Reserved
Court No. - 43
Case :- CRIMINAL APPEAL No. - 1651 of 1984
Appellant :- Khokha alias Chhotey Lal
Respondent :- State Of U.P.
Counsel for Appellant :- S.N. Hasnain, Sharad Chandra Srivastava, Subhash Chandra
Counsel for Respondent :- A.G.A.
Hon'ble Pankaj Naqvi,J. Hon'ble Krishna Pratap Singh, J.
(Delivered by Krishna Pratap Singh, J)
This Criminal Appeal has been filed against a judgement and order dated 31.5.1984 passed by learned II Additional District and Sessions Judge, Allahabad in ST No. 447 of 1983 arising out of case crime No.
334 of 1979, under section 302 IPC, police station Naini, district Allahabad, whereby the learned Judge convicted and sentenced the appellant to life imprisonment under Section 302 IPC.
In nutshell, the facts of the case are that a written report was handed over by the informant Baij Nath, son of Kalika Prasad, resident of Chak Daud Nagar, Naini, Allahabad on 16.9.1979 at police Station Naini, district Allahabad to the effect that about a year ago, his daughter-in-law Smt. Usha Devi had gone to her maternal house at Katghar, police station Mutthiganj where from Khokha alias Chhotey Lal Dhobi, resident of Gaddaiya, police station Mutthiganj enticed her away. About four month's ago, her daughter-in-law clandestinely came to his house and started living. In the meantime, Khokha alias Chhotey Lal came to his house twice and compelled Usha Devi to go with him, but she refused on the ground that he used to beat and harass her, due to which Khokha being annoyed went back. Ten days' ago Khokha again came to his house and asked Smt. Usha Devi to accompany, but again she refused, thereupon Khokha being annoyed gone back by threatening her of dire consequences. It is further mentioned in the FIR that today, i.e. 16.9.1979 at about 7.45 AM, his daughter-in- law Smt. Usha Devi, wife Shanti Devi and younger daughter-in-law Smt. Sharifa Devi had gone to attend the call of nature. His wife was carrying a torch. Informant along with one Ashok Kumar were at home. While Nanku Lal was returning to his home from Naini Bazar, he heard a sound of fire. When the informant and others rushed to the spot, his wife was shouting that Khokha alias Chhotey is on the run after killing Smt. Usha Devi. It is also mentioned in the report that informant along with witnesses saw the accused running with pistol in the light of torch. Witnesses tried to apprehend the accused, but he managed to escape. As a result of shot, Smt. Usha Devi died at the spot.
On the basis of the aforesaid written report, a chik FIR was prepared by Head Constable Rajendra Singh at 09.05 PM (Ext. Ka-3) and entered the case in General Diary (Ext. Ka-4). The investigation of the case was taken up by SI M.K. Singh, who reached the spot and recorded the statements of informant Baij Nath, his wife Smt. Shanti Devi and daughter-in-law Smt. Sharifa Devi. Due to insufficient light, the investigating officer inspected the spot next morning at 6.15 AM and prepared site plan (Ext. Ka-5). He also inspected the torch of the witnesses, which were in working condition and prepared their memos. As accused had already been arrested by Inspector Jwala Prasad Pandey, his statement was also recorded.
The other investigating officer SI Shiv Shanker Tiwari, PW-7 reached the spot at 10.00 PM and recovered empty cartridge and prepared its memo (Ext. Ka-9). He also collected bloodstained and plain earth from the spot and after keeping in different container sealed it and prepared its memo. He also conducted inquest on the body of deceased and after preparing necessary documents, he handed over the dead body to Constable Mahendra Kumar Soni and Ram Sahai Ram for conducting post-mortem examination.
After completion of investigation, the charge sheet was submitted against the appellant.
As case was exclusively triable by Court of Sessions, learned Magistrate committed the case to Court of Sessions where case was registered as ST No. 447 of 1983 and learned Additional Sessions Judge, Allahabad vide order dated 24.11.1983 framed charges against appellant under Section 302 IPC,
To bring home charge against accused- appellant, prosecution examined as many as seven witnesses, out of whom PW-1, Baij Nath, PW-2, Shanti Devi and PW-3 Sharifa Devi were the witnesses of facts and remaining were formal witnesses.
PW-1, Baij Nath is the informant of the case. He further deposed in his examination- in-chief that deceased Smt. Usha Devi was married to his son Pradeep Kumar. She has a son. Her paternal house is at Katghar, Allahabad. One year prior to the incident, deceased was taken by her father. She returned after one year. In the meantime, accused Khokha alias Chhotey enticed her away and took her to his house. She again came to the house of the informant and after apology, informant kept deceased in his house. After 4-6 days of deceased arrival, accused came to his house and asked the deceased to accompany him and also threatened her of dire consequences. After 5-6 days, brother of deceased came to his house and asked him not to allow Usha Devi to leave the house alone, otherwise accused will enticed her away as he came to his house and threatened him. He further deposed that thereafter he kept a strong vigil on the deceased and she was allowed to go outside along with 2-4 women. On the date of incident at about 7.45 PM, his daughter-in-law Smt. Usha Devi, wife Shanti Devi and younger daughter-in-law Smt. Sharifa Devi had gone to attend the call of nature. His wife was carrying a torch. Informant along with one Ashok Kumar were at home. While Nanku Lal was returning to his home from Naini Bazar, he heard a sound of fire. When the informant and others rushed to the spot, his wife was shouting that Khokha alias Chhotey is on the run after killing Smt. Usha Devi. It is also mentioned in the report that informant along with witnesses saw the accused running with pistol in the light of torch. Witnesses tried to apprehend the accused, but he managed to escape. As a result of shot, Smt. Usha Devi died at the spot.
PW-2, Shanti Devi, in her examination-in- chief deposed that deceased was her daughter-in-law. She was married to her son Pradeep about 10 years ago. Her son Pradeep had gone to Bombay and her daughter-in-law went to her Maika about one year prior to the occurrence and returned to her house about 15 days prior to the incident. Accused-Chhotey Lal used to come to her house and extend threat to her daughter-in-law to accompany her otherwise he will kill her. Accused came to her house 3-4 days prior to the incident and threatened her daughter-in-law either to accompany her otherwise she will be killed. She further deposed that on the date of occurrence she along with her daughters-in- law Usha Devi and Sharifa Devi were going to attend the call of nature carrying torch, accused suddenly came there and firstly he peeped through the veil of Sharifa Devi, who was behind and thereafter at Usha Devi and fired a shot at her. On her cry, her husband, Nanku and Ashok, brother of Usha Devi rushed to the spot and tried to apprehend the accused, but he managed to escape.
PW-3, Sharifa Devi, deposed that she along with Smt. Usha Devi and Smt. Shanti Devi were going to attend the call of nature. Smt. Shanti Devi was having a torch. She hardly left 2-3 paces towards north, accused Khokha came there armed with pistol and firstly he saw her face and thereafter after seeing Usha, he fired at her resulting her death. On the shrieks of Shanti Devi, Baij Nath, Nanku and Ashok rushed to the spot and after flashing the torch challenged the accused, who fled away.
PW-4 Ram Sahai Ram filed an affidavit stating therein that on 16.9.1979 after the completion of inquest, dead body of Smt. Usha Devi was handed over to him along with constable Mahendra Kumar Soni for getting the post mortem done.
PW-5, Dr. V.K. Gupta deposed that on 17.9.1979, he was posted as Medical Officer at Moti Lal Nehru Hospital, Allahabad. On that date at 4.00 PM, he conducted the post mortem examination of the body of deceased and found the following ante-mortem injuries:
“1. Gun shot wound of entry 3 cm x 2 cm x chest cavity deep on the right side of the chest just above right nipple. Margin inverted. Blackening present. There was no tattooing, no charring, no scorching.
In the opinion of doctor, the cause of death was shock and haemorrhage as a result of ante-mortem injuries received by the deceased.
The evidence PW-6 SI M.K. Singh and Shiv Shanker Tiwari has already been discussed above in details.
After the closure of the prosecution evidence, the statement of the accused- appellant under section 313 Cr.P.C. was recorded, in which he denied the charges levelled against him and stated that he has falsely been implicated in this case due to enmity.
However, learned Additional Sessions Judge, Allahabad, after hearing the learned counsel for the parties and after scrutinizing and scanning the materials on record, convicted and sentenced the appellant to life imprisonment under Section 302 IPC.
Hence, this appeal.
Heard Shri Ramendra Giri, learned counsel for the appellant and Shri A.N. Mulla, learned Additional Government Advocate and perused the record of the case.
Learned counsel for the appellant contended that it is a case of honour killing and appellant has falsely been implicated. He further submits that there are material contradictions in the statements of the witnesses in respect of place of occurrence. Learned counsel also submits that only interested and related witnesses were examined and no independent witness has been examined. It has lastly been submitted that there was insufficient light to recognize the accused-appellant as in the statement of PW-3 Sharifa Devi, it has come that face of the accused was covered.
On the other hand Shri A.N. Mulla, learned Additional Government Advocate supported the findings of the learned Trial Court by stating that the prosecution has discharged its burden by establishing the guilt of the appellants beyond reasonable doubt. He further submitted that the judgement is well reasoned and calls for no interference by this Court.
So far as first contention of learned counsel for appellant that it was an honour killing and appellant has falsely been implicated in this case is concerned, it has no leg to stand.
Marriage of Pradeep, son of informant was solemnized with deceased when Pradeep was of tender age and both of them were living happily. A child was also born from the wedlock of Pradeep and deceased. After Pradeep failed in High School Examination, due to fear of his parents, he fled from Allahabad and went to Bombay. Thereafter, father of deceased took her to his house. However, soon thereafter, father of the deceased expired. After the death of father of deceased, the accused taking advantage of her helplessness developed illicit relation with her and enticed her away and kept her for about 4-6 months. As the conduct of accused towards deceased was not cordial, she left the accused and came to her in-laws' house. Being annoyed with the conduct of deceased, initially, informant and others did not accept her, but as she apologised and repented for her conduct, they forgave her and accepted her and permitted her to live with them. After, deceased started living at her in-laws house, accused, went to her and asked her to come back to him, which she refused. On her refusal, accused threatened her with dire consequences. As accused was disappointed that he would not be able to have any carnal relationship with her, he decided to eliminate her.
Accused in his statement under Section 313 Cr.P.C. admitted that deceased was his paramour and lived with him for about 4-5 months. He also admitted that after deceased left her, her in-laws accepted her and she started living with them. There are three eye- witnesses of the case, namely PW-1 Baij Nath, PW-2 Shanti Devi and PW-3 Sharifa Devi, out of whom PW-2 and PW-3 are the eyewitnesses of the incident, whereas PW-1, Baij Nath rushed to the spot along with Ashok and saw accused running in the light of torch. PW-2, Smt. Shanti Devi and PW-3, Sharifa Devi, deposed in their evidence that when they were going to attend the call of nature along with Smt. Usha, accused Khokha came there armed with pistol and firstly he peeped through the veil (Ghoonghat) of Smt. Sharifa Devi and thereafter at Smt. Usha and then fired at her resulting in her death. The evidence of witnesses are intact. They were put to lengthy cross-examination, but nothing material could be elicited from them to make the prosecution story doubtful. Moreover, no suggestion was made by the accused in her statement in this regard. In view of the above, it cannot be said that it was a case of honor killing.
Hon'ble Supreme Court in State of Punjab Vs. Jagir Singh (1974) 3 SCC 277, wherein Hon'ble Apex Court held as under:
“A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination and fantasy. It corners with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotion. In arriving at the conclusion about the guilt of the accused charged with commission of crime, the Court is to judge the evidence by yardstick of the probabilities, its intrinsic worth and animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Court should not at the same time reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures.”
Learned counsel for the appellant further submits that there are material contradictions in the statements of the witnesses in respect of place of occurrence. According to learned counsel, as per site plan, the place of incident was about 200 yards from the house of the informant, whereas PW-2, Smt. Shanti Devi stated in her cross-examination that the place where she went to attend the call of nature was about 15-20 paces from her house.
Before dealing this point of material contradictions, it would be useful to refer to the decision of Hon'ble Supreme Court Shivaji Vs. State of Maharashtra, AIR 1973 SC 2622, in which Hon'ble Apex Court held thus:
“The scene of murder is rural, the witnesses to the case are rustic and so their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in courts based on unreal assumption about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence of various witnesses, we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishment in essential parts cannot mitigate against the veracity of the core of the testimony provided there is impress of truth and conformity of probability in the substantial fabric of testimony delivered.”
It is no doubt true that PW-2, Shanti Devi in her cross-examination admitted that she along with PW-3 Sharifa Devi and deceased had gone to attend the call of nature 15-20 paces from her house, but it is to be noted that she is so rustic and illiterate that she could not even tell at to when her daughter Bittan was married either two years ago or 15-20 years ago, so merely by stating that she had gone to attend the call of nature 15-20 paces away from her house, whole prosecution evidence cannot be discarded. Moreover, normally, in village women do not go 15-20 paces from their houses to attend the call of nature.
Next submission of learned counsel for the appellant is that only interested and related witnesses were examined and no independent witness has been examined.
It was not a broad day light murder, which was seen by number of persons. The murder was committed in the night when deceased along with her mother-in-law and sister-in-law had gone to attend the call of nature. Murder was witnessed by PW-2 Smt. Shanti Devi and PW-3 Sharifa Devi, who were present there along with deceased. On alarm of Smt. Shanti Devi, PW-1 Baij Nath, the informant along with Ashok, brother of the deceased rushed to the spot and saw the accused fleeing away. PW-1, Baij Nath, PW-2, Smt. Shanti Devi and PW-3 Sharifa Devi have been examined and they have fully supported the prosecution case. Although, accused- appellant in his statement recorded under Section 313 Cr.P.C. stated that he has falsely been implicated, but no specific enmity has been alleged.
In Arjun and others Vs. State of Rajasthan, 1994 Suppl (1) SCR 616, Hon'ble Supreme Court held as under:
“We are not convinced by the aforesaid argument that either on account of animosity or on account of relationship, the witnesses did not divulge the truth but fabricated a false case against the appellants. It is needless to emphasise that enmity is a double edged sword which can cut both ways.
However, the fact remains that whether the prosecution witnesses are close relatives of the deceased victim or on inimical terras with the deceased involved in the crime of murder, the witnesses are always interested to see that the real offenders of the crime are booked and they are not, in any case, expected to leave out the real culprits and rope in the innocent persons simply because of the enmity. It is, therefore, not a safe rule to reject their testimony merely on the ground that the complainant and the accused persons were on inimical terms. Similarly the evidence could not be rejected merely on the basis of relationship of the witnesses with the deceased.”
It has lastly been submitted that there was insufficient light to recognize the accused- appellant as in the statement of PW-3 Sharifa Devi, it has come that face of the accused was covered.
Although, it has been stated by PW-3, Smt. Sharifa Devi that face of the accused was covered and she showed the manner in which accused had covered his face before the trial court. Learned Trial Court has made specific finding in this regard that the manner in which the accused was shown covering his face goes to show that his mouth was clearly visible and identifiable. Informant Baij Nath in his cross- examination deposed that he knew the appellant for the last ten years. Witnesses PW-
2 Smt. Shanti Devi and PW-3 Smt. Sharifa Devi deposed that they saw the accused twice when he came to the house of informant to call the deceased and on being refused by the deceased to accompany him, accused also threatened the deceased of dire consequences before them. Since, the witnesses were familiar to the accused, there was no difficulty for them to identify the accused.
Hon'ble Supreme Court in Anwar Hussain Vs. State of UP, AIR1981 SC 2071 held as under:
“Even if there is insufficient light, a witness can identify a person, with whom he is fairly acquainted or is in intimate terms. From his voice, features etc.
Therefore, there is nothing to discard the evidence of PW-8 so far as his claim to have recognised the appellant is concerned.”
In Dalbir Singh Vs. State of Haryana, (2008) 11 SCC 425, it was observed by the Hon'ble Apex Court that it would be possible for a witness to identify an assailant in insufficient light from his voice, gait, features etc. with whom he was fairly acquainted or was in intimate terms.
In view of the above, the contention of learned counsel for the appellant that there was insufficient light to recognise the appellant has no leg to stand.
We have carefully scrutinized and examined the evidence of PW-1, Baij Nath, PW-2, Smt. Shanti Devi and PW-3, Smt. Sharifa Devi and we find that they have been correctly marshalled and assessed by the learned Trial Court.
In view of what has been indicated above, we are of the view that the prosecution has successfully proved its case beyond all reasonable doubt against all the accused- appellant.
Accordingly, the criminal appeal is dismissed.
The appellant is on bail. He shall be taken into custody forthwith to serve out the sentence awarded to him by the learned Trial Court.
Office is directed to send a copy of this order to the court concerned for compliance and compliance report be submitted to this Court within two months.
(Krishna Pratap Singh, J ) (Pankaj Naqvi, J)
Order Date :- 27.7.2018 Ishrat