Reserved
Court No. - 45
Case :- CRIMINAL APPEAL No. - 4090 of 2005 Appellant :- Rupayee And Another Respondent :- State of U.P.
Counsel for Appellant :- M.W. Siddiqui,A L Gupta,Abida Syed Amicus Curie,Alok Srivastava,Dileep Kumar,K.L. Gupta,Lal Mani Singh,M.K. Srivastava,Noor Mohammad,R.K. Pandey,Rajeev Gupta,S.K. Pandey Counsel for Respondent :- Govt. Advocate,V.P.S. Kushwaha,V.S. Kushwaha
Hon'ble B. Amit Sthalekar,J. Hon'ble Ali Zamin,J.
(Delivered by Hon'ble B. Amit Sthalekar, J.) Heard Dr. Abida Syed, learned Amicus Curiae for the appellants as well as Sri Om Prakash, learned AGA for the State and perused the documents on record.
The present criminal appeal has been filed against the judgment and order of the trial court dated 29.08.2005 passed by the IInd Additional Sessions Judge, Mirzapur in S.T. No.219 of 1997 convicting and sentencing the appellants to undergo imprisonment for life under Section 302/34 IPC and to pay a fine of Rs.5,000/-. In default of payment of fine they shall undergo further six months rigorous imprisonment.
On 02.07.1997 at 7.30 pm. one Rakesh Kumar s/o Bhaggan Maurya resident of Shivpur, Koirana, P.S. Vindhyachal, District Mirzapur lodged an FIR stating therein that he has three sisters; the accused Rupayee Dhaikar of P.S. Vindhyachal used to often come to his house and because of his objectionable behaviour he was scolded by his father, Bhaggan Maurya, as a result of which accused Rupayee bore a grudge and enmity against him. Earlier the accused had come to the house of the informant and threatened his father with dire consequences that he would see him. On 02.07.1997 at about 6 o'clock in the evening when his father was returning home from the shop of Lolarakh Singh and was a little distance away from the said shop the accused Rupayee alongwith Vijayee, both sons of Kallu Dhaikar, and one other person came from the side of the Railway Crossing and reaching close to his father, Rupayee asked his father to stop; just then Rupayee and Vijayee took out Katta (countrymade pistol) and fired at his father whereas the third person fired from another Katta in the air. The father of the informant on receiving bullet injuries fell on the ground. This incident caused so much fear on the road that people who were moving on the road shut their shops and ran away. In the first information report the informant also stated that this incident was witnessed by informant's brother Rajesh Kumar Maurya and Heera Lal s/o Mattar Maurya. By this time the informant's father had died. The three accused persons made good their escape after waving their weapons in the air. It is further stated that nobody chased the accused persons due to fear as they were carrying Kattas.
The informant dictated the report to scribe Nizamuddin who also read it out to the informant who signed the written report, Ex. Ka-1 and thereafter he lodged an FIR at Police Station Vindhyachal. The written report, Ex. Ka-1 has been proved by the informant P.W.1 Rakesh Kumar and FIR, Ex. Ka-15 by the Head Constable Heera Lal, P.W.5. He has also proved the signature on the same as well as having made the G.D. entry to that effect in his own writing.
The said crime was investigated by Pushkar Pratap Singh, P.W-7, who has stated that on 02.07.1997 when he was posted as S.H.O. Vindhyachal he had registered Case Crime No.153 of 1997 under Sections 302/34 IPC. He had also gone to the site and taken down the statement of Rakesh- informant- P.W.1 and on the pointing out of Rakesh he had also prepared the site plan Ex. Ka-18. He also collected the blood stained mud and plane mud from the site and prepared recovery memo, marked as Ex.Ka-12 and also made recovery of shoes of the deceased- Bhaggan Maurya, recovery memo, Ex.Ka-11. Thereafter he directed S.I. Niranjan Singh to conduct the Panchayatnama. The Panchayatnama, Ex.Ka-3 of the dead body was conducted on 03.07.1997 and the statement of witnesses Rajesh Kumar Maurya, Heera Lal and Lal Mani were recorded. On 04.07.1997 and 06.07.1997 he had made efforts for arresting the accused persons and conducted raids. On 08.07.1997 one accused person Goverdhan was arrested and his statement was recorded. He had also made efforts for arresting the other two accused Rupayee and Vijayee upto 11.07.1997 but when they could not be arrested appropriate orders were obtained from the court on 14.07.1997 to proceed against them under Sections 82 and 83 Cr.P.C. Thereafter a chargesheet was filed in the court which is Ex.Ka-19.
The post mortem was conducted on 03.07.1997 at 4.00 pm and the time of death has been determined by the Dr., Hari Shankar Singh, P.W.4, who conducted the post mortem report to be about one day previous. Post mortem report, Ex. Ka-13 also mentions Rigor Mortis present on the body. The post mortem report further mentions presence of gas and faecal matter in the large intestine and gas and undigested food in the small intestine. The post mortem report also mentions that stomach is empty. Death has been stated to be due to shock and haemorrhage as a result of ante mortem injuries.
The post mortem also mentions following injuries:-
^^1& vkXus;kL= dk ?kko nkfgus ihB ij ihNs dh rjQ 3 ls0eh0 X 3 ls0eh0 dSfoVh rd xgjk ekalis'kh rFkk nkfgus Iywjk o nkfguk yaXl dks Nsnrk gqvk ckgj ds rjQ ftls ?kko esa ,d joj dSi o IykfLVd dk IysV fMLd Qalk Fkk ftldks fudkydj lhy fd;k x;kA ;g izos'k ?kko FkkA 2& vkXus;kL= dk ckgjh ?kko fudyus dk lkbt 2-5 ls0eh0 X 2 ls0eh0 nkfgus lhus ij vkxs dh rjQ nkfguk yaXl iapM+ FkkA 3& vkXus;kL= dk Qk;j vkQ mWM vkQ baVjas'k&3 ls0eh0 X 3 ls0eh0 ekalis'kh rd xgjk nkfgus ta?ks ds e/; Hkkx ij ihNs dh rjQ fudkydj lhy fd;k x;kA pksV ua0 1 o pksV ua0 3 eas mifLFkr FkkA tks izos'k ?kko gS CySdfud 4& vkXus;kL= dk fudkl ?kko 2-5 ls0eh0 X 2-5 ls0eh0 nkfgus ta?ks ds e/; Hkkx eas vkxs dh rjQ ekla i'khs rd xgjk nkfgus lhus dh vkBoha o ukSoha ilyh dh gM~Mh VwVh FkhA nkfguk Iy;wjk o QsQM+k Msest o ÝsDpj FkkA vkek'k; [kkyh Fkk NksVh vkar es v/kipk [kkuk o xSl ekStwn FkkA cM+h vkar eas xSl o Qhdy eVyS mifLFkr Fkk** Dr., Hari Shankar Singh, P.W.4 in his testimony has stated that injury no.1 and injury no.3 are the entry points of the bullets and the injury no.2 and injury no.4 are the exit points of the bullets. P.W.4 has proved the post mortem report. He has also mentioned that as a result of injury no.3 there is blackening present at the spot of entry.
P.W. 4, in his testimony has clearly stated that the injury could have been caused by fire arm / Katta. He has also clearly stated that the death could have occurred on 02.07.1997 at 6.00 pm and the death can be instantaneous due to the injuries received. He has also stated that in the post mortem report the date of the post mortem is mentioned as 03.07.1997 and it is not 09.07.1997.
P.W.1- Rakesh Kumar, informant in his examination in chief has stated that on 02.07.1997 at about 6 pm his father was returning from Patthar ki Andaar (stone heap/stone pile) of Lolarak Singh and the informant was coming about 10-15 steps from behind and just at that time the accused Rupayee and Vijayee came there alongwith one more person who was later on recognized as Goverdhan. Rupayee and Vijayee abused his father alleging that he was Goonda and thereafter all the three accused persons took out Kattas whereupon Rupayee and Vijayee fired at his father. The other accused Goverdhan fired in the air. As a result of being hit by the bullets his father fell on the ground. Rajesh, Heera Lal and Lalmani were also present there and witnessed the incident. P.W.1 immediately rushed to his father and saw that he had died. The three accused thereafter ran towards the Asthbhuja Hill firing in the air.
P.W.1 has further stated that he dictated the FIR to scribe Nizamuddin who also read it out and thereafter the informant signed the FIR which is Ex. Ka-1 and thereafter he lodged an FIR at Police Station Vindhyachal. His uncle Ram Chandra had also gone with him. After lodging the FIR, The Station Officer came with him to the site and inspected the area. During this time the body was lying at the spot where the incident had occurred. P.W.1 has also stated that four days before the incident the accused persons had come to his house and issued threat to his father and also threatened to shoot him.
In cross examination the P.W.1 further stated that there was no criminal case registered against his father Bhaggan regarding Ganja, Bhang or liquor. He also stated that there was no criminal case against his father relating to liquor or that his father used to move around with a weapon. He also stated that his father was never a witness in any case under section 302 IPC or 307 IPC. P.W.1 also stated that there was old enmity with Vijayee and Rupayee relating to molestation of his sister, Rekha Devi and apart from this there was no incident of assault or marpeet between him, his father and the accused persons. His three sisters are Rekha Devi, Nisha Devi and Ramdulari. At the time of the incident Rekha Devi was aged about 13 years, Nisha Devi was aged about 11 years and Ramdulari was aged about 9 years. He has also stated that accused Rupayee used to come to his house often whereas the accused Vijayee used to come sometimes. He has also stated that though the incidence of his father scolding Rupayee never happened in front of him but he had heard about it from his sister Rekha Devi who had complained about the incident to him.
P.W.1 also stated that four days prior to the incident the accused Rupayee had come to his house and issued threats to his father at about 1.00 pm. in the afternoon and at that time the witness was also present. The accused Vijayee had come two days prior to the incident and issued threats at around 12.30 pm.
P.W.1 has further stated that at Shivpur, Vindhyachal near railway line which crossed the Allahabad- Mirzapur Road there is a Daak Bunglow about 300 yards from the railway crossing. To the North of the railway line is the Shivpur Bazar and to the South of the railway line for about 100 yards there are shops on both sides of the footpath. The house of Lolarak Singh is about 20-25 yards from the railway crossing and to the North of the road and to the West is the stone heap/stone pile of Lolarak Singh. Stone heap of Suggan Giri is to the West of the stone heap of Lolarak Singh. From the railway line upto the stone heap of Suggan Giri there are about 10-15 shops to the North which are usually open upto 7-8 pm. Coming from the stone heap of Suggan Giri to the railway line first shop to the North is of Dulai which was a tea shop. To the West of Dullai's shop at a distance of 10-15 meters was the spot where the incident had occurred. From the stone heap of Lolarak Singh the site of the incident would be about 30 steps.
This witness has also stated that his father had taken his meal at about 1.00-1.30 pm. in the afternoon and he was present at that time in the house. The witness has further testified that on the day of the incidence his father had called him and therefore he had gone to the Andaar (heap/pile) of Lolarak Singh with his father. He also stated that on the date of the incidence he had not gone to the Andaar via Asthbhuja crossing rather he had taken a pagdandi (small pathway) which was near the Andaar of Lolarak Singh which is situated to the North East about 25 steps away. When he heard the sound of fire he was about 30-35 steps near the tamarind tree. Two shots were fired, there was no third shot. The persons who had fired the shots were about 2-3 steps from his father to the West.
P.W.1 has also stated that the accused Rupayee fired the first shot and at that time face of his father was to the West and Rupayee's face was to the East. Immediately thereafter Vijayee fired at his father. When his father turned around and tried to run toward the East he could not run and had only turned and the bullet fired by Rupayee had hit his father in his thigh and another bullet fired by Vijayee hit his father in the waist. The accused had said something to his father which he could not hear but prior to firing of the shot the accused had abused his father calling him Goonda. After the shots were fired his father fell on the ground and that there were blood stains on the ground and this spot was 10-15 steps to the East of Suggan's stone heap. At the time of the incidence it was not dark and there was sufficient light at about 6 o'clock in the evening. This witness has further stated that the report was lodged by him which was got written down through scribe Nizamuddin and has been proved by him.
The submission of Dr. Abida Sayed, Amicus Curiae for the appellant is that there was only one fire and therefore only one person had fired the shot and it is not clear as to who out of the two accused had fired that shot.
P.W.1 in his cross examination has clearly stated that he has witnessed the incident and that it was the accused Rupayee who had fired the first shot and immediately thereafter the second shot was fired by Vijayee.
The P.W.2, Rajesh Kumar in his testimony has stated that he alongwith Heera Lal and Lalmani reached near the stone heap of Suggan Giri which was near the tamarind tree. He saw his father coming from the stone heap of Lolarak Singh towards his house and his brother was also coming about 15 steps behind his father. The witness has further stated that his father had hardly gone a few steps ahead of the stone heap when the accused Rupayee and Vijayee alongwith Goverdhan the other accused came from the side of the railway crossing and the accused Rupayee and Vijayee threatened his father saying that they would see him today and immediately thereafter the accused Rupayee and Vijayee took out Kattas from their pockets and fired at the deceased. The third person, Goverdhan who was also carrying a Katta fired in the air. The deceased received the bullet injuries and immediately fell on the ground and died. Thereafter all the three accused ran away towards the hill area. This witness has also stated that Rakesh (P.W.1) alongwith Lalmani and Heera Lal had arrived at the spot. His father had received injuries and died. The P.W.-2 has also stated that the accused had come to his house about 4-5 days earlier to the incidence and issued threats to his father to kill him and his father had told the accused Rupayee not to come to his house and due to that the accused Rupayee had enmity with his father.
This witness has further stated that the incidence of molestation of his sister Rekha Devi had taken place in his house about four days prior to the incidence of killing and for this reason his father had chased Rupayee from his house and told him not to come to his house. He also stated that the incidence of molestation of his sister had taken place in his presence.
P.W. 2 has stated that on the day of this incident he had gone to the Asthbhuja Temple for darshan and was returning from there and he was on the Allahabad Road when he heard the sound of the fire near the stone heap of Suggan Giri and he also saw the accused fire at the deceased. The accused were about 15-20 steps to the East from the stone heap of Suggan Giri. He also stated that his father was between the two accused one was on the West and another was on the East and both were about 4-5 steps from his father. Accused Rupayee made exhortation accusing his father of being a Goonda and also said that he will teach him a lesson which threat was made when he was about 4-5 feet away from his father and immediately thereafter Rupayee fired at his father and thereafter the second shot was fired by accused Vijayee. His father tried to run to save himself but he could not run and collapsed on the road and died. This witness has also clearly stated that two bullets hit his father whereas the third shot was fired in the air.
Thus, the testimony of P.W.2 clearly corroborates the testimony of
P.W.1 with regard to the firing of two shots by the accused Rupayee and Vijayee which resulted in the death of his father- Bhaggan.
The post mortem report further confirms that there were two entry wounds of the bullets and two corresponding exit wounds.
The learned Amicus Curiae then sought to submit that P.W.1 in his testimony has stated that at the time of the incidence the deceased was facing West whereas the accused Rupayee's face was to the East which shows that if the accused Rupayee had fired the shot at the deceased it would not have entered the body of the deceased.
Learned Amicus Curiae further submits that as per site plan the accused Rupayee and Vijayee are shown to be coming from the side of the railway crossing behind the deceased which would be from the East and going towards West, therefore, it was not possible that at the time of firing the shot Rupayee would be facing East.
In our opinion, there is absolutely no dispute as to the direction from which the accused Rupayee and Vijayee were coming from the railway crossing from the East and going to the West behind the deceased. The deceased was also moving in the Western direction. The testimony of the two witnesses P.W.1 and P.W.2 show that there was some exchange of words and Rupayee had also made exhortation calling the deceased a Goonda and immediately thereafter the accused persons had fired at the deceased. Merely because the face of his father was to the West and face of Rupayee was to the East it does not mean that Rupayee was coming from the West and going to the East. P.W.1 has stated that when the accused fired the shots at the deceased, they were 2-3 steps from his father to the West. 2-3 steps from the deceased coupled with exhortation and calling the deceased a Goonda does not mean that the accused persons were coming from the West. This is further established by the fact that the
P.W.2 in his testimony has stated that when he saw the incidence his father was between the two accused and that one was on the West and another was on the East which would corroborate the fact that at the time when Rupayee fired the shot at the deceased he was slightly ahead of the deceased while the deceased was already moving towards West and Vijayee would still have been a few steps behind coming from the East. Therefore, the submission of the learned Amicus Curiae is totally misconceived.
On this point we may refer to the statement of P.W.1 in cross examination where he has stated that the persons who fired at his father were 2-3 steps towards the West from his father which would corroborate the post mortem report and the testimony of the doctor, P.W.4 regarding the injuries and also the fact that if they were to the West of his father it cannot be said that they were coming from West. We may also note here that if there was at all a doubt with regard to the position of the accused vis-a-vis the deceased in the statement of P.W.1 a question could have been put by the defence to the witness to clarify this statement but no question was put to the P.W.1 by the defence to clarify this issue as to how the accused Rupayee was facing East and deceased was facing West.
The Supreme Court in (2013) 7 SCC 278 (Ganga Singh Vs. State of Madhya Pradesh) in paragraphs 12 and 13 has held as under:
“12. According to Mr. Mehrotra, however, PW-5 is not a reliable witness as she has made a significant omission in her evidence by not stating anything about the seizure of the blouse, dhoti and broken bangles which were made in her presence. But we find that no question has been put to PW-5 in cross-examination with regard to seizure of the blouse, dhoti and broken bangles in her presence. If the appellant’s case was that PW-5 cannot be believed because she made this significant omission in her evidence, a question in this regard should have been put to her during her cross- examination. To quote Lord Herschell, LC in Browne vs. Dunn [(1893) 6 R 67]:
“……it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross examination showing that the imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit.”
13. Section 146 of the Indian Evidence Act also provides that when a witness is cross-examined, he may be asked any question which tend to test his veracity. Yet no question was put to PW-5 in cross-examination on the articles seized in her presence. In the absence of any question with regard to the seizure of the blouse, dhoti and broken bangles in presence of PW-5, omission of this fact from her evidence is no ground to doubt the veracity of her evidence.”
The submission of the learned Amicus Curiae further is that the P.W.1 had only heard the sound and did not see the incidence.
In his testimony the P.W.1 has nowhere stated that he had only heard the sound and had not witnessed the incidence. In fact his specific case was that he was walking few steps behind his father and had heard the firing and at that time he was about 30-35 steps away from the tamarind tree towards the North East. He has clearly stated that two shots were fired and that the persons who fired the shots were hardly 2 or 3 steps away from his father to the West. We do not find any ambiguity in the narration of facts by the P.W.1 and the submission of the learned Amicus Curiae is wholly misconceived.
The learned Amicus Curiae then submitted that the P.W.1 in his evidence has stated that the deceased had consumed food at about 1.00-
1.30 pm. in the afternoon whereas in the post mortem report the doctor has mentioned that there was semi digested food found in the stomach.
The submission of the learned Amicus Curiae is completely erroneous and contrary to the post mortem report. The post mortem report , Ex.Ka-13, clearly mentions that the stomach of the deceased was completely empty and that the small intestine was full of gases and undigested food and the large intestine was full of gases and faecal matter.
The learned counsel for the appellants then submitted that the death had been caused by a gun and not by a Katta.
This submission of the learned counsel is without any foundation inasmch as the P.W.4, Dr. Hari Shankar Singh in his testimony has clearly stated that the death could have been caused by a Katta and he has nowhere mentioned that the death was caused by or could have been caused by a gun.
The site plan, Ex.Ka-18, which was proved by the Investigating Officer, shows the spot 'X' where the dead body was lying. Stone heap of Lolarak Singh is about 50 steps from the spot 'X' . The movement of the accused is shown by 'double arrow' and is shown to be coming from the side of the railway line from East to West and then moving South towards the spot 'A' which is the tamarind tree. The width of the road is shown to be about 10 steps and from the tamarind tree the distance between spot 'A' and spot 'X' is shown to be about 18 steps. Spot 'A' in the site plan is the spot from where the P.W.2 Rajesh is stated to have witnessed the incidence and that spot is 18 steps from the spot 'X'.
Reference here may also be made to the statement of P.W.6 Heera Lal, whose name finds mention in the FIR and also in the testimony of P.W.1 and the testimony of P.W.2. P.W.-6 is an independent witness and he has testified on oath that he heard the sound of two shots being fired when he was in front of the tamarind tree and that the accused Rupayee and Vijayee were present there and there was a third person also present; immediately two shots were fired; the deceased- Bhaggan collapsed on the ground; the accused were to the West of the deceased. The accused Rupayee was two steps ahead and the accused Vijayee and the third person was about 3-4 steps to the South.
The testimony of P.W.6 who is an independent witness again corroborates the facts as narrated in the FIR and already testified by P.W.1 and P.W.2 and further corroborates the site plan of the incidence.
We therefore find that there is absolutely no contradiction or variance in the statement of P.W-1 or P.W.2 with regard to the incidence as mentioned in the FIR and the entire incidence stands corroborated not only by the statement of P.W.1 and P.W.2 but also by the post mortem report. The incidence also stands corroborated by the site plan which shows the spot where the accused fired upon the deceased and the movement of the accused and the spot from where the P.W.2, Rajesh witnessed the incidence.
So far as motive is concerned, the same stands established by the narration of facts and events in the FIR, namely, that because of the misbehaviour of the accused Rupayee with the daughters of the deceased (sisters of P.W.1 and P.W.2) the deceased had scolded Rupayee and had forbidden him from coming to the house.
In the First Information Report it is also stated that few days before the incidence Rupayee had come to the house of the deceased and had also extended threats to the deceased.
In his examination-in-chief P.W.1 has reiterated the narration of facts of the FIR and stated that the accused used to come to his house and misbehave with his sisters and that his father had scolded the accused and told them not to come to his house and they had threatened to kill him.
P.W.2 in his testimony had also testified that the accused Rupayee had come to his house and misbehaved with his sisters upon which his father had scolded him and told him not to come to his house upon which the accused Rupayee had also threatened him.
P.W.2 in his cross examination has further stated that four days prior to the incidence Rupayee had come to his house and misbehaved with his sister for which his father had scolded the accused and when this incidence happened he was present in the house.
In their examination under Section 313 Cr.P.C. the accused Rupayee and Vijayee denied the allegations as well as the occurrence of the incidence.
However, on a conspectus of the facts of the case, in our opinion, the prosecution has succeeded in proving the charges against the accused beyond reasonable doubt and there is absolutely no contradiction or variance in the statement of witnesses or the post mortem report or the site plan. We therefore do not find any illegality or infirmity in the order of the trial court dated 29.08.2005.
The appeal is dismissed.
Before concluding, this Court must put on record its appreciation of the efforts put in by Dr. Abida Syed, learned Amicus Curiae in providing valuable assistance to the Court. It is therefore, directed that a sum of Rs.15,000/- be paid to Dr. Abida Syed, learned Amicus Curiae towards fees.
The above amount be paid to Dr. Abida Syed, learned Amicus Curiae by the Registry of the Court within 15 days.
Order Date :- 18.12.2019 N Tiwari