Allahabad High Court
Phulwari And Others vs State Of U.P. on 3 December, 2012
Author: Rakesh Tiwari
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
A.F. R.
CRIMINAL APPEAL NO. 465 OF 2005
1. Phulwari son of Gangoli Harijan resident of village Newaria
District Mirzapur.
2. Amrit Lal son of Munni Pasi, resident of village Gharaghanpur,
P.S. Lalganj, District Mirzapur.
3. Daya Ram son of Sri Ram resident of Samogara, P.S.Meja,
District Allahabad.
4. Sri Pal son of Beni Harijan resident of village Mathurapur, District
Mirzapur
5. Sita Ram son of Bhuwan resident of village Raghurajpur P.S.
Lalganj, District Mirzapur.
...Appellants
Versus
State of Uttar Pradesh
...Respondent
Counsel for the appellants : Sri Radha Mohan Pandey, assisted
by Sri Ramesh Chandra, Advocate
Counsel for the respondent: Sri S.A. Murtaza, AGA
Hon'ble Rakesh Tiwari, J.
Hon'ble Anil Kumar Sharma, J.
( Delivered by Hon'ble Rakesh Tiwari, J.)
1. Heard Sri Radha Mohan Pandey, Advocate assisted by Sri Ramesh Chandra, learned counsel for the appellants, Sri S.A. Murtaza, learned AGA and perused the record.
2. This appeal challenges the judgment and order dated 27.1.2005 passed by the Additional Sessions Judge/Fast Track Court No.1, Mirzapur convicting and sentencing the appellants in S.T. No. 113 of 1999, State versus Phulwari and others, S.T. No. 308 of 1999, State versus Daya Ram and others and S.T. No. 89 of 2001, State versus Amrit Lal respectively under Section 302/149 IPC with life imprisonment and fine of Rs.5,000/- each and that in case of default of payment of fine the accused-appellants to further undergo rigorous imprisonment for a period of six months each. The trial Court further convicted and sentenced the appellants under Section 147 IPC to undergo rigorous imprisonment for one year and fine of Rs.500/- each and in default of payment of fine to undergo simple imprisonment for a period of one month. They have also been convicted and sentenced under Section 148 IPC with rigorous imprisonment of one and half years and fine of Rs.1,000/- each and in default of payment of fine to further undergo simple imprisonment of two months. All the sentences were ordered to run concurrently.
3. The case of the prosecution is that a written report was submitted by Sri Santosh Kumar Dubey son of late Dudh Nath Dubey resident of village Aghamafi, P.S. Lalganj, District Mirzapur on 16.12.1995 at 5.15 P.M. in P.S. Lalganj to the effect that he along with his brother Ashok Kumar, father Dudh Nath Dubey, Hari Shankar Mishra son of Murli Mishra, Vijay Shankar Tiwari son of late Narayan Tiwari and tractor driver Bhai Lal son of Roop Narain had come to the Thrasher Machine of Thakur situated in Qasba Lalganj on Tehsil Road for threshing the paddy. The father of the complainant had sat down on the gunny bag filled with paddy. The complainant along with other persons started unloading the gunny bags filled with paddy from the tractor. At about 4.30 P.M.on 16.12.1995 Amrit Lal son of Munni Pasi, his brother Indar, and brother-in-law (sala) Daya Ram came carrying bomb and Sri Pal son of Beni Harijan, resident of village Mathurapur and Sita Ram brother-in-law of the brother of Amrit Lal resident of Qasba Lalganj and Phulwari son of Gangoli Harijan resident of village Newaria P.S.Lalganj armed with country made pistol in their hands came there from towards Tehsil. Indar exhorted to kill them saying opportunity had come their way, on this Amrit Lal hurled a bomb at the back of the father of the complainant. The noise caused by explosion of the bomb attracted many persons and they came shouting. The complainant and other persons with him tried to catch the assailants but they started firing with their country made pistols and hurled bomb at the persons chasing them as such the chase did not last and the assailants made good their escape by crossing the Nala towards north. It was also stated that the complainant had come with his father, who was in a serious injured condition for lodging of the FIR and taking action in accordance with law.
4. On the basis of the written report check report was prepared and entry in G.D. was made at sl. no.96 on 16.12.95 at 17.15 hrs registering crime case no. 331 of 1995 against the accused aforesaid under Sections 147, 148, 149 and 307 IPC at P.S. Lalganj, District Mirzapur. The investigation of the case was handed over to S.O. Sri G.P. Yadav. The Investigating Officer on 16.12.95 along with witnesses Bans Bahadur Singh son of Vijay Bahadur Singh resident of village Purwa, P.S.Lalganj and Rama Kant Upadhaya son of Brahma Prasad Upadhaya prepared two recovery memos i.e. one of blood stained and plain earth and other of empty cartridges recovered from the place of occurrence.
5. The injured Dudh Nath Dubey succumbed to the injuries before he could be examined by the Doctor for treatment. His body was then sent for post mortem examination to District Hospital, Mirzapur along with carrier C.P. 306 Achhe Lal, C.P. 192 Ramji Yadav, both of Kotwali City, Mirzapur. Dr. O.P. Shahi, P.W.6 conducted the post mortem on the body of deceased on 17.12.95 at about 1.00 P.M and reported that he was about 55 years old and had died about one day earlier.
6. The external examination of the dead body showed that the deceased was of stout built body with both eyes closed. Rigour mortis was present in both upper and lower limbs. There was no sign of decomposition present. On internal examination it was found that peritoneum was ruptured at back side behind the right lobe near liver. Cavity was full of blood, stomach was empty, small intestine was found filled with digested food and gases and large intestine filled with faecal matter and gases. Gall bladder was ruptured posteriorly, pancreas and spleen were ruptured. The brain was found congested. Spinal cord was torn into pieces between 8th to 12th thoracic vertebrae. 7th ribs to 12th ribs of right chest at back side were fractured into pieces. Pleura was ruptured right side & left pleura at back between 7th to 12th ribs. Left lung was ruptured on right back side. Heart was empty. The cause of death in the opinion of the Doctor was due to haemorrhage and shock on account of ante mortem injuries.
7. The Doctor has reported the following ante-mortem injuries on the body of the deceased.
1.14 cm. x 11 cm. wound at back right side of chest 6 cm. below the interior angle & right scapula touching vertebral column medially with lacerated and ragged margin with charring of the margins, pieces of zute bundles present in wound. On probing lung of right side and liver and vertebral column is ruptured and recovered thirteen pellets and 0.3 cm. x 2 cm. pieces of iron and other 2 x2 cm. piece of iron rod. Blueish in colour with clotted blood present.
8. The Investigating Officer sent articles received for scientific investigation recovered from the body of the deceased during the post mortem examination i.e. (1) Dhoti, (2) Sweater, (3) Kurta, (4) Gamchha, (5) Niyan,(6) Langot, (7) Janeu, (8) blood stained and plain earth and (9) the pellets and metallic pieces sealed in a bundle, container and an envelope separately to the Forensic Science Laboratory, Lucknow. The result of scientific investigation on aforesaid article nos. 1 to 9 reveals that human blood was found on them but the blood on article nos. 1 to 7 and 9 had disintegrated so its origin could not be ascertained.
9. On conclusion of investigation charge sheet was submitted. Charges under Sections 147, 148, 149 and 302 IPC were framed against accused- appellants Daya Ram, Amrit Lal, Phulwari and Sri Pal. The prosecution in order to prove its case examined Santosh Kumar Dubey, Ashok Kumar Dubey, Vijay Shankar Tiwari, Ram Nishani Rai, Radhey Shyam, Dr. Om Prakash Shahi, S.I. Gangai Prasad Yadav, and Prem Kumar Singh as P.W.1 to P.W.8 respectively.
10. Accused-appellants Phulwari, Sri Pal, Daya Ram, Amrit Lal and Sita Ram gave their statement under Section 313 Cr.P.C. who stated that they have been falsely implicated in this case on account of enmity. Accused Sita Ram stated that he was on duty in BCCL Coal India at Dhanbad at the time of occurrence.
11. It also appears from original records produced before us that an application (103-Kha) was moved by the accused Amrit Lal for examining all the witnesses whereupon an application appears to have been moved by the prosecution for discharging witnesses Bhai Lal, the driver of the tractor and Hari Shankar Mishra as they have been won over by the accused persons who have been examined by the defence as D.W.1 and D.W.2 respectively.. The trial Court vide order dated 1.4.2004 declared them hostile.
12. Upon hearing learned counsel for the parties and considering the evidence on record the court below passed the impugned judgment and sentence against the accused-appellants as have been narrated above.
13. Aggrieved the appellants have come up in appeal challenging the judgment and order sentencing them by the Court below praying for allowing the appeal by setting aside the judgment and order dated 27.1.2005 on the ground that the conviction of the appellants is against the weight of evidence on record and is bad in law and further that the sentence is too severe.
14. The arguments of the learned counsel for the appellants assailing the impugned judgment and order are:-
That the FIR has been lodged after the death of Dudh Nath Dubey which is apparent from the date of occurrence and time as well as the written report on the basis of which the FIR has been lodged;
That it is established and proved by the post mortem report and the affidavit of Hari Shankar Mishra that there is no role of appellant nos. 1,4 and 5 in the incident, there being no injuries of country made pistol found on the cadaver of the deceased ;
That the statement of D.W.1, Bhai Lal reveals that it was Phulwari, who had hurled the bomb which exploded on the back of Dudh Nath Dubey ( since deceased);
That there is no injury of bomb or country made pistol on the body of the eye witnesses who claimed to be present at that time stating that they had been firing and hurled bomb upon them when they tried to chase the assailants ;
That prosecution witness Bhai Lal, the driver of the tractor has not supported the prosecution story as it was untrue and has therefore, appeared as D.W.1 before the court below;
That the investigation is not fair and in this regard he has referred the affidavit of Hari Shankar Mishra.
That there is no reference of case crime number, place, date and time of recovery of the articles in the recovery memo prepared by the Investigating Officer;
That it is stated that Amrit Lal had hurled the fatal bomb upon Dudh Nath Dubey and not Phulwari and in this regard statement of D.W.1 has been referred.
15. Per contra, Sri S.A.Murtaza, learned AGA submits that the accused-appellants have criminal history and there is enmity between the family of the accused and the deceased. It is stated that accused Amrit Lal son of Munna Pasi had hurled bomb on the back of Dudh Nath Dubey causing serious bodily injuries. Inder who has been assigned the role of exhortation died before the trial commenced. Daya Ram brother-in-law (Sala) of Amrit Lal who has been assigned the role of throwing bomb has jumped bail and is absconding. Accused persons Sri Pal son of Beni Harijan, Sita Ram brother-in-law (sala) of brother of Amrit Lal and Phulwari son of Gangoli Harijan were assigned the role of firing by country made pistol upon the pursuers to stop them further pursuit. According to him, the one bomb which hit Dudh Nath Dubey was sufficient to take his life and it is stated that alibi relied upon by the defence could not be proved. It is apparent from the statement of D.W.1 as well as from the record that Dudh Nath Dubey was alive even after the FIR was lodged and crime had been registered in the G.D.
16. It is lastly submitted that there is no irregularity or illegality in the proceedings of the investigation and even if the lapse on the part of the Investigating Officer it was not serious ought to be fatal as there is direct evidence of eye-witnesses against the accused-appellants of killing Dudh Nath Dubey in broad day light and that injured Dudh Nath Dubey was taken for medical treatment after completion of formalities at the police station. It is stated that the statement of the Doctor who reported that Dudh Nath Dubey was brought dead clinches the arguments of the learned counsel for the appellants to demolish that the written report and the recovery memo are concocted documents prepared after Dudh Nath Dubey was brought dead at the police station.
17. From the arguments of the learned counsel for the parties and on perusal of the record the moot points which emerge for determination for the Court are that-
1.Whether injured Dudh Nath Dubey was alive at the time of lodging of the FIR or that he was dead and FIR has been lodged thereafter as alleged by the learned counsel for the appellants ?
2.(a) What would be the position with regard to prosecution witness who has been sought to be examined by the accused-appellants as D.W. 1 ?
(b) Whether the affidavit of Hari Shankar Mishra could have been relied upon by the court below, if yes, what its effect ?
3.Whether the case of the prosecution is concocted one and the case of the accused-appellants is that they have been falsely implicated as no injuries by country made pistol have been found either on the cadaver of the deceased or upon eye witnesses in indiscriminate firing by the accused when they were being pursued ? and,
4.Whether any irregularity in the instant case in the investigation of not giving time and date etc. in the recovery memo would be fatal to the prosecution case ? and whether there are material contradictions in the case of the prosecution, if yes what its effect ?
18. To decide the aforesaid questions arising on the basis of arguments advanced by the learned counsel for the parties we may refer to the written report ( Ex.Ka-1) submitted by the first informant Santosh Kumar Dubey to S.O. P.S. Lalganj, District Mirzapur. Learned counsel for the appellants has pointed out that the first informant has signed on the said written report his name Santosh Kumar Dubey as son of late Dudh Nath Dubey resident of village Agha Mafi, P.S. Lalganj, District Mirzapur, therefore, the written report itself indicates that Dudh Nath Dubey had died even before the written report had been submitted. He further submits that in the FIR the police had registered the case under Sections 147,148, 149 and 307 IPC only in order to implicate the appellants. The accused-appellants were not charged under Section 302 IPC to facilitate them to concoct the story and it is for this reason also the recovery memos do not show time and place etc. of the articles said to have been recovered from the alleged place of occurrence. He would argue that it was for this reason also that Bhai Lal, the driver of the tractor was not examined by the prosecution and he appeared as defence witness so that truth may come out.
19. We have perused the written report keeping aforesaid argument of the learned counsel for the appellants in view and find that the first informant in his written report has specifically stated that he had come with his father in a grievous state of injury, who is suffering from pain and that his written report be lodged for further action in accordance with law. The relevant extract of the written report reads thus:-
"eSa vius firk dks xEHkhj ?kk;y voLFkk esa ysdj vk;s gS fyf[kr lwpuk ns jgs gSA tYnh fjiksVZ fy[kdj dkuwuh dk;Zokgh djus dh d`ik djsaA esjs firkth dh gkyr vf/kd [kjkc gS izkFkhZ lUrks"k dqekj nwcs iq= Lo0 nw/kukFk nwcs fuoklh xzk0 iks0 vxgk ekQh Fkkuk ykyxat tuin ehjtkiqj fnukad 16-12-95''
20. Perusal of the original G.D. entry also shows that Dudh Nath Dubey had been brought to the police station in an injured state and therefore, case crime no. 331 of 1995 was registered against the accused-appellants under Sections 147,148,149 and 307 IPC and not under Section 302 IPC. Perusal of the statement of first informant Santosh Kumar Dubey shows that he has explained the fact as to how LoxhZ; was written with his signatures by saying that he was in such a mental state of affairs that he had by mistake written late before the name of his father, though he has clearly stated in his report that he was alive and is suffering with pain.
21. As regards Dudh Nath Dubey being brought dead to the hospital when he was taken there for treatment of injuries is concerned, it is apparent that he was alive at the time of submission of written report and lodging of the FIR since he died on the way to the hospital for treatment and the Medical officer has rightly reported that he was brought dead. Therefore, the word 'LoxhZ;' by the first informant before his father name at the end of the written report signed by him can only be attributed a mistake which he has explained in his statement. The case was then converted into Section 302 IPC. Earlier FIR had been registered under Section 307 IPC therefore, supports his contention that it was a mistake that his father was alive at the time of lodging of the FIR and registration of the case crime no. 331 of 1995, under Sections 147,148, 149 and 307 IPC.
22. The question as to whether time and place of preparation of recovery memo has not been mentioned may be put to lapses on the part of the Investigating Officer. It is not in dispute that the recovery had been made in presence of independent witnesses. Furthermore, the appellants have not asked any question from the I.O. in this regard nor had challenged the recovery of articles. In such circumstances, no benefit can be derived by the accused by pointing out any irregularity in preparation of the recovery memo by the I.O.
23. In so far as the next contention of learned counsel for the appellants that the bomb appears to have been hurled by Phulwari and other persons have been falsely implicated is concerned, it is noted that the incident has taken place in broad day light. FIR is prompt and there has been no delay in the investigation. There were eye-witnesses to the role of each of the assailant-appellants. Three persons along with the accused are said to have hurled one bomb which exploded on the back of Dudh Nath Dubey (since deceased) causing grievous hurt to him. It is not in dispute that upon hearing the sound of explosion of the bomb a number of people had gathered and the assailants were chased. The accused persons were running and firing from their country made pistols. They could not aim on any one particular as their immediate concern was to make their escape good. A running man can easily cover 40 meters in about 5 seconds. The incident was sudden. The accused after hurling bomb upon Dudh Nath Dubey had run away. It would have certainly taken some seconds for the persons to gather there and a chase being made towards the assailants. Dispersal of pellets by a country made pistol would not be concentrated and effective from a distance particularly when the pursuers mount away and effect of a country made pistol would not be very much from a distance as one member of their family had already been seriously injured and the assailants were hurling bombs & firing indiscriminately at them as the assailants would have covered reasonable distance towards Nala. Moreover, as soon as they had run towards Nala and crossed it they would be out of effective firing range and in the hollow of the Nala, therefore, the fire shots by them would certainly be not fatal on any person whom they could not have seen. The shots appear to have been fired to keep their pursuers at bay. This fact finds support from the statement of the eye witnesses. P.W.5 stated that the assailants could not be chased for a long distance as they had run away towards Nala and had hurled bombs and fired upon in their direction as such he was afraid to chase them any further. This statement explains the position at the spot as to why this witness and some other persons along with him were not injured for them they were keeping themselves and had not run after the assailants were only to some nearby distance.
24. As regards question regarding position of Bhai Lal, the driver of the tractor who had come along with Dudh Nath Dubey and others examined as D.W.1 and Hari Shankar Mishra who had filed an affidavit in support of the accused persons is concerned, suffice it to say that there is force in the argument of the learned AGA that the prosecution had definitely come to know that these two persons had been won over by the accused persons for whatever may be the reasons. It is apparent from the application of the accused to the Court from the jail that all the prosecution witnesses may be examined. The Court upon hearing and considering the arguments of learned counsel for the parties on this application vide order dated 1.4.2004 had discharged Bhai Lal and Hari Shankar Mishra as prosecution witnesses. It was found that they appeared as defence witness. There is no dispute with the proposition that prosecution or defence witnesses deserve same treatment. In Banti alias Guddu versus State of M.P. ( 2004) 1 SCC-414, the Apex Court has observed:-
" It is true, the defence witness is not to be ignored by the Courts. Like any other witness, his evidence has to be tested on the touchstone of reliability, credibility, and trustworthiness, particularly when he attempts to resile from and speak against records and in derogation of his earlier conduct and behaviour. If after doing so, the court finds it to be untruthful, there is no legal bar in discarding it."
In fact D.W.1 and Hari Shankar Mishra were discharged by order of the court below. Hari Shankar Mishra, who was not examined by the defence, so his affidavit cannot be treated as evidence because the prosecution could not get opportunity to cross-examine him. On careful examination of D.W.-1, we find that he has proved the incident almost in all particulars except that he had roped in only accused Phulwari as main assailant exonerating the other co-accused. He has denied his interrogation by the I.O. and admits that he is deposing these facts for the first time. A witness of incident, who keeps mum and does not disclose to any one and states for the first time in Court cannot be relied upon. Earlier he was an employee (tractor-driver) of the deceased and after the incident left the job. He has denied that at the time of incident deceased was sitting on a cot but this fact does not find corroboration from site plan, which shows that the deceased was sitting on a gunny bag. In this way, we find that whatever D.W.1 was deposing before the court below was not correct as he had been won over by the accused persons, hence his statement that Amrit Lal had hurled the bomb and not Phulwari is not believable and acceptable. He was produced on behalf of the defence to implicate Phulwari and not others as the case of the prosecution that it was Amrit Lal who had hurled the bomb causing grievous injuries on the back of Dudh Nath Dubey to which he succumbed so that a contradiction may be created.
25. The question of alibi of accused Sita Ram son of Munna Pasi may also be considered. It is apparent to the naked eye that there are cuttings in the attendance sheet which has been submitted by D.W.2 in support of his alibi. The Court below has therefore, rightly discarded the alibi of accused Sita Ram.
26. The irregularities pointed out by the learned counsel for the appellants are only a product of his fertile imagination which are not in consonance with record. The serologist in his report (Ex.Ka-18) has reported that human blood was found on article nos. 1 to 9, the details of which have been given above and the death has been caused due to injuries caused by a bomb blast Even otherwise, irregularities in the investigation of not mentioning the time and place of recovery is not of such vital magnitude which may prove fatal to the prosecution.
27. For all the reasons stated above, the appeal fails and is accordingly, dismissed.
28. Let a certified copy of this judgment be sent to the Court concerned for its immediate compliance which should be report to this Court within a month.
Dated 3.12.2012 CPP/-