Mahabir vs State of U.P.

B.N. Shukla, J.—This appeal is directed against the judgment and order dated 28.1.1983 passed by the Sessions Judge, Banda in S.T. No. 235 of 1982 (State v. Mahabir and 2 Ors.) under Sections 302 and 307 IPC relating to Police Station Kotwali, District Banda whereby convicting the appellant accused Mahabir under Sections 302 and 307 IPC and sentencing him to undergo imprisonment for life u/s 302 IPC and five years RI u/s 307 IPC with direction that the sentences shall run concurrently.

Prosecution case, in nutshell, is that on 20.3.1982 at about 12.00 in noon, Chhatrapal, his brother Chhota, brother-in-law (Sala) Chhabilal and wife of Chhota were working in Khalihan in village Dadariya Har within circle of Police Station Kotwali Banda. After finishing work Chhota and his brother-in-law when intended to return back home accused Mahabir, Mangali and Ram Bhajan, who were seen standing on the roof of house of Mahabir, on exhortation given by Mangali and Ram Bhajan, Mahabir fired shot with his SBBL gun which hit Chhota and Chhabilal present in ''''Khalihan''''. Chhota after receiving fire shot injury died then and there and Chhabilal received fire arm injuries. Motive has also been alleged which relates to dispute dated 18.3.1982 i.e. two days prior to the occurrence.

Chhatrapal complainant (PW 1) soon after the occurrence picked up gun and bandolier of the deceased and after keeping it at his house got the written report (Ex. Ka-1) prepared by scribe Jagat and presented the same at Police Station Kotwali at 15.05 hours on the same day of 20.3.1982. Head Constable Uma Shanker on basis of written report registered FIR (Ex. Ka 11) and made entry in the General Diary (Ex. Ka-12).

S.S.I. S.C. Vidyarthi (PW-8) took the investigation. He visited the spot with S.I. Ram Swaroop (PW-5). On direction of Investigating Officer S.I. Ram Swaroop conducted investigation on dead body of Chhotey and prepared inquest report (Ex. Ka -3) along with relative documents (Ex. Ka -4 to 7). The dead body was handed over to Constable Ayodhya Singh (PW-6) and village Chaukidar Chaudharia for autopsy.

Post-mortem of dead body on Chhotey was conducted by Dr. Vikas Chand (PW-3) on 21.3.1982 at 12.10 P.M. He found the following ante-mortem injuries:

(1) Gun shot wound of entry 1 cm x 1 cm x cavity deep over left side of chest in anterior aspect 2.5 cm from mid line and 9 cm from left nipple at 10.30 O''clock position. Charring and blackening around the wound absent. Margins inverted. Direction downward and backward.

(2) Gun shot wound of exit 1.25 cm x 1.25 cm x communicates with injury No. 1 over posterior aspect of chest on left side. Margin inverted.

(3) Gun shot wound of entry 1 cm x 1 cm x muscle deep over anterior lateral aspect of right side of chest 8 cm below the right nipple at 8 O''clock position, charring and blackening around the wound absent. Direction downward and backward. Margins inverted.

(4) Gun shot wound of exit 1.25 cm x 1.25 cm communicating with injury No. 3 over posterior lateral aspect on right side of chest, 8 cm below the lower angle of right scapula. Margins invested.

(5) Gun shot wound of entry 1 cm x 1 cm x bone deep over soraal aspect of right had at the root of little finger. No charring or blackening present around the wound. Direction downward and backward. Margin inverted.

(6) Gun shot wound of exit 1.25 cm x 1.25 cm communicates with injury No. 5, 2 cm below injury No. 5. Margins inverted.

(7) Gun shot wound of entry 1 cm x 1 cm x bone deep over anterior lateral aspect of right thigh 13.5 cm below the right iliac chest. Margins inverted. No charring or blackening present around the wound. Direction downward and backward.

(8) Gun shot wound of entry 1 cm x 1 cm x bone deep over anterior aspect of right thigh. No charring or blackening present. Margins inverted. Direction downward and backward.

Doctor prepared post-mortem report (Ex. Ka-2) and opined that death was due to shock and haemorrhage.

Injured Chhabilal was medically examined by the Doctor Pyush Kumar (PW-7) on 20.3.1982 at about 4.45 P.M. and following injuries found on his body:

(1) Gun shot wound of entry .5 cm x .5 cm x thigh content deep on the anterio medical aspect of upper 1/3 of right thigh 24 cm above the knee joint. The margins are inverted, abraded collar present. No blackening, charring or tattooing present. Direction outwards and laterally. Kept under observation. Advised X-ray right thigh.

(2) Gun shot wound of exit 0.8 cm x 0.5 cm x thigh content deep on the lateral aspect of right thigh. Margins are inverted, lacerated, no blackening charring or tattooing present. Direction outward. Kept under observation.

The doctor found that injuries were fresh and could be caused by fire arm. He has proved injury report (Ex. Ka-10) prepared by him.

The Investigating Officer Sri S.C. Vidyarthi (PW-8) recorded statement of the witnesses, prepared site-plan (Ex. Ka-13). He inspected gun (Ex-9) and bondolier (Ex-10) and licence (Ex-11) of the deceased and prepared memo (Ex. Ka-14).After conclusion of investigation, he submitted charge-sheet (Ex. Ka 19).

After committal of the case, the Sessions Judge charged accused Mahabir under Sections 302 and 307 IPC. He pleaded not guilty and claimed to be tried.

In order to bring home charges against the accused, prosecution examined 10 witnesses in all. Chhatrapal (PW-1), real brother of the deceased Chhota. He is maker of the FIR and is an eyewitness. Chhabilal (PW-2), who is brother-in-law (Sala) of PW-1 and the deceased, is an eyewitness but declared hostile by the prosecution. Smt. Ram Sakhiya (PW-4) is wife of the deceased and is an eyewitness. Rest witnesses are formal in nature as referred to above.

Accused in his statement u/s 313 Cr.P.C. has denied his involvement in occurrence and stated about false implication in the case. No defence witnesses was adduced from accused side.

The trial Judge after appreciating entire evidence recorded finding of conviction against accused Mahabir and sentenced him. Hence the appeal. (Rest two accused persons named in the FIR were acquitted by the trial court which we have no concerned). We have gone through the entire record and heard learned Counsel for the appellant Sri Mangla Prasad Rai and learned Additional Government Advocate Sri Arunendra Singh for the State.

Learned Counsel for the appellant submitted that:

(1) It is case of single shot as opined by the doctor and it is hit and run case and none has seen the real assailants.

(2) Chhabilal (PW-2) who is brother-in-law (Sala) of the deceased and complainant has not supported the prosecution case and presence of Chhatrapal (PW-1) and Smt. Ram Sakhiya (PW-2) is doubtful and they had no opportunity to witness the occurrence.

(3) There is no mention of thrashing of Masoor crop in ''Khalihan'' in the site-plan prepared by the Investigating Officer Sri S.C. Vidyarthi (PW 8) and if crop was not being thrashed then there was no occasion to witness occurrence by Chhatrapal (PW 1) and Smt. Ram Sakhiya (PW-2).

(4) Chhabilal received injury due to dispersal of pellets which could be in range of 30 inches but Chhabilal and Smt. Ram Sakhiya did not receive injury which creates doubt about their presence on the spot.

(5) Roof of Beni Madho intervenes between two roofs of accused Mahabir and it was not possible to identify the assailants from Khalihan.

(6) Deceased Chhota himself was man of criminal background and he had enmity with other persons and he was killed by unknown assailants and accused has been falsely implicated in this case.

(7) FIR has been lodged after deliberation and is ante-timed.

Learned AGA has submitted that:

(1) It is broad day light occurrence.

(2) FIR is prompt and place of occurrence is established.

(3) It is two fire shots case and seat of ante-mortem injury is chest and thigh and injured received injury on thigh.

(4) It is undisputed fact that ''Khalihan'' belong to the deceased and presence of witnesses could not be doubted.

(5) There was no enmity with accused Mahabir as stated by Chhatrapal (PW-1) in paragraph 8 of his cross-examination, hence there was no reason to falsely implicate him.

We propose to examine the evidence led by prosecution in the light of submission made by the learned Counsel for the appellant.

It is FIR case that the occurrence had taken place on 20.3.1982 at 12.00 in the noon. Place of occurrence is ''Khalihan'' in village Dadariya Har within circle of Police Station Kotwali. Owner of ''Khalihan'' is the informant. Ownership has not been disputed by the accused. In site-plan (Ex Ka-13) prepared by the Investigating Officer Sri S.C. Vidyarthi (PW-8) ''Khalihan'' has been shown along with house of accused Mahabir and Beni Madho. Double storied house of Beni Madho intervened between the roof of the house of accused Mahabir and his Khalihan. House of Beni Madho was ''Kachcha house'' and the upper story was tiled roof sloping on both sides. Chhatrapal (PW-1) has given description that the tiled roof from the ground floor was about 7-8 cubits in height and roof of the house of Mahabir was about 10-11 cubits in height and was bounded by ''Jalidar'' parapet of about 2 inches in width and 2 cubits in height and person standing on the roof was visible from ''Khalihan''.

Smt. Ram Sakhiya (PW 4) has also deposed that level of roof of the house of Mahabir was higher than the tiled roof of Beni Madho. She stated before the Investigating Officer that accused Mahabir was seen by her on the roof of his house from behind the tiled roof of the house of Beni Madho. Thus, it is clear from evidence that house of Mahabir was clearly visible from the ''Khalihan'' and the house of Beni Madho was no obstruction. The Investigating Officer himself has stated that he had visited roof of Mahabir at the time of spot inspection and place of occurrence was visible from the said roof. He disclosed that there existed another roof of Mahabir which was about 8-10 feet in height from the adjoining roof and was linked with a stair case but so far as visibility is concerned there is no doubt that accused could be seen from ''Khalihan''.

Dr. Vikas Chandra (PW-3) has deposed that shots were fired at Chhota from higher level and also from considerable distance. Direction of gun shot wound of entry Nos. 1, 3, 5,7 and 8 were downward and backward. No charring or blackening were found. Shots spread on body of the deceased from chest to right thigh. Doctor has not ruled out the possibility of two shots.

Dr. Piyush Kumar (PW-7) has found one Gun shot wound of entry with corresponding exit on person of Chhabilal and has opined that injury could be caused by fire-arm.

It is defence case that the deceased was man of criminal back ground and he was shot by unknown assailant and one fire was shot but we are not inclined to accept it. From statement of Chhatrapal (PW-1) it is clear that deceased had no enmity with Mahabir and except motive part as stated in FIR and deposed by this witness, there was no reason to implicate the accused falsely. Even matter was settled between Mahabir and Chhota in respect of an incident which had taken place 8-10 years back from the date of occurrence.

Two days prior to the occurrence i.e. on 10.3.1982 Chhota''s mother (now dead) had gone at the ''Talab'' with cattle and cattle sneaked into field of Mahabir and Mahabir had abused her and threatened her that he would see her son who boast bravery. Knowing this Chhota had protested with Mahabir and scolded him, even on the day of occurrence prior thereto Chhota had passed near house of Mahabir and Beni Madho and then reached at his ''Khalihan''. There is evidence that Chhota was in search of stick of his son and he himself was armed with the gun and bandolier. Chhatrapal (PW-1) and even Smt. Ram Sakhiya (PW-2) who has been dubbed hostile has corroborated it.

Place of occurrence is ''Khalihan'' of Chhota (deceased). This fact finds support from deposition of Chhatrapal (PW-1), Chhabilal (PW 2) and Smt. Ram Sakhiya (PW-4).The Investigating Officer S.C. Vidyarthi (PW-8) had visited the spot and collected blood strained and plain earth from this place and prepared memo (Ex. Ka -9).

Masoor crop was kept in ''Khalihan'' which was being thrashed. In site plan, the Investigating Officer has not mentioned about thrashing of crop but he has deposed this effect. Chhatrapal, Chhabilal and Smt. Ram Sakhiya have deposed about thrashing of Masoor crop kept in ''Khalihan''.

It is defence case that the deceased Chhota was criminal and he was murdered at some other place and thereafter his dead body was kept in ''Khalihan'' but we do not appreciate it because dead body of Chhota was found in ''Khalihan''. It is broad day light murder case. Medical evidence supports this fact that death was caused on the date and time as alleged by the prosecution. Wherefrom dead body was brought and kept in ''Khalihan''? Defence is silent on this point. It is true that Chhota was involved in criminal case as has been deposed by Chhatrapal (PW-1) but he was not hardcore. In cross-examination of Chhatrapal it has come that Chhota was involved in murder, theft and dacoity cases, but he was let off in dacoity case due to want to identification and he was falsely implicated in theft case along with this witness-but other suggestion relating to involvement of Chhota in criminal case has been denied by this witness.

Chhabilal (PW-2) who is brother-in-law of the deceased and Chatrapal (PW-1) have supported this fact that Chhatrapal was present in ''Khalihan'' for thrashing and fire was shot at Chhota in ''Khalihan'' where he also received fire arm injury. He has been dubbed hostile mainly on the point that he did not name the accused and denied presence of Chhatrapal and Ram Sakhiya on the spot when the incident took place.

He has been examined in the court on 5.1.1983 i.e. after about 9 months from the date of occurrence. At the time of examination in court, his age was about 20 years. He is resident of Chitrakoot, Police Station Karvy and owning a shop. His presence on the spot is not disputed because he has received fire arm injury. He has supported entire prosecution story except this fact that he could not identify the assailant and denied presence of Chhatrapal and Smt. Ram Sakhiya on the spot. It has come in his evidence that when he reached in ''Khalihan'' with Chhota then after 10 minutes fire was shot. It is based on observation capacity of the witness what he could observe on the spot. It is view of the Apex Court that " the post event conduct of a witness varies from person to person. It can not be a cash iron reaction to be followed by a model by every one witnessing such event. Different persons would react differently on seeing a serious crime and their behaviour and conduct would, therefore, be different." (Babasaheb Apparao Patil v. State of Maharashtra AIR 2009 1461).

Chhabilal (PW-2) has admitted this fact that Masoor crop was being thrashed in the ''Khalihan'' then presence of Chhatrapal (PW 1) and Smt. Ram Sakhiya (PW-4) could not be doubted. Prior to the occurrence he has admitted presence of Chhatrapal in ''Khalihan'' and after the occurrence Chhatrapal arrived in the ''Khalihan'' within 5 minutes. Being brother-in-law, he should have supported the prosecution case in its entirety as had been supported by him while giving statement to the Investigating Officer u/s 161 Cr.P.C. but it appears that he purposely and knowingly concealed certain facts qua name of the assailant and presence of two witnesses on the spot. Court''s duty is to separate grain from chaff. On close scrutiny of testimonies of Chhatrapal (PW 1) and Smt. Ram Sakhiya (PW 4) we are of definite view that both were present on the spot at the time of occurrence and witnessed the occurrence. Both have supported the facts on material particulars and no material contradiction has been found in their statement in order to disbelieve them or doubted their testimonies. Chhatrapal is real brother of the deceased and Smt. Ram Sakhiya is wife of the deceased. They have no axe to grind against the accused. They have named the accused as assailant. Merely because the witnesses are relative of the deceased their evidence can not be brushed aside.

In view of the Hon''ble Apex Court that "merely because the eyewitness are family members their evidence can not perse be discarded. When there is allegation of interestedness this has to be established, mere statement that being relatives of the deceased they are likely to falsely implicate the accused, cannot be a ground to discard the evidence which is otherwise cogent and credible." (Mohabat v. State of M.P. AIR 2009 1893 ). This view is fortified by the ruling given in case of Dalip Singh and Others Vs. State of Punjab, Masalti Vs. State of U.P., The State of Punjab Vs. Jagir Singh, Baljit Singh and Karam Singh, Lehna Vs. State of Haryana, and Gangadhar Behera and Others Vs. State of Orissa,

In Sonelal v. State of M.P. AIR 2009 760, the same view is reiterated by the Hon''ble Apex Court.

Evidence of Chhabilal (PW-2) who has been dubbed hostile is admissible in the trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence. His statement that Chhota was in search of ''Dandi'' lost by his son is material to lend assurance to the prosecution that Chhota had been searching lost ''Dandi'' of his son and that he had come in the ''Khalihan'' through the doors of Beni Madho and Mahabir accused. Motive is relevant to the effect that Mahabir accused was not happy with the deceased who was fearless man as deposed by Smt. Ram Sakhiya (PW-4).

Ante-mortem injury No. 5 is on dorsal aspect of right hand at the root of little finger with corresponding exit injury No. 6. This injury with dent in barrel of the gun supports the prosecution case that Chhota was having gun at the time of occurrence. The investigating officer has prepared memo of the dent barrel. Chhatrapal (PW-1) and Smt. Ram Sakhiya (PW-4) have deposed that two fires were shot by Mahabir accused from his roof of the house. They have witnessed the occurrence. There is no reason to caste doubt on their evidence. Serologist report (Ex. Ka 20) supports this fact that human blood was present on articles 1 to 9 mentioned in the report.

Now we will consider about plea of ante timing of FIR.

The First Information Report was lodged at 15.05 hours on 20.3.1982 at Police Station Kotwali. The distance of the Police Station is about 6 kms. from the place of occurrence. There is evidence of Chhatrapal (PW-1) that after the occurrence, he came to his house and kept Gun and bandolier of the deceased and thereafter he invited village Jaurchi which is en route to the Police Station. His sister is married at Jaurchi and after informing her about the incident he met Jagpat clerk and got the written report (Ex. Ka 1) scribed by him. It is defence case that the FIR was got lodged after deliberation and consultation and Sri Pal Vakil who was nephew of the complainant was instrumental in getting the First Information Report lodged, it is further pleaded that Ram Babu of village Jaurchi and Santosh Kumar Singh of village Gureh accompanied the complainant up to Police Station and this fact finds support from General Diary (Ex Ka 12).

Chhatrapal (PW-1) has stated that he went alone to the Police Station but General Diary entry shows that he was accompanied with Ram Babu, Ram Swaroop and Santosh Kumar Singh. The conduct of Chhatrapal going to village Jaurchi instead of proceeding directly to Police Station Kotwali by itself is not fraught with suspicion. In village Jaurchi his sister was married where he gave information about the incident and then proceeded onward. Chhatrapal is rustic and illiterate man. If he contacted Jagpat clerk after visiting ''Mukhtarkhana'' for getting the written report scribed by him, then it could not be said that he was under influence of someone. He himself got the written report dictated. If three persons shown accompanied him up to the Police Station then it would not be very much material. Nothing appeared in cross-examination of Chhatrapal that these persons were hostile to the accused Mahabir. FIR has been lodged without unnecessary delay. Ante timing of the FIR is not proved. Merely because some overwriting has been done on crime number or in time of lodging of FIR, it would not make the FIR suspicious because in relative documents prepared with inquest report crime number has been mentioned. Even special report was dispatched through Constable Kamla Prasad (PW-10) to the officers at 4.30 P.M.

FIR cannot be treated to be an encyclopaedia. It would not be proper to accept that all particulars in detail must be furnished in FIR ( Subhash Kumar Vs. State of Uttarakhand,

Plea of the learned Counsel for the accused that number of facts stated in the evidence of Chhatrapal (PW-1) were not mentioned in the FIR and prosecution evidence suffered from improvement and infirmities but we are not inclined to accept it. Necessary details regarding occurrence has been given in FIR with motive, date and time of occurrence. The report was short and simple to state briefly the occurrence. FIR has not been lodged with deliberation and consultation. After lodging report, the Investigating Officer arrived at about 4.00 P.M. on the spot.

The evidence of Chhatrapal (PW-1) and Smt. Ram Sakhiya (PW-4) that accused Mahabir fired two shots from the roof of his house at about 12 noon at Chhota in the ''Khalihan'' and that as a result of said firing Chhota died on the spot and Chhabilal received gun shot injury is reliable and their testimonies find ample corroboration from the evidence of Chhabilal (PW-2) and medical evidence also support this fact.

Considering entire facts, we are of definite opinion that the accused Mahabir was involved in committing crime for which he was charged by the trial court and appeal deserves to be dismissed.

Appeal is dismissed. We affirm the conviction and sentence recorded by the trial court. Accused appellant is on bail. His bail bonds are cancelled and sureties are discharged. He shall surrender before the Chief Judicial Magistrate, Banda within ten days in order to serve out the sentence imposed by the trial court and affirmed by us, failing which the court shall take appropriate action to detain the accused.

Office is directed to certify the judgment immediately to the court concerned for compliance and necessary action.