Judgment reserved on : 13.08.2018 Judgment delivered on : 13.09.2018
Case :- CRIMINAL APPEAL No. - 1513 of 1983
Appellant :- Dukhran and others Respondent :- State Of U.P.
Counsel for Appellant :- Virendra Saran,P.K.Giri,Vinay Saran, P.K. Mishra
Counsel for Respondent :- A.G.A., Rishi Chaddha
Hon'ble Sudhir Agarwal,J. Hon'ble Om Prakash-VII,J.
(By Om Prakash-VII, J.)
1. This criminal appeal has been preferred by appellants Dukharan, Raj Kumar, Bechu alias Satya Narain, Lal Dhani, Harish Chand and Smt. Senhwa against judgment and order dated 13.06.1983 passed by Additional Sessions Judge, Mirzapur in Sessions Trial No.200 of 1981 (State Versus Dukhran and others) convicting and sentencing all appellants for offence under section 120-B IPC to undergo imprisonment for life, appellants Dukharan and Raj Kumar for offence under section 302 read with 149 IPC to undergo imprisonment for life and for offence under section 148 IPC to undergo 2 years rigorous imprisonment, appellants Bechu alias Satya Narain, Lal Dhani, Harish Chand and Smt. Senhwa for offence under section 302 read with section 149 IPC to undergo imprisonment for life and for offence under section 147 IPC to undergo 1 year rigorous imprisonment. All sentences were directed to run concurrently.
2. It was reported that during pendency of appeal, appellants-1, 2 and 5 namely, Dukharan, Raj Kumar and Harish Chand have died, therefore, vide order dated 12.05.2014, appeal filed on their behalf has been abated. Thus, appeal is being decided only in respect of appellants-3, 4 and 6 namely, Bechu alias Satya Narain, Lal Dhani and Smt. Senhwa.
3. Prosecution story, in brief, as unfolded in written report (Ex.Ka.1) are as follows :
4. Informant (P.W.1) Shiv Shanker Giri resident of village Parsia, Police Station Pannoo Ganj, the then District Mirzapur (presently District Sonbhadra), moved a written report at police station concerned mentioning therein that on 24.03.1981 at about 10:30 A.M., Ram Pyare Giri, uncle of informant was returning from village Hardia to his house and on way, accused Smt. Senhwa met him, who stopped Ram Pyare Giri and started talking to him. In the meantime, accused Dukhran Giri son of Jairam, Bechu alias Satya Narain son of Raj Kunwar, Raj Kunwar son of Jairam, Lal Dhani and Harish Chand sons of Tapeshwari residents of Village Parsia, Police Station Pannoo Ganj armed with lathi, barchcha and gandasa ran towards Ram Pyare Giri to beat him, who tried to save his life, but accused persons surrounded Ram Pyare Giri and started beating him. Ram Pyare fell down due to injuries caused to him, then accused Raj Kunwar told that now he will die, work is done, lets run away. In the meantime, witnesses Sadhu Harijan, Sovin Harijan and Jai Prakash Giri also reached there and witnessed the incident. Informant was also present there and saw the incident. Persons working in nearby field also chased accused persons raising alarm, but accused persons could not be apprehended and fled away. It is also mentioned that accused Krishna Deo alias Jhala had come to village in morning at the house of accused Ram Kunwar and after making plan to commit offence, had gone elsewhere and after his leaving village, about two hours later, this incident took place. It is also mentioned in written report that present incident took place due to conspiracy hatched by accused Krishna Dev alias Jhala. In this incident, several injuries were received by uncle of informant on his leg as well as on body. Informant, taking his uncle in injured condition on a tractor, reached at police station concerned for information and necessary action.
5. Written report was scribed by informant himself. On the basis of written report (Ex.Ka.-1), Chik F.I.R. (Ex.Ka.-12) was registered at police station concerned on 24.03.1981 at 12:30 P.M. at crime no.35 of 1981 under section 147, 148, 324, 325, 323, 307, 120-B IPC against accused-persons named in written report. Entry was also made in general diary, which is Ex.Ka.-13. Thereafter, investigation started.
6. Since injured was lying in front of police station concerned, investigating officer reached the place where injured (deceased) was kept and recorded his statement under section 161 Cr.P.C. recording statement of informant. Thereafter, deceased, in injured condition, was sent for treatment on the basis of majroobi chhithi through police constables. Initially he was taken to Ramgarh P.H.C., but was immediately referred to Government hospital situated at Robertsganj, but on the way, at Ramgarh Turn, he died. Information was given by informant (P.W.1) again to concerned police, which is Ex.Ka.-2 and on this basis, case was converted into offence under section 302 IPC also. It also appears that investigating officer reached the place where dead body of deceased was lying and prepared inquest report (Ex.Ka.-3), Form No.33 (Ex.Ka.-5), Form No.13 (Ex.Ka.- 6), Photo Nash (Ex.Ka.-7), Letter to R.I. (Ex. Ka.-5), Letter to S.O. concerned (Ex.Ka.-8), Majroobi Chhitthi (Ex.Ka.-9), Nakal Chik Report (Ex.Ka.-10), Sample Seal (Ex.Ka.-11) and also other police papers. Investigating officer also took blood stained and plain earth from the place of occurrence preparing memo Ex.Ka.-
17. Dead body was kept in a sealed cloth and sample seal was also prepared. Entry made in general diary regarding information given by informant through Ex.Ka.-2 is Ex.Ka.-14. Case was also converted through this G.D. under section 302 IPC. Dead body of deceased was handed over to constables along with relevant police papers to carry the same to mortuary for postmortem.
7. Autopsy on body of deceased was conducted on 25.03.1981 at 1 P.M. at mortuary brought by constables of police station concerned.
8. On general examination, age of deceased was found 35 years. Probable time of death was about one day. Deceased was an average built, eyes and mouth were semi opened. Rigor mortis was present in both limbs, but absent in neck.
9. On examination of body, following ante mortem injuries were found on person of deceased :
(i) Contusion 3.5. cm. x 2 cm. on back of left forearm 8 cm. above wrist.
(ii) Contused abrasion 5 cm. x 3 cm. on back of left palm.
(iii) Lacerated wound 1 cm. x 0.5 cm. x 0.5 cm. deep at the tip of left thumb.
(iv) Contusion 6 cm. x 2 cm. on front of right forearm 7 cm. below elbow.
(v) Contusion 7 cm. x 3 cm. on back of right palm.
(vi) Lacerated wound 1 cm. x 0.5 cm. x bone deep in front and middle of right middle finger with fracture under lying bone.
(vii) Contusion 7 cm. x 2 cm. on left side of back 12 cm. below shoulder joint.
(viii) Contusion 6 cm. x 2 cm. on right side of back 6 cm. below scapula.
(ix) Lacerated wound 3.5 cm. x 2 cm. x bone deep on the medial side of left leg 15 cm. above medial malleolus with compound fracture of both bone tibia and fibula. A piece of tibia bone (2 cm.) had come out through the wound.
(x) Incised wound 1 cm. x 0.7 cm. x 5 cm. deep on lateral side of left leg 15 cm. below knee. Margins are clean cut.
(xi) Incised wound 1.5 cm. x 1 cm. x 3 cm. deep on outer side of right leg 8 cm. below knee. Margins are clean cut.
(xii) Incised wound 2 cm. x 1 cm. x 4 cm. deep on outer side of right leg 6 cm. below injury no. (xi). Some of underlying muscle fibus has come out through the wound. Margins were clean cut.
(xiii) Incised wound 1 cm. x 0.7 cm. x 4 cm. deep on outer side of right leg 5 cm. below injury no. (xii). Some muscle fibus has come out through the wound. Margins were clean cut.
(xiv) Incised wound 1 cm. x 0.7 cm. x 5 cm. deep on medial side of right leg 15 cm. above medial malleolus. Its margins were clean cut.
(xv) Contusion 8 cm. x 5 cm. in front of right knee with fracture of patella bone.
(xvi) Contused swelling 15 cm. x 10 cm. on back and outer side of right leg with fracture of both tibia and fibula bones.
(xvii) Lacerated wound 1 cm. x 1 cm. x bone deep on the outer side (dorsum) of right foot 6 cm. below outer malleolus.
10. On internal examination of dead body, lungs were found congested and stomach was found empty. Small and large intestines both were filled with faecal matter. Cause of death of deceased was shown in the postmortem report (Ex.Ka.-4) as shock as a combined result of all injuries. Nine police papers were also returned to constable along with postmortem report.
11. Since deceased died on the way while he was being taken for treatment, hence statement of deceased recorded under section 161 Cr.P.C. at police station concerned, when he was taken by informant in injured condition, was treated by Court below as dying declaration (Ex.Ka.-15).
12. Investigating officer visited the place of occurrence and prepared Site Plan (Ex.Ka.-16) and after completing entire formalities and interrogating the witnesses, submitted charge- sheet (Ex.Ka.-18 & 19) against accused-persons.
13. Magistrate concerned took cognizance in the matter and case, being exclusively triable by Sessions Court, was committed to Court of Sessions.
14. Accused appeared and Trial Court framed charges against accused Bechu alias Satya Narain, Lal Dhani, Harish Chand and Smt. Senhwa for offence under Sections 147, 302 read with 149 IPC and against accused Dukharan, Raj Kumar, Bechu alias Satya Narain, Lal Dhani, Harish Chand, Smt. Senhwa and Krishan Dev alias Jhala for offence under section 120-B IPC on 02.12.1981 and also against accused Dukharan and Raj Kunwar charges were framed for offence under Sections 148 and 302 read with 149 IPC.
15. Accused denied charges framed against them and pleading not guilty claimed to be tried.
16. In order to prove its case, prosecution examined total eight witnesses. Out of them, P.W.1 is Shiv Shanker Giri, the informant, P.W.2 Sadhu, an eyewitness account, P.W.3 Dr. V. Singh, who conducted postmortem on body of deceased, P.W.4 constable Kapil Deo Singh, who carried deceased in injured condition for medical treatment at Ram Garh and also on the basis of reference proceeded along with injured to Government Hospital, Robertsganj, P.W.5 H.C. Ali Haider, chik writer, who has also made entry in G.D. regarding information received about death of deceased, P.W.6 Jai Prakash, an eyewitness account, P.W.7 S.I. Harish Chandra, who started investigation and also recorded statement of informant and injured at police station concerned immediately. This witness has also proved dying declaration of deceased (Ex.Ka.-15) and has also prepared inquest report and other police papers. P.W.8 is Prabhu Nath Ojha, the then Station Officer of concerned Police Station, who has completed investigation and submitted charge-sheet (Ex.Ka.- 18 and 19).
17. On conclusion of prosecution evidence, statement of accused-persons were recorded under section 313 Cr.P.C.
18. Accused-appellant Bechu alias Satya Narain in his statement recorded under section 313 Cr.P.C. has denied prosecution case and enmity said to be existed between parties. Presence of witnesses on spot was also denied by him. Availability of blood at the place of occurrence was also said to be false. Deceased was not carried to police station on tractor. Preparation of chik (Ex.Ka.-1) and information (Ex.Ka.-2) was also stated to be false. It was also stated that inquest report and other police papers have been falsely prepared. Recording of statement under section 161 Cr.P.C. of deceased before his death, which was proved by witnesses as Ex.Ka.-15, was also said to be false. Site Plan and Memo Ex.Ka.-17 were also said to be prepared falsely. Charge-sheets were submitted on insufficient ground. Statement made by doctor, who conducted postmortem of deceased, was said to be false. It was specifically stated that witnesses have made false statement before the Court. Case was started against him due to enmity. Deceased was a habitual offender and he was done to death in wee hours of night itself. None has seen the incident. Prosecution was launched on the basis of false facts.
19. Accused-appellant Lal Dhani has narrated similar facts in his statement recorded under section 313 Cr.P.C. He has specifically stated that his father had started a civil proceedings in Panchayat against brother of co-accused Kishna Deo alias Jhala and he has no relation with co-accused Kishna Deo alias Jhala.
20. Accused-appellant Smt. Senhwa has also stated similar facts in regard to prosecution case and evidence, as stated by Bechu alias Satya Narain. She has specifically stated that prior to this incident, Tilakdhari, Rampyare Giri, Sobran and Shiv Shanker were forcibly raising a wall in front of door of her house on her land. She made complaint of this fact to S.D.M. concerned. Local police has also inspected the place where construction was made. Son of her husband's brother had lodged a first information report regarding theft under section 379 IPC against witness Jai Prakash and due to that reason he has falsely stated before the Court.
21. Accused-appellants in their defence have examined
D.W.1 Lallan Rai, who has proved Ex.Kha.-2 and F.I.R. Accused-appellants in their defence have also filed and proved following documents :
(i) Certified copy of statement (Ex.Kha.1)
(ii) Certified copy of statement of Raj Kunwar (Ex.Kha.-3)
(iii) Certified copy of application (Ex.Kha.-4)
(iv) Certified copy of F.I.R. (Ex.Kha.-5)
(v) Certified copy of application moved to police station concerned relating to Sessions Trial No.2 of 1980 (Ex.Kha.-6)
(vi) Certified copy of report of Advocate Commissioner relating to Suit No.59 of 1979 (Ex.Kha.-7)
(vii) Certified copy of order dated 12.12.1979 passed by Special Judicial Magistrate, Robertsganj in Case No.59 of 1979.
22. Trial Court, having heard learned counsel for parties and going through entire record, vide impugned judgment and order, convicted and sentenced accused-appellants as above. Hence, feeling aggrieved with said judgment and order, accused- appellants filed this appeal.
23. Heard Sri Vinay Saran, Advocate assisted by Sri P.K. Mishra, Advocate for appellants, Sri Rishi Chaddha, learned A.G.A. for State and perused entire record.
24. Assailing the findings recorded by Trial Court, learned counsel appearing for appellants argued that prosecution was not able to prove its case beyond reasonable doubt. Witnesses examined as eyewitness account actually were not present at the place of occurrence nor they have seen incident. If entire prosecution case is taken into consideration, they can be placed in category of chance witnesses. Their statement are not supported by medical evidence. At this juncture, counsel for appellants referred to medical evidence and also contents of F.I.R. as well as statement of fact witnesses and argued that at no point of time, statement of deceased under section 161 Cr.P.C. had been recorded. When deceased died, statement was prepared by concerned investigating officer malafidely. It was further argued that it appears improbable and unbelievable that although informant had information about exact location of deceased, but he was searching him in many villages. Referring to statement of P.W.2 and P.W.3, it was also argued that it also appears improbable that these witnesses have recognized deceased at the place of occurrence only on the basis of his langot (underwear). Statement said to have been recorded under section 161 Cr.P.C. cannot be read in evidence. Trial Court findings on this issue are perverse. Learned counsel for appellants also referred to provisions of Regulation 115 of U.P. Police Regulations and contended that precautionary measures required before recording statement under section 161 Cr.P.C. have not been followed. Referring to Site Plan, it was further contended that statement of prosecution witnesses are contrary to facts mentioned in Site Plan. Injuries were not on vital part of body, hence offence under section 302 IPC is not attracted against appellants. No specific role has been assigned to appellants nor prosecution was able to prove specific role played by each and every appellant. It was next contended that dead body of deceased was lying in field and incident took place in wee hours of night. Taking dead body from the place of occurrence, case was lodged on the basis of false facts. Motive and enmity both have not been proved and are not sufficient to commit present offence by appellants. It was next contended that if P.W.1 was aware that deceased had gone to Hardia then why he was searching him in other villages. This fact also creates doubt regarding truthfulness of prosecution story. It was next contended that prosecution was not able to prove date, time and place of occurrence. First information report is delayed as special report was sent in this matter belatedly, which itself indicates that prosecution case was cooked up after due consultation and an afterthough. There are major contradictions in statement of prosecution witnesses on material point. Referring to role attributed to appellant Smt. Senhwa, it was further submitted that no specific role has been assigned to her. Findings recorded by Trial Court on all issues are perverse. At the most, it is a case under section 325 IPC.
25. On other hand, learned A.G.A. argued that F.I.R. was lodged promptly. Injured was taken to Ram Garh Hospital for treatment on the basis of majroobi chhithi. When deceased was referred to Government Hospital, Robertsganj, on the way, he died at Ram Garh Turn. Informant immediately informed this fact to concerned police. It was further argued that at initial stage itself, investigating officer had recorded statement of informant and injured (deceased) at police station concerned and thereafter deceased died. Hence, statement of deceased recorded under section 161 Cr.P.C. could be read in evidence. Witnesses accompanying the deceased were present at police station and statement of deceased was recorded in their presence, therefore, dying declaration made by injured (deceased) cannot be disbelieved on the ground of non-adherence of provisions of Regulation 115 of U.P. Police Regulations. It was next contended that prosecution case is supported by medical evidence. Presence of all fact witnesses and eyewitness accounts on spot cannot be doubted. They have clarified the reason on account of which they were present on spot. There is no major contradiction in prosecution evidence on material point. Thus, findings recorded by Trial Court in impugned judgment and order are in accordance with law and evidence. This case clearly comes under the Provision of Section 302 IPC. Several injuries have been caused to deceased, which clearly reflect intention of accused-appellants to commit such offence. There is no illegality or infirmity in the findings recorded by Trial Court.
26. We have considered the rival submissions advanced by learned counsel for parties and have gone through entire record.
27. In this matter, as is evident from record, incident is said to have taken place at 10:30 A.M. when deceased was returning from village Hardia to his native village Parsia. Prosecution case is that deceased had gone to village Hardia informing his family members. Agricultural land belonged to deceased was also situated in village Hardia. Harvesting process in both villages i.e. Hardia and Parsia was going on. Initially, deceased was taken in injured condition on a tractor belonged to one Ram Dular Chaubey to police station concerned to lodge F.I.R. As per prosecution version, investigating officer recorded statement of informant and injured (deceased) under section 161 Cr.P.C. immediately and referred the injured for treatment, who died on the way. Thereafter, the case was converted into offence under section 302 IPC. Prosecution case is also that P.W.1 informant was returning from village Hardia after searching deceased and was coming behind deceased about 100 - 150 paces. P.W.2 Sadhu was returning from village Parsia to Hardia. Other fact witness P.W.6 Jai Prakash also claimed his presence on spot, as he was also returning to his village Parsia from village Chittvishram. Prosecution case is also that when deceased reached in between Hardia and Parsia in field of Vas Kumar, accused-appellant Sehnwa stopped him and started talking to him and in the meantime all other accused armed with weapons assigned to them gathered there and started beating him. Deceased tried to save him, but he was surrounded by accused-persons. Witnesses also reached there, but accused-persons causing injuries to deceased, left the place of occurrence. Postmortem report indicates that cause of death of deceased was due to effect of all ante-mortem injuries. No specific enmity between parties has been shown in the first information report, but only this fact has been mentioned that for committing the present offence, co- accused Krishan Dev alias Jhala hatched conspiracy. Trial Court has treated the statement recorded under section 161 Cr.P.C. of injured (deceased) as dying declaration.
28. Thus, on the basis of above factual backdrop, first of all we proceed to deal with question raised by learned counsel appearing for accused-appellants on point of first information report.
29. As has been discussed here-in-above, first information report was lodged on 24.3.1981 at 12:30 hours itself on the basis of written report (Ex.Ka.-1) moved by P.W.1 Shiv Shanker Giri. Offence is said to have been committed on 24.03.1981 at 10:30 hours, meaning thereby incident took place in day hours. As has been discussed here-in-above, deceased had initially received injuries said to have been caused by accused-appellants and he was taken to police station on a tractor. Written report is said to have been submitted by P.W.1. Thus, time gap between the incident and lodging of first information report is of about two hours. Distance is about four miles. Informant and injured (deceased) both were interrogated by investigating officer at police station concerned immediately after registering case. In this matter, special report has been sent after a gap of two days. Keeping in view entire facts and circumstances of the case, manner of incident and steps taken by informant to carry injured to police station concerned, it can be held that first information report was lodged promptly. Two hours' time could take place in preparing written report and going to police station, thus first information report is not delayed. Existence of first information report can also not be doubted on this basis that special report has been sent belatedly. There is every possibility that Dak runner would have left police station before registering of first information report in this matter. There may be laches on part of investigating officer / concerned police, which cannot be formed basis to doubt prosecution case. When deceased was being taken to Government Hospital, Robertsganj, he died on the way. It is also evident from record that informant immediately rushed to police station and information to this extent was also given to concerned police. Thereafter, case was converted into offence punishable under section 302 IPC. Investigating officer, who had gone to place of occurrence after recording statement of injured and informant, on information, immediately rushed to place (Ram Garh Turn) where dead body of deceased was lying. Inquest report and other police papers prepared in this case also reveal that these documents have been prepared at place where dead body of deceased was lying. Crime number and details of offence have been mentioned in it as well as in entire papers. Thus, on this ground also, existence of first information report at the time mentioned in it appears probable and believable. It may be mentioned here that in a heinous offence, in the facts and circumstances of present case, if there is two hours delay in lodging first information report, then on that ground only, prosecution case cannot be doubted. Submission advanced by learned counsel for appellants in this respect is not acceptable.
30. So far as recording of statement under section 161 Cr.P.C. of injured (deceased) is concerned, which was later on treated as dying declaration by prosecution, it was submitted by learned counsel for appellants that in examination-in-chief of P.W.1, nothing was mentioned to disclose this fact on first day and on next day this fact was disclosed when P.W.1 was examined again. Statement of P.W.1 in light of submissions raised by learned counsel for appellant if minutely perused, examination-in-chief of P.W.1 was not concluded on first day. If some facts which were not stated by witness on first day, but were stated on next day by him, the truthfulness of statement recorded under section 161 Cr.P.C. of deceased cannot be doubted. Deceased died on the way when he was taken for treatment. Thus, statement recorded under section 161 Cr.P.C. can be treated as dying declaration. Only requirement under law is that statement must fulfills all requirements of dying declaration. If in light of submission raised by learned counsel for appellants, statement of P.W.1 and investigating officer examined by prosecution are cumulatively taken into consideration, then there is no inconsistency in their statement on point of recording of statement of deceased under section 161 Cr.P.C. Thus, submission raised by learned counsel for appellants in this respect is not acceptable. Finding recorded by Trial Court is based on correct appreciation of law. Injured (deceased) was interrogated by investigating officer at police station concerned immediately after registering of case, which is proved as Ex.Ka.-15. Provisions of Regulation 115 of U.P. Police Regulations are not mandatory in nature, but only as precautionary. Time when deceased was interrogated by investigating officer concerned, he did not think that deceased would die. Thus, statement of deceased recorded under section 161 Cr.P.C. before his death can be safely relied on as dying declaration which also indicates cause of death, manner of incident as well as other details of crime.
31. So far as presence of P.W.1, P.W.2 and P.W.6 at place of occurrence is concerned, submission of appellants' counsel is that all these three witnesses are chance witness and their presence at place of occurrence is improbable. If submission raised here-in- above are minutely analyzed with prosecution evidence, the stand of P.W.1 Shiv Shanker Giri is that since a conspiracy was hatched by accused-appellants in morning and there was previous animosity between deceased and co-accused Krishna Dev alias Jhala, he proceeded to inform deceased about this fact, who had gone to village Hardia to look after harvesting. Usually, villagers used to go to their fields in morning, day hours and even in night also to look after their crops and agricultural work. Thus, conduct of deceased and P.W.1 is not unnatural. It is established that agricultural land of deceased and informant (P.W.1), who were residing together, was also situated in village Hardia and harvesting of crops was going on. Thus, proceeding of P.W.1 to village Hardia to inform about conspiracy hatched by accused- appellants cannot be said to be improbable and unnatural. P.W.1 has admitted that he had also gone to search deceased in nearby villages, this fact is also not sufficient to disbelieve statement of this witness. It is natural that when deceased was not found in village Hardia, P.W.1 would have gone to search him in other villages. Submission of learned counsel for appellants that when P.W.1 had information that deceased had gone to village Hardia then why he searched him in other villages is also not appealable and on this basis, presence of P.W.1 on spot at the time of occurrence cannot be doubted. It is also established that after making search, P.W.1 was returning to village Parsia. Deceased was also returning 100 – 120 paces ahead of P.W.1. Although, P.W.1 may be categorized as chance witness, but he has categorially explained his presence on spot at the time of occurrence, which is consistent, clear, cogent and believable.
32. So far as presence of P.W.2 Sadhu on spot at the time of incident is concerned, he is not resident of village Parsia. He claimed that he had come to Parsia to earn his livelihood (labour work) and he was returning to village Hardia and on the way deceased as well as witnesses met him. This witness has clearly and consistently proved the place of occurrence where present incident took place. Although role of only talking is assigned to accused-appellant Smt. Senhwa, yet presence of rest of accused- appellants at the place of occurrence and their participation in this case has been clearly and categorically stated by this witness. Statement of this witness also finds support with statement of P.W.1. He is a chance witness, but his presence on spot at the time of occurrence is probable and natural one, as he did not work on the day of incident, but returned to his village from same path on which deceased was coming.
33. So far as presence of P.W.6 Jai Prakash on spot is concerned, he claimed himself to be returning from village Chitvishram and on the way he met with P.W.1. As per this witness, P.W.1 has stated entire facts relating to conspiracy hatched by accused-appellants and reason for which he had gone to inform and search deceased to village Hardia. This witness has also stated that incident took place before him at the place of occurrence. They all tried to save deceased. Accused-appellants causing injuries to injured (deceased) ran away from place of occurrence. This witness has also supported this fact that injured (deceased) was taken to police station immediately. It is also pertinent to mention here that as per this witness, he was returning on the day and time of incident from village Chitvishram, as he is the resident of village Parsia. Although he is a chance witness, but his presence in day hours at the place of occurrence, which was the way to return from Chitvishram to Parsia, cannot be disbelieved.
34. Thus, on close analysis of statement of P.W.1, P.W.2 and P.W.6, we are of the view that although they are chance witnesses, but their presence at the place of occurrence at the time of incident cannot be doubted. It may also be noted here that to test the veracity of testimony of these three witnesses, we also find it necessary to analyze medical evidence.
35. Submission of learned counsel for appellants is that deceased was done to death in night hours itself. None has seen the incident. First information report was lodged on the basis of false facts implicating accused-appellants on account of enmity. Learned counsel has also referred to contents of postmortem report, specially contents of stomach and intestines.
36. In instant case, several injuries were found on body of deceased, as disclosed in postmortem report (Ex.Ka.-4). Injuries no.10, 11 and 12 are incised wound. Injuries no.1, 2, 3, 4, 7, 8, 15 and 16 are contusions / contused swelling. Rest of injuries are lacerated wound. P.W.3 Dr. V. Singh, who conducted postmortem on body of deceased, has clearly opined that death of deceased was a cumulative effect of ante mortem injuries found on body of deceased and there may be variation in time of death on either side. Faecal matter was found in intestine of deceased.
37. It is settled proposition that presence of semi digested food in the stomach of deceased is not conclusive in itself for determining time of death. The State of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when the deceased had his last meal and what that meal consisted of. Further, presence of faecal matter in the intestines is also not conclusive, as the deceased might be suffering from constipation. Where there is positive direct evidence about time of occurrence, it is not open to court to speculate about the time of occurrence by the presence of faecal matter in the intestines. In villages, rural people usually go to answer the call of nature before sunrise, no such generalization is possible. It depends upon habit of the individual, the state of his health, particularly of his digestive system, weather and several other factors. Time required for digestion may depend upon the nature of food. Process of digestion is very greatly delayed in the case of vegetable food consumed by Indians. Time varies according to digestive capacity. The process of digestion is not uniform. It varies from individual to individual. Digestion varies with the state of gastric mucosa also. It also depends on the health of person at particular time. [vide : 1971 Criminal L.J. 1511 (V 77 C 445), Sheo Darshan v. State of Uttar Pradesh, AIR 1971 SC 1794, State of Uttar Pradesh v. Shanker, AIR 1981 SC 897, Lachman Singh versus State, AIR 1952 SC 167, Nihal Singh versus State, AIR 1965 SC 26 and Shivaji versus State, AIR 1973 SC 2622].
38. P.W.3 Dr. V. Singh has found rigor mortis present in both limbs at the time of postmortem. As per this witness, injuries found on body of deceased could be caused with weapons assigned to accused-appellants. If above settled legal position is taken into consideration in light of submission raised by learned counsel for appellants as well as contents of stomach and intestines found at the time of postmortem of deceased, time of death of deceased and time of injuries said to have been caused in this case cannot be doubted. Deceased did not die immediately after receiving injuries. It is also not clear at what point of time he had taken meal and what sort of food item he had taken. If time of incident stated by prosecution witnesses and narrated in first information report and time of death of deceased, when he was being taken to hospital, are taken into consideration, there is a gap of about 3 to 4 hours. In that situation, if deceased had taken some food in morning hours, presence of faecal matter in intestines is probable one. Thus, in this case, medical evidence fully supports prosecution case as well as statement of P.W.1, P.W.2 and P.W.6. There is no conflict in ocular testimony and medical evidence.
39. As regards site plan prepared in this case by investigating officer is concerned, settled legal position on this score is that site plans are prepared on telling of description by some other person, which clearly comes under definition of hearsay evidence. If there is any variation in statement of prosecution witnesses as well as details shown in the site plan prepared by investigating officer, same itself cannot be formed basis to discard ocular testimony of eyewitness account especially when presence of eyewitness account is natural and probable at the place of occurrence. Thus, submission raised by learned counsel for appellants in this respect has no relevance.
40. It is settled that as a general principle, it can be stated that error, illegality or defect in investigation cannot have any impact unless miscarriage of justice is brought about or serious prejudice is caused to the accused (See Union of India Versus Prakash P. Hinduja, A.I.R. 2003 S.C. 2612).
41. It is also settled position of law that if the prosecution case is established by the evidence adduced, any failure or omission on the part of the investigating officer cannot render the case of the prosecution doubtful. (See Amar Singh Versus Balvinder Singh, A.I.R. 2003 S.C. 1164; Sambhu Das Versus State of Assam, A.I.R. 2010 S.C. 3300)
42. So far as tractor in question, on which deceased was taken, is concerned, stones / bricks were being transported on it and by unloading the same, deceased was carried on it to police station in injured condition. Defence has tried that since tractor in question was belonged to one Ram Dular Chaubey, who had enmity with accused-appellants, therefore, present prosecution was started on the basis of false facts. If submission raised by learned counsel for appellants in this context is minutely analyzed in consonance with entire evidence, same is not acceptable. Tractor in question was taken on the way when deceased was being taken to police station concerned. Some laches have also been occurred on part of investigating officer, but same are not fatal to prosecution case. There are eyewitness accounts and their testimony are supported by medical evidence. Accused-appellants had sufficient opportunity to cross-examine them. In fact, lengthy cross-examination was also done from prosecution witnesses. Thus, merely on point of non-taking of blood etc. from the place of occurrence and other laches on part of investigating officer do not effect the core of prosecution case.
43. Now we proceed to deal with role of accused- appellants.
44. Appeal filed by co-accused Krishna Deo alias Jhala, being Criminal Appeal No.1489 of 1983 has already been abated. In present appeal appellants-1, 2 and 5 namely, Dukharan, Raj Kumar and Harish Chand have died during pendency of appeal, therefore, there remains to scrutinize only the role of appellants- 3, 4 and 6 namely, Bechu alias Satya Narain, Lal Dhani and Smt.
Senhwa.
45. As per prosecution, except talking with deceased before incident, no other role has been assigned to appellant-6 Smt. Senhwa. It is an admitted fact of prosecution that appellant Smt. Senhwa reached on spot all alone and by that time no other accused-appellants were present there. Although, generally no direct evidence would be available in cases of conspiracy, but to punish or implicate any accused on the basis of conspiracy, there must be some evidence to this effect. In instant case, if dying declaration said to have been recorded by police in form of statement under section 161 Cr.P.C. of deceased is taken into consideration, only role against appellant Smt. Senhwa is that she stopped deceased and started talking nonsense. What sort of discussion was made between deceased and appellant Smt. Senhwa has not been clarified. This appellant has not actively participated in commission of offence. Neither there is any role of exhortation against this appellant nor in the incident she played any sort of role. Thus, on re-appreciation of entire evidence in regard to involvement of appellant no.6 Smt. Senhwa, applying the rule of caution, we are of the view that Trial Court has committed error in convicting and sentencing appellant Smt. Senhwa in this case. Evidence available on record against appellant Smt. Senhwa is a very weak evidence and her involvement in this case is not proved by prosecution to the hilt beyond reasonable doubt and she is liable to be acquitted for charges framed against her extending the benefit of doubt.
46. So far as rest of appellants i.e. Bechu alias Satya Narain and Lal Dhani are concerned, they have played active role along with other accused-appellants, who died during pendency of Appeal. Medical evidence also fully supports prosecution case.
Appellants Bechu alias Satya Narain and Lal Dhani have been assigned with weapon lathi. On comparison of injuries found on body of deceased with role and weapon assigned to these accused-appellants, their involvement in this case is established from prosecution evidence.
47. We have also scrutinized entire evidence to fix liability of these two appellants and on re-appreciation of evidence, we find no error in Trial Court finding regarding involvement of accused-appellants Bechu alias Satya Narain and Lal Dhani. Submission advanced by learned counsel for appellants in this respect is not acceptable.
48. In the instant case, accused-appellants have also been convicted for offence under section 120-B IPC. Since there is direct evidence regarding their involvement in committing murder of deceased, in our considered opinion, there was no occasion to hold guilty and to punish accused-appellants for offence under section 120-B IPC, as Trial Court has convicted accused-appellants for offence under section 147 IPC as well as section 302 read with 149 IPC. Finding recorded by Trial Court regarding guilt of accused-appellants for offence under section 147 IPC as well as section 302 read with 149 IPC is based on correct appreciation of facts, evidence and law and no interference is required by this Court.
49. So far as sentence imposed upon accused-appellants by Trial Court is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.
50. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalized. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v.
Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2
SCC 175].
51. In view of above propositions of law, the paramount principle that should be the guiding laser beam is that punishment should be proportionate to gravity of offence.
52. In the instant case, as per medical evidence, deceased died on the way when he was being taken to hospital due to injuries sustained by him. Prosecution was able to prove from its evidence that accused-appellants along with co-accused (died during pendency of appeal) have caused injuries to deceased on date, time and place of occurrence mentioned in first information report.
53. Thus, considering entire aspect of case and looking to circumstances under which offence has been committed, Court is of the opinion that this Appeal to the extent of guilt of accused- appellants Bechu alias Satya Narain and Lal Dhani for offence under section 120-B IPC and guilt of accused-appellant Smt. Senhwa for all charges levelled against her, finding her not guilty, is liable to be partly allowed.
54. Applying the principles laid down by the Apex Court in the aforesaid judgments and having regard to the totality of facts and circumstances of the case, nature of offence and the manner in which it was executed or committed, we find that punishment imposed upon accused-appellants by the trial court in the impugned judgment and order is not excessive or exorbitant and no question arises to interfere in the matter on point of punishment imposed upon appellants Bechu alias Satya Narain and Lal Dhani for offence under section 302 read with section 149 IPC and for offence under section 147 IPC. Present matter does not come under the purview of Section 325 IPC. Trial Court has imposed minimum sentence for offence under section 302 IPC and present case clearly comes under the purview of section 302 IPC, therefore, no further leniency could be extended to accused-appellants as per law.
55. In the light of foregoing discussions, appeal is liable to be allowed in part. Conviction and sentence imposed by Trial Court vide judgment and order dated 13.06.1983 upon appellant Smt. Senhwa for offence punishable under Sections 120-B, 147, 302 read with section 149 I.P.C. is liable to be set-aside and conviction and sentence imposed upon accused appellants Bechu alias Satya Narain and Lal Dhani for offence under section 302 read with 149 IPC and for offence under section 147 IPC is liable to be upheld, however their conviction and sentence for offence under section 120-B IPC is liable to be set-aside.
56. Accordingly, criminal appeal is allowed in part. Conviction and sentence imposed by Trial Court vide judgment and order dated 13.06.1983 upon appellant Smt. Senhwa for offence punishable under Sections 120-B, 147, 302 read with section 149 I.P.C. is set-aside, as she is found not guilty for aforesaid offences. She is acquitted of all charges framed against her. She is on bail. She need not to surrender. Her bail bonds are cancelled and sureties are discharged.
57. Conviction and sentence imposed vide judgment and order dated 13.06.1983 upon accused appellants Bechu alias Satya Narain and Lal Dhani for offence under section 302 read with 149 IPC and for offence under section 147 IPC is upheld. However conviction and sentence imposed upon them for offence under section 120-B IPC is set-aside. Appellants Bechu alias Satya Narain and Lal Dhani are on bail. Their bail bonds are cancelled. They are directed to surrender before Court concerned immediately, who shall take them into custody and send them to jail for serving out remaining sentences imposed upon them by Trial Court. In case they fail to surrender, as directed above, the Chief Judicial Magistrate concerned is directed to take coercive action against them in this regard.
58. Keeping in view provisions of Section 437-A CrPC, appellant Smt. Senhwa is directed forthwith to furnish a personal bond of the sum of Rs. fifty thousand and two reliable Sureties each in the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court.
59. Copy of this judgment alongwith lower court record be sent forthwith to the Court concerned i.e. Sessions Judge, Mirzapur as well as Sonbhadra for compliance and compliance report be sent to this Court.
Order date : 13.09.2018 ss