Omvir Singh vs State of U.P.

M. Chaudhary, J.—This is a jail appeal by the accused Appellant from the judgment and order dated 30th of November, 1998, passed by XI Ith Additional Sessions Judge, Aligarh in Sessions Trial No. 786 of 1987, State v. Omvir Singh, convicting him under Sections 302 and 201, I.P.C. and sentencing him to imprisonment for life and a fine of Rs. 500 and seven years'' rigorous imprisonment and a fine of Rs. 500 respectively thereunder.

Brief facts giving rise to this appeal are that at 10.00 a.m. on 3rd of September, 1987, Satyavir Singh, brother of the deceased lodged an F.I.R. at police station Tappal, District Aligarh alleging that at about 7.00 a.m. that very morning his brother Saudan Singh was done to death by his son Omvir Singh who chopped off his head by his neck and concealed the head of his father somewhere and the headless dead body of Saudan Singh was lying on a cot at his house and that Omvir Singh was seen going out of his house by one Sheodan Singh son of Amar Singh and Gir Raj and the clothes put on by Omvir Singh were smeared with blood (Ext. Ka-1). The police registered a crime against the accused under Sections 302 and 201, I.P.C. and made an entry regarding registration of the crime in the general diary accordingly (Exts. Ka-15 and Ka-16). Station Officer Tilak Singh Yadav who took up investigation of the case in his hand proceeded along with Satyavir Singh, the first informant and the police personnel to village Salpur, and on the way between village Nagri and Salpur he arrested accused Omvir Singh at the pointing out of Satyavir Singh. On being interrogated by the Investigating Officer accused Omvir Singh disclosed that after committing the murder of his father by chopping off his head by his neck with a ''daranti'' he concealed his head digging a pit with spud (khurpi) in his ''chhappar'' and that he could get the ''daranti'', head of his father concealed by him and the spud discovered on reaching there. The Investigating Officer prepared memo of the disclosures allegedly made by Omvir Singh (Ext. Ka-6) and then he proceeded taking accused Omvir Singh along with the police personnel and Satyavir Singh and other persons accompanying him to his house. On reaching at his house accused Omvir Singh picked up blood stained ''daranti'' lying near the cot on which the dead body of Saudan Singh was lying and then he got the head of his father recovered by digging the earth in the southern western corner of his ''chhappar'' with spud and handed over the same to the Investigating Officer stating that it was the head of his father which he had concealed there and the witnesses present there also identified that that head was of Saudan Singh, the deceased. The Investigating Officer prepared memos of the blood stained ''daranti'' (Ext. Ka-2) and of the head of the deceased and the spud (Ext. Ka-5). The Investigating Officer also collected blood stained and simple earth from the scene of occurrence and prepared its memo (Ext. Ka-7). He also collected blood stained trousers and shirt put on by the accused and prepared its memo (Ext. Ka-3). Then he drew inquest proceedings on the dead body of Saudan Singh and prepared the inquest report (Ext. Ka-8) and other necessary papers (Exts. Ka-9 to Ka-12) ; and handed over the dead body in a sealed cover along with necessary papers to constables Katar Singh and Babu Ram for being taken for its post-mortem. He inspected the place of occurrence and prepared its site plan map (Ext. Ka-13). He also recorded statements of the witnesses and did other necessary things.

Autopsy conducted on the dead body of Saudan Singh by Dr. V. S. Agnihotri, Child Specialist M.S. Hospital, Aligarh, on 4th of September, 1989 at 2.30 p.m. revealed the below noted ante mortem injuries on the dead body:

(1) Head severed off rest of the body at the level of 4th cervical vertebrae, structure muscles, trachea and bone cut, surfaces clean cut and clay present in the wound.

(2) Contusion 3 cm. ? 2 cm. on right side of head 4 cm. above the root of right ear.

(3) Contusion 6 cm. ? 4 cm. on the back of lower half of right forearm.

On an internal examination spinal chord was found cut at the level of neck. Stomach was found empty and small intestine contained fluid and gases and large intestine faeces and gases. The doctor opined that the death was caused due to coma with shock as a result of ante-mortem injuries about one and half a day ago.

After completing the investigation the police submitted charge-sheet against the accused.

The accused pleaded not guilty denying the alleged occurrence altogether and stating that he was got implicated in the case falsely. He denied the disclosures allegedly made by him to the Investigating Officer denying alleged recovery of blood stained ''daranti'' and head of the deceased and spud at his instance.

After framing of charge against the accused the prosecution examined Satyavir Singh (P.W. 1), Gir Raj Singh (P.W. 2) and Sheodan Singh (P.W. 4) in its support. P.W. 6 Station Officer Tilak Singh Yadav who investigated the crime proved the police papers deposing the fact of the disclosures made by the accused to him and in consequence thereof recovery of blood stained ''daranti'' lying near the cot and head of the deceased by digging the earth with spud from inside his ''chhappar'' at his instance. P.W. 5 S.I. Shyam Narain Mishra who was posted at police outpost Jahari, P.S. Tappal at that time and assisted the Investigating Officer proved the memo of the disclosures allegedly made by the accused on being interrogated by the Investigating Officer after being arrested. He also proved recovery memos of ''daranti'' and that of head of the deceased along with the spud scribed by him. P.W. 3 Dr. B. S. Agnihotri who conducted autopsy on the dead body of Saudan Singh proved the post-mortem report.

Since in the instant case there was no eye-witness of the murder and the entire edifice of the prosecution case rested on circumstantial evidence consisting of the circumstances (i) there was strong motive for the accused Appellant to liquidate the deceased, (ii) soon after the murder of Saudan Singh the Appellant was seen coming out of his house putting on clothes having blood stains and he, on being interrogated by the Investigating Officer after his arrest the disclosures made by the accused to the Investigating Officer that he chopped off the head of his father with ''daranti'' and thereafter concealed the head of his father by digging the earth with spud in his ''chhappar'' and he could get the blood stained ''daranti'' and the head of his father and the spud discovered to him led to the recovery of the blood stained ''daranti'' lying near the cot on which the dead body of Saudan Singh, the deceased was lying and the head of his father by digging the earth with the spud from his ''chhappar'' at the instance of the accused ; learned Additional Sessions Judge on a conspectus of the evidence on record and hearing learned Counsel for the parties held the accused guilty of the charge levelled against him and convicted him under Sections 302 and 201, I.P.C. and sentenced him as stated above.

Feeling aggrieved by the impugned judgment and order the accused preferred this appeal for redress.

We heard Sri Ghan Shyam learned amicus curiae for the Appellant and the learned A.G.A. for the State.

After hearing the parties'' learned Counsel and going through the record we also find ourselves in complete agreement with the finding of guilt against the accused recorded by the learned trial Judge. However, the learned amicus curiae for the Appellant has advanced following arguments and now we shall see if they have got any substance:

First, the learned amicus curiae for the Appellant contended that the Appellant who need to serve his ailing father had no motive to commit his murder. P.W. 1 Satyavir Singh, the first informant and brother of the deceased stated that his brother Saudan Singh was ailing since long and was confined to bed and dependent upon his son Omvir Singh for his daily pursuits and he had incurred heavy expenditure on his father''s illness and feeling fed up with his prolonged illness he murdered his father. It has also come in evidence that deceased Saudan Singh had got a daughter also but she had died and that the accused had no issue as his wife deserted him and had gone to her parents'' house and thereafter married with someone else. In our opinion prolonged illness of the deceased who was dependent for his daily pursuits on his only son Omvir Singh, the accused constituted adequate motive for the crime.

Secondly, the learned amicus curiae, for the Appellant vehemently argued that statements of the prosecution witnesses regarding arrest of the accused and disclosures made by him to the Investigating Officer leading to the alleged recovery of blood stained ''daranti'' and head of the deceased are so incongruent and discrepant that their testimony regarding the alleged recovery of blood stained ''daranti'' and head of the deceased at the instance of the accused should not be believed. He pointed out that statement of P.W. 1 Satyavir Singh, the first informant himself is self-contradictory as he stated in his examination-in-chief that while he along with the police personnel were returning from the police station after lodging the F.I.R. he on the way in between villages Narri and Salpur saw accused Omvir Singh, and the Investigating Officer arrested him then and there at his pointing out, that on being interrogated by the Investigating Officer Omvir Singh disclosed that he chopped off the head of his father Saudan Singh with ''daranti'' and concealed his head in his ''chhappar'' by digging the earth with spud and could get that blood stained ''daranti'' and head of his father along with the spud recovered to him from his house ; that then the Investigating Officer brought him to the scene of occurrence at village Salpur whereas in his cross-examination he stated that the police arrested accused Omvir Singh in front of the school situate at village Salpur itself. P.W. 2 Gir Raj Singh stated that the police arrested accused Omvir Singh from his house as when the police entered the house of accused Omvir Singh he was cutting potatoes in the kitchen at his ''chhappar'' and that when the police gave him a beating he disclosed that he chopped off the neck of his father with ''daranti''. P.W. 4 Sheodan Singh stated that, that very day the police personnel came to the village and arrested accused Omvir Singh but stated in his cross-examination that accused Omvir Singh was not arrested by the police in his presence as he was at his house and he could not say as to from where the accused was arrested by the police. However a perusal of the memo of the disclosures allegedly made by the accused to the Investigating Officer goes to show that it bears signatures of Sheodan Singh. Learned amicus curiae for the Appellant contended that the above inconsistent and discrepant statements of the witnesses regarding the arrest of accused Omvir Singh and the disclosures made by him on being interrogated by the police after his arrest render the alleged recovery of blood stained ''daranti'' and head of the deceased after digging the earth with the spud from inside his ''chhappar'' at the instance of the accused doubtful and suspicious.

We have given our anxious consideration to the said argument advanced by the learned amicus curiae for the Appellant. Admittedly, P.W. 1 Satyavir Singh is the real uncle of accused Omvir Singh and P.W. 2 Gir Raj Singh is his ''saru'' as one of the two real sisters was married with accused Omvir Singh and the other with Gir Raj Singh (P.W. 2). It appears that both these witnesses might have developed some soft corner for the accused at the time their statements were recorded due to close relationship with the accused and stated so under stress. P.W. 4 Sheodan Singh is the next door neighbour of the accused. He was not contradicted in his cross-examination by the defence counsel as to how the memo of the disclosures made by the accused to the Investigating Officer on being interrogated by the police soon after his arrest bore his signatures if the accused was not arrested in his presence. The fact remains that at or about the time of murderous assault at Saudan Singh, no third person excepting the accused and the deceased were present in the house, and in conjunction with the circumstantial evidence aforesaid it inescapably leads to the conclusion that in all probability it was the accused and none else who murdered the deceased. Further, the accused nowhere stated in his statement recorded u/s 313 of the Code of Criminal Procedure that he was not present at his house the fateful morning his father was murdered nor any such suggestion was given to either of the prosecution witnesses in their cross-examination. Furthermore, the fact that Saudan Singh was murdered on 3rd of September, 1987 at about 7.00 a.m. has not been challenged. It is unfathomable and unintelligible that if the accused did not murder his father as to why he did not lodge F.I.R. of his father''s murder at the police station. All the three witnesses namely P.W. 1 Satyavir Singh, P.W. 2 Gir Raj Singh and P.W. 4 Sheodan Singh consistently stated that it was the accused who got the blood stained ''daranti'' lying near the cot on which headless dead body of Saudan Singh was lying and head of the deceased concealed in a pit by digging earth with the spud from the corner in his chhappar recovered to the police. P.W. 6 S.I. Tilak Singh Yadav, the Investigating Officer stated in his examination-in-chief that in pursuance of the disclosures made by the accused to him on being interrogated after his arrest, he, taking the accused along with the police personnel and the witnesses, reached the scene of occurrence and then the accused got blood stained ''daranti'' lying near the cot on which the dead body was lying and the head of his father from a pit at the southern western corner of his ''chhappar'' by digging the earth with the spud recovered to him. Recovery of the blood stained ''daranti'' lying near the cot on which the dead body of Saudan Singh was lying and that of head of the deceased from inside his ''chhappar'' concealed in a pit at the instance of the accused in pursuance of the disclosures made by him to the Investigating Officer is such a clinching piece of evidence which is impeccable. Station Officer Tilak Singh Yadav, the Investigating Officer was in no way inimical to the accused. He is a responsible officer and there is no good reason for disbelieving him.

Lastly, the learned amicus curiae for the Appellant half heartedly argued that the accused might have committed the murder of his father during fit of insanity as he was admitted in the Mental Hospital at different spans and he should be given benefit of the provisions of Section 84 of the Indian Penal Code. However he conceded that there is nothing on the record to show that the accused was insane at the time of the said occurrence nor any such plea on behalf of the accused was taken at any stage during trial of the accused.

On a global consideration of the evidence on record and concomitant circumstances, we subscribe to the view taken by the learned trial Judge and find no merit in this appeal. The Appellant has rightly been convicted under Sections 302 and 201, I.P.C. and sentenced thereunder.

The appeal is, therefore, dismissed. Conviction of the accused under Sections 302 and 201, I.P.C. and the sentence of imprisonment for life and a fine of Rs. 500 and seven years'' rigorous imprisonment and fine of Rs. 500 respectively thereunder are maintained. The accused is already in jail. He shall serve out the sentence awarded to him.

Certified copy of the judgment and record of the case be transmitted to the Court below immediately for compliance under intimation to this Court within two months from today.