Chief Justice's Court
Case :- JAIL APPEAL No. - 310 of 2018 Appellant :- Khamani Respondent :- State Of U.P.
Counsel for Appellant :- From Jail,Devendra Pratap Singh (A.C.) 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 30th March, 2016 passed by learned Additional Sessions Judge/Special Judge (SC/ST Act), J.P. Nagar in Sessions Trial No.354 of 2006, State of U.P. Vs. Khamani.
By the judgment impugned learned trial court recorded conviction of the accused Khamani for the offence punishable under Section 302 Indian Penal Code and awarded sentence to undergo life term imprisonment with a fine of Rs.25,000/- and further to undergo one year additional imprisonment in default of fine.
In brief, facts of the case are that one Sri Virendra Singh, S/o Param Singh, R/o Village Phoolpur-Adalpur, P.S. Amroha submitted a written report on 12th January, 2006 at P.S. Amroha Rural with an assertion that Smt. Sumitra widow of Kallu Saini had illicit relations with Dr. Roop Singh Saini, S/o Karan Singh, R/o Village Jagga Nagla, P.S. Didauli from long time. The elder brother-in-law of aforesaid Sumitra had objection with regard to the illicit relations aforesaid. Despite warnings, Smt. Sumitra was maintaining her relations with Dr. Roop Singh Saini. On 12th January, 2006 at about 2.00 pm Khamani, the elder brother-in-law of Sumitra murdered Sumitra by strangulation. On basis of the written report, a criminal case was lodged and investigation was initiated for an offence punishable under under Section 302 of Indian Penal Code. The prosecution after usual investigation submitted a report as per provisions of Section 173 of the Code of Criminal Procedure, 1973 to the competent court and then the case was committed to the court of sessions. On denial of the charge relating to commission of offence under Section 302 of Indian Penal Code trial commenced as desired by the accused Khamani. The prosecution supported its case with the aid of ocular evidence adduced by six witnesses and by exhibiting several documents. Out of the five witnesses, Sri Virendra Singh (PW1), Sri Ajay Kumar (PW2) and Bhagwan Das (PW3) were cited as eye witness, whereas the statement of Sri Ravindra Singh (PW4) Constable Belt No.837 were recorded to substantiate prepration of certain documents during the investigation. Dr. Pankaj Giri Goswami (PW5) adduced the medical evidence as he conducted autopsy on the person of deceased Sumitra. Baljit Singh (PW6) Inspector adduced evidence relating to all the steps taken during course of investigation being Investigating Officer. After completion of prosecution evidence, an opportunity was given to the accused as per provisions Section 313 of Indian Penal Code to explain adverse and incriminating circumstances available in the prosecution evidence. No evidence in defense was accused.
Learned trial court after considering the entire evidence available on record held the accused-appellant guilty for commission of an offence under Section 302 of Indian Penal Code and thus, recorded conviction and awarded sentence.
In appeal, the argument advanced by learned counsel appearing on behalf of the accused-appellant is that the trial court erred while relying upon the evidence adduced by PW2, Sri Ajay Kumar in view of the fact that other eye-witness who too were said to be present at the place of occurrence of the crime did not support the prosecution story. It is further submitted that the facts stated by Sri Ajay Kumar (PW1) are highly improbable being just contrary to normal human nature. According to learned counsel, as per the evidence adduced by Sri Ajay Kumar, he was standing at the distance of 4.5 feet only from deceased Sumitra but he did not made any effort to save her. In normal course a person who is otherwise well known to a person facing fatal assaults must have made efforts to intervene in the quarrel with a view to save the victim.
In addition to the argument aforesaid, it is also stated that the ligature marks available on the neck of the deceased are sufficient to disbelieve the prosecution story. According to learned counsel appearing on behalf of the appellant, such ligature marks could have been received only in the event of strangulation by some piece of rope or cloth. In the instant matter strangulation was said to be made by using thumbs and fingers and not by the rope or cloth.
While examining with the arguments advanced by learned counsel for the appellant, learned Additional Government Advocate states that the evidence adduced by Sri Ajay Kumar (PW2) read with the medical evidence adduced by Dr. Pankaj Giri Goswami (PW5) there is no doubt about definite involvement of the accused in crime in question. According to learned Additional Government Advocate merely on the count that Bhagwan Das (PW3) was declared hostile and Virendra Singh (PW1) did not support the prosecution story. The testimony of Sri Ajay Kumar (PW2) could have not been disbelieved. It is also stated that the ligature marks available on the neck of the deceased could have very well be received by the use of fingers and thumbs and besides that the close suggestion at all was given during the course of trial to Dr. Pankaj Giri Goswami (PW5), who adduced medical evidence about such eventuality.
Heard Sri Devendra Pratap Singh, learned Amicus Curiae appearing for the appellant and learned Additional Government Advocate for the State.
The prosecution case as relied upon by the trial court lies in quite narrow compass. Learned trial court while recording conviction of the appellant for the offence under Section 302 of Indian Penal Code relied upon the evidence adduced by Sri Ajay Kumar (PW2), Dr. Pankaj Giri Goswami (PW5) and Sri Baljit Singh (PW6). At the threshold, it would be appropriate to state that there is no doubt about homicidal death of Smt. Sumitra as per the medical evidence available on record the cause of death was ex facie due to strangulation. PW5, Dr. Pankaj Giri Goswami in quite unambiguous terms stated that on body of deceased Sumitra there was ligature mark around the neck measuring 25 cm X 6 cm. In addition to abrasion in right side of head and just above the right ear. An incise wound measuring 2 cm X 1 cm was also existing in right side of the head at the distance of 12 cm from right ear. As per this witness, the brain membrane and pleuss were congested and a fracture was there in the hyorid bone. During the examination, this witness stated that ligature mark can be received on strangulation by rope or a cloth. The injury relating to incise wound can also be receiving on falling down.
PW2, Sri Ajay Kumar while getting the tesimony examined stated that on the fateful day he was in the street where accused Khamani was quarreling with Sumitra with assertion that her illicit relations with Dr. Roop Singh Saini are causing injury to reputation of his family and that cannot be tolerated. During the course of quarrel, he pushed Sumitra and had fallen her down, strangulated her neck, as a consequence she died. As per this witness, he also tried to save Sumitra but of no consequence. In cross-examination too he reiterated the facts whatever he stated in chief.
Sri Baljit Singh (PW6) narrated all the steps taken by him during course of the investigation being Investigating Officer. As per this witness, Sri Ajay Kumar (PW2) was present at the time of occurrence of the crime and further his version of facts was recorded as per provisions of Section 161 of the Code of Criminal Procedure, 1973 as soon as possible during the course of investigation.
Looking to the evidence whatever stated above, we are having no doubt about involvement of the accused-appellant in crime in question.
The argument advanced by learned counsel appearing on behalf of the appellant is that PW1, Virendra Singh and PW3, Bhagwan Das did not support the prosecution story and as such the statement given by PW2, Sri Ajay Kumar too deserves to be disbelieved is absolutely ill-founded. PW1, Sri Virendra Singh in quite unambiguous terms stated he submitted a written report with regard to all the facts. However, he has pleaded the fact that he did not witness the fact relating to causing murder. Merely on this count, it cannot be said that the PW2, Sri Ajay Kumar too was not present at the place of occurrence. Similarly, PW3, Bhagwan Das has also not supported the prosecution story but he has no where stated or disclosed absence of PW2, Sri Ajay Kumar at the place of occurrence.
In entirety, in our considered opinion there is no reason to disbelieve the testimony of PW2, Sri Ajay Kumar who otherwise placed the facts before the Court on oath with complete confidence and without no discrepancy. So far as the argument advanced with regard to availability of ligature marks around the neck of deceased are concerned, it would be appropriate to state that Dr. Pankaj Giri Goswami (PW5) no where stated such marks cannot be received by pressure of fingers and thumbs though he stated that such marks can be received with the aid of rope and cloth. It would also be appropriate to state that the strangulation that causes ex facie requires considerable pressure and such pressure even if is mounted by the fingers and thumbs that can very well cause ligature marks. In view of whatever stated above, the argument advanced in this regard too is not tenable.
The last argument advanced by learned counsel is relating to incise wound received by the deceased. It is stated that such an injury could have been received only by use of a sharp edged weapon but in entire prosecution case there is no disclosure of the use of any sharp edged weapon. This argument too is having no merit. Such an injury can very well be received on falling down on land and in the case in hand, eye-witness Sri Ajay Kumar (PW2) in quite unambiguous terms stated that on pushing deceased Sumitra fall down and then the accused strangulated her. Pertinent to notice that adequate medical evidence is also available on record to substantiate the fact that the injury in question could have been received by the deceased on falling down.
In view whatever stated above, we do not find any merit in this appeal. Accordingly, the same is dismissed.
The appellant being represented by Amicus Curiae, Sri Devendra Pratap Singh, Advocate who is entitled to have necessary remuneration from High Court Legal Services Committee.
Order Date :- 29.10.2018 Bhaskar (Chandra Dhari Singh, J.) (Govind Mathur, A.C.J.)