Hon'ble Shekhar Kumar Yadav,J.
1. Heard Shri Noor Mohammad, learned counsel for the appellant and Shri L.D. Razbhar & Prem Shanker Mishra, learned A.G.A.s for the State.
2. The instant appeal is directed against the judgement and order convicting the appeal and sentencing him to life imprisonment, which judgement has been passed on 02.12.18 by the Additional Session Judge, Fast Track Court No.2, Bhadohi at Gyanpur in Session Trial No.103 of 2003 (State Vs. Babulley) under Section 302 I.P.C., Police Station-Bhadohi, District-Sant Ravidas Nagar, Bhadohi, convicting and sentencing the appellant to life imprisonment. A Fine of Rs.10,000/- have also been imposed and in default thereof, two years further imprisonment has been ordered.
3. Sessions Trial No.103 of 2003 pertains to an incident which took place on 27.07.2003 at about 9:00 a.m. in village Jagdishpur. The first information report in this regard was lodged at 11:00 a.m. on the same date at Police Station-Bhadohi Kotwali, District-Sant Ravidas Nagar.
4. As per the first information report lodged by Laldei Devi w/o Vijay Shanker, she alongwith her husband-Vijay Shanker was proceeding from their house towards their field at about 9:00 a.m.. When they reached in front of the house of one Chauthi, Babulley-appellant emerged from his house which was situated at some distance and hit Vijay Shanker on his head with a rambha, resulting in his death on the spot.
5. It is also stated in the first information report that on the previous night, Vijay Shanker and Babulley had gone to village Katauna to consume liquor and there, they had an argument. It is on the account of the said argument that Babulley assaulted Vijay Shanker. The incident is alleged to have been witnessed by Paras Nath s/o Munni Lal, Ram Pyare s/o Sakal Dhadi and some other persons.
6. After investigation, a charge sheet was submitted and the matter was committed and tried.
7. As many as 10 witnesses were examined on behalf of the prosecution. They are P.W.-1(Laldei Devi w/o deceased), P.W.-2(Ram Pyare) one of the eye witness mentioned in the first information report, P.W.-3(Nand Lal) the alleged witness of the recovery of the iron rod i.e., rambha(the weapon used in the crime), P.W.-4 (Vijay Nath) the scribe of the first information report, P.W.-5 (Dr. Sunil Kumar Srivastava), who conducted the post mortem report of the deceased, P.Ws.-6 to 10 are the police personnel including the Investigating Officer, the Sub-Inspector, who carried out the inquest.
8. Ram Saran s/o Mathura, is the sole witness examined in defence, apart from the statement of the accused recorded under Section 313 Cr.P.C.
9. P.W.-1, the first informant has in his oral testimony supported the version given in the first information report. She has also stated that she is illiterate and that the first information report was scribed by Vijay Nath on her dictation and thereafter, she put her thumb impression, thereon. She has also stated that the first information report wrongly records that the incident took place in front of the house of appellant-Babulley. In fact, it took place in front of the house of Chauthi and that the discrepancy in the F.I.R. is on account of her mental agitation due to death of her husband. She has also stated that her husband was fond of consuming liquor. It is also stated in her statement in cross-examination that she and her husband were proceeding from their house with rice sapplings, on foot. She has also denied the suggestion that the deceased was assaulted by other persons.
10. P.W.-2 Ram Pyare has stated that he was returning from his field. When he reached near the house of Chauthi, Babulley emerged from his house armed with a iron (rambha) and assaulted the deceased on his head with the rear portion or its handle. Vijay Shanker fell on spot and expired. Babulley ran away with the rambha. He has denied the suggestion that there was tension between him and Babulley. He has also been elaborately cross-examined as regards the houses situated in the vicinity of the alleged place of occurrence. Nothing of substance has been elicited that may indicate that there was any inconsistency between what is stated in the first information report and the actual spot of the incident.
11. This witness has also stated that his agricultural field and that of the first informant, Laldei Devi, are adjacent to one another.
12. There is however one inconsistency in the statement of P.W.-2 as regards the prosecution case. The prosecution case is that the deceased and the first informant were proceeding towards their field on foot. However, P.W.-2 in his cross-examination stated that the deceased Vijay Shanker was on a bicycle.
13. P.W.-3 (Nand Lal s/o Paras Nath), is the witnesses of the recovery of Iron rod (rambha) used as a weapon in the incident. The fard prepared at the time of recovery of this weapon has been denied by the witness in his examination. He has also denied his statement recorded under Section 161 Cr.P.C. This witness was consequently declared hostile.
14. P.W.-4 (Vijay Nath s/o Shambu Lal), the scribe of the first information report in his cross-examination, has been stated that he had not initialed the cutting and over writing in the first information report because he was not so well versed in such matters.
15. P.W.-5 (Dr. Sunil Kumar Srivastava), who conducted the post mortem on the body of the deceased has stated that at the time of post mortem, there was stiffness of the hand and feet but the body had not started to decomposed; both eyes were shut and blood was flowing from both nostrils; that there was only two injuries on the body of the deceased; (i)a lacerated wound- 6cmX3cm on the centre of the head with an underlying fracture of the skull bone and (ii) abrasion 12cmX2cm on the left side of chest. He has also stated that on an internal examination, the parietal bone was found fractured and the membranes and brain were torn; the heart was partially filled up with blood. The cause of death according to this witness was on account of excessive bleeding and shock due to the ante mortem injuries. He has opined that the injury suffered on 27.03.2003 at about 9:00 a.m. could be the cause of death. In his cross-examination, he has stated that a rambha is a sharp edged weapon and that the injury on the head of the deceased could be caused if he fell on a hard object with sufficient force.
16. P.W.-6(Ramesh Prasad Singh), who is the Head Mohrir, has proved chik F.I.R.No.75 of 2003, and G.D. entries no.22 and 56, written by S.I. Raja Ram Verma.
17. P.W.-7(Nand Kumar Ozha-S.I.), is the first Investigating Officer and also the person in whose presence, the rambha used for assaulting the deceased was recovered.
18. P.W.-8(Ravindra Singh), a Constable, has signed paper No.29 whereby the earth from the spot and as also the alleged weapon of assault were collected and sealed.
19. P.W.-9 (Ragvendra Singh,S.H.O, Badhohi) is a second investigating Officer in this case. He has stated that it took over the investigation on 25.08.2003. He was the one who sent the items for forensic analysis.
20. P.W.-10(Inspector Mahesh Ram Gautam, Kotwali Katra,District-Mirzapur) has stated that between 18.10.2003 to 20.03.2003, he was posted at Kotwali, Badhohi and that Parcha No.7 was written by him on 18.10.2003, wherein the statement of the Nand Lal, Murari Prajapati, Rajesh Kumar, Kanhayia Lal, Fulgane and Amila Prasad were recorded. He recorded the statement of Paras Nath and Ram Pyare and that on the same date, he prepared charge sheet No.117 of 2003. In his cross-examination, he has stated that the Chemical Analysts Report was not received by him.
21. The accused appellant in his statement under Section 313 Cr.P.C has stated that the deceased-Vijay Shanker was habitual of consuming liquor. He was drunk on the day of incident and was walking under the influence of liquor. As a result, he fell down and suffered the injury on his head and due to it, he died. He has falsely been implicated because he had not supported Ram Pyare for the post of the Gram Pradhan. Ram Pyare, is the brother-in-law (Jeth) of Laldei Devi and therefore he has falsely been implicated in the case.
22. D.W.-1(Ram Saran), has supported the statement of the appellant under Section 313 Cr.P.C. He has stated that he saw Vijay Shanker falling from his cycle. When he reached the spot, Vijay Shanker was dead and that Babulle never assaulted Vijay Shanker with his rambha. The injuries occurred due to the deceased hitting the pulia.
23. In his cross-examination, he has stated that he has come to depose at the instance of Babulley and he is unable to carry out cultivation as he cannot see clearly; his vision is not clear and that he has problem in moving around even on standing up. He has also stated that there are two houses situated between the puliya where Vijay Shanker is stated to have been suffered the head injury on account of his falling from his bicycle and between his house. He has stated that after he heard shouting, it took him 5 to 10 minutes to reach the site where the deceased was lying.
24. The trial court, upon conclusion of trial, by judgment dated 02.12.2008 convicted the accused and sentenced him to life imprisonment. A fine of Rs.10,000/- was also imposed with the stipulation of two years additional rigorous imprisonment in default of its payment.
25. Assailing the conviction of the appellant, the submission of Shri Noor Mohammad is that as per the prosecution case assault was by a sharp edged weapon. This prosecution case is not supported by the post mortem report or by the testimony of the doctor, who conducted the post mortem. The doctor has categorically stated that the injury on the person of the deceased was caused by a hard blunt weapon and not by a sharp edged weapon. The prosecution version that the appellant hit the deceased with the handle of rambha, was introduced for the first time during trial. He has also submitted that the report of the forensic laboratory does not conclusively prove that the rambha recovered by the police was actually used in the alleged crime.
26. He has also submitted that there was inordinate delay in recording the statement of witnesses under Section 161 Cr.P.C. These statements have been recorded with a delay of three months. The benefit of this delay is liable to be given to the appellant and in this context, he has relied upon the judgment in the case of Balwan Singh Vs. the State of Chattisgarh and another, 2019 Supreme (S.C.) 826, specially paragraphs 7 and 9, thereof.
27. He has next submitted that although the deceased was allegedly going to his field with rice sapplings, the sapplings have not been shown in the site plan nor is there any reference of their recovery from site of occurence. This by itself renders the alleged place of occurrence extremely, doubtful.
28. He has also submitted that since the witness of recovery of the alleged weapon of assault has not supported the prosecution case and has been declared hostile, the conviction by the trial court is unsustainable.
29. He has lastly submitted that the case falls within the fourth exception to Section 300 I.P.C. and shall not travel beyond Section 304 I.P.C. He has placed reliance upon the judgment of the Apex Court dated 09.02.2017 in Criminal Appeal No. 1044 of 2012 (Shekhar Vs. State of M.P.) and Criminal Appeal Nos.2389-2390 of 2014 (Deelip and others Vs. State of M.P.). In this case also, the witness of recovery had turned hostile, the appeals were allowed and the appellants were let off by the Apex Court, reducing the sentence awarded, to the period undergone.
30. The last judgment relied upon is dated 27.08.2019, rendered in Special Leave to Appeal (Criminal) No.389 of 2019 (Suresh @ Kala Vs. NCT of Delhi. It is submitted that the case cited was also one of a single injury or a single blow and therefore, the conviction under Section 302 I.P.C. was converted to one Section 304 Part-I I.P.C. Accordingly, the sentence to life imprisonment was reduced to ten years rigorous imprisonment.
31. Learned A.G.A., in rebuttal has submitted that the incident is a broad day light incident. The first information report has been promptly lodged. P.W.-1 & P.W.-2 are the witnesses of fact. They alongwith P.W.-5 & P.W.7, the formal witnesses, have fully supported the prosecution case. No inconsistency in their testimony has been pointed out by counsel for the appellant. The prosecution case is therefore, proved to the hilt and the conviction and sentence of life imprisonment have rightly been passed. The appeal is liable to be dismissed.
32. It has been submitted by State Counsel that the forensic report clearly states that blood stains found on the earth removed from the spot and clothes of the deceased was human blood and of identical blood group. He has also submitted that although the items were sent for chemical analysis with some delay, the report of the forensic laboratory is of 2008 i.e., almost five years after the incident. However, since, the blood found on the items was human blood and of identical blood group, nothing turns in favour of the appellant.
33. We have considered the submissions made by learned counsel for the parties and perused the record in detail.
34. The first submission required to be dealt is that according to the first information report, the deceased was assaulted by a sharp edged weapon while the injury on his person has been found to be caused by a blunt hard object and that the prosecution case that Babulley assaulted the deceased with rear of the rambha is an improvement.
35. We do not find any substance in the submission of the learned counsel for the appellant. It is not the version in the F.I.R. that the deceased was assaulted by Babulley from the sharp side of the rambha, and therefore, it cannot be said that the statement of P.W.-2 that Babulley assaulted the deceased from his rear side of the rambha, is an improvement. The version in the F.I.R. is that Babulley assaulted the deceased on his head by a rambha. Nothing further is stated in the first information report. In any case, the injury, as per the post mortem report is on the top of the head with underlying fracture of the parital bone. Even the membranes and the brain itself were found to be ruptured. Therefore, although a single blow has been given to the deceased, the same was very powerful. Moreover nothing turns upon the submission that the doctor has not given any definite opinion in this regard. The doctor has nonetheless stated that the injury on the head of the deceased was caused by a blunt hard object, which is consistent with the prosecution case. The submission of Counsel for the appellant that the doctor had not given any definite opinion about the injury on the heart of the deceased is not correct.
36. The second submission regarding the delay of almost three months in recording the statement of witness under Section 161 Cr.P.C., in our considered opinion, in no way, improves the case of the appellant. Moreover, from the record, it transpires that this delay has occurred due to changes and transfers of the persons entrusted with the investigation of the case. The delay has moreover not resulted in any discrepancy or inconsistency as regard the prosecution case.
37. The next submission of counsel for appellant, relying upon the decision of the Apex Court in Shekhar Vs. State of U.P. in Criminal Appeal No.1044 of 2012 on the issue of the seizure witness turning hostile, it would be relevant to note that though P.W.-3 was declared hostile, he has nowhere in the testimony denied his signature on the fard prepared at the time of alleged recovery of the rambha. He has pointed out that appellant-Babulley recovery is from the house of the Babulley.
38. We do not find anything either from the submissions made or from a perusal of the record which would render the prosecution case doubtful.
39. Moreover, learned A.G.A. has rightly pointed out that the spot map as regards the place of occurrence as also the place of the alleged recovery of the weapon of assault, are very clear and categorical and the same cannot be discarded merely on the argument that it does not specify the places at which the various eye witnesses were standing at the time of the incident. Moreover, despite P.W.-2, the alleged eye witnesses having been cross-examined extensively as regards the houses situated in the vicinity of alleged place of occurence, nothing of substance has been elicited, therefrom. Nothing in the cross-examination of the eye witness is able to cast even a shadow of doubt as regards the alleged place of occurence. In any case, this aspect is not very material, as the incident took place in broad day light, on a public path way and there is nothing on record which would render the presence of the eye witness on the site of the occurrence, doubtful. For the same reason the submission that no rice saplings were recovered by the police nor their position is depicted in the site plan also does not weaken the prosecution case as theses saplings is not very material for establishing the prosecution case of assault upon the deceased by the appellant which resulted in his death.
40. The submission is that the place of occurence is doubtful is without substance also because it is the defence case that the deceased while riding a bicycle under the influence of liquour, fell down and hit his head against the pulliya resulting in his death. Thus the place of occurence has not really been disputed even during trial.
41. In so far as the testimony of D.W.-1 is concerned, the same cannot be relied upon as he has a failing eyesight. The distance from his house to the place of occurence is not such which could have been seen clearly by him since he admits in his cross examination that his vision is blurred. He has also stated in his cross examination that it took him five to ten minutes to reach the place of occurence.
42. Learned counsel for the appellant has relied upon the judgment of the Apex Court in Suresh @ Kala (Supra), wherein the conviction under Section 302 I.P.C. was converted to Section 304 Part-I, I.P.C. and the sentence was reduced to ten years rigorous imprisonment, which in our considered opinion, does not help the appellant in any manner. In the judgment cited, is a case of a single penetrating blow on the back of the abdomen, horizontally placed. The case cited is, therefore, distinguishable as in the case of hand the injury is on the top of the head i.e., a vital part. The single blow, as already noticed in the earlier part of this judgment an extremely powerful as it led to a fracture of the parietal bone and the underlying tissue and membranes were found raptured during post mortem.
43. However, the case was not of a sudden quarrel. The cause of the incident according to the prosecution was a fight or argument which took place between the deceased and the appellant on the previous night. The single blow therefore cannot be said to be one which was delivered during a sudden quarrel and in the heat of the moment.
44. The judgment in Shekhar Vs. State of M.P. (supra) is a case where seizure witnesses had turned hostile. The convicion was still affirmed by the Apex Court as the injury caused to the deceased were consistent with the weapon recovered despite the seizure witnesses having turn hostile. In the instant case also, the injury suffered by the deceased are consistent with the recovered weapon (rambha). The appellant is therefore not entitled to any benefit under the judgment cited.
45. The next judgment cited, namely, Balwan Singh Vs. State of Chattisgarh and another, decided along with Appeal No.727 of 2015 reported in 2019(0) Supreme (SC) 826, deals with the question of delay in recording the statement of the witnesses by the Police. In paragraph 6 of this judgment, it has been observed as follows:
" We are conscious of the fact that mere delay in recording of the statement of the eye witnesses by the Investigating Officer cannot de-facto raise suspicions in the mind of the Court about the veracity of the prosecution case, more particularly, about the veracity of the eye witnesses."
46. Under the circumstances and in view of the observation extracted above, even this judgment does not help the appellant.
47. In view of what has been stated above, we do not find any reason to interfere with the conviction of the appellant under Section 302 I.P.C.
48. The appeal is, accordingly, dismissed, the judgment and sentence passed by the trial court is, affirmed.
Order Date :- 09.02.2021 Shivangi