Reserved on: 11.01.2019 Delivered on: 22.02.2019
CRIMINAL APPEAL No. - 5061 of 2003
Appellant :- Bauwa @ Anuj And Another Respondent :- State Of U.P.
Counsel for Appellant :- Vidya Bhushan Srivastava,A.K. Srivastava,Sudhakar Pandey Counsel for Respondent :- Govt. Advocate
Hon'ble Pankaj Naqvi,J. Hon'ble Umesh Kumar,J.
(Delivered by Hon. Umesh Kumar, J)
1- This criminal appeal has been preferred against the judgment and order dated 01.10.2003 passed by Additional Sessions Judge, FTC-3, Fatehpur in S.T. No. 20 of 1995 ( State Vs. Munna Lal & 2 others) and S.T. No. 20A of 1995 ( State Vs. Sajjan) arising out of Case Crime No. 33 of 1999 under Section 302 IPC, Police Station Jafarganj, Fatehpur by which, the appellants- Bauwa @ Anuj and appellant- Sajjan have been convicted and sentenced under Section 302 read with Section 34 IPC, to undergo life imprisonment with a fine of Rs. 5000/- each and in default of payment of fine, to further undergo one year R.I. The accused Munna Lal Tiwari and accused- Pappu have been acquitted of the charges.
2- We have been informed that no Government Appeal against the acquittal of accused-Munna Lal Tiwari and Pappu has been filed in this Court. The Jail Appeal No. 5140 of 2005 filed by accused-Sajjan) has been dismissed as not maintainable vide order dated 15.02.2019 for the reason that Criminal Appeal No. 5061 of 2003 has been filed on behalf of appellants- Sajjan and Buawa @ Anuj both.
3- The prosecution story, in brief, is that informant-Rama Kant son of Ganga Narain resident of village Deori Bujurg, P.S. Jafarganju district, Fatehpur has given a written report on 11.04.1993 alleging therein that he and his nephew Dharmendra @ Pintoo were at their house and at about 6.30 PM in the evening, accused-Sajjan, Anuj @ Bauwa both sons of Munna Lal who were involved in criminal case pertaining to wire cutting, belonging to their village came under the concept that their involvement in the wire cutting case took place on the instigation of the informant and his family members and due to this reason, they were having internal annoyance with them, but were showing cordial relation on upper heart. On coming, they asked his nephew Dharmendra @ Pintoo to accompany them to watch the fields. Dharmendra @ Pintoo went with them, but thereafter, Munna Lal and his son Pappu met in the way and they also accompanied them. All of them reached at their fields near well, where the accused persons put knot in the neck of Dharmendra @ Pintoo with the help of jute rope; on this Dharmendra @ Pintoo cried and raised alarm to save his life from the hands of above named accused persons. On this, accused-Sajjan fired on Dharmendra @ Pintoo from country made pistol, due to which, the deceased- Darmendra @ Pintoo died. His brothers namely Shrikant, Uma Kant and Cheda Lal were reaping and binding crops at their fields challenged and followed the accused persons, but they ran away from the spot. Due to fear, the informant did not have courage to report the incident which took place at 6.45 PM in the night at the police station and now, information is being given to the police for suitable legal action against the accused persons. On this tahrir (Ex.Ka-1) and chick FIR was registered as Case Crime No. 33 of 1999 under Section 302 of IPCat the police Station which is Ex.Ka-2. The investigation of the case was handed over to Station House Officer Surendra Narain Pandey, who visited the spot, conducted inquest, prepared other relevant papers and letters to CMO and R.I. and sent the dead body for post mortem examination. The I.O. collected blood stained and plain earth, blood stained rope and gamcha in his possession from the spot and prepared recovery memo Ex.Ka-11 and Ex.Ka-12. On the pointing of informant, site plan was prepared as Ex.Ka-10. The post mortem was conducted by Dr. G. C. Sethi which is Ex.Ka-4. During post mortem examination, P.W.5, as described in his statement, has found following injuries on the body of deceased;
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4- After completion of investigation, the Investigating Officer has submitted charge sheet Ex.Ka-13.
5- The Trial Court framed following charges against the appellants under relevant sections, which is quoted below;
“Charge I, Vijai Singh, Ivth Addl, Sessions Judge, Fatehpur hereby charge you,
1- Munnalal s/o Chandrika Prasad Tripathi
2- Sajjan s/o Munnalal
3- Bauwa alias Anuj s/o Munnalal
4- Pappu s/o Munnalal All r/o village Deori Buzurgh, P.S. Jafarganj, Distt. Fatehpur.
…...Accused as follows-
That on 11-4-1993, at about 6-45 P.M. in the evening at the well of your chak sitituted within the limits of village Deori Buzurgh, police station Jafarganj, district Fatehpur, in furthernce of the common intention of you all four did commit murder by intentionally of knowingly causing the death of Dharmendra alias Pintu of the said village and you thereby committed an offence punishable u/s 302 read with section 34 of the Indian Penal Code and within the cognizable of this Court of sessions.
And I hereby direct that you be tried by this court on the said charge.
Sd – inelligble 31-1-97 (Vijai Singh) IVth Addl, Session Judge, Fathepur Dated – 31-1-1997”
6- The appellants pleaded not guilty and claimed trial.
7- In support of its case, prosecution has examined P.W.1 Shri Kant, P.W.2 Rama Kant-informant and Chheda Lal P.W.3 as eye witnesses. P.W.4 Ambika Prasad Tiwari Constable has exhiibited chick fFIR and GD entry as Ex.Ka-2 and Ex. Ka-3. P.W. 5 Dr. G.C. Sethi has proved post mortem examination, whereas, P.W.6 Surendra Narayan Pandey is the Investigating Officer who has exhibited inquest report Ex.Ka-5 and other relevant papers Ex.Ka- 6 to Ex.Ka-9, Site Plan Ex.Ka-10 and recovery memo of blood stained and plain earth, blood stained gamcha and rope Ex.Ka-11 and Ex.Ka-12.
8- Statement of accused-appellant under Section 313 Cr.P.C. were recorded. In their statements, they had admitted that Rama Kant, Uma Kant and Shri Kant are real brothers and the accused- appellant Munna Lal is the resident of village Deori Bujurg and accused-Sajjan, Buawa @ Anuj and Pappu are the real sons of Munna Lal. They had denied the occurrence and have stated that an ante time FIR has been lodged after consultation due to enmity and no fair investigation has been conducted in the matter. They have been falsely implicated in the matter.
9- It is relevant to note that by the impugned judgment and order, the accused-appellant Munna Lal and Pappu @ Prem Shanker have been acquitted, but no Government Appeal against their acquittal has been filed. Although, in Criminal Appeal No. 5061 of 2003, accused-Sajjan has been arraigned as appellant no.2, yet, he has filed another appeal from jail which has been numbered as Jail Appeal No. 5140 of 2005.
10- We have heard Sri Sukhvir Singh, learned Counsel for the appellants and Sri A.N. Mulla, learned AGA on behalf of State and have perused the record.
11- Learned Counsel for the appellant has argued that it is a blind murder in the night and none has seen the occurrence; eye witnesses are not reliable; moreover they are interested witnesses; FIR is ante time and inordinate delay has not been explained; the injuries found on the body of deceased are not corroborated with the statements of witnesses and with the version alleged in the FIR; the distance mentioned in the inquest report and the FIR are different; the same is not reliable and the appellants have been falsely implicated due to enmity, hence the conviction and sentence awarded to the appellants is liable to be set aside.
12- On the other hand, learned AGA has opposed the arguments advanced on behalf of the appellants stating that in the case in hand, a young boy aged about 16 years has been murdered by the accused-appellants; the prosecution story is fully supported by the testimonies of eye witnesses corroborated by the medical evidence. The prosecution has successfully established its case and therefore, conviction and sentence awarded to the accused- appellant by the learned Trial Court requires no interference and the same may be upheld.
13- P.W.1- Shri Kant, uncle of deceased-Dharmendra has narrated the reasons for being inimical and about the revengeful attitude of the accused persons. He has stated in his statement that on 10.4.1993 at about 6.30- 6.40 PM, he was working in his filed; his brother Uma Kant and his brother-in-law Chheda were with him. At the same time, Sajjan, Anuj, Munna Lal and Pappu along with his nephew-Dharmendra @ Pintoo reached near well of Munna Lal which is situated in the field of Munna Lal, then all the accused persons hinged hemp rope in the nect of Dharmendra, upon which, Dharmendra shouted to save him. On the cry, he, Uma Kant and Chheda rushed towards the place of occurrence. He further stated that Sajjan-accused fired on Dharmendra by a country made pistol which hits the chin of deceased-Dharmendra, as result of which, he died. This witness has deposed that they ran to rescue Dharmendra and tried to capture the accused persons, but the accused persons opened fire and escaped towards west. This witness has specifically stated that he saw his son being strangulated by the accused persons and also that the firing was done by accused- Sajjan. This witness has admitted that in a criminal case under section 307 of IPC, he and his brother Uma Kant and Rama Kant have been convicted by the Court of Sessions, affirmed by the High Court and also affirmed by the Apex Court. In that case, Sheo Adhar Tiwari, his son Bipin Tiwari and Mohan Lal Bajpai were injured witnesses, but he has specifically denied that accused Munna Lal Tiwari and Sheo Adhar Tiwari belong to the same family. He has stated that the wife of Munna Lal has lodged a criminal case regarding mischief by fire against them. He has deposed that place of occurrence is around 3 furlongs from his house on western side. When the occurrence took place, up to that time, 4-5 biswas of crop remains to be harvested on the southern side of the field. At the time of occurrence, around 25-30 bundles of the harvested crop were tied. He has admitted the fact that he saw the occurrence from 200 meters. He has stated that occurrence took place near the well in a clay pile (mitti ke dher).
14- P.W.2 Rama Kant, is an eye witness in whose presece the accused-Sajjan and Anuj @ Bauwa took away his nephew Dharmendra saying that come and go to the field ( chalo khet takwa layen). He has further stated that in the way, Munna Lal and Pappu accompanied and all the four accused persons took away Dharmendra in his filed near the well, where Dharmendra was strangulated by them and accused-Sajjan also fired upon the deceased by his country made pistol which hits the chin, as a result of which Dharmendra died. His brother Shri Kant, Uma Kant and Chhedda Lal who were working in the field rushed hearing the shouting made by the deceased, challenged and followed the accused, but the accused persons ran away leaving dead body near well. On account of night, he did not go any where and in the morning, went to report the matter to the police station. He has exhibited his tahrir as Ex.Ka-1. In his cross examination, he has stated that none has told him about the death of Dharmendra, but he himself saw the occurrence. He has not stated this fact in his tahrir only because, dead body was lying on the spot, she he failed to write this fact in tahrir. He narrated this fact that he saw the occurrence from his own eyes and if the Investigating Officer has not transcribed it in his statement, he cannot explain any reason thereof. The place, from where, he had seen the occurrence, he has narrated to the Investigating Officer during his spot inspection and if it has not been shown in the site plan, he cannot state any reason thereof.
15- P.W.3 Chhedda Lal has also supported the prosecution version stating that at the time of occurrence, he, Shri kant and Uma Kant were working in the field of Shri Kant which about 200 meters away from the place of occurrence. All the four accused persons took away Dharmendra @ Pintoo to the western side of field near well. He has also stated that the accused persons strangulated and on the shouting of Dharmendra, they all ran towards west where they saw that the accused Munna Lal, Sajjan and Anuj @ Bauwa were hinging rope in the neck of Dharmendra and Sajjan accused fired from country made pistol on the deceased due to which Dharmendra died. He has further stated that he saw the occurrence and identified accused persons. He has also stated that Rama Kant was standing on the road, he came there and also saw the incident. All the accused ran away towards western side by opening fire, due to which, they did not follow them. He has stated in his statement that deceased- Dharmendra was his real nephew. He gave statement to the Investigating Officer after 5 days of the incident. He has also stated in his cross examination that Rama Kant was standing on the raod. He ran and saw the occurrence and if the Investigating Officer has not written this fact, he cannot tell any reason.
16- The eye witnesses of the case in hand, are natural witnesses who were present and working in field at the time of occurrence and after hearing the shouting of deceased, they rushed towards the place of incident. Whatever they saw that has been narrated before the Court. These statements are natural, trustworthy and reliable. Minor discrepancies and faults establishes their truthfulness and also that they are not tutored or partisan witnesses. What they saw, they have narrated before the Court. It is also important to notice that the witnesses are the villagers and they are well known to each other, hence,identification of the accused persons by them cannot be questioned. The rural witnesses do not have mathematical idea of time. The deposition of a witness about the occurrence cannot be considered to be meticulously precise as if he had noted about the distance as exact or precise. It is always based on general impression and due allowance must be given keeping in view the intelligence, power of observation and retentive memory of rural witness. It has been held by the Apex Court that the Court while appreciating the testimony of rustic villagers are liable to commit mistake by losing sight of their rural background and courts ought to appreciate the testimony from rational angle. Regarding rural witnesses, in the leading case of Shivaji Sahebrao Bobade Vs. State of Maharashtra AIR 1973 SC 2622, it has been held that where the witnesses to the case are rustic villagers, their behavioural pattern and perceptive habits have to be judged in that dimension.
17- P.W.4- Ambika Prasad Tiwari( Head Moharrir) is a formal witness who has proved the check FIR and G.D. entry.
18- P.W.5 – Dr. G.C. Sethi who has conducted the post mortem examination on the body of deceased has stated in his statement that Injury No.1 might have been caused by a fire arm, injury No.2 might have been caused due to tightening of rope loop, injury no.3 could have been caused as a result of injury no.2. This witness has further stated that injury no.2 was grievous in nature and was sufficient to cause death immediately. He has stated about the duration of the injuries to have been caused hon 11..4.1993 at about 6.45 PM and also that on account of the said injuries, death has occurred.
19- P.W.6-Surendra Narayan Pandey is the Investigating Officer of the case. He has proved inquest report and other relevant documents viz. Photo naash, challan naash and letters to CMO and the R.I. ( material Ex. 5 to 9) On the pointing of informant, he prepared site plan Ex.Ka.10. He has also prepared recov ery memo of blood stained earth, plain earth, blood stained rope and blood stained gamcha ( Ex.Ka-11 and 12). This witness has stated that in the chick FIR, distance from the place of occurrence to the police station is described as 16 Km., whereas, in the inquest report, it has been mentioned as 22 Km. In this regard, he has explained that this difference is only because the place of occurrence is 22 Km. away by road, whereas, if one goes directly, it may be around 16 Km. He has specifically denied that difference in the distance mentioned in the inquest report and chick FIR is only because while dictating the inquest report, no FIR was written.
20- The argument of learned Counsel for the appellants that from where, it has been asserted that eye witnesses have visualised the incident from a distance of 200 meters, and this witnesss (P.W.6) is not telling truth because in the site plan, letter 'A' is shown as place of occurrence, 'B' is the place where witnesses were working in the field and 'D' is denoted as a place from where the witnesses have seen the incident and have identified the accused persons. The distance from place 'A' to 'D' has not been indicated. Moreover, the assertion of the Investigating Officer that the southern side of place of occurrence is paidhi, which means high on the side of well and down side slope. Hence, from letters mentioned in the site plan Ex.Ka.10, it cannot be derived that the eye witnesses have seen the occurrence from 200 meters, as stated by P.W.6.
21- Learned Counsel for the appellants has argued that deceased-Dharmendra was having illicit relation with a girl and the suggestion has also been given that due to that enmity with Khoob Chand, this occurrence took place, cannot be relied upon only because there is nothing on record except suggestion to strengthen the defence suggestion.
22- Argument of learned Counsel for the appellants regarding motive of the incident is not acceptable for the simple reason that evidence regarding existence of motive operates in the mind of the assasin, is not very often within the reach of others. A crime may take place even without premeditation or preplanning in the context of a particular situation on the spur of moment. In this regard, suffice to note that the Apex Court in Shivji Genu Mohite Vs. State of Maharashtra AIR 1973 SC 55 and also in the case of Subedar Tiwari Vs. State of U.P. AIR 1989 SC 733 has been held that even if motive is not established, the evidence of eye witnesses is not rendered untrustworthy.
23- Further argument of learned Counsel for the appellants that the eye witnesses are interested and partisan witnesses cannot be accepted because a close relative who is a natural witness cannot be regarded as interested witness. Interested witnesses by itself cannot possibly be a ground to reject the evidence. The test of creditworthiness or acceptability ought to be the guiding factor and if so, the question of rasing an eye brow on the reliability of the witness being an interested witness would be futile, as has been held in State Vs. Jagdeo (2003)1 SCC 456. Similar proposition has been laid down in the case of Gajju Vs. State of Uttrakhand 2012(9) SCC 532.
23- Considering the entire evidence as it is, we are of the view that the Trial Court was justified in convicting and sentencing the accused appellants under Section 302 read with Section 34 of IPC.
24- The appeal has no merit. The same is liable to be and is, accordingly, dismissed. The appellant-Sajjan in Jail Appeal No. 5140 of 2005 is in jail. The appellant Anuj @ Bauwa in Criminal Appeal No. 5061 of 2003. is on bail. His bail bonds stand cancelled and it is directed that he be taken into custody forthwith to serve the remaining sentence.
25- The Registry is directed to transmit the Trial Court's record for compliance of the judgment, in accordance, with law. Compliance report be submitted within months.
(Umesh Kumar, J) ( Pankaj Naqvi, J)
Order Date :- 22 .02.2019 Shahid