Court No. - 3 CRIMINAL APPEAL No. 1959 of 1986 Om Prakash & Ors. Appellant
Versus
State of U.P. Respondent
For Appellant : Sri Dharam Pal Singh, Sri Siddharth Niranjan
For Respondent/State : AGA Sri Amit Sinha,
Hon'ble Pritinker Diwaker, J. Hon'ble Umesh Kumar, J.
Per : Pritinker Diwaker, J.
1. This appeal arises out of the impugned judgment and order dated 17.07.1986 passed by Additional Sessions Judge, Ist, Etawah, in Sessions Trial No. 52 of 1984 (State Vs. Om Prakash and three others) convicting the appellants under Sections 302/34 of I.P.C. and sentencing them to undergo life imprisonment.
2. In the present case, the name of the deceased is Keshav Babu. It is said that prior to 10 days of the incident, there was some altercation and 'marpeet' between PW-3 Rakesh and the accused persons. The complainant reached to the father of accused Om Prakash and Surya Prakash namely Sri Krishna and there Om Prakash was compelled by his father to apologize. It is said that all these things were not liked by Om Prakash and he kept it in his mind. On 25.12.1981 at about 02.00 P.M., four accused persons namely Om Prakash, Surya Prakash, Vinod Kumar and Rajesh Kumar had gone to the tea shop of the deceased. At some distance from the tea shop, the acquitted-accused Rajesh Kumar caught hold the deceased whereas remaining three accused caused him knife injuries. Injured Keshav Babu was initially taken to police station from where he was shifted to hospital where during treatment, he succumbed to his injuries.
3. As per record, the incident occurred at 02.00 P.M., injured reached to the hospital at about 03.00 P.M. and he died at 03.08 P.M. In the meanwhile, at 02.30 P.M., PW-1 Sone Shanker, father of the deceased, lodged the FIR, exhibit Ka-2 naming all the accused persons under Section 307 of I.P.C. As the deceased expired immediately after the incident, the FIR was converted into under Section 302 of I.P.C.
4. Inquest, exhibit Ka-6 was made on 25.12.1981 and after completing formalities on 28.12.1981, postmortem, exhibit Ka-19 was conducted by PW-7 Dr. Rajendra Singh and following incised wounds have been noticed:
“i. Incised wound 2 cm x 0.5 cm x cavity deep on the (R) side of chest 4 cm lateral to (R) nipple.
ii. Incised wound 2 cm x 0.5 cm x cavity deep on the (R) side of abdomn 13 cm from (R) nipple.
iii. Incised wound 3 cm x 0.5 cm x cavity deep on (R) side of abdomn 5 cm lateral to injury No. (2).
iv. Incised wound 1.5 cm x 0.5 cm x cavity deep on the (L) side chest in axillary line 14 cm lateral to (L) nipple.”
5. According to the postmortem report, cause of death is due to haemorrhage & shock as a result of injuries sustained.
6. Further case of the prosecution is that the incident has been witnessed by three eye witnesses namely PW-1 Sone Shanker, PW-2 Jagat Narain and PW-3 Rakesh.
7. While framing charge, the trial judge has framed charge against all the four accused persons under Sections 302/34 of I.P.C.
8. So as to hold the accused persons guilty, prosecution has examined seven witnesses. Statement of the accused persons were recorded under Section 313 of Cr.P.C. in which they pleaded their innocence and false implication.
9. By the impugned judgement, the trial judge has acquitted accused nos. 3 & 4 i.e. Vinod Kumar and Rajesh Kumar but has convicted the remaining two accused persons namely Om Prakash and Surya Prakash.
10. During the pendency of this appeal, accused no. 1 Om Prakash has expired and this appeal now confines only in respect of accused no. 2 Surya Prakash.
11. Learned counsel for the appellants submits as under:
(i) that soon after the incident, the deceased was taken to hospital where he succumbed to his injuries and, therefore, question of lodging report against accused persons under Section 307 of I.P.C. does not arise.
(ii) that as per the statement of PW-1 Sone Shanker, no third person was present at the tea shop of the deceased and, therefore, examination of PW-2 Jagat Narain & PW-3 Rakesh, as eye witnesses to the incident, becomes doubtful.
(iii) that the deceased Keshav Babu while being shifted to police station and hospital had informed PW-1 Sone Shanker that injuries were caused to him by accused Vinod and Om Prakash.
(iv) that the statement of PW-1 Sone Shanker, PW-2 Jagat Narain and PW-3 Rakesh are self contradictory and, therefore, they are not reliable.
(v) that once on the same set of evidence, accused-appellant Rajesh Kumar and Vinod Kumar have been acquitted, the accused- appellants Surya Prakash could not have been convicted.
12. On the other hand, supporting the impugned judgment, it has been argued by the State counsel:
(i) that conviction of the appellants is in accordance with law. He submits that the incident occurred on 25.12.1981 at 02.00 P.M. and immediately at 02.30 P.M., FIR was lodged.
(ii) that prompt FIR lodged by PW-1 Sone Shanker, cannot be disbelieved.
(iii) that the FIR was lodged at 02.30 P.M. whereas the deceased died at 03.08 P.M. and, therefore, it is apparent that while registering the FIR, the deceased was alive and thus registration of the same under Section 307 I.P.C. cannot be doubted.
(iv) that all the three eye witnesses have duly supported the prosecution case and there is no reason for this Court to disbelieve their statement.
(v) that minor contradictions in their statements are required to be ignored considering the fact that these witnesses are rustic villagers and their statements were recorded after about 4 years of the incident.
13. Heard counsel for the respective parties and perused the material brought on record.
14. PW-1 Sone Shanker is the father of the deceased and informant. While lodging the FIR, he has categorically stated that the accused persons came to his shop, took the deceased along with them, he followed them and then he saw the accused persons including that of the appellant Surya Prakash causing stab injury to the deceased. He has stated that PW-2 Jagat Narain was sitting near the barber shop and he too reached to the place of occurrence and saw the incident. He has further stated that injured Keshav Babu was taken to police station from where he was referred to the hospital, however, during treatment, he expired.
15. Though there was some minor contradictions in the statement of the witnesses but if the entire statement is seen as a whole, it is apparent that PW-1 Sone Shanker saw the appellant causing stab injuries to the deceased.
16. PW-2 Jagat Narain is another eye witness to the incident. He has stated that it is the accused appellants, who took the deceased along with them near school and there they caused knife injuries to the deceased and then fled away from the spot. In his lengthy cross-examination, he remained firm and defence could not elicit anything from him.
17. Similar is the position of third eye witness Rakesh, who has duly supported the prosecution case and has assigned the role of the appellant in committing the murder of the deceased.
18. PW-4, Vijay Bahadur Singh is the Investigating Officer, who has duly supported the prosecution case.
19. PW-5 Dr. R.K. Gupta is the doctor, who initially attended the deceased in the hospital.
20. PW-6 Nawab Singh assisted during investigation.
21. PW-7 Dr. Rajendra Singh conducted postmortem on the body of the deceased.
22. Close scrutiny of the evidence makes it clear that on 25.12.1981, it is the accused appellant, who with the help of other accused persons committed the murder of the deceased. The incident has been witnessed by PW-1 Sone Shanker, PW-2 Jagat Narain and PW-3 Rakesh and all these three witnesses have duly supported the prosecution case. Statement of these three eye witnesses have been duly supported by the medical report of the deceased where number of stab injuries were found on his body.
23. We find no substance in the argument of the defence that the FIR under Section 307 of I.P.C. could not have been registered. Admittedly, the incident occurred at 02.00 P.M., the report was registered at 02.30 P.M. whereas the deceased died at 03.08 P.M.
24. We further find no substance in the argument that once on the same set of evidence the other accused persons have been acquitted, the present appellant Surya Prakash could not have been convicted. Acquittal of accused Rajesh Kumar and Vinod Kumar is on different ground and here the appellant cannot claim parity with the other acquitted accused persons. Moreover, it is a settled proposition of law that if the co-accused has been acquitted on some wrong premises, merely on that ground, the acquittal cannot be claimed by the other accused.
25. Taking cumulative evidence adduced by the prosecution, we are of the view that the trial court was justified in convicting the appellants.
26. The appeal has no substance, the same is accordingly dismissed.
27. The appellant Surya Prakash is on bail, his bail bonds stand cancelled. He be taken into custody immediately for serving the remaining sentence.
Order Date :- 28.11.2018 nethra/s.k.
(Umesh Kumar,J) (Pritinker Diwaker, J)