Virendra vs State of U.P.

These two connected criminal appeals have been filed against the judgment and order dated 27-2-90/28-2-90 passed by II Addl. Sessions Judge, Etawah in Sessions Trial No. 55 of 1982.

By the said judgment Appellant Virendra has been convicted u/s 302 IPC for the murders of Sudershan and Ram Saran and sentenced to death there under. Appellant Subhash has been convicted u/s 302 IPC for the murder of Sudershan and convicted u/s 302/149 IPC for the murder of Ram Saran alias Bhaiya Lal and sentenced to imprisonment for life on those two counts. Rest all the Appellants namely Dujja, Vidhya, Ram Autar s/o Narain, Ram Autar s/o Lallu, and Surendra have also been convicted u/s 302/149 IPC for the murders of Ram Saran and Sudershan and sentenced to imprisonment for life. Appellant Virendra, Subhash, Dujja, Vidhya have been further convicted and sentenced u/s 148 IPC to three years R.I. whereas Appellants Ram Autar s/o Narain, Ram Autar s/o Lallu and Surendra have been further convicted and sentenced u/s 147 IPC to two years R.I. All the sentences were directed to run concurrently.

Sri A.D. Giri, Senior Advocate and Sri Dileep Kumar, Learned Counsel for the Appellants in both the appeals and Sri R.C. Deepak, learned A.G.A on behalf of the State of U.P. have been heard at length and the entire record have been examined.

According to the prosecution allegations an incident happened in village Dhasera regarding a quarrel over a Chabutara between Ram Lal Lodhi and Nathu Ram Kahar. Police arrested both the parties u/s 151 Code of Criminal Procedure Sudershan (deceased) was in the party of Nathu Ram Kahar. For that reason Ram Lal was having enmity with Sudershan. On the incident date i.e. 1-6-1981 at 6.30 a.m. when Sudershan was coming to his house from Khalihan of Anand Babu and had reached Ram Lal house, Appellants Virendra and Subhash both sons of said Ram Lal, armed with country made pistols, Ram Lal (dead during trial) armed with Tanchia, Dujja and Vidhya Appellants armed with Dharia, Ram Autar s/o Narain, Ram Autar s/o Lallu, Surendra and Mauji Lal (dead during trial) armed with lathis apprehended Sudershan and Virendra fired upon him at which Sudershan ran and reached in front of the house of the informant Ram Shanker, PW 1 and entered into the room. Informant''s brother Ram Saran closed the door to save Sudershan and reprimanded all the Appellants not to beat (Ab Mat Marana). In the mean time because of hue and cry, many witnesses had arrived. At this Appellant Virendra fired two shots upon Ram Saran, as a result of which Ram Saran fell dead. Simultaneously Subhash entered into the room and fired two shots upon Sudershan, who fell down on the chaff, kept inside the room. Virendra and Subhash hit Sudershan by the barrel of pistols also, whereafter on being threatened by the witnesses, the Appellants ran away. The informant Ram Shanker found his brother Ram Saran and Sudershan dead, he took out the body of Sudershan and placed it near the body of Ram Saran. This incident was narrated, as noted above, in the FIR lodged by Ram Shanker at 9.30 a.m. at police station Phaphund, district Etawah.

It may be mentioned here that the FIR was duly proved during the trial as Ext. Ka-1. At a later stage the Appellants wanted to challenge the signature and handwriting of Ram Shanker and therefore, the said witness Ram Shanker, PW 1 was recalled and had replied to a question that he had written out the FIR in his own handwriting and had lodged it himself. After this, the trial judge had, for the reasons best known to him, on an application of the accused, permitted the original FIR to be sent to the handwriting expert. At this, the handwriting expert, PW 8 Prakash Chandra Pathak has given an opinion that the original FIR Ext. Ka-1 was in the handwriting of PW 1. He has further deposed that he had dispatched the original FIR by Post, addressed to the trial Judge. But this letter was refused by the office of the trial Judge, which refusal has been duly proved by Bhagwati Prasad, PW 7 who was Dy. Manager, Post and Telegraphs department. During the trial, the photostat copy of the original FIR as photographed by the Expert was proved as Ext. Ka-21 and is on record. Suffice it to say for the time being that after the alleged refusal of the office of trial Judge to accept the envelop from the Expert, the said envelop was weeded out. The fact thus remains that the original FIR is no more available. But for the reasons stated in the discussion herein below, it will not affect the prosecution case at all and the eye witness account furnished by the prosecution in the instant case if believed can be the safe basis for upholding the judgment of the trial Judge.

To complete the chronology of the case, after the FIR was lodged a case was registered under Sections 147, 148, 149 and 302 IPC at report No. 15 in the G D. dated 1-6-1981 at 9.45 a.m. Paras Ram Verma, PW 6 was the Investigating Officer. The copy of the G.D. and chick FIR have been filed and proved on the record as Ext. Ka-16 and Ext. Ka-17 respectively. These two documents are exactly in the nature of true copies of the Ext. Ka-1, photocopy of which has been proved as Ext. Ka-21. The I O. reached the spot the same day and prepared inquest report on the dead bodies of Ram Saran and Sudershan (Ext. Ka-4 and Ka-5). He prepared the photo nash of Ram Saran and Sudershan (Ext. Ka-7 and Ka-ll-B) and then prepared challan nash (Ext. Ka-6 and Ka-ll-A). A letter of request was written for post-motem examination which was performed by PW 5 Dr. P.K. Sharma on 3-6-1981 at 10 a.m. and 11 a.m. respectively. The Investigating Officer also collected blood stained earth and simple earth, blood stained chaff and simple chaff and also prepared site plan, Ext. Ka-11.

Dr. P.K. Sharma conducted the autopsy on the dead body of Sudershan on 8-6-1981 at about 10.00 a.m. in his opinion the death was caused about 2 days back. The Doctor found the following ante-mortem injuries upon the dead body of Sudershan:

Two small gun shot wound of entry right temple region 0.5cm x 0.5 cm x scalp deep margins black. No tatooing or charring.

Multiple small gun shots wound of entry in an area of 6 cm x 5 cm x size an average, 5 cm x 5 cm margins black no tatooing no charring on right arm.

Multiple small gunshot wounds of entry in an area of 5 cm x 4 cm on the lateral fide on the right forearm. Margins black no tatooing or charring, size an average 5 x 5 cm.

One small gun shot wound of entry 5 cm x 5 cm skin deep on the dorsal of right hand.

Five small gun shot wound of entry in area of 8 cm x 5 cm x on the front of chest, margins black, no tatooing or charring, size on average 5 cm x 5 cm.

Gun shot wound of entry 2 cm x 1.5 cm on right flank upper portion margins black, no tatooing or charring intestines protruding through it.

Abrasion 3 x 2 cm x on left flank middle.

Multiple small gun shot wound on left forearm size on average 5 x 5 cm no tatooing or charring, margins black.

The Doctor opined that the death of Sudershan was caused due to shock and haemorrhage as a result of said firearm injuries. This post mortem report is Ext. Ka-2. Dr. P.K. Sharma collected 52 pallets M. Ext. 1 from the dead body of Sudershan. The Doctor also collected one underwear M. Ext. II. one Baniyan M. Ext. Ill, one Bush-shirt M. Ext. IV, one Tahmad M. Ext. V and one Karha M. Ext. VI from the dead body of Sudershan.

Dr. P.K. Sharma conducted the autopsy on the dead body of Ram Saran alias Bhaiya Lal also same day at 11.00 a.m. He opined that the death of Ram Saran was caused about 2 days back. The Doctor found the following ante-mortem injuries upon the dead body of Ram Saran.

Gun shot wound of entry on the middle of left finger 3 x 2.5 cm, margins black charring present.

Gun shot wound of entry 3 x 2 cm left side of forehead margins black no tatooing no charring, it was cavity deep.

Gun shot wound of exit 2 x 2 cm on left side temporal region margins averted.

The Doctor opined that the death of Ram Saran was caused due to shock and brain injury caused by fire arm. The post-mortem report of Ram Saran is Ext. Ka. 3.

Dr. P.K. Sharma collected one Dhoti M. Ext. VII Janau M. Ext VIII Baniyan M. Ext IX from the dead body of Ram Saran. The pallets M. Ext. X and wadding M. Ext. XI were also collected by the Doctor from inside the dead body of Ram Saran.

After the investigation the 1.0 submitted a charge sheet Ext. Ka-14 under Sections 147, 148, 149, 302 IPC against the accused Appellant Subhash, Ram Lal, Dujja, Vidhya, Ram Autar s/o Narain, Surendra, Ram Autar s/o Lallu and Mauji Lal. The I.O. submitted the separate charge sheet subsequently against the accused Virendra under Sections 147, 148, 149 and 302 IPC.

Upon the submission of the charge sheet in the court Sri Madan Mohan, Munsif Magistrate, Etawah, committed the case to Court of Sessions by an order dated 2-3-1982.

During the trial charges under Sections 302 and 452 IPC were framed against Appellants Virendra and Subhash while charge u/s 302 read with Section 149 of the IPC was framed against other Appellants and all of them were suitably charged u/s 147 and 148 IPC respectively as noted above.

During the trial Ram Lal and Mauji Lal had died and therefore, as against them the trial abated.

PW 1 Ram Shanker is the informant who is the brother of Ram Saran (deceased), PW 2 Rajjan and PW 4 Shiv Nath are the eye witnesses of the occurrence. There appears to have been mistake in numbering of the prosecution witnesses. There is no PW 5 in the record but it appears that the trial Judge who may have taken over from his predecessor in office in between, did not disturb the numbering and therefore, only those three persons remain as eye witnesses.

At the out set it may be stated that so far as PW 2 Rajjan and PW 4 Shiv Nath are concerned both of them are having their houses neighbouring the place of occurrence and have absolutely no enmity and animosity or reason to falsely implicate the Appellants. Similarly PW 1 Ram Shanker, informant had also no reason whatsoever to implicate the Appellants falsely. The statement of three eye witness is fully corroborated by the medical evidence inasmuch as the recovery of blood fixes the place of the occurrence said to have been seen by the eye witnesses. Other witnesses examined in this case are PW 5 Dr. P.K. Sharma, who conducted the post-mortem examination, PW 6 Paras Ram Verma who is Investigating Officer in the case, PW 7 Bhagwati Prasad, Dy. Manager, Post & Telegraphs department, who has proved the weeding-out of undelivered envelop and PW 8 is Prakash Chandra Pathak, who is the handwriting expert. The trial Judge examined constable Ram Babu as CW 1 who proved the taking of the dead bodies to the mortuary for postmortem examination.

Appellants in their statement u/s 313 Code of Criminal Procedure have denied their participation and attributed false implication due to enmity. They have filed 17 documents marked Ext. Kha-1 to Ext. Kha-17 but have not led any oral evidence. It may be stated here that none of the documents produced by the Appellants have any relevancy on the probative value of the prosecution evidence.

PW 1 Ram Shanker has stated that he is the eldest son of his father and his brother Ram Kumar is an Amin in Phaphundand his youngest brother was Ram Saran alias Bhaya Lal deceased. There is a personal house of his and there is also an ancestral one in which Ram Saran used to live and cattle etc. were kept therein. All the Appellants live in the same village. Subhas and Virendra Appellants are sons of Ram Lal and Surendra is their first cousin. At about 6.30 a.m. he was cleaning chaff (K-handu Saunthna) at the roof of his ancestral house when he heard the noise from a nearby house of Ram Lal Appellant where some persons had collected. Sudershan was going to his house from the Khalihan of Anand Babu when Virendra fired upon him. The witness could not see whether the shot hit Sudershan or not but Sudarshan did cry ''Hai Mar Dala Mar Dala'' and all the Appellants variously armed with as noted above ran behind Sudershan who reached and entered into the house at which Ram Saran shut him inside and closed the door from outside. On this hue and cry witnesses Shiv Nath, Rajjan, Matron, Brijesh Narain, Ram Asrae and other had come. Appellants Virendra fired two shot upon Ram Saran for he had said that the accused should not kill Sudershan. However all other accused remained standing and were saying ''Maro Jane Na Paie'' (beat, let not go). Ram Saran died and simultaneously Subhash entered into the room and fired two shots upon Sudershan who fell down dead on the chaff where upon an injury by the barrel was caused by Subhash on the body of Sudershan. However, on the witnesses'' intervening, the accused ran away. He has further stated that the body of Sudershan was taken out from the room and placed near the body of Ram Saran. He has again said that the deceased Sudershan was in the party of Nathu Ram Kahar. Sufficient cross examination was made in order to show that it was not possible for PW 1 to see the incident happen at least in the ancestral house as stated by him. From a perusal of his statement it appears that he has given a natural account of the incident and that he could see the whole incident as narrated by him. Therefore, the said criticism is not acceptable. At this stage it may be mentioned that his cross examination had ended on 29-4-1988. But, an application for recalling him on behalf of the accused was moved in August, 1985 which was allowed by the trial Judge and he was further cross examined on the existence of his hand writing in the first information report. The witness gave an affirmative answer. In the meantime the examination in chief of PW 2 Rajjan Babu had been completed on the said date (7-8-85) but his cross examination was deferred to the next date i.e. 24-9-1985. The examination of the last eye witness PW 4 Shiv Nath (who should have been numbered as PW 3) had also ended on 24-9-1985. May be that from the statement of PW 2 nothing tangible could be brought out to discredit either him or the informant PW 1, and, therefore, the defence thought of fishing out some point regarding the FIR and, there-'' fore, though of moving the application dated 7-8-1985, when the examination of PW 1 had been recorded more than two years ago.

This may be the proper place to deal with the argument that Ext. Ka 21 which is now supposed to be a true photostate copy of the original FIR, as deposed to by PW 8 Prakash Chandra Pathak may be taken up. The argument is that since the original FIR is absent its copy by an Expert cannot be admitted as a substituted original FIR. On the facts in this case, this argument is misplaced. In fact, the Expert had given his report much before the original FIR was missing. His deposition is to the effect that he had prepared copy of the original FIR and the report containing his opinion was prepared by him through comparison of the original FIR and the specimen signature and admitted writing of PW 1 Ram Shanker. He further aid that he had, on the day of his deposition, brought the photostat copy of that original FIR as also copy of his opinion report. He further stated that the original FIR and his opinion report in original were sent by him by post which was refused by the office of the trial Judge and by looking to his official records, he proved the photo copy of the original FIR and copy of his original opinion report. Therefore, the expert opinion could be relied upon as a secondary evidence in order to get the substituted FIR proved through him as Ext. Ka 21. There is nothing in the cross examination of this expert which ma y indicate that he is falsely deposing. It may be noted here that he has told that after the envelop containing the original FIR was dispatched by him, he maintained the copy of the original FIR as well as original report in his file. Therefore, from his deposition, he appears to be a competent witness to prove the copies maintained in due discharge of his official duties. Under the circumstances Ext. Ka 21 can be taken as a correct copy of the original FIR. However, in the instant case the copy of the FIR was also written out in G.D. and also in the chick FIR which have been proved as Ext. Ka 16 and Ka 17 which are on the record. On comparison with these two Exts, Ext. Ka 21 tallies. Consequently there is no force in the argument that Ext. Ka 21 has not been legally proved or that it is inadmissible in evidence.

It may be appropriate to point out here that the trial Judge concerned had seriously faltered in his conduct in letting the original FIR slip out of the record of the case. As a Judge in an important trial where two murders had taken place, it was not only unexpected but too casual an action on his part to have allowed the original FIR to go out of the record of his Court This Court is aghast at the step taken by the then trial Judge who passed the order on the application Ext. Ka 56 for recalling PW 1 and then dispatched the original FIR allowing the application dated 31-10-1985. The trial Judge has seriously faltered in his judicial function.

In cases where hand writing or signatures on FIR or any other document is challenged and an opinion of Expert is sought, the original should never be permitted to go out of record of the Court. It should be ensured that the Expert comes to the Court, photographs the documents and submits his report so that the original remains intact in the Courts'' record.

In this connection an argument was advanced that the prosecution has caused the eloping of the original FIR because the accused can now not prove that the original FIR is not outcome of the hand writing of PW 1. It is further said that once the accused had succeeded in dispatching the original FIR from the court to the Expert it could not have gained by its subsequent absence. The argument is wholly misconceived. Though it may sound presumptuous yet it has to be held with almost certainty that when the accused failed to obtain a report from the Expert in their favour it will be they alone who would be interested in seeing that the original FIR does not come back to the record of the trial Judge. The prosecution can under no circumstances be a gainer. This argument, therefore, is also of no avail and is rejected.

On the eye witness account, it may be stated here that another criticism against PW 1 Ram Shanker was that he did not describe himself as an eye witness in the FIR. It was said that since he had mentioned the names of those witnesses who had witnessed the incident, he should have described himself specifically also as an eye witness. This argument is equally fallacious. The whole incident is narrated by him in the FIR and he has no where stated that the narration of the incident was received by him from any one else. Therefore, from the positive angle he is supposed to be an eye witness as far as narration given by him in his FIR goes and therefore, it may not be expected of him to again name himself as an eye witness of the occurrence inspite of having described the whole incident. Therefore, there is no hesitation in placing implicit reliance on the testimony of the informant PW 1 Ram Shanker.

Coming to the testimony of PW 2 Rajjan Babu it may be noted that he has his house only 25 paces towards north of the place of the incident. He has described the entire incident as noted above. Similarly PW 4 Shiv Nath has his house at a distance of 50 paces from the house of Ram Saran deceased. He has also described the incident as narrated above.

An attempt was made to dislodge the testimony of these eye witnesses on the argument that they may not have reached on the place of occurrence in time, even if their houses were nearby. It is said that PW 2 Rajjan Babu has stated that he has heard sound of the fire and noise and then come out of his house and saw in the north that Sudershan was running towards the house of PW 1 and the accused were chasing him. It is said that because of this statement it must be taken that he had not seen the initial firing. Assuming it to be so, the continuity of the incident would still be maintained fully that he saw the incident after hearing of the first shot. It is so obvious that the witness must have seen the entire incident from chasing up to the killing of Sudershan inside the house and that of Ram Saran also on the Chabutra. Bereft of some irrelevant matter, the testimony of this witness is not only natural but he has full opportunity to see the main occurrence. His house being only about 25 paces from, the place of occurrence and then he is having no enmity, grudge or reason whatsoever with any of the Appellants is enough guarantee for his speaking the truth.

So lar as PW 4 Shiv Nath (who should have been numbered as PW 3) is concerned it was argued that he having been at his house at a distance of about 50 paces could not have seen the incident because he too said that he had come out after hearing the sound of fire and noise. Assuming that he had not seen the first firing which is deposed to by PW 1 Ram Shanker informant, he should not have taken more than few second in reaching the place of occurrence and saw that the two accused Appellants, namely, Vircndra and Subhash were firing at the two deceased Sudarshan and Ram Saran. The Appellants have no enmity whatsoever with this witness and his testimony is fully above board, natural and trustworthy. There is no reason at all for this witness to speak falsely.

One further criticism against the three eye-witnesses was that there was some contradiction in their statements regarding actual locking, shutting and opening of the door in the room wherein Sudarshan deceased had taken shelter. Those contradictions do not go to shatter the eye witness account of the assault because the whole incident must have been over in a few minutes and those contradictions under stress of cross examination indicate playing on imagination on insignificant matters by the witnesses. There is no contradiction in their testimony on the main incident which remains unshaken inspite of searching cross examination.

The testimony of these witness P W 2 Rajjan Babu and P W 4 Shiv Nath as also of PW 1 Ram Shanker is fully corroborated by the medical evidence as also by the recovery of blood stained earth and plain earth, blood stained chaff and plain chaff from the place of the occurrence. The testimony of I.O. who was a new entrant in the police department shows that this was his first investigation. The I.O. has also said that he had reached the place of occurrence by 11 a.m. and had dispatched the dead body by the evening. Carrying of dead bodies to the mortuary was fully proved by Ram Babu, C.W. 1 who has amply explained why he could not reach at the mortuary in day time on 2-6-1981. It has been fully explained by him that the dead bodies of Sudarshan and Ram Saran alias Bhaya Lal were handed over by him in intact position to the Doctor who conduct the post mortem at 10 a.m. and 11 a.m. on 3-6-1981. The injuries found on the dead bodies fully corroborate the prosecution case as deposed to by the eye witnesses.

For the aforesaid reasons, we do not find any infirmity in the finding of learned trial Judge placing reliance on the three eye witnesses, namely, Ram Shanker, informant, Rajjan Babu and Shiv Nath PW 1, PW 2 and PW 4 respectively. Consequently, conviction of the Appellants Virendra and Subhash u/s 302 IPC calls for no interference whatsoever. But something has to be said about the common object of other five accused Appellants, namely. Ram Autar s/o Lallu, Dujja, Vidhya, Ram Autar. s/o Narain and Surendra. There is not an iota of evidence suggesting that these persons had shouted, incited or excited either Virendra or Subhash to kill either of the deceased. It was argued that even if the prosecution case is believed the various arms attributed to those Appellants can at best go to suggest that an unlawful assembly was formed with the object of assaulting only and not to kill either of the deceased. In any case it was rightly argued that though the witnesses have said that when Ram Saran was fired at by Virendra, the five Appellants were standing at the Chabutara saying ''Maro Jane Na Paie'' but this fact was not mentioned in the FIR. Therefore, mere standing at the Chabutara may not necessarily bring in the mischief u/s 149 of the IPC unto the five Appellants. It was again rightly pointed out that Subhash alone opened the door and fired at Sudarshan where he had hid himself, consequently this action was an -absolutely independent act of Subhash and even prosecution evidence does not attribute use of any exciting words by these five Appellants. The learned AGA however, wanted to emphasise that since these Appellants also had lethal weapons with them, they had common object of killing Sudarshan and Ram Saran alias Bhaia Lal. However, where even exciting and inciting is not mentioned in the FIR it will be difficult to infer common object on the part of those accused who have not used their weapons. Section 149 IPC, under the circumstances, is not attracted to hold these five Appellants guilty of being vicariously liable for murder of Sudarshan and Ram Saran. The question still remains what offence can be said to have been made out against them. They were armed with lethal weapons, therefore, Section 147 IPC as also 148 IPC will be attracted against the respective Appellants, and 149 IPC will be attracted to wards the substantive offence under Sections 323 and 324 IPC and not Section 302 IPC.

In view of the aforesaid discussions Appellants Ram Autar s/o Lallu, Ram Autar s/o Narain, and Surendra are found guilty and are convicted for the offences punishable u/s 323/149 IPC and 324/149 IPC. Their conviction u/s 147 IPC is maintained. Appellants Dujja and Vidhya are held guilty and are convicted for the offence punishable u/s 323/149 and 324/149 IPC and their conviction u/s 148 IPC are upheld.

Coming to the quantum of sentences, it appears from the record that these five Appellants had been in jail for about two months. The Learned Counsel for the Appellants argued that more than ten years have elapsed since the day of the incident and the date on which day the appeal has been taken up and, therefore, no useful purpose will be served if they are awarded some more sentences. The AGA has not opposed this stand. On the present facts the said argument is justified. Under the circumstances period undergone will meet the ends of justice so far as these five Appellants are concerned.

Consequently while the conviction of the Appellants Ram Autar s/o Lallu, Dujja, Vidhya, Ram Autar, s/o Narain and Surendra for offence u/s 147 and 148 IPC respectively are upheld and their conviction u/s 302/149 IPC is altered to Section 323/149 and 324/149 IPC but their sentences are reduced to the period undergone and the sentences of imprisonment for life as against each of them is set aside. They are on bail, they need not surrender and their bail bonds are discharged.

The participation of Sudhash having been upheld, he has rightly been found guilty for the offence u/s 302 IPC and sentence of imprisonment for life as awarded to him, do not call for any interference. He is on bail. He will surrender to the bail bonds to serve out the sentence awarded to him.

The case of Virendra Appellants stands on the similar footing as of Subhash Appellant and the reasoning given by the trial court for awarding capital punishment does not appeal to this Court particularly because of the similarity of weapon, similarity of age and similarity of circumstances under which the present offence was committed. Since Subhash has been awarded lesser sentence, it appears just and proper to commute the sentence of death awarded to the Appellant Virendra into sentence of imprisonment for life. Consequently the conviction of the Appellant Virendra u/s 302 IPC is upheld but the sentence of capital punishment is set aside. The reference made by II Addl. Sessions Judge Etawah. (Reference No. 2 of 1990) is rejected. He is, instead sentenced to imprisonment for life. He is in Jail. He will serve out the sentence awarded to him.