Murlidhar vs State of U.P.

Imtiyaz Murtaza, J.—This jail appeal has been filed by the appellant Murlidhar against the judgment and order dated 25.9.2001 passed by Sessions Judge, Jhansi whereby the appellant has been convicted u/s 302 I.P.C. and sentenced to life imprisonment.

The brief facts of the case mentioned in the F.I.R. lodged by Dev Singh at police station Shahjahanpur District Jhansi are that the appellant had illicit relations with the wife of informant''s eldest son Sanju. On account of this his son Sanjau had separated from his wife Phukkan and she was living in her Maika. Since then appellant used to abuse and assault his wife and informants son Sanju. On 2.3.2000 the appellant had assaulted his wife and she had left his house and started living in her Maika. On 3.3.2000 there was a ceremony of Shuddhta of death in the house of Balmukund. The informant alongwith Pyarey Raja and Ram Kishore were returning from the house of Balmukund. They heard some cries from the house of Murlidhar, appellant and the door of his house was open and they entered into the house at about 11.30 p.m. and saw that on the roof of the house Murlidhar was assaulting his sons Sanju aged about 22 years and Maithli aged about 14 years with an axe. He had also threatened them and ran away from the house. Both the sons were lying dead on the roof of the house. He had lodged the report at the police station on 4.3.2000 at 2.30 a.m. which was registered at case crime no. 9 of 2000.

After the registration of the report Banshi Lal Savita, S.S.I commenced the investigation. He had recorded the statement of the informant Dev Singh and Head Moharrir Ganga Ram Patel at the police station and reached at the place of occurrence in the night in village Talaur. He had prepared the site plan on the pointing out of the informant in the morning of 4.3.2000. He collected blood stained and plain earth from near the dead bodies and prepared its recovery memo. The recovery memo was prepared by S.C. Deshraj Singh on his dictation, which is Ex. Ka-7. Recovery memos of blood stained mattress, pillow and blanket were also prepared by Shri Deshraj Singh on his dictation which is Ext. Ka-8. H.C.P. Deshraj prepared inquest memo on the body of Sanju on his dictation, which is Ext. Ka-9 and also prepared the relevant papers for the post mortem examination which are Ext Ka-10 to Ka-14. He had also prepared the inquest memo on the body of Maithli on his dictation, which is Ext. Ka-15 and the relevant paper for the post mortem examination which are Ext. Ka-16 to Ka-20. He had also handed over the dead bodies to constable Sunder Lal and constable Mewa Lal for being escorted to the mortuary. On 4.3.2000 he recorded the statement of Pyarey Raja and he had also arrested appellant Murlidhar and on his pointing out an axe was also recovered. The blood stained Paijama and Kurta were also taken into possession and prepared its memo, which is Ext Ka-21. He had prepared the site plan of recovery of axe, which is Ext Ka-22. He had lodged the accused in the police station alongwith the recovered articles. A G.D. entry is Ext Ka-23. After the conclusion of the investigation, the charge sheet was submitted against the accused, which is Ext. Ka-24.

Dr. O.P. Maheshwari conducted the autopsy on the dead body of Sanju on 4.3.2000 at 3.15 p.m. and he noted following ante mortem injuries on the person of the deceased:

Incised wound over right side of neck 8 cm. x 3 cm. x muscle deep going downward and anteriorly tailing interiorly under injury and great vessels are cut.

Incised wound 7.5 cm. x 2.5 cm. x muscle deep 1.5 cm. below the injury no. 1 going downward and anteriorly and tailing anteriorly, under injury great vessels are cut.

Incised wound 5 cm. x 2.5 cm. x muscle deep over right size of neck 3 cm. below injury no. 2 under injury great vessels are cut. Tailing anteriorly.

Accordingly to the opinion of the doctor the cause of death of the deceased was haemorrhage and shock due to ante mortem injuries.

Dr. O.P. Maheshwari also conducted the autopsy on the dead body of Maithli on 4.3.2000 at 4.15 p.m. and he noted following ante mortem injuries on the person of the deceased:

Incised wound 6 cm. x 2 cm. x bone deep on left side cheek 4 cm. below left Malone prominence under injury maxillary bone fractured.

Incised wound 8 cm. x 4 cm. x bone deep staining from angle of mandible to chin under injury mandible fractured.

Incised wound right side of cheek 5 cm. x 2 cm. x buckle cavity deep 1 cm. away from right corner of mouth.

Incised wound 5 cm x 2 cm. x muscle deep on right side of neck lateriorly 3 cm. below mandible under injury great vessels cut.

Incised wound 7 cm. x 3 cm. x muscle edeep on right side of neck laterirly 3 cm. above the right clavicle.

Incised wound 4 cm. x 1 cm. x muscle deep on left side of neck 5 cm. below left ear. Under injury vessels cut.

7 cm. x 2 cm. x muscle deep incised wound on left side of neck 2 cm. below the injury no. 6.

Incised wound left side of neck 3 cm. x 2 cm. x muscle deep. 2 cm. below the injury No. 7.

Incised wound 5 cm. x 3 cm. x muscle deep on left shoulder region 3 cm. medial to tip of left shoulder.

Accordingly to the opinion of the doctor the cause of death of the deceased was haemorrhage and shock due to ante mortem injuries.

After submission of the charge sheet case was committed to the court of Sessions and the Sessions Judge had framed charge u/s 302 I.P.C.

In order to prove its case the prosecution had examined six witnesses in all. P.W. 1 Dev Singh, informant and eye witness, P.W. 2 Pyarey Raja, an eye witness, P.W. 3 Dr. O.P. Maheshwari who conducted the post mortem examination on the dead body of deceased persons, P.W. 4 H.C. Ganga Ram Patel, P.W. 5 Sunder Lal who had escorted the dead bodies in sealed condition to the mortuary, Medical College, Jhansi and P.W. 6 S.S.I. Banshi Lal Savita, who investigated the case and submitted the charge sheet against the appellant-Murlidhar.

The appellant did not examine any witness in his defence.

P.W. 1 Dev Singh supported the allegations of F.I.R. and deposed that appellant Murlidhar had two sons Sanju and Maithli. Sanju was married and the name of his wife was Phukkan. Appellant Murlidhar and Smt. Phukkan had developed illicit relations. The wife of appellant and his sons had called the villagers and separated Sanju and his wife Phukkan and after separation Phukkan used to live in her Maika. On account of this appellant was annoyed with his wife and his sons and used to beat them. On account of beating appellant''s wife also started living in her Maika. Sanju and Maithli were murdered at about 11-11.30 p.m. He had gone to attend the Suddhta Bhoj on the death of Bhabhi of Balmukund. At about 11.30 p.m. he was returning alongwith Pyarey Raja and Ram Kishore and when they reached near the house of Mulidhar they heard some cries from the roof, the door of the house of Murlidhar was opened and they entered into the house and saw from the stairs that Murlidhar was holding an axe in his hand and assaulting his sons. They challenged the accused but he went away threatening them. His both sons were lying dead. Several persons collected near his house and on his dictation Jagat Singh had prepared the report, which is Ext. Ka-1.

P.W. 2 Pyarey Raja had also supported the version of P.W. 1. He also deposed that Murlidhar had illicit relations with the wife of his son Sanju and they were separated due to intervention of the villagers and thereafter wife of Sanju started living in her Maika. He further deposed that at about 10-11 in the night he alongwith Dev Singh and Ram Kishore had gone to attend the "Bhoj" on the death of a relative of Balmukund. The wife of Murlidhar started living in her Maika because of her beating by Murlidhar. When they were returning and reached near the house of Murlidhar he heard shrieks which were coming from the house of Murlidhar. They entered into the house and when they were going upstairs they saw that Murlidhar was holding an axe in his hand. He had also threatened them. No other person was in the house at that time. He heard about the illicit relations of Murlidhar and his daughter-in-law from the villagers. He could not tell the date of separation between Sanju and his wife.

P.W. 3 is Dr. O.P. Maheshwari, Medical Officer, District Hospital, Jhansi who had conducted the post mortem examination on the dead bodies of the deceased persons, Sanju and Maithli and proved the same.

P.W. 4 Ganga Ram Patel, Head Constable deposed that on 4.3.2000 at about 2.30 a.m. an first information report was lodged by Dev Singh and he prepared the chik F.I.R which is Ext. Ka-4. He had also prepared the G.D. A photo copy of the G.D. is Ext. Ka-5.

P.W. 5 constable Sunder Lal has filed an affidavit stating on oath that on 4.3.2000 at about 9.15 a.m. he was given the dead bodies in a sealed cover of Sanju and Maithli after the preparation of inquest. He along with constable Mewa Lal had taken the dead bodies to the Mortuary, Medical College, Jhansi for the post mortem examination.

P.W. 6 S.S.I. Banshi Lal Savita is the investigating officer of the case and after investigation he had submitted the charge sheet against the appellant.

The case of the defence was of denial and the appellant had stated that he had never beaten his wife or daughter-in-law. He had no illicit relations with Smt. Phukkan. He was not present in his house when the occurrence had taken place. Dev Singh did not pay him his two month''s labour charge and he had disclosed this fact to the several persons of the village and on that account he was inimical with him. He further stated that he had taken the land of Pyarey Raja on Batai but he had taken away all the crop by force and he was not given any share. He had called the Panchayat in this matter. On that account Pyarey Raja was also inimical with him. The investigating officer had not recovered anything on his pointing out nor he has confessed any crime. He further stated that there was no blood marks on his Paijama and Kurta and he is falsely implicated in this case.

The Sessions Judge after considering the evidence on recorded convicted and sentenced the appellant, as aforesaid. Hence this appeal.

We have heard shri Ramji Saxena, Amicus Curiae for the appellant and the learned A.G.A. for the State.

The place and time of the occurrence in this case was seriously challenged. The place of occurrence is fully proved on account of recovery of dead bodies and blood stained earth and the investigating officer had also collected blood stained mattress, pillow and blanket. The serologist report confirms the human blood on these articles. The investigating officer states that he has found the dead bodies on the roof of the house of the appellant. The inquest report was also prepared. The time of occurrence is also proved by the post mortem examination on the dead body of the deceased persons in which the doctor has opined the probable time of death as 3/4 day. He had also stated that the death of the deceased persons is possible around 11.30 in the night of 3/4. 3.2000.

Learned Counsel for the appellant has vehemently challenged the presence of P.W. 1 and P.W. 2 at the time of occurrence. It was contended that both the witnesses are chance witnesses and they had absolutely no occasion for being present at the place of occurrence. It was further contended that according to the F.I.R. the witnesses were returning from the residence of Balmukund where they had gone to attend the Shuddhta Bhoj on the death of a relative of Balmukund. It was submitted that there was no tradition of hosting Bhoj on such occasion and there was no occasion to remain there so late in the night. Both the witnesses were extensively cross examined on this point and they have stated that there is a tradition of hosting Bhoj and they were returning on the date of the occurrence after attending the Bhoj at the residence of Balmukund. There is no doubt that just by chance these witnesses reached at the place of occurrence while returning from the residence of Balmukund but simply because they are chance witnesses their testimony cannot be disbelieved. They have explained their presence at the time of occurrence and their testimony finds corroboration from investigation and medical evidence.

It is further submitted by learned Counsel for the appellant that both the witnesses are inimical and they were annoyed with the appellant and on that account they have given false statement against the appellant. It was suggested to P.W. 1 Dev Singh that appellant was working as a labour and his two month''s remuneration was not paid by him. It was suggested to P.W. 2 Pyarey Raja that appellant has taken his land on Batai but the whole crop was forcibly taken away by P.W. 2 Pyarey Raja. It was contended that the appellant had brought it to the notice of the villagers and there was Panchayat and they were humiliated there. These facts were suggested to the witnesses but both have strictly refuted these allegations.

Learned Counsel for the appellant has also submitted that motive of the crime has not been proved by the prosecution. In the F.I.R. as well as in the testimony of the witnesses it has been stated that the appellant had developed illicit relations with his daughter-in-law Smt. Phukkan but both the witnesses have stated that they have heard in the village about the illicit relations and the motive in this case has not been proved. If the incident in question as projected by the prosecution is to be accepted then the presence or absence of a motive or strength of the said motive by itself also will not make the prosecution case weak. In the case of Thaman Kumar Vs. State of Union Territory of Chandigarh, the Apex Court had observed as under:

There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved.

In the case of State of Himachal Pradesh Vs. Jeet Singh, the Apex Court had observed "No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended."

The recovery of the axe on the pointing out of the appellant has also challenged by the learned Counsel for the appellant. It is vehemently contended that the prosecution has failed to examine any independent witnesses to support the factum of recovery of axe on his pointing out. It is further submitted the place of recovery was accessible to all.

We have perused the recovery memo Ext. Ka-16. The alleged recovery has been made from the bush of Besharam plant and it was concealed behind the bushes. In our opinion the recovery of axe is admissible within the meaning of Section 27 of the Evidence Act. The recovered axe had blood stained, which is also proved by the serologist report which shows that human blood was also found on the axe. In the case of Karamjit Singh Vs. State (Delhi Administration), the Apex Court has held that the testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down. There is nothing on the record to doubt the recovery of axe on the pointing out of the appellant.

Learned Counsel for the appellant has also challenged the time of lodging of the F.I.R. It is submitted that the first information report is ante timed and was prepared later on with consultation. The attention of the court was also drawn to the statement of P.W. 1 Dev Singh who stated that other people had also collected on the spot and the report was lodged after consultation. We have perused the testimony of the witness-informant Dev Singh who specifically stated that he had consulted with the persons alongwith Nand Kishore Master prior to lodging of the first information report. There is nothing unnatural in this case. In this case report was lodged against a father for killing his own sons and there was no other family member available in the house and if a report was lodged after some consultation it cannot be said that the delay in lodging the report was for falsely roping the appellant. There is no suggestion that why Nand Kishore Master will falsely implicate the appellant. The consultation which had taken place prior to the lodging of the report, it cannot be said that nobody had witnessed the occurrence and the appellant was falsely implicated in this case. Learned Counsel for the appellant also submitted that no independent witnesses, who were living in the vicinity of place of occurrence, were examined. It is further submitted that there is no source of light, neither in the F.I.R. nor in the testimony of the witnesses any source of light was mentioned. The occurrence took place at about 11.30 p.m. and in the absence of any source of light the assailant could not be identified and the appellant has been falsely implicated. We have considered these submission and evidence on record and the site plan. The investigating officer had shown a streetlight in the site plan. Perusal of the testimony of the witnesses also show that the appellant had also challenged them and known person can be identified in faint light and it is also important to point out that none of the witnesses were suggested that there was no light at the place of occurrence.

It is further submitted by learned Counsel for the appellant that the F.I.R. is anti-timed and investigation is not fair and special report has not been submitted forthwith and there is absolutely no compliance of Section 157 Cr.P.C. We have heard the submission of the learned Counsel for the appellant and in our opinion it is not true that delay in sending the special report u/s 157 Cr.P.C. necessarily leads to the inference that the F.I.R. has not been lodged at the time stated or has been anti- timed or anti dated or that the investigation is not fair and forthright. The lodging of the F.I.R. at the alleged time is proved by overwhelming evidence on record. The investigating officer had recorded the statement of the informant at the police station in which he had supported the version of the F.I.R. The inquest was completed at 8 a.m. and the dead body was dispatched through constables for the post mortem examination. The first information report was one of the enclosures sent along with the inquest report for the post mortem examination. Even if the special report is not dispatched forthwith it was only a fault of the investigation and on that ground eye witness account which was otherwise reliable cannot be disbelieved. The Apex Court in the case of Rabindra Mahto v. Sate of Jharkhand reported in JT 2006 (1)13 held as under:

There cannot be any manner of doubt that Section 157 of Code of Criminal Procedure requires sending of an F.I.R. to the Magistrate forthwith which reaches promptly and without undue delay. The reason is obvious to avoid any possibility of improvement in the prosecution story and also to enable the Magistrate to have a watch on the progress of the investigation. At the same time, this lacuna on the part of the prosecution would not be the sole basis for throwing out the entire prosecution case being fabricated if the prosecution had produced the reliable evidence to prove the guilt of the accused persons. The provisions of Section 157 Cr.P.C. are for the purpose of having a fair trial without there being any chance of fabrication or introduction of the fact at subsequent stage of investigation. The cases cited by the learned Counsel for the appellants do not lay down any law that simply because there is a delay in lodging the F.I.R. or sending it to the Magistrate forthwith, the entire case of the prosecution has to be discarded. The decision rendered by this Court and relied upon by the learned Counsel for the appellant would only show that this will he a material circumstance which will be taken into consideration while appreciating the evidence on record.

The counsel for the appellant stated that the post mortem examination reports shows that the deceased persons had suffered injuries by two weapons and there is conflict in ocular account and medical evidence. We have perused the testimonies of the witnesses and medical evidence and in our opinion there is no contradiction to disbelieve eyewitness account. P.W.3 Dr. O.P. Maheshwari has stated that the injuries of the deceased persons are possible by an axe and this is the case of the eye witnesses that the deceased persons were assaulted by an axe.

We have carefully examined the evidence on record. The eye witness account is credit worthy and eye witnesses were extensively cross examined and nothing could be elicited to discredit their evidence. The Sessions Judge rightly recorded the findings of conviction and we also affirm the same.

For the reasons stated above the appeal is dismissed. The conviction and sentence of the appellant-Murlidhar awarded by the trial court is affirmed. The appellant is in jail. He shall be kept there to serve out the sentence awarded by the trial and affirmed by us.

Office is directed to communicate this order within two weeks to the appellant through C.J.M. Jhansi.