Rakesh Kumar Singh (In Jail) vs State of U.P.

Shiv Shanker, J.

This criminal appeal u/s 374(2) of Cr.P.C. has been filed against the judgement and order dated 27th May, 2002 passed by Additional Sessions Judge, Court No. 5 Ballia in Sessions Trial No. 87 of 1999, convicting and sentencing the accused appellant u/s 302 I.P.C. to undergo imprisonment for life and a fine of Rs. 1000/-, in default of payment of fine further to undergo rigorous imprisonment for three months.

Briefly, prosecution case is that Anil Kumar Singh, son of Late Triloki Nath Singh lodged the F.I.R. on 4.12.1998 at 23.40 P.M. regarding occurrence dated 4.12.1998 at about 11.30 A.M. against Rakesh Kumar Singh present appellant, wherein it has been stated that some dispute had arisen in between Deen bandhu Singh father of appellant and Virendra Singh in the year 1996 and Triloki Nath Singh (deceased) who helped Virendra Singh. Therefore, Deenbandhu Singh and his family members felt grudge.

On 4.12.1998, the informant and his father Triloki Nath. Singh (deceased) had gone to the house of Bhagwan Singh for taking feast and on returning from there, they reached near the house of Babban Singh at about 11.30 A.M. Suddenly, Rakesh Kumar Singh son of Deenbandhu who was hiding, came out there and after stopping father of informant, he began to say him as to why he was helping Virendra Singh and others. He replied him in positive, upon which accused gave blows of his knife upon the body of Triloki Nath Singh (deceased). Consequently he sustained knife injuries on his person. After raising alarm by the informant, Nepal Singh and Bhagwan Singh also reached at the place of incident and saw the whole incident in their presence and they had tried to apprehend the accused Rakesh Kumar Singh but he had fled away from there after showing knife to all the witnesses. Thereafter, Triloki Nath Singh in injured condition, was taken to Sadar hospital Ballia where he was treated but in deteriorating condition, he was referred to Varanasi hospital, but on the way, his condition became too much deteriorating. Therefore, he was again returned back to Sadar hospital Ballia where he was declared dead by the doctors. After leaving dead body of his father in the Sadar hospital he had proceeded to the concerned police station where he has submitted a written report vide Ext. Ka1. On the basis of written report, a chick F.I.R. Ex. Ka-4 was prepared and case against accused appellant was registered for the offence u/s 302 I.P.C. and investigation of this case was entrusted to Sub-Inspector Devendra Kumar Pathak. 3. Inquest report and other papers were prepared regarding dead body of deceased by the concerned S.I. on 5.12.1998 in between 10.15 A.M. to 11.30 A.M. After sealing dead body of deceased, the same was handed over to constable Ram Awadh Prajapati and Hari Narain Yadav and in the same condition, it was produced for post mortem to the concerned doctor who prepared the post mortem examination report Ex.Ka-10 of dead body of deceased on 5.12.1998 at 2.30 P.M. The following injuries were found on the dead body of deceased as ante mortem injuries:

Incised wound of 3 cm x 1 cm and 3 cm. Deep on the Anterior Abdominal wall. 2 cm above and left from the umblicus.

Incised wound of 2 cm x 1 cm x 3 cm Deep on Anterior Abdominal wall 1 cm. Lateral to the injury No. 1.

Incised wound of 1.5 cm x 1 cm x 1 cm on the posterior aspect of (Rt.) wrist joint.

Incised wound of 1.5 cm x 0.5 cm on the (Rt.)Fore-arm Posterior aspect. 9 cm below the (Rt.) Elbow joint.

Incised wound of 3 cm x 1 cm x 1 cm Back of (Lt.)shoulder joint.

Incised wound of 2.5 cm x 0.5 cm x 1 cm (Lt.) scapular Region.

Cause of death is shock as a result of Ante Mortem Haemorrhage which is due to Ante Mortem injuries.

On 21.12.1998, blood stained knife was recovered at the pointing out of present accused and prepared its Fard Ex. Ka-8. Blood stained clothes of deceased were also taken into custody and prepared its Fard. Ex.Ka-15. Blood stained clothes etc. of the deceased and one recovered knife were sent to the chemical examiner, from where the report has been received and human blood was found in item No. 1 to 7 & 9 but blood was not found in ring of the deceased.

After completion of investigation, charge sheet was filed against accused and cognizance was taken upon it by concerned court and case was committed to the court of Sessions.

Thereafter, accused Rakesh Kumar Singh was charged for the offence punishable u/s 302 I.P.C. by the concerned Sessions Judge who pleaded not guilty and claimed to be tried.

Statement of accused was recorded u/s 313 Cr.P.C. who has denied all the allegations and stated that witnesses are relating to one group and Bhagwan Singh wanted to possess his land as he is only son of his father who is very old. He did not know as to who committed murder of Triloki Nath Singh (deceased) and he has been falsely implicated in this case.

Prosecution examined P.W.1 Anil Singh, P.W.2 Bhagwan Singh, P.W. 3 Nepal Singh, P.W. 4 Nagendra Singh, P.W.5 Doctor B. Prasad, P.W.6 Manauvar Husain, P.W.7 Vineshwar Yadav, P.W.8 Ram Awadh, P.W.9 Dr. Achhay Kumar Rai, P.W. 10 Deenanath Sharma, P.W.11 Devendra Kumar Pathak, P.W.12 Vashisth Singh. No any oral or documentary evidence has been adduced on behalf of accused in his defence.

Thereafter, the trial court has convicted the accused for the charge u/s 302 I.P.C. and awarded sentences as mentioned above and for challenging the above judgement and order of conviction, the accused- appellant preferred the present appeal in this Court.

Heard Sri I.K. Chaturvedi, learned Counsel for the appellant and learned A.G.A. as well as perused the whole evidence on record.

Learned Counsel for the appellant contended that F.I.R. has been lodged with the delay of 12 hours and no sufficient explanation has been given regarding such delay. Therefore, no reliance can be placed upon such F.I.R. It is further contended that motive alleged in the F.I.R. is not proved and there was no immediate motive to commit murder of deceased. No any independent witness has been produced in evidence in support of prosecution case. Only interested and related witnesses have been examined and there were several inconsistencies in their testimony and their testimony is also not corroborated with the medical evidence. Ante mortem injuries No. 1 and 2 only were found dangerous to life. The rest of injuries No. 3 to 6 of sharp edged weapon were found simple in nature. Dispute arose in between the deceased and appellant suddenly.

Therefore, the appellant assaulted and inflicted injuries on the body of deceased. There was no intention to commit murder of deceased. It is a case of sudden provocation. Offence u/s 302 I.P.C. is not proved but offence u/s 304 I.P.C. is only made out according to the prosecution evidence. It is further contended that knife was shown to be recovered at the pointing out of appellant, has been planted by the police officer.

Therefore, recovery of knife was disbelieved by the trial court and the appellant has been acquitted for the offence u/s 4/25 of Arms Act. No State appeal has been filed.

Therefore, judgement passed by the trial court regarding offence u/s 4/25 Arms Act has become final. It is further contended that no blood was found at the place of incident while the deceased sustained six sharp edged weapon injuries in the incident.

Therefore, place of occurrence has become doubtful and he was murdered at any other place. Son of deceased and other witnesses were present at the time of incident. However, none has tried to save the deceased.

It is further contended that the deceased was taken firstly to district hospital Ballia, where he was not treated and the same was referred to V.H.U. Hospital Varanasi for his treatment.

Later on, his condition has become deteriorated on the way. Therefore, he was again taken to the same hospital, where he was declared dead. The post mortem examination report of the deceased also reveals that no treatment was made by any doctor at civil hospital Ballia. Therefore, stitched wounds were not found in the post mortem examination report of the deceased. In such circumstances, he died due to flowing of blood after sustaining injuries in absence of giving any proper treatment. It is further contended that both the parties are the same Khandan. The deceased was 80 years old. Therefore, he died due to flowing of blood from his body.

Learned A.G.A. has submitted that the appellant is only named in the F.I.R. who committed murder of deceased by causing sharp edged weapon injuries in a broad day light. There is no delay in lodging the F.I.R. The same has been explained sufficiently. Testimony of P.W.1, P.W.2 & P.W.3 are corroborated with the post mortem examination report of deceased. Therefore, the trial court has not committed any error in convicting the appellant for the charge levelled against him.

So far as contention relating to delay in lodging the F.I.R. is concerned, this occurrence took place on 4.12.1998 at about 11.30 A.M. while the F.I.R. Ext. Ka 1 was registered on 4.12.98 at 11.40 P.M. Distance of place of occurrence was about 7 kilometres from the concerned police station. Therefore, it has been lodged with the delay for about 12 hours.

It has come in the testimony of P.W.1 that Triloki Nath Singh who was his father was taken on the cot from the place of incident with the help of other persons to the road of Tola of Ganga Pandey, from where he was taken to Sadar hospital Ballia for his treatment through Mini Bus. He was treated by the doctor. His condition was serious. Therefore, he was referred by the doctor for his treatment to the V.H.U. Hospital Varanasi. Thereafter, P.W.1 and his elder brother Subhas Singh along with P.W.3 Naipal Singh and P.W.2 Bhagwan Singh had proceeded towards Varanasi after taking him and reached near culvert of Chibbara where his condition has become more deteriorated, then he was taken back to the Sadar hospital Ballia where he was declared dead by the doctor about 6 P.M.. Thereafter, dead body of deceased was Kept in mortuary. After that a written report Ex. Ka1 was got prepared from one Anil Kumar Singh, son of Raj Kishore Singh by P.W.1. After 2 or 3 hours, P.W.1 along with his brother Subhas Singh had gone to police station Rewati, district Ballia.

Therefore, F.I.R. Ex. Ka1 was lodged after about 12 hours of the incident. Such delay has been sufficiently explained that P.W.1 has chosen first to save his life. Therefore, he was taken to hospital Ballia and V.H.U. Hospital Varanasi. When his condition has become more deteriorated in the way, he was taken back to hospital Ballia where he was declared dead. Thereafter, F.I.R. was got prepared and submitted the same in the concerned police station. The contention of learned Counsel for appellant is not acceptable that the F.I.R. could be lodged by P.W.1 in Kotwali, district Ballia as it was the nearest place but it was not lodged. In this regard, P.W. 1 has explained in his cross examination that incident had taken place within the local limit of police station Rewati district Ballia and his father succumbed to the injuries. Therefore, he had lodged the F.I.R. in the concerned police station. The contention of learned Counsel for the appellant is also not acceptable that the F.I.R. has been lodged with the aforesaid delay and the same has not been explained sufficiently. On the other hand, such delay has been sufficiently explained as discussed above in lodging the F.I.R. In such circumstances, there was no inordinate delay in lodging the F.I.R., wherein only present appellant is named in the F.I.R.

It has been observed in the decision of Apex court in case of Vikram and Ors. v. State of Maharashtra Reported in 2007 12 SCC 332 that "A. Criminal Procedure Code, 1973-S. 154-FIR-Delay-incident occurring at about 10.30 p.m. on 22.1.1997 in village P where there was no police post-FIR lodged at 7.30 a.m. on 23.1.1997 by PW 2-PW2 informing officer in charge of A police station on phone, consequent whereto police officers visiting place of occurrence at about 1 a.m.-Thereafter, deceased and injured admitted to hospital under a requisition letter of investigating officer which was proved-P.W.6 admitted as indoor patient from 23.1.1997 to 26.1.1997-Held, in a situation of this nature, explanation of PW 2 and others that they gave priority to the treatment of the deceased and the injured which occasioned the delay in lodging FIR was satisfactorily explained."

It has also been observed in the decision of Apex court in case of Subhash v. State of Haryana Reported in (2007) 12 SCC 63 that" B. Criminal Procedure Code, 1973-S. 154-FIR-Delay in lodging FIR-Whether satisfactorily explained-PW8, who was also thrown in the canal along with the deceased, after coming out from canal had gone to Village K and narrated the incident to one J- Thereafter along with J he returned to the place of occurrence and searched for the deceased and the tractor but could not find them-Thereafter they going to Village M on a tractor and narrating the incident to deceased''s father, who reported the matter to Sarpanch-Then they went to police Post I who refused to lodge the report but informed the police at G- Held, though the distance between K and G Police Station is only 5 Km, but PW 8 had satisfactorily explained the sequence of events which resulted in delay-Conduct of PW8 in not going to the police station immediately was quite natural as it is not expected that a person would straightaway first go to the nearest police station and lodge the first information report even without informing the near relatives of the deceased-Further, it is not the case of the appellant that after occurrence of the incident some deliberations took place in order to falsely implicate the appellant in the case-No suggestion of any enmity between the appellant and P.W.8 made-Hence held, mere delay in lodging the first information report, in the facts and circumstances of the case cannot be held to be fatal to the prosecution case."

It has been observed in the decision of Apex Court (2006)1 SCC (Cri)738 Ravi Kumar v. State of Punjab that "Occurrence took place at 7 a.m. in which deceased received head injuries - First priority for the relations of the injured being to provide him immediate medical aid, he was first taken to Primary Health Centre, then to Civil Hospital and ultimately to PGI where he succumbed to his injuries at 1.15 p.m.- Thereafter FIR lodged in police station which was a few kilometres away from the hospital- Held, there was no unreasonable delay in lodging the FIR."

Therefore, above principle of the Apex Court is also applicable in this case. So far as contention of doubtful place of occurrence is concerned, the testimony of P.W.1, P.W.2 & P.W.3 who were eye witnesses, have stated categorically that the appellant gave knife blows on the person of Triloki Nath Singh near the house of Babban Singh. Nothing has come in their cross-examination which could reflect the place of occurrence doubtful. Although contention has been made on the ground that no blood was found at the place of incident. This contention has no force. This incident had taken place on 4.12.98 at about 11.30 A.M. and in injured condition he was taken to the district hospital Baiilia for his treatment, from where he was sent to VHU Hospital Varanasi for his treatment as his condition was very serious. Before reaching the said hospital, he was taken back to the civil hospital Ballia due to his deteriorating condition, where he was declared dead. Inquest report of dead body of deceased was also prepared at the mortuary of civil hospital Ballia next day of incident. The F.I.R. was lodged on the same day at 11.40 P.M. in the night. Thereafter, the Investigating Officer had proceeded next day in the morning to prepare the inquest report of dead body of deceased. The place of incident is the public path. Therefore, it is probable that marks of blood on the earth were passed away by passing of people. In such circumstances, this contention is also not acceptable.

So far as the contention regarding motive is concerned, this is the case of direct evidence of a broad day light murder in Abadi. Motive has no significance in such type of cases whether it is alleged or not. Motive sometimes remains in the mind of accused or the deceased and not for others. In the present case, motive has been alleged that in the year 1996, litigation was pending in between father of appellant and one Virendra Singh and others residents of the same village. The deceased who was father of P.W.1 used to help Virendra Singh and such case was pending at the time of this incident. He did not like it best. Therefore, there was enmity in between the appellant and deceased regarding it. Enmity is double edged weapon which cuts both ways. There is no chance of false implication due to enmity but it appears that the appellant has committed murder of deceased due to above enmity. Therefore, this contention of learned Counsel for the appellant is also not acceptable.

So far as the contention of interested and related witnesses is concerned, both the parties are the same Khandan as also admitted by learned Counsel for the appellant at the time of arguments and it is also on record.

P.W.1 is the son of deceased. P.W.2 is the cousin of appellant and P.W. 3 is also Khandani of both the parties. However, it is important to note here that testimony of interested witnesses, related witnesses and partisan witnesses are not liable to be thrown out merely on that basis but their testimony can be looked and scrutinized very cautiously. It has been observed in the decision of Apex court in case of Salim Sahab v. State of M.P. Reported in (2007)1 SCC 425 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." It has also been observed in the following decisions of Apex Court:

Rameshwar Vs. The State of Rajasthan,

Dalip Singh Vs. The State of Punjab,

Vadivelu Thevar Vs. The State of Madras,

Masalti Vs. State of U.P.,

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

Guli Chand and Others Vs. State of Rajasthan,

Kikar Singh Vs. State of Rajasthan, , 8. Lehna Vs. State of Haryana,

Gangadhar Behera and Others Vs. State of Orissa,

Babulal Bhagwan Khandare and Another Vs. State of Maharashtra,

Now Testimony of P.W.1, P.W.2 and P.W.3 is to be scrutinized. It has come in the testimony of P.W.1, P.W.2 and P.W.3 that Triloki Nath Singh (deceased) along with his son P.W.1 Anil Kumar Singh had gone to the house of Bhagwan Singh P.W.2 on 4.12.1998 for taking feast regarding Gauna ceremony of his younger brother and after taking feast he along with his son was returning and reached near the house of Babban Singh. The appellant had come out armed with knife from the house where he was hidden and asked Triloki Nath Singh as to why he was helping Virendra Singh, upon which he replied that he was in the wrong side. Therefore, he was helping the right person. Thereafter, the appellant assaulted and inflicted knife blows upon Triloki Nath Singh and this incident was witnessed by P.W.1, P.W.2 and P.W.3 and other persons namely Parshuram Singh and Surendra Singh. Thereafter, the appellant had fled away from there by showing knife to the witnesses. Later on, he succumbed to the injuries in district hospital Ballia on the same day.

It has been admitted in the cross examination of P.W.1 that Ram Briksh was having three sons, the first, namely Ras Bihari Singh, grand father of P.W.1 and the second namely Dev Nandan whose son was Sadhu and his son was Deenbandhu and his son Rakesh Kumar Singh appellant. P.W.2 is also related to this branch and Deenbandhu is cousin brother of P.W.2. P.W.3 is also Khandani.

All the three witnesses have stated that the appellant had assaulted and inflicted knife injuries on the body of deceased. Consequently, he sustained six sharp edged weapon injuries. The house of P.W.2 and P.W. 3 were situated near the place of occurrence and incident could easily be seen by them from outside of their house. Their presence at the house at the time and place of occurrence are liable to be deemed natural. No any material contradiction, inconsistency and discrepancy has come in their testimony.

It is worthwhile to mention here that P.W.1, P.W.2 and P.W.3 are also relatives of the appellant. In such circumstances, there was no occasion to implicate the appellant falsely in place of relieving real culprit. This is also not the case of dark night. Therefore, assailants could be easily identified in broad day light. In such circumstances, identity of the appellant cannot be deemed to be suspicious. It has also come in the cross examination in their testimony that there was bitter relationship of appellant with the family of deceased and family of P.W. 2. for about 8 years. Therefore, appellant had grudge with the deceased and who committed his murder who was aged about 80 years old while appellant was aged about 25 years at the time of incident. This contention has also no force that none has tried to save the deceased. Appellant was giving knife blows continuously. In such circumstances, no one could dare to take the risk for giving his life in danger before the murderer. Therefore, nothing has come in their testimony to show improbability and inconsistency, so that their testimony could be disbelieved. On the other hand, their evidence is probable, believable and trustworthy also corroborated with the post mortem report of the deceased as six incised wounds were found on the dead body of deceased and P.W. 9 who had conducted autopsy stated that all the injuries were found sufficient in ordinary course of nature to cause death of deceased.

The appellant has given six blows with the knife continuously upon body of deceased in the presence of above eye witnesses. This also shows that the same has been given with the intention of committing murder of deceased.

This is not a case of sudden provocation. He had reached at the place of incident with his knife due to bitter relation ship and assaulted continuously with the intention to cause his death. Therefore, the case is made out for the offence u/s 302 I.P.C. and not u/s 304 I.P.C. Attention has been drawn towards the following decisions of Apex Court in support of contentions to make out the case u/s 304 I.P.C. and not u/s 302 I.P.C.:

Salim Sahab v. State of M.P. Reported in (2007)1 Supreme Court Cases (Cri)425 .

(2006)1 Supreme Court Cases (Cri)738 Ravi Kumar v. State of Punjab.

2005(51)ACC 141 (Supreme Court) Sachchey Lal Tiwari v. State of Uttar Pradesh.

2003 (Suppl.)ACC 743 (Uttranchal High Court) Ratan and Anr. v. State of Uttranchal.

All the above decisions of Supreme Court are not applicable due to different facts of the present case. Therefore, contentions made by learned Counsel for the appellant is not acceptable that offence u/s 304 I.P.C. is only made out in place of section 302 I.P.C. The trial court has rightly convicted the appellant for the charge u/s 302 I.P.C. 35. It is important to note here that one blood stained knife was allegedly recovered on the pointing out of the present appellant which was allegedly used in committing murder of deceased. After recovery of the said knife, the F.I.R. was lodged u/s 4/25 Arms Act against the appellant and charge sheet was also filed against him but the trial court has acquitted appellant for the charge u/s 4/25 Arms Act. State appeal has not been filed against the appellant for its acquittal. In such circumstances, no any finding can be given at this stage regarding such knife, although human blood was found on it according to chemical examination report. Therefore, the trial court has not committed any error or illegality in convicting the appellant and judgement and order passed by the trial court is sustainable.

In view of the discussions made above, this criminal appeal is hereby dismissed. The impugned judgement and order passed by the trial court convicting the appellant, is hereby affirmed. The appellant is in jail from very beginning. He will serve out the remaining sentences awarded by the trial court.

Record of the court below be transmitted immediately to the concerned court along with copy of this judgement and order for its compliance.