (PW-3), HCS, Vishnu Ji Awasthi (PW-4), Dr. A.K. Nigam (PW-5) and I.O., R.D. Singh (PW-6). All the three accused in their statements under section 313 Cr.P.C. denied the entire prosecution story stating that on account of animosity they have been falsely implicated in the case.

Learned Counsel for the appellants has submitted that the FIR in mis case is ante-timed by 8-1/2 hours for which there is no explanation by the prosecution; that first information report had been prepared at the police station after Panchayatnama as from a perusal of the Panchyatnama (Ex. Ka-3) it appears that the I.O. had reached the place of occurrence on 8.6.1985 at about 2.30 P.M. while report had been written at 1130 A.M. In support of this contention Counsel for the appellants drew the attention of the Court towards the written report wherein an averment had been made by the complainant that he had come to the police station by hiding himself (from the accused persons), after leaving his parents near the dead body of Karan Singh and that in the challan Lash (Ex. Ka-5) no time of death of deceased Karan Singh is mentioned while in the written report (Ex. Ka-1) the incident is said to have taken place on 8.6.1985 at 3.00 A.M. Therefore, if written report is perused in this light, it would show that Jai Singh (PW-1) was not a reliable witness. In support of this contention, reliance was placed upon the decision rendered in Bhusai (Alias) Mohammad Mian and Another Vs. State of Uttar Pradesh, .

It is also submitted that the FIR shows that Gajja and Shambhu, independent witnesses, were present at the place of occurrence. Gajja is reported to have died, hence he could not be produced by the prosecution before the trial Court. In so far as the witness Shambhu is concerned, the prosecution had moved an application dated 20.11.1987 before the trial Court to the effect that he had been won over by the accused persons, hence he may be discharged. In the circumstances, the prosecution could not produce him also as a witness before the Trial Court.

Learned Counsel for the appellants has assailed the finding recorded in the impugned judgment by the Trial Court in this regard saying that it appears from the following excerpt of the judgment that the incident had not taken place in the manner as alleged by the prosecution:

It has been vehemently argued by learned Counsel for the appellants that prosecution story becomes doubtful as no weapon of assailant has been recovered by the I.O. as there is neither recovery memo nor any parcha of recovery of weapons was prepared by I.O.

Learned Counsel for the appellants has argued that admittedly the incident is of 8.6.1985. Accused Har Govind had surrendered in the Court below on 10.6.1985 whereas two other remaining accused persons namely, Kishan and Jagdish had surrendered in the Court below on 11.6.1985, i.e. on the next day. However, the statement of the I.O. shows that he has come to know about the surrender of accused persons after about one month since their surrender. Learned Counsel for the appellants has questioned the credibility of the prosecution case on the ground that if I.O. had come to know about the surrender of accused persons after month from their surrender, who took their remand. In the circumstances, the evidence of the I.O. is not reliable and suffers from these legal fallacies.

Another irregularity committed by the I.O. is that the torch light by which, the witnesses claim to have seen the incident in the night was not taken into possession by him.

Per contra, learned AGA has contended that the prosecution has explained the delay in lodging the FDR; that prosecution has not withheld any material witness. The material witnesses examined in the case are eye-witnesses and their testimony cannot be rejected on account of their relationship with the deceased; the eye-witnesses have given ocular account of the incident and minor contradictions or discrepancies do not affect the prosecution case at all and their testimony is fully corroborated by medical evidence adduced in the case.

It is submitted that not only the accused persons are named in the FIR regarding the incident which has taken place at 3.00 P.M. in the night of 7/8.6.1985 but specific weapons have also been assigned to them. The medical report supports the injuries inflicted by the weapons used by the accused persons. Witness Gajja could not be produced due to his demise. P.W. 1 in his statement has stated that Gajja is reported to have died.

Learned A.G.A. has submitted mat FIR is not ante-timed. The occurrence has taken place in the midnight of 7/8.6.85 at about 3.00 A.M. The FIR has been lodged at 1130 A.M. on 8.6.85. The distance of police station concerned from the place of occurrence is 18 Km. Under these circumstances and keeping in view the fact that normally mode of conveyance are not available every time in villages, the FIR lodged at a normal time. It is neither ante-timed nor delayed.

After hearing learned Counsel for the parties and on perusal of the record it appears that Jai Singh (PW-1) and Mahipat (PW-2) are the eye-witnesses of the occurrence. There is no contradictions in their statements. They have supported the prosecution case. Their evidence is supported by the medical evidence. There is nothing on record to discard their testimonies. There is also nothing on record to indicate that the complainant and his uncle Mahipat will falsely implicate the accused-appellants in the murder of his brother Karan Singh.

We have seen the original case diary and find that the I.O. has given his statement after about three and a half years of the incident. Hence the probability cannot be ruled out that the I.O. could have made a mistake in his statement that it came to his knowledge after about a month that the accused persons had surrendered. More so, it is not necessary for the I.O. to take remand of the accused persons himself. The remand might have been taken by some other police official Whatever may be the reason, it will not benefit the accused persons.

Learned Counsel for the appellants has questioned, the trustworthiness of prosecution story on the ground that little finger of the deceased was found missing as is evident from the evidence of the Doctor, which creates doubt in the prosecution story. In this regard the findings recorded by Trial Court are reproduced as under.--

The aforesaid reason given by the Trial Court appears cogent in view of the fact-that the occurrence has taken place at midnight in the fields where possibility of existence of some small animals like rats etc. eating away the small finger of the deceased cannot be ruled out.

So far as question of light is concerned, the Trial Court has discussed the question of light by observing that Jai Singh (PW-1) in paragraph 5 of his statement has stated that Gaga was having torch and in paragraph 2 he has stated mat Mahipat also had torch with him which is supported by the statement of Mahipat (PW-2). He had brought the torch and shown the same before the Trial Court. Though the I.O. appears not to have prepared the furd of the torch, yet only on this count the whole prosecution case does not become doubtful. The Trial Court has rightly observed that on account of non-preparation of the furd in connection with the torch by the I.O., it cannot be said that Mahipat and Gajja were not having torches with them. It is well settled legal position mat latches and lacunas on the part of I.O. cannot extend any benefit to the accused persons.

In view of what has been discussed above, we come to the conclusion that the Trial Court has not committed any illegality or infirmity in convicting and sentencing the accused-appellants as stated above, hence no interference is required by this Court.

Accordingly, the criminal appeal is dismissed. The accused persons are on bail. Their bail-bonds are cancelled. They shall be sent to jail to serve out the sentence awarded to them by the Trial Court after taking them in custody. Registry is directed to send a copy of this judgment to C.J.M., Hamirpur immediately for compliance.