AI Structured Summary
Not yet generated for this judgment
Judgment
This is an appeal against the conviction dated 17.8.1982 and sentence dated 23.8.1982 in ST No. 140 of 1981.
The Facts
The incident happened at about 7:00am on 31.8.1980. In this incident, Nekse (the Deceased) was killed. His brother Parat Singh (the Informant) lodged the FIR at 8.00am. The allegations are that:
Ganga Singh has an enmity with the Informant for the reason that the informant had asked him to remove his encroachment from the land;
On the date of the incident, the Informant''s sister had gone to throw rubbish over the gaon sabha land but Chandan objected to the same;
The Informant''s sister came back without throwing the rubbish and informed the Informant and the Deceased, when they were taking out chaff from the Burji;
The four accused persons {Ganga Singh and Chandan Singh with Spears (Ballam), Rohan and Latoori with lathis} came and started abusing them. They asked them to remove the rubbish;
Chandan exhorted others to kill them. The Deceased ran inside the Kotha of his house but Ganga Singh followed him with the spear and killed him;
Chandan Singh threw his spear to kill the Informant but it did not strike him as he sat down. It hit the wall and the sharp edge of the spear broke down;
The Informant, Harpyari, and Charan Singh (the mother and the younger brother of the Deceased) have received lathi injuries.
The police investigated the case and submitted the charge sheet. The case was committed to the Court of Session. It was registered as ST No. 140 of 1981. The Ist Addl. Sessions Judge, Aligarh (the ASJ) framed the charges u/s 323 and 302, read with Section 34 IPC.
Among the others, the prosecution filed the following documents:
(i) Recovery memo of blood stained soil (Ex Ka-9);
(ii) Recovery memo of plain soil (Ex Ka-10);
(iii) Recovery memo of blade of spear (Ex Ka-11);
(iv) Injury report of Har Piari (Ex Ka-12);
(v) Injury report of Charan Singh (Ex Ka-13);
(vi) Injury report of Parath Singh (Ex Ka-14);
(vii) Post mortem examination report of Nekse dated 1.9.1980 (Ex Ka-4);
(viii) Site plan (Ex Ka-15)
The prosecution examined the following witnesses.
(i) Parat Singh (PW-1): The Informant, brother of the Deceased;
(ii) Harpyari (PW-2): Injured eye witness, mother of the Deceased;
(iii) Charan Singh (PW-3): Injured eye witness, younger brother of the Deceased;
(iv) Dr. Ram Kumar (PW-4): Doctor, conducted the post mortem;
(v) Sunhari Lal (PW-5): Constable, took the dead body to the hospital;
(vi) Gyan Chand (PW-6): Investigating Officer (IO);
(vii) Natthu Ram (PW-7): Lekhpal.
The statements of the accused u/s 313 Cr.P.C. were recorded on 24.7.1982. They neither filed any documents nor examined any witnesses. The ASJ by his judgment dated 17.8.1982 convicted them and awarded the following sentence on 23.8.1982:
Imprisonment for life u/s 302 read with Section 34 IPC; and
Six months'' rigorous imprisonment u/s 323 read with Section 34 IPC.
The sentences are to run concurrently. Hence the present appeal.
This appeal was filed by all the four accused. Out of them, Ganga Singh and Latoori (appellant No. 2 and 3) have died. Appeal on their behalf has been abated. We have heard Sri S.S. Shukla, counsel for appellant No. 1, Sri Moti Lal Chauhan, amicus curie for appellant No. 4 and Sri AN Mulla, AGA for the State.
The Submissions And Decision
PW-1 to PW-3 are injured eye witnesses. The FIR is prompt. There is sufficient light in the month of August at 7:00am. The ocular evidence proves the prosecution case. However, the counsel for the appellants submitted that the ocular evidence should be disbelieved for the following reasons:
(i) The FIR has been lodged on the prompting of the police. They had visited the spot before it was lodged;
(ii) The FIR is ante timed;
(iii) There is a contradiction in the ocular evidence on the point whether the accused had come twice or only once;
(iv) PW-1 has deposed that Chandan had thrown spear at him in the Kotha on the western side of the house. However, this is not possible as the sharp edge was found on the eastern wall of the house;
(v) The Deceased was killed in the Kotha which is in the west-south corner side of the house. PW-1 is said to have seen the incident from the Kotha on its northern side. There is no door in between and he could not have seen it;
(vi) No independent witness has been examined.
First Submission
The counsel for the appellant submitted that PW-2 and PW-3 have deposed that:
The Chowkidar had informed the police;
The police had come over and were in the house of the Pradhan;
Thereafter the FIR was lodged.
It shows that the FIR was lodged on prompting of the police.
In every village, there is a Chowkidar. His duty is to inform about any criminal incident in the village. The Chowkidar informed the police and thereafter the police came. Normally the police go to the house of the Pradhan and this was done in this case also. Thereafter, the FIR was lodged by PW-1. This is not unusual. Only from this, it can not be inferred that the FIR is on the prompting of the police.
There is no evidence that the FIR was lodged on the dictation of the police. There is also no malafide against the police. This submission is negated.
Second Submission
There is nothing to show that the FIR is ante timed. The injury report of PW-1 to PW-3 is Ex Ka-12 to 14. Genuineness of the injury reports has been admitted by the counsel for the appellants. The injury reports indicate that the examination of the injuries of the injured witnesses started from 11.00am. This not only shows promptness in action but also that there was neither any manipulation by the police nor ante timing of the FIR. This submission is rejected.
Third Submission
The counsel for the appellant submitted that:
PW-1 and PW-3 have deposed that the accused had come twice. First time they were unarmed but the second time they were with weapons;
PW-2 has deposed that they had come once;
There is contradiction in the ocular evidence; and
It should be disbelieved.
PW-1 and PW-3 have deposed that the Informant and the Deceased were taking out chaff from the Burji when the accused came. The site plan (Ex Ka-15) indicates that Burji is outside the house. PW-2 is lady of the house. Women often remain inside the house. As the place was outside the house, it is possible that she might not have noticed when the accused had come for the first time There is no contradiction in the deposition.
Fourth and Fifth Submission
The fourth and fifth submissions are connected and may be dealt together.
Elaborating the fourth submission, the counsel for the appellants explained that:
PW-1 has deposed that the spear was thrown at him when he was in the Kotha. Whereas, PW-2 has deposed that at time, he was in the open space inside the house;
The site plan also indicates that sharp edge of the spear was found in the open space near eastern wall suggesting that PW-1 was in the open space as deposed by PW-2;
There is variance in the oral testimony of the two; and
The prosecution case is doubtful.
Similarly, elaborating the fifth submission, the counsel for the appellants explained that:
PW-1 has deposed that he had seen the incident of killing Nekse through the door between two Kothas;
In the site map (Ex. k-15), no door has been shown between the Kothas;
The Investigating Officer (PW-6) has deposed that he has not shown any door between the two khothas;
This shows that PW-1 had not seen the incident.
After the FIR was lodged, the statement of PW-2 was not recorded by the police. PW-1 has explained that he was not in a fit mental condition at that time. This is also deposed by the IO (PW-6). It is possible that he might not exactly remember it. In our opinion, PW-2 is rightly deposing that PW-1 was in open space within the house, when it was thrown at him. However, this does not make any difference; it neither makes his entire deposition to be false nor belie the prosecution case.
Normally, if there is a door between the two kothas, it is shown by the Investigating Officer in the map. A part of the deposition of PW-1 may not be correct. He may neither be in the Kotha nor may have seen the actual killing of the Deceased. He may be in open space of land. This is what has held by us in the preceding paragraph.
The ante mortem inujuries in the post mortem report is as follows:
Piercing would size 1" x 1/2 " x chest cavity deep, left side or chest in mid axillary line 3" below the axilla.
According to the doctor the injury was sufficient in the ordinary course of nature to cause death and it could come with spear.
If a person enters the room with a spear following another person and thereafter the person followed is killed with spear injury then it is obvious that the person with the spear must have killed him. This is what has happened in the case. PW-1 to PW3 have deposed that they saw Ganga Singh entering the Kotha with spear where the Deceased had gone. He was killed due to spear injury. He is the one who killed the Deceased.
Sixth Submission
The counsel for the appellant submitted that:
In the FIR, independent witness have been mentioned;
They have not been examined;
Adverse inference should be drawn.
It is correct that in the FIR independent witnesses have been mentioned but they were not examined. However, this has been explained by PW-1. He has deposed that:
The appellants are influential people of the village; and
It is because of this that the others are not deposing.
The non-examination of independent witnesses has been explained. No adverse inference can be drawn on this account.
PW-1 and PW-3 are the real brothers, whereas PW-3 is the mother of the Deceased. The trial court has recorded their demeanour at the time of their deposition as follows:
PW-2 started weeping; and
PW-1 and PW-3 were visibly painful and upset.
There seems to be no reason to disbelieve them.
Admittedly, someone has been killed the Deceased. There seems no motive on part of PW-1 to PW-3 to falsely implicate the accused and to leave out the real assailants. In our opinion, the prosecution has proved the case beyond reasonable doubt. The appeal has no merit.
Conclusions
In view of above, the conviction and the sentence awarded to the appellant is maintained. The appeal against the judgment dated 17.8.1982 and sentence dated 23.8.1982 in ST No. 140 of 1981 is dismissed. The bail of the appellants is cancelled. They will be taken into custody.