Thakur Dass vs State of U.P.

Arun Tandon and Vijay Prakash Pathak, JJ.—This criminal appeal filed by the appellant Thakur Das is directed against the judgment and order of the Additional District and Sessions Judge, Etah dated 28.3.1984 passed in Sessions Trial No. 332 of 1981. State v. Thakur Das and others. In the judgment under appeal, the appellant Thakur Das has been convicted for an offence punishable u/s 302, I.P.C. and has been sentenced to life imprisonment. The case of the prosecution in short is that Moti Ram father of the informant Bhagwati Prasad resident of village Borra Khurd, under Police Circle Awagarh, was returning from his agricultural field on 19.3.1981 at around 6.00 p.m. towards his home. One Ganga Prasad s/o Ishwari Prasad of the same village was similarly moving from the opposite directions towards his own field. When Moti Ram reached near the field of Jagdish Chandra, Thakur Das s/o Ishwari Prasad who was armed with single barrel gun. Har Prasad s/o Ishwari Prasad and Chandra Pal s/o Khacheru, both of whom armed with country made pistol came out of the adjoining fields. At this juncture Ganga Prasad is stated to have exhorted to kill Moti Ram by opening fire upon him. Moti Ram is stated to have asked as to why the accused wants to do so and apprehending danger to his life, he turn around and started to run. At this point of time on the asking of the Ganga Prasad. Thakur Das opened fire from his single barrel gun. The gun shot hit Moti Ram at his back. He immediately fell down on the ground. All the accused ran away from the site. It was further stated that Ramvir Singh s/o Mewa Ram and Man Singh s/o Karan Singh, on hearing the aforesaid had reached the place of incident. Thereafter the injured Moti Ram was. brought to the police station with the help of Ramvir Singh and Man Singh. The written report was lodged with the police station at about 8:30 p.m. the same day, on the basis whereof the first information report was prepared by Constable Clerk Fulwari Singh and an entry in the G.D. was also made at serial No. 27. The injured Moti Ram was sent to P.H.C. Awagarh on the same day at 8:45 p.m. Dr. K. K. Agrawal. Medical Officer/Incharge P.H.C. examined the injured Moti Ram. His injury report is marked as Exhibit Ka-2.

According to the prosecution M.C. Sharma. Sub-Inspector (P.W. -8) Police Station Awagarh was present when the case was lodged. He reached P.H.C. where the statement of complainant Bhagwati Prasad and injured Moti Ram u/s 161, Cr.P.C. was recorded. The statement of Man Singh P.W. 2, Kali Charan and Nar Singh Pal was also recorded at the P.H.C. The attending doctor recommended Moti Ram for treatment to the District Hospital at Etah. At the District Hospital his condition was found to be serious and at 11:30 p.m., he was advised to be shifted to Agra for further treatment. Moti Ram alongwith one other patient was taken from District Hospital Etah in Ambulance on the way near village Tajapur he succumbed to his injury in the Ambulance at around 12:30 a.m. The dead body of Moti Ram was brought down from the Ambulance as the Ambulance had to proceed with the other patient to Agra, The same Ambulance returned from Agra at about 4:00 a.m. The dead body was brought to District Hospital at Etah by the complainant Bhagwati Prasad. The information of the death of Moti Ram was sent to Kotwali Etah by the Medical Officer of the District Hospital, Etah through Sweeper Ram Niwas. The Constable Clerk Sada Behari made an entry in the G.D. at serial No. 9 at Kotwali Etah at 5:50 a.m. of the death of Moti Ram. On the basis of this information Shri Rama Shankar Sharma, Sub Inspector was instructed to prepare the inquest report who reached the District Hospital, Etah at about 6:00 a.m. He prepared photo-lash (Ext. Ka-5) and Challan lash as (Ext. Ka-6). He sealed the dead body and prepared a letter for M.O., Etah. The dead body was handed over to Constable Sarnam Singh for being carried to the mortuary. On 20.3.1981 at 11:40 a.m., Dr. R. P. Dixit (P.W. 4) the then Medical Officer, District Hospital, Etah performed autopsy and submitted his post-mortem report (Ext. Ka-3). Investigating Officer reached the place of incident and prepared a site plan (Ext. Ka-14) of the place of occurrence at the pointing out by witness Mewa Ram. He also collected the earth with blood stains. Subsequently the investigation was taken over by Shri Parashar P.W. 5 of the police station and then Investigation was transferred to Sri Ram Lal Verma, S.O. who completed the investigation and submitted the charge-sheet against the accused.

The prosecution examined Bhagwati Prasad as P.W. 1 who was a witness of the occurrence and who proved his written report (Ext. Ka-1). Shri Man Singh another eye-witness was examined as P.W. 2. Dr. K. K. Agrawal who had examined the injuries of Moti Ram for the first time was examined as P.W. 3, He proved injury report Ext. Ka-2, Dr. R. P. Dixit (P.W. 4) proved post-mortem report (Ext. Ka-3). Shri R. K. Parashar, the second Investigating Officer in the case was examined as P.W. 5. Shri Rama Shanker Sharma was examined as P.W. 6 who proved the inquest report, photo lash, challan lash, letter to M.O. as well as the letter sent to the R.I. and the copy of the G.D., Constable Clerk Fulwari Singh was examined as P.W. 7 who had proved the F.I.R. on the basis of the written report and the copy of the G.D. No. 27 (Ext. Ka-11). He also proved another copy of the G.D. No. 24 (Ext. Ka-12) amending the case u/s 302, I.P.C. after receiving the information of the death of Moti Ram. Copy of the statement of Moti Ram recorded by him in G.D. was proved by Shri M.C. Sharma, P.W. 8, the first Investigating Officer. He also proved site plan of the place of occurrence and the memos prepared by him as well as the charge-sheet given by the other Investigating Officer against the accused was also proved.

The accused were examined u/s 313, Cr.P.C. They stated that they have been falsely implicated due to enmity and the statement made by witnesses were incorrect. In defence the accused produced Head Constable Badri Prasad as D.W. 1 who brought Crime Register of the year 1981 from the Police Station, Awagarh in support of the fact that the serial number of the G.D. was not properly maintained.

According to the accused there was an old enmity standing with the deceased and this was the reason for their false implication. It was the case of the accused that Moti Ram in fact, had been done to death by somebody else at some other place and they have been falsely implicated. It was stated that Moti Ram alongwith Bhagwati Prasad and Man Singh were co-accused in a criminal case registered in the matter of murder of Lala Ram. brother of Ganga Prasad, one of the co-accused. It was also stated that in the night intervening 4th/5th March, 1981 a dacoity had taken place at the residence of Ganga Prasad in respect whereof an F.I.R. was lodged and Moti Ram, Bhagwati Prasad and Man Singh were named as the accused.

The trial court after considering the material evidence brought on record vide judgment and order dated 28.1.1984 found that the offence punishable u/s 302, I.P.C. had been committed by Thakur Das and accordingly convicted him of the said offence and punished him with life imprisonment. So far as the other accused Har Prasad, Ganga Prasad and Chandra Pal are concerned, it has been recorded that the prosecution could not bring home the charge beyond reasonable doubt against them, therefore, the other accused were acquitted of the charges u/s 302/ 34, I.P.C. it is Thakur Das who has filed this appeal.

Shri P. N. Mishra, senior advocate assisted by Shri Jitendra Pal Singh, advocate submitted that the presence of the eye-witnesses is doubtful. Because of long standing enmity established by the criminal case which was registered in respect of the murder of the brother Ganga Prasad, the co-accused as well as the F.I.R. lodged qua the dacoity committed at the residence of Ganga Prasad in the night intervening 4th/5th March, 1981. there is every likelihood of the appellant being falsely Implicated. For the proposition he has placed reliance upon the judgment of the Hon''ble Supreme Court in Bahal Singh Vs. The State of Haryana, , wherein the Supreme Court has held that the chance witness is viewed with suspicion and his statement is to be examined with caution and close scrutiny. He then submitted that for the reasons on which the trial court has come to the conclusion that an offence u/s 302/ 34, I.P.C. was not made out against the three co-accused namely Har Prasad, Ganga Prasad and Chandra Pal for the same reasons, the appellant is also liable to be acquitted inasmuch as the entire evidence on record had to be looked with the same circumspection against Thakur Das as was done against the other three co-accused.

Learned A.G.A. has supported the judgment of the trial court and has submitted that in the facts of the case the findings recorded by the trial court need no interference in exercise of appellate jurisdiction by this Court.

We have considered the arguments of learned counsel for the parties and examined the records.

At the very outset we may record that the incident is stated to have taken place at 6:00 p.m. The F.I.R., was lodged within 2 hours of the alleged incident. The F.I.R. is, therefore, prompt. The medical examination of the injured Moti Ram was done at 8:45 p.m. on the same day by Dr. K. K. Agrawal P.W. 3 who has proved the injury report. The injury report reads as follows:

Gun shot wound 2 cm. x 2 cm. x depth not probed at middle of back left side 1 cm. away from mid line. Margins of wound are inverted. Blackening, and scorching present around the wound. Profuse bleeding present.

It is, therefore, clear that the injury suffered by Moti Ram was a fresh injury. The blood was oozing Out at the time of medical examination. Therefore, the plea of the accused that the injury had been caused elsewhere had rightly not been accepted by the trial court. We further find that the deceased expired within 6 hours of the injury suffered by him. Postmortem was performed on the next day. The post-mortem report also corroborates the ocular version as the following anti-mortem injury was found on the dead body of the deceased which reads as follows:

One firearm wound of entry 2.25 c.m. x 2.25 c.m. x cavity deep on the back upper chest 2.5 c.m. from mid line. Blackening present direction forward and horizontal margins inverted and lacerated. Blood coming out of the wound which found dressed.

The statement of the eyewitnesses Bhagwati Prasad P.W. 1, the informant and Man Singh P.W. 2 were fully corroborated with the medical report. From the prompt F.I.R., the ocular evidence and the medical report as well as the postmortem report, it was established that the victim had suffered only one gun shot injury from the close range which had proved fatal. The eye-witnesses had identified the appellant namely Thakur Das. The trial court has rightly came to the conclusion that the testimony of the eye-witnesses could not be successfully assailed, so far as the firing of the gun shot and causing injury by Thakur Das is concerned. This was the cause of the death of the deceased Moti Ram.

We have gone through the evidence of P.W. 1 and P.W. 2 as well as the other witnesses in detail and carefully examined the F.I.R., the medical report and the post-mortem report. We are satisfied that the findings recorded by the trial court are based on true and correct appreciation of evidence on record. Minor discrepancies as pointed out by the learned counsel for the appellant in the statement are too trivial in nature to dislodge the case of the prosecution. The Hon''ble Supreme Court of India in the case of Sampath Kumar Vs. Inspector of Police, Krishnagiri, , has held that minor contradictions are bound to appear in the statement of truthful witnesses as memory sometimes plays false, sense of observation differs from person to person. Discrepancy in testimony of a witness caused by lapse of memory are acceptable.

So far as the plea of enmity between the deceased, the informant and the eye-witness P.W. 2 is concerned, we may record that the trial court has specifically noticed that the deceased, informant P.W. 1 and the other eye-witness P.W. 2 had been acquitted of the charge of the murder of Lala Ram in the year 1978 itself, i.e., nearly two years prior to the date of incident. Further, in the F.I.R. lodged in respect of the dacoity committed at the residence of Ganga Prasad on 4th/5th March, 1981. the police on the relevant date had submitted a final report, finding nothing adverse against the deceased, the first informant and the eye-witness P.W. 2, in these set of circumstances the plea that the appellant has been falsely implicated because of ill will by the prosecution has rightly not been accepted by the trial court and we see no reasons to interfere with the conclusion arrived at by the trial court.

As already noticed above, we have ourselves gone through the statement of the ocular witnesses P.W. 1 and P.W. 2. Their evidence is corroborated by the medical report as well as the post-mortem report, we find no good reason to disbelieve the ocular evidence.

Suffice is to refer the latest judgment of the Hon''ble Supreme Court in the case of Atmaram and Others Vs. State of Madhya Pradesh, , wherein in paragraph 22 the Apex Court after noticing that the F.I.R. had been lodged within two hours of the incident and the eye-witnesses P.W. 1 and P.W. 2 had given the eye-witness version of the occurrence which had been corroborated by the medical report has held that the prosecution had been able to establish its case, For the same reasons we are also fully satisfied that in the facts'' of the present case the prosecution has been able to establish its case.

We may now lastly deal with the plea qua the appellant alone being singled out for conviction. The trial court under the Judgment in appeal has recorded reasons as to why the prosecution has not been able to bring home the charge against the other co-accused beyond reasonable doubt. For the purpose it has noticed the distance of the informant at the time of occurrence from the place where Ganga Prasad exhorted Thakur Das to shoot Moti Ram and on that basis came to a conclusion that the informant may have not been able to hear as to what has said. Similarly, reasons have been recorded as to why the eye-witness could not have seen the co-accused, Lastly it has come to a conclusion that the prosecution has not been able to establish any common intention to commit the murder of Moti Ram. The trial court has however recorded firing by gun by Thakur Das has specifically been witnessed by P.W. 1 and P.W. 2. Therefore, the case of the other co-accused has been distinguished vis-a-vis of Thakur Das. The reasons in our opinion are good and valid reasons. The appeal is, therefore, dismissed. The judgment and order of the trial court against the present appellant is confirmed.