Reserved on 25.05.2018 Delivered on 30.07.2018 Case :- CRIMINAL APPEAL No. - 83 of 1984 Appellant :- Ram Khelawan and another Respondent :- State Of U.P.
Counsel for Appellant :- R.K. Tewari, Anshul.Tiwari, Dharmendra Dhar Dubey, A.C Counsel for Respondent :- A.G.A.
Hon'ble Naheed Ara Moonis,J. Hon'ble Chandra Dhari Singh,J.
(Per Hon'ble Chandra Dhari Singh, J)
01. Heard Sri Dharmendra Dhar Dubey, learned Amicus Curiae appearing on behalf of appellants, Sri Syed Ali Murtaza, learned Additional Government Advocate appearing for the State-respondent and perused the lower court record.
02. The instant criminal appeal, filed on behalf of the appellants, is directed against the judgment and orders dated 16.12.1983 passed by Sri R.K. Gupta, the then Additional Sessions Judge, Allahabad in S.T. No. 170 of 1978 [State Vs. Khelawan @ Ram Khelawan and others] & S.T. No. 172 of 1978 (State Vs. Khelawan @ Ram Khelawan and another) whereby the appellants, Khelawan @ Ram Khelawan son of Chhattu and Khelawan @ Ram Khelawan son of Pachchu, have been convicted and sentenced as under:
Khelawan @ Ram Khelawan son of Chhattu 302 IPC : Life imprisonment 307/34 IPC : Seven years rigorous imprisonment.
Khelawan @ Ram Khelawan son of Pachchu 302/34 IPC : Life imprisonment 307/34 IPC : Seven years rigorous imprisonment.
03. The accused Ram Khelawan son of Chhattu Pasi, Khelawan alias Ram Khelawan son of Pachchu alias Bachchu Chamar and Chchattu son of Maiku, were originally challaned under sections 302, 307 IPC, r/w section 34 IPC and sent up by S.O. Khuldabad. The charge-sheet against the accused was originally submitted as absconders that is against Khelawan son of Chchattu and Khelawan son of Bachhu and Khelawan son of Bachhu while Chhattu Pasi was there under arrest. The case was committed to the court of Sessions by Sri M.L. Agrawal, Chief Judicial Magistrate, vide his order dated 6, June, 1978. The trial of the three accused was proceeding when the accused Chhattu Pasi expired and the trial against him abated. Out of the remaining two accused while the evidence was still being recorded the accused Ram Khelawan son of Bachhu alias Pachhu absented himself and remained absconding and the case was there after separated and the trial of accused Ram Khelawan son of Chhattu proceeded. Some evidence was recorded in that and later on the other Ram Khelawan son of Pachhu was also arrested and his trial proceeded separately and later on both the sessions trials were disposed off by one single judgment by Sri K.D. Sharma, II Additional Sessions Judge, vide his judgment dated 26.02.1981 and he convicted both the accused persons under sections 302 IPC as well as 307 IPC. In the appeal before the Hon'ble High Court it was found that the irregularity amounting to illegality had been committed in the trial and some evidence which was recorded against one accused was read against the other and the criminal appeal no. 590 of 1981 was allowed by the Hon'ble High Court vide its judgment and order dated 30.04.1982 and it was ordered that the trial shall be held again. The trial in S.T. No. 170 of 1978 and S.T. No. 172 of 1978 had proceeded and after conclusion of the trial and arguments, the trial court convicted accused Khelawan @ Ram Khelawan, s/o Chhattu for offence u/s 302, 323 IPC r/w section 34 IPC. The accused Khelawan @ Ram Khelawan s/o Pachhu is found guilty and convicted for offence punishable u/s 302 IPC r/w section 34 IPC and also u/s 323 IPC r/w section 34 IPC.
04. The facts which can be enumerated from the record may briefly be stated thus :
(i). The prosecution case is that the complainant Chand Khan son of Kalloo Khan is a resident of mohalla Pura Manohar Das, P.S. Khuldabad, District Allahabad. That on 5th Day of March, 1978 at about 12.15 p.m., he was returning to his house from Triveni Structural Limited Naini and when he reached near the shop of Chhanne Mian, situated in his mohalla then the accused Khelawan alias Ram Khelawan son of Chhattu and accused Ram Khelawan son of Pachhu Chamar met him along with one more unknown person. The accused persons asked the complainant to entertain them with ice-cream which was being sold nearby. They also abused the complainant. The complainant also abused, on which Khelawan and his companions grappled with him and beat him with slaps and fists. The complainant escaped towards his house, when Chhattu son of Maiku came at the spot and gave danda blows on the back of shoulder and back. The complainant fled away towards his house but all the four persons chased him. The complainant was crying for help and reached his house, when Smt. Munni, his mother came out of the house raising alarm, then Khelawan Pasi fired at her and Khelawan Chamar threw a live country made bomb. The mother of the complainant sustained the fire arm injury and fell down there. On the alarm the witnesses Iqbal Ahmad, Shafiq Ahmad, Peer Mohammad and other reached at the spot and then all four accused persons fled away and they were chased by the witnesses and near the gate of the grove of Bachhaji, the accused Chhattu Pasi was caught. Two constables also reached at the spot and they took accused Chhattu Pasi in custody. The complainant along with constables and Chhattu Pasi reached at the police station while his mother was taken to the hospital by his relatives immediately.
(ii). The complainant Chand Khan orally lodged a first information report at P.S. Khuldabad, District Allahabad at 12.45, pm on the same day 5.3.1978, vide chick FIR Ex.Ka-1 and G.D. report no.23 Ext. Ka-2. Smt. Munni Bibi was sent to the hospital, where she succumbed to her injuries. Initially a crime case no.99 was registered under sections 307 and 323 IPC but after the death of Smt. Munni Bibi the case was converted into 302/307 IPC on the same day. The investigation was entrusted to one Sri Ram Autar Sharma, Sub Inspector of the same police station. He started investigation at once and recorded the statements of the complainant Chand Khan and other witnesses at the police station. He also recorded the statement of accused Chhattu brought in custody and also the two constables who brought the accused Chhattu to the police station. He, thereafter proceeded to the place of occurrence and recorded the statements of the witnesses Iqbal Ahmad and others. He also inspected the site and prepared the site plan vide Ext. Ka-9. He also recovered the pieces of the bomb, cartridges and Tiklies and prepared its Fard, vide Ext. Ka-10, and then he searched the houses of the witnesses. He, thereafter, proceeded to Swaroop Rani Hospital, where he came to know that Smt. Munni Bibi had succumbed to her injuries. The inquest report of Smt. Munni Bibi was prepared by another Sub Inspector Uma Kant (P.W.6), vide Ext. Ka-22 but the I.O. Ram Autar Sharma, examined the witnesses of the inquest report. The complainant Chand Khan was sent to Moti Lal Nehru Hospital for examination of his injuries vide forwarding letter Ext. Ka-3 and he was examined by Dr. T.N. Mathur P.W.4 at 7.00 pm on 05.03.1978 vide injury report Ext. Ka-8. The postmortem examination of Smt. Munni Bibi was conducted by Dr. L.K. Bhargava (P.W.10) on 06.03.1978 at 12.15 am mid night, vide postmortem report Ex. Ka-27. The injuries of Smt. Munni Bibi were examined by Dr. Ramesh Chandra (P.W.11) on her admission to Swaroop Rani Hospital at 1.10 pm on 05.03.1978 vide injury report Ex. Ka-27A.
(iii). The Investigating Officer, Sri Ram Autar Sharma (P.W.5) further made the search of the accused persons and also conducted search and proceedings under sections 82 & 83 Cr.P.C., vide Ext. Ka-12 to Ext. Ka-19 and Ext. Ka-21. He sent the recovered pieces of bomb to the Department of Explosive for examination. The blood stained clothes of Smt. Munni Bibi was sent to the chemical examiner. Before concluding the investigation, he was transferred and the investigations were entrusted to another Sub Inspector Bhullan Ram, who concluded the same and submitted the charge sheet against the three accused persons, named above for offences punishable under section 302 and 323 IPC vide Ext. Ka-11.
(iv). The accused Khelawan @ Ram Khelawan son of Pachchu Chamar absconded and was declared proclaimed offender. The Chief Judicial Magistrate, Allahabad, committed all the three accused persons to the court of Sessions on June 5, 1978. The accused Khelawan @ Ram Khelawan son of Chhattu Pasi was remanded in custody during the trial before the court of Sessions. Since the accused Khelawan son of Pachchu Chamar was absconder, two sessions trial nos. 170 of 1978 and 172 of 1978 were registered respectively. The evidence was originally recorded and the original documents were submitted by the prosecution in S.T. No. 170 of 1978, but after the arrest of the accused Khelawan son of Pachchu, the oral evidence was recorded again in S.T. No. 172 of 1978 and the true copies of the documents filed by the prosecution were also kept on the record of S.T. No. 172 of 1978. The above said two Sessions Trials have been consolidated on the request of the parties, arguments and delivery of judgment of the two Sessions Trials were being disposed of by a common judgment. A copy of the order be also kept on record of S.T. No. 172 of 1978.
(v). The accused Khelawan @ Ram Khelawan son of Pachchu in his statement recorded under section 313 Cr.P.C. has denied the charges leveled against him and stated that he has been implicated falsely due to enmity with the police. The appellant pleaded not guilty and claimed to be tried.
(vi). The prosecution has examined the complainant and the injured Chand Khan P.W. 2 and another eye witness of the locality Sri Iqbal Ahmad P.W. 1 in order to prove the occurrence. The prosecution has further adduced medical evidence by examining doctor T.N. Mathur P.W. 4, L.K. Bhargawa P.W. 8 and Ramesh Chandra P.W.3. In addition the prosecution has examined the formal witnesses like Head Moharrir Syed Ahmad constable P.W. 5 and the Investigating Officer Sri Ram Autar Sharma P.W. 6 and filed the affidavit of K.B. Lal clerk, constable Ramraj Singh P.W. 9 and constable Asharfi Lal P.W. 7.
(vii).The documentary evidence filed by the prosecution consists of the documents prepared during investigations and referred to earlier and also the injury report of Smt. Munni Bibi Ext. Ka-27A (Ka 3) and postmortem report Ext. Ka 27 (Ext. Ka- 2) and the injury report of Chand Khan Ext. Ka-8 (Ext. Ka-10). The prosecution has also tendered in evidence the report of the Chemical Examiner and the Serologist Ext. Ka-29 and Ext. Ka-30 (Ext. Ka-22 and Ex. Ka-23) and the report of the Explosive Department Ext. Ka-31 (Ext. Ka-24).
(viii). Both the accused persons have not given any oral evidence in support of their defence version. However, the accused Ram Khelawan in S.T. No. 170 of 1978 has filed 9 documents vide list 68 Kha. The first three documents are postal registration receipts marked Ext. Kha-1, Kha-2 and Kha-3. The paper no.4 is a carbon copy of a complaint thumb marked by Chhattu son of Maiku addressed to the District Magistrate, Allahabad, but it has not been proved. Paper no.5 is an envelope addressed to the Superintendent of Police and Collector, Allahabad and bears postage stamp of 10 paisa only with postal seals vide Ext. Kha-4. The documents no.5 to 9 are the carbon copies of the first information reports dated 05.11.1976, 19.08.1977, 07.08.1977, 15.02.1976 and 17.04.1976 vide Exts.
Kha-5 to Kha-9.
(ix). The following material exhibits were also produced before the court by the prosecution. Ext.1 is the BURQA; Ext.2 is the SALWAR; Ext. 3 is the JUMPER; and Ext.4 is the DUPATTA; which were worn by the deceased lady Smt. Munni Bibi mother of the complainant Chand Khan. These blood stained clothes were examined by the Chemical Examiner and by the Serologist who reported vide ex. Ka-29 and Ka-30 about the presence of human blood. Ext. 5 are the pellets recovered from from the dead body of Smt. Munni Bibi by Dr. L.K. Bhargawa P.W.10 (P.W.2) at the time of postmortem examination.
(x). The 10th Additional Sessions Judge, Allahabad after considering all facts and circumstances of the case convicted the accused persons for the offences punishable under section 302 IPC and sentenced him to imprisonment for life. Accused- appellant Khelawan alias Ram Khelawan son of Chhattu is ordered to further undergo two months additional imprisonment for the offences under section 323 read with 34 IPC. While accused persons were acquitted from the charges under section 307 read with 34 IPC. The accused Khelawan alias Ram Khelawan son of Pachchu is further undergo seven years rigorous imprisonment for the offence punishable under section 307 read with section 34 IPC. All the sentences have been directed to run concurrently.
(xi). The accused persons filed Criminal Appeal No. 83 of 1984 challenging the judgment and order dated 16th December, 1983 passed by Xth Additional Sessions Judge, Allahabad in Sessions Trial No. 170 of 1978 on the ground that they were falsely implicated in the case and they have not committed any offence as alleged by the prosecution. Since there were material contradictions in the statement of witnesses and therefore, the prosecution has failed to prove its case beyond reasonable doubt.
5. P.W.1, Ikbal Ahmad, is the resident of same mohalla and as his house near the shop of one Chhanne Mian, from where the occurrence started. He is most natural and probable witness of the occurrence. He is neither in relation of the complainant nor has any enmity with the accused persons. He has fully corroborated the sequence of the events as happened in his presence. He has stated in his deposition that about five years before at about 12.30 pm, when he was present at home, he heard some noise from outside, on hearing of the said noise, he went to the shop of Chhane Mian and saw that Chand Khan, Khelawan @ Ram Khelawan son of Chhattu Chamar, Khelawan @ Ram Khelawan son of Pachchu and one known person, they were beating Chand Khan. After some time, Chhattu Pasi came with stick and he also gave several stick blow on Chand Khan. Chand Khan managed to escape from the place of occurrence and started running towards his house. His mother also came out from the house and started crying. On seeing her mother, Chhattu Pasi instructed to other co-accused to kill her and on the instruction, Ram Khelawan Pasi fired on her by his country made pistol, from which she sustained bullet injuries in her abdomen and due to that she died. In the cross-examination nothing has come out contradictory as stated in the examination-in-chief.
6. P.W.2, Chand Khan is the complainant of the case. He has supported the entire prosecution version as contained in the first information report. He has stated in his deposition that on the day of occurrence at about 12.15 p.m., he returned from T.S.L.
Naini, where he had a contract of Weaving the chairs and had engaged some labourers as well. He has very clearly stated that sometimes, when the articles are found short, he used to return in the day, otherwise, he returns normally at about 5.00 pm. He has stated that when he reached the shop of Chhanne Mian, he met accused Ram Khelawan, son of Bachchu and accused Ram Khelawan son of Chhattu along with one unknown person. Both Ram Khelawans' asked him to entertain them with Ice-cream and on refusal all the three persons started beating to the complainant with slaps and fists. The complainant fled away when Chhattu Pasi came from the front side and gave danda blows on his back. The complainant ran away towards his house through the gali raising alarm, while he was being given a chase by the three accused. When he reached near his house, his mother Munni Bibi came out of her house in the gali and she asked the accused as to what they were doing then Ram Khelawan Pasi fired at her with a country made pistol which hit her in the abdomen and Ram Khelawan Chamar threw a bomb, which struck the wall of Mustafa and exploded. The mother of the complainant got down holding her abdomen in her hands. The accused thereafter, fled away but Chhattu Pasi was caught near the grove of Bachaji. He further stated in his deposition that in the meantime two constables also reached there and the complainant proceeded to the police station while his mother was taken to the hospital by his relations Bismillah and Mithan Khan. The witness orally told the matter at the police station Khuldabad, District Allahabad, where his report was recorded. This witness has also proved his report as Ext. Kha-1. He further stated that in the evening at about 7.00 pm, he had gone to Moti Lal Nehru Hospital and there he was medically examined. He further stated that at the time of incident his mother was wearing burkha Ext.1, Salvar Ext.2, Jambar Ext.3 and Dupatta Ext.4. According to him she died at about 6.00 pm, while according to the record she died at about 4.15 pm in the evening. The cross-examination of the witness has been quite lengthy and he has been confronted with minor contradictions in the statement made in the examination-in-chief but no material contradiction has come out from the cross-examination.
7. P.W.3 Dr. Ramesh Chandra was the Medical Officer, at Moti Lal Nehru Hospital, Allahabad. He has stated in his deposition that on 05.03.1978 at about 1.10 pm, he had examined Smt. Munni w/o Kalloo Khan, who brought to him by Abdul Hamid and in the examination, he had found the following injuries on her person.
“1. Multiple gun shot wounds about 1/2 x 1/2 inch size present in the right hypocondrium in an area of 3” diameter.”
The injuries were fresh in duration and blood was coming out. It was caused by some firearm. He brought the medical register before the court and produced the original. Report mentioned in the register itself and proved its attested copy on the record of this case, which is Ext. Ka-10. He has stated that injury was dangerous to life. He did not write down blackening in the injuries because detailed examination was not possible seeing the seriousness of the patient. In the cross-examination nothing has come out contradictory as stated in the examination-in-chief.
8. P.W.4 Dr. T.N. Mathur, was the Medical Officer of Moti Lal Nehru Hospital, Allahabad. He has stated in his deposition that on 05.03.1978, he had medically examined Chand Khan, the complainant of this case, who was brought by constable Rajendra Prasad of P.S. Khuldabad and found the following injuries on his person:
Reddish contusion 1-1/4 x 1-1/4” on the right side of back upper part 3/4 inch lateral to mid line.
He has stated in his deposition that the injury was caused by some blunt weapon and was simple and fresh. The doctor has also stated that the injury could be caused at about 12.00 noon. The doctor has proved the injury report as Ext. Ka-2. He also stated that the injury could not be self inflicted but it could be self suffered which means that someone else might have caused it.
9. P.W.5 Sayed Ahmad, who is the retired head constable/clerk of P.S. Khuldabad, District Allahabad. He deposed that on the date of occurrence he recorded the chik FIR on the oral information of the complainant Chand Khan. He has proved the chik FIR as Ext. Ka-1. He made its entry in the G.D. at report No. 33 at 12.45 pm in the day and the case was registered under sections 307/323 IPC. He also proved the G.D. report as Ext. Ka-3. There were injuries on the body of the complainant and the letter for his examination was prepared marked as Ext. Ka-4 and the complainant was sent for medical examination. He further stated that the accused Chhattu was brought to the police station in the custody of constable Shiv Sagar and Surendra Singh and he was kept in the lock-up of the police station and its entry was also made in the G.D. of registration of the case, already mentioned that on 05.03.1978 at about 7.30 pm in the evening Sri Ikbal Ahmad, the witness in this case informed about the death of Smt. Munni Bibi in the hospital and thereafter, the case was converted under section 302 IPC and its entry was made in the G.D. The witness has proved its copy as Ext. Ka-5. He further stated that on 06.03.1978, one sealed bundle and one sealed envelope was deposited at the police station through constable Gauri Shankar and its entry was also made in the G.D. The witness has proved the same as Ext. Ka-6. On 04.08.1978, the sealed bundle was sent through constable Asharfi Lal and the witness has proved the copy of G.D. entry as Ext. Ka-7. On 06.03.1978, the Inspector Jai Narain Singh had also deposited pieces of exploded bomb and the tikuli of the cartridge in a sealed bundle and its entry was made in the G.D. The witness has proved the same as Ext. Ka-8. In his cross-examination he has stated that in the G.D. of the registration of the case, there was neither any mention of the injuries on the person of the complainant nor the letter for examination of his injuries. In the cross-examination it is not found any material contradictions in the statement made in the examination-in-chief.
10. P.W.6, Ram Autar Sharma, Station Officer, P.S. Chirgaon, District Jhansi. He deposed that on 05.03.1978, he was posted as Sub Inspector, P.S. Khuldabad, District Allahabad. He stated that the case was registered in his presence and the investigation of this was entrusted to him. He stated that the accused Chhattu was brought by the constables Surendra Singh and Constable Shiv Kumar Singh and was kept the lock up at the police station. He reached at the place of occurrence, recorded the statements of the witnesses, namely, Ikbal Ahmad, Peer Mohammad, Shafiq Ahmad, Smt. Bismillah, Abdul Hamid Khan and also inspected the spot. He prepared the site plan and proved it as Ext. Ka-9. He has prepared the recovery memo of taking possession of particles of exploded bomb and tikuli of the cartridge and sealed them, which was proved as Ext. Ka-10A. The pieces of bomb were exhibited as Ext. Ka-5. After completing all the formalities, he reached S.R.N. Hospital, Allahabad, where he was informed that Smt. Munni Bibi died, her panchyatnama was conducted by Sub Inspector Uma Kant Shichan, who at the relevant point of time was also posted at P.S. Khuldabad, the witness proved the panchayatnama as Ext. Ka.12. He also proved all the papers entered in the G.D.
11. P.W.7, Asharfi Lal (Constable C.P. No. 1432), has deposed that he was posted as constable at police station Khuldabad. On 04.08.1978, he had brought two sealed bundles containing clothes of the deceased Smt. Munni Bibi and envelope containing pellets and deposited them in the sadar malkhana. On the same day, he had taken the blood stained clothes in a sealed bundle from sadar malkhana and sent them for analysis to Chemical Examiner, Agra and after chemical examination he deposited those clothes in the sealed bundle in sadar malkhana on 07.08.1978.
12. P.W.8, Dr. L.K. Bhargava is the Medical Officer, Moti Lal Nehru Hospital, Allahabad and he deposed that on 06.03.1978, he had conducted the postmortem examination of the dead body of Smt. Munni Bibi, which was brought to him by constable Gauri Shankar and constable Ram Raj Singh in a sealed condition and it was identified by the constables. The seals were intact. The dead body was about half a day old and the rigor-mortis was also present on her body. The following anti mortem injuries were found on her person:
“12 Gun shot wounds each 1/2 cm x abdominal cavity deep in the middle of the abdomen 3” x 3” area 2” above the umbilicus. The margins were inverted and there was light blackening and all these injuries were wounds of entry.”
13. During internal examination it was found that in the peritoneum below injury no.1 there were 12 holes and in the abdominal cavity one pint of blood was present. (2) In the stomach a small quantity of half digested food was present. (3) The small intestine was full. (4) The large intestine was also full of faecal matters. (5) The liver was lacerated at five places.
The death was caused due to shock and haemorrhage because of the injuries sustained by the deceased. The clothes of the deceased i.e. Burka Ext.1, Salvar Ext.2, Jampar Ext.3, Dupatta Ext.4 were taken from the dead body and were sealed in a bundle and given to constable Ram Raj Singh. Five pellets were also recovered from the dead body and sealed in an envelope and sent to S.S.P. Allahabad through C.M.O. All injuries were sufficient in the ordinary course of nature to cause death. P.W.8, has also proved the postmortem report as Ext. Ka-23. He has opined that the death might have occurred at about 5 or 6 pm on the preceding day.
14. P.W.9, Head Constable 288, Ram Raj Singh, resident of Sallahpur, P.S. Puramufti, District Allahabad. He has stated that on 05.03.1978, he was posted as Head Constable, P.S.
Khuldabad, District Allahabad. He further stated that on that day he had brought the dead body of the Smt. Munni Bibi along with relevant papers from SRN Hospital, Allahabad and deposited in the Mortuary. He was accompanied by constable Gauri Shankar. The dead body was identified in his presence and after postmortem, he brought the dead body to the police station. The seals were intact.
15. Learned counsel appearing on behalf of the appellants has specifically argued that the prosecution has utterly failed to prove the charges against the appellants. He further submitted that the presence of complainant Chand Khan (P.W.2) at the time and place of occurrence is not probable and reliable. It is in evidence that the complainant Chand Khan (P.W.2) had taken a contract of canning the chairs in Triveni Structural Limited (T.S.L.), Naini for last about 15 days and he had engaged 3-4 labourers to do the work. It is also contended that it is in evidence that he used to go to T.S.L. In the morning and returned in the evening. But on the day of occurrence he happened to return home earlier at about 12.00 noon, because on that day the canning material had finished and more labourers had come there for the job. It is in evidence that in order to purchase more canning material he had come back to the house, therefore, his presence at the spot is doubtful.
16. Learned counsel appearing on behalf of the appellants also challenged the place and time of the occurrence and killing of Smt. Munni Bibi, mother of the complainant Chand Khan (P.W.2). It has been suggested in cross-examination of the complainant Chand Khan (P.W.2) that the complainant's mother was killed in the early morning by some strangers. There was no specific suggestion of any place of her killing in the cross-examination of the complainant, but the accused Ram Khelawan son of Chhattu stated in his statement recorded under section 313 Cr.P.C. that Smt. Munni Bibi was killed near the Nala in the darkness of the early morning by some strangers. There is no evidence on record to support this statement of the accused. Learned counsel appearing on behalf of the appellants submitted that the incident did not occur at the alleged place as per the varying statement of the eye witnesses and that of Investigating Officer with a view to raise an inference, therefore, he submitted that the place of occurrence has not been proved by the prosecution.
17. Learned counsel in defence has also challenged that the accused Khelawan @ Ram Khelawan son of Chhattu was arrested near the place of occurrence after some chase. He has suggested that Khelawan @ Ram Khelawan son of Chhattu was arrested from his house in the evening by the police and thereafter, a false report was lodged. This suggestion is based on the statement of accused Khelawan @ Ram Khelawan son of Chhattu and the carbon copy of the report dated 8.6.1978 allegedly thumb marked by Chhattu son of Maiku, vide paper no. 70 Kha, which has not been proved and marked as exhibit.
18. Learned counsel appearing on behalf of the appellants submitted that the Smt. Bismillah and her husband Abdul Hamid Khan have not been produced by the prosecution and an adverse inference should be drawn against them. It is in evidence that Smt. Bismillah carried Smt. Munni Bibi from the place of occurrence to the hospital but she joined by her husband Hamid and the presence of Hamid was noted in Swaroop Rani Hospital by Dr. Ramesh Chandra (P.W.3), who recorded the injury report of Smt. Munni Bibi. It thus, appears that Sri Hamid was not an eye witness and Smt. Bismillah, who resided in the adjoining house to the place of occurrence, came out after hearing the hue and cry and did not see the accused persons and the assaults.
19. That the accused persons had no common intention to commit the murder of the deceased and therefore, they cannot be held guilty of the offence punishable under section 302 read with section 34 IPC. It is stated that the accused-appellant Khelawan @ Ram Khelawan son of Chhattu had only assigned danda and he gave a blow to the complainant P.W.2 while he was running away towards his house. The intention of accused- appellant Khelawan @ Ram Khelawan son of Chhattu was only to the extent of causing simple hurt and not to commit the murder because he had also reached at the later stage when the other persons, namely, Ram Khelawan Pasi and Ram Khelawan Chamar and one stranger were already beating the complainant.
20. Learned counsel in the alternative has urged without prejudice that even, if, the prosecution case, as projected, is accepted in its entirety, no case for murder or attempt therefor has been proved and, therefore in any view of the matter, the sentence needs to be reduced appropriately and the accused may be convicted under section 304-I IPC.
21. Learned Additional Government Advocate appearing on behalf of State has argued that on the face of entire evidence and testimony of eye witnesses supported by the medical evidence, the prosecution has proved its case beyond all reasonable doubt and thus, the judgment of the court below does not warrant any interference by this Court. The instant criminal appeal has no merit and therefore, it deserves to be dismissed.
22. We have examined the evidence pertaining to the incident available on record and also perused the lower court records.
23. Now the question arose as to whether hitting of danda by accused Chhattu Pasi was also in furtherance of common intention to commit murder of complainant Chand Khan. We feel that the use of danda in the case in hand was not in furtherance of common intention to attempt to commit murder of the complainant Chand Khan.
24. Having considered all the circumstances, oral and documentary evidence of the case and giving our anxious consideration to all such evidence from every angle in all probabilities and improbabilities, we come to a definite conclusion that the prosecution had fully proved its case beyond all reasonable doubts. The medical evidence reveals, injuries on the body of the deceased and on the complainant Chand Khan with the weapon used, charges leveled against the appellant, have been proved beyond all reasonable doubts.
25. However, in the peculiar facts of the case and noticing in particular, the projection of events culminating in the tragic incident, we are inclined to reduce the sentence awarded to appellant no. 2. Incidentally, the occurrence is of the year 1978 and meanwhile forty years have elapsed. Further, having regard to the root cause of the incident and the events that sequentially unfolded thereafter, we are of the comprehension that the appellant was overpowered by an uncontrollable fit of anger so much so that he was deprived of his power of self-control and being drawn in a web of action reflexes, fired at the deceased and the injured, who was within his sight. The facts do not commend to conclude that the appellant had the intention of eliminating any one of those fired at, though he had the knowledge of the likely fatal consequences thereof. Be that as it may, on an overall consideration of the fact situation and also the time lag in between, we are of the view that the conviction of the appellant ought to be moderated to one under Section 304 Part (I) IPC. Further, considering the facts of the case in particular, according to us, it would meet the ends of justice, if the sentence for the offences is reduced to 10 years rigorous imprisonment. We order accordingly.
26. It is informed by the learned counsel for the appellant that the appellant no.1 Khelawan @ Ram Khelawan son of Chhattu had expired in the intervening night of 4/5.9.2017 and vide order dated 29.01.2018, the appeal on his behalf has already stand abated.
27. In the result, the appeal on behalf of appellant no.2 Khelawan @ Ram Khelawan son of Pachchu @ Bachchu Chamar is partly allowed. The conviction of the appellant is converted to one under Section 304 Part (I) IPC and the sentence is reduced to 10 years rigorous imprisonment. In this view of the matter, as a corollary, the appellant is hereby ordered to be set at liberty, if he has already undergone 10 years, forthwith, if he is not required to be detained in connection with any other case.
28. Sri Dharmendra Dhar Dubey, Advocate, was appointed as Amicus Curiae on behalf of appellant Khelawan @ Ram Khelawan son of Pachchu @ Bachchu Chamar to assist the Court in hearing Criminal Appeal No. 83 of 1984. Sri Dharmendra Dhar Dubey, Advocate, rendered his valuable assistance to the Court. The Court quantifies Rs. 10,000/- to be paid to Sri Dharmendra Dhar Dubey, Advocate, towards fee for his assistance provided by him in hearing the Criminal Appeal referred to above. The above amount be paid to Sri Dharmendra Dhar Dubey, Advocate, by the Registry of this Court within two months.
Order Date :- July 30th, 2018 Prajapati [Chandra Dhari Singh, J] [Naheed Ara Moonis, J]