Hon'ble Akhtar Husain Khan,J.
Heard Sri K.D. Tripathi, learned counsel for the sole appellant and learned Additional Government Advocate for the State-respondent.
This criminal appeal is directed against the judgement and order passed by the Additional Sessions Judge, Karwi (Banda) dated 24th January, 1994 in Sessions Trial No. 14 of 1991 being Crime No. 141 of 1991, Police Station Mau, District Banda.
Under the judgement impugned, the appellant along with other accused Baccha has been convicted of an offence under Section 302 of the Indian Penal Code and has been sentenced with imprisonment for life with a fine of Rs. 1000/-. In case of default, he is required to undergo rigorous imprisonment of two months.
The case of the prosecution, as reflected from the records of the present appeal, is as follows:
The first informant, Chandrakaliya, widow of the deceased Laltu Kevat lodged a first information report with the Police Station Mau, District Banda on 16th November, 1990 at about 8.10 p.m. In the first information report, it was stated that the father of the first informant had transferred his entire land holding through a registered deed in the name of the husband of the first informant. This land was being cultivated by the husband of the first informant since long. Brother-in-law of the first informant i.e. sister's husband Shiv Kumar, on the basis of a will-deed, had filed a case. Today i.e. 16th November, 1990 at about 4.00 p.m. nephew of sister's husband Bachcha and Phudadi (Kudadi) Kevat son of Ram Kumar Kevat, resident of Shivpur, Police Station Mau, Banda were forcefully cutting away the crop of Bajara standing on the plot in question. The husband of the first informant asked them to not to do so. On this Bachcha and Kudadi (Phudadi) assaulted the husband of the first informant with "Farsa" and "Lathi", because of the injuries inflicted, he expired. The incident has been witnessed by the first informant, her daughter-in-law (son's wife) and son Ram Vishal, Shyam Dubey of her village and other residents of the village. The assailants, on being challenged, ran-away towards the village.
The distance between the place of incident and police station was nearly 6 kilometres.
On registration of the first information report, investigation was initiated, the police reached the place of incident. Inquest and other relevant documents were prepared. The dead body of the deceased Lalatu Kevat was sent for post-mortem. The post mortem on the dead body of the deceased was performed by Dr. K.K. Tiwari, Medical Officer, Community Health Centre, Karvi, Banda on 17th November, 1990 at 4:10 p.m. Ante mortem injuries found on the body of the deceased Laltu Kevat are as follows:
Þ1& dVk gqvk /kko nkfguh rjQ flaj ij 9-1 X 1-1 lseh ds {ks=Qy esa nkfguh lqij ¼fld½ ds 2 lseh mijA fdukjs lkQ dVs gq, FksA eflr"d rd ?kko xgjk FkkA vUnj ds fV L;wt rFkk QzUVy rFkk nkfguh iSjkbVy gMMh dVh gqbZ FkhA buds chp fnekx dk fgLlk dVk QVk FkkA 2& ysljsVsM oqUM flj ij nkfguh vksj 6-8 X 1-9 lseh ds {s= esa ?kko la[;k 1 ds 1 lseh ihNsA fdukjs vfu;fer dVs FksA uhps ds Vhlw dVs QVs rFkk nkfguh iSjkbVy gMMh VwVh gqbZ FkhA 3& ysljsVM oqUM flj ij chp ds fgLls ij 4 X 8 X 2 lseh0 ds {ks=Qy esa ?kko la[;k 1 ls 3 lseh ihNs o vUnj dh vksjA vUnj ds Vhlw ysljsVsM FksA dsoy gMMh rd xgjk ?kko FkkA 4& pksV uhyxw 10-1 X 3-8 lseh ds {ks=Qy esa ?kko ua01 ls yxHkx feyk gqvk nkfguh rjQ uhps dh A QzUVy rFkk iSjkbVy gfM~M;ka dbZ txgksa ls VwVh gqbZ FkhA fnekx Hkh ysljsVsM FkkA 5& pksV [kjksap psgjs ij nkfguh rjQ 3-2 X 2-8 lseh ds {ks=Qy esa nkfguh vka[k ls fcydqy ckgj dh vksjA 6& pksV [kjksap nkfguh rjQ 7& pksV [kjksap nkfgus da/ks ij 2-9 X 2-2 lseh ds {ks=Qy esaß Police took possession of the Cycle and Hasiya from the site. Possession memo in that regard was prepared. Similarly blood stains soil and simple soil were also taken in possession and Fard was prepared. Photo lash, Chalan lash, site-plan and Fard of Bajra were prepared. After investigation was completed, a charge-sheet was submitted against the two named accused.
On behalf of the prosecution, first informant Chandrakaliya, an eye witness, was examined, as P.W.-1.
Son of the deceased and the first informant, Ram Krishna, aged about 10 years old, as another eye witness, was examined, as P.W.2 Dr. K.K. Tiwari, Medical Officer, Community Health Centre, Karvi, Banda, who performed the post mortem of the body of the deceased Laltu Kevat, was examined, as P.W. 3.
Sub-Inspector Mani Ram, who was the investigating officer, was examined, as P.W.4.
Accused denied the charges and claimed trial. It was submitted on their behalf that they have been falsely implicated.
On behalf of the accused, one Durga Prasad was examined, as D.W.-1. Ram Kumar, father of the accused was examined, as D.W.-2, while accused Shyam Lal alias Kudadi (Phudadi) himself entered the witness box, as D.W.-3, after taking permission from the trial court.
Certain documentary evidence with regard to the extracts of Khatauni was also filed before the trial court from the side of the accused.
Eye-witness, first informant Chandrakaliya, widow of the deceased had stated that in the morning of 16th November, 1990, she had gone to the plot along with her son's wife, sons Ram Krishna and Ram Vilash/Vishal, for the purposes of cutting of the Bajra crop. Bachcha and Phudadi (Kudadi) were present at the site. They asked the first informant to not to cut the Bajra crop, failing which they will kill them. On hearing all this, the first informant along with others returned home. Laltu Kevat, husband of the first informant had gone to Mau for attending a Panchayat in respect of dispute of the same plot. On return, he was informed by the first informant of the incident, which had taken place in the morning. Laltu Kevat, on hearing the incident, stated that he had grown the said crops, therefore, he had a right to cut the same. He stated "let us see, who stops them from cutting the crop". Laltu along with the first informant, son's wife and sons Ram Krishan and Ram Vilash/Vishal accordingly proceeded towards the plot. On reaching the plot, Laltu asked the accused to not to cut the standing crop. Bachcha and Fudadi (Kudadi), who were armed with Farsa and Lathi respectively assaulted Laltu with the weapons in their hand. Because of the injuries, Laltu expired on the spot itself. It was specifically stated that Bachcha had inflicted one blow from Farsa (Kudali), while Fudadi (Kudadi) had inflicted 5-6 blows by Lathi upon the deceased Laltu. First informant and other family members started shouting. Hearing the screaming, Shyam Dubey reached the spot along with others.
The accused ran-away from the spot. It was further stated that the first informant had got the first information report registered, the same was written by one Abhimanu S/o Daya Ram Singh on the dictation of the first informant. Written information was produced at the police station for recording of the first information report. The first informant specifically deposed the manner, in which the incident had taken place.
10 years old son of the first informant and the deceased, namely, Ram Krishna, P.W.2 also narrated the eye witness account of the incident. The trial court specifically recorded that although P.W.-2 was a child of 10 years of age only but the narration of incident, as done by him, inspires confidence and appears to be natural.
Dr. K.K. Tiwari, who performed the post mortem of the dead body of the deceased in his evidence proved the post mortem report, which disclosed one injury by Farsa and 6 injuries, which could have been caused by Lathi. The cause of death was reported to be injuries nos. 1 to 4 and that injuries could have been affected with Farsa and Lathi. The time duration of injuries could be at 04:00 p.m. on 16th November, 1990.
The accused Shyam Lal Alias Fudadi (Kudadi) appeared as D.W.-3, after permission of the trial court, in his statement, submitted that deceased has been done to death by Bachcha i.e. the other accused and that he has been falsely implicated. However, he admitted his presence at the site and also produced key of cycle, which was seized from the spot by the Investigating Officer.
It was the case of the defence that there was an old enmity between Bachcha and Phudadi (Kudadi), and therefore, there was no reason for them to formed a common intention to assault and kill the Laltu Kevat.
The trial court, after considering the material evidence brought on record found that the first information report was prompt. Having regard to the distance between the police station, date, time and place of the incident, mode of transportation available. Prosecution story was established by the ocular evidence of the eye-witnesses and well supported by the medical evidence. Further the accused Phudadi/Kudadi in his statement as D.W.-3 had admitted his presence as well as that of the other accused Bachcha at the date, time and place of the incident. The trial court further found that the assault, which had been made by Bachcha upon Phudadi/Kudadi, was nearly 5 years ago. Therefore, the trial court came to the conclusion that in facts of the case, the prosecution has been able to bring home the charges with certainty against the accused. It accordingly convicted them of an offence under Section 302 of the Indian Penal Code and punished them imprisonment for life.
Learned counsel for the appellant made an attempt to pin-point certain discrepancies between the oral testimony of the informant (wife of the deceased), P.W.1 vis-a-vis the statement of the minor child Ram Krishna, P.W.2. He suggested that there were inconsistency in the statements so made qua the mode and manner of the incident. It is also stated that there was no motive to kill the accused and that appellant has falsely been implicated. Effort was made to suggest that the field in which the incident has taken place, was in possession of Durga Prasad, extract of Khatauni and Khasara were filed in support thereof. He, therefore, submits that the trial court has wrongly held the appellant guilty of an offence under Section 302 of the Indian Penal Code.
Learned Additional Government Advocate on behalf of the State disputes the correctness of the contentions raised on behalf of the appellant. He submits that in the facts of the case the first information report was within reasonable time. The prosecution story, as narrated in the first information report, was well supported by eye witnesses account as well as by the medical evidence.
The prosecution in the facts of the case has been able to bring home the charge with certainty against the accused appellant. The discrepancies between the oral testimony of P.W.1 and P.W. 2, eye-witnesses of the incident is trivial in nature and shall not vitiate the prosecution story. He further submits that in the facts of the case, offence under Section 302 had been established beyond doubt.
We have considered the submissions made by the learned counsels for the parties and have examined the records of the present appeal.
In the case of Sampath Kumar Vs. Inspector of Police, Krishnagiri, reported in 2012 (IV) SCC 124, the Apex Court held, that minor contradiction are bound to appear in the statement of truthful witnesses as memory sometimes plays false, sense of observation differs from person to person. Discrepancies in testimony of a witness caused by memory lapses are acceptable.
The he Apex Court in the judgement reported in (2013) 12 SCC 796; Mritunjoy Biswas vs. Pranab alias Kuti Biswas and another (paras 28 to 31) has held that minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the Investigating Officer not going to the root of the matter, would not ordinarily permit rejection of the evidence, as a whole.
What is material omission and material discrepancy, which may be relevant for discrediting the evidence of a prosecution witness, have also been explained in the said judgement of the Apex Court.
Judged in the aforesaid legal background, We find that whatever the discrepancies have been pointed out by the learned counsel for the appellant are trivial in nature. The eye-witness account of the incident as deposed the first informant, P.W.-1 Chandra Kaliya and eye witness account of Ram Krishna, son of deceased, the minor child aged about 10 years, P.W. 2 which has been found to be trust-worthy, and to have disclosed the incident naturally. The ocular evidence is fully supported by the medical evidence. Both the prosecution witnesses have specifically stated in their testimony that only one blow had been inflicted by "Farsa", while 5-6 blows had been inflicted by "Lathi".
We may record that the Apex Court in the case of Lokesh Shivakumar vs. State of Karnataka reported in (2012) 3 SCC 196 has held that issue of motive looses all significance once the prosecution case is fully established by reliable ocular evidence coupled with medical evidence.
We find that the accused Phudadi/Kudadi, D.W.3 in his testimony had admitted his presence along with the other accused at the place of incident, on the date and time. He in fact had produced the key of the cycle, which had been seized by the police from the place of incident. The co-accused has stated that the deceased Laltu had been done to death by the other accused, namely, Bachcha. The trial court has rightly held that the accused was present at the time and place of incident. Death caused to the deceased by the injuries inflicted is also admitted and only difference was with regard to the manner in which he has been done to death.
In the totality of the circumstances as are on record, we find that the trial court has rightly held that the prosecution has been able to bring home the charge with certainty against the accused and rightly convicted them of an offence under Section 302 of the Indian Penal Code. They have been punished with imprisonment for life with a fine of Rs. 1000/-. In case of default he was required to undergo rigorous imprisonment of two months separately.
We find no error in the impugned judgement of the trial court.
The conviction of the appellant Phudadi/Kudadi Alias Shyam lal under Section 302 of the Indian Penal Code and also the sentence which has been inflicted for the offence so committed, is affirmed.
The appeal lacks merit and is accordingly dismissed.
The appellant Kudadi/Phudadi @ Shyam Lal is on bail, his bail bond is cancelled and sureties discharged. He shall be taken into custody forthwith to serve out the sentence so awarded to him by the trial court.
The Chief Judicial Magistrate, Banda may ensure compliance of the judgement delivered by this Court today.