Court No. - 47
Case :- JAIL APPEAL No. - 2998 of 2009 Appellant :- Pappu @ Naunihal Respondent :- State Counsel for Appellant :- From Jail,Yogesh Srivatava Counsel for Respondent :- A.G.A.
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Ifaqat Ali Khan,J.
1. Heard Sri Noor Mohammad holding brief of Sri Yogesh Srivastava learned counsel for the appellant and learned A.G.A Sri Nikhil Chaturvedi and Sri Virendra Pratap Yadav for the State.
2. This Jail Appeal has been filed by Pappu @ Naunihal accused against the judgment and order dated 06.10.2005 recorded by Additional Sessions Judge/Fast Track Court No. 3 Aligarh in S.T. No. 454 of 2004 (State Vs. Pappu @ Naunihal) under section 302 IPC convicting the appellant under section 302 IPC for causing the murder of his brother Yashpal and awarding the sentence of life imprisonment with fine of Rs. 2,000/- alongwith default stipulation.
3. The incident was occurred on 03.03.2004 at 3:00 hours at varamda of the deceased as well as of accused situated at village Jamalpur, Seeya P.S. Gabhana District Aligarh. According to the prosecution Pappu @ Naunihal the appellant was a habitual drunker and his father Keshav Kumar (PW-1) and brother Yashpal (deceased) used to prevent him. On the date of incident Yashpal had gone for selling his sugarcane to sugar-mill Satha and returned at about 24:00 hours in night and after taking meal he slept in varamda of house. At about 3:00 hours on 03.03.2004 the appellant caused gadala injury on the head of the deceased due to sound occurred in inflicting the injury Kamla Devi woke up and father of deceased Keshav Kumar PW-2 and Kamla Devi reached on the spot then the accused told that he had killed Yashpal, thereafter he ran away from the spot alongwith gadala Yashpal expired on the spot.
4. The F.I.R of the incident was lodged on complaint of Keshav Kumar (PW-1). On 03.03.2004 at 10:00 hours at Police Station Gabhana District Aligarh, the entry in GD was made by Suresh Chand HC (PW-3). The matter thereafter was investigated by Investigating Officer Devendra Nath Mishra (PW-6). He started investigation on 03.03.2004 and recorded the statement of Head Constable who prepared the chik F.I.R., thereafter he went on the spot and prepared the inquest of the deceased and recorded the statement of Keshav Kumar PW-1, he made spot inspection and blood mix earth as well as blood stained clothes taken from the spot and prepared his memo. Thereafter, he recorded the statement of other witnesses in the case diary. The accused was arrested on 07.04.2004 and on his pointing out the weapon gadala was recovered from the field of Sukhveer Singh. After investigation he submitted the chargesheet.
5. On Committal S.T. No. 454 of 2004 was registered under section 302 IPC. On behalf of the prosecution Keshav Kumar (PW-1) the complainant and father of the deceased as well as Kamla Devi PW-2 wife of the accused and eye witness, Suresh Chand HC PW-3 who proved the check F.I.R, Dinesh Kumar Srivastava PW-4 who proved inquest of the deceased, Dr. Ashok Kumar Jain PW-5 who proved postmortem report of deceased and Devendra Nath Mishra PW-6 who is Investigating Officer have been examined before the Court and other documentary evidence have been filed. The accused did not adduce any evidence in defence. In statement under section 313 Cr.P.C he denied all the questions put to him and has stated that due to family enmity he has been falsely implicated in this case.
6. The Additional Session Judge after hearing the parties found that the incident has been proved by Keshav Kumar (PW-1) and Kamla Devi PW-2 who were father and wife of accused since it was a night incident and has occurred at varamda of the house, therefore, PW-1 and PW-2 are reliable witnesses and their testimony has been corroborated with the medical and other evidence. It is alleged that the appellant caused injury by gadala. On the body of deceased Yashpal two lacerated and three abrasion were found in the postmortem report. All injuries can be caused by blow of hard blunt object. Thus, the nature of injuries found on the body of deceased corroborates the prosecution version that accused caused injuries to deceased hitting him by gadala. Injury number one is the lacerated wound 2CmX1Cm on right temporal region of skull situated 6Cm above the right ear and there is fracture right temporal bone and extra dural and subdural hamotoma was present and under neath tissues of brain are torn. It is serious injury and as per medical report the death of deceased is caused due to antimortem injuries. Thus, the postmortem report again supports the version of the prosecution that Yashpal deceased expired due to injuries caused by Pappu @ Naunihal on his head by gadala. Thus, the lower court is fully right in convicting the appellant under section 302 IPC and sentencing him for life imprisonment with fine of Rs. 2,000/- alongwith default stipulation.
7. We have considered arguments of the learned counsel for the parties. So far the argument that neither PW-1 nor PW-2 could be said to be a eye witness of the incident, in as much as the incident has allegedly occurred at 3:00 hours and there was no source of light at the place of incident, thus, they were not liable to be believed Kamla Devi PW-2 in her statement has stated that she was sleeping alongwith the appellant and her 3 children in the room attached with varamda. In night after hearing noise of blow inflicted by the appellant through gadala she wake up and came on the spot at that time the appellant was found there. Her mother-in-law also came there alongwith a lalten and in the light of lalten she fully recognized the appellant, the appellant ran away from the spot telling that he has caused injury to Yashpal. In the house of deceased there were only two rooms, appellant alongwith his wife and children were sleeping in one room while the mother, father and two sisters of the appellant were sleeping in the other room. The deceased was sleeping in varamda at that time. Keshav Kumar also said that he immediately came on the spot and at that time the appellant was there alongwith gadala in his hand and he has told that he has caused injury to Yashpal and thereafter, ran away from the spot. Thus, immediately after incident PW-1 and PW-2 both came on the spot. At that time appellant was on the spot alongwith the weapon in his hand and also told that he has caused the injury. The presence of PW-1 and PW-2 on the spot is most natural and cannot be doubted, immediately after the incident they came there, thus the incident cannot be said to be not proved by the statements of PW-1 and PW-2.
8. In this case it is most relevant that PW-1 Keshav Kumar is the father of accused Pappu @ Naunihal and PW-2 Kamla Devi is the wife of accused. Father and wife of the accused will not give the false evidence against their son and husband respectively. Specially in the case where there is no reason of giving the false evidence Hon'ble Supreme Court in Prasad Mohoto Vs. State of Bihar 1994 Supreme Court Cases (Cri) page 55 has held that "where the son of the deceased is the witness he would not let the real assailant escape and substitute him by an innocent person and testimony of son was believed." This ruling applies to the facts of the case as well. The father and wife of accused will never falsely implicate their son and husband respectively. There is no reason to disbelieve PW-1 Keshav Kumar and PW-2 Kamla Devi. Thus, we are of the considered view that PW-1 Keshav Kumar and PW-2 Kamla Devi are the most reliable witnesses.
9. Learned counsel for the appellant submitted that in postmortem report two lacerated wound and three abrasion, thus, total five wounds are found on the body of deceased Yashpal and these five wounds cannot be caused by single blow of gadala. In our opinion this argument of learned counsel for the appellant is not tenable on two grounds firstly these all five wounds are on the right side of skull and face and they can be caused by slipping of gadala. Secondly no where it is the case of prosecution that the accused/appellant assaulted on deceased Yashpal by gadala only once because PW-1 Keshav Kumar has stated that he himself has not seen Pappu @ Naunihal assaulting on Yashpal by gadala. He saw Pappu @ Naunihal holding gadala in his hand and standing near the cot of Yashpal and Pappu @ Naunihal was stating that he has killed Yashpal and if some one will try to catch hold him then he would also kill him. PW-2 Kamla Devi has seen Pappu @ Naunihal hitting at Yashpal with gadala but she has also stated that on the noise of hitting of gadala she wake up. In such circumstances it cannot be said that Pappu @ Naunihal assaulted on Yashpal only once. The probability of hitting gadala on Yashpal by accused more than once cannot be ruled out.
10. It is also worth mentioned that gadala, the weapon used for murder is recovered on the pointing of the accused/appellant.
11. The one of the argument raised by learned counsel for the appellant is that Kamla Devi PW-2 had illicit relation with Yashpal due to which she might have given the false statement in the court. Although such statement was given by accused before the Investigation Officer at that time of recovery of weapon but no such suggestion was put to witness Kamla Devi PW-2 in her cross-examination. The appellant in his statement under section 313 Cr.P.C had also not taken any such defence. On this ground neither it can be said that Kamla Devi PW-2 is not a reliable witness nor it can be a reason for appellant to cause murder of his real brother. No other point has been raised before this court. The counsel for the appellant submitted that in similar circumstances in Criminal Appeal No. 2299 of 2003 (Bechan Shah Vs. State of U.P.) decided on 19.09.2017, the court has reduced the sentence adopting the lenient view. On the ground that the deceased as well as appellants belongs to the same family. Thereafter, the appeal be disposed of for the sentence already undergone by the appellant.
12. We have seen the judgment of Bechan Shan Case (Supra), in case of Bechan Shah it was noticed that the incident has occurred at the spur moment but in present case there was no reason for the appellant for causing the injury, in as much the appellant has not taken any case that there was any quarrel between deceased and him at the time of incident. On the other hand it has came in the evidence that the deceased was sleeping in varamda and the appellant has caused the murder, thus, the fact of the case are different and minimum sentence for the offence of causing murder is life imprisonment which has been awarded by Sessions Judge in the present case.
13. The appeal has no merit it is accordingly dismissed.
Order Date :- 24.3.2018 Vikram