Hon'ble Naveen Srivastava,J.
[Per Arvind Kumar Mishra-I,J.] Heard Ms. Seema Pandey, learned Amicus Curiae for the appellant, Sri Bhanu Prakash Singh and Sri Rajeev Kumar Rai, learned Brief Holders for the State and perused the material available on record. By way of instant criminal appeal, challenge has been made to the correctness and sustainability of the judgment and order of conviction dated 31.10.1985 passed by the Sessions Judge, Jhansi in Sessions Trial No. 37 of 1985 (State vs. Mahendra alias Motey and another), arising out of Case Crime No.326 of 1984, Police Station - Kotwali, District - Jhansi, whereby the accused-appellant- Mahendra alias Motey has been convicted under Section - 302 I.P.C. and sentenced to undergo imprisonment for life.
The relevant factual matrix of this case as discernible from record appears to be that the informant- Ghamandi Lal orally lodged report at Police Station - Kotwali, District - Jhansi on 22.12.1984 at about 12:45 p.m. regarding the occurrence of the same day, which took place around 11:00-11:30 a.m. with the following assertions that informant is Ghamandi Lal son of Ramdas Kori, resident of Mohalla - Sagar Gate, Police Station - Kotwali, District - Jhansi. On 22.12.1984, one Bal Krishna son of Hardas, resident of Mohalla - Sagar Gate, District - Jhansi came to the house of the informant and informed him that his son Narsi has been done to death by an axe by Mahendra alias Motey s/o Rameshwar Badhai and Ghanshyam alias Ramu son of Dayaram Badhai around 11:00 a.m. in the street of 'Potey Baba' near the house of Hari Ram Chamar. The incident has been witnessed by Narendra son of Panna Lal, Pramod son of Ayodhya, Rajju son of Sarman Dheemar, all residents of Mohalla - Sagar Gate, District - Jhansi. Hearing this, the informant rushed to the spot and found his son dead and an axe was also found lying over there. The informant also saw injury on the head and neck of his son, Narsi.
It was also informed that informant's son, Ramu and Motey are pick-pockets and there was some dispute over share of the money obtained by pick-pocketing, due to which some quarrel took place between the informant's son and Mahendra alias Motey (the present appellant), the report in that regard was lodged about one year ago. Thereafter, three-four months before the occurrence, an altercation took place between Ramu and Narsi with regard to outraging the modesty of the sister of Ramu. The father of Ramu also complained about it to the informant. On account of the aforesaid enmity, the informant's son was done to death.
On the oral statement, the report was taken down in the Check F.I.R. by Constable - Moharrir, Ranjit Singh Sengar, who after writing the report, read over the same to the informant and obtained his signature on it. This oral report as contained in the Check F.I.R. is Ext. Ka.1 appears at Case Crime No. 326 of 1984, under Section - 302 I.P.C., Police Station - Kotwali, District - Jhansi and, accordingly a case was registered in the general diary at Rapat No. 16, at aforesaid case crime number under aforesaid sections of I.P.C. The General Diary entry is Ext. Ka.8.
The investigation ensued and was entrusted to P.W.4 Yashpal Singh Punia, who started the investigation on 22.12.1984. The investigating officer has testified to the fact of oral report being lodged by the informant- Ghamandi Lal, while the investigating officer was present at the police station around 12:45 p.m. on 22.12.1984. As per his version, the Check F.I.R. was entered at the instance and on the dictation of the informant, Ghamandi Lal (P.W.1) given to the Constable-Moharrir- Ranjit Singh Sengar. After the report was so taken down in the Check F.I.R., it was read over to the informant who after hearing the same, appended his signature on it. The Check F.I.R. was proved as Ext. Ka.1. The investigating officer has also proved the concerned general diary entry as Ext. Ka.8. He proceeded to the spot in the street of 'Potey Baba' , where he found the dead body and prepared the inquest report (Ext. Ka.2), the very same day. In the opinion of the inquest witnesses and the investigating officer, it was found convenient to send the body for postmortem examination. Therefore, relevant papers were prepared, form no.13, challan dead body, specimen seal and letter to C.M.O./C.M.S. for conducting postmortem examination. These papers are Ext. Ka.3 to Ext. Ka.6.
Thereafter, the dead body was sent for postmortem examination at the mortuary, Jhansi, where the postmortem examination was conducted by Dr. Sudarshan Bhuinya P.W.5 on 23.12.1984 at 1:00 p.m., wherein the doctor found the following ante-mortem injuries on the body of the deceased :-
(1) Incised wound, 11 c.m. x 1.5 c.m. over ocipital bone in middle in horizontal manner, bone deep and the bone is divided into pieces.
(2) Incised wound 8 c.m. x 2.5 c.m., bone deep in horizontal manner from lateral angle of left mandible to back of neck. All the underlying things were cut.
(3) Incised wound bone deep, 11.5 c.m. x 5 c.m. in horizontal manner, 1 c.m. below injury no.2 and all underlying things were cut.
(4) Lacerated wound 4 c.m. x ½ c.m. in horizontal manner, 2 c.m. below the injury no.3.
(5) Abrasion 3.5 c.m. x ½ c.m. over left deltoid muscle in upper part.
(6) Abrasion 0.5 c.m. x 0.3 c.m. over middle of right middle and ring finger on dorsal aspect.
In the opinion of doctor, the cause of death was stated to be due to shock and haemorrhage on account of ante-mortem injuries.
The investigating officer also prepared the site-plan of the spot, which is Ext. Ka.9. He took into his possession an axe (Material Ext.1), which allegedly Motey had left behind on the spot, while running away after committing the murder of Naresh Kumar alias Narsi, sealed it in a bundle and prepared a memo Ext. Ka.10. Besides, he also took into his possession, blood stained and simple earth Ext. 5 and Ext. 6 respectively, and sealed them in containers and prepared a memo of the same Ext. Ka.11. Further, the investigating officer also prepared memo of slipper belonging to the deceased as Ext. Ka.12. Besides the above exhibits, other papers are Ext. Ka.14 and Ext. Ka.15. After completing the investigation, charge-sheet (Ext. Ka.13) was filed against the appellant.
Pursuant thereto, the Sessions Judge, Jhansi, heard both the sides on point of charge and was prima-facie satisfied with case against the accused-appellant, accordingly, framed charge under Section 302 I.P.C. charge was read over and explained to the accused-appellant who abjured the charge and opted for trial.
The prosecution, in order to prove guilt of the appellant examined as many as five witnesses namely P.W.1 who is the informant- Ghamandi Lal, P.W.2 Narendra and P.W.3 Bal Krishna are the two eye witnesses of the occurrence. P.W.4 Yashpal Singh Punia is the investigating officer of this case and Dr. Sudarshan Bhuinya (P.W.5), who conducted autopsy on the body of the deceased Narsi.
Learned Sessions Judge, after due appraisal of facts and evidence on record found charge under Section - 302 I.P.C. proved against the appellant beyond doubt. Consequently, finding of conviction was recorded and accused was sentenced to imprisonment for life, which paved way for this appeal.
Ms. Seema Pandey, learned Amicus Curiae for the appellant has vehemently claimed that in this case, in so far as the F.I.R. is concerned, the same is ante-timed and the occurrence was not seen by any person. The witnesses of occurrence, particularly P.W.2 Narendra and P.W.3 Bal Krishna, respectively are pocket witnesses of the police, their testimony on the whole does not inspire confidence and the same is contradictory. The site-plan of the occurrence does not show the place where the accused-appellant Mahendra @ Motey was standing. The incident in question is not supported by any independent witness. The motive suggested for committing the offence is trivial and the same is not properly established by the prosecution.
Learned A.G.A. has refuted the aforesaid contention raised by learned amicus curiae for the appellant by claiming that the entire incident has been duly proved by the clinching evidence and there is no material contradiction in the testimony of the prosecution witnesses. To claim that the F.I.R. is ante-timed is neither proved nor gathered from the attendant facts and circumstances of the case. The prosecution evidence inspires confidence and is clinching on the point of occurrence. The presence of the eye witnesses near the place of occurrence is quite natural and both the witnesses of fact P.W.2 and P.W.3 are residents of the same locality/village. The conviction and the sentence imposed upon the appellant is justified.
Upon consideration of the rival submissions, the following moot point arises for adjudication of this appeal, whether the prosecution has been able to prove its case against the accused-appellant beyond all reasonable doubt under Section - 302 I.P.C. ?
The occurrence is stated to have taken place on 22.12.1984 around 11:30 a.m. in locality Sagar Gate. After the occurrence took place, information of the occurrence was received by the informant, Ghamandi Lal, son of Ramdas Kori, resident of Sagar Gate, Police Station - Kotwali, District - Jhansi, the very same day on being informed by P.W.3 Bal Krishna, son of Hardas, resident of Sagar Gate, District - Jhansi. He informed that informant's son- Narsi has been done to death by the appellant around 11:30 a.m. and the occurrence took place near the house of Hari Ram Chamar, in the street of 'Potey Baba' by assaulting with axe and the incident has been witnessed by Narendra son of Panna Lal, Pramod son of Ayodhya, Rajju son of Sarman Dheemar, all residents of Sagar Gate, District - Jhansi. Upon coming to know about the occurrence, the informant rushed to the spot, where he found his son dead and one axe lying near him. He also noticed wound/injury on the head and neck of deceased-Narsi.
Bare perusal of the oral report (Ext. Ka.10) reflects that the informant's son and the appellant were indulged in pick-pocketing and some dispute arose on account of share of money so obtained by pick-pocketing. There was also some dispute that took place between the deceased and the appellant one year ago from the date of the incident, regarding which, a report was lodged. It was also alleged in the report that one Daya Ram of the locality had complained that his daughter was teased by the deceased-Narsi and there was some quarrel three months ago between the deceased Narsi and Ghanshyam and because of which, the informant's son was done to death.
Now insofar as lodging of the F.I.R. is concerned, it appears from the testimony of P.W.1- Ghamandi Lal- the informant that as soon as he came to know about the occurrence from P.W.3 Bal Krishna, he rushed to the spot where he found his son dead and he also found the blood stained axe lying on the spot. He went to Police Station - Kotwali, District Jhansi and lodged the report orally to Munshi ji at Police Station - Kotwali and after the same was noted in the Check F.I.R., it was read over to him and then he appended his signature on it. This report in the form of Check F.I.R. has been proved as Ext. Ka.1.
It has been testified by P.W.1 that he was accompanied by one Suresh Dixit to the police station and the distance of the police station from the place of occurrence is stated to be one and a half kilometers. It being so, the oral report was lodged around 12:45 p.m. on 22.12.1984, whereas, the occurrence took place around 11:30 a.m. The inquest report was prepared the very same day and its preparation commenced at 2:10 p.m. on 22.12.1984.
As per the testimony of P.W.4 Yashpal Singh Punia, the report was taken down in the Check F.I.R. by the Constable-Moharrir- Ranjit Singh Sengar orally dictated to him by the informant Ghamandi Lal and at that point of time around 12:45 p.m., the investigating officer was also present at the police station and he has proved the Check F.I.R. as Ext. Ka.1. Nothing has emerged in the cross examination of both the informant P.W.1 Ghamandi Lal and Yashpal Singh Punia, the investigating officer, P.W.4, which may lead to infer about fact that the Check F.I.R. lodged on 22.12.1984 at Police Station - Kotwali, District - Jhansi at 12:45 p.m. is either ante-timed or by any attendant circumstances as well.
Consequently, arguments raised to that ambit is not sustainable. Insofar as the point of occurrence is concerned, then obviously P.W.1, the informant is not a witness of the occurrence. The star witnesses of the occurrence are both Narendra (P.W.2) and Bal Krishna (P.W.3). A conjoint reading of the testimony of both the witnesses brings to the surface fact of occurrence when it has been testified by them that several persons were gambling in the street of 'Potey Baba' near the house of Bhagirath. In the meanwhile, appellant and one Ramu said that they are not having any money. Ramu kept sitting over there, whereas, the appellant (Mahendra @ Motey) went to take money and came back on the spot with one axe. The deceased- Narsi saw the axe and commented the axe is nice '(कुल्हाड़ी अच्छी है)' but the appellant did not respond as the gambling bet was going on. The appellant took his position behind the deceased Narsi and caused axe blow on his head. The accused Ramu present over there also exhorted him and the appellant caused several axe blows on the deceased. The first axe blow given by the appellant made Narsi to fall on the ground and after that two separate axe blows were given by him, on account of which, Narsi died. The other co-accused, who were present on the spot, fled away from the scene. The appellant left behind the axe on the spot .
It has been specifically testified by Narendra P.W.2 that he was guarding the place, lest some policemen should come. Thus, presence of Narendra on the spot is undoubtedly proved and on this point, nothing adverse has emerged in his cross examination. Only this much has been asked that he is pursuing his studies, then he stated that he has passed 9th class. Now, he has left his studies and at that point of time when the occurrence took place, he was studying in Higher Secondary School, but on on that date of occurrence, he did not attend his school. He also has stated about the place of occurrence that he was standing at a distance of eight steps from the gamblers in front of the house of Soni. Narsi arrived on the spot as soon as betting started and Motey went to his home to take money, but he came back possessing an axe. No one present over there did ask him as to whether he brought the money or not and no one asked him to participate in the gambling.
In his cross examination, this witness (P.W.2) has categorically stated that he used to keep guarding as and when the gamblers indulged in betting on previous occasion too. In his cross examination, he has testified in clear cut terms about the manner of occurrence as to how it occurred. He has stated that the first blow of axe was given to Narsi, which caused him fell on the ground with mouth towards the earth. Thereafter, several axe blows were given to him. He also has stated that he was examined by the investigating officer. It is relevant to take note of fact that a suggestion has been given by the defence to P.W.2 as appearing on page no.31 of the paper book that on the date of occurrence, Narsi, Pramod and Rajju were gambling and the bet was won by Narsi, then they began to snatch money from him, which caused quarrel among them and due to which, the above persons killed Narsi and made their escape goat. The suggestion has been specifically denied. Now, the import of this specific suggestion is that the incident of gambling on the day of occurrence at the particular place is admitted to the defence itself and there is no denying of fact that no such gambling ever took place.
Conversely, the defence has not been able to establish fact that in fact some quarrel arose among Narendra P.W.2, Pramod and Rajju and they murdered Narsi. Here suggestion has been made to another witness Bal Krishna P.W.3 too that he was not present on the spot. However, he has categorically stated that he was present on the spot, not only he but also Narendra P.W.2 was present on the spot and he has dittoed the version of the occurrence in line with that of P.W.2 Narendra. In his cross examination P.W. 3 Bal Krishna has stated that he is not related to Ghamandi Lal and he has clarified to the point of axe blow being caused to Narsi by the appellant-Mahendra @ Motey.
From bare perusal of the ante mortem injuries, we discover that as many as six ante-mortem injuries have been caused on the body of the deceased. The doctor witness has categorically opined that injury nos.1 to 3 could have been caused by axe. Here the testimony of doctor witness, Sudarshan Bhuiyan is worthy of examination. He has proved the postmortem examination report Ext. Ka.7. However, genuineness of postmortem examination report is admitted to the defence. The doctor has opined that these injuries could have been caused around 11:30 a.m. on 22.12.1984 and injury no.4 could have been caused by the blunt side of the axe and injury nos. 1 to 4 as above were sufficient to cause death of the deceased, whereas, injury nos.5 and 6 could have been caused, while falling on the ground. That way, the manner and description of committing the offence by the present accused-appellant is proved satisfactorily to the hilt.
Further, vide general diary entry no. 44, dated 19.02.1985, which is Ext. Ka. 15, the case property was sent for chemical examination at the laboratory concerned at Agra, whereby chemical examination, report dated 21.08.1985 Ext. Ka.16 has been obtained and the report indicates that human blood of Group-A was found on T-shirt, Angauchha and axe. That way, the use of axe in the commission of the offence also stood proved. This particular aspect regarding the manner of occurrence being caused by the appellant has been taken into consideration by the trial court too in a consistent manner. In the cross examination, Dr. Sudarshan Bhuinya P.W. 5 has stated that injury nos.1, 2 and 3 were caused by separate blows and these injuries are admitted to the defence and this was sufficient to cause death in the ordinary course of nature, as per testimony of the doctor witness.
We have already considered the material aspects of the occurrence, which reasonably fit in the attendant circumstances and facts of this case and it eventually turns out that the prosecution has been able to prove charge against the accused-appellant beyond shadow of doubt. The learned trial court has also taken comprehensive view of the entire occurrence and has discussed its various aspects and rightly recorded conviction against the present appellant and passed sentence against him, which needs no interference, at this juncture, for aforesaid specific reasons.
Accordingly, we uphold the judgment of conviction and order dated 31.10.1985 passed by the Sessions Judge, Jhansi, in Sessions Trial No. 37 of 1985 (State vs. Mahendra alias Motey and another), arising out of Case Crime No. 326 of 1984, under Section - 302 I.P.C. Police Station - Kotwali, District - Jhansi. Consequently, the aforesaid appeal lacks merit and the same is dismissed.
In this case, appellant - Mahendra alias Motey is in jail. The appellant shall serve out the remaining sentence imposed upon him by the trial court.
Let a copy of this judgment/order be certified to the court concerned for necessary information and follow up action.
Order Date :- 30.9.2021 S Rawat