Sita Ram vs State of U.P.

M.M. Lal, J.—This is an appeal against the judgment and order dated 13-5-1978 passed by Shri R.B.L. Khandelwal, Sessions Judge, Jalaun at Orai by which he has convicted Sita Ram Appellant under Sections 302 and 307 IPC and has sentenced him to imprisonment for life and three years R.I. under Sections 302 and 307 IPC respectively thereunder.

Sita Ram Appellant was the nephew of Pyare Lal deceased and they were living in adjoining houses in village Nari, P.S. Kailai, district Jalaun.

According to the prosecution, three years prior to this incident there was an altercation between Pyare Lal deceased on one hand and Sita Ram Appellant and his father Akali on the other with regard to a crop. Thereafter, about one year prior to the incident the Appellant and his father Akali wanted to construct a pucca ''Pakha'' in place of an old one, to which Pyare Lal deceased resisted. It is further alleged that a few days prior to the said incident the Appellant again sought the permission of Pyare Lal deceased to construct a pucca ''Pakha'' in place of old ''Pakha'' to which again Pyare Lal deceased declined. At that time the Appellant is said to have advanced a threat to the deceased.

It is further the case of the prosecution that on the night of 29/30th June, 1977 Pyare Lal, along with his son Amar Singh, was sleeping on the same cot in front of the door of his house in the north. His wife Smt. Mathura was sleeping close by in the nearby room. The door or the said room was open. At about mid night the Appellant carrying a ''gandasa'' came to the place of occurrence and struck Pyare Lal with the same. Smt. Mathura had raised a noise which attracted the witnesses to the place of occurrence. Ainar Singh injured had also got up and cried. The Appellant gave ''Gandasa'' blows to Amar Singh as a result of which he sustained injuries. It was a moonlit night. After this incident the Appellant went away. Sri. Pyare Lal succumbed to his injuries at the spot.

In support of its case the prosecution examined eleven witnesses. PW 4 Smt. Mathura, wife of Pyare Lal deceased is the informant. She alongwith PW 5 Ghanshyam, PW 6 Amar Singh injured, and PW 8 bhag at Das has given an eye witness account of the incident. PW 2 Raj Bahadur was cleric constable at P.S. Kailia. He deposed that on 30-6-1977 Smt Mathura had come to the police station to hand him over a written report of the incident, on which he had registered the case. PW 11 Satya Narain was the Station Master at Railway Station Pirauna. He deposed that on 30-6-1977 Amar Singh, Sweeper, and Bhagwan Singh, Waterman, who were on duty, at about 5.30 A.M brought the Appellant had committed the murder of his uncle and when he inquired about the same, the Appellant gave the answer in positive. In this respect this witness had sent a report to the police station, Rath. The police then came to the railway station, when this witness handed over the Appellant to the police. At the instance of the Appellant the recovery of blood stained ''gandasa'' was by PW 10, Girish Chandra Misra, S.O. in the presence of PW 3 Mulu. PW 1 Dr. Ram Chandra Tewari, the then Medical Officer, Government Hospital, Konch had conducted the post mortem examination of the dead body of Pyare Lal on 1-7-1977 at 4.10 p.m. and had found the following ante mortem injuries on the said body:

Incised wound 15 cm x 1 cm x 3 cm before backwards with clean cut margins cutting the lower margins of right, mandibles right side front of neck (upper part), cutting through the skin superficial facia sternomastoid muscle and caratid artery with profuse bleeding.

Incised wound 17 cm x 1 cm x 3 cm x 4 cm. parallel and 1 cm. below No. 1 cutting the skin and muscles in strip.

Incised wound 16 cm x 3 cm x 4 cm parallel and 1 cm below No. 2 similar to No. 1 and 2 in other respect.

On an internal examination of his dead body the large blood vessels of his neck were found to be cut. In the opinion of the Medical Officer he died of "shock and excessive haemorrhage" caused by his ante-mortem injuries which may have been inflicted by such a sharp edged weapon as an axe i.e. ''gandasa''.

The same doctor i.e. PW 1 Dr. Ram Chandra Tewari, on 1-7-1977 at 1 40 p.m. had also examined PW 6 Amar Singh and had found the following injuries on his person:

Incised wound 4 cm x 1-/2 cm on the back of head just below occipital rotuberance with clean cut margins and lower flap everted downwards, depth upto bone.

Incised wound 1 cm x 1/4 cm x skin deep from before backwards with clean cut margins right side lower face just over lying lower margins of the angle of right mandible.

Incised wound 3 cm x 1 cm x 1/2 cm right upper back side to side in the right supra scapular region of the back.

The investigation of this case was made by PW 9 Chandra Pal Singh, S.O. This case was registered in his presence. He reached the place of occurrence on the same date i.e. 30-6-1977, at 2 p m. where he recorded the statement of Smt. Mathura PW 4. He found the dead body of Pyare Lal lying there He took the same in possession and got the inquest report and other relevant documents prepared. The dead body was sealed and was sent for the post mortem examination. The I.O. inspected the place of occurrence and prepared the site plan thereof. He also found blood at the place of occurrence and had taken samples of blood stained and unstained eaith. On the same day he recorded the statements of Amar Singh PW 6 Ghanshyam PW 5 and Bhagwat Das PW 8.

The prosecution had also sent the underwear of the Appellant, blood stained earth and blood stained axe to the Chemical Examiner who found the stains of blood on the said articles.

The Appellant in his statement recorded u/s 313 Code of Criminal Procedure denied the case of the prosecution. He further stated that he had been falsely implicated by his aunt Smt. Mathura.

The Appellant examined one Sri. Krishna Kumar, Revenue Ahalmad of the court SDM, Konch, district Jalaun as DW 1, who deposed that the special report of this case was seen by SDM Konch on 5-7-1977.

Believing the case set up and the evidence produced by the prosecution the learned Sessions Judge has convicted and sentenced the Appellant as aforesaid. Aggrieved by the same the Appellant has filed this appeal.

We have heard the learned Counsel for the Appellant and the State and have perused the record carefully.

As already observed, the prosecution in order to prove its case has examined an injured witness i.e. Amar Singh PW 6 and three other eye witnesses, namely PW 5 Smt. Mathura, PW 5 Ghanshyam and PW 8 Bhagwat Das. PW 6 Amar Singh was a child witness. He was aged about nine years. The learned trial court has observed that the said witness was quite capable of understanding the questions intelligentally and giving rational answers thereto. This witness has deposed that at the time of the incident he was sleeping on the same cot, along with his father deceased. He further deposed that when his father sustained injury, he also got up to see that the Sita Ram Appellant was hitting his father and that when he cried, the Appellant struck him as well with the ''gandasa''. This witness also deposed that the night on which this incident took place was moonlit night. This witness was subjected to searching cross-examination but he withstood the same quite well. We have been impressed by his evidence.

Learned Counsel for the Appellant has argued before us that whereas Amar Singh had sustained three injuries meaning thereby that he was hit atleast three times with the ''gandasa'', this witness on the contrary has deposed that he was struck by the ''gandasa'' only twice. In our view when the father of Amar Singh was badly beaten and injured in his presence and when on his cries he was also struck with the ''gandasa'', it was too much to expect that such a witness would have remembered as to whether he was struck with the ''gandasa'' twice or thrice. The said discrepency, in our opinion, shows that this witness was not tutored but gave a truthful account of the incident.

PW 4 Smt. Mathura is the widow of Pyare Lal. She had deposed that whereas her husband was sleeping outside the door of his house. she was sleeping nearby in the room close to the said door. She had deposed that in the night she had got up to make water and that when she returned to her cot and was awake she heard the noise on which she saw Sita Ram Appellant coming out with a ''gandasa'' and then striking her husband with the same. She further deposed that she had at that time raised a hue and cry, which attracted the witnesses to the place of occurrence. She also deposed that when her son Amar Singh started crying, the Appellant asked him to keep silent and thereafter the Appellant caused injuries to Amar Singh as well with the ''gandasa''. She further deposed that after the gathering of the witnesses, the Appellant ran away. This witness also deposed about the strained relations between her husband on one side and the Appellant on the other regarding the construction of the ''Pakha''.

Learned Counsel for the Appellant has criticised the evidence of aforesaid Smt. Mathura on various grounds. He has urged that infact this witness was sleeping in the room having bolted door thereof from inside and that, therefore, she could have no opportunity to witness this incident. We find no force in the said argument because this witness has clearly stated in her evidence that although originally she had slept in the room after bolting the door from inside but subsequently when before the incident she had returned to the room after making water she had kept the door open because it had become hot. It may be observed that this incident took place in the month of June when it is obviously quite hot. Therefore, we find no reason to disbelieve PW 4 Smt. Matbura that at the time of the incident when she was lying on the cot, the door of the room was open. She had thus full opportunity to see this incident.

Smt. Mathura PW 4 was an inmate of the house. She was sleeping close to her husband and her son Amar Singh injured. Both Pyare Lal deceased and Amar Singh PW 6 would certainly have cried when they were hurt. There was no question for Smt. Mathura having not awakened and alerted atleast when she heard the said crise. She had thus all the opportunities to see and recognise the assailant.

Learned Counsel for the Appellant has argued before us that although this incident is said to have taken place on the night of 29/30-6-1977, PW 4 Smt. Mathura had lodged the report of the incident at P.S. Kailia, situate at a distance of seven miles, with quite delay at 10 a.m. i.e. after an interval of 10 hours, and that due to the said delay in lodging the report of this incident, this witness should not be relied. In our opinion the said argument is without much force. In the first place it may be observed that this incident took place in the mid night. In the said incident the husdand of PW 4 Smt. Mathura had been killed at the spot and her minor son had been injured. In these circumstance it was too much to expect from a widow to rush to the police station to lodge the report of the incident.

Learned Counsel for the Appellant also argued before us that PW 4 Smt. Matbura has resiled from her statement which she had made before the Investigating Officer u/s 161 Code of Criminal Procedure to the effect that she was delayed in lodging the report of the incident on account of the heavy rain in'' the morning. In our view when the evidence of this witness was recorded after few months and if at that time she had forgotten that a few hours after the incident in the morning it had rained, much importance cannot be trussed to the said discrepency. To say in other words, the said discrepency was too minor to be attached much importance specially when the same had nothing to do with the main feature of the case. The evidence given by PW 4 Smt. Mathura inspires confidence.

As regards the remaining two witnesses, the house of PW 5 Ghanshyam is just opposite the house of Pyare Lal deceased after the lane. The house of PW 8 Bhagwat Das is situate at a distance of 40 steps from the house of Pyare Lal deceased PW 8 Bhagwat Das has deposed that in between his house and the house of the deceased, there was only one house. The said two witnesses are, therefore, quite natural witnesses, living in the neighbourhood. They had no enmity for the Appellant or any affinity for the deceased and his family members They are quite independent witnesses. They have stated in their evidence that on hearing the cries, they had gone to the place of occurrence to see Sita Ram Appellant causing injuries both to Pyare Lal and his son Amar Singh with a ''gandasa'' and that after this incident the Appellant had run away with the ''gandasa''. Both these witnesses have given details of the incident. There is no contradiction in their evidence regarding any material detail of the occurrence. In our view the learned trial court has rightly placed reliance upon them.

Smt. Mathura and the remaining three eye witnesses have deposed that this incident occurred on a moonlit night and that they had recognised the Appellant in the moonlight. Learned Counsel for the Appellant has, however, argued before us that on that night it had rained and that, therefore, there could have been no opportunity for these witnesses to recognise the assailant. In our view if subsequently after the incident it bad rained, it cannot go so far as to say that at the time of the incident there was no moon to spread light. We are of the opinion that it was not at all raining at the time of the incident because both Pyare Lal and Amar Singh were sleeping outside on a cot at the time of the incident. This could have been possible only if it was not raining at that time. Therefore, we believe the witnesses that at the time of the incident there was sufficient moon light.

Besides the aforesaid eye witnesses, the prosecution has examined PW 11 Satya Narain, the then Station Master, Pirauna to depose that on 30th June, 1977 at 5.30 a.m. Amar Singh sweeper and Bhagwan Singh water man, who were on duty, had brought Sita Ram Appellant to his residential quarter to inform that the latter had committed the murder of his uncle and on his enquiry he answered in affirmative. He further deposed that he had sent report of the same to the police station on which the police came to his office to take away the Appellant at 11-11.30 a.m. PW 10 Girish Chandra Misra was the S.O. at P.S. Kithuna, district Etawah. He deposed that on 30-6-1977 at 10.15 a. m. on receipt of a report trom Sri. Satya Narain, Station Master Pirauna, he had gone to his office to find the Appellant sitting there, wearing a blood stained underwear. He had taken the Appellant and his underwear in custody. On his interrogation the Appellant is said to have told him that he bad concealed the axe with which be committed the crime. He had then taken the Appellant, along with PW 3 Mulu, to recover blood stained axe from a field. Learned Counsel for the State has argued before us that the case of the prosecution against the Appellant was strengthened from the extra-judicial confession made by the Appellant before Sri. Satya Narain, Station Master and the recovery of his underwear and blood stained axe at his instance. Learned Counsel for the Appellant on the other band has argued before us that when the recovery of the axe was said to have been made from an open field, the same cannot connect the Appellant with the crime because the Appellant could not be said to be an author of the concealment. As regards the extra-judicial confession, learned Counsel for the Appellant has urged that when the words spoken by the Appellant had not come on the record, no reliance can be placed upon any such extra-judicial confession which was sought to be made by nodding of the head. In our view even if no importance is attached to the extra-judicial confession as also to the recovery of the axe, the case against the Appellant is made out beyond reasonable doubt on the basis of direct evidence given by the aforesaid four eye witnesses.

Lastly, learned Counsel for the Appellant has urged before us that the investigation in this case was not fair inasmuch as the special report of the occurrence was sent to the Magistrate after many days. In this respect he has referred to us the evidence of DW 1 Krishna Kumar, Revenue Ahalmad of the court of SUM, Konch. He deposed that it was on 5-7-1977 that the SDM made an endorsement "seen " on the special report. In our view from the mere fact that the SDM happened to see the special report on 5-7-1977, cannot raise an infeience that the said special report was either despatched or was received in the office of the SDM with delay. This witness DW 1 Krishna Kumar frankly admitted that the date on which the said special report was received in the office of the SDM was not noted either in the special report or in any register, Besides it may be observed that PW 2 constable Raj Bahadur, who had received the written report of the incident and had registered this case was not asked single question by the defence regarding the sending of the special report by him. Any way, it is not as if every delay in sending the special report to the Magistrate u/s 157 Code of Criminal Procedure would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante-timed or ante-dated or that the investigation is not fair arid forthright. If in any case it is found that the investigation started promptly on that FIR, then the delayed receipt of the report by the Magistrate concerned, that cannot by itself justify the conclusion that the investigation was tainted See State of U.P. Vs. Gokaran and Others, and Pala Singh and Another Vs. State of Punjab, . It may be noted that the investigation in this case was started on the same date, so much so that the I.O. made the local inspection and recorded the statements of the witnesses etc. on the same date, i.e. 30-6-1977. Therefore, even if there may have been some delay in the receipt of the special report by the Magistrate in this case, the same would not have made the prosecution unsupported.

In the result, therefore, we are of the opinion that the case against Sita Ram Appellant was made out beyond reasonable doubt and that the learned trial court has rightly convicted and sentenced him. There is no force in this appeal. Accordingly this appeal is dismissed. The conviction and sentence of Sita Ram Appellant under Sections 302 and 307 IPC are hereby upheld. Sita Ram Appellant is on bail. He shall be taken into custody forthwith so that he may serve out the sentence of life imprisonment imposed on him u/s 302 IPC and three years RI u/s 307 IPC. Both these sentences shall run against him concurrently.