Court No. - 4
Case :- CRIMINAL APPEAL No. - 465 of 1987 Appellant :- Cheda Lal And Another Respondent :- State Of U.P.
Counsel for Appellant :- G.S.Chaturvedi Counsel for Respondent :- D.G.A.
Connected with
Case :- CRIMINAL APPEAL No. - 709 of 1987 Appellant :- Kamlesh And Others Respondent :- State Counsel for Appellant :- Anil Kumar Pathak,G.S. Chaturvedi Counsel for Respondent :- A.G.A.
Hon'ble Bala Krishna Narayana,J. Hon'ble Ghandikota Sri Devi,J.
Heard learned counsel for the appellants and Sri J.K. Upadhyay, learned A.G.A. for the State.
Criminal Appeal No.465 of 1987 has been preferred by Chheda Lal (A1) and Bahadur (A2) while Criminal appeal no.709 of 1987 has been filed by Kamlesh (A1) and Suresh (A2) against the judgement and order dated 6.2.1987 passed by 8th Additional District Judge, Kanpur Nagar in S.T. No.479 of 1985 (State vs. Cheda Lal and 3 others) by which all the appellants in the aforesaid two criminal appeals were convicted and sentenced to imprisonment for life u/s 302 IPC.
Record of these two appeals indicates that Cheda Lal (A1) in criminal appeal no. 465 of 1987 and Kamlesh (A1) in Criminal Appeal no. 709 of 1987 have died during the pendency of these two appeals and criminal appeal nos. 465 of 1987 and 709 of 1987 were dismissed as abated qua Cheda Lal (A1) and Kamlesh (A1) by orders of this Court dated 9.4.2015 and 20.12.2016.
The facts of the case are that on 31.8.85 the deceased had gone to his agricultural plot in village Jadopur in which crop of Sanai was standing at the time of occurrence. The accused are residents of village Karuee (Kathara), which is at a distance of 1 km. from the plae of incident. Bishram Singh (P.W.1) son of the deceased and accused Bahadur had been grazing their cattle in Usar (Barren Land) near the Sanai crop of the deceased Misri Lal. Cows and goats of Bahadur entered the Sanai field and started damaging the crop by grazing on which the deceased interrupted and asked Bahadur to look after his cattle which had been grazing in his field. On this accused Bahadur growled to which the deceased took an exception and slapped Bahadur twice or thrice and drove out his cattle. Feeling incensed the accused Bahadur went to his house and at about 4 pm on the same day, i.e. 31.8.85, he alongwith his father Chheda Lal armed with Lathis and brothers Kamlesh and Suresh carrying Pharsaas emergd at the Sanai field of the deceased. Chheda Lal accused resorted to exhortation whereupon all the accused mounted an assault on Misri Lal with their weapons. Misri Lal dropped dead in his field as a result of the injuries sustained by him. An alarm was raised by Bishram Singh which attracted witnesses Ram Gopal, Mahesh, Tahsilee and many others at the scene of offence who witnessed the commission of crime. On the exhortation of the witnesses the accused took to their heels and made good their escape. It is alleged that there had been a dispute with the accused over the agricultural land for the last one year which was compromised but Chheda Lal harbored ill feelings against the deceased. Bishram Singh got scribed the report Ex.Ka.1 by Ram Sanjiwan Singh and took it to the Police Station Bidhunoo were on the basis of the written report Ex.Ka.1, Chik F.I.R. Ex.Ka.3 was prepared at 6.15 P.M.on the same day and an entry of the crime was made at serial no.29 of the G.D. Ex.Ka.4 maintained at the police station. S.I. Ram Raghubir Singh P.W.11 in whose presence the case was registered and to whom the responsibility of investigation was entrusted, recorded the statement of Bishram Singh and Head Constable Mahipal Singh at 7.20 pm at the police station and then proceeded to the scene of offence alongwith Bishram Singh and police force. He prepared inquest memo Ex.Ka.5, sketch of dead body approximately showing seats of the injuries Ex.Ka.6. He prepared Challan lash Ex.Ka.7, wrote letters Ex.Ka.8 and Ka.9 to the Chief Medical Officer and Reserve Inspector, Police Lines for arranging postmortem on the dead body of the deceased which was handed over to constables Devendra Singh P.W.9 and Brijendra Singh P.W.8 for being taken to the mortuary. He gathered from the place of offence blood stained and plain earth and prepared recovery memo Ex.Ka.11. He recovered one blood stained Angaucha which was lying near the dead body under siezure memo Ex.Ka.12. He seized the roots of Sanai crop grazed by the cattle under memo Ex.Ka.13 and gave them in the Superdgi of Jai Narain P.W.2. At this stage the then Station Officer, Ram Kumar Varma P.W.13 came at the scene of offence in the night of 31.8.85 itself and took the responsibility of investigation upon himself. He recorded the statement of Jai Narain P.W.2 and Ram Gopal P.W.4 on the same night. In the morning on 1.9.83 he prepared site plan Ex.Ka.15 showing the topography of the place of offence. Thereafter, accompanied by S.I. Ram Raghubir Singh P.W.1 and police force he proceeded to the house of accused in their search and recovered blood stained lathi and blood stained pharsa from the eastern side of the house of the accused, lying hidden under a heap of cowdung cakes stored therein, in the presence of Ram Kali wife of Chheda Lal and public witnesses Surjan Singh P.W.10 and Har Mohan Singh P.W.12. The siezure memo Ex.Ka.14 was written by Ram Raghubir Singh P.W.11 on the dictation of the P.W.13- S.O. Ram Kumar Verma upon which thumb mark of Ramkali and signatures of public witnesses were obtained. Raw cotton was placed on the blood stained marks on the incriminating articles Pharsa and Lathi Ex.I and Lathi Ex.II. The incriminating articles and earth both plain and blood stained were sent for chemical examination. Blood stained angaucha, dhoti and baniyan (worn by the deceased at the time of incident) were also sent for chemical examination. Chemical Examiner's report is Ex.Ka.21. As per chemical examination's report, disintegrated blood stains were found on the earth, pharsa, dhoti and baniyan.
The autopsy on the dead body of the deceased was conducted by Dr. R.C. Joshi, P.W.5 on 1.9.85. The postmortem report was prepared by him as Ex.Ka.2. The following ante-mortem injuries were found on the person of the deceased :-
(1) Incised wound middle of Head near hair tuft (top) 7cm X 1cm X bone deep.
(2) Incised wound over the right side of heard 3cm X 1cm X scalp deep.
(3) Incised wound over the top and back of right shoulder 9cm X 2cm X bone deep. Right scapula bone cut.
(4) Incised wound left axcillary fold 1cm X 0.5cm X muscle deep.
(5) Contusion over the right side abdomen 7cm X 2cm on disection liver lacerated at places. 9Th & 10th ribs fractured.
Abdominal cavity contained 500ml. Fluid and clotted blood.
(6) Contusion left side chest 13cm X 2cm over the nipple left side to the umblicus area one disection 5th, 7th, 6th, 8th and 9th ribs fractured. Left side chest cavity contained 1000ml. Fluid and clotted blood.
On internal examination the doctor found 2 ozs. Digested food material in the stomach, liver was found lacerated. Rigor Mortis had passed from upper half part of the body and was present in the half lower part. In the opinion of the autopsy surgeon death had occurred on account of shock and haemorrhage as a result of ante-mortem injuries. The approximate time of death was narrated by the autopsy surgeon as one day back.
After completing the necessary formalities and interrogating the concerned persons, the I.O. submitted the chargesheet Ex.Ka.16 on 19.9.85 against the accused persons.
The accused appellants were thereafter committed for trial to the Court of Sessions Judge Kanpur Nagar where their case was registered as S.T. No. 479 of 1985 and made over for trial from there to the Court of Additional District Judge, Kanpur Nagar, who on the basis of the material on record, framed charge u/s 302 IPC against the accused appellants who abjured the charge and claimed trial.
The prosecution in order to prove its case against the accused appellants examined as many as 13 witnesses. Bishram Singh P.W.1, Jai Narain P.W.3, Mahesh P.W.3, Ram Gopal P.W.4 and Tahsilee P.W.5 are eye witnesses of the occurrence. It is alleged that the incident had taken place in their full view. P.W.8 Brijendra Singh and P.W.9 Devendra Bahadur are persons who had taken the dead body of the deceased Misri Lal for autopsy. Dr. R.C. Joshi P.W.5 is the Autopsy Surgeon and has been examined to prove the postmortem report. Mahipal Singh P.W.7 is the Head Moharrir. He has been examined to prove the chik F.I.R. Ex.Ka.3 and the G.D.Entry Ex.Ka.4. P.W.11 Ram Raghubir Singh had initially investigated the case. He has been examined to prove the inquest memo, challan lash etc.. P.W.10 Surjan Singh and P.W.12 Har Mohan Singh were the witnesses to the recovery of incriminating articles from the house of the accused. It is alleged that the incriminating articles had been seized in their presence. P.W.13 Ram Kumar Varma was then Station Offier of P.S. Bidhunoo. He had investigated the case. He in his evidence had narrated the various steps taken and the documents prepared by him during the course of investigation. He also proved the statement of witnesses Mahesh (Ex.Ka.17), Ram Gopal (Ex.Ka.18), Tahsilee (Ex.Ka.19), Har Mohan Singh (Ex.Ka.20) recorded by him under Section 161 Cr.P.C.
The accused in their statements recorded u/s 313 Cr.P.C., stated that the agricultural fields in Jadopur were the joint property of the deceased Misri Lal, accused Chheda Lal and Pattar. There was no field exclusively belonging to the deceased in village Jadopur. They further alleged false implication due to party fiction. The accused examined Pattar as D.W.1 who proved the certified copies of the Khatauni pertaining to the agricultural holdings of village Jadopur. He also deposed that the entire agricultural holdings in village Jadopur were joint holdings of deceased Misri Lal, Chheda Lal and himself. He denied that any partition had taken place between joint co-sharers. He also deposed that no other land stood exclusively in the name of the deceased Misri Lal in village Jadopur. He also denied that the incident had taken place in the village Jadopur. The learned 8th Additional District and Sessions Judge after considering the submissions advanced by learned counsel for the parties, by the impugned judgement and order, convicted accused u/s 302 IPC and awarded life imprisonment to each one and hence, this appeal.
It is submitted by learned counsel for the appellants that out of four witnesses of fact produced by the prosecution during the trial to prove the charge framed against the appellants, P.W.3 Mahesh and P.W.4 Ram Gopal having failed to support the prosecution case and declared hostile, the learned trial judge committed a patent error of law in convicting the appellants on the basis of the testimonies of two highly interested witnesses P.W.1 Bishram Singh and P.W.2 Jai Narain, both sons of the deceased without seeking any corroboration from other particulars of evidence. He next submitted that apart from the highly interested testimonies of P.W.1 Bishram Singh and P.W.2 Jai Narain, there is no other evidence on record indicating that the occurrence had taken place at the time, place and in the manner as alleged in the F.I.R. and later testified by the two witnesses of fact. He lastly submitted that the prosecution having failed to prove its case against the appellants beyond all reasonable doubts, neither the recorded conviction of the appellants, nor the sentence awarded to them can be sustained and are liable to be set aside.
Per contra Sri J.K. Upadhyay submitted that there is no law which prohibits taking into consideration the evidence of the relatives for the purpose of convicting the accused in case the evidence of such witnesses is found to be correct and cogent by the Court. The evidence of P.W.1 Bishram Singh and P.W.2 Jai Narain remained throughout consistent and clinching, leaving no room to doubt their claim of being the eye-witnesses of the occurrence. The place of occurrence was fully proved by the two witnesses of fact as well as by the investigating officer in this case P.W.11- Ram Raghubir Singh who had collected blood stained and plain earth from the place of occurrence and also from the site plan of the occurrence Ex.Ka.15 which was prepared by the investigating officer of the case at the instance of P.W.1 Bishram Singh and with regard to correctness thereof, no objection has been filed by any of the parties. The weapons used in the commission of the crime were recovered from the house of the deceased appellant Chheda Lal in the presence of his wife and other independent witnesses. He lastly submitted that this appeal lacks merit and is liable to be dismissed.
We have very carefully considered the submissions made by learned counsel for the appellants as well as by Sri J.K. Upadhyay, learned A.G.A. and have perused the lower court record.
The question which arises for our consideration in this appeal is that whether the prosecution has been able to prove its case against the appellants beyond all reasonable doubts or not.
Record shows that the prosecution in order to prove that the incident had taken place at the time, manner and place spelt out in the F.I.R. and that the appellants were the perpetrators of the crime , the prosecution had examined four eye witnesses namely P.W. 1, Bishram Singh, P.W.2, Jai Narain, P.W.3, Mahesh and P.W.4, Ram Gopal. It is true that P.W. 3 and 4 were declared hostile when they deposed in their examination-in-chief that they had arrived at the place of incident after the occurrence had taken place.
However, from the perusal of their examination-in-chief, it is established that they have also corroborated the prosecution case that the incident had taken place in the field of the deceased Mishri Lal. Their testimonies as far as the same pertain to the place of incident can be used for the purpose of corroborating the evidence of P.W.1 and P.W.2. As regards the testimony of P.W.1 Bishram Singh, after going through it minutely, we have found that he in his evidence has fully supported the prosecution case as spelt out in the F.I.R. Similarly, P.W.2 Jai Narain has fully corroborated the testimony of P.W.1 Bishram Singh in all material particulars pertaining to the incident namely, time, manner, place of occurrence and the identity of the accused as stated in the F.I.R. Both P.W.
1 and P.W.2 were subjected to a grueling cross examination by the defence counsel but they have stuck to the evidence tendered by them in their examination-in-chief and the defence counsel has failed to extract anything out of them which may give even a remote indication that they are unreliable or untrustworthy witness.
Now, coming to the attack made by learned counsel for the appellants with regard to the admissibility of evidence of P.W.1 and P.W.2 on the ground of their being the sons of the deceased and hence highly interested in securing the conviction of the accused appellants, we find that there is no force in the aforesaid argument of the learned counsel for the appellants also. The question with regard to the admissibility of witnesses who are relatives of the deceased has been time and again examined by the Apex Court and the issue is no longer res integra and stands settled by a catena of decisions of the Apex Court. The law regarding the admissibility of related witnesses is very clear if the Court after a cautious and careful appraisal of the evidence of a person, who is related to the deceased, finds that he has given a correct and cogent description of the incident, then the evidence of such witness is not liable to be discarded merely on account of his being a relative of the deceased.
We stand fortified by the following judgements of the Apex Court :-
In the case of Waman and others Vs. State of Maharashtra 2011 Crl. L.J. 4827, it has been observed by Hon'ble Apex Court that merely because witnesses are related to the complainant or deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being relative cannot by itself discard their evidence. In other words, relationship is not a factor to affect credibility of witness and Courts have to scrutinize their evidence meticulously with care. It has also been observed that if testimony of the related eyewitnesses, close relative of the deceased persons is found to be convincing and trustworthy about incident, the same cannot be disbelieved merely because of some omission in the statement under Section 161 Cr.P.C. and evidence before the Court. The fact that some statements of one of the eyewitnesses were not noted by the police cannot be a basis to reject the evidence.
In Balraje @ Trimbak Vs. State of Maharashtra, (2010) 6 SCC 673; (2010 AIR SCW 3707), this Court held that mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eye-witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed toward the accused. After saying so, Apex Court held that if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same.
We have already held, after a careful analysis of P.W.1 and P.W.2 , that the evidence of P.W.1 and P.W.2 is throughout consistent and unimpeachable and thus, we cannot exclude their evidence from consideration merely on the ground of their being relatives of the deceased.
According to the prosecution case and the evidence led during the trial, the deceased had been attacked by all the four accused who were armed with lathis and farsa. As regards the surviving appellants before us, Bahadur (A2) in Criminal Appeal No. 465 of 1987 and Suresh (A2) in Criminal Appeal No. 709 of 1987, they have been assigned lathi and farsa respectively. The medical evidence on record which comprises of the postmortem report of the deceased Ex.Ka.2 and the statement of P.W.5 Dr.
R.C. Joshi, who had performed the autopsy on the body of the deceased unequivocally indicates that anti-mortem injuries found on the deceased's body could have been inflicted by the weapons assigned to the surviving appellants.
Learned counsel for the appellants has also contended that according to the report of the forensic lab, no human blood was found on the pieces of pharsa allegedly recovered from the house of Chheda Lal (A1) in Criminal Appeal No.465 of 1987 in presence of P.W.6, P.W.10 and P.W.12, the witnesses of the recovery. Morevoer, from the report of Vidhi Vigyan Prayogshala-Ex.Ka.21, it is proved that blood was found on the pieces of pharsa recovered from the house of accused appellant Chheda Lal.
It has also been argued that the failure of the forensic expert to opine that the blood found on the pieces of pharsa was not human blood, in our opinion, would not also in any manner adversely affect the prosecution case.
It is also argued that P.W.6, P.W.10 and P.W.12 having failed to support the prosecution case and declared hostile and since the prosecution has failed to connect the recovered weapons with the crime by leading any evidence, it creates a doubt about the whole prosecution story and the appellants are entitled to benefit of doubt.
P.W.10 Surjan Singh, the eye-witness of recovery of crime weapons made from the house of Chheda Lal, had denied in his evidence that the recovery of crime weapons was made before him, but he had admitted his presence at the place of recovery and having seen the investigating officer of the case coming out from the house of Chheda Lal with a blood stained lathi and pharsa and that the aforesaid weapons were sealed in his presence and recovery memo was prepared on which he has put his signature. He has merely denied his presence inside the house from where the crime weapon was recovered. Thus, even from his evidence, the recovery of weapons from the house of Chheda Lal is fully established.
Hence, we do not find any merit in the aforesaid submission of learned counsel for the appellants also. In the background of such clinching direct evidence on record, which clearly establishes the complicity of the surviving appellants in committing the murder of the deceased, we cannot doubt the prosecution case merely on account of some irregularities committed by the investigating officer during the investigation.
Thus upon a wholesome consideration of the facts of the case, attending circumstances and the evidence on record, we do not find that learned trial judge has committed any illegality in convicting the appellants u/s 302 IPC for having committed the murder of Mishri Lal and awarding the sentence of life imprisonment to them.
Both the appeals lack merit and are accordingly dismissed.
The Bahadur (A2) in Criminal Appeal No. 465 of 1987 and Suresh (A2) in Criminal Appeal No. 709 of 1987 are on bail. Their bail bonds are cancelled and sureties discharged. Chief Metropolitan Magistrate, Kanpur Nagar is directed to take them in custody and send them to jail for serving out the remaining part of their sentences and submit his report in this regard to the Registrar General of this Court.
Office is directed to transmit a copy of this judgement and order to Court concerned/Chief Metropolitan Magistrate, Kanpur Nagar for necessary follow up action.
However, there shall be no order as to costs.
Order Date :- 26.4.2019 Shalini