Allahabad High Court
Phool Chand And Others vs State on 8 March, 2019
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 23.01.2019 Delivered on 08.03.2019 Court No. - 1 Case :- CRIMINAL APPEAL No. - 2721 of 1982 Appellant :- Phool Chand And Others Respondent :- State Counsel for Appellant :- Kamlesh Kumar Counsel for Respondent :- A.G.A.,R.R.Singh Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon'ble Ramesh Sinha,J.)
1. The present criminal appeal has been preferred by the three appellants, out of which appellant no.1-Phool Chand alias Baggar, son of Tulsi and appellant no.3-Gauri Shanker alias Gauri Sahai, son of Devi Das have died during the pendency of the present appeal and appeal on their behalf has already been ordered to be abated by Coordinate Bench of this Court vide order dated 29.9.2015, thus, the present appeal survives with respect to appellant no.2-Rajendra, son of Phool Chand only, hence, the Court proceeds to adjudicate the aforesaid appeal with respect to the said appellant, namely, Rajendra.
2. The present criminal appeal has been preferred against the judgment and order dated 23.10.1982 passed by IInd Additional Sessions Judge, Jaunpur in S.T. No.17 of 1982, convicting the appellants under Sections 302/34 I.P.C. and sentencing them to undergo life imprisonment, further convicting the appellant-Phool Chand alias Baggar under Section 324 I.P.C. and sentenced him to undergo two years rigorous imprisonment and the appellants Rajendra and Gauri Shanker were convicted under Section 324/34 I.P.C. and sentenced to undergo one year rigorous imprisonment and all the the sentences were directed to run concurrently.
3. The prosecution case in brief is that a First Information Report was lodged by the informant, namely, Banarsi Lal, son of Ram Naresh Chaurasia on 9.8.1981 at 9.05 a.m. at Police Station Mariahun, District Jaunpur, which was registered as Case Crime No.172 of 1981 (S.T.No. 17 of 1982), under Section 302/307 I.P.C. against the three accused persons including the appellant, namely, Phool Chand alias Baggar, Rajendra alias Ghorai and Gauri Shanker alias Gauri Sahai (gold smith) with an allegation that there was a quarrel between one Lallan Dubey, resident of Village Sotipur and accused Phool Chand alias Baggar, resident of Village Belwa as there was some litigation between them with respect to property. On 9.8.1981 at about 8.15 a.m. in the morning, Phool Chand alias Baggar, Rajendra alias Ghorai and Gauri Shanker alias Gauri Sahai (a gold smith) of Village Belwa, who were armed with guns, came at the Rakhwa Crossing and started abusing Lallan Dubey. On which, deceased Chhotey Lal, who was a resident of Village Rakhwa said that as to why they are abusing Lallan Dubey and it is of no use to abuse Lallan Dubey when he is not present. On the said reply given by the deceased Chhotey Lal, accused Gauri Shanker alias Gauri Sahai exhorted and stated that Chhotey Lal be killed as he was taking side of Lallan Dubey. On the exhortation of Gauri Shanker alias Gauri Sahai, accused Phool Chand alias Baggar and appellant-Rajendra fired shot at the deceased Chhotey Lal with their respective firearms, on account of which the deceased Chhotey Lal sustained injuries and fell down on the road. On the said moment, Saheb Lal (nephew) and Surat Lal (brother of the deceased), Mukhtar and Sher Ali residents of Village Rakhwa, rushed to save the deceased Chhotey Lal and chased the accused, then accused Phool Chand alias Baggar again fired shot by his gun at them, on account of which they received injuries. The incident was witnessed by Kanhaiya Lal, Tilakdhari and various other persons including the informant. After the murder of the deceased, the accused fled away from the place of occurrence. Thereafter, the informant along with others took the deceased Chhotey Lal in a Tempo of one Rajendra Singh, resident of Village Kakrahi bearing vehicle No. U.T.O.1566 to Mariahun Hospital and while they hardly travelled about a furlong, the deceased Chhotey Lal had died. Thereafter, he proceeded with the said tempo along with the deceased Chhotey Lal to the Police Station Mariahun. On reaching at the concerned police station, the informant Banarsi Lal had given a written report (Ext. Ka.1) at Police Station Mariahun for lodging an FIR, in pursuance of which the Head Constable Ram Pher Yadav, who was then posted at Police Station Mariahun, prepared Chik Report (Ext. Ka.1) and registered a case in G.D. at serial No.11 against the accused persons under Section 302 I.P.C. vide Ext. Ka.8. Sub Inspector Gorakhnath who was then posted as Station Officer at Police Station Mariahun, who was present at the said police station, after registration of the FIR took the investigation of the case. He examined the informant Banarsi Lal at police station and thereafter prepared the inquest report of the dead body of the deceased (Ext. Ka.9). He also prepared Photo-lash (Ext. Ka.11) and Challan lash (Ext. Ka.10). After inquest, the dead body of the deceased Chhotey Lal was sealed in a piece of cloth and was given in the custody of Constable Sudarshan Yadav and Constable Mata Prasad for being sent to Sadar mortuary for post mortem. The Investigating Officer examined the injured witnesses, namely, Surat Lal, Mukhtar, Sher Ali, Saheb Lal and other witnesses, namely, Rajendra, Kanhaiya Lal and Tilakdhari. He also got mazroobi chitthi prepared for examination of the injured witnesses and further inspected the place of occurrence and prepared the site plant (Ext. Ka.14). He collected the blood stained earth and plain earth from the place of occurrence and sealed it in small tins and prepared fard (Ext. Ka.13).
4. The Investigating Officer recovered S.B.B.L.Gun No. 31505 from the house of accused Phool Chand alias Baggar and Rajendra along with 3 live cartridges of 12 bore and prepared recovery memo Ext. Ka.15 on 12.8.1981. He also recovered S.B.B.L Gun 2892 and four cartridges of 12 bore from the house of accused Gauri Shanker alias Gauri Sahai and prepared recovery memo Ext. Ka.16 on 12.8.1981.
5. The Investigating Officer after completing the investigation, submitted charge sheet against the accused persons on 30.8.1981 and proved the same as Ext. Ka.17.
6. The case was committed to the Court of Sessions by the learned Magistrate and the trial Court framed charges against the accused under Section 302 read with 34 I.P.C. and Section 307 read with Section 34 I.P.C.
7. The prosecution in support of its case has examined PW1-Banarsi Lal (informant), PW2-Surat Lal (injured), PW3-Tilakdhari, PW4-Dr. A.K.Singh, PW5-Dr. R.K.Tiwari, PW6-Saheb Lal (injured) & PW7-Gorakhnath Yadav, Investigating Officer of the case.
8. The accused pleaded not guilty of the charges and alleged their false implication in the present case. The accused in their statements under Section 313 Cr.P.C. have denied the prosecution case and stated that they have been falsely implicated in the present case.
9. The accused in their defence has examined DW1-Kedar Nath Srivastava, Clerk/Record Keeper in the Police Office and DW2-Dr.Shiv Kumar Agrawal, a private medical practitioner. He has also examined four injured witnesses, namely, Ashok Kumar, Raj Kumar, both sons of Phool Chand alias Baggar, Ram Sumiran, son of Gauri Shanker and Rameshwar son of Neegar, who received injuries from the side of the accused.
10. PW1-Banarsi Lal is the informant of the case and real brother of the deceased. He has deposed in his ocular evidence before the trial Court that at the time of occurrence, i.e., on 9.8.1981 at 8.15 a.m. while he was having tea at the shop of Tilakdhari at the Rakhwa Crossing, he saw the deceased Chhotey Lal and Phool Chand alias Baggar were having some conversation. The appellant Rajendra, accused Phool Chand alias Baggar and Gauri Shanker alias Gauri Sahai were armed with guns. On hearing the gunshot, he saw Chhotey Lal falling on the ground, then he along with others ran towards the deceased Chhotey Lal. He saw the appellant Rajendra and accused Gauri Shanker alias Gauri Sonar and Phool Chand alias Baggar running away towards west and Chhotey Lal was lying at the crossing, who received gunshot injuries on his chest and right leg.Thereafter, he along with other witnesses took Chhotey Lal to Mariahun Hospital in a tempo and when they hardly reached about a furlong, the deceased Chhotey Lal had died. He stopped the tempo there and wrote a report and went to police station Mariahun.This witness proved the original written report dated 9.8.1981 (Ext. Ka.1) and identified the same to be in his own hand writing and his signature also. This witness has further stated that he had given the said report at police station at about 9 a.m. and Station Officer was present in the police station and thereafter the Station Officer took him to the place of occurrence.
11. This witness has further deposed that he saw the appellant Rajendra and accused Phool Chand alias Baggar firing shot at the deceased Chhotey Lal and on account of firing the deceased Chhotey Lal died. He further stated that he knew the accused Phool Chand alias Baggar and appellant Rajendra from before and identified them along with the accused Gauri Shanker alias Gauri who were present in the trial Court. This witnesses further deposed that besides him, Surat Lal, Saheb Lal and two other persons also reached at the place of occurrence and when they chased the accused, then the accused Phool Chand alias Baggar fired shot at them, on account of which Saheb Lal, Surat Lal and two other persons whose name he did not know received gunshot injuries.The witnesses, namely, Kanhaiya Lal and Tilakdhari also reached at the place of occurrence and had witnessed the incident.
12. In his cross-examination, this witness has deposed that he has three brothers, namely, Sipahi, Jairam and Surat Lal and deceased Chhotey Lal is also one of his brother and Saheb Lal is the son of Jai Ram. In the present case, his brother Surat Lal and his nephew Saheb Lal are the witnesses. He stated that he and his brother Sipahi are having ready-made garment shop and betel shop in front of police station Rampur,which is being run by them for the last 15 years. He further stated that he used to live at his house and also at Rampur. His family is living at Rampur and village. He denied the suggestion that his house is about 1-1/2 Kms. away from the Rakhwa Crossing. He further deposed that his house is at a distance of about 20-30 meters from the house of Kanhaiya and Tilakdhari. He stated that Kanhaiya and Tilakdhari belong to his caste and are co-laterals. He further stated that on his shop either he or his nephew sits and shop of Tilakdhari and Kanhaiya is towards North of shop of Jokhu Kalwar, for which there was a litigation going on between Jokhu Kalwar and deceased Chhotey Lal and at the time of incident the said litigation was going on.Towards the west of the place of occurrence, the houses of accused Phool Chandra alias Baggar, Jokhu and Gauri (gold smith) are situated and their houses are in Mauza Belwa. He further deposed that much prior to the present incident several years back, a dacoity had taken place at the house of Jokhu Kalwar and in the said dacoity a brother of Jokhu was also murdered. Jokhu and Vindeshwari are big businessmen of Belwa and both of them have licensee guns. Jokhu was not aware of the fact that it was Phool Chandra alias Baggar and Gauri who had got the dacoity committed in his house. This witness denied having knowledge about the said fact. He is also not aware that there was any ill-will between Jokhu, Vindeshwari and accused Phool Chand alias Baggar and Gauri. There was no litigation going on between this witness or his family members with the accused Phool Chand alias Baggar and Gauri. He has not seen whether the deceased Chhotey Lal had gone after taking his meal or breakfast from the house and he had met Chhotey Lal in the night and they had taken their meal at 9 p.m. in the evening. He has further deposed that he very often used to go to have tea at the shop of Tilakdhari. This witness has denied the suggestion that he was not present at the place of occurrence nor the incident had taken place in the manner he has narrated. He further denied the suggestion that he was called from the Rampur Bazar and Station Officer had dictated about the incident and written a report.
13. PW2-Surat Lal (injured) is also the brother of the deceased Chhotey Lal and he has narrated about the prosecution case as has been stated by PW1. He deposed that he was present at the shop of Kanhaiya Lal and had witnessed the incident in which appellant Rajendra and accused Phool Chand alias Baggar and Gauri Shanker alias Gauri Sahai were abusing Lallan Dubey on the Rakhwa crossing, on which deceased Chhotey Lal stated that when Lallan Dubey is not present then what is the use of abusing him by them, on which accused Gauri Shanker uttered that he is taking the side of Lallan Dubey and he be shot dead. Thereafter, the accused Phool Chand alias Baggar and appellant Rajendra fired shot at the deceased Chhotey Lal. The first shot hit the right leg of the deceased Chhotey Lal while the other shot hit him on his chest. He deposed that he along with Mukhtar Ali, Saheb Lal and Sher Ali rushed towards Chhotey Lal who had fallen on the Rakhwa crossing after receiving the injuries and when they chased the accused to apprehend them, then accused Phool Chand alias Baggar again fired shot at them, on account of which he along with Sher Ali, Saheb Lal and Mukhtar Ali received injuries but the accused fled away. Besides him, the the incident was also witnessed byTilakdhari, Kanhaiya Lal and Banarsi Lal. After the accused had fled away, the deceased Chhotey Lal was carried in a tempo by Banarsi and Tilakdhari to the police station Mariahun and when they had hardly reached about a furlong, the deceased Chhotey Lal died. He further stated that after receiving the injuries,he stayed at Rakhwa crossing and thereafter he along with three other injured were examined by the doctor.
14. In his cross-examination, this witness has stated that the Investigating Officer had reached at the place of occurrence on the same day and recorded his statement under Section 161 Cr.P.C. regarding the incident and further told him that he was present at the shop of Kanhaiya Lal at the time of incident. He further stated that he reached at the shop of Kanhaiya Lal at about 8 a.m. and the incident had taken place 15-20 minutes thereafter.This witness has further deposed that he and Banarsi Lal had not come together from the village and Banarsi had come from the village earlier to him. He stated that he was unaware of the fact that any case of dacoity was going on against the deceased Chhotey Lal at Kotkata or not. He further showed his unawareness that any case under the Gangster Act or illegal liquor was on the deceased in District Jaunpur or not. He did not know whether any litigation or enmity was between the Lallan Dubey and accused Phool Chand alias Baggar and Gauri Shanker (gold smith). He further showed his unawareness about the fact whether there was any relationship of Lallan Dubey with Chhotey Lal. He denied the suggestion that he did not receive any injury in the incident nor he was present at the place of occurrence or Sher Ali, Saheb Lal and Mukhtar had received injuries in the incident. He further denied the suggestion that the deceased Chhotey Lal along with his associates had gone to commit dacoity in Belwa Bazar and in the said incident Jokhu and Vindeshwari fired shot in which Chhotey Lal died and his associates also received injuries. He further denied the suggestion that the manner in which he has narrated the incident and has deposed before the trial Court, the incident had not taken place in the said manner and he is falsely deposing being the brother of the deceased and further denied that he had got his medical examination report fabricated to give a serious colour to the incident.
15. PW3-Tilakdhari has reiterated the prosecution case as has been stated by PW1 and PW2. He stated that accused Phool Chand alias Baggar, appellant Rajendra and Gauri Shanker (gold smith) had come at the Rakhwa crossing and were abusing Lallan Dubey on which Chhotey Lal went to them and stated that when Lallan Dubey is not present there then why they are abusing him, on which accused Gauri (gold smith) exhorted and stated that Chhotey Lal showed himself to be classmate (Sehpathi) of Lallan Dubey and he be shot dead, on which accused Phool Chand alias alias Baggar and appellant Rajendra fired shot at Chhotey Lal on account of which he received injuries in his right leg and chest and fell down on the ground. Sahab Lal, Surat Lal, Sher Ali and Mukhtar rushed and Banarsi also rushed behind them and this witness also rushed towards the deceased, then the accused Phool Chand alias alias Baggar fired shot which hit Surat Lal, Sahab Lal, Sher Ali and Mukhtar and when the accused fled away he along with others took the deceased Chhotey Lal in a tempo to the police station Mariahun and after reaching hardly a furlong the deceased Chhotey Lal had died, then after stopping the tempo a report was written by the informant Banarsi Lal regarding the incident, who submitted the same at police station Mariahun and the report was registered and thereafter the Station Officer of the said police station went to the place of occurrence. He remained at the said police station.
16. In his cross-examination, this witness has stated that he was having a tea shop at Rakhwa crossing. He is having no knowledge whether there was any litigation going on between Lallan Dubey and accused or there was any enmity between them and at his shop only PW1 Banarsi Lal was present who had come to his shop at about 7 a.m. and remained there till the incident had taken place. He had not met the deceased Chhotey Lal prior to the incident, he had witnessed the incident from his shop and after hearing fire shot he saw towards the place of occurrence. He was also unaware of the fact whether any dacoity had taken place in village Belwa in the night of the incident. He stated that he knew Vindeshwari and Jokhu of Village Belwa and both of them were taken by the police at Mariahun police station after arresting them. He denied the suggestion that neither he nor Kanhaiya Lal had tea shop at Rakhwa crossing. He further denied the suggestion that he is falsely deposing against the accused being co-lateral of the deceased Chhotey Lal and further denied the suggestion the the incident has not taken place, as has been stated by him.
17. PW4-Dr. A.K.Singh has deposed before the trial Court that on 9.8.1981 he was posted as Medical Officer in District Hospital, Jaunpur. The dead body of the deceased Chhotey Lal was brought to him in a sealed condition by Constable C.P. No.531-Mata Prasad and Constable C.P. No.348-Sudarshan Yadav along with relevant police papers who identified the dead body. He further deposed that he conducted the post mortem of the deceased Chhotey Lal at 3.30 p.m. on 9.8.1981 and found the following ante-mortem injuries on his person:-
"1. Five gunshot wounds of entrance of 0.5 cm. x 0.5 cm. circular in shape. Margins of these wounds were inverted and bruised in an area of 6 cm. x 1.5 cm. on the front of chest 2.5 cm. medial to left nipple and 2 cm. lateral to mid line 7 cm. below left clavicle.
2. Gunshot wound 3 cm. x 2.5 cm. laceration bone deep on the inner side of the right lower leg 4 cm. below right knee. Margin inverted and bruised. There was commuted fracture of both tibia and fibula bones.
3. Multiple gunshot wounds Nineteen in number on front of right lower leg of 0.2 cm. x 0.2 cm. circular in shape. Margins inverted and bruised.
Internal examination showed that there was fracture of 4th rib on the left side at the site of injury no.1. There were three penetrating wounds through and through in the left pleura.There were three penetrating wounds through and through in the left pleura entering their anterior surface. Both the chambers of heart were empty. Three ounces (ozs.) of blood was found in left thorasic cavity.There was penetrating injury on the arch of aorta corresponding to injury no.1. Stomach contained semi-digested food material weighing 46 ozs. small and big intestines were half full. Bladder was half full."
18. In the opinion of the doctor, the cause of death of the deceased was due to shock and hemorrhage because of injury no.1. He took out 14 small and and 3 big pellets and sealed them in an envelope and handed over the same to Constable Mata Prasad who had brought the dead and proved the post mortem as Ext. Ka.2.
19. In his cross examination, this witness has stated that the death of the deceased could be possible between the intervening night of 8/9.8.1981 at about 3.30 a.m. and there might be margin of 2-1 hours on either side.The deceased must have taken his meal 5-6 hours prior to the incident. The injury nos. 2 and 3 appear to have been caused separately. He further deposed that injury nos. 2 and 3 cannot be caused by one weapon as it is a result of two shots. The injury no.3 could be caused by countrymade pistol.
20. PW5-Dr. R.K.Tiwari has deposed before the trial Court that on 9.8.1981 he was posted as Medical Officer at P.H.C. Mariahun, Jaunpur and at 12.30 p.m. he had examined the injuries of Surat Lal who was brought by Constable Vindeshwari of police station Mariahun and found the following injuries:-
"1. Lacerated wound of 0.4 cm. x 0.4 cm. right thigh in middle 23 cm. above the right knee joint. Fresh bleeding present. Contusion 1 cm. all around wound present. Skin around wound was blackened.
2. Lacerated wound of 0.4 cm. x 0.4 cm. in the middle of shin of tibia of right leg 3 cm. below the lower part of patella. Fresh bleeding is present. Contusion around the wound is present.
3. Lacerated wound of 0.3 cm. x 0.3 cm. in the middle of left forearm 11 cm. above the left wrist joint is present. Fresh bleeding present.
In the opinion of the doctor, all the injuries were fresh and simple and they could have been caused by firearm. Advised X-ray of right thigh, right leg and left forearm. A.P. and lateral view for further treatment and record. He also proved the the injury report Ext. Ka.3."
21. He had also examined injured Saheb Lal at 12 noon and found the following injury:-
"Minor abrasion of 0.4 cm. x 0.4 cm. on the right elbow. No oozing was present.
In the opinion of the doctor, the injury was fresh and simple and appears to have been caused by friction against some hard object. He also proved the injury report Ext. Ka.4."
22. He had also examined the injured Mukhtar at 11.20 a.m. and found the following injuries:
"Lacerated wound of 0.4 cm. x 0.4 cm. on the upper and lateral part of left leg. Contusion 1 cm. around the wound was present. Oozing of blood present, surrounding skin is blackened.
In the opinion of the doctor, the injury was fresh and simple and appears to have been caused by some firearm. Advised X-ray of left leg. A.P. and lateral view. He also proved the injury report Ext. Ka.5."
23. He had also examined the injured Sher Ali at 11 a.m. and found the following injuries:
"Contusion of 11 cm. x 7 cm. on the upper part of left lower arm 4 cm. below the left elbow joint with an abrasion of 0.5 cm. x. 0.5 cm. about 4 cm. below the left elbow joint. Tenderness was present. Massive swelling and redness present.
In the opinion of the doctor, the injury was fresh and simple and weapon could not be ascertained. Advised for X-ray of left forearm, A.P. and lateral view He also proved injury report Ext. Ka.6."
24. This witness in his cross-examination has deposed that though he had advised the X-ray of the injured but they have not got the same done. He further deposed that the injured Surat Lal received firearm injuries on his person and blackening and contusion were on his injuries which were caused by firearm and all his three injuries were possible by firearm. The injuries nos.1, 2 &3 were not possible from 15 yards. He further deposed that the injuries sustained by Surat Lal were not of bomb injuries, it could be caused by countrymade pistol. He has denied the suggestion that the injuries of Surat Lal cannot be caused by firearm.
25. PW6-Saheb Lal has stated that the deceased Chhotey Lal was his uncle and he has reiterated the prosecution case, as has been stated by the three eye witnesses, i.e., PW1, PW2 and PW3. He further deposed that PW1 Banarsi Lal had written a report and submitted the same to the police station Mahiahun who have reached there along with the dead body of the deceased Chhotey Lal and police got the medical examination done of this witness as well as of injured Surat Lal, Sher Ali and and Mukhtar at Mariahun Hospital.
26. In cross-examination, this witness has stated that he had seen the incident while he was present at the shop of Kanhaiya Lal and shop of Kanhaiya Lal is at a distance of 10-12 paces towards West from the crossing. His tea shop is at Rakhwa bazaar and his shop is towards East of crossing. His shop opens at 9 am. and closes at 5 p.m. and thereafter he goes to his village. His shop is also run by his younger brother Shyam Lal who also sits in the shop besides him. PW1 Banarsi Lal is his uncle and when he had left his house, he did not see Ram Surat and Banarsi Lal at the house nor he had seen the Chhotey Lal in the morning, he had also not seen Chhotey Lal or Ram Surat in the night of the incident and he had seen the Chhotey Lal and Ram Surat in the morning at Rakhwa crossing. When Saheb Lal had gone to his shop from his house, he had not gone to his shop but was sitting at the shop of Kanhaiya Lal and while he was sitting at the shop of Kanhaiya Lal hardly in about 10 minutes, he heard fire shot and when he saw towards the crossing he saw Chhotey Lal falling on the ground and from his body blood was oozing out and the persons who had shot at him fled away from there. He further deposed that Kanhaiya Lal, Tilakdhari and Banarsi had not chased the accused but Kanhaiya Lal and Tilakdhari had witnessed the incident from his shop and his uncle Banarsi Lal had also witnessed the incident from the shop of Tilakdhari. He has denied the suggestion that he did not receive the injuries in the incident nor the incident had taken place at place of occurrence, as has been stated by the prosecution.
27. PW7-Gorakhnath Yadav, Investigating Officer, has deposed before the trial Court that the FIR of the present case was registered in his presence and the same was registered on the written report (Ext. Ka.1) lodged by PW1 Banarsi Lal, on the basis of which Chick FIR was prepared by the Head Constable Rajendra Yadav and he has proved the original chick report dated 9.8.1981 (Ext. Ka.9) as he was conversant with the hand writing and signature of the said Head Constable. He further stated that Rampher Yadav on the basis of aforesaid chick report, had endorsed the G.D. at 9.05 a.m. and proved the same as Ext. Ka.8. He further stated that he took over the investigation of the case, conducted the panchayatnama (Ext. Ka.9), prepared Challan-nash (Ext. Ka.10), photolash (Ext.ka. 11) and sealed the dead body of the deceased in a cloth and handed over the same to Sub Inspector Mata Prasad Pathak and Sudarshan Yadav for being sent to Jaunpur for post mortem to Jaunpur. He took the statements of witnesses, namely, Rajendra Singh, Banarsi Lal, Surat Lal, Mukhtar Sher Ali, Sahab Lal, Tilakdhari and Kanhaiya Lal under Section 161 Cr.P.C., thereafter he went to the place of occurrence and sent the injured persons after preparation of the chhiti mazroobi through Constable Vindeshwari Mishra for medical examination. He prepared the site plan (Ext. Ka.14) of the incident. He took the blood stained and plain earth from the place of occurrence and prepared the recovery memo in the presence of the witnesses and got them signed by the witnesses (Ext. Ka.13). He went to search the house of Phool Chandra alias Baggar on 12.8.1981 and recovered a single barrel licensee gun and three cartridges and prepared the recovery memo (Ext. Ka.15) and from the house of Gauri a licensee gun was also recovered and also prepared the recovery memo (Ext. Ka.15). After investigation, he submitted the charge sheet against the accused persons (Ext. Ka.17) on 30.8.1982 before the competent court.
28. In his cross examination, this witnesses has stated that he knew Jokhu and Vindeshwari of Belwa Bazar and he had no knowledge whether they were big business men and had a big shop but was only aware of the fact that they were carrying on business. On 12.8.1981 he had taken the guns of Jokhu and Vindeshwari in custody for which he prepared some papers, ie., Ext. Kha.1 and Ext. Kha 2, but he had not arrested both of them and he had only taken their guns in custody. Jokhu and Vindeshwari were not present at the time of recovery of their guns but he had brought their guns at the police station. The gun of Vindeshwari was not deposited in the police station and it was returned back. He further stated that he had not arrested the accused Gauri from his house but had arrested him from the Belwa bazar which is west of macchli shahri. Gauri has his shop at Belwa Bazar from where he was arrested and his house is at about 1 mile away from his shop and on the day on which he was arrested, his house was searched and no gun was recovered from his shop and on the same day he had also searched the house of Phool Chandra alias Baggar and on the said date his gun was also not recovered, hence, he did not prepare any recovery memo as no gun was recovered. He stated that there was no gun before him in the Court, hence, he did not send the same to ballistic expert, as he could not find or recover any cartridges from the place of occurrence, he also did not sent any clothes and blood stained earth or plain earth to serologist for examination. He further deposed that on 8/9.8.1981 in the night no dacoity had taken place. He denied the suggestion that on the said night, there was any firing between the villagers and dacoits and in the said firing the son of accused Gauri Shanker, namely, Ram Autar and Ashok Kumar and Raj Kumar, son of Phool Chand and father in-law of Phool Chand received any injuries. He further denied the suggestion that because of the firing made by the villagers the dacoits have received injuries. He further denied suggestion that in the morning the FIR was not lodged by Gauri Shanker nor any information was given by him informing that dead body of a dacoit was lying. He further denied the suggestion that in relation to the investigation of the aforesaid dacoity he had arrested Vindeshwari and Jokhu. He also denied the suggestion that he left Jokhu and Vindeshwari and has falsely implicated the accused in the present case. He also denied the suggestion that he did not take any blood stained and plain earth from the place of occurrence. He denied the suggestion that on receiving the information he registered the case of dacoity and investigated the same. He also denied the suggestion that the deceased Chhotey Lal was murdered in the dacoity and his brother Banarsi was called by him from the village Rampur and thereafter the FIR was written on account of the fact the family members of the deceased Chhotey Lal had fled away after leaving the house. He denied the suggestion that he had dictated the FIR of the present case and he has not carried out fair investigation or he has submitted wrong charge sheet against the accused persons. He further denied the suggestion that original case diary of the present case has been misplaced in order to conceal the true fact of the present case.
29. The accused Gauri Shanker had given a written statement under Section 313 Cr.P.C. before the trial Court on 18.8.1982, wherein he stated that in the night between 8/9.8.1981 at about 2.30 a.m. in the night the dacoits had come to Belwa Bazar for committing dacoity of arms. The villagers and his children had tried to encounter them and stopped them from committing dacoity. Vindeshwari and Jokhu of the village had fired shot from their respective single barrel gun on the dacoits and due to which some of the dacoits had received injuries of firearm and dacoits fled away. His son as well as sons and father-in-law of Phool Chandra alias Baggar had also received injuries of lathi and danda in the encounter with dacoits and one of the dacoit was killed on account of receiving the fire shot and villagers identified him to be Chhotey Lal, resident of Rakhwa Bazar. He further stated that he had gone at police station Mariahun to inform the police and Station Officer of the concerned police station had gone to Belwa Bazar and arrested the Jokhu and Vindeshwari along with their guns and brought them to police station but later on both of them were let off by the police. He submitted that because his son as well as son and father in law of Phool Chand alias Baggar had received injuries in the encounter with dacoits and there was earlier enmity of his with Jokhu, on account of which he was falsely implicated in the present case. He further stated that his son, namely, Ram Sumiran was medically examined and his single barrel gun was taken away by the station officer from his house.
30. In defence the accused had examined DW1-Kedar Nath Srivastava, Record Keeper in the police office, who stated that he is posted on the post of Record Keeper since 1.6.1981 and he has deposed before the trial Court that the application dated 9.8.1981 of Rameshwar son of Neemar, resident of Belwa Bazar and application dated 31.8.1981 of Prabhawati, wife of Phool Chand were not found in the police office and he was not cross-examined by the prosecution.
31. DW2-Shiv Kumar Agrawal, private medical practitioner in Mohalla Mardanpur Station Road, Jaunpur who was examined by the trial Court in defence has stated that on 9.8.1981 at 11 a.m. he examined Ashok Kumar son of Phool Chand, resident of Belwa Bazar, Police Station Mariahun, District Jaunpur and proved his medical examination report as Ext. Kha-3. He further stated that he had also examined Raj Kumar son of Phool Chand, Ram Sumiran son of Gauri Shanker and Rameshwar son of Neemar on the same day and endorsed the injuries in his register and filed a copy of the same before the trial Court and proved the injury report as Ext. Kha-4, 5 & 6. He further submitted that at the time of medical examination, all the injuries of the injured were 12 hours old and could have been caused in the night of 8/9.8.1981.
32. The injuries of Ashok Kumar, Raj Kumar and Ram Sumiran and Rameshwar are quoted here-in-below:
"Ashok Kumar
1. A contusion on the left side of forehead of 3 cm. x. 2.5 cm. x 3 cm. above the lateral angle of left eyebrow.
2. A contusion 4.5 cm. x 2 cm. on the lateral aspect of middle of right arm, 4 cm. above the right elbow joint.Colour is mixed with greenish fresh.
3. An abrasion on the lower part of left forearm size of 2 cm. x 2 cm. 3 cm. above the left wrist joint. Blood clot is present.
4. A contusion 3.5 cm. x 2 cm. on the lateral aspect of middle third of the right thigh, 6 cm. above right ankle joint. Colour is redness with greenish fresh.
In the opinion of the doctor, all the injuries were simple and caused by blunt weapon. The duration of the injuries was within 12 hours. He also proved the injury report as Ext. Kha.3.
Raj Kumar
1. A contusion 4 cm. x 2 cm. on the lateral aspect of upper half of left arm 4 cm. below left shoulder joint. Colour is mixed with greenish.
2. A contusion on the back 2 cm. below inferior angle of left scapula. 4 cm. lateral to vertebral column of size 0.4 cm. x 2.5 cm. Colour is mixed with greenish fresh.
3. An abrasion of 3 cm. x 2.5 cm. on the dorsal aspect of upper half of right forearm 3 cm. below the right elbow joint. Blood clotting present.
4. A contusion of 3.5 cm. x 2 cm. on the anterio lateral aspect of upper half of right leg just below the right knee joint. The colour is redness with greenish fresh.
5. An abrasion of 2 cm. x 2.5 cm. on the left knee joint. Blood clot is present.
In the opinion of the doctor, all the injuries were simple and caused by blunt weapon. The duration of the injuries was within 12 hours.
Ram Sumiran
1. A contusion 3 cm. x 3 cm. on the right half of skull, 6 cm. above the fragus of right ear. Colour is redness with greenish fresh.
2. A swelling of .2 cm. x 1 cm. below the lower eyelid.Colour is blackened.
3. A contusion of 4.5 cm. x 2 cm. on the front of lower 1/3rd of left thigh 3 cm. above the left knee joint. Colour is reddish with fresh fuel.
4. An abrasion on the dorsal aspect of upper part of left thigh and just below the knee joint. Blood clot is present.
5. An abrasion on hyper thorex portion of right lateral side of 2 cm. x 1.5 cm.
6. A complain of acute pain in left knee joint."
All the injuries are simple and may be caused by blunt object, duration within 12 hours.
Rameshwar
1. A contusion of 5 cm. x 3 cm. on the back 4 cm. lateral to vertebral column and 2 cm. above the inferior angle of right scapula. Colour is mixed with greenish fresh.
2. A contusion on the lateral aspect of upper half of left leg of 4 cm. x 1.5 cm. x 1.5 cm. just below the left knee joint. Colour redness with greenish fresh.
3. An abrasion of 1.5 cm. x 2 cm. on the lateral aspect of right ankle joint .....aspect.
4. An abrasion of left wrist joint on the ventral surface of 2 cm. x 2 cm. scar apart.
5. A contusion of 3 cm. x 2 cm. on the left thigh. Colour is redness with greenish fresh.
6 An abrasion of 1 cm. x 1 cm. on the buccal mucosa of the left side of opposite of left lower canine and pre molar teeth.
7. Complaint of pain in back.
In the opinion of the doctor, all the injuries are simple and caused by blunt weapon. Duration of the injuries within 12 hours. He has also proved the injury report as Ext. Kha. 4 to Kha 6."
33. In his cross examination, he has stated that in his register he had made the first endorsement on 9.8.1981 and prior to the said medical examination he had never done any medical examination of any injured. He stated that no paging was done in the said register because of his own fault. He stated that he was in need of a blank paper in the night and as the papers were not available, he took out some blank papers from the said register. After the said medical examination, he did one medical examination in the year 1981 and thereafter in the year 1982. He stated that he has done his doctorate in Ayurvedic.
34. The trial Court after considering the prosecution and defence evidence found that it was the accused and appellant Rajendra who have committed the murder of the deceased and caused injuries to the four injured and found them guilty, convicted and sentenced them for the aforesaid offence, hence, the instant appeal by the appellant before this Court against the impugned judgement and order of the trial Court.
35. Heard Sri Kamlesh Kumar, learned counsel for the appellant and Sri J.P. Tripathi, learned AGA for the State and perused the impugned judgment and order as well as lower court record.
36. Sri R.R. Singh, learned counsel for the complainant is not present though the matter has been taken up in the revised list.
37. Learned counsel for the appellant has vehemently argued that there is no motive for the appellant and co-accused to commit the crime in question. He has drawn the attention of the Court towards the prosecution case and evidence of prosecution witnesses of fact who have stated that the accused started abusing one Lallan Dubey though he was not present at the place of occurrence and the deceased Chhotey Lal who objected to it, was done to death by the accused persons at the exhortation of Gauri Shanker and appellant Rajendra and Phool Chand alias Baggar fired shot at the deceased Chhotey Lal and when the deceased had fallen down on account of the fire shot, accused Phool Chand alias Baggar again fired shot at the four injured, namely, Sahab Lal, Mukhtar, Sher Ali and Surat Lal who rushed to save the deceased. He stated that from the prosecution evidence also it is apparent that there was no animosity between the appellant and the deceased or the injured persons.
38. He next argued that presence of the PW1 Banarsi Lal, who is real brother of the deceased, at the place of occurrence appears to be doubtful one. He stated that PW1 Banarsi Lal has shown himself to be present at the tea shop of PW3 Tilakdhari where he was having tea and had witnessed the incident of murder of the deceased Chhotey Lal and the injuries caused to the four injured persons, namely, Sahab Lal, Mukhtar, Sher Ali and Ram Surat Lal by the appellant Phool Chand alias Baggar by firearm. He urged that from the cross examination of PW1, it is apparent that when the PW1 and his brother was having a tea shop as well as readymade garment shop which was about 1-1/2 Kms away from the place of occurrence, thus, there was no occasion for PW1 to be present at the place of occurrence and witness the incident. He has also drawn the attention of the Court towards the suggestion put to him that he was called by the police from his village Rampur Bazar where he also had a house and on the dictation of the Station Officer of police station Mariahu, the present FIR was lodged against the appellant and other accused persons.
39. He further argued that PW2-Surat Lal and PW6-Saheb Lal who are the two injured witnesses did not receive any injuries in the incident which had taken place at the crossing of Rakhwa Bazar but in some other manner and not as stated by the prosecution. He next argued that the two other injured, namely, Mukhtar and Sher Ali who also received injuries, have not been produced by the prosecution before the trial Court who would have deposed about the origin of the incident. PW3-Tilakdhari whose shop was in the Rakhwa Bazar near the place of incident from where PW1 Banarsi Lal had seen the incident, is related to PW1 and the deceased as they are co-lateral, hence his testimony cannot be relied upon.
40. He next argued that the deceased Chhotey Lal was shot dead in a dacoity, as it appears from the evidence of prosecution witnesses, i.e., PWs 1, 2, 3 & 7 and it also appears from the written statement of accused Gauri Shanker under Section 313 CrP.C. dated 18.8.1982 wherein he stated that a dacoity took place in the night between 8/9.8.1981 at about 2-3 a.m. in Belwa Bazar and dacoits had come to loot the arms and villagers and his children encountered them and Vindeshwariand Jokhu of Belwa Bazar who were reputed big business men had fired with their respective guns on the dacoits in which some dacoits received injuries and fled away and his son as well as son and father-in-law of Phool Chand alias Baggar also received injuries of lathi and danda in the encounter and deceased Chhotey Lal who was stated to be one of the dacoits received gun shot injuries and was found dead. He had gone to the police station Mariahun informing about the dacoity and Jokhu and Vindeshwari were also arrested along with their guns but later on they were released due to their influence and the appellant and other accused were falsely implicated in the present case.
41. He further argued that the injuries which were sustained from the side of the four accused persons have not been explained by the prosecution which shows that origin of the incident has been deliberately concealed by the prosecution.
42. He has further drawn the attention of the Court towards the recovery of the two tins which were brought from malkhana by S. I. Gorakhnath (PW7) which related to another case under Sections 395 and 397 I.P.C. and the said two tins were marked as defence Ext. Kha1 and Kha2 on the request of learned counsel for the defence. He stated that on the basis of said tins which were brought that it was a case of dacoity but subsequently the police colluded with Vindeshwari and Jokhu and falsely implicated the appellant for murder of the deceased Chhotey Lal.
43. He has further drawn the attention of the Court towards the post mortem report of the deceased wherein it was found that stomach contained semi digested food material and on the basis of which it was argued that the deceased appears to have been killed in the night between 8/9.8.1981 at about 2-3 a.m. after he had taken his meal, hence, the present FIR is anti-timed document and prosecution has not come with clean hands stating about the true incident but falsely implicated the appellant and other accused persons.
44. Learned counsel for the appellant has lastly argued that the injuries which were sustained by the injured, namely, Surat Lal and Mukhtar, around which blackening has been mentioned, it is clear that the injuries were caused by single pellet of size of 0.4 cm. x 0.4 cm.. He stated that the nature and number of the injuries caused to the witnesses Sutar Lal, Saheb Lal and Mukhtar were shot from a long range distance and not from short distance which may have blackening on the wounds.
45. On the basis of the aforesaid arguments, it was vehemently argued by learned counsel for the appellant that the trial Court has misread the evidence on record and wrongly convicted and sentenced the appellant which is liable to be set aside and the appellant be acquitted.
46. On the other hand, learned AGA has vehemently opposed the arguments of learned counsel for the appellants and has submitted that the incident had taken place in broad-day light at 8.15 a.m. in the morning and the same was witnessed by PW1-Banarsi Lal, PW2 Surat Lal and PW3 Saheb Lal who are two injured witnesses and were examined by the trial Court and Surat Lal received fire arm injuries on his person which goes to show that both of them were present at the time of incident and they have narrated the prosecution story which is corroborated by the medical evidence coupled with the fact that PW3 Tilakdhari who is also an eye witness of the incident whose shop was near the place of occurrence had also witnessed the incident, his evidence too corroborates the ocular testimony with the medical evidence.
47. He next submitted that the case of the defence regarding dacoity having taken place in the night between 8/9.8.1981 at 2-3 a.m, is absolutely false one as the defence could not establish from their evidence that dactoity was committed and deceased Chhotey Lal who was a dacoit, was killed by villagers. The injuries which have been caused on the side of the defence to the children of the two accused Phool Chand alias Baggar and Gauri Shanker were not caused in the incident of dacoity as DW1 who was a private medical practitioner, his evidence has been discarded by the trial Court as the injuries which were received from the side of the accused, were superficial in nature and could be fabricated one and DW1 could not prove that the injuries which were received by the four injured were in the incident of dacotiy, hence, the trial Court has rightly rejected the defence version and convicted the appellant and other accused for the aforesaid offence. The appeal is devoid of merits and is liable to be dismissed by this Court.
48. We have considered the submissions advanced by learned counsel for the parties carefully and have gone through the evidence on record.
49. From the prosecution case it is evident that the person namely, Lallan Dubey resident of village Motipur who was cause of quarrel between the parties, was not present at the place of occurrence nor he has been examined before the trial Court. From the FIR as well as from the evidence of PWs 1, 2, 3 & 6 it is apparent that the accused including the appellant when reached at Rakhwa Bazar which is a busy market place started abusing Lallan Dubey which was objected by the deceased Chhotey Lal who stated to the accused persons as to what is the use of abusing Lallan Dubey who is not present there, which annoyed the accused persons. The accused Gauri Shanker in a fit of anger exhorted the two accused Phool Chand alias Baggar and appellant Rajendra to shoot Chhotey Lal as he was taking side of Lallan Dubey as he was close to him and on the exhortation the accused Phool Chand alias Baggar and appellant Rajendra fired shot with their respective firearm weapons at the deceased Chhotey Lal who received injuries on his leg and chest and fell down on the ground.
50. PW1 who was having tea at the shop of PW3 Tilakdhari when saw the incident rushed along with PW2 Surat Lal and PW6 Saheb Lal along with Mukhtar Ali and Sher Ali in order to save the deceased Chhotey Lal and chased the accused, on which Phool Chand alias Baggar again fired shot on the witnesses, namely, Surat Lal, Saheb Lal, Mukhtar and Sher Ali. After the accused had fled away from the place of occurrence, the said witnesses took the deceased in a tempo of one Rajendra and carried him to the hospital but while they had gone hardly a furlong, the deceased died. PW1 Banarsi Lal wrote a report and went along with the deceased and others to the police station Mariahun and submitted the report and the same was lodged at the concerned police station and immediately after registration of the FIR, the Investigating Officer proceeded to the place of occurrence, from where he recovered blood stained and blain earth and he conducted the inquest proceeding on the dead body of the deceased and sent the same to the post mortem after sealing the same through Constables.
51. The doctor found three ante mortem firearm injuries on the person of the deceased. On internal examination, he found fracture of 4th rib on the left side at the site of injury no.1 and in the opinion of the doctor, the cause of death of the deceased was shock and hemorrhage as a result of ante mortem no.1.The four injured were also medically examined on the same day by PW5- Dr. R.K.Tiwari.
52. The contention of learned counsel for the appellant that the appellant and accused had no motive to commit the murder of the deceased as it has come in the evidence that there was no animosity between the parties, has no substance as the motive looses its significance if the prosecution case is of a direct evidence and the instant case is of direct evidence as PW1 and PW3 are the eye witnesses of the occurrence along with PW2 and PW6 who are the injured witnesses, who received injuries in incident and their ocular testimony corroborates the medical evidence, thus, the argument of learned counsel for the appellant that the presence of the said eye witnesses and injured witnesses at the place of occurrence is doubtful is doubtful, is also of no consequence.
53. It is noteworthy to mention here that the incidcent has taken place at 8.15 a.m. in the morning and it was a busy market place where the incident has taken place and it was quite natural for PW1 and PW 3 to be present at the place of occurrence as PW3 Tilakdhari was a tea shop vendor where PW1 had come to take tea and it was near his shop the incident has taken place, therefore the presence of the two witnesses at the place of occurrence appears to be quite natural. The PW2-Surat Lal has also received three firearm injuries on his person in the incident and his presence at the place of occurrence cannot be doubted, hence he has deposed against the appellant and accused persons for murder of the deceased and causing injuries to him and other injured witnesses. PW6-Saheb Lal has also received injuries and his injuries were also examined by the doctor. All the injuries of the injured persons were got examined by the police and they were taken to the hospital after preparation of Chhiti mazroobi accompanying the Constable, as is evident from the evidence of PW5-Dr. R.K. Tiwari.
54. The argument of learned counsel for the appellant that the deceased Chhotey Lal was a dacoit and a dacoity took place in the intervening night between 8/9.8.1981 in which Vindeshwari and Jokhu who were having licensee weapons, shot at the dacoits. Moreover, the villagers of village Belwa assaulted the dacoits with lathi and danda in which some of the dacoits received injuries and Chhotey lal who was stated to be a dacoit, was found dead in the incident on account of the firearm injury and police had arrested the Vindeshwari and Jokhu who were later on released by the police because of them being influential persons and the appellant and other accused were falsely implicated in the present case, is also not acceptable as defence has failed to establish by cogent evidence that the deceased was done to death in a dacoity which had taken place in village Belwa. Moreover, the injuries sustained by the children of two accused, namely Phool Chand alias Baggar and Gauri Shamker and they were medically examined by DW2-Shiv Kumar has also not been proved by him as the trial Court found that he was a private medical practitioner and was a Ayurvedic doctor and he had not maintained any regular register in which he noted the injuries of the injured persons who used to come to his clinic and register which was produced before the trial Court only showed that he had made the first endorsement on 9.8.1981 and prior to the said medical examination of the four injured, he had never done any medical examination of any injured and in the whole register after the injury of the said four injured on 9.8.1981 one endorsement was made in the year 1981 and thereafter in the year 1982, thus the register which was produced by DW2 was suspicious document which shows that a false explanation has been given by the accused in order to escape the criminal liability of the murder of the deceased. Moreover, DW1 who was record keeper in the police office has also stated before the trial Court that there was no application dated 9.8.1981 of Rameshwar son of Neemar, resident of Belwa Bazar and application dated 31.8.1981 of Prabhawati, wife of Phool Chand were not found in the police office, the same was not found on the record.
55. The submission of learned counsel for the appellant that the deceased was done to death in the intervening night between 8/9.8.1981 at 2-3 a.m. as semi digested food was found in stomach, is also of no help to the defence as the trial court has rightly rejected the said argument of learned counsel for the accused by giving cogent and correct reasons.
56. The submissions which have been advanced by learned counsel for the appellant, as referred above, have been rightly considered and rejected by the trial court by giving a reasonable and rightful consideration after scanning the prosecution evidence. Thus, the finding of conviction and sentence recorded by the trial Court in convicting and sentencing the appellant cannot be said to be against the evidence on record. The prosecution has proved its case beyond reasonable doubts against the accused appellant.
57. After examining the entire evidence on record, we are of the opinion that the conviction and sentence of the accused appellant Rajendra for the offence he is charged with by the trial Court requires to be upheld by this Court, which is hereby upheld accordingly.
58. The appeal lacks merit. It is, accordingly, dismissed.
59. The accused appellant-Rajendra is on bail, his bail bonds and sureties are cancelled. He shall be taken into custody forthwith to serve out the sentence, as has been awarded by the trial Court.
60. Let a copy of this order along with the lower court record be sent to the trial Court concerned for its immediate compliance forthwith.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha,J.)
Order Date :-08.03.2019/NS