Chief Justice's Court Case :- CRIMINAL APPEAL No. - 1848 of 1984 Appellant :- Badri Respondent :- State Counsel for Appellant :- S.K.Maurya,Sarvesh Chandra Mishra Counsel for Respondent :- A.G.A.
Hon'ble Govind Mathur, Acting Chief Justice Hon'ble Chandra Dhari Singh,J.
This appeal is before us to examine correctness of the judgment dated 6th July, 1984 passed by learned Sessions Judge, Azamgarh in Sessions Trial No.361 of 1983.
Under the judgment impugned, learned Sessions Judge recorded conviction of the accused-appellant Badri for the offence punishable under Sections 302 and 307 Indian Penal Code and awarded sentence to undergo life term imprisonment for commission of the offence under Section 302 Indian Penal Code. For the offence under Section 307 Indian Penal Code the accused has been awarded sentence to undergo imprisonment for 7 years.
In brief, facts of the case are that a first information report (Ex.- ka2) was lodged at Police Station Mubarakpur on 17th May, 1983 by Smt. Gujaratia widow of Baijnath with assertion that her father-in-law had some litigation with Surajbali and Lautoo regarding some abadi land and pokhari. In the intervening night of 16/17th May, 1983 Harilal, S/o Ramraj and Brijmohan, S/o Gobari after consuming meals went to their tubewell in night at about 00.00 hours. In nigh on hearing alarm the first informant and her certain other family members rushed towards the tubewell, where they found that Harilal and Brijmohan were lying injured being suffered serious injuries. The injuries were caused by accused Badri with the aid of Gandasa as seen by Ramdhari who was also sleeping at his tubewell, quite close to the place of occurrence. The two injured persons were taken to the hospital by a taxi. During the course of treatment, Brijmohan died on 29th May, 1983 at about 3.45 am. Prior to the death of Brijmohan a case was lodged for the offence punishable under Section 307 Indian Penal Code. A charge relating to offence under Section 302 Indian Penal Code was subsequently added on death of injured. During course of the investigation, the injuries caused to Brijmohan and Harilal were examined by Dr. O.P. Singh (PW3). After death of Brijmohan, autopsy was conducted on his corpus by Dr. Siddha Gopal (PW2) on 30th May, 1983. The injuries suffered by Brijmohan and Harilal are as follows:-
“Brijmohan:-
1. Incised wound 18 cm X 2 cm X bone deep on forehead starting from right side of upper eye-lid, 3 cm above right eye. Eye bone was also cut.
2. Incised would 12 cm X 3.5 cm X bone deep. Bone and muscles were also cut on left fact in line of ear starting from left ear.
According to the doctor general condition of the patient was poor. Pulse was 60 and feeble, blood pressure was 90/60. The patient was in the state of shock and was also unconscious. The injuries were kept under observation. X-ray was advised of scalp, forehead and left face. The injuries had been caused by some sharp cutting weapon and duration was reported to be fresh.
Harilal:-
1. Incised would 12.5 cm X 2 cm on left side of scalp and forehead. It was bone deep and 4 cm above left eyebrow. Bone underneath was cut. The patient was under shock and unconscious. The general condition was poor. Blood pressure was 80/50. Injury was kept under observation and X-ray of scalp and forehead was advised. The injury had been caused by some sharp cutting weapon and duration was fresh.
The opinion given by Dr. Siddha Gopal after conducting autopsy on the corpus of Brijmohan is as follows:-
“Ante-mortem injuries
1. Stitched would 25 cm on frontal forehead above the left eyebrow.
2. Stitched would 20 cm long on right thigh.
3. Healed wound 9 cm X 1 cm on left side cheek.
On internal examination of the dead body the doctor found fracture of frontal, temporal and parietal bones Memberances were stitched. Brain was lacerated, stomach was empty. In the opinion of the doctor death has been caused due to coma as a result of head injury. Ext. Ka1 is the post mortem report.
The investigating agency after conducting regular investigation submitted a police report before the court competent. The case being sessions triable was committed to the court of sessions, where a charge was framed after hearing the accused. On denial of charge, the trial commenced as desired.
The prosecution supported its case with the aid of 8 witnesses and 18 documents (Ex.-Ka-1 to Ka-18). An opportunity was given to the accused to explain adverse and incriminating circumstances available in the prosecution evidence. While availing the same the accused termed the entire evidence false with an assertion that he was implicated in the case concerned due to some vengeance. No evidence in defence was adduced. The trial court by examining whatever material available on record held the accused-appellant guilty for the charge relating to commission of offence under Section 302 as well as 307 Indian Penal Code.
In appeal, the argument advanced by learned counsel appearing on behalf of the appellant is that the prosecution evidence suffers from serious contradictions and that make the entire prosecution case unreliable. It is asserted that as a matter of fact the case is essentially based on the evidence adduced by the Police Officer and that in light of the judgment of Hon'ble Supreme Court in State of Kerala Vs. Thomas @ Bobby is not at all permissible.
Per contra, as per learned Additional Government Advocate, the evidence adduced by the eye-witness read with medical evidence adduced by Dr. Siddha Gopal and Dr. O.P. Singh and the evidence adduced by the Investigating Officer, the trial court rightly held the accused-appellant guilty for the charge levelled.
Heard Sri Sarvesh Chandra Mishra, learned counsel for the appellant and Sri Syed Ali Murtaza, learned Additional Government Advocate for the State-respondent.
Looking to the medical evidence available on record, there is no doubt about homicidal death of Brijmohan. The issue before us is with regard to involvement of the accused Badri in the crime in question.
As per the prosecution, the entire incident was witnessed by Dudhai, who was sleeping at his tubewell situated at a place quite close to the site of the occurrence. As per this witness, Brijmohan and Harilal were sleeping near the tubewell and he woke up at the alarm raised by the above named two persons. As per this witness, he was having torch with him and in light of that he saw accused Badri giving Gandasa blows to Harilal and Brijmohan. This witness also raised alarm and rushed towards the place of occurrence. He noticed that beside him Pheru @ Pherai and son of Pheru @ Pherai were also coming to the place of occurrence and they too witnessed the incident. This witness when tried to intervene, accused Badri fled from the spot towards north to the tubewell. During course of cross-examination Dudhari (PW1) reiterated whatever he stated in chief and there is nothing to disbelieve his testimony.
Learned counsel appearing on behaf of the accused-appellant urged that the distance of the place of occurrence of the crime from the place where Dudhari (PW1) was sleeping is quite much away and would have not been possible for him to recognize the accused. We do not find any merit in the submission advanced.
Dudhari (PW1) in quite specific terms stated that he was having torch with him and in light of that he saw Badri. A person already known can very well be recognized by a person from the distance of about 40-50 ft. in a moderate light. In case in hand, Dudhari (PW1) not only saw the incident at first instant from the distance about 40-50 ft. but also rushed towards the place of occurrence and as such the distance to witness the incident was quite smaller. Pertinent to mention that another witness Pheru @ Pherai (PW4) has also corroborated the evidence adduced by Dudhari (PW1). As per this witness at about 11/11.30 pm his son Lautoo reached at the residence after having medicine from a medical practitioner. Little later thereto, Lautoo and this witness heard alarm from the direction in which house of Dudhai is situated, hearing the same they rushed towards the place of occurrence and found that accused-appellant Badri carrying a Gandasa was running towards his tubewell. On arriving at the tubewell, this witness found Brijmohan and Harilal laying down on earth and they were having serious injuries. The statement given by this witness strengthens the version stated by Dudhari (PW1). An important witness in the case is Gujratia (PW5). As per this witness, Brijmohan and Harilal had gone to sleep after taking their meals and they were sleeping near the tubewell closed to the door of Dudhari (PW1). Hearing alarm this lady too rushed towards the place of occurrence and found Brijmohan and Harilal badly injured. This witness also narrated the facts in consonance to the facts stated by Dudhai and Pheru @ Pherai.
In addition to the ocular evidence, the medical evidence also supports the prosecution story. The deceased person had incised wounds ant those could have been caused by a Gandasa. Though the Gandasa (Artile-3) was not shown to the doctor but on basis of nature of injuries it can very well be said that what kind of weapon could have been used to cause the injury noticed on the corpus of deceased. It is also pertinent to note that at the instance of accused-appellant a blood stained Gandasa was also recovered. The recovery of Gandasa at the instance of accused has been established adequately. In entirety, the evidence discussed above, is sufficient to held the appellant guilty for the charge relating to his involvement in a crime pertaining to the offence under Section 302 Indian Penal Code. The trial court as such has not committed any error in recording conviction of the appellant.
The appeal for the reasons given above, is bereft of merit and hence, is dismissed.
Order Date :- 30.10.2018 Bhaskar
(Chandra Dhari Singh, J.) (Govind Mathur, A.C.J.)