Allahabad High Court
Dhannajaya Dubey @ Lal Babu vs State Of U.P. on 6 April, 2018
Bench: Naheed Ara Moonis, Krishna Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved. A.F.R. Court No. - 46 Case :- JAIL APPEAL No. - 1686 of 2014 Appellant :- Dhannajaya Dubey @ Lal Babu Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Ashutosh Upadhyay, Sakshi Kesarwani [A.C] Counsel for Respondent :- A.G.A. Hon'ble Naheed Ara Moonis,J.
Hon'ble Krishna Singh,J.
(Delivered by Hon'ble Krishna Singh, J) The instant criminal jail appeal has been preferred on behalf of the accused-appellant Dhannajaya Dubey @ Lal Babu s/o Late Doodh Nath Dubey, r/o Babhiniyaw, P.S Mayil, District Deoria challenging the impugned judgment and order dated 5/7.10.2013 passed by Additional Sessions Judge (Court No.6) Deoria whereby the appellant has been convicted and sentenced to serve out life imprisonment in Sessions Trial No.179 of 2010 (State of U.P. vs. Dhannajaya Dubey @ Lal Babu) arising out of case crime No.229 of 2010 under Section 302 of the Indian Penal Code, Police Station Mayil, District Deoria with fine of Rs. 20,000/- and in default of payment of fine, the appellant will have to undergo six months imprisonment.
This is a case of fratricide as the accused-appellant has killed his own brother.
The origin of facts emanating from the prosecution in a short conspectus is that Dhananjay Singh alias Lal Baboo, the uncle of the complainant who was living separately from his father Vijay Shankar Dubey for the last ten years by apportioning his share in agricultural land and house and was also nurturing and rearing animus and grudge to eliminate him. On 16.6.2010, the victim Vijay Shankar Dubey the father of the complainant Sujit Dubey was sleeping in the Verandah after taking the meal. Dhananjai Dubey, the uncle of the complainant at about 9.45 a.m. equipped with an axe came near his father and inflicted three/four blows on the vital part of his body causing fatal and grievous injuries . The incident was witnessed by Saraswati Devi (grand mother of the complainant) and on her shriek and shrill, Smt. Savita Devi, the wife of the complainant and the complainant himself came at the Verandah and witnessed the accused Dhananjay Dubey equipped with axe saturated with blood . The father of the complainant Vijai Shanker Dubey soaked with blood was grappling with life. The accused Dhananjai Dubey fled from the place of occurrence seeing the complainant and others. The complainant immediately made arrangement of vehicle and reached at Sadar Hospital, Deoria where the doctor declared him brought dead Leaving the dead body of Vijay Shanker Dubey, the complainant went to lodge the first information report for taking appropriate action. The first information report was lodged on 16.6.2010 at 19.30 ours . in respect to the incident alleged to have taken place on 16.6.2010 at about 9.45 A.M. vide Case Crime No.229 of 2010 under Section 302 of the Indian Penal Code, Police Station Mayil, District Deoria. On the basis of the first information report Kanhaiya Lal (P.W.6) Head Moharrir prepared the chik FIR Ext. Ka-6 vide Case Crime No. 229 of 2010 under section 302 IPC against the appellant Dhananjai Dubey alias Lal Baboo and registered the case in the G.D. Entry vide Ext. Ka.2.
After registration of the case, the investigating officer S.I. Baijnath Singh (PW-7) swung into action and recorded the statement of the complainant and reached at the spot. A group of police personnel was in search of arresting the accused Dhananjai Dubey alias Lal Baboo . He collected plain, blood stained earth in separate container and also blood stained scarf, cover of pillor from the place of occurrence which was marked as Ext.Ka.8. The incriminating materials were kept in a sealed cover and a recovery memo was prepared. The investigating officer prepared the inquest report, challan lash, photo lash on 17.6.2010 . During investigation on 17.6.2010, accused-appellant was arrested by the IInd Investigation Officer of this Case S.I. Ram Kripal Yadav PW-5 and on the information furnished by the accused appellant, the Investigating Officer made recovery of blood stained axe (Ext.1) used in the crime, under fard Ext. Ka-4.
The corpse of Vijai Shanker was broght by constable Rajdeo Yadav and Home Guard Ramdeo Kushwaha , Police Station Kotwali District Deoria and was handed over in a sealed cover for autopsy.
The post mortem of the deceased Vijai Shanker Dubey was performed by Dr. A.K. Verma (P.W.8) on 16.6.2010 at about 4.45 p.m. Following ante-mortem injuries were found on the person of deceased Vijai Shanker Dubey.
1. Lacerated wound 2 cm x 1 cm bone deep over left side forehead 1 cm above and lateral to left eye .
2. Lacerated wound 7 cm x 1.5 cm bone deep over left side of forehead 3 cm above from left ear.
3. Lacerated wound 8 cm x 2 cm x bone deep over left side of temporoparietal region of scalp, 6 cm above from left ear.
4. Contusion & swelling 4 cm x 6 cm on left side upper abd 10 cm eye lid of right eye
5. Contusion & swelling 3 cm x 5 cm on right side of upper eye lid of right eye.
On internal examination ,the doctor found 200 ml fluid material. The doctor opined that the death of the deceased was caused due to hemorrhage ,shock, coma and ante-mortem head injuries.
The investigating officer proceeded with the investigation and recorded the statmeent of the complainant and the witnesses under section 161 Cr.P.C. After completing the necessary formalities, the investigating officer submitted the charge sheet against the accused appellant on the basis of credible and clinching materials showing his complicity in the commission of the said offence which is marked as Exhibit Ka.5.
The case was committed by the Chief Judicial Magistrate, Deoria to the Court of Sessions for trial.The Trial court after hearing the prosecution as well as defence and perusing the material available on record, framed charge against the accused-appellant under Section 302 of the IPC. The charge framed was read over and explained to the accused-appellant, he abjured the guilt and claimed to be tried, hence, the prosecution was called upon to lead the evidence.
In order to prove guilt of the accused-appellant, prosecution had examined nine witnesses in support of its case. Out of whom three witnesses of fact namely complainant Surjit Dubey (P.W.1), Smt. Savita Devi (P.W.2), and Dharamdev Dubey (P.W.3), who corroborated the prosecution version. Initially the investigation was done by Baijnath PW-7. Subsequently investigation was entrusted to Ram Avtar Singh Yadav P.W.5) who after collecting the credible and clinching evidence submitted the charge sheet against the acccused appellant. Dr.A.K.Verma (P.W.8) who conducted the autopsy on the corpse of deceased Vijai Shanker Dubey and other formal witnesses are Constable Kanhaiya Lal P.W.6) and Rajesh Kumar (P.W9).
PW-1 Sujit Dubey is the first informant/complainant and son of the deceased Vijay Shankar Dubey. He has stated in his statement on oath that his father had two brothers, one of them is the accused Dhananjay Dubey @ Lal Babu Dubey and the other one was Ajay Dubey, who is no more alive. Accused Dhananjay Dubey did not do any job but he does the farming and he has two sons and a daughter. His father and the accused Dhananjay Dubey had been living separately for the last 10-11 years. The accused has no external source of income. His father had constructed a house, helped the younger brother to get the job and married off two sisters, and also purchased the land to the west of the house. Accused persistently feels jealous of the person from the complainant side over their progress and he was also demanding a share in the land, which his father had purchased to the west of the house. His grandmother Smt. Saraswati Devi was a pensioner and prior to the incident in question she used to reside with accused but when she was paralyzed she switched over to live with the complainant side, which led the accused to apprehend that he would not get her pension money. On all these grounds, accused had developed the enmity with his father. The incident in question occurred at 9:45 A.M. on 16.06.2010. At that time, after taking meal his father was sleeping on an iron cot in the verandah of the house with a Gamchha (a type of small towel) on his face. His grandmother Smt. Saraswati Devi, was lying in the same verandah at some distance from his father. Accused, who is present in the court, with an intent to commit murder, brought an axe from his house, laid an ambush, and struck several blows on his father's head with rear side of the axe. At that time, he and his wife were ready to have meal in the adjoining room. On seeing that his father was being killed by accused, his grandmother shouted and, thereafter, his wife Smt. Savita Devi and he came to the verandah from the room and saw that his uncle Dhananjay Dubey was present in the verandah with blood stained axe and his father being injured was writhing in a pool of blood. His father was also vomiting. Immediately upon seeing them, accused fled away with the axe to the north of the house. Thereafter, they telephoned Guddu Singh from Lar Road and asked for a jeep and took his father to Sadar Hospital, Deoria where Doctor declared him dead. The dead body of his father was kept at the mortuary. Upon receipt of information, the Kotwali police prepared panchayatnama Ext. Ka-1 of his father's dead body and he is also a witness therein alongwith Sumit Dubey, Bhrigunath Prajapati, Shiv Shankar Upadhyay and Paras Nath Tiwari and same bears the signatures of these witnesses. Thereafter, the police sent the dead body for the postmortem on the same day and after the postmortem he brought the dead body at his home. Thereafter, in between funeral preparations, he, in connection with the incident, dictated a complaint Ext. Ka-2 to his cousin Muktinath Upadhyay and after getting it written by him, read the same, put his signature over it and went along with Muktinath to P.S. Mayil and submitted the same there, on the basis of which a case was registered and he received its copy. As the funeral was getting delayed, he immediately returned home and completed the last rites and rituals of his father at Bhagalpur Ghaat. On the next day, Sub-inspector came to his home and recorded his statement. During inspection of the spot, police took his father's cot, his Gamchha stained with blood and pillow cover, in its possession and sealed the same and prepared its memo at the spot as memo Ext.Ka-3.
PW-2 Smt. Savita Devi is the wife of the informant, she has stated in her statement on oath that accused Dhananjay Dubey is younger brother of his father-in-law deceased Vijay Shankar Dubey. His father-in-law and accused have been living separately for the last 10-11 years. The incident occurred around a year and 1½ months ago. It was 9:45 A.M. and at that time her father-in-law was sleeping in the verandah of his house and next to him her aged mother-in-law was sleeping. Accused had nurturing enmity over coparcenary property. On hearing shrieks by the grandmother Smt. Saraswati Devi, her husband and she came outside and saw that accused was hitting on her father-in-law's head with rear side of the axe with intention to kill him. Her father-in-law was writhing in a pool of blood and upon seeing them accused fled away from there with the said axe. Thereafter, her husband took her father-in-law in a jeep to Sadar Hospital, Deoria where he declared dead due to the injuries caused by the accused. During the investigation, the police had recorded her statement.
PW-3 Dharmdev Dubey had turned hostile. He has stated in his statement on oath that Bachcha Dubey is a resident of his village, who was murdered more than a year ago, the accused Dhananjay Dubey was not arrested in his presence. He has further stated that one year ago at 2:45 p.m., the axe, which was used in the murder, was not recovered by the accused in his presence. The Sub-inspector had taken his signature and thumb impression on a plain paper memo Ext. Ka-4.
PW-4 S.I. Ram Avtar Singh Yadav has stated in his statement on oath that investigation of this case was being carried out by his predecessor-in-office S.O. Shri Baij Nath Singh and after his transfer, he took over the investigation on 19.7.2010 and on the same day paper no.7 was prepared by him wherein the papers prepared by his predecessor-in-office were perused. On 22.07.2010, paper no.7 was prepared in which the statement of the eye witness Smt. Savita Devi was recorded u/s 161 Cr.P.C. Thereafter, the statement of Constable Avadhesh Tiwari, a witness to the recovery memo of the axe, which was used in the murder, was recorded. On 25.07.2010, paper no.8 was prepared wherein the statements of S.I. Shri Ram Kripal Yadav, a witness of recovery of the axe, which was used in the murder, and the Constable Manoj Rai were recorded. Paper no. 9 was prepared on 06.08.2010 for preparation of a docket, wherein the axe used in the murder as also the blood-stained Gamchha (a type of small towel) has been mentioned by Constable Paramhans Yadav to have been sent for examination on 05.08.2010 in Forensic Science Laboratory, Varanasi through lot no.341/2010. Thereafter, during investigation, a charge-sheet Ext.Ka-5 was submitted against the accused Dhananjay Dubey finding the offence u/s 302 IPC to have been made out against him.
PW-5 S.I. Ram Kripal Yadav has stated in his statement on oath that on 17.6.2010 he was posted at Mayil Police Station; he was accompanying S.H.O. Baijnath Singh on that day alongwith Constable Awadhesh Tiwari, Constable Manoj Rai. In respect of Case Crime No. 229/10 u/s 302 IPC, they went on a government jeep along with driver Indrajeet Saroj, they had hardly reached near village Kundauli in search of wanted person, then they got the information by one of their informer that accused Dhanjay Dubey was sitting near a peepal tree before the Lar Road Railway Station with intention to go somewhere, hence, he could be apprehended only if prompt steps are taken. Thereafter, relying upon the tip-off, S.H.O. alongwith aforementioned police personnel with the informant reached at Lar Road where the informer pointed out towards the person sitting near the peepal tree and said that "He is Dhananjay Dubey". Thereafter, on enquiry being made the accused tried to flew away from the spot but he was arrested at 2:45 p.m. and on interrogation he told his name as Dhananjay Dubey and confessed the offence and stated about the recovery of the weapon, which was used in the murder. Thereafter, with an objective to recover the weapon used in murder, they proceeded towards Babhaniyaon Primary School from Lar Road on being pointed out by the accused and at Kundauli trisection, taking along Shri Aniruddh Upadhyay and Shri Dharmdev Dubey r/o Babhniyanv and telling them the purpose, they reached the road near the Primary School Babhniyaon where, on alighting from the jeep and being pointed out by the accused, they were led to the bushes of mujahani from which the accused took out an axe Ext.1, the blade and butt of which was stained with blood. Taking it in his hand, he stated that it was the same axe with which he had killed his brother Vijay Shanker alias Bachcha Dubey by striking on his head. Axe Ext.1 was taken into custody of the police from the accused in presence of the witnesses, and memo Ext.Ka-4 thereof was prepared by SHO in his writing, under his signature at the spot. Reading over the contents of the memo, his signature and thumb-impression and those of other witnesses including fellow police personnel and accused were taken and copy of the memo was given to the accused, which was prepared by SHO at the spot. The Investigating Officer had recorded the statement of the appellant in this respect.
PW-6 Constable Sri Kanhaiyalal has stated in his statement on oath that he was posted as Constable - Moharrir at Mayil Police Station on 16.06.2010. On that day, on the basis of complaint submitted by Shri Sujeet Dubey, FIR was registered as Case Crime No.229/2010 u/s 302 IPC State of U.P. Vs Dhananjay Dubey alias Lal Babu and on the same day, Chik FIR Ext.Ka-6 and report No.29 at 7:30 p.m. in GD Ext.Ka-7, were prepared by him. The Investigating Officer had reordered his statements in this respect.
PW-7 S.I. Baijanath Singh has stated in his statement on oath that he was posted as SHO at Mayil Police Station, Deoria district on 16.06.2010. On that day, in his presence, the Case Crime No. 229/2010 u/s 302 IPC was registered against accused Dhananjay Dubey on basis of the complaint submitted by Shri Sujeet Dubey and the case was assigned to him for investigation. On 16.06.2010, he prepared the Ist paper wherein details such as the copy of the FIR, the copy of the GD, statement of the scribe of the FIR, inspection of the place of occurrence and deputation of Sub Inspector and constable for the arrest of the accused person have been mentioned. On 17.06.2010, he prepared the IInd paper wherein he mentioned details about recording the statement of the complainant Shri Sujeet Dubey in the instant case, inspecting the place of occurrence on the pointing as furnished by the complainant, taking blood stained pillow, pillow cover and Gamachha (scarf) in the possession of police and preparing site map of place of the occurrence Ext.Ka-8. Thereafter, he recorded the statements of the witnesses for memo and also those of Samayi Sakshi, Yogendra Prasad and Khedan Prasad. Afterwards, having arrested the accused before Lar Road Railway Station with the help of accompanying police personnel at 2:45 p.m. on 17.06.2010 on the information given by the informant, his statement was recorded. During arrest, he prepared the arrest memo Ext.Ka-9 which bears thumb impression of the accused. On the basis of confessional statement made by the accused and got recovered the weapon stated to have been used in the murder, the Investigating Officer alongwith the accused and also with the fellow police personnel, in a government jeep, reached, the place being told by the accused, near the Babhaniyaon Primary School where the accused got down from the jeep and leading others he proceeded towards mujahni buses, from where he took out the axe Ext.1 used in the murder and handed it over to the police from his possession, which after being taken in police possession was sealed properly and a sample of the seal was made thereon. The memo Ext.Ka-4 was prepared at the spot, the site map Ext.Ka-10 after inspecting the site was prepared. During inspection of the occurrence site, in the presence of witnesses Sujeet Dubey and Tarkeshwarnath, a blood stained Gamachha (scarf) of white and purple colour, a blood stained pillow with red designs were taken into police possession under memo Ext.Ka-3. The recovered Gamachha and pillow cover sealed intact in a bundle Ext.2. Thereafter the details of proceeding with respect to recording statement of the witnesses of the memo of Supurdagi Anirudha Upadhyay and Dharmedev Dubey were recorded. Paper No. IIIrd was prepared on 22.06.2010 wherein the copy of the panchayatnama and post mortem report were recorded and the statements of the witnesses Sujeet Dubey, Sumit Dubey, Brighunath Prajapati, Parasnath Tiwari of the Panchayatnama and statement of the eyewitness Smt. Sarswati Devi and scribe of complaint Muktinath Upadhyay were recorded. Paper No. IVth was prepared on 01.07.2010 wherein a prayer has been made for remand Paper No. Vth wherein the statement of Rajesh Kumar, Sub Inspector and the statements of constable Rajdev and home-guard Ramdev, have been recorded. Thereafter, as he was transferred to Khukhundu Police Station, the investigation into the aforesaid case was carried out by SHO Ram Avatar Yadav.
PW-8 Dr. A.K. Verma has stated in his statement on oath that on 16.6.2010 he was posted at District Hospital, Deoria. On that day, he had performed the postmortem on the person of the deceased Vijay Shanker Dubey alias Bachche Babu, aged 55 years, r/o Babhaniyaon, Mayil Police Station, Deoria.
After conclusion of the prosecution evidence, the accused-appellant was examined under Section 313 Cr.P.C and in his statement he pleaded not guilty and denied his participation in the alleged crime. He divulged that he has been entrapped in the present case at the inkling of persons who were already nurturing animus and grudge against him. It is also stated by him that he was suffering from the mental derangement for a long time and was undergoing treatment from Dr. Berry and Dr. Ashutosh. When he was arrested by the police, his wife handed over all the medical prescriptions to the police.
On behalf of the accused-appellant, Dr. Hari Shankar Yadav (D.W.1) was examined. He narrated in his statement on oath that he was posted as Medical Officer at District Jail, Deoria and on 15.05.2013 at 12.30 P.M. he held medical examination of accused Dhananjay Dubey and prepared medical examination report which was marked as Ext. Kha.1. On the basis of records, the accused-appellant was being provided medicines for mental disease and high blood pressure. On examination of other parameters of his health except to blood pressure he was found normal. He attached the facsimile copies of the prescription slip issued by BRD Medical College, Gorakhpur and BHU showing the treatment of the accused-appellant .
The learned trial Judge upon appreciation and appraisal of material evidence on record held that the prosecution has proved its case beyond all reasonable doubt and accordingly convicted and sentenced the accused-appellant to undergo life imprisonment under Section 302 of the IPC and to pay a fine of Rs.20,000/- with default sentence of six months imprisonment.
We have heard Ms. Sakshi Kesarwani, learned Amicus Curiae appearing on behalf of accused-appellant and Sri Ram Yash Pandey, learned AGA appearing on behalf of the State and perused the entire material available on record.
Learned Amicus Curiae for the accused-appellant contended that the impugned judgment and order passed by the learned trial Judge is per se illegal and erroneous whereby the accused-appellant has been awarded life imprisonment merely on suspicion while there are serious irregularities and lapses on the part of the prosecution. The accused-appellant is innocent and has been falsely implicated in the present case by the complainant at the instance of inimical and partisan persons which is corroborated from the chik FIR itself (Ext.Ka2). The prosecution witnesses who are alleged to be present on the spot at the crucial juncture of incident did not take any pain to nab the assailant. Accused-appellant had no motive to commit murder of the deceased. The accused-appellant was mentally deranged and has been implicated in the said offence merely on suspicion and instigation of inimical and interested persons. The first information report has been lodged with considerable deliberation and consultation as there is no convincing explanation covering the delay. In fact the murder of victim Vijai Shanker Dubey was committed by unknown assailants who disappeared from the spot from the shriek and scream of the injured. Sujit Dubey (P.W.1) is the son of the deceased and Smt. Savita Devi (P.W.2) is the daughter-in-law of the deceased. Both these witnesses are related to the deceased. No independent and impartial witness has been examined by the prosecution to corroborate their testimonies. In such scenerio, no reliance can be placed upon their testimony. As per prosecution version, the occurrence is alleged to have taken place on 16.6.2010 at about 9.45 a.m. but the First Information Report with regard to the same had been lodged after considerable delay at about 7.30 p.m. with due deliberation and consultation and the explanation given by the prosecution does not unveil about its verity and truthfulness about the prosecution version. During investigation, accused-appellant did not make any confessional as well as declaratory statement for the recovery of weapon (axe) used in the crime (which has been marked Ext.Ka-1) before the Investigating Officer. The alleged recovery of axe is highly motivated and implanted. There is material and intrinsic difference in ocular and medical testimony which overshadows the prosecution version. The prosecution has substantially failed to prove its case beyond all reasonable doubt against the accused-appellant, therefore, the appeal filed on behalf of the appellant against the impugned judgment and order enduring on justifiable grounds deserves to be allowed.
Per contra Sri Ram Yash Pandey, learned AGA appearing on behalf of the State has contended that from the prosecution evidence available on record, the case of prosecution stands proved beyond all reasonable doubt against the accused-appellant. The date, place of occurrence and manner of assault is fully corroborated by the prosecution witnesses. The impugned judgment and order passed by the trial court is based upon proper appreciation of evidence on record, the findings recorded by the trial court does not suffer from any legal procedural or factual infirmity and vulnerability.
The autopsy of the victim (Vijay Shanker Dubey) has fully corroborated that the injuries were caused to the victim with an axe. The death had occurred within one day prior to the autopsy. Post mortem report Ex.Ka.11 was prepared by Dr. A.K.Verma. Rigor mortis was present fully in upper limb and partially in lower limb. Blood was oozing from both nostrils, ear and mouth. As per post mortem report , fracture of left parieto-frontal and occipital bones were found. Haematoma was present over left frontal, parieto-frontal and occipital region. There is no embellishment in the prosecution version. The victim had succumbed to unnatural death. There is no reason to distrust presence of the accused appellant as the defence has not put forth any material in contradiction or in conflict of the statement of the witnesses. Their testimony has been sifted and vetted by the learned trial judge in arriving at the conclusion. The investigating officer has collected credible and trustworthy evidence showing the complicity of the appellant on the basis of which the accused appellant was rightly charge sheeted. There is no scope for mistaken identity as the accused appellant was well known to the complainant and the witnesses. The motive behind the commission of gruesome and infernal murder is fully corroborated by the evidence connecting with the crime. The accused appellant has succeeded in his nefarious design of eliminating the victim Vijai Shanker Dubey. The appellant has simply adjured the charges in the statement recorded under section 313 Cr.P.C. and pleaded for trial. The evidence has been judged and weighed cautiously and warily with great circumspection as all the ocular witnesses were examined by the prosecution and there has been consistency with respect to time of incident, place of occurrence and manner of assault. There is no deviation or aberration in the manner of assault as divulged by the prosecution. The accused appellant played potential role to liquidate the victim. The minor variation in the evidence of the prosecution witnesses is of no consequence. The presence of the witnesses cannot be suspected. There is no rationale to implicate the accused appellant leaving to the actual assailant who had decimated an innocent person. No adverse inference has been elicited in the cross examination by the defence so as to discredit or overshadow the prosecution version. The motive behind the commission of the crime has been re-iterated by all the witnesses of fact who had divulged the prosecution version in a very natural and unbleached manner. Active role has been attributed to the accused appellant who caused fatal injuries with an axe as a consequence whereof the victim succumbed to injuries. The accused appellant has rightly been convicted and sentened . There is consistent testimony evincing the complicity of the accused appellant. The accused appellant cannot derive any benefit in the clock of mental derangement. The eye witness account was consistent and reliable through out. The presence of the eye witnesses on the place of occurrence was natural and their testimony cannot be oversighted. It would not be proper to overshadow the entire prosecution story for want of any independent witness. No adverse inference can be drawn against the prosecution with regard to probability of the crime if any suggested by the learned counsel for the appellant. The prosecution has presented a genuine account of the incident atrributing specific role to the sole appellant therefore, the issue of deliberation and consultation amongst the members of the prosecution party fully stands retracted. There is no improvement and prevarication on the part of the prosecution witnesses. There is no cogent reason to negate the evidence of the eye witneses and medical testimony on the ground of conjectures and surmises as well as preponderance of probabilities. The motive in the present case looses its significance and momentous when the prosecution had fully established through ocular testimony the involvement of the acused appellant to accomplish his well cherished animosity. The connecting and linking circumstances fully supports that the accused appellant had committed relentless and grim crime of decimating the victim for ever. To bolster his contention, learned AGA has cited a number of decisions which are delineated hereto below :
In the case of Darshan Singh vs. State of Haryana 1996, SCC (Criminal) 1261, Hon'ble Apex Court has held as under:-
"Opinion of Doctor as to how the injury was caused cannot override unimpeachable testimony of eye-witnesses".
In the case of Anil Rai and others va. State of Bihar 2001 (43) ACC 614, Hon'ble Apex Court has held as under:-
"Opinion of expert would loose its significance in view of reliable, consistent and ocular testimony of prosecution witnesses moreover, if direct evidence is satisfactory and reliable, it cannot be rejected on hypothetical medical evidence".
It is relevant to mention here that witnesses are the eyes and ears of justice. Hence, the importance and primacy of the quality of the trial process. Eye-witnesses' account would require a careful independent assessment and evaluation for its credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts; the "credit" of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. Hence, where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive.
It is evident from the record that Smt. Savita Devi (PW-2) is an eye-witness of the incident. She has stated in her statement that deceased Vijay Shankar Dubey had received injuries on his head, caused by the accused-appellant Dhananjay Dubey from the rear side of axe. Considering the entire facts and circumstances of the case, we are of the view that the testimony of the aforesaid eye witness has a ring of truth and inspires confidence. Ante-mortem injuries found on the person of deceased are consistent with the testimony of the aforesaid eye-witness. In our opinion, unimpeachable testimony of the aforesaid prosecution eye-witness cannot be disbelieved in view of alternative/hypothetical opinion expressed by the Dr. A.K.Verma (PW-8) in his cross-examination that injury Nos.1, 2 and 3 can only be caused by a sharp edged portion of the axe.
In the case of Dharnidhar Vs State of U.P. And others (2010) 3 Supreme Court Cases (Cri.) 491, Hon'ble Apex Court held as under:-
"It is not always necessary for prosecution to establish definite motive for commission of crime to secure conviction of accused. It would always be relatable to facts and circumstances of a given case. Absence of motive does not essentially result in acquittal of accused if he is otherwise found guilty by cogent and reliable evidence. However, in cases which are entirely or mainly based upon circumstantial evidence, motive can have greater relevancy or significance".
In the case of Harish Chandra Bahri vs State of Bihar 1994 Criminal Law Journal 3271 Hon'ble Apex Court has held as under :-
"Sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the court that the accused was guilty of the offence charged with. But it has to be remembered that the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime."
The motive for committing the crime as alleged by the prosecution is established from the testimony of the aforesaid prosecution witness. Even if there is absence of motive it would not benefit the accused-appellant because reliable and trustworthy version of the eye witnesses i.e. Sujit Dubey (PW-1) and Smt. Savita Dubey (PW-2) corroborated by the medical evidence pointing towards accused-appellant is available on record.
In the case of Gangabhavani vs. Rayapati Venkat Reddy & Ors AIR 2013 SC 3681, Hon'ble Apex Court has held as under:-
"The case of prosecution cannot be rejected solely on the ground of delay in lodging the FIR. The court has to examine the explanation furnished by the prosecution for explaining the delay if the prosecution explains the delay. The court should not reject the case of the prosecution solely on this ground. Therefore, the entire incident as narrated by the witnesses has to be construed and examined to decide whether there was an unreasonable and unexplained delay which goes to the root of the case of the prosecution and even if there is some unexplained delay, the court has to take into consideration whether it can be termed as abnormal".
Having regard to the contentious issue raised by the learned counsel for the appellant and the learned AGA, the Court is required to bear in mind the set-up and the environment in the which the crime is committed, the level of understanding of the witnesses, over zealousness of some of the near relations to ensure that everyone ever remotely concerned with the crime be also convicted and everyone gives different way of narration of the same facts. Bearing in mind these broad principles the evidence is required to be appreciated to find out what part out of the evidence represents the true and correct states of affairs.
As per prosecution story, the occurrence is alleged to have taken place on 16.6.2010 at about 9:45 a.m., the chik FIR Ext.Ka-6 was lodged with quite delay on the same day at about 7:30 p.m. i.e. after much interval at 9:45 p.m. at P.S. Myle. No doubt the chik FIR was lodged with delay yet we find that in this case, delay has been satisfactorily explained. Sujeet Dubey (P.W.1), informant is a villager and agriculturist by profession, he has explained that on the sight of his father being killed by accused, his grandmother shouted. On this, his wife Smt. Savita Devi and he came to the verandah from the room and saw that accused Dhananjay Dubay was present in the verandah with an axe stained with blood and his father being injured was writhing in a pool of blood. His father was also vomiting. Immediately upon seeing them, accused taking the axe with him, fled away to the north of the house. Thereafter, he immediately arranged the vehicle (jeep) and took his father to Sadar Hospital, Deoria where doctor upon seeing him declared dead. The dead body of his father was kept at the mortuary. Upon receipt of information, the Kotwali police completed panchayatnama Ext. Ka-1 of his father's dead body. He got the dead body after the postmortem having been performed on it. He brought the dead body from Deoria to his home. Funeral preparations began; meanwhile, he, in connection with the incident, dictated a complaint Ext.Ka-2 to his cousin Muktinath Upadhyay and after getting it written by him, read the same, put his signature over it and went along with Muktinath Upadhyay to PS Mayil and submitted the same there, on the basis of which a case was registered against accused and he received its copy. The funeral was getting delayed; hence, he immediately returned home and completed the funeral rites at Bhagalpur Ghaat.
In view of the facts and circumstances of the case, we are of the considered opinion that the explanation given by Sujeet Dubey (P.W.1) informant regarding delay in lodging the FIR of the incident is quite satisfactory and delay occurred in lodging the FIR is not fatal to the prosecution case.
It has not come in the testimony of Sujeet Dubey (P.W.1) & Smt. Savita Devi (P.W.2) that other independent witnesses, were also present at the time of the incident. They have stated that they went at the place of occurrence i.e. varandah of the house when their grandmother Smt. Saraswati Devi started shouting. It is not in dispute that before commencement of the trial Smt. Saraswati Devi had died. In view of the above facts and circumstances of the case, we are of the view that no question arises of producing any independent witnesses in regard to the incident.
In the case of Dalip Singh vs. State of Punjab AIR 1953 SC 364, Hon'ble Apex Court has held as under:-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause' for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
In the case of Kartik Malhar vs. State of Bihar 1996 CRL. L.J. 889, Hon'ble Apex Court has held as under:-
"We may also observe that the ground that the witness being a close relative and consequently, being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case, AIR 1953 SC 364 in which this Court expressed its surprise over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses."
In the case of Shyam Babu vs. State of U.P. AIR 2012 SC 3311, Hon'ble Apex Court has held as under:-
"Where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence, it will not be permissible for the Court to discard the statement of such related or friendly witnesses. There is no bar in law on examining family members or any other person as witnesses. In fact, in cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. If the statement of witnesses, who are relatives or known to the parties affected is credible, reliable, trustworthy and corroborated by other witnesses, there would hardly be any reason for the court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party or friend etc".
In the case of Gangabhavani (Supra), Hon'ble Apex Court has held as under:-
"The evidence of closely related witnesses is required to be carefully scrutinized and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. Thus, natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased."
Sujit Dubey (P.W.1) has stated in his statement on oath that the incident occurred at 9.45 a.m. on 16.6.2010 at that time, his father (deceased) was sleeping on an iron cot in the verandah of the house. His grandmother Smt. Saraswati Dubey was paralyzed lying in the same verandah at some distance from the deceased. Accused Dhananjay Dubey with intend to commit murder, brought an axe from his home, laid an ambush, and struck several blows on his father's head. At that time, he and his wife Smt. Savita Devi were ready to have meals in the adjoining room. On the sight of his father being killed by accused, his grandmother shouted. On this, his wife Smt. Savita Devi and he came to the verandah from the room and saw that accused was present in the verandah with blood stained axe and his father being injured was writhing in a pool of blood. His father was also vomiting. Immediately upon seeing them, accused took the axe with him and fled away to the north of the house. Thereafter, he arranged a vehicle and took his father to Sadar Hospital, Deoria where the doctor declared him dead.
PW-2 Smt. Savita Devi has stated in her statement on oath that the incident occurred around a year and 1½ months ago. It was 9:45 am. At that time, her father-in-law (deceased) was sleeping on the verandah of his house. Next to him, her husband's grandmother was sleeping. Accused Dhananjay Dubey, nursing enmity over coparcenary, at that very time started hitting her father-in-law's head with an axe with the intention to kill him. On shouts by the aged grandmother her husband and she came outside and saw that accused was hitting on his head with an axe. His father-in-law was writhing in a pool of blood. On seeing them, accused fled away from there taking the axe with him. Thereafter, her husband took her father-in-law in a jeep to Sadar Hospital, Deoria where he died due to the injuries caused by the accused on his head.
It is true that PW-1 Sujeet Dubey is the son of the deceased and PW-2 Smt. Savita Dubey is the daughter-in-law of the deceased. It is also true that accused is the real brother of the deceased. It is not in dispute that place of occurrence is the house of the aforesaid prosecution eye witnesses. In our opinion the aforesaid prosecution witnesses are natural witnesses and they have no motive to make false statements against the accused-appellant. Medical evidence (postmortem report) and the testimony of other prosecution witnesses fully corroborates the prosecution version as well as the testimony of the aforesaid prosecution witnesses. It would also be worthwhile to state here that in a case where near and dear one is killed, his relations and friends would not spare the real culprits and falsely implicate others. In view of the above facts and circumstances of the case, we are of the considered view that relationship is not a factor to affect the credibility of the prosecution witnesses. Therefore, testimony of the aforesaid prosecution eye witnesses cannot be discarded merely on the ground of being closely related to the deceased.
PW-1 Sujeet Dubey and PW-2 Smt. Savita Devi were put to lengthy cross-examination, but nothing could be elicited by way of cross-examination so as to create doubt about their presence at the place of occurrence. Their testimonies have been well supported by the medical evidence. accused-appellant is named in the FIR, there is complete consistency and coherence in the examination-in-chief and cross-examination of the aforesaid prosecution witnesses, the name, time, date and place on which the offence was committed and by whom the offence was committed, has been revealed in the FIR, lodged by PW-1 Sujeet Dubey which is also in coherence with the story set-up in the FIR. There is nothing on record to show if the prosecution witnesses had any animus against the accused-appellant so as to implicate falsely in the present case. We are of the considered view that the testimony of aforesaid prosecution witnesses are cogent, credible and trustworthy and have a ring of truth and deserves acceptance. There appears no justification to disbelieve the statements of the aforesaid prosecution witnesses.
It is ajar for the Court to sequester the grain from the chaff. The Court cannot draw adverse inference only because all the witnesses have not been examined, if the evidence of the witnesses produced are credential & trustworthy, the Court can rely on the said evidence to convict the accused. This is because it is quality and not the quantity of evidence that is material.
In the case of State of Rajasthan vs. Smt. Kalki and another (1981) 2 SCC 752, Hon'ble Apex Court has held as under:-
"In the deposition of witnesses there are always normal discrepancies due to normal errors of observation, loss of memory, mental disposition of the witnesses and the like. Unless, therefore, the discrepancies are "material discrepancies" so as to create a reasonable doubt about the credibility of the witnesses, the Court will not discard the evidence of the witnesses".
In the case of Mritunjoy Biswas vs. Pranab alias Kuti Biswas and another 2013 CRI. L.J. 4212, Hon'ble Apex Court has held as under:-
"It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect prosecution case but not every contradiction or omission."
It is true that there are some minor contradictions in the depositions of the prosecution witnesses of facts but the contradictions are not of such nature which goes to the root of the case and materially affect the core of the prosecution case. Therefore, minor contradictions cannot be taken to be ground to reject the testimony of the prosecutions witnesses of facts.
Ram Kripal Yadav (PW-5) S.I has stated in his statement on oath that he was posted at the Mayil Police Station on 17.6.2010; he was accompanying SI Baijnath Singh on that day and apart from him, constable Awadhesh Tiwari, Constable Manoj Rai were also the fellow police personnel with respect to Case Crime No. 229/10 u/s 302 IPC, they, on a government jeep along with driver Indrajeet Saroj, had hardly reached near village Kundauli in search of wanted accused person when information was given by an informant that accused Dhananjay Dubey was sitting near a peepal tree before the Lar Road Railway Station, and he intended to go somewhere; hence, he could be apprehended only if prompt steps are taken. Relying on the tip-off, SI Baijnath Singh, arrested the accused at 2:45 p.m. who on being interrogated, admitted the offence and stated about the recovery of the weapon used in the murder. With an objective to recover the weapon used in murder, they proceeded towards Babhaniyaon Primary School from the Lar Road on being pointed out by the accused. At Kundauli trisection, taking along Shri Aniruddh Upadhyay and Shri Dharmdev Dubey and telling them the purpose, they reached on the road near the Primary School Babhniyaon where, on alighting from the jeep and being pointed out by the accused, they were led to the bushes of mujahani from which the accused took out an axe, which was stained with blood. Taking it in his hand, he stated that it was the same axe used by which he had killed his brother Vijay Shanker alias Bachcha Dubey by striking on his head. Thereafter, axe was taken into custody of the police from the accused in presence of the witnesses, and memo thereof was prepared by SI Baijnath memo Ext.Ka-4. It is worth mentioning that in this respect SI Baijnath Singh PW-7, who is Investigating Officer of the case had testified the same statement.
It is evident from the record that PW-5 S.I. Ram Kripal Yadav and PW-7 S.I. Baijanath Singh were put to lengthy cross-examination but nothing could be elicited by way of cross-examination so as to create doubt about their testimony. In our opinion, both these witnesses are trustworthy and their testimony inspires confidence.
It is evident from the record that PW-3 Dharamdev Dubey is the witness of incident of recovery of axe Ext.1 from the possession of the accused but he had turned hostile. In his statement on oath, he had admitted his signature and thumb impression on the recovery memo of axe Ex.Ka-4. In our opinion that portion of testimony of the aforesaid prosecution witnesses supports the prosecution case.
Ram Kripal S.I. Yadav and Baijnath Singh (S.I) in association with other police personnel arrested the accused-appellant and on the information furnished by him, they have recovered the axe Ext.1 (used in the crime) from the possession of the accused-appellant in discharge of their official duty with utmost honesty, they have no motive to make false recovery. The testimony of PW-5 S.I. Ram Kripal Yadav and PW-7 SI Baijnath Singh cannot be discarded on the ground that one of the witness of recovery namely Dharamdev Dubey PW-3 had turned hostile. Considering entire facts and circumstances of the case, we are of the view that evidence of recovery of axe Ext.1 used in the crime supports the case of prosecution.
In the case of Keshavlal vs. State of M.P. (2002) 3 SCC 254, Hon'ble Apex Court has held as under:-
"if the evidence of eye-witness is otherwise trustworthy, non-availability or non-ascertain ability of blood/blood-marks/blood-stains report cannot be made a basis to discard the witnesses who otherwise inspire confidence of the court and are believed by it".
It is evident from the FSL report Ext.Ka-17 that after examination, human blood was found on items No.2 & 3 i.e. Gamchha (a type of towel) and pillow. It is also evident from the FSL report that disintegrated blood stains were found on the axe i.e. item No.1 but after examination blood group could not be ascertained. We feel that FSL report supports the prosecution case and in view of the trustworthy evidence of prosecution eye witnesses, prosecution case cannot be discarded solely on the ground that blood group could not be ascertained by the blood stains, found on the axe.
The accused-appellant has stated in his statement under Section 313 Cr.P.C. that he is suffering from mental disorder for long. He was taking treatment from Dr. Berry and Dr. Ashutosh when the police arrested him, his wife handed all the medical prescriptions to the police. It is true that PW-1 Sujeet Dubey informant in his cross-examination had admitted that accused was suffering from Insomaina for which, medicines were brought from Gorakhpur. Now it is to be ascertained as to whether the accused-appellant was lunatic/unsound mind at the time of commission of alleged offence to elicit the benefit of Section 84 of the IPC which provides as under:-
"84. Act of a person of unsound mind.-"Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law."
In Shiromani Upadhyay vs. State of Bihar, 1996 S.C. 'R', Hon'ble Apex Court has held as under:-
"only that lunancy will be a defence in a crime which is legal. Legal lunancy means such a guilty intent in which the criminal has become incapable of knowing the nature and consequences of his act at the time of committing crime due to lunancy."
DW-1 Hari Shankar Yadav, in his statement on oath has proved the medical examination report of the accused-appellant as Ext.Kha-1. It is stated by witness that on 15.5.2013, at about 12:30 p.m, he had conducted medical examination of accused lodged in the District jail, Deoria. On the basis of records, accused was being administered medicines for mental treatment along with high blood pressure. When he examined the accused, his blood pressure and other symptoms were found normal. It is evident from the record that medical report Ext.Kha-1 is of 15.5.2013 whereas alleged occurrence took place on 16.6.2010 at about 9:45 a.m. It is relevant to mention here that no evidence has been adduced on behalf of the accused-appellant, in his defence to substantiate his plea that at the time of committing the alleged offence, he had become incapable of knowing the nature and consequences of his act due to lunancy/unsoundness of mind/mental disease.
In view of the above and considering the prosecution evidence available on record, it is not established that at the time of committing alleged offence, the accused-appellant by the reason of alleged lunancy/unsoundness of mind/mental disease was incapable of knowing the nature of his act, hence, benefit of provisions of Section 84 cannot be extended to the accused-appellant. The burden lies upon the defence that at the time of the commission of the act the accused by reason of unsoundness of mind was incapable of either knowing the nature of the act. The determination of state of mind before and after the commission of the offence is most relevant. Whether the accused appellant was in such a state of deranged mind can only be ascertained from the circumstances that preceded, attended and followed the crime. There is nothing on record to create a doubt that the accused appellant might have been under a spell of deranged mind. There is no report of the mental expert that the accused appellant was suffering from mental derangement. There should be distinct proof of mental derangement or lunacy existing previously or at the time of the perpetration of the crime. The Court is only concerned with the state of mind of the accused-appellant at the time of the act and the subsequent conduct. There cannot be any legal insanity unless cognitive faculties of mind are so impaired as to render the offender incapable of knowing the nature of the act and is also incapable of knowing that he is doing any wrong which is contrary to law. The accused appellant inflicted several blows with an axe fully understanding as to what he was doing,hence he cannot derive any exemption under section 84 IPC.
From the above facts and circumstances of the case, it is fully established that the victim succumbed to unnatural death with an axe injuries. The presence of the eye-witness cannot be doubted or suspected merely they are related to the deceased or on account of minor variation or aberration from the prosecution version. The overt act of the accused-appellant at the relevant moment is fully established and is unimpeachable beyond a shadow of doubt consistent with the hypothesis of the guilt of the accused-appellant within all human probability the act has been done by the accused-appellant. The manner in which the victim was done to death with an axe injuries has portrayed very inhuman and and gruesome state of mind of the accused-appellant. The occurrence has fully supported by the testimony of eye-witnesses and the medical evidence which cannot be overclouded by any stretch of imagination or suspicion. In the course of cross-examination, the defence side has tried to evolve the story of false implication in order to overshadow the testimony of the eye-witnesses it cannot be doubted that the eye-witnesses had not seen the accused-appellant perpetuated crime in a very relentless and devilish manner. The delay in lodging the first informant report will not falsify the entire prosecution version.
On the basis of verbose and prolix discussions made above and after considering the material evidence available on record, we are of the considered opinion that findings of conviction and sentence for the offence punishable under Section 302 of the Indian Panel Code recorded by the trial Court are well substantiated by the evidence available on record. The trial Court has appreciated the evidence in the right perspective. We do not find any tangible reasons to interfere with the final conclusions recorded for the offence punishable under Section 302 of the Indian Panel Code. Therefore, the conviction recorded against the accused-appellant under Section 302 of the Indian Panel Code is hereby maintained and affirmed.
The appeal is devoid of merit and is accordingly dismissed.
Let a copy of this judgment and order alongwith original record be transmitted to the learned trial court for information and compliance.
The learned Amicus Curiae Ms. Sakshi Kesarwani shall be paid Rs.10,000/- from the fund of State Legal Services Authority for providing active assistance to the Court.
(Krishna Singh. J.) (Naheed Ara Moonis. J.)
Order Date :- 6.4.2018
Rishabh