Allahabad High Court
Abbul Hasan vs State Of U.P. on 25 November, 2021
Bench: Ramesh Sinha, Vivek Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 1 Case :- CRIMINAL APPEAL No. - 622 of 1982 Appellant :- Abbul Hasan Respondent :- State of U.P. Counsel for Appellant :- R.N. Gupta,(Amicus Curaie),Dinesh Chandra Shukla Counsel for Respondent :- Govt. Advocate Connected with Case :- CRIMINAL APPEAL No. - 623 of 1982 Appellant :- Abbul Hasan Respondent :- State of U.P. Counsel for Appellant :- R.N. Gupta,(Amicus Curaie),Dinesh Chandra Shukla,R K Sharma Counsel for Respondent :- Govt. Advocate Hon'ble Ramesh Sinha,J.
Hon'ble Vivek Varma,J.
Ramesh Sinha, J. (Oral)
1. The convict/appellant, Abbul Hasan, was tried by the Sessions Judge, Hardoi in Session Trial No. 514 of 1981 for the offence under Sections 302, 307 and 324 I.P.C. and in Sessions Trial No. 575 of 1981 for the offence under Section 4/25 of the Arms Act.
2. Vide judgment and order dated 07.08.1982 passed in Sessions Trial No. 514 of 1981, the Sessions Judge, Hardoi convicted the convict/appellant under Sections 302, 307, 324 I.P.C. and sentenced him to undergo :-
"(a) Under Section 302 I.P.C. to undergo life imprisonment;
(b) Under Section 307 I.P.C. to undergo five years' R.I.; and
(c) Under Section 324 I.P.C. to undergo one year's R.I."
All the aforesaid sentences were directed to be run concurrently.
3. Vide judgment and order dated 07.08.1982 passed in Sessions Trial No. 575 of 1981, the Sessions Judge, Hardoi convicted the convict/appellant under Section 4/25 of the Arms Act and sentenced him to undergo six months' R.I.
4. Feeling aggrieved by the aforesaid judgment and order dated 07.08.1982 passed in Sessions Trial No. 514 of 1981, the convict/appellant has preferred Criminal Appeal No. 622 of 1982, whereas convict/appellant has preferred Criminal Appeal No. 623 of 1982 against the judgment and order dated 07.08.1982 passed in Sessions Trial No. 575 of 1981.
5. The aforesaid two sessions trials i.e. Sessions Trial Nos. 514 of 1981 and 623 of 1982, arose out of the common incident and the facts and law involved in the above-captioned criminal appeals are identical, hence with the consent of the learned Counsel for the parties, the above-captioned criminal appeals are being decided by a common order.
A. FACTS
6. Shorn off, unnecessary details the facts of the case are as under :-
Om Prakash (deceased), Abbul Hasan (convict/appellant), Mahesh and Ram Singh (injured) are the residents of Mohalla Salamullahganj, Qasba Sandi, District Hardoi.
As per the prosecution, convict/appellant-Abbul Hasan son of Sallu was having an evil eye on Kamla (P.W.3), who is the sister of Om Prakash (deceased) and daughter of informant-Gomti (P.W.2). On 05.04.1981, in the noon, a spat and ribaldry took place between Om Prakash (deceased) and convict/ appellant Abbul Hasan and thereafter convict/appellant Abbul Hasan, after giving threatening to Om Prakash (deceased) to look after him, went from there. On the same date i.e. on 05.04.1981, at about 07:00 p.m., son of the informant-Gomti (P.W.2), namely, Om Prakash (deceased), Mahesh Ahir (P.W.4) and Ram Singh Loniya were returning from the market to their house. The informant-Gomti (P.W.2) was also coming behind them from her field. When Om Prakash (deceased), Mahesh Ahir and Ram Singh Loniya came near the house of Dr. Ram Bilash where electric bulb was burning, all of a sudden convict/appellant Abbul Hasan armed with knife came in front of him (deceased Om Prakash) and after challenging her son (deceased Om Prakash), assaulted him with the knife, as a consequence of which, her son, Om Prakash (deceased), raised alarm, thereupon she (informant) had also raised alarm. When Mahesh (P.W.4) and Ram Singh, who were accompanied with Om Prakash, tried to save Om Prakash (deceased) and also raised alarm, convict/appellant Abbul Hasan had also assaulted them with the knife. Thereafter, on listening hue and cry, Jauhari, son of Nav Shanker and other persons came there and challenged the convict/appellant AbbulHasan, thereupon, convict/appellant, after brandishing the knife, ran from there. The son of the informant-Gomti (P.W.2) succumbed to injuries on the spot and Mahesh (P.W.4) and Ram Singh got injured.
7. The FIR of the aforesaid incident was lodged by the informant Gomti (P.W.2) at about 07.15 p.m. on the date of the incident on 05.04.1981 at Police Station Sandi, District Hardoi.
8. The evidence of P.W.10 Chabinath Singh shows that on 05.04.1981, he was posted as Head Moharrir at police station Sandi, District Hardoi and on that date, at about 07.25 p.m., informant Gomti (P.W.2) came at police station Sandi and described him the incident, whereupon after scribing it he read it over to her and, thereafter, she affixed her thumb impression on it and lodged it at police station. The F.I.R. was marked as (Ext. Ka. 3).
9. A perusal of the chik FIR shows that the distance between the place of incident and Police Station Sandi was 2 furlang. It is significant to mention that a perusal of the chik FIR also shows that on its basis, a case crime no. 40 of 1981, under Section 302/307 I.P.C. was registered against appellant. After lodging of the F.I.R., injured Mahesh and Ram Singh, who also came along with the informant Gomti (P.W.2) at Police Station Sandi, were sent along with Homeguard Surendra Kumar and Bhikham to Primary Health Centre, Sandi, Hardoi for medical examination.
10. The injuries of injured Mahesh (P.W.4) and Ram Singh were medically examined at Primary Health Centre, Sandi, Hardoi on 05.04.1981 at 08:00 p.m. and 08.30 p.m., respectively, by Dr. A.K. Dixit (P.W.1), who, on the persons of injured Mahesh (P.W.4) and Ram Singh, found the following injuries :-
"Injury of Mahesh, son of Dawarika (1) Punctured incised stabbed wound 10 cm x 1½ cm x intestines with other viscera came out through the wound so that depth could not be taken. Fresh bleeding through the wound on the outer and middle of left abdominal trunk just below the left lower part of ribs 7 cm above from axillarial chest."
Dr. A.K. Dixit (P.W.4) opined that the aforesaid injury is sustained by injured Mahesh was fresh and caused by some sharp pointed object and for the same reason, he was kept under observation.
"Injury of Ram Singh, son of Munshilal
1. Incised punctured stab wound 2 cm x ¼ cm x ¼ cm on the outer and lower part of left neck 4 cm above from left colar bone from its middle part. Margins are sharp cutting type with oozing of blood.
2. Incised punctured wound 1½ cm x 1½ cm x muscle deep on the front and lower part of outer part of left fore-arm 3 cm below from wrist joint. Margins are sharp cutting type with oozing of blood."
In the opinion of Dr. A.K. Dixit (P.W.4), all the injuries are simple and caused by some sharp pointed object and duration is fresh.
11. It is significant to mention that in his deposition in the trial Court, Dr. A.K. Dixit (P.W. 1) has reiterated the said cause of injuries and also stated therein that on 05.04.1981, he was posted as In-charge Medical Officer, Primary Health Centre, Sandi. He had examined the injuries of injured Mahesh (P.W.4) and Ram Singh. He further deposed that the injuries sustained by the injured persons could be attributable by knife (Ext. Ka.1) and these injuries could be attributable on the injured Mahesh and Ram Singh on 05.04.1981 at 07:00 p.m. He further stated that as the injury sustained by injured Mahesh was attributable by a sharp pointing weapon, therefore, while taking the injury of injured Mahesh under observation, he was sent him to District Hospital Hardoi, however, at the time of medical examination, the injury of injured Mahesh was fresh.
12. The evidence of P.W.9 Dr. J.V. Singh shows that he was posted as Reserve Duty Medical Officer at Sadar Hospital, Hardoi between April to May, 1981. On 05.04.1981, injured Mahesh (P.W.4) came on referral from Primary Health Centre, Sandi. On 05.04.1981, at about 09:30 p.m., injured Mahesh was admitted at Sadar Hospital, Hardoi. He performed the operation of the injured Mahesh on 05.04.1981 at 11:45 p.m. He further stated that during the course of operation, the abdomen of injured Mahesh was opened by giving incision on left middle upper and middle paramedian and found that some blood came out from the peritoneum; three incised wounds of 0.75 cm x 0.75 cm. in an area of 2 cm were found on transverse colon; and three incised perforations were found on the upper one-third part of the intestines in an area of 10 c.m. Thereafter, the peritoneum on account of stab wound was also closed and after putting a rubber drain in the abdomen, the stab wound was dressed. Dr. J.V. Singh (P.W.9) has proved his operation notes, recorded on the bed-head tickets. In his opinion, the injury was grievous and the same could be said dangerous to life. He also stated that at the time of admission, injured Mahesh was in a conscious position, hence at 09:40 p.m., he had given a note on the bed-head ticket for recording of the dying declaration of the injured Mahesh but the same could not be recorded till 11:45 p.m. and thereafter, the injured was not in a position to give any statement.
13. The evidence of P.W.8-Harchandra Singh shows that he was posted as Station Officer at police station Sandi in the month of April, 1981. On 05.04.1981, at about 07:25 p.m., informant-Gomti (P.W.2) came at Police Station Sandi and in his presence lodged FIR. The chik FIR was written by Head Moharrir Chabinath Singh (P.W.10) on describing of the incident by informant Gomti and on that basis, F.I.R. was registered by Head Moharrir Chabinath Singh (P.W.10) at 07:25 p.m. on 05.04.1981. He further deposed that injured Mahesh (P.W.4) and Ram Singh were also coming at police station along with informant-Gomti (P.W.2) and they (injured Mahesh and Ram Singh) were sent for medical examination along with Homeguard Surendra Kumar and Bhikham at Primary Health Centre, Sandi. At that time, spot of blood on the shirt of injured Ram Singh was present, therefore, his shirt was taken by Head Moharrir Chabinath Singh and sealed it as (Ext. Ka 6). The investigation of the case was conducted by him. Thereafter, he went to Primary Health Centre, Sandi for recording the statement of the injured Mahesh and Ram Singh, wherein he recorded the statement of injured Mahesh, whereas Ram Singh was asked to reach on the place of occurrence and injured Mahesh was referred to the District Hospital, Hardoi for further treatment. Thereafter, he reached at the place of occurrence and at the place of occurrence, the deadbody of the deceased Om Prakash was found in front of the house of Ram Bilash Thakur on road. Thereafter, on his direction, S.I. Ram Shukla Awasthi had prepared panchayatnama (Ext. Ka. 8), photo lash (Ext. Ka. 9) and challan lash (Ext. Ka. 10). Thereafter, sealed deadbody of the deceased Om Prakash was sent for post-mortem at Sadar Mortuary, Hardoi along with Homeguard Ram Kishore and Constable Lal Bihari.
14. The post-mortem on the dead body of deceased Om Prakash was conducted on 06.04.1981 at 04:40 p.m., by Dr. S.K. Luthra (P.W. 5), who found on his person ante-mortem injuries, enumerated hereinafter :--
"1. Incised wound 1 cm x .5 cm x muscle deep over left side of face, 1 cm below the left eye, tailing present downward. Margins clean cut.
2. Incised wound 3 cm x 5 cm x muscle deep 1.5 cm below the left eye. Tailing present downward. Margins clean cut.
3. Punctured wound 4.5 cm x 2 cm x chest cavity deep over left side of chest 5 cm away from the left nipple at 1 to 2 O'clock position. Elliptical in shape. Margins clean cut. Director medially and downward.
4. Punctured wound 3 cm x 1.5 cm x chest cavity deep over left side of back of chest x chest cavity deep just above the left scapua. Elliptical in shape. Margins clean cut. Direction downward, forward and medially.
5. Abrasion over left knee joint 3 cm x 1 cm.
6. Two abrasions over right knee joint. Each measuring 2.5 cm x 1 cm x 2 cm x 1 cm."
The cause of death spelt out in the autopsy reports of the deceased Om Prakash was shock and haemorrhage as a result of ante-mortem injuries, which he had sustained.
15. It is significant to mention that in his deposition, in the trial Court, Dr. S.K. Luthra (P.W. 5) has reiterated the said cause of death and also stated therein that on 06.04.1981, he was posted as Medical Officer at District Hospital, Hardoi. He stated that on internal examination, he found that 2nd rib of left side was cut through and through under injuries no. 3 and 4; left pleural cavity contained 350 C.C. clotted blood; in the left lung, incised wound in the upper labe 2 cm x 1 cm communicating with the injury no. 4 was found; a lacerated wound in lower labe size 3 cm x 1.5 cm communicating with the injury no.3 was found, which was through and through in the lung; stomach contained 6 oz. of paste like food material; faecal matter and gas was found in large and small intestine.
In the cross-examination, Dr. S.K. Luthra (P.W. 5) has stated that there was no injury in the wedged shaped. Injuries no. 3 and 4 were made from such weapon of which both sides are sharpen and these injuries could be attributable by the knife (Ext. Ka. 1).
16. The evidence of P.W.8 S.I. Harchandra Singh, who is Investigating Officer of the case, further shows that he inspected the place of the incident in the presence of informant P.W.2-Gomti and injured Ram Singh and prepared the site plan (Ext. Ka. 11). From the place of incident, he seized plain and blood stained earth in containers under a recovery memo. On 06.04.1981, at 08:00 a.m., he went to village Badhrai for recording the statement of Mahipal Singh and he reached Badhrai at about 08:30 a.m. and recorded the statement of Mahipal Singh. In the village Badhrai, informer had informed him that convict/appellant Abbul Hasan is present at Badhrai Bus Station. Immediately thereafter, he reached the Badhrai Bus Station from where he arrested the convict/appellant. On interrogation of convict/appellant, he informed him that he murdered the deceased Om Prakash with knife. Thereafter, on the pointing out of the convict/appellant Abbul Hasan, knife (Ext. ka. 1) was recovered from the house of the convict/appellant in the presence of witnesses Jagannath, Kuber and Ram Laraitey (P.W.7). He further deposed that in the recovered knife, blood mark was present. Thereafter, he deposited the recovered knife in the malkhana. He further stated that he had also instructed to lodge an F.I.R. against the convict/appellant under Section 4/25 of the Arms Act. On the date itself i.e. on 16.04.1981, he recorded the statement of witnesses Ram Laraitey (P.W.7), Kuber, Jagannath and others at the police station. On 22.04.1981, after completion of investigation, he submitted the charge-sheet (Ext. Ka. 15) against the convict/appellant under Sections 302, 307 and 324 I.P.C.
In the cross-examination, P.W.8-Harchandra Singh has denied the suggestion that the F.I.R. of the case was not lodged on 05.04.1981 and it has been lodged on 06.04.1981 on his instruction. He further stated that the place from where informant Gomti saw the incident is not shown in the site plan. He did not see any gourd burden (cks>k) and sickle at the place of the incident. The road where the deadbody of the deceased was lying was made of asphalt. There was a drain on the side of the road. The mud was removed from the drain and thrown on the road, which had dried up, the dead body was lying on it and the blood was also spread there. There was no blood spread on the part of the asphalt. He further denied the suggestion that neither the dead body nor the blood was found at the place where the deadbody of the deceased was lying and further Jauhari did not live in the kothari (cell) near the spot. He also denied the suggestion that witness Jauhari was an accused at Police Station Sandi. He did not find blood on the clothes worn by the informant Gomti. He had taken the statement of Dr. Ram Bilash, however, none of the residents whose houses are shown in the site plan, had given statement. He denied the suggestion that he did not record the statement of any witness on 05.04.1981. He also stated that when he was at Baghrai, then, he came to know that convict/appellant was going to surrender in Court. As the convict/appellant was trying to escape, he was arrested by police by surrounding him at Badrai Bus Station.
17. The case was committed to the Court of Session by the Chief Judicial Magistrate, Hardoi on 09.07.1981 and the trial Court framed charge against convict/appellant under Section 302, 307, 324 I.P.C. He pleaded not guilty to the charges and claimed to be tried and has stated that Om Prakash was under a wrong belief that he has got illicit relation with his sister, on account of which, Om Prakash along with Ram Singh and Mahesh armed with ''dandas' came to his door and beat him mercilessly and thereafter, his father and uncle rushed to save him and in defending him, they cause injuries to Om Prakash, Mahesh and Ram Singh with a ''dharia' (a grass cutting sharp edged weapon). The same day, he went to lodge the report. He was detained there. His report was not written and then, he was falsely challaned. The recovery of the knife at his instance has also been falsely manipulated. He had a good number of injuries on account of assault by the deceased and his companions.
18. It transpires from the record that on the recovery of the knife on the pointing out/possession of the convict/appellant Abbul Hasan after he was arrested in connection with Case Crime No. 4 of 1981, under Section 307/34 I.P.C., which was registered earlier against the convict/appellant, the learned Magistrate directed to commit the aforesaid case also for trial before the Court of Sessions and accordingly, Sessions Trial No. 575 of 1981 for the offence under Section 4/25 of the Arms Act against the convict/appellant arose.
19. During trial, in all, the prosecution examined 10 witnesses, namely, P.W.1 Dr. A.K. Dixit, who medically examined the injured Mahesh (P.W.4) and Ram Singh, P.W.2-Gomti, who is the daughter of the deceased and informant of the case, P.W.3-Smt. Kamla, who is the daughter of the informant Gomti and sister of the deceased, P.W.4-Mahesh, who is the injured witness, P.W.5-Dr. S.K. Luthra, who had conducted the post-mortem of the deceased Om Prakash, P.W.6-Jauhari, who is the eye-witness of the incident, P.W.7- Ram Laraitey, who is the witness of recovery of knife, P.W.8-Harchand Singh, who is the Investigating Officer, P.W.9-Dr. J.V. Singh, who had made treatment of injured Mahesh on referral from Primary Health Centre, Sandi, and P.W.10-H.M. Chavinath Singh, who is the scriber of the F.I.R. and on describing the incident by the informant lodged the F.I.R. at Police Station Sandi, Hardoi.
20. The prosecution, in support of his case, has also filed before the trial Court an affidavit of Ram Kishore, Home Guard, who brought the deadbody of the deceased Om Prakash for post-mortem examination; affidavit of Constable Mohan Lal, who brought two sealed bundles on 05.04.1981; affidavit of Bhoop, who brought five bundles on 04.05.1981 to Sadar Malkhana and took the same from Sadar Malkhana to the office of Chief Medical Officer for dispatch to the Chemical Examiner; affidavit of Head Constable Jagannath, Moharrir Malkhana; report of the Chemical Examiner (Ext. Ka. 25); and the report of Serologist (Ext. Ka. 26).
21. From other side, the defence had examined two witnesses, namely, D.W.1-Dr. S.C. Rizvi, who had medically examined the convict/appellant at District Jail, Hardoi and D.W.2-Sripal, who was the x-ray technician at Sadar Hospital, Hardoi and had performed x-ray of the convict/appellant under the supervision of Dr. A.N. Singh.
22. P.W.2 Gomti, who is the informant and mother of the deceased Om Prakash, in her examination-in-chief, has deposed that accused Abbul Hasan was having evil eye on her daughter Kamla and in this regard, on the day when her son Om Prakash was murdered, altercation took place between her son and accused Abbul Hasan in the afternoon and accused Abbul Hasan had threatened her son Om Prakash to see him. This fact has been informed by her son Om Prakash to her on the same day in the afternoon. She further deposed that prior to one day before the date of incident, her daughter Kamla had informed her about accused Abbul Hasan having evil eye on her and at that time, her son Om Prakash was also present in the house when her daughter informed the aforesaid fact to her.
23. P.W.2-Gomti has further deposed that the incident was about ten months ago. She had gone to harvest the crops. She was returning home from the field at around 7 in the evening. She reached in the corridor of Dr. Ramvilas's house from the North direction at seven o'clock in the evening. Her son Om Prakash, Mahesh and Ram Singh were going ahead of her in the same direction. When her son Om Prakash reached in front of Dr. Ramvilas's house, accused Abbul Hasan came with a knife from the south side and challenged her son Om Prakash and started hitting him with a knife. Thereafter, she raised alarm and Mahesh and Ram Singh also after raising alarm tried to save her son Om Prakash. Accused Abbul Hasan, thereafter, had also stabbed Mahesh and Ram Singh with knife. Thereafter, on raising hue and cry, Jauhari and other passerby came and accused AbbulHasan ran towards South direction with knife. Her son Om Prakash fell there and died instantly. She also deposed that blood was oozing out of his body. Ram Singh and Mahesh also got injuries. She further deposed that lighting was there coming from the house of Dr. Ram Bilas near the place of the incident and from where the passage to her house turns, there was also a light on the electric pole. At the same time, she went to the police station along with Ram Singh and Mahesh and at the police station, report was written on her dictation. She has proved the Ext. Ka.3 before the trial Court.
24. P.W.2-Gomti, in her examination-in-chief, has further deposed that she had no complaint regarding the closed sieve of Kamla. Accused AbbulHasan used to look at her daughter with evil eye since a month ago. The accused Abbul Hasan never molested her daughter in front of her nor in front of her son Om Prakash. When her daughter complained about accused Abbul Hasan to her, then, she told this to Om Prakash as well. Both, she and Om Prakash, felt bad on listening the aforesaid. Om Prakash got very angry, however, he did not say to her that he would see AbbulHasan when he meet him next. She further stated that no report was made against accused Abbul Hasan in the police station after her daughter told that accused Abbul Hasan molested her. Her son Om Prakash did not go in search of accused Abbul Hasan on the day when her daughter complained. On the second day i.e. on the day of the incident, her son Om Prakash came and told her that a quarrel with accused Abbul Hasan took place. Her son Om Prakash did not say that he had gone in search of Abbul Hasan. Her son Om Prakash told her that quarrel took place with accused Abbul Hasan at the flour mill of Juber. She further stated that she and her son Om Prakash did not make complain about the act of the accused Abbul Hasan to his mother or father nor her son Omprakash write any report at the police station. She denied the suggestion that accused Abbul Hasan never had an evil eye on her daughter nor Om Prakash have a fight with the accused Abbul Hasan. She further deposed that she has no agricultural land. Her son Om Prakash was a servant in the confectioner Kishanlal. Keshanlal's shop is in Nawabganj. Her son Om Prakash used to stay at the shop from morning till noon and then he used to go after having food and returned by 8-3 pm. On the day of the market, the confectionery shops were closed at 10 o'clock in the night. On the day of the incident, her son Om Prakash had come to eat food when he complained. She further deposed that on the day of the incident, her son Om Prakash worked in the shop both in the morning and in the evening. She deposed that she did not know the cousin of the accused, Chirag Ali, however, she knew the father of the accused. The house of the accused is at 30-40 steps south from the place of the incident.
25. It has also been stated by P.W.2-Gomti that her son Om Prakash, Mahesh and Ram Singh were not having any weapon. None of these three had beaten accused Abbul Hasan. No blood came out from accused Abbul Hasan. She denied the suggestion that the arm of accused Abbul Hasan was broken during the incident. She further deposed that the Inspector had come to the spot at 8-9 pm on the day of the incident. The deadbody of her son Om Prakash was sealed and left at 10 pm on the same day and when she reached at police station in the morning on the next date of the incident, the body of the deceased was present there. The Inspector was also present at the police station till noon. She denied the suggestion that her son was not murdered in front of the house of Ram Bilas. She also denied the suggestion that her son Omprakash and injured Ram Singh and Mahesh had beaten the accused Abbul Hasan with ''dandas' in front of his house and on hearing the noise of accused Abbul Hasan, his family members came and in defense, they hurt Om Prakash, Ram Singh and Mahesh. She has also stated that her report was written in the evening on the date of the incident and her report was not written on the next date of the incident. She denied the suggestion that the report was written on the next day of the incident on the instruction of police.
26. P.W.3-Kamla, who is the daughter of the informant-Gomti (P.W.1) and sister of the deceased Om Prakash, has deposed that a day prior to the incident, accused AbbulHasan had behaved with her in bad manner while she was returning from the market and she had told about it to her mother (P.W.2-Gomti) and brother (deceased-Om Prakash). She has further deposed that on the day of the incident also, when her brother (deceased Om Prakash) came to the house in the noon, he had told her that he had a quarrel with accused Abbul Hasan and accused Abbul Hasan had threatened to him. She further deposed that it was in the evening that the incident resulting in the murder of her brother (Om Prakash) took place.
27. P.W.4-Mahesh, who is the injured witness, in his examination-in-chief, has deposed that it was about ten months' ago, it was 7 O'clock in the evening. He, Ram Singh and Om Prakash were going towards the house of the deceased-Om Prakash from the market and when they reached the road in front of the house of Ram Bilas, accused Abbul Hasan came from South direction with a knife and accused Abbul Hasan, all of a sudden, became angry and started stabbing Om Prakash. They raised alarm. When he and Ram Singh tried to save Om Prakash, accused AbbulHasan had also stabbed them. At that time, mother of Om Prakash (informant Gomti) came from behind and she had also raised alarm; Jauhari was also coming from his house; and other persons were also coming there. Accused Abbul Hasan, after stabbing with knife, ran towards South direction with knife. Om Prakash died on the spot. The blood from the body of Om Prakash was falling. He and Ram Singh had sustained the injuries. He, Gomti and Ram Singh had gone to police station and Gomti had lodged the report. Thereafter, he and Ram Singh were sent for medical examination at Sandi hospital, where they were medically examined. Thereafter, he was referred to Hardoi Hospital from hospital Sandi, where he was medically examined. He was admitted at Hardoi hospital for about one month.
In cross-examination, P.W.4-Mahesh has stated that he was working at the shop of Gedan Lal and at the time of the incident, he was returning from the said shop. He has also stated that his house and the house of Om Prakash were in the same passage. His house is situated in east direction of accused Abbul Hasan after 5-6 houses. He denied the suggestion that at the time of incident, they were going towards the passage of eastern direction. On that date, they were planned to see drama. Om Prakash told that firstly dinner be taken, therefore, they were going to the house of Om Prakash. He was having friendship with Om Prakash. He further deposed that at the time of incident, no lathi, danda was in the possession of him, Ram Singh and Om Prakash. None of them had beaten accused Abbul Hasan. No blood of accused Abbul Hasan was falling on the spot nor accused AbbulHasan sustained any injury. Accused Abbul Hasan was not beaten by anyone in their presence.
28. P.W.4 Mahesh has further deposed that at the time, when Om Prakash was assaulted, his mother (P.W.2-Gomti) was behind him about 4-6-10 steps. He had sustained one knife blow. He also stated that at the time of incident, Jauhari was residing at Mohalla Salamullaganj nor residing at Nababganj. Prior to one year ago, Jauhari was residing in one kothari of the Thakur Ram Bilash. He denied the suggestion that Jauhari never resided at the kothari near the place of the incident. Jauhari used to sell Kewada and Rose. Jauhari was never the servant at police station. He also denied the suggestion that on the date of the incident, at about 07:00 p.m., he, Ram Singh and Om Prakash were assaulted seriously to accused Abbul Hasan by lathi and danda in his house and also family members of AbbulHasan were coming to save him and they were beaten them. He also denied the suggestion that Gomti (P.W.2) did not lodge the report on the date of the incident.
29. P.W.4-Jauhari, in his examination-in-chief, has stated that it was about ten months ago. It was 7 O'clock in the evening. He was in the house. He listened the noises of abuses coming from the road situated in front of his house. He came out from the house. The electricity bulb was lighting in the house of Dr. Ram Bilash and nearer to it also bulb was lighting in the electricity poll. He saw that accused Abbul Hasan was stabbing Om Prakash, Mahesh and Ram Singh with knife. The mother of Om Prakash also raised alarm. Thereafter, accused Abbul Hasan, after stabbing, ran towards the South direction. Om Prakash had sustained injuries and blood was oozing and he died on the spot and Ram Singh and Mahesh had also sustained injuries. He further deposed that firstly he saw the accused stabbing and then he saw Abbul Hasan running from there. After the incident, he stayed there. Inspector came at about 08:00 p.m. The mother of Om Prakash came along with the Inspector. Mahesh, Ram Singh had gone along with the mother of Om Prakash to the police station. The inspector stayed there till 11:00 p.m. and thereafter, the inspector had gone to police station. The mother of Om Prakash had not gone to police station along with Inspector. He denied the suggestion that at the time of incident, he was residing at the house of Ram Lal and he did not see the incident. He also denied the suggestion that he has given false evidence on the pressure of the police against the accused.
30. P.W.7-Ram Laraitey is the witness for the recovery of the knife (Ext. 1) at the instance of the accused Abbul Hasan.
31. D.W.1 Dr. S.C. Rizvi, who was the Medical Officer, Police Lines, has stated that on 06.04.1981, he was posted as Medical Officer, District Jail, Hardoi and on that day, at about 05:00 p.m., after detaining the accused Abbul Hasan in jail, he conducted his medical examination. On examination of accused Abbul Hasan, twelve injuries were found on him, which are as under :-
"1. Lacerated wound 2 cm x 1 cm x scalp deep 10 cm above right ear on right side of head.
2. Traumatic contused swelling (generalized) on whole of lower 1/3 of right upper arm, Right elbow upper 1/3 of right fore arm. Local pain and tenderness present, movements painful and restricted, suspected fracture. Preserved. Advised X-ray
3. Traumatic generalized swelling on whole of right wrist and right hand, local pain, tenderness present, movements painful, and restricted, suspected fracture present.
4. Lacerated wound 1 cm x .5 cm x muscle deep over terminal phalanx of right index finger.
5. Lacerated wound 1 cm x .5 cm x muscle deep over terminal phalanx of right ring finger.
6. Lacerated wound 1 cm x .5 cm x muscle deep on terminal phalanx of right middle finger.
7. Lacerated wound 1 cm x .5 cm x muscle deep on terminal phalanx of right little finger.
8. Contusion 8 cm x 4 cm x blue in colour on top of left shoulder.
9. Contusion 5 cm x 3 cm x blue in colour over left scapular region of back.
10. Traumatic generalized swelling on whole of the left wrist joint, left hand, all the fingers, local pain and tenderness present, movements painful and restricted, suspected fracture. Advised x-ray.
11. Traumatic generalized swelling with blister formation on whole of the lower 2/3 of right leg. Swelling is huge, local pain and tenderness present, movements painful and restricted completely, suspected fracture present. Advised x-ray.
12. Traumatic generalized swelling on whole of the lower ½ of the left leg, local pain and tenderness present, movements of joints concerned restricted, suspected fracture present. Advised for X-ray."
32. It is significant to mention here that D.W.1 Dr. S.C. Rizvi, has deposed that Injuries no. 2, 3, 10, 11 and 12 were kept under observation and rest injuries were simple in nature. All injuries were caused by hard and blunt object. Duration was about 24 hours. He also deposed that all these injuries could have been caused on 05.04.1981 at about 7:00 p.m. and could be attributable by danda. In cross-examination, he has stated that there is lesser possibility of these injuries having been received at 12 noon on 06.04.981. He has proved injury report Ext. Kha. 1.
33. D.W.2-Sripal, who conducted x-ray of the accused/appellant Abbul Hasan, has deposed that on 10.04.1981, he was posted as x-ray technician at Sadar Hospital, Hardoi. On 10.04.1981, accused/appellant Abbul Hasan came in custody at Sadar Hospital, Hardoi for x-ray. He conducted the x-ray of the accused/appellant Abbul Hasan in the presence of Dr. A.N. Singh. He has proved the x-ray report (Ext. Kha.2). He has also filed four x-ray plates (Ext. Kha 3 to Ext. Kha 6). It is relevant to show herein that Ext. Kha 2 shows the fracture of first metacarpal bone, fracture of proximal digit of left index and middle finger. The prosecution has not cross-examined D.W.2.
34. The trial Court believed the evidence of P.W.2-Gomti, P.W.4-Mahesh, P.W.6-Jauhari, P.W.7-Ram Laratiey and found the appellant guilty for the offences punishable under Sections 302, 307, 324 I.P.C. and 4/25 of the Arms Act and, accordingly, convicted and sentenced the appellants in the manner stated in paragraph 2 and 3, by means of judgments and orders dated 07.08.1982 passed in Special Appeal Nos. 514 of 1981 and 575 of 1981, respectively.
B. APPELLANT'S CASE
35. On behalf of the convict/appellant, Mr. Dinesh Chandra Shukla, learned Counsel has made the following submissions :-
(i) The F.I.R. is too prompt to believe and ante-time. As per the prosecution, the incident occurred at 07:00 p.m., whereas F.I.R was lodged by P.W.2-Gomti, who is the mother of the deceased Om Prakash at 07:25 p.m. P.W.2-Gomti, in cross-examination, has stated that on the next date of the incident, Munshi of the police station affixed her thumb impression and at that time, she was not provided a copy of the report and further she stated that on the date of the incident when she lodged the report, at that time also no duplicate was provided to her. Therefore, his submission is that FIR has been lodged on the next date of the incident in the morning. Hence the prosecution case is improbable and doubtful.
(iii) The Investigating Officer P.W.8 Harchand Singh had stated in his examination-in-chief that he arrested the accused AbbulHasan at Bagrai Bus Station on 06.04.1981 i.e. on the next date of the alleged incident. Whereas D.W.1 Dr. S.C. Rizvi, who has medically examined the accused Abbul Hasan, had stated that the injuries sustained by the accused Abbul Hasan could be attributable to a lathi and the same could have occurred on 05.04.1981 at 07:00 p.m. and in his cross-examination, D.W.1 Dr. S.C. Rizvi has stated that there is lesser possibility to have received injuries by accused on 06.04.1981 (on the date of the incident) at about 12:00 O'clock in the day. Hence, the injuries of the convict/appellant have not been explained by the prosecution and the prosecution story is improbable and doubtful. The trial Court has erred in not considering this aspect of the matter. In support of his submission, he relied upon Manphool Singh and others Vs. State of Haryana : (2018) 18 SCC 531 and Lakshmi Singh Vs. State of Bihar : 1976 Law Suit (SC) 325.
(iii) The alleged recovery of the knife had not been proved and made in accordance with the provisions of Section 102 Cr.P.C.
(iv) The P.W.2-Gomti, P.W.4-Mahesh and P.W.6-Jauhari are the interested witnesses as P.W.2-Gomti is the mother of the deceased, P.W.4-Mahesh is the friend of the deceased and P.W.6 was not residing in the village Salamullaganj at the time of the incident as he is the resident of Kannauj.
C. RESPONDENT/STATE CASE On behalf of the State, Mrs. Smiti Sahay, learned Additional Government Advocate has submitted that it is a case of direct evidence. P.W.1-Gomti, injured P.W.4-Mahesh and P.W.6-Jauhari on facts are the witnesses of an eye account. P.W.2-Gomti and P.W.4-Mahesh have clearly stated that at the time of the incident, deceased Om Prakash, injured Mahesh and Ram Singh were returning from the market and at the same time, P.W.2-Gomti was returning on the same way behind them and when deceased Om Prakash, injured Mahesh and Ram Singh reached near the house of Dr. Ram Bilash where the electric bulb was lighting, accused Abbul Hasan, all of a sudden, armed with knife and came in front of Om Prakash and stabbed him with knife and, thereafter, P.W.4-Mahesh and Ram Singh were also tried to save Om Prakash but they were also stabbed by accused Abbul Hasan, therefore, their presence on spot is highly probable and natural. They have given categorical and specific evidence on the point that it was present accused/appellant Abbul Hasan who had stabbed with knife at Om Prakash (deceased) with intention to commit his murder. Their deposition are consistence inter-se and are corroborated by the evidence of each other. The evidence of P.W.2-Gomti, who is the mother of deceased Om Prakash is fully corroborated by the contents of her report Ex. Ka-3 and the medical evidence fully corroborates the evidence of all the aforesaid three witnesses PW-2, PW- 4 and PW-6. They are fully reliable witnesses. Lengthy cross-examination were made but these witnesses remained intact throughout. The motive and intention to commit the murder of the deceased has been fully established and proved by the prosecution. All the aforesaid facts are fully proved by prosecution. The inquest was prepared and the dead body was subjected to post-mortem examination within 24 hours of the incident. Two incised wounds, two punctured wounds and two abrasions were found on the body of the deceased which fully proved the case of prosecution. The weapon used by the appellant in committing the crime; the nature of injury through and through; and strong motive are factors establishing the intention of the appellant to commit the murder of the deceased and, therefore, the case falls within the ambit of Section 302 I.P.C. Lastly, she submitted that the arguments advanced by the learned counsel for the appellant are imaginary which are not supported by the evidence on record. The appeal lacks merit and deserves dismissal.
(D) DISCUSSION
36. We have examined the submissions advanced by Dr. Dinesh Chandra Shukla, learned Counsel for the appellant and Ms. Smiti Sahai, learned Additional Government Advocate for the State and perused the record.
37. It transpires that the incident has taken place on 05.04.1981, at about 7.00 P.M. and the report was lodged on 05.04.1981 at 07:25 P.M. after covering a distance of two farlang (approx 404.4 metres) from the scene of incident to the police station concerned and, therefore, the F.I.R. is prompt which contains the details of the incident, the names of accused, the weapon used, the motive, mode, manner and the result of the assault, the presence and name of witnesses at spot without any ambiguity. Therefore, this prompt F.I.R. rules out any kind of concoction, fabrication, manipulation, maneuvering and after thought of the F.I.R.
38. In Jai Prakash Singh Vs. State of Bihar and another : 2012(2) Supreme Court Cases (Criminal) 468, the Apex Court has held that the F.I.R. in a criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt loding of the F.I.R. in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names fo the actual culprits and the part played by them as well as the names of the eye witnesses present at the scene of occurrence. If there is a delay in lodging the F.I.R., it loses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large numbers of consultations/deliberations. Undoubtedly, the promptness in lodging the F.I.R. reflects the first hand account of what has actually happened, and who was responsible for the offence in question.
39. There does not appear any substance in the contention of the learned counsel for the appellant that the F.I.R. is too prompt to believe because lodging of F.I.R. within a space of twenty-five minutes after covering of distance of 2 furlang cannot be said to be too prompt F.I.R. Furthermore, P.W.2-Gomti and P.W.4-Mahesh have consistently stated in their statement that they along with Ram Singh, immediately after the incident, went to the police station for lodging the F.I.R. P.W.10-Chavinath Singh and P.W.8-Harchand Singh have also supported the aforesaid statement of P.W.2 and P.W.4 that Gomti, Mahesh and Ram Singh reached the police station on the date of the incident i.e. 05.04.1981 at 07:25 p.m. Hence, the submission of the learned Counsel for the appellant that the FIR is ante-time, has no substance.
40. As regards the submission of learned counsel for the appellant that P.W.-2 is the mother of deceased, P.W.-4 is the friend of the deceased, therefore, they are interested witnesses and for the said reason their statements ought to have been discarded, we do not agree with the said submissions.
41. In Bur Singh Vs. State of Punjab : (2008) 16 SCC 65, the Apex Court has observed in the following terms :-
"11........Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible."
"12. Merely because the eye witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version."
42. In State of Punjab Vs. Karnail Singh : 2003 (3) ACR 2961 S.C. and in Ashok Kumar Chaudhary Vs. State of Bihar : 2008 (2) CAR 652 S.C., the Apex Court has held that mere interestedness of a witness is not sufficient to discard his testimony. The only precaution in appraisal of evidence of such witness is required to be more cautious and the courts are required to test their evidence on the anvil of strict judicial scrutiny. Recently, in the case of Gumansinh and others Vs. The State of Gujarat : AIR 2021 SC 4174 has reiterated the aforesaid view.
43. Keeping in the mind the above dictum of the Apex Court and also when we test the evidence of P.W.2-Gomti and P.W.4-Mahesh on the aforesaid anvil, we have no hesitation to hold that these two witnesses i.e. P.W.2 and P.W.4 are wholly reliable witnesses. There is no room for doubt in their testimony. Their testimony is consistent throughout. Their presence at the spot was natural when P.W.4-Mahesh, deceased Om Prakash and injured Ram Singh were returning from the market to their home and behind them, P.W.2-Gomti was coming from the field and when P.W.4-Mahesh, injured Ram Singh and deceased Om Prakash reached in front of the house of Dr. Ram Bilash, all of a sudden, appellant armed with a knife came and challenged Om Prakash and subsequently stabbed Om Prakash with knife and when injured P.W.4-Mahesh and Ram Singh tried to save Om Prakash (deceased), they were also stabbed by the appellant with knife. On hue and cry, P.W.6-Jauhari, who was also residing in front of the house of the place of the incident, came and saw that accused/appellant Abbul Hasan was stabbing with knife to Om Prakash, Mahesh and Ram Singh. The post-mortem report of the deadbody of the deceased Om Prakash reveals that the deceased had sustained one incised wound on the left side of face below the left eye; one incised wound on left eye; one punctured wound on left side of chest; one punctured wound on left side of back of chest; one abrasion over left knee; two abrasion over the right knee joint. As per the opinion of Dr. S.K. Luthra (P.W.5), deceased Om Prakash died due to shock and hemorrhage as a result of ante-mortem injuries sustained by him. It was also opined by the doctor that these injuries could be attributable by a knife.
44. The medical examination of two injured, namely, P.W.4-Mahesh and Ram Singh was conducted by P.W.9 Dr. J.V.Singh, who, after examination, has found that Mahesh sustained punctured incised stabbed wound, whereas Ram Singh sustained two incised punctured stab wounds. As per the opinion of P.W.9, all the injuries were caused by sharp pointed object. This also supports the prosecution case.
45. It transpires from the evidence on record that except Jauhari, no other independent witness has been examined by the prosecution but as per the evidence of P.W.6 Jauhari, his living in that very locality just near the place of incident has been well established. There is no evidence on record which shows that P.W.6 Jauhari was under any cloud or under the pressure of the police while he was residing at Sandi. Hence, the plea of the appellant that testimony of Jauhari cannot be believed, is not sustainable from the evidences on record.
46. The other material, which is available on record, is that deadbody of the deceased was found in front of the house of Dr. Ram Bilas and not in front of the house of accused/appellant. Thus, the plea of the appellant that the incident took place in front of his house as the deceased and his two companions Mahesh and Ram Singh came over there and assaulted the accused, cannot be believable and appears to be imaginary and accordingly, it is rejected.
47. So far as the assertion of the appellant that the prosecution has failed to explain the injuries sustained by the appellant and the medical evidence supporting the case of the accused/appellant is concerned, it would be relevant to mention that in Babu Ram and Others vs. State of Punjab : (2008) 3 SCC 709, the Apex Court has held that :-
"18.It is a well-settled law that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:
"1.that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
2.that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
3.that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."
19.Further, it is important to point out that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one."
48. In the instant case, no doubt, D.W.1-Dr. S.C. Rizvi, who medically examined the accused in jail on 06.04.1981, has given his opinion that these injuries could be received at about 07:00 p.m. on 05.04.1981 i.e. on the date of the incident but in his cross-examination, he has stated that there is lesser possibility of receiving the injuries on 06.04.1981 at 12:00 noon.
49. At this stage, it would be relevant to mention that the testimony of the Investigating Officer shows that the accused received injuries while he was arrested on 06.04.1981. The trial Court, while dealing with this issue, has recorded specific finding on the basis of material evidence on record that the injuries of the accused were found noted in the General Diary (Ext. Ka. 4) entry of 06.04.1981. As comes out from the record, the accused/appellant has gone to lodge the report at the police station on 05.04.1981 and he was detained over there but there is no such evidence on record. Furthermore, it is quite impossible that the accused with such a good number of injuries would have gone alone to lodge the report at the police station and his family members like father and uncle, who are said to have been the witnesses of assault of the acused, would not have cared to accompany him and see that the police give a fair diat to the accused. Moreso, the trial Court has recorded specific finding that this plea at the instance of the appellant has not raised when he moved application for bail. In these backdrops, submission of the appellant that these injuries have been caused to the appellant by deceased Om Prakash, Ram Singh and Mahesh with ''danda' in front of his house as on hue and cry, family members had also came there and in defense, injuries ought to have been caused to Om Prakash (deceased), Mahesh and Ram Singh, is not proper and reliable evidence, hence the submission of the appellant in this regard has no force and is rejected.
50. The judgments, which have been relied upon by the learned Counsel for the appellant, are not applicable in the facts and circumstances of the case.
51. So far as the plea of the appellant with regard to recovery of knife is concerned, Ram Laraitey (P.W.7) is the witness of recovery. He, in his examination-in-chief, has stated that in his presence, the accused/appellant gave the blood stained knife, which was kept on the wall under the thatch from inside his to the police. But this witness, in his cross-examination, has stated that he had not seen the injuries on the person of the accused when he was brought to his house and gave out the knife in his present. However, this witness denied the suggestion in cross-examination that the accused did not give any knife from his house to the police. There is no evidence on record, which shows that accused/appellant has inimical relations with Ram Laraitey (P.W.7), who resides in that very locality in which the accused/appellant has been living. Thus, the plea of the appellant that recovery of knife on his pointing out is not proved, is not sustainable.
52. For the reasons aforesaid, we are of the considered view that the prosecution has proved the case beyond all reasonable doubts and the trial Court, after properly appreciating the evidence in consonance with the settled legal position applicable to the facts of the case, have recorded cogent findings of fact and have rightly convicted and sentenced the appellant by the impugned judgment and order dated 07.08.1982.
53. Accordingly, both the criminal appeals are dismissed. Appellant is in jail and he shall serve out the sentence as ordered by the trial Court.
54. Office is directed to transmit the lower court record along with a copy of this order to the court concerned forthwith for necessary information and follow up action, if any required.
(Vivek Varma, J.) (Ramesh Sinha, J.)
Order Date :- 25.11.2021
Ajit/-