Allahabad High Court
Saudan Singh Alias Keval Baba vs State on 25 January, 2011
Bench: Amar Saran, Naheed Ara Moonis
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 46 Case :- JAIL APPEAL No. - 5474 of 2005 Petitioner :- Saudan Singh Alias Keval Baba Respondent :- State Petitioner Counsel :- A.G.A. Respondent Counsel :- From Jail Hon'ble Amar Saran,J.
Hon'ble Naheed Ara Moonis,J.
(Delivered by Hon'ble N.A. Moonis, J.) The present jail appeal has been preferred by Saudan Singh alias Keval Baba against the judgment and order dated 14.1.2003 passed by the Sessions Judge, Mainpuri in S.T. No. 24 of 2000, under Section 302 I.P.C. whereby he has been convicted and sentenced to undergo imprisonment for life.
The prosecution case in brief is as follows that a first information report was lodged by Santosh Kumar (brother of deceased) on 1.8.1999 at 8.15 hours in respect of the incident which occurred at 2 P.M. on the same day when the complainant along with his younger brother Mantosh Singh alias Nikuchu and his cousin Anar Singh were returning from Bhogaon to their village Vajar on their respective bicycles. The complainant and his cousin was ahead of his younger brother when they were passing on the sides of the minor canal and as soon as they reached at the plot of one Sudama the appellant tried to stop them by using abusive language, but they did not pay any heed as the appellant was in the habit of using abusive language, but shortly thereafter his younger brother Mantosh Singh cried to save him as the appellant was killing him. On hearing the cry of his younger brother when the complainant and his cousin brother returned back, they saw that the appellant was pressing his neck with his feet who was writhing in pain when they reached closer, the appellant threw acid upon the body of his younger brother. He had also thrown acid towards them but it could not fall on them. Thereafter the appellant ran away from the place of occurrence and their brother succumbed to the injuries on the spot at about 2 P.M. Several persons who were working in the field had witnessed the occurrence. A report was scribed through Shishu Pal Singh by the complainant and on its basis the first information report was registered under Section 302 I.P.C. as case Crime No. 377 of 1999 at P.S. Bhogaon, district Mainpuri against the accused appellant Saudan Singh alias Keval Baba.
The first information report was entered in the general diary, which is exhibited as Exhibit Ka. 4. The investigation was set in motion and the Investigating Officer prepared the inquest report Exhibit Ka. 5, the site plan, Exhibit Ka. 10, the recovery memo of the clothes of the deceased, Exhibit Ka. 11 and the recovery memo of the cycle of the deceased which was handed over to the complainant, Exhibit Ka. 12. After completing the investigation the Investigating Officer Rajveer Singh submitted the charge sheet against the accused/appellant under Section 302 I.P.C. on 25.8.1999. The clothes of the deceased were also sent to Serelogist and the chemical examiner's report which was received on 1.1.2000 is marked as Exhibit Ka. 14. Blood was found on the clothes but it was disintegrated.
The post mortem was conducted on 2.8.1999 at about 2.30 P.M. on the body of the deceased by Dr. K.K. Gupta, which was exhibited as Exhibit Ka. 2. The doctor had given his opinion that death was due to asphyxia as a result of anti mortem injuries on the neck. Hyoid bone and rings of trachea were fractured besides the following ante mortem injuries were found;
(i) Contusion 10 cm x 4 cm on front of neck, 6 cm below the chin. Swelling and the contusion in an area of 15 cm x 6 cm was present.
(ii) Contusion 5 cm. x 4 cm. on left side of face, 3 cm. in front of left ear.
(iii) Corrosive burn on the back of chest, in an area of 20 cm. x 20 cm. just below C-7 spine. Underneath skin tissues were red.
(iv) Multiple corrosive burn marks, superficial to skin deep on back of both buttocks, thighs, legs of both limbs, maximum size 10 cm. x 8 cm. and minimum size 4 cm. x 3 cm. The area of burn was 45 cm. x 20 cm. just from back of buttocks to ankles. Underneath tissues red and line of demarcation was present.
The charges were framed against the accused appellant but he pleaded not guilty and claimed to be tried. The prosecution in order to prove its case examined Santosh Kumar the first informant and the brother of the deceased as P.W.1, Anar Singh cousin of the complainant as P.W. 2, Dr. K. K. Gupta who had conducted the post mortem of the deceased was examined as P.W. 3, Ramesh Gupta, Head Muharrir who had prepared the chick first information report and entered the same in G.D. No. 36 was examined as P.W. 4, Ram Babu Tiwari S.S.I. who was posted at P.S. Bhogaon and had prepared the inquest report of the deceased was examined as P.W. 5 and Inspector Rajveer Singh was examined as P.W. 6 who had investigated the case and submitted the charge sheet against the accused/appellant.
The accused appellant was examined under Section 313 Criminal Procedure Code who has deposed that he has been falsely implicated due to enmity at the instance of his family members.
We have heard the learned Amicus Curiae Syed Imran Ibrahim and the learned A.G.A. Sri A.N. Mulla and perused the record.
The main thrust of argument of the learned counsel for the appellant is that there is inconsistency in the statements of the P.W. 1 and 2 with regard to the medical report. According to the statement of the witnesses the appellant was pressing the neck of the deceased by putting his leg over the neck of the deceased and when P.W. 1 and 2 reached there acid was thrown over his body. Injury No.1 shows a contusion in front of the neck and injury no.2 is on the left side of the face while the burn injuries are on the back of the chest and other parts of the body, therefore, if the contusion is on the front of the neck then the deceased would have been lying while the back was on the ground but the burn injuries over the back belies the ocular testimony of P.W. 1 about the manner of incident. Blood was also found on the clothes of the deceased but it was nowhere mentioned by the first informant and even no blood was found at the spot. It has also been vehemently argued by the learned Amicus Curiae that if a person is pressing the neck and pouring acid at the same time then it is impossible that he would not get burnt himself and at the same time the deceased could not have cried out if his neck was being pressed by a leg. Even no acid bottle was found from the place which creates doubt that P.W. 1 and 2 are not the eye witnesses of the occurrence and the incident would have taken place in some other manner and the appellant has been implicated falsely in the present case. The appellant has been implicated falsely due to some family dispute. The learned counsel for the appellant in support of his submission has relied upon the following decisions of the Apex Court; State of Rajasthan Vs. Bhanwar Singh 2004 AIR (SC) 4660; Khambam Raja Reddy and another Vs. Public Prosecutor, High Court of Andhra Pradesh 2006 AIR (SC) 3236; State of U.P. Vs. Dinesh 2009 (3) JT 106 and State of Haryana: Rai Sahab Vs. Ram Singh: State of Haryana 2002 AIR (SC) 620.
On the other hand the learned A.G.A. has supported the findings arrived at by the court below and has contended that false implication of the appellant in the present case is a general suggestion as the appellant has not pointed out a single incident of any enmity or family dispute between the parties. It is not acceptable that the complainant will implicate an innocent person sparing the actual perpetrator of the crime. The minor discrepancies in the statements of the witnesses are natural and merely because blood was not found on the spot will not belie the entire prosecution case. The injury over the neck of the deceased was found, which is said to have been caused by the appellant when he was pressing his neck by his leg and it is very common that when the neck was pressed he would have tried to raise his head and wriggle around on account of which on the left side of the face the contusion was found, which itself shows that he was immobilized by pressure over his neck and when the deceased was trying to turn around, acid was poured on his back resultantly the superficial multiple corrosive burn marks were found on both buttocks, thigh and on both limbs. There is thus no significant discrepancy of the prosecution case with the medical evidence. P.W. 1 and 2 are natural witnesses who have seen the occurrence and as such their testimony has not been disbelieved by the court below. The prosecution has proved its case beyond all reasonable doubts and as such the appellant has been rightly convicted for life imprisonment.
We have heard the learned amicus curiae appearing for the appellant and the learned A.G.A. for the State and have gone through the entire record.
The appellant who was known as Keval Baba was known to the P.W.1 and 2 as it has come out in the first information report itself that he used to intercept them and use abusive language and on the fateful day the younger brother of the complainant became the victim when he was intercepted by the appellant who at once cried for help saying ?Bachao Bhaiya Baba Mare Daal Raha Hai?. Upon hearing the same, P.W.1 and 2 reached there and had seen that the appellant putting his leg over the neck of the deceased, who was writhing in pain but the appellant was not satisfied and he threw acid from a bottle which he was keeping with him. P.W. 1 and 2 both have given eye witness accounts that they reached the spot on hearing the alarm of their brother and they were also frightened by the appellant when he tried to throw acid but it could not fall upon them. The villagers also arrived at the spot and the dead body was shifted to a nearby place and promptly a first information report was dictated to one Shishu Pal Singh.
The first information report was promptly lodged on the same day. A person overtaken by grief at a particular incident cannot be expected to give better particulars. In the instant case the possibility of the complainant inventing a story within a couple of hours to implicate the accused appellant is absolutely ruled out. According to the first information report the deceased uttered the last words that 'Bachao Bhaiyya Baba Mare Dal Raha Hai' is admissible under Section 6 of Indian Evidence Act, which is described as res gestae evidence. The utterances made by the deceased on the verge of his death by itself is a guarantee of truth of the circumstances leading to his death. The statement made by the deceased in the presence of P.W.1 and 2 as to the cause of his death or as to the circumstances of the transaction resulting in his death is truthful genuine and voluntary and can form a sturdy basis for conviction of the accused appellant.
The post mortem report fully corroborates the manner of incident as stated by P.W. 1 and 2 in their deposition before the court. The hyoid bone and rings of trachea were fractured, which is quite possible under the circumstances of the case when the appellant was pressing the neck of the deceased with his leg and the deceased in order to lift his face would have tried to turn around and then the acid would have been thrown over his body, which had resulted in burn injuries on the back of his chest and all over the other parts of his body. The Doctor who was examined as P.W.3 has also stated that injury no.1 could be caused if the neck is pressed through leg and the deceased was lying on the ground and the injury no.2 could be caused through pressure to the neck by leg in a lying condition and so far as injury nos. 3 and 4 are concerned these could be caused by pouring acid. The deceased had received deep burn injuries and when his clothes were taken out some blood would have oozed out from the skin and as such merely because blood was not found at the spot would not belie the manner of incident. The statements of P.W. 1 and 2 are consistent and natural and their presence cannot be doubted at the time of the occurrence and there is no reason that they will falsely implicate the appellant leaving out the real assailants. There is no inconsistency of the statement with the medical evidence. Medical evidence takes precedence only if the ocular testimony is inconsistent and unreliable. The case laws cited by the learned counsel for the appellant are not applicable in the present context of the case. In the present case the medical evidence is consistent with the ocular testimony and as such the veracity of the prosecution case does not suffer from any infirmity, therefore, we do not consider it fit to interfere in the findings arrived at by the court below in convicting the appellant and sentencing him for life imprisonment under Section 302 I.P.C.
Therefore in view of the above decision the appeal fails and stands dismissed. Before parting with the case we are recording our appreciation with which the learned Amicus Curiae appearing on behalf of the appellant has argued the case in a very able manner.
Order Date :- 25.1.2011 Shahnawaz