Kedar Rajbhar and Another vs State of U.P.

A.K. Roopanwal, J.—This criminal appeal has been filed against the judgment and order dated 9.4.2003, passed by the Additional Sessions Judge (F.T.C. No. 3), Ghazipur, in S.T. No. 217 of 2001, State v. Kedar and Anr., whereby the Appellants were convicted and sentenced u/s 302, I.P.C. read with Section 34, I.P.C. for life imprisonment alongwith a fine of Rs. 20,000 and in default of payment of fine further R.I. for one year.

According to the case of the prosecution first informant Bharat Rajbhar, son of Sukhnandan Rajbhar, resident of village Sukhpura, police station Nonahara, district Ghazipur was returning to his house on 12.7.2001 alongwith his brother Munnar (deceased). When Munnar came near the house of Satyanarain Rajbhar and the informant was somewhat behind him the accused Rajdeo armed with country-made pistol and Kedar without any arm came out of the house of Satyanarain Rajbhar. It was 6.15 p.m. Kedar exhorted to kill Munnar at which Rajdeo fired upon him but the fire had missed. Immediately thereafter the Appellant Kedar took the country made pistol from Rajdeo and fired upon Munnar, which hit him. He fell down and died. The occurrence was witness by the informant, Ramadhar and Munna.

The informant Bharat Rajbhar got the report of the incident written from Dhaneshwar Rajbhar of village Chak Sikandar, Post Office, Miranpur, district Ghazipur, and went to the police station alongwith the dead body of Munnar. On the basis of the written report the chik F.I.R. was written at the police station Nonahara on 12.7.2001 at 7.45 p.m.

The investigation of the case was taken up by the S.O., police station Nonahara, S.I. Paramhans Yadav. He copied out the F.I.R. and the G.D. of the case in the case diary and on the pointing out of the informant inspected the place of occurrence and prepared the site plan. He also collected blood stained and plain earth from the place of occurrence and prepared its memo. He also prepared the panchayatnama and other connected papers of the dead body and sent it in sealed condition for post-mortem. He recorded the statements of the witnesses of panchayatnama and other witnesses. After his transfer the investigation was conducted by the subsequent S.O., police station, Nonahara, Ram Jatan Varun. He recorded the statements of the scribe of the F.I.R. and after concluding the investigation submitted the charge-sheet against the accused persons.

The accused-Appellants were committed to the Court of Sessions by the then C.J.M., Ghazipur. In the Session Court the Appellants were charged under Sction 302, I.P.C. to which they denied and claimed to be tried.

In support of its case the prosecution examined P.W. 1, Bharat Rajbhar (the first informant) and P.W. 2, Munna as the so-called eye-witnesses of the alleged occurrence. Besides these witnesses P.W. 3, Constable Jitendra Singh, who had taken the dead body for post-mortem, P.W. 4, Dr. A.K. Mishra, who had conducted the post-mortem of the dead body of Munnar, P.W. 5, Ram Ashish Ram, the scribe of the F.I.R. and the G.D. of the registration of the case, P.W. 6, S.I. Paramhans Yadav, the earlier Investigating Officer of the case, were also examined.

The post-mortem of the dead body was conducted on 13.7.2001 at Mortuary, Ghazipur. According to the doctor the dead body was of a man of about 47 years of age. The rigor mortis had passed off from the upper extremities and was present in the lower extremities. The following ante-mortem injuries were found on the person of the deceased:

Gunshot injury wound of size 2.5 cm. x 1.5 cm. x cavity deep at left side of chest 5 cm. below the left collar bone. The margins were inverted. Blackening and tattooing were present.

Gunshot wound of exit of size 3 cm. x 2.5 cm. at left back and 8 cm. below c-7 vertebra and 3 cm. away from vertebral column. Margins were everted.

Wound Nos. 1 and 2 were through and through and were connected with each other.

In the opinion of the doctor the death had caused due to shock and haemorrhage as a result of ante-mortem gunshot injuries. The doctor had opined that the death could have taken place on 12.7.2001 at 6.15 p.m. with a country made pistol.

The statements of the Appellants were recorded u/s 313, Code of Criminal Procedure in which they completely denied from the prosecution case. They stated that the deceased was murdered in the night by some unknown person and they have falsely been implicated after due deliberations. They did not lead any evidence in their support.

The trial Court after assessing the evidence produced by the prosecution and hearing both the parties found the case u/s 302 read with Section 34, I.P.C. proved against the Appellants and convicted and sentenced them in the manner stated above.

We have heard learned Counsel for the Appellants, learned A.G.A. for the State and perused the record.

It has been argued by the learned Counsel for the Appellants that the trial Court has not properly appreciated the evidence on the record. It went wrong while believing the statements of P.W. 1 and P.W. 2, who were interested witnesses, that the time of occurrence as alleged by the prosecution was not proved by it and the prosecution story also did not gain support from the medical evidence on the record.

Learned A.G.A. repelled the above arguments and stated that the trial Court was right in finding the accused-Appellants guilty for the murder of the deceased Munnar.

Regarding the time of occurrence it was alleged by the learned Counsel for the Appellants that the stomach of the deceased was found empty, which could be possible only when the death would have taken place in the early morning. The death of the deceased in the early morning is also possible by the fact that the inquest report of the dead body was prepared on 13.7.2001, i.e., on the next morning of the alleged incident. If the incident would have taken place in the evening of 12.7.2001 there could be no reason at all to prepare the panchayatnama on the next morning.

It is true that the post-mortem report of the deceased indicates that the stomach of the deceased was found empty at the time of post-mortem but that cannot be a ground to prove that the occurrence had not taken place at the time as alleged by the prosecution. It is in the evidence that the deceased and the informant had gone to the fields with their buffaloes and thus, it is quite possible that they would be returning at the time when the food taken by them at the time of going to the fields had digested completely and that is why the stomach of the deceased was found empty. This fact cannot indicate nor prove that the occurrence had taken place in the night between 12/13.7.2001.

So far as this fact is concerned that the inquest report was prepared on 13.7.2001 and this fact proves that the occurrence had taken place sometime in the night between 12/13.7.2001, in that regard we would like to refer the statement of the Investigating Officer Paramhans Yadav. He had stated that on the date of occurrence there was no electricity at the place of occurrence and there was also no electricity in the police station. There was also no alternative arrangement of light and that is why the inquest report was prepared on the next day. We feel that this explanation of the Investigating Officer is believable one and in the light of this explanation this argument loses weight that the occurrence had taken place in the night of 12/13.7.2001 and that is why the panchayatnama was prepared in the morning of 13.7.2001.

Regarding the time of occurrence statements of P.W. 1 and P.W. 2 are on the record. They were cross-examined regarding the time of occurrence but it could not be belied that the occurrence had taken place in the evening of 12.7.2001. The time of occurrence is also testified by the statement of the doctor, who could also not be belied. Thus, from the whole evidence on the record we do feel that the prosecution has been able to prove it beyond all the reasonable doubts that the occurrence had taken place at the time as alleged by it.

The next argument, which has been advanced before us is that the F.I.R. was not lodged at the time as alleged by the prosecution, i.e., on 12.7.2001 at 7.45 p.m. To support this argument it was said that the panchayatnama was prepared on 13.7.2001 and that the F.I.R. was placed before the concerned Magistrate on 16.7.2001.

So far as the preparation of the panchayatnama is concerned, we have already discussed and on account of this fact no doubt about the veracity of the F.I.R. can be shown.

It is true that the F.I.R. was placed before the concerned Magistrate on 16.7.2001 but this fact also cannot make the F.I.R. an unbelievable document. It is a thing of common experience that the F.I.R. is not promptly sent to the Magistrae due to the laches of the staff and that is why the delay in placing the F.I.R. before the concerned Magistrate cannot be and could not be taken as a ground for casting any doubt upon the time of lodging of the F.I.R.

It appears from the record that after the occurrence the deceased was taken to the police station, which was about 8 km. from the place of occurrence. The F.I.R. was lodged within one and half hours of the occurrence, which shows that it was promptly lodged and there could be no occasion to manipulate things or to incorporate a wrong version in the F.I.R. To us the F.I.R. of this case appears to be a fully believable document.

It was argued by the learned Counsel for the Appellants that there was another shorter route to the house of the informant and, therefore, it is not believable that they would be going from that way, which is said by the prosecution. We do not find any merits in this argument. If the informant and the deceased had chosen that way on which the occurrence had taken place in that nothing wrong can be found.

From the record it appears that P.W. 1 and P.W. 2 though are interested in the case but their presence at the time of alleged occurrence and witnessing the same is fully believable. P.W. 1, the informant of the case, is the real brother of the deceased and is said to be returning with him after taking their buffaloes. His presence with the deceased thus, was very much natural and he could witness the occurrence easily. He has stated about the time, place and manner of the occurrence in the same fashion as is disclosed in the F.I.R. and he could not be belied on any material points. His statement is also fully supported by the medical evidence on the record. Thus, the trial Court was perfectly justified in placing implicit reliance on P.W. 1 inspite of the fact that he was the real brother of the deceased.

In the same manner P.W. 2 was also a believable witness, though, he is related to the deceased. He has stated that at the time of occurrence he was present at a field near the place of occurrence and on these points he could not be belied. He has supported the prosecution version on material points such as time, place and manner of the occurrence and could not be belied by the defence on any of these points. A defect was pointed out in his statement that the Investigating Officer in his statement recorded u/s 161, Code of Criminal Procedure has written that he was working at a brick-kiln, while before the Court he stated that he was present in the field. This witness has stated that he did not give such type of statement to the Investigating Officer. There is no reason as to why this witness would tell that he was working at the brick-kiln when actually he was not working there. Thus, the statement of this witness before the Court that he witnessed the occurrence from a field near the place of occurrence is a believable statement on which we do place reliance.

Both the witnesses P.W. 1 and P.W. 2 are consistent and there is nothing in their statements by which it could be said that both or any of them is deposing in the way that it is not safe to place reliance upon them. We do feel that P.W. 2 is also a reliable witness.

Thus, from the above discussion, we find that the prosecution case was proved beyond all the reasonable doubts against the Appellants and the trial Court did not commit any error in convicting and sentencing the Appellants. Consequently, the impugned judgment is liable to be affirmed and the appeal is liable to be dismissed.

The appeal is hereby dismissed. The Appellant Kedar Rajbhar is already in jail. He is not required to surrender. The Appellant Rajdev Rajbhar is on bail. His bail bonds are cancelled. The C.J.M. concerned is directed to arrest the Appellant Rajdev Rajbhar and send him to jail to serve out the sentence as awarded by the trial Court.

A copy of this judgment be immediately sent to the C.J.M. concerned for necessary action.