Om Narain Dixit @ Chhaiya vs State of U.P.

R.K. Rastogi, J.—The appellant, Om Narain Dixit @ Chhaiya, has been sentenced to imprisonment for life u/s 302 IPC and to six month''s RI u/s 323 IPC by a judgment and order dated 12.9.1997 passed by the 12th Addl. Sessions Judge, Kanpur Nagar, in ST No. 805 of 1994, against which the instant appeal has been preferred.

Another co-accused, Shakeel, who faced trial in ST No. 1500 of 1996 was, however, acquitted by the aforesaid common judgment by the Court below. No government appeal has been preferred against the acquittal of Shakeel.

In a nutshell, the allegations in the present case are that the appellant Om Narain Dixit @ Chhaiya was a bad character, who had teased the sister-in-law of the informant, Vinod Bhatia, six months prior to the present incident. The police had arrested him on the complaint in which Vinod Bhatia was one of the witnesses. As an aftermath to the said incident, on 11.5.1994, at about 8.30 pm, when Vinod Bhatia and his servant Satish Kumar and Jagdish Bhatia (the deceased) were present in the cosmetics shop of the deceased, the appellant Om Narain came along with two accomplices on a scooter. Parking the scooter in front of the shop, he walked in carrying a jhola (bag). He fished out a bomb from the bag and hurled it on Jagdish and Vinod Bhatia with an intention to murder them. Jagdish was injured on his face as a result of the blast. Vinod. however, took shelter behind the counter, whereupon Om Narain hurled a second bomb which fell and exploded on the counter, shattering the glass pane and scattering its pieces all over the shop. Om Narain threw a third bomb, which caused injuries to Satish Kumar, the servant of Vinod Bhatia. Om Narain thereupon exhorted his accomplices to shoot Vinod Bhatia with their country-made pistol. However, as Vinod Bhatia had taken shelter behind the counter, he escaped injuries because of the smoke released by the bomb. As the nearby shop-keepers arrived there after the bomb blasts, the appellant and his accomplices fled away firing with their fire-arms. Vinod Bhatia and the servant Satish Kumar and other persons of the locality saw and identified Om Narain and his accomplices in the electric light and Vinod Bhatia mentioned in his application that he could identify the accomplices if they were produced before him.

Vinod Bhatia lodged a written report of this incident (Ext. Ka 1) at PS Govind Nagar, Kanpur Nagar, on 11.5.1994 at 9.30 pm. The case was registered by H.C. Rajendra Singh, who also prepared chik FIR (Ext. Ka 4) and the GD entry (Ext. Ka 5) at case crime No. 193 of 1994 under Sections 302/307 IPC against Om Narain and two unknown persons.

PW 6. SI Yishwa Nath Singh commenced the investigation of this case. He sent Satish Kumar, the servant, for medical examination. He was medical examined on the same night (11.5.1994) at 11.55 pm by CW 1, Dr. R.K. Dixit at UHM Hospital, Kanpur Nagar, who found the following injuries on Satish Kumar as mentioned in his injury report (Ext. C 1):

M. Abrasion in an area of 15cm. x 6 cm. Rt. Side face and left side face just below the left eye. Largest 1.5 cm x 1.5 cm and smallest 0.5 x 05 cm. kept under observation. Advise X-ray.

Both eyes are reddish (conjunctiva) and feeling pain. Kept U.O. Refer to eye surgeon for Ex. OP.

As Satish was referred to the eye surgeon by Dr. R.K. Dixit, he was examined by Dr. Vinod Tripathi (PW 3) on 12.5.1994 at 11.30 am at UHM Hospital. Kanpur Nagar, who noticed the following injuries in the eye (Ext. Ka 2):

Abrasion of 1 cm x 1 cm is present on left side of face, 6 mm below the lateral margins of lower lid.

Redness of conjunctiva is present on medial half of left eye, opacification of cornea at 10 o''clock position remark. Both injuries are simple caused by forceful blunt blow. Duration - about one day

The corpse of Jagdish Bhatia was sent for postmortem examination, which was conducted by Dr. Riyaz Ahmad (PW 4) on 12.5.1994 at 11.15 am. The following ante-mortem injuries were noted:

A lacerated wound (blast injury) 30 cm x 18 cm of whole of face extending from forehead to chin and from right to left ear charring present around the wound. Frontal both temporal maxillar and mandible bones fractured, both eyes, nose absent, tongue lacerated and charred, wounds brain cavity deep, part of both maxillae, mandible and frontal bone (part) absent, brain partially absent. One metallic piece recovered from brain matter which is sealed and handed over to accompanying constable.

Multiple abraded contusion in an area of 17 cm x 9 cm on right side of top of shoulder and upper part of chest.

Abraded contusion 3 cm x 1 cm on left side on upper pan of chest and 8 cm above left nipple.

After completion of investigation, the investigating officer SI Vishwanath Singh (PW 6) submitted the charge-sheet (Ext Ka 7). Charges under Sections 302 and 323 IPC were framed against the appellant Om Narain on 23.6.1995. He pleaded not guilty and claimed trial.

Apart from the formal witnesses, PW 3 Dr. Vinod Tripathi, eye surgeon, who examined injured Satish Kumar, PW 4 Dr. Riyaz Ahmad, who conducted the postmortem on the deceased, PW 5 Head Constable Rajendra Singh and PW 6 SI Vishwa Nath Singh, who investigated the case and CW 1 Dr. R.K. Dixit, who was examined on Court orders for proving the medical examination report of Satish on 11.5.1994, only two eye-witnesses PW 1 Satish Kumar, the injured servant of the deceased and Pw 2 Vinod Bhatia, the informant and brother of the deceased, have been examined to prove the prosecution case. SSI, Krantiveer Singh, who prepared the inquest report and other police papers died during pendency of the trial, hence could not be examined and the papers prepared by him were got proved by the investigating officer Vishwanath Singh.

PW 1 Satish Kumar has deposed that he was an employee of the deceased Jagdish Bhatia in whose shop he worked. On the date of incident at about 8.30 pm he along with Vinod Bhatia were helping the deceased Jagdish Bhatia to close the shop. At that time the appellant Om Narain Dixit accompanied by two accomplices arrived at the shop on a scooter. The informant took out a bomb from a bag that he was carrying and hurled it on Jagdish Bhatia who was standing at the counter, which struck him resulting in his death. A second bomb landed on the counter, and a third bomb caused injuries to this witness. On their cries witnesses from the neighbouring shops arrived whereupon the appellants and his accomplices fled.

PW 2 Vinod Bhatia, has deposed that the incident took place on 11.5.94. at about 8.30 pm. Om Narain accompanied by two associates arrived at the shop. Om Narain hurled a bomb which struck his brother Jagdish Bhatia on the face who succumbed to his injury. He hurled a second bomb which fell on the counter breaking the pane on it. Thereafter he hurled a third bomb, which fell on the floor, injuring his servant Satish Kumar. The informant''s report to the police six months prior to this incident against Om Narain for having teased his sister-in-law was the cause for this incident.

In his statement u/s 313 Cr.P.C. made on 23.8.1997 the appellant has claimed that he was falsely implicated owing to enmity. Although he has refused to lead any evidence in defence, nor has he examined himself on oath, he has filed a written statement on 6.9.1997 (purportedly u/s 233(2) Cr.P.C, (which has been marked as Paper No. 31/1 Ka.) In this written statement, he claims that on the night of the incident, a sister of him was to be married to one Ashok Kumar and he made all the arrangements for the same and he was filing some photographs of the marriage ceremony and that Satish Kumar, who was medically examined, was not the same person who was shown as injured and the servant of Vinod Bhatia, as his address was different, and the person who was examined was another person, who used to work in the welding shop and his address was different.

We have heard Sri I.K. Chaturvedi, amicus curiae, on behalf of the appellant and the learned AGA for the State.

It was submitted by the learned amicus curiae that there was inadequate motive for the commission of the crime on the particular date. In any case as the informant Vinod Bhatia would have been the target as be was the witness in the alleged teasing incident of his sister-in-law, and he would not have escaped injury if the incident had taken place as alleged and he was present there as several bombs were hurled and two persons were also resorting to firing with their country-made pistols and the area of the shop was only 9 ft. x 12 ft. and it was not at all probable that Vinod Bhatia would have escaped unscathed. There was also some contradiction in the statement of the informant as he has stated at one point in his examination-in-chief, that he ran outside the shop and at another point he has mentioned that he hid in the shop escaping injury. Even though firing was alleged to have been done in the close space of the shop, no pellet injury was found on the deceased or the injured. The deceased and his brother Vinod Bhatia used to reside separately, hence there was no reason for Vinod Bhatia to be present in the shop when the incident took place. The alleged injured witness Satish Kumar did not appear to have received injuries due to bomb blast, and the redness in his eyes was due to his work in the welding shop. As PW 1 Satish Kumar used to work in a welding shop as ''Head Mistry" there was little reason for him to be present in the shop of the deceased at the time when it was to be closed, and the person who has been produced as Satish Kumar was not the same Satish Kumar as his address was different. As the appellant''s sister was to be married on the same date in regard to which he has filed a written statement dated 6.9.97 and a few photographs u/s 233(2) Cr.P.C, it was not probable that he would have participated in the incident in question on that day. As PW 1 Satish Kumar used to work in a welding shop as ''Head Mistry'' there was little reason for him to be present in the shop of the deceased at the time when it was to be closed. The witnesses of the neighbourhood shops who are said to have arrived at the shop, have not been examined. The other co-accused Shakeel has even been acquitted on the same evidence, hence the evidence should also treated as unreliable against the appellant also.

On the other hand, it was contended by Sri A.N. Mulla, learned AGA, that there is little reason to discard the eye-witness account given by PW 1, the injured Satish Kumar, and by the brother of the deceased PW 2, Vinod Bhatia, who were present on the spot and who have deposed in a natural manner. The injured PW 1 Satish was examined at 11.55 pm in the same night and there was little reason to doubt his presence. It is not necessary that grave injuries should invariably be received in every incident of bomb explosion. Even if a victim does not sustain a direct hit from the bomb, blunt-object injuries can be caused by bomb. In the statement u/s 313 Cr.P.C. the appellant has not even suggested that the sister was to be married and obviously the so-called written statement, which has been filed belatedly, u/s 233(2) Cr.P.C. has only been filed to set up a defence, which the appellant has not even come forward to prove by producing any supportive defence evidence. There is nothing improbable if the witness, Satish Kumar. PW 1, working in both places, i.e. welding shop and thereafter helping the deceased with his work in the cosmetics shop. The items relating to the bomb, such as paper, iron pieces, pieces of string etc. and stones of sangemarmar were all taken into possession by the investigating officer which also confirmed that the incident had taken place in the manner alleged. There was little reason for the witnesses to have implicated the appellant, who had been earlier involved in the incident with the deceased''s sister-in-law and who was even sent to jail on that count and to have spared the real assailant and implicated the appellant. The mere non-receipt of the injuries by Jagdish Bhatia was not very significant as a person could easily escape injuries by hiding behind the counter or other obstructions in the shop.

In our view, if the appellant had teased the sister-in-law of Vinod Bhatia six months prior to this incident and as a consequence of Vinod Bhatia''s report the appellant had even been sent to jail by the police, then we think it constitutes sufficient motive for launching the assault on Vinod Bhatia and his brother Jagdish Bhatia, in which Jagdish Bhatia was murdered and PW 1, Satish Kumar, their servant, was injured. No one can give an answer to the question as to why the accused chose a particular date for committing a crime. We are also not impressed by the submission of the learned Counsel for the appellant that if Vinod Bhatia was present in the shop, which was 9 ft x 12 ft, he could never have escaped without injury. As Jagdish Bhatia was standing on the counter, the first bomb fell on him; the second bomb hurled by the appellant broke the glass pane on the counter and the third bomb landed on the floor, which caused injuries to PW 1 Satish Kumar, the servant, who was present in his shop. A person can easily take shelter behind the counter etc and it is not essential that every person must receive injury to corroborate the factum of an incident.

Also, we do not think that there is any significant contradiction in the statement of the informant because he stated at one point in the examination-in-chief that he ran out of the shop whereas at another point he has stated to have hid himself somewhere in the shop. Both these actions can be taken by a witness and he might have been confused about the fact whether he initially hid behind the counter etc. in the shop and subsequently ran outside or vice versa. The promptitude of the report within one hour of the incident at 9.30 pm in PS Govind Nagar which was 3 km away is another circumstance which corroborates the presence of the informant at the shop.

Likewise the mere factum of separate residence of Vinod Bhatia from the deceased, Jagdish Bhatia, can provide no reason to suppose that they could not be jointly engaged in some business and that the presence of Vinod Bhatia in the shop on the date of the incident should necessarily be excluded for this reason.

The learned Counsel has also sought to make some capital out of the fact that no pellet injury was found on the deceased or the injured. As the prosecution allegations were simply that firing was resorted to after the incident by the other accomplices and the recovery memos (Exts. Ka-14, Ka-15 and Ka-16) which were prepared by the investigating officer, clearly showed that pieces of nails, paper, etc. of the bomb, glass pieces and blood-stained and plain pieces of sangemarmar (marble) etc. were taken into possession, all these recoveries also corroborate the incident of hurling the bombs etc. As the place where the incident took place was an open place accessible to all, simply the fact that no pellets were recovered from the shop could not be any ground for discounting the happening of the incident.

So far as the contention of the learned Counsel for the appellant that PW 1 Satish Kumar admits that he used to work in the welding shop as a ''Head Mistry'' till 5 pm and thereafter he used to work for 3 to 31/2 hours in the cosmetic shop of the deceased cannot be believed, and that the redness in his eyes, which was seen by the eye surgeon, could not have been result of the bomb blast but owing to his working in the welding shop, it may be noted that Shiv Kumar was medically examined by CW 1, Dr. R.K. Dixit at UHM Hospital in Kanpur Nagar on the same night at 11.55 pm. The doctor had found multiple abrasions in an area of 15 cm x 6 cm on the right side of the face, which is below the eye and which was kept under observation. Both the eyes were red in the conjunctiva and the injured witness was complaining of pain. Even the eye surgeon, PW 3, Dr. Vinod Tripathi, who examined Satish Kumar on 12.5.1994 at UHM Hospital, also confirmed the presence of the abrasions on the left side of the face, 6 ml below the lower lip and also the redness in the conjunctiva was noticed by Dr. Tripathi. He also stated that the injuries were caused by blunt objects. Now there was no question of the injured witness receiving abrasions and injuries simply by being exposed to the light of the welding machines when the surgeon had stated that the injuries could be by a blunt object. Splinters of bombs do constitute blunt objects and the injured witness could have received splinter injuries if the bomb fell near him and exploded. There is no reason to suppose that Satish had fabricated injuries himself and subsequently got himself examined only for the purpose of falsely implicating the appellant. The redness of the eye also could have been caused when the smoke emanated from the bombs. No doubt, this witness has also stated at one point in his cross-examination that he ran outside immediately after the incident but he might have rushed outside the shop after the explosion of bombs and receiving injuries and smoke from the bombs. Nothing will turn on these minor contradictions.

We also found no force in the submission that the address of injured Satish Kumar, who was a witness and medically examined initially, was different from Satish Kumar. Satish Kumar, who was medically examined, gave out his father''s name as Raj Kishor Sharma, and his residence as 92E/51, Daboli-2, PS Govind Nagar; on the other hand, Satish Kumar, who appeared in Court as PW 1, gave out his address as 83/21, Daboli, Kanpur. It is quite possible that the witness might have changed his place of residence during the interregnum. In any case, no question was asked from him as to how his address was different in both the instances. From these minor contradictions, it cannot certainly be concluded that Satish Kumar who was medically examined initially and shown as an eye-witness in the FIR, was a different person from Satish Kumar, son of Raj Kishor, who worked in the welding shop and who was examined as PW 1 in the Court.

So far as the contention of the learned Counsel for the appellant that the appellant''s sister was to be married on the date of the incident, hence he was not likely to have been present at the time and place of the incident, it may be noted that when his statement u/s 313 Cr.P.C. was recorded on 23.8.1997, on being questioned whether he wanted to give any evidence in defence, the appellant answered in the affirmative. He was further examined and the evidence of the court witness was put to him, he was asked whether he would give any evidence in defence, and he replied in the negative. Thereafter, it appears that he has filed a written statement purporting to be u/s 233(2) Cr.P.C. on 6.9.1997.

So far as written statement of an accused is concerned, it can be filed by the accused when (s)he enters in defence u/s 233(2) but the same is only to be filed with the record. Section 233(2) reads as follows:

Entering upon defence.- (1)...

(2) If the accused puts in any written statement, the Judge shall file it with the record.

However, that does not discharge an accused of giving evidence in his favour if he so chooses u/s 315 Cr.P.C. where an accused can come forward and give evidence before a criminal court as a competent witness for the defence by making a request in writing if he so chooses. In the present case, the appellant has not examined himself on oath nor has he produced any testimony in defence to corroborate his version that his sister was to be married on the date of the incident. Mere filing of a few photographs without examination any other witness of even the photographer, cannot corroborate the defence of the accused that his sister was married on that date or that the photographs were really of his sister and her marriage. Therefore, we think this is a mere bald defence half heartedly set up very belatedly by the accused and no credence can be placed on the same. Moreover, even the alleged factum of the sister''s marriage on the date of the incident would not give rise to any presumption that the appellant could not have been present at the place of the incident and provide him with an alibi.

Non-production of the witness from the neighbourhood shops is also not fatal as it is well settled that witnesses are notoriously unwilling to come forward to give evidence, especially against bad characters who may prove a threat to their lives.

In this connection it has aptly been observed by the Apex Court in Appabhai and Another Vs. State of Gujarat,

In the light of these principles, we may now consider the first contention urged by the learned Counsel for the appellants. The contention relates to the failure of the prosecution to examine independent witnesses. The High Court has examined this contention but did not find any infirmity in the investigation. It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether -in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner. In Rana Partap and Others Vs. State of Haryana, O. Chinnappa Reddy J. speaking for this Court succinctly set out what might be the behaviour of different persons witnessing the same incident. The learned Judge observed (at p. 330) (of SCC : (at 682 of AIR):

Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.

There maybe some of the reactions. There may be still more. Even a man prowess may become pusillanimous by witnessing a serious crime. In this case, the courts below, in our opinion, have taken into consideration of all those aspects and rightly did not insist upon the evidence from other independent witnesses. The prosecution case cannot be doubted or discarded for not examining strangers at the bus stand who might have also witnessed the crime. We, therefore, reject the first contention urged for the appellants.

(Emphasis added)

So far as the acquittal of the accused Shakeel is concerned, he has been acquitted because neither was he named in the FIR nor has any prosecution witness mentioned his name nor was he put up for identification. Therefore, it was a case of no evidence against the co-accused, Shakeel.

For the reasons aforesaid, we find no merit in this appeal which is dismissed. The conviction and sentences awarded by the court below are confirmed.