Krishna Mohan Chand vs State of U.P.

Shiv Shanker, J.—Both the criminal appeals 4567/2005 & 4351/2005, u/s 374 I.P.C. (2) Cr.P.C. have been filed against the impugned judgement and order dated 28.9.2005 passed in S.T. No. 437/2003, under Sections 302, 504, 506 I.P.C., P.S. Gola, district Gorakhpur, wherein accused Chandra Bhan Chand and Smt. Savitri Devi have been acquitted for the charge punishable u/s 302 read with Sections 34, 504, 506 I.P.C. and accused appellants Gulab Chand and Krishna Monan Chand have also been acquitted for the charge under Sections 504, 506 I.P.C. while they have been convicted for the charge under Sections 302 read with Section 34 I.P.C. by awarding sentence of life imprisonment along with the fine of Rs. 3000/- each. In default of payment of fine, the appellants will further undergo for one year additional imprisonment each.

Being the same sessions trials number and case as above, both the criminal appeals are being disposed of by this common order.

Briefly, prosecution case is that Durg Vijay Chand (P.W.1) lodged the F.I.R. on 22.62003 at 16.30 P.M. against four persons namely Krishna Mohan Chand, Gulab Chand, Chandra Bhan Chand and Smt. Savitri Devi regarding occurrence dated 22.6.2003 at about 2.30 P.M., wherein it has been stated that there was litigation regarding partition of the house which was pending in between the informant and accused Gulab Chand. On 22.6.2003 at about 2.30 P.M., Ganga Chand , father of the informant had gone to grove to pick fallen mangoes from his house and he was picking fallen mangoes in the grove. Accused Krishna Mohan Chand armed with licensee gun of his father and Gulab Chand armed with a country made pistol accompanied with Chandra Bhan Chand and Smt. Savitri Devi reached there and started abusing him. At the same time, informant, his elder brother Ran Vijay Chandra, bajarangi and Achhaivar and other persons of his village also reached there. Ganga Chand objected not to abuse him.

Thereafter accused Krishna Mohan Chand shot fires upon Ganga Chand with the gun at the exhortation of accused appellant Gulab Chand. Consequently, he sustained fire arm injuries and fallen down on the ground. The informant and others had tried to save him, upon which accused persons fled away from there towards north side after making fires with the gun and country made pistol. Thereafter, Ganga Chand was taken to the concerned police station by the informant and lodged the F.I.R. u/s 307 I.P.C. and he was sent to the hospital for his treatment, where he was declared dead. Thereafter, the case was converted u/s 302 I.P.C.

Inquest report etc. were prepared by S.I. Birchhu Ram (P.W.5) on 23.6.2003 in between 13.15 to 14.05 P.M. after sealing dead body of deceased. The same was sent for post mortem examination.

Investigating Officer inspected the place of occurrence and prepared the site plan of the place of incident. One empty cartridge was also recovered from the place of occurrence which was taken into custody and the same was sealed and prepared its recovery memo. A gun which was allegedly used by Krishna Mohan Chand was also taken into custody from accused appellant Gulab Chand and prepared its recovery memo which relates to licensee gun of his father.

After arrest of accused appellant Krishna Mohan Chand, a country made pistol along with empty cartridge was recovered from his pointing out. The same was taken into custody and after sealing it prepared its recovery memo. After completion of investigation of four accused persons who were named in the F.I.R. were charge sheeted. After commitment of the case, the trial court has framed the charges for offences punishable u/s 302 I.P.C. read with Section 34 I.P.C. They were also further charged for the offence under Sections 504, 506 I.P.C. who pleaded not guilty and claimed to be tried.

They have stated in their statements recorded u/s 313 Cr.P.C. that they have been falsely implicated in this case due to enmity.

Prosecution examined Durg Vijay Chand (P.W.1), Ran Vijay Chand (P.W.2), Rajesh (P.W.3), Dr. K.K. Chaudhary (P.W.4) S.I. Birchhu Ram (P.W.5), S.I. Pawan Kumar Chaubey (P.W.6) and S.I. Ganesh Singh (P.W.7).

No any oral or documentary evidence has been adduced on behalf of accused persons in their defence.

After considering the submissions made by learned Counsel for both the parties and perusing the whole evidence on record, the above two appellants have been convicted for the charge u/s 302 I.P.C. read with Section 34 I.P.C. but they were acquitted for the charge under Sections 504, 506 I.P.C. Another two co-accused as mentioned above have been acquitted for the charge under Sections 302 I.P.C. read with Section 34, 504, 506 I.P.C. Both the above two persons have challenged the judgement of conviction by way of filing the present appeal.

Heard arguments of learned senior Counsel G.S. Chaturvedi, learned A.G.A. and perused the whole record as well as judgement and order of trial court.

Learned Counsel for the appellants contended that the F.I.R. was lodged ante timed in the light of cross examination of Durg Vijay Chand (P.W) at pages 21-22. It is further contended that informant was asked by P.W.5 at the time of preparing of inquest as to how and in what manner this incident took place. This indicates that F.I.R. was not in existence till next day of the occurrence when inquest report was prepared. It is further contended that four persons have been named in the F.I.R. including both the appellants. Two co-accused persons namely Chandra Bhan Chand and Smt. Savitri Devi have already been acquitted by the trial court.

According to the F.I.R. the role of appellant Krishna Mohan Chand has been attributed to cause fire arm injury on the body of deceased with licensee gun of his father at the exhortation of his father appellant Gulab Chand. Therefore, the role of Gulab Chand has already been assigned of exhortation but in the testimony of P.W.1 Durg Vijay Chand and P.W. 2 Ran Vijay Chand, the role of Gulab Chand appellant has also been attributed to cause fire arm injury of country made pistol upon the body of deceased. The same has been mentioned in the inquest report of the deceased, wherein P.W.1 Durg Vijay Chand and P.W. 2 Ran Vijay Chand are the witnesses of inquest report. Court below has also considered that the appellant Krishna Mohan Chand only caused fire arm injury on the body of deceased.

Therefore, the role of appellant Gulab Chand has become suspicious regarding exhortation or active participations.

It is further contended that conduct of P.W. 1 Durg Vijay Chand is also doubtful. No any independent witness has been examined in support of prosecution story. Both the witnesses P.W.1 Durg Vijay Chand and P.W.2 Ran Vijay Chand are sons of the deceased and they are interested, related, partisan and chance witnesses and their testimony is not corroborated from any independent witness. It is further contended that no any internal part of the body of the deceased was damaged. The deceased only sustained simple fire arm injuries which could be caused by one shot from long distance.

Therefore, blood was flowing from the part of injury in absence of proper treatment and he died and the same cause of death has been mentioned in the post mortem report of the deceased vide Ext. Ka-6. In such circumstances, there was no grievous injury which was dangerous to life. Therefore, offence is only made out, at the most, for the offence u/s 304 part II I.P.C. as alternative arguments. It is further contended that motive is of enmity of this case. One case was pending between both the parties. Therefore, motive is only false implication of appellants.

On the other hand it is submitted that the trial court has correctly convicted the appellants on cogent and reliable evidence. Therefore, trial court has not committed any illegality and incorrectness and the same have been convicted according to law.

So far as first contention of ante timed F.I.R is concerned that incident took place on 22.6. 2003 at about 2.30 P.M. and F.I.R. was lodged by P.W.1 on 22.6.2003 at 4.30 P.M. So it has been lodged within two hours of the incident after covering distance of seven and half kilometres from the place of occurrence.

It has been admitted by P.W. 1 in his cross examination that they have reached at the police station at about 2.30 P.M. He again promptly gave reply that they reached there at about 4 P.M. Therefore, it has been wrongly answered by him at 2.30 P.M. due to confusion as time of incident was about 2.30 P.M. It has been further admitted in his cross-examination at pages 22-23 that sub-inspector has asked P.W.1 to get written F.I.R. and submit the same.

Thereafter it was got prepared by Sri Niwas outside of the gate of police station and submitted the same in the police station at 4 P.M. According to the above cross examination of this witness it is not liable to be deemed that the F.I.R. was not in existence at that time. It is also not liable to be deemed that the same was got prepared by sub-inspector on his dictation in the concerned police station.

Admittedly inquest report was prepared by P.W.5 in the hospital where dead body was kept one day before. Hospital was situated in the local limits of police station Kotwali, district Gorakhpur while incident took place in the local limits of police station Gola, district Gorakhpur. In such circumstances crime number etc. could not be written in the inquest report etc. Therefore, P.W.5 has asked from P.W.1 and P.W. 2 who are sons of deceased and who were made Panch witnesses of the inquest report as to how this incident took place. It does not mean that the F.I.R. was not in existence till the next day of preparing inquest report. Nothing has come in the testimony of P.W.1 who is the informant and P.W. 3 who has prepared chick F.I.R. and case of Kayami G.D.

Which could reflect that the F.I.R. was lodged ante time. Therefore, this contention has no force that the F.I.R. was lodged ante time at the dictation of sub -inspector in the police station. There is no inordinate delay in lodging the F.I.R. The trial court has given correct finding in respect of F.I.R.

So far as contention of partisan, interested and chance witnesses is concerned, P.W. 1 Durg Vijay Chand and P.W. 2 Ran Vijay Chand who are shown to be eye witnesses of the incident, are real sons of the deceased. There was admittedly enmity in between both the parties due to litigation going on also.

Therefore, they are interested, related and partisan witnesses. House of both the witnesses were situated near the place of incident i.e. grove at distance of 140 steps. Therefore they reached at the place of incident after hearing noise. In such circumstances they are not liable to be deemed as chance witnesses, although P.W.1 and P.W.2 are interested and partisan witnesses. However, their testimony cannot be discarded merely on the basis of above grounds. However, their testimony is to be scrutinize very cautiously.

It has been observed in the decision of Apex Court in (2007)1 SCC 425 Salim Sahab v. State of M.P. That "The ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible."

The following decisions of Apex Court have been relied upon it:

Dalip Singh and Others Vs. State of Punjab,

Guli Chand and Others Vs. State of Rajasthan,

Vadivelu Thevar Vs. The State of Madras,

Rameshwar Vs. The State of Rajasthan,

Masalti Vs. State of U.P., and The State of Punjab Vs. Jagir Singh, Baljit Singh and Karam Singh,

Lehna Vs. State of Haryana,

Gangadhar Behera and Others Vs. State of Orissa, .

Kikar Singh Vs. State of Rajasthan,

Babulal Bhagwan Khandare and Another Vs. State of Maharashtra,

Now the testimony of P.W.1 and P.W.2 is to be scrutinized. It has been stated by P.W.1 that the appellants Krishna Mohan Chand and Glulab Chand made firings upon Ganga Chand (deceased) with licensee gun and country made pistol respectively. Consequently Ganga Chand above sustained injuries of fire arms. However, role of appellant Gulab has not been attributed to cause fire arm injuries on the body of deceased according to the F.I.R.

F.I.R. is foundation and back bone of the criminal cases, although F.I.R. is not an encyclopaedia. It is also not substantive piece of evidence and it can be used for contradiction and corroboration. When the specific role has been attributed in the F.I.R., subsequently his role is changed during the course of investigation or during trial. It will be treated as improvement of the case. In the present case, testimony of P.W.1 reveals that the appellant Gulab Chand also caused fire arm injury with a country made pistol upon the body of deceased.

He has not given any explanation in his evidence as to why this fact was not disclosed in the F.I.R. The role of appellant Gulab Chand has been attributed specifically of exhortation only. Therefore, it is liable to be deemed that it is an improvement in the testimony of P.W.1 regarding causing fire arm injury on the body of deceased. It is also worthwhile to mention here that P.W.1 and P.W.2 have also been made witnesses of inquest report when the inquest report was prepared in their presence in the civil hospital, which was situated in different local limits of police station, by P.W. 5 who asked from them as to how incident took place.

Thereafter they have stated that both the appellants made firings upon body of the deceased at the exhortation of co-accused Chandra Bhan Chand and Smt. Savitri Devi who have already been acquitted by the trial court. The same statement has come in cross examination of both the witnesses.

Therefore the role of appellant Gulab Chand of exhortation has become suspicious. On the other hand, the appellant Gulab was having his licensee gun.

Therefore it is not probable that he could use his own weapon in the occurrence in place of unlicensed country made pistol while the appellant Krish Mohan Chand had used his licensee gun in causing fire arm injuries on the body of deceased. This also shows that presence of appellant Gulab Chand is doubtful at the time of incident.

Learned Counsel for appellant has contended that there is omission in the testimony of P.W.2. Admittedly, the statement of P.W.2 was not recorded by the Investigating Officer. P.W. 6 or P.W.7 as version given in the F.I.R. Therefore it may be treated the omission. However, this witness has also stated to the P.W. 5 who prepared the inquest report that both the appellants caused fire arm injuries at the exhortation of other co-accused persons and the same has been asked from this witness during the course of his cross examination. Therefore, the statement mentioned in the inquest report is also liable to be treated as previous statement of P.W.2.

The same has also been given by P.W.2 in his evidence and testimony of P.W. 2 also reveals that appellant Krishna Mohan Chand caused fire arm injuries with licensee gun of his father. Therefore, it is clearly established that appellant Krishna Mohan Chand only made firing upon the body of deceased with licensee gun of his father which resulted his death in the hospital after about four hours of the incident. But the role of appellant Gulab Chand has become suspicious in causing fire arm injuries with a country made pistol upon body of deceased or also role of his exhortation. The trial court has also rightly held that appellant Krishna Mohan Chand caused fire arm injuries by one shot on the body of deceased with licensee gun of his father.

Testimony of P.W. 4 who proved the post mortem report of the deceased by stating that injuries of fire arms could be caused by one shot from a long distance. According to the site plan, at the place of occurrence, fire was made at about from 15 steps. In such circumstances, such injuries could have been received by the deceased as pellets injuries. Therefore, ocular evidence of P.W. 1 and P.W. 2 against tie appellant Krishna Mohan Chand is supported with the medical evidence.

It is worthwhile to mention here that four persons were named in the F.I.R., wherein two co-accused persons namely Chandra Bhan Chand and Smt. Savitri Devi who are brother and wife of Gulab Chand appellant respectively, have been acquitted by the trial court and the presence of appellant Gulab Chand is also found suspicious as discussed above. Therefore, evidence adduced against appellant Krishna Mohan Chand, cannot be discarded.

It has been observed in the decision of Apex Court in case of Animireddy Venkata Ramana and Ors. v. Public Prosecutor reported in 2008(61) ACC 703 , it has been observed that "Maxim "falsus in uno, falsus in ominibus"-Has no applicability in India". It has also been observed in decisions of Apex Court in The State of Punjab Vs. Jagir Singh, Baljit Singh and Karam Singh, and Lehna Vs. State of Haryana, that "It is the duty of Court to separate grain from Chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence of some of the witnesses has been found to be deficient."

Therefore, above principle is not applicable in India and reliable evidence is available on record against the appellant Krishna Mohan Chand for committing murder of deceased by causing fire arm injuries which is also corroborated with the post mortem report of the deceased and their testimony is liable to be deemed cogent, reliable and trustworthy against the appellant Krishna Mohan Chand, even then they are interested, related and partisan witnesses.

So far as the contention of motive is concerned, this case rests upon the direct evidence of broad day light. In such type of cases, motive has no significance. In absence of motive also, the accused may be convicted if the ocular evidence is reliable, cogent and trustworthy. Sometimes witnesses do not know motive of the offence and the same are kept in the mind of deceased or the accused. In the present case, motive of enmity between the parties has been alleged on behalf of prosecution. Ganga Chand deceased was having three brothers namely Gulab Chand (appellant), Chandra Bhan Chand (co-accused) and Babu Ram Chand. Babu Ram Chand was issue less. Therefore, he has adopted Shatrudhan, son of Chandra Bhan Chand and he also executed adoption deed in his favour.

Thereafter this adoption deed was challenged by Ganga Chand (deceased) by alleging forged documents by way of filing civil suit against Shatrudhan above and the same was pending at the time of incident. Therefore, there was enmity in between both the parties. Enmity is double edged weapon which cuts both ways. Therefore, this contention has no force that the appellants have been falsely implicated in this case due to enmity but the motive established against the appellants that he was murdered due to above enmity, so that he could not make pairvi regarding above suit i.e. Ganga Chand v. Shatrudhan.

It is also worthwhile to mention here that the appellant Krishna Mohan Chand is real nephew of deceased and P.W.1 and P.W.2 are cousin of appellant Krishna Mohan Chand. Therefore, he could not be implicated in this case falsely after leaving other enemies of the deceased.

So far as the next contention regarding the offence u/s 304 Part II I.P.C. is concerned, the appellant Krishna Mohan Chand was holding licensee gun at the time of incident and he knew very well that the deceased would die after receiving fire arm injuries. Therefore, fire was made with the intention to commit murder of deceased with deadly weapon due to enmity. P.W.4 Dr. K.K. Chaudhary, who has conducted post mortem of the deceased has also stated that injury sustained by the deceased was sufficient in ordinary course of nature to cause death of deceased.

Even absence of damaging internal part of body, the case cannot come within the purview of offence u/s 304 Part II I.P.C. In such circumstances, there is also no force in the contention of learned Counsel for the appellants that the case is made out only u/s 304 Part ii I.P.C. and not u/s 302 I.P.C.

Now this case is proved against the appellant Krishna Mohan Chand to commit murder of deceased, although he was charged along with co-accused persons for the offence punishable u/s 302 I.P.C. read with Section 34 I.P.C. Therefore, the appellant Krishna Mohan Chand is convicted for the offence u/s 302 I.P.C. in place of Section 302 I.P.C. read with Section 34 I.P.C. He will also suffer the same punishment awarded by the trial court.

In view of discussions made above, we are in the considered opinion that there is no force in the appeal of appellant Kirshna Mohan Chand but appeal of Gulab Chand deserves to be allowed.

Consequently, the appeal of Gulab Chand is allowed and impugned judgement and order passed by the trial court is set aside against him by giving benefit of doubt. He is acquitted. He is on bail. His personal bond is cancelled and sureties are discharged.

The appeal of Krishna Mohan Chand is hereby dismissed and impugned judgement and order of the trial court is hereby affirmed. The appellant Krishna Mohan Chand is in jail who will remain in jail to serve out the sentence awarded by the trial court.

Let the record of the court below along with one copy of this judgement and order be sent to the concerned court immediately for its compliance and compliance report be submitted by the court below at the earliest.