Allahabad High Court
Kamlesh @ Ghora vs State Of U.P. on 7 March, 2022
Bench: Ramesh Sinha, Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 AFR Case :- CRIMINAL APPEAL No. - 1104 of 2009 Appellant :- Kamlesh @ Ghora Respondent :- State of U.P. Counsel for Appellant :- I.B. Singh, Krishna Kumar Singh, Nisar Ahmad Counsel for Respondent :- Govt. Advocate Connected with Case :- CRIMINAL APPEAL No. - 1105 of 2009 Appellant :- Rajesh Respondent :- State of U.P. Counsel for Appellant :- I.B. Singh,Krishna Kumar Singh,Nisar Ahmad Counsel for Respondent :- Govt. Advocate Hon'ble Ramesh Sinha, J.
Hon'ble Mrs. Saroj Yadav, J.
1. At the outset, Shri Ishan Baghel holding brief of Shri I.B. Singh, Senior Advocate, for the appellants stated that short term applications have been filed on behalf of the appellants in both the appeals which are pending and the same may be disposed of by this Court. He submits that both the appellants, who are sons of co-accused Mool Chandra, are in jail for the last 17 years, hence he prays that they may be released on parole/short term bail on the ground that their father, Mool Chandra (co-accused) has died on 07.01.2022 and there is no one to take care of their family members.
2. Taking into consideration the fact that paper book is ready; matter is ripe for hearing; the above-captioned appeals are listed for final hearing today; the convicts/appellants are in jail for the last 17 years, we gave an option to Shri Ishan Baghel, holding brief of Shri I.B. Singh, learned Senior Advocate, to argue the appeals finally, Shri Ishan Baghel, learned Counsel showed reluctance and prays for adjournment with a plea that he has no power in the instant appeal.
3. It transpires from the order-sheet of the case that the first application for bail filed by the appellants was rejected by a Co-ordinate Bench of this Court comprising Hon'ble Shiva Kirti Singh, Chief Justice and Hon'ble Devendra Kumar Arora, J. (as they then were) vide order dated 15.04.2013. After that, the aforesaid appeals were listed on several dates but adjourned either on the request of learned Counsel for the appellants or on his out of station slip.
4. It also transpires that on 13.01.2022, when the above-captioned appeals were listed for final hearing, this Court gave an option to Ms. Reena Rajesh, learned Counsel who was holding brief of Sri I.B. Singh, Senior Advocate, to argue the appeal finally, she showed reluctance and stated that her Senior Counsel, Shri I.B. Singh, who was out of station, would argue the appeal and prayed that the matter be listed in the next week for final hearing. Appreciating the request of Ms. Reena Rajesh, learned Counsel, this Court posted the matter for final hearing on 20.01.2022. On 20.01.2022, on the request of learned Ms. Reena Rajesh, learned Counsel, the case was again adjourned and the matter was posted for 22.02.2022. On 22.02.2022, Shri Ishan Baghel, learned Counsel holding brief of Shri I.B. Singh had appeared and prayed for adjournment in order to enable him to prepare the case for final hearing. Appreciating this request of Shri Ishan Baghel, learned Counsel appearing on behalf of the appellants, the matter was posted for final hearing in the week commencing 07.03.2022. After that, the case has been listed for today i.e. on 07.03.2022.
5. Today, when the case was called out, Shri Ishan Baghel, learned Counsel has put in appearance on behalf of the appellants and instead of arguing the appeal finally, presses the short term bail/parole and so far as arguing the appeal finally is concerned, he states that he has no power on behalf of the appellants to argue the appeals finally.
6. It is noteworthy to mention here that Ms. Reena Rajesh holding brief of Mr. I.B. Singh, Senior Advocate, who is also present with Mr. Ishan Baghel today, had also appeared in the appeal on previous occasion i.e. on 13.01.2022 and pressed the short term/parole application on behalf of the appellants and further sought adjournment with a plea that the matter would be argued by Sri I.B. Singh, Senior Advocate, who was abroad at the time.
7. Considering the aforesaid, this Court finds the conduct of Mr. Ishan Baghel and Ms. Reena Rajesh, learned Counsel appearing on behalf of the appellants on different dates cannot be appreciated by the Court as all the attempt is being made to get the appellants somehow short term bail/parole even though the earlier bail applications of the appellants have been rejected by the Co-ordinate Bench and final hearing of the appeals has been avoided even knowing the fact that the above-captioned appeals have been listed today for final hearing.
8. At this juncture, it would be apt to mention that the Apex Court in Mangat Singh Vs. State of Punjab : 2005 (11) SCC 185 has observed as under :-
"2. It is unfortunate that the counsel had not appeared in the High Court in a case of appeal of conviction under Section 302 IPC. The question of accountability of the advocate looms large in a case of this nature. However, the High Court could have appointed an amicus curiae to assist the Court rather than relying on the assistance of the learned counsel for the State."
9. The Apex Court in Md. Sukur Ali vs. State of Assam : (2011) 4 SCC 729 has observed in para-7 as follows : -
"We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel's negligence or deliberately, even then the Court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the 'heart and soul' of the fundamental rights."
(emphasis supplied)
10. The Apex Court in the case of Shanker Vs. State of Maharashtra (Criminal Appeal No. 1106 of 2019 arising out of Special Leave Petition (Crl.) No. 7230 of 2018, decided on 23.07.2019) has also reiterated the ratio laid down in Mangat Singh Vs. State of Punjab (supra) and has observed as under :-
"5. When the accused has preferred the appeal against the conviction, the appeal can be disposed of on merits only after hearing the appellant or his counsel. When there was no representation for the appellant, in our considered view, the High Court ought not to have disposed of the case on merits. It was held in 2005 (11) SCC 185 titled Mangat Singh vs. State of Punjab that where the advocate for the appellant is absent on the date of hearing, the Court shall either appoint an amicus curiae and then decide the appeal. Once the appeal against the conviction is admitted, it is the duty of the Appellate Court either to appoint an advocate as amicus curiae or to nominate a counsel through Legal Services Authority and hear the matter on merits and then dispose of the appeal. "
(emphasis supplied)
11. Keeping in mind the aforesaid ratio laid down by the Apex Court and also considering the aforesaid facts, while declining to grant short term bail/parole to the appellants (C.M. Application No. 6 of 2022 in re: Criminal Appeal No. 1105 of 2009 and C.M. Application No. 8 of 2022 in re: Criminal Appeal No. 8 of 2022), the Court proceeds to hear the above-captioned appeals filed on behalf of the appellants finally by appointing Shri Ishan Baghel as Amicus Curiae to argue the above-captioned appeals on behalf of the appellants finally because as stated hereinabove, he is well acquainted and also prepared with the case. Furthermore, Shri Ishan Baghel does not state that he is not well acquainted and also not prepared the case to argue it finally but his objection was only to the effect that he has no power in the above-captioned appeals to finally argue the matter. In these backgrounds especially considering the fact that the appellants are in jail for the last 17 years, in the ends of justice, this Court proceed to hear the appeals finally with the assistance of Shri Ishan Baghel (Amicus Curiae) and Shri Vishwas Shukla, learned Additional Government Advocate for the State.
12. Three accused persons, Kamlesh alias Ghora, Rajesh and Mool Chandra, were tried in Sessions Trial No.765 of 2005 (State Vs. Kamlesh @ Ghoda & others), arising out of Case Crime No.76 of 2005, under Section 302 I.P.C., Police Station Itaunja, District Lucknow, whereas accused Kamlesh @ Ghora was also tried in Sessions Trial No.766 of 2005 (State Vs. Kamlesh @ Ghora), arising out of Case Crime No.85 of 2005, under Section 3/25 of Arms Act, Police Station - Itaunja, District Lucknow, by the Additional District & Sessions Judge, Court No.15, Lucknow.
13. Both the aforesaid two Sessions Trials were related to each other, hence the learned Additional District & Sessions Judge, Lucknow heard and decided the aforesaid two Sessions Trials together and vide common judgment and order dated 06.04.2009/09.04.2009, the learned Additional District & Sessions Judge, Lucknow, convicted and sentenced the accused/appellants Kamlesh alias Ghora, Rajesh and Mool Chandra in the manner as stated hereinbelow :-
"Accused/appellants Kamlesh alias Ghora, Rajesh and Mool Chandra :-
Under section 302 read with Section 34 of the Indian Penal Code to undergo life imprisonment and a fine of Rs.10,000/-. In default of fine, to undergo six months additional rigorous imprisonment.
Accused/appellant Kamlesh alias Ghora :-
Under Section 25 of Arms Act to undergo three years rigorous imprisonment and a fine of Rs.2000/-. In default of fine, to undergo one month additional imprisonment.
All the sentences were directed to run concurrently."
14. Feeling aggrieved by the impugned judgment and order dated 06.04.2009/09.04.2009, convict/appellant Kamlesh alias Ghora has preferred Criminal Appeal No. 1104 of 2009, whereas convict/appellant Rajesh has preferred Criminal Appeal No. 1105 of 2009 and convict Mool Chandra has preferred Criminal Appeal No. 1077 of 2009.
15. It is pertinent to mention here that during pendency of the aforesaid appeals, convict/co-accused Mool Chandra died, hence his Criminal Appeal No. 1077 of 2009 filed before this Court stood abated vide order dated 22.02.2022.
16. Since the above-captioned appeals arise out of a common factual matrix and impugned judgment, we are disposing them of by a common judgment.
17. Shorn off unnecessary details the facts of the case are as under :-
The informant-Radha Devi d/o Hira Lal (P.W.1) lodged a written report (Ext. Ka.1) dated 20.06.2005 at police station Itaunja, Lucknow, alleging therein that she is the resident of Village Dugauli, Police Station Madhiyao, District Lucknow, current address Village Gohona Khurd, Police Station Itaunja, District Lucknow. After the death of her mother about a year back, her father Hira Lal married to another woman, who was the daughter of Mool Chandra s/o Jhole, resident of Pipari, Police Station Itaunja. After marriage, they were residing at Village Gohana Khurd, Police Station Itaunja.
On 17.06.2005, her father had beaten her second mother, upon which her second mother had gone to her parental village Pipri. On account of the said enmity, on 17.06.2005, at 4.00 p.m., when her father along with her (P.W.1) and her brother Rajneesh (P.W.2) had come to village Pipri, which is adjacent to her village, to take her second mother, an altercation took place between Mool Chandra (accused/convict) and her father on the issue of leaving the house of her second mother, on which her father got angry and left for home. In the meanwhile, Kamlesh, Rajesh s/o Mool Chandra (convicts/appellants) and Mool Chandra (accused/convict) surrounded her father and Kamlesh (convict/appellant) fired two shots upon her father by his gun and when her father fell down, Mool Chandra (accused/convict) and Rajesh (convict/appellant) assaulted her father with banka, due to which her father died on spot. The incident was witnessed by her (P.W.1), her brother- Rajneesh (P.W.2), Babu Lal s/o Molhe Ram (P.W.4) resident of Village Mohana Khurd and other persons.
18. Thereafter, informant-Radha Devi (P.W.1) got the FIR scribed by Mohd. Bilal, who after scribing it read it over to her. She, thereafter, affixed her signature on it. She then proceeded to Police Station Itaunja and lodged it.
19. The evidence of P.W.5- Molhey Ram shows that on 20.06.2005, he was posted as Head Constable at Police Station Itaunja, Lucknow. On the said date, informant Radha Devi (P.W.1) came along with a written report at police station. On the basis of the written report, he registered an F.I.R. on the same date at 06:40 p.m. as chik no. 59 of 2005, case crime no. 73 of 2005, under Section 302 I.P.C., Police Station Itaunja, District Lucknow. He proved the chik F.I.R. (Ext. Ka. 6). He also proved the GD (Ext. Ka.7).
It appears that the trial Court has provided opportunity to cross-examine P.W.5-Molhey Ram but he was not cross-examined by the defense.
20. A perusal of the chik FIR shows that the distance between the place of incident and Police Station Itaunja was 6 kilometers. It is significant to mention that a perusal of the chik FIR also shows that a case under Section 302 I.P.C. was registered against appellants, Kamlesh, Rajesh and Mool Chandra.
21. The investigation of the case was conducted by P.W.7-S.I. Panna Lal Saroj, who, in his examination-in-chief, had deposed that on 20.06.2005, he was posted as Sub-Inspector in police station Itaunja. On the same day, on the basis of written report lodged by informant-Radha Devi (P.W.1), FIR was lodged as Case Crime No.76 of 2005, under Section 302 I.P.C. and he himself started the investigation. On the same day, firstly he filled the form and mentioned the hindi copy of FIR in G.D. On pointing out of the informant Radha Devi (P.W.1), the place of occurrence was investigated by him. Site plan (Ext.Ka-9) was prepared by him, which is in his handwriting and signature. Secondly, on 21.06.2005, he recorded the statement of the witnesses of Panchayatnama and memo (fard) - Dr. Ajay Kumar, Dharmveer, Ramesh, Kallu and others. After that he recorded the statement of witness Babu Lal (P.W.4) and Rajneesh (P.W.2). During the inspection of place of occurrence, he recovered blood stained banka (Ext. Ka.3) and empty cartridge (Ext. Ka.5), collected plain soil and blood stained soil (Ext. Ka. 4) under memo (fard) dated 20.06.2005. On the same day, in his presence and on his instruction, panchayatnama (Ext.Ka-2) was prepared by S.I. Ayodhya Prasad Pathak on which he made his signature. The challan lash (Ext.Ka-10), photo lash (Ext. Ka-11) and specimen seal (Ext.Ka-12) was prepared by S.I. Ayodhya Prasad Pathak, who accompanied him and the same was signed by him. Letter to the C.M.O. (Ext.Ka-13) was prepared and was signed by him. On 23.06.2005, he prepared paper (parcha) no.3 and also made search for accused persons.
On 25.06.2005 the accused persons surrendered before the court concerned and sent to jail and the details of the same was mentioned in paper no.4. On 29.06.2005, statements of accused persons were recorded in District Jail, after taking permission from the court concerned, which is mentioned in paper no.5. On 05.09.2005, paper no.6 was prepared in which it was mentioned that accused Kamlesh @ Ghora was taken on police custody/remand with the permission of court concerned and on his pointing out, pistol used in commission of crime and cartridge were recovered. On the place of recovery, one pistol 12 bore, one live cartridge were recovered and its memo (Ext.Ka-14) was prepared, which was written and signed by him. Thereafter, on 07.07.2005 paper no.7 was prepared in which it was mentioned that docket of one box each of blood stained soil and plain soil and one bundle containing clothes of the deceased was prepared and the same was sent to Forensic Science Laboratory. On 08.07.2005 paper no.8 was prepared in which it was mentioned that copy of panchayatnama and copy of post-mortem report was made. On 20.07.2005, paper no.9 was prepared which stated that statement of scriber of FIR Moharrir Mohley Ram (P.W.5) was recorded.
On 31.07.2005, paper no.10 was prepared which stated that on receiving the docket, copy of the pistol 12 bore and empty cartridge, which were sent to the Forensic Science Laboratory, Lucknow for testing, the evidence was found, on the basis of which charge sheet No.77 of 2005 (Ext.Ka-15), which is in his handwriting and signature, was sent to court concerned. On 23.10.2005, in S.C.D. -II, the details of the report of Forensic Science Laboratory was mentioned and the report, which was received, was also annexed. The seal-covered goods (Ext.1), which were in the cloth of ''markeen', were opened before the court and seeing one pistol and three empty cartridges and one live cartridge that came out from inside, the witness said that it was the same gun (Ext.2), a live cartridge (Ext.3) and three empty cartridges (Ext.4, 5 & 6) which were recovered from accused Kamlesh. Before the court, a sealed packet was opened, on cloth Ext.7 was marked and Ext.8 was marked on a carton received from inside. A banka (in sealed condition) (Ext.10) was also received from inside and after seeing this, the witness said that it was the same weapon, used in the commission of crime, and recovered from the place of occurrence. The containers of blood stained soil and plain soil were found sealed separately, on the clothes of which Ext.11 and Ext.12 were marked; on two containers Ext.13 and Ext.14 were marked; and Ext.15 and Ext.16 were marked on plain soil and blood stained soil respectively; Ext.17 was marked on sealed bundle containing clothes of the deceased; and Ext.18 was marked on clothes.
In his cross-examination, he deposed that to take accused persons in police custody, he went along with S.I. Ayodhya Prasad Pathak, Constable Phool Singh Yadav and Constable Om Prakash from police station. He firstly said that he did not remember the time of departure from police station, but soon after he stated that at 8.30 p.m. they left for jail from police station. He did not remember the exact time when the accused were taken into custody. The fact that on which time the accused Kamlesh was taken into custody from jail was not mentioned in the case diary. At that time, he was not aware from where the gun used in the commission of crime, was to be recovered. After taking the custody, he went to village Pipri via Itaunja on asking of accused Kamlesh. He mentioned the said fact in the case diary. The time of reaching at Village Pipri was not mentioned in the case diary. The population of village Pipri was about 500-600. He did not remember under which Sub Inspector's area Pipri village falls. He tried himself to take witnesses but due to fear and ill-will no-one was ready. None of the witness disclosed name and address and left. In the case diary he did not mention the name of the witnesses but he wrote that no-one was ready to give evidence because of ill-will. Sealed bundle which contained country made pistol did not bear any signature and on it "Crime No.85/2005 and Crime No.76/2005" was written in his handwriting, which was the crime number punishable under Section 3/25 of Arms Act in the case of State Vs. Kamlesh. The word "and" was written between both the crime numbers by him. Under the aforesaid expression, the details of Crime No.85/2005 and Crime No.76/2005 were written by him. The aforesaid were written by him at the place of recovery. He did not put any handwritten slip on the country made pistol. Likewise he did not put any handwritten slip over the cartridges. He further deposed that when recovered articles, recovered weapons, recovery memo are sent to police station and the case is registered, only then crime number of case of recovered weapon is determined. After the recovery made in this case, he reached police station at 17:15 hour and thereafter the case was registered and crime number was determined. The accused persons were lodged in police station. He finished the paper work of that day after reaching the police station, but did not mention any time. He denied the suggestion that on pointing out of accused, no country made pistol was recovered. The expression written with blue pen on the bundle containing banka is in his handwriting. He denied the suggestion that banka was not sealed at the place of occurrence. It is wrong to say that forged paper work was done at the police station.
In his cross-examination, he deposed that in front of his police station, a concrete road goes towards Amaniganj. The scriber of the present FIR is Mohd. Bilal r/o Amaniganj. Amaniganj comes under Police Station Itaunja. He did not mention the name of Mohd. Bilal in the list of witnesses in charge sheet. He did not record the statement of Mohd. Bilal and he did not write the reason in case diary that Mohd. Bilal was not examined during investigation. The fact that Mohd. Bilal was searched and he could not be found was also not mentioned in the case diary. Where the incident was allegedly occurred, there is an orchard of mango trees. Kalmi mango trees were also in the garden and who was looking after orchard, it is not mentioned in the case diary. He did not write timing of his reaching at the place of occurrence in the case diary and the fact of tracing those people is not even written in the case diary, but he mentioned the timing of recording the statement of informant in case diary. He did not mention the timing of recording the statement of witness Rajneesh in the case diary. He did not mention his duration of time at the place of occurrence in the case diary. He did not mention in how much time he completed the first paper in the case diary. Likewise, he did not mention about the timing of completion of any paper in case diary. The date is also not there under the endorsement made by the C.O. on the first paper. Likewise, there is no date on any of the papers below the order of the C.O. He further deposed that during investigation it did not come to his knowledge that the deceased had done many marriages and with regard to said fact, during investigation, he did not record any statement or got any information. On the day of incident, he did not go to police station and he remained in the area in search of accused persons. He did not point out any particular place where he made search. It is wrong to say that he did not recover any weapon of assault on the pointing out of accused Kamlesh and on return, he made a forged recovery. Informant Radha Devi did not inform him about the fact that she along with his father and brother left from their house. It is wrong to say that he did all the investigation of the case, sitting at the police station.
22. P.W.8-Guru Sahai Bhargav, Constable, in his deposition, stated that on 05.07.2005 he was posted as Constable Clerk at Police Station Itaunja. He proved the FIR of case under Section 3/25 of Arms Act as Ext.Ka-16.
In his cross-examination he stated that it is wrong to say that no recovery was made from the accused nor any specimen seal was prepared and the same has been prepared in a forged manner while sitting at Police Station.
23. P.W.9 Head Constable Ajay Pratap Singh, Police Station Manpur, District Sitapur, in his deposition, stated that on 05.07.2005, he was posted as Head Moharrir at Police Station Itaunja, District Lucknow. At 17.15 hour. S.H.O. Panna Lal Saroj (P.W.7) along with other police force brought accused Kamlesh @ Ghora s/o Mool Chandra r/o Pipri, Police Station Itaunja Lucknow along with recovered articles used in the commission of crime, i.e., one country made pistol 12 bore and a cartridge in a seal covered state and submitted at Police Station. An entry was made in Rojnamcha as Case Crime No.85 of 2005, under Section 3/25 of Arms Act at Rapat No.37. G.D. entry of the same was made by him being Head Moharrir. The carbon copy of the entry G.D. was prepared in the same process alongwith the original, which is paper no.1/14. That was written in his handwriting over which Ext.Ka-17 was marked.
In his cross-examination, he stated that he did not go to jail. He only made entry in G.D. He did not bring the G.D. in original. The recovery was not made before him. The recovery was made by S.O. and he only made entry of the same. He also made entry of one pistol 12 bore and a live cartridge. Empty cartridge was not recovered before him. He did not remember that before this G.D. entry, which and at what time G.D. entry was made and he also did not remember at what time and which G.D. entry was made subsequent to the G.D. entry of this case. It is wrong to say that the FIR is anti-timed.
24. P.W. 10 - Shri Ram, S.H.O. Fakharpur, District Bahraich, in his deposition, stated that on 05.07.2005 he was posted as Sub-Inspector, Police Station Itaunja, District Lucknow. He was entrusted with the investigation of Case Crime No.85 of 2005, under Section 3/25 of Arms Act. On 03.09.2005 after obtaining the necessary permission from District Magistrate and finding the offence established, he dispatched the Charge Sheet No.89 of 2005.
In his cross-examination he deposed that there is no witness of recovery. No time was mentioned in the case diary with regard to taking the statement of witnesses - Panna Lal Saroj (P.W.7), Om Prakah Pathak & others. The time of inspection of the place of occurrence has also not been mentioned in the C.D. It is wrong to say that investigation has been carried out in the Police Station.
25. The postmortem of the body of deceased Heera Lal was conducted on 21.06.2005 at 10:50 a.m. at Ram Manohar Lohiya Hospital, Lucknow by Dr. Anil Kumar Srivastava, Senior Cardiologist (P.W.6), who, found the following ante-mortem injuries on his person :-
"(i) Multiple incised wound in area 12 cm x 10 cm, present over front and both side of face. Size ranging from 2 cm x 2.5 cm x muscle deep to 3 cm x 1 cm x bone deep.
(ii) Incised wound - 3 cm x 1 cm x bone deep present on right side of forehead just above right eye brow, underlying frontal bone cut.
(iii) I W - 1.5 cm x 1 cm x bone deep present over chin underlying bone mandible cut.
(iv) I W- 12 cm x 6 cm x vertebrae deep present on front and both side neck just above the thyroid cartilage underlying soft tissue minor and margin vessles layering pharynx and larynx found cut underneath the injury 2nd and 3rd centre vertebrae found cut above outer spinal chord.
On opening eechymosis present underneath all the injuries mentioned above. Margins of all above injuries are sharp and clean cut and well defined tailing present (IW).
(v) FIRE ARM WOUND OF ENTRY- 2 cm x 3 cm abdominal cavity deep present outer aspect of Right side of abdomen 18 cm above right illiac crest. MARGINS- INVERTED AND IRREGULAR BLACKENING, TATOOING, BURNING, CHARRING present around the wound in area 6 cm x 5 cm."
As per the opinion of Dr. Anil Kumar Srivastava (P.W.6), the casuse of death was shock and haemorrhage as a result of ante-mortem injuries.
26. It is significant to mention here that Dr. Anil Kumar Srivastava (P.W.6), in his examination-in-chief, had reiterated the aforesaid cause of death of the deceased and deposed that on 21.06.2005, he was posted at Ram Manohar Lohiya Hospital, Gomti Nagar, Lucknow and on that day, his duty was in post-mortem room. He conducted the post-mortem examination of deceased -Hira Lal aged about 35 years, who was brought by Constable 1725 Ram Kumar Tiwari, Police Station Itaunja whose post mortem number was 1682 of 2005. At the time of post mortem, rigor mortis was present in the whole body; the deceased was of average height; and both eyes were closed. In his opinion, all the injuries could have been possibly caused on 20.06.2005 at 4.00 p.m. The postmortem report (Ext. Ka-8) is in his handwriting and signature. In the opinion of the doctor, the reason of death was shock and hemorrhage due to ante mortem injuries, which was caused by fire arm injuries and the injuries were caused by sharp edged weapon.
In his cross-examination, he stated that there is only one injury of fire arm. 29 pellets were found from the body. By observing the rigor mortis, it is deduced how much time has passed since death. There may be a difference of 12 hours on either side in the time of death. It is not possible to tell the exact time. The death could have happened even before 36 hours. He further deposed that 90 ml. liquid substance was found in the stomach of the deceased. After two and half hours of having a meal, the food goes beyond the stomach. The deceased must have had food about two and half hours ago ahead of death. He could not tell, from how far does the blackening, charring and tattooing in a fire arm injury would occur. Ballistic expert can tell. There was no contusion or abrasion on the body of deceased.
27. The case was committed to the Court of Sessions by Chief Judicial Magistrate, Lucknow on 24.11.2005. The trial Court had framed charges against the convict/appellants, namely, Kamlesh @ Ghora, Rajesh and accused/convict Mool Chandra for the offences punishable under Sections 302 I.P.C.; the trial court has also framed charges against convict/appellant Kamlesh @ Ghora for offence under Section 3/25 of Arms Act. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial.
28. During trial, the prosecution examined ten witnesses in all, namely, P.W.1-Radha Devi, who is the informant and daughter of deceased-Hira Lal, P.W.2 Rajneesh, who is son of deceased-Hira Lal, P.W.3-Dharmveer, who is the witness of Panchayatnama, P.W.4 Babu Lal, who is the independent witness,P.W.5-Mohley Ram, who is the scribe of FIR, P.W.6 Dr. Anil Kumar Srivastava, who conducted the post-mortem of deceased, P.W.7 S.I. Panna Lal Saroj, who is the Investigating Officer of the case, P.W.8 - Guru Sahai Bhargav, who proved the FIR, P.W.9 -H.C. Ajay Pratap Singh, and P.W.10 Shriram, who conducted the investigation of the case lodged against appellant/convict Kamlesh alias Ghora for the offence under Section 25 of the Arms Act.
29. It is pertinent to mention that excepting Radha Devi (P.W. 1) and Rajneesh (P.W.2), the other two witnesses, namely, P.W.3-Dharamveer and P.W.4-Babu Lal have turned hostile and when confronted with those portions of their statements under Section 161 Cr. P.C. they had denied any such statement made by them. The informant Radha Devi (P.W.1) and his brother Rajneesh (P.W.2), however, stood firm as a rock of Gibraltar.
30. The informant-Smt. Radha Devi, who is the daughter of deceased, was examined as P.W.1. She, in her examination-in-chief, deposed that the incident took place on 20.06.2005 at 4.00 p.m. She stated that after a year of death of her first mother, her father got married again to one Seema d/o Mool Chandra (convict/accused) r/o Village Pipri. She has a brother; her father lived along with her second mother; and brother in a house constructed in Gohna Khurd. Two-three days before the incident, a scuffle took place between her father and her second mother and her father slapped her mother. Being annoyed of that, her second mother had gone to her parents' place at Pipri. She further deposed that she along with her father (deceased) and brother Rajneesh (P.W.2) had gone to Pipri to bring her second mother back. On the day of incident, a quarrel took place amongst her father, Mool Chandra (convict/ accused), Kamlesh and Rajesh (convict/appellants), on which her father became angry and took the informant (P.W.1) and her brother (P.W.2) and left their house. There is mango orchard of Munna Maurya near Mool Chandra's house. When they were going, Kamlesh, Rajesh (convicts/appellants) and Mool Chandra (convict/accused) surrounded her father (deceased).
P.W.1 had further deposed that Kamlesh (convict/appellant) fired two shots upon her father Hira Lal. Having sustained injuries, her father fell down on the ground. The injury was of gunshot. He sustained the bullet near his waist and blood was oozing out. Thereafter, Mool Chandra (convict/accused) caught hold her father and Rajesh (convict/appellant) slit his throat with banka. At that time, she (informant P.W.1) and her brother Rajneesh (P.W.2) and one other person Babu Lal (P.W.4) were present at the place of incident. She (P.W.1) and her brother (P.W.2) ran towards Police station, but before reaching police station, they met a person and they narrated the incident to him, who wrote a report on a paper. The said person read over the report on which the witness made her signatures and took the paper to police station and submitted there. This witness has proved the report and recognized her signatures on that. She further deposed that her father died on spot and Inspector inquired from her about the incident. He took her to the place of occurrence where the body of her father was lying. She identified the accused persons before the court and stated that they were the accused who committed murder of her father. She identified the convict/appellant Kamlesh and stated that he was the person who shot at her father with country made pistol. On seeing accused Mool Chandra in witness box, she stated that this accused was holding her father at the time of incident. On seeing accused/appellant Rajesh in witness box, she stated that it was the person who slit the throat of her father.
In her cross-examination, P.W.1 stated that village Gohna Khurd is surrounded by forest on the southern side which is 1/2 km away from residential area and her house is there in forest under the trees. Her house is made of mud walls and thatch and its width is 2x4 hands wide and length 7x8 hands. Other rooms of some other persons are also there, but she does not know the exact number of rooms. About one month ahead of the date of incident her father was living there. Other people were living in other rooms. She is familiar with their faces but she does not know their names. The thatched house was built by her father. Her father was not having any land there. She was not aware about the occupation of her father. Earlier her father was residing in a pakka house at Dudholi, which has one room and a verandah, with her mother. About two years ago, she used to live with her mother. After the death of her mother she started living with her father. She was not residing with her grand-father (nana) at Sidhauli. Her grand-father (nana) and maternal uncle (mama) are alive. She went to her grand-father's (nana) place. She did not live in Dudoli with her father, after the death of her mother.
P.W.1 further deposed that she never went inside the village Gohna Khurd, however, she knew one or two persons of Gohna Khurd. She does not remember their names but can identify by their faces. She does not know Babu Singh r/o- Village Gohna. She does not know village Pradhan Lala of village Gohna. She knows village Pipari but she is not aware about the distance between her house and village Pipari. She went to village Pipari about one month ago. She went to village Pipari one month ahead of the incident, also she went to village and on the day of incident. On the day of incident, she went to village Pipari from her house via the way which goes through fields of village Gohna. Her father along with her brother (Rajneesh) went to vilage Pipari. At that time no body was left her house. She went to village Pipari at about 10-11 a.m. and directly reached there within half an hour. On the way she saw many persons working in their fields but she could not tell their names. Nobody asked her father where he was going. They went directly to the house of Mool Chandra. The daughter of Mool Chandra is her new mother and her name is Seema and they met her at the house. She could not tell how many houses are there at village Pipari. She could not tell about the house of Mool Chandra whether it was a Katcha house or Pakka house but a thatch was there on the front.
She further stated that her mother died at Dudoli and after that she lived with her father continuously till he died. It is wrong to say that her father got his third marriage performed at village Mosaud. It is wrong to say that her second mother r/o- village Mosaud is alive and her father got his third marriage performed at village Jutti and her third mother is alive. It is wrong to say that her father got his fourth marriage performed at village Parsau. She is not aware that her father got his marriage performed with Seema in writing or not. It is wrong to say that his father got the aforesaid marriages registered at Registrar Office. It is wrong that her father was involved in a quarrel with the persons of village Parsau regarding jewellery. It is wrong to say that about 15 days ahead of the day of incident miscreants attacked at their house situated in Gohna. She further deposed that her second mother, Seema, was having good relationship with her and her brother Rajnish and they were loved by her and she also provided them food etc. when she was residing with them. She and her brother never had any quarrel with their second mother. Both the children loved their second mother. She (Radha) and Rajnish went to the house of her grand-father (nana) Mool Chandra at Gohna and sat near her second mother Seema and her father stopped in front of the doors and altercations started there. When she reached there, her father was sitting in front of the door. Thereafter the altercation started and it went on for about 10-05 minutes, thereafter, her father left the place, annoyingly. She does not remember how many steps her father walked from the front door when fire was shot upon him. When her father was leaving, within 2-4 minutes firing was made at him and due to which her father fell down. She along with her brother (Rajneesh) did not run as they were near their father. When her father started to leave due to anger, she along with her brother also accompanied their father and they were just behind 2-4 steps of their father. She does not remember how far and how many steps away they were from the house of Mool Chandra when her father fell down and at that time Babu Lal was in-front of them. She does not remember how many steps away was Babu Lal from her father. This fact is not in her knowledge that before starting living in Gohna village, her father lived at Kishunpur, Shahpur, Asnaha and Chandanapur, and he has left these places due to disputes and is living at Gohna. She went to the place of occurrence with the Inspector after a short interval. She went to the place of occurrence with the Inspector after two-three hours of incident. She had shown those spots to the Inspector where she, Rajnish and Babu Lal were present. She did not know Munna Maurya, but her father used to tell that the grove of Munna Maurya was there. She had got mentioned the name of Munna Maurya in the report regarding the grove. If it has not been mentioned in the report, she could not tell the reason. She had not got mentioned this fact in her report that "her father had received gunshot near waist, and it was bleeding." She did not state this fact even in her statement made before the Inspector. It is correct that she had stated this fact for the first time in the Court only. It is wrong to say that she have stated this fact for the first time before the Court on being tutored. She had got mentioned this fact in her report that " Mool Chandra had caught hold of her father." She had got mentioned the aforesaid fact in her report. If it is not mentioned, she could not tell the reason. She had got mentioned this fact in her report that "When they were going, then Kamlesh, Rajesh and Mool Chandra came and surrounded her father." She had got mentioned this fact in her report. If it is not mentioned then she would not be able to tell any reason. She had told the aforesaid fact to the Inspector in her statement. If it is not mentioned, she could not tell any reason. It is wrong to say that she is telling the aforesaid facts for the first time before the Court on being tutored. Two gunshots had been fired upon her father. She had seen that both the fires had been shot, but she did not see whether both the gunshots had hit her father or not. She is conversant with right, left and back. One fire was shot on her father from back, and another fire was shot on her father from front. After both the shots had been fired, her father fell down. The gunshot fired from back was fired on her father from a distance of two-three paces. The gunshot fired from front was also fired upon her father from a distance of two-three paces. There are quite big trees in the grove. The grove is very dense. When they started from home, she, Rajnish and her father Hira Lal had eaten pulses, rice and chapati before proceeding. When they reached the place of Mool Chandra, they had not eaten anything. When her father fell down, she and her brother Rajneesh began to cry. Both of them hugged their father. She was clad in salwar, kurta and orange coloured stoll. The blood of her father had stained in her hands and apparels. Rajneesh (P.W.2) was wearing blue shirt and green pant. The blood did not stain in the hands of Rajneesh rather it got stained in his clothes. Her father had not died by that time. She could not tell for how much time they remained hugged with their father. When gunshot had hit, Babu Lal had come. None else had come there till the time, they remained there, and Babu Lal had left the place. Babu Lal came, witnessed and went away. She did not remember that after how many minutes, Babu Lal had left. There is bricked way through the grove that connects metalled road. This metalled road is Ayaniganj Itaunja Road. This bricked way passes through the grove and after two furlong, it merges into the metalled road. From the place of occurrence, she had gone to Itaunja from the place of occurrence through the way of her village via the ridge of fields. After the incident, she returned from the place of occurrence following the same path that she followed while going to the house of Mool Chandra with her father. While returning, she had gone to Itaunja following the path beside Gohna village. She had seen earlier where Police Station Itaunja is situated. While going to Itaunja from her village, she passed through the place where Ayaniganj Road meets the road to Gohna village. A betel-nut shop is there. When she reached the betel-nut shop from the place of occurrence, she found several known persons. People were asking, but she did not tell anything. She did not call anyone from village to accompany her to the police station. She did not remember how much time she took in walking from the place of occurrence to the turning of betel-nut shop. Her brother Rajneesh was with her. She did not leave her at the place of occurrence. She was distressed, but she did not stop. Ayaniganj Road is commonly used road. Tempos are easily available on it. Even from the betel-nut shop, they went to Itaunja on walk. They did not go by Tempo or any other passenger vehicle. Mahona town falls on the way while going from betel-nut shop turning to Police Station Itaunja. A market assembles at Mahona town. There are many shops at both sides of the road.
P.W.1, in cross-examination, had further deposed that he had got mentioned this fact in her report that "her father got annoyed and left her home along with her and her brother." She could not tell any reason why this fact is not mentioned in her report. She had told the aforesaid fact to the Inspector in her statement but she could not tell any reason if this fact is not mentioned in her report. She did not use any passenger conveyance from the police station even from Mahona. She did not find any known person between Mahona and Itaunja. When she reached the police station, she found the Inspector. It was the same Inspector who had recorded her statement. She did not know whether the Inspector had seen her blood stained hands and the blood stained clothes of her and her brother or not. She had not shown the clothes of her and her brother and her blood stained hands to the Inspector. The Inspector had asked her about the incident. She remained at the police station for about half an hour. Thereafter, she and his brother had gone to the spot with the Inspector by a jeep. She had studied up to Class 4 and knew to read and write. Her signature was obtained on whatever she had stated at the police station and whatever statement she had made. The spot where the dead body of her father was lying is not visible from the door of Mool Chandra. She could not tell whether there is a room to the south of spot where the dead body of her father was lying. When the banka was blown at her father, her father had fallen flat. Her father was not moving. She could not tell how much paces away are the houses of village to the eastwards of the spot where her father had fell down. She could not tell even by guess whether the distance was ten paces or 100 paces. When she had gone to the spot with the Inspector, any person from Gohna village was not present there, and none was there even from Pipari village. When she went there for second time, the dead body of her father was lying there and any person was not there. She could not tell how many police officials were there on the jeep when she had gone to the spot with the Inspector. She could not tell whether police officials were there itself when she reached the spot with the Inspector. She could not tell whether the police officials were there throughout when she was present at the spot near the dead body of her father. She did not remember for how much time she had stayed near the dead body. The Inspector had inspected the dead body and blood etc. at the spot. She is not able to recollect after how much time the dead body had been sent from the spot. The dead body had been sent from the spot by a tempo. She did not remember how many persons had gone on the tempo with the dead body. Meanwhile, none of her acquaintance or relative came to the spot. Thereafter, she had gone to her house. Her grand-father or anyone else did not come to her house in the night. Her grand-father Chhote Lal came to the house at morning 9-10 o'clock. Thereafter, she came to Dudauli on the next day. It is wrong to say that she and her brother Rajnish had not gone to the house of Mool Chandra at village Pipari with her father on the day of incident. It is wrong to say that the accused persons have not committed any incident or brawl with her father, nor she witnessed any incident. It is wrong to say that the report of this incident has been got prepared later on after consultation, and the signature was obtained at the police station in due course. As per her knowledge, any case was not proceeding against her father. It is wrong to say that her father had solemnized several marriages and there was some dispute with their family members regarding jewellry etc. It is wrong to say that some other people have killed her father due to enmity and none has witnessed the incident. It is wrong to say that on being tutored, she has stated the fact of catching hold by Mool Chandra. She further deposed that she did not know how many groves are their in Pipari village. There is a grove at some distance from where they lived at Gohna village. She did not know to whom this grove belongs to. There were mangoes in the grove of Pipari village. The grove of Pipari is big one. She could not tell in how many bighas it would have spread. The family members of Mool Chandra were guarding that grove. While going from the place of occurrence to the police station, no person of Gohna village accompanied her. She knew Chhote Lal and Dulare of Gohna village. She is acquainted with their names. Dulare did not visit her village Dudauli. She is not aware of the fact that the in-law's house of Dulare is at Dudauli village. She could not tell whether he is alive or dead now. After reaching the police station, she had described the entire incident to the Inspector. She had dictated the report which she had got written. She had got written the application at a place which was at some distance from the police station. She is not aware of name of scribe, but that person knew her father. That very person had brought the papers etc. by whom she got written the application. She had got written the report by giving dictation. Her brother Rajnish was with her. She knew Babu Lal. None had told her the name of Babu Lal's father rather she remembered that. The name of Babu Lal's father was Bhole. She had got it written in the report. He further deposed that she knew her maternal grandfather from Pipari since her father solemnized marriage in her family. She did not know in which month her father had solemnized that marriage. She did not attend the marriage procession of her father nor any marriage procession of her father assembled. Her father told her that he had married to her, and she is her mother. Seema was already married somewhere. She did not know where she had been married. Seema was already having two kids. She is not aware of Makkaganj, Lucknow. She is not aware of the fact that the marriage of Seema was solemnized with Guddu of Makkaganj. She is not aware of the fact that Seema has two children from Guddu. It is wrong to say that at the time of incident, Seema was living at her in-law's house with her husband Guddu. It is wrong to say that Seema never visited her house at Gohna. It is also wrong to say that Seema had never lived with her father. She did not remember that her father would have conducted any documentation regarding marriage with her father. After this incident, the Inspector did not ever call Seema to face her, nor conducted any enquiry. She did not remember from where Babu Lal reached the spot. Even she did not know after how much time he went away. Even she did not remember for how much time he stopped at the spot, since they were weeping.
P.W.1 had further deposed that her maternal grand-father has come with her for her deposition. She resided with her maternal grand-father. She is residing with maternal grand-father from beginning. None has tutored her for deposition. Her second mother has two issues. These two children never resided with her father. She never saw these children at her home. How old these children are she did not know. From where the second marriage of her father was solemnized, it is not known to her. The accused persons present in the court used to visit her home daily. Before the incident, any altercation never occurred between them and her family. She never stayed at the house of accused persons at night. There are houses of other persons near her house. There are trees & plants. There are houses of Mohan, Vikky and others but names of others are not in her memory . There are open land and bushes nearby her house and due to which distant places are not visible. She further deposed that her father had sold some land of Dudauli where she was residing earlier at Lucknow and some land is left. Her father wanted to transfer this remaining land in favour of her second mother. It is not known to her. At the place of occurrence, accused persons neither caught her nor beat her nor abused her. There is a mango grove near the place of occurrence and there remains some darkness due to it. At the time of incident, Babu Lal (P.W.4) was appeared coming on the path situated near the grove. At how much distance he was from her, she did not remember. It is wrong to say that she did not remember any thing and she had forgotten the whole incident, therefore, she is unable to tell the distance of Babu Lal. It is wrong to say that she did not see the incident with her eyes. It is also wrong to say that she is giving false deposition at the behest of her maternal grand-father. It is wrong to say that some other persons have killed her father elsewhere and at the behest of her maternal grand-father and family members, he is giving false deposition against the accused persons.
31. P.W.2-Rajneesh, aged about 8 years, who is the brother of the informant P.W.1 and son of the deceased, had deposed before the trial Court that the incident took place on 20.06.2005, at 4 o'clock, in the evening. On that day, he had gone to take his mother along with father. His sister Radha was also with them. His mother was at the place of maternal grandfather. The mother had gone there two days ago and she was his second mother. An altercation took place with father as his mother had left the house. At the place of maternal grand father, his father had a conversation with his maternal grand-father Mool Chand, maternal uncle Rajesh and Kamlesh regarding bidai of his mother. The conversation turned into altercation. Mool Chand, Rajesh and Kamlesh had beaten his father. Kamlesh shot his father by katta (country-made pistol). His father fell down, then, Mool Chand caught him. Rajesh assaulted at the neck of his father by banka (a sharp edged weapon). Kamlesh fired two shots by katta. One shot hit his father above waist and the other shot on the chest. His father died there itself. They started crying. Many villagers had come there. The Inspector enquired with him about the incident and whatever he saw he told him.
In cross-examination, P.W.2-Rajneesh had deposed that he did not know, where his mother died. Prior to the incident his father was residing at Dudauli. His house is built there at Dudauli. The house is pakka (cemented). There is only one room in that house. He was not residing in that house at the time of incident. This house was locked at the time of incident. One year ahead of the incident, they were residing at Gohna with father. The house at Gohna is kachcha (non-cemented) and it contains two kothari (small- rooms). There is thatch over the courtyard. This house is situated at a short distance from village. There are forest and bushes near this house. His father used to take him along whenever he used to go anywhere. His father had neither cycle nor any other vehicle. He used to go with him on foot. He could walk a pretty long. He could not tell that at how much distance the paternal house of second mother is situated from village. A grove was there in the way. There was no canal in the way. His elder sister (P.W.1) used to cook meal at Gohna. On the day of incident, he had started after eating meal at his home. His sister (P.W.1) had also taken meal with him. It is not known to him that prior to the incident, some goons had come to their home, damaged T.V. etc. and taken some goods with them. His father had not taken meal before leaving from home on the day of incident. During the period when incident took place, he did not use to go for studies. Now he goes for studies. His sister does not study in his school. Prior to the incident, sometimes his father used to come in intoxicated condition. On the day of incident, they had gone to the house of second mother from their house at about 10-11 o'clock in the day. It is not known to him that when the marriage of father was solemnized with second mother. His father had told that she was his second mother. How many days ahead he told, it is not known. The second mother had stayed at their home. He deposed that for how many days she had stayed there, it is not known. How many days ago, she would have stayed prior to the incident, it is not known. His second mother has no issue. Prior to the incident, who had come to take his second mother from his home to her parental home, it is not known.
In cross-examination, P.W.2 had further deposed that on the day of incident, he and his sister met his second mother inside the house. His father did not go inside. His father had stayed at the door itself. On the day of incident, they had stayed at the house of second mother for about 1-1½ hour. He, his father and his sister left for return from the house of second mother. His father was walking ahead followed by him and then he followed by his sister. He was at a distance of about 20-30 steps from his father. He took refreshment at the place of second mother. What he had eaten, he did not remember. His sister was 2-3 steps behind him. When they reached the house of second mother, Mool Chandra, Rajesh and Kamlesh were present there. Any other person was not present there at home. All these three persons were outside the home. He had no conversation with all these three persons. They had travelled 30-40 steps from the house of second mother, then, the incident took place. At that spot houses are not situated. The accused persons did not catch him and his sister. After the incident, they ran towards police station. He knew the police station prior to the incident. He had visited police station twice before the incident. Both times his sister was with him. He had also visited police station with his father. Why he had gone to police station, he did not know.
32. P.W.3-Dharmveer, in his examination-in-chief, had deposed that this incident took place on 20th. He did not remember the month, however, it was near to May. He knew Hira Lal (deceased) and his dead-body was lying in the grove of mango. The ''panchayatnama' of the dead-body was prepared by the Inspector before him. He put signature on the ''panchayatnama' (Ext. Ka.2). The Inspector had recovered weapon of assault a ''banka' from the place of occurrence. The Inspector had collected plain soil and blood stained soil in separate containers from the place of occurrence and prepared the recovery memo (Ext. Ka.4).
In cross-examination, P.W.3-Dharmveer had deposed that there are his agricultural fields in Gohna Khurd. He knew Hira Lal (deceased) since 3-4 years. The marriage of Hira Lal with the daughter of Mool Chandra (accused/convict) was fifth one. He deposed that Hira Lal used to beat his fourth wife and he left her and a dispute was also going on with the family members of fourth wife. The panchayat was held in respect of jewellery of the fourth wife. Hira Lal told that he would not give jewellery on any count whatsoever. The other wives of Hira Lal are alive. At the time of the incident, his mother Rameshwari was the Pradhan of Gohana Khurd. The dead-body was found in the grove of mango in Pipari village. His village is situated at a distance of one kilometer from Pipari village. He deposed that when noise occurred in his village that Hira Lal was murdered, then, he and his mother were in front of his door. He further deposed that Radha (P.W.1) and Rajneesh (P.W.2) had come to his mother, then, he, his mother and Radha (P.W.1) went to the orchard in Pipri village where the deadbody was lying. When they reached near the dead-body, the Inspector and police personnel of police station Itaunja had reached there. The Inspector brought him, Radha (P.W.1), Rajnish (P.W.2), the dead-body and containers etc. from the place of occurrence to police station. The dead-body was brought on a tempo. On seeing Ext. Ka.3, Ka.2, Ka.4 and Ka.5, he stated that the Inspector had taken his signatures thereon at police station. The signatures of Ajay, Ramesh and Babulal were taken on Ext. Ka.2 at police station before him. He knew Amaniganj village and Mohd. Bilal is the resident of Amaniganj village. Mohd. Bilal was also present at police station. Radha and Rajneesh were crying a lot at police station. The written report was written at police station on the dictation of the Inspector, upon which signature of Radha (P.W.1) was affixed. He further deposed that Ext.Ka.1 is the same document, which was written by Bilal on the dictation of Inspector.
33. P.W.4-Babu Lal, in his examination-in-chief, had deposed before the trial Court that the incident took place on 20th about two years ago at 04:00 p.m. He was returning from the work place and when he reached near the forest of the village of Hira Lal, then, he listened the noise of crying, then, he reached there. He further deposed that he reached near the house of Hira Lal, where no one had assaulted anyone. Hira Lal was not there. After that, he went to his house. He went along with others to the place where Hira Lal was murdered. He did not see who murdered him. The ''panchayatnama' of the dead body was conducted by the Inspector at the place of occurrence. He was also made panch and his signature was also taken thereon. He identified his signature on Ext. Ka.2. The Inspector had recorded his statement.
In cross-examination, P.W.4 had denied that he gave any statement to the Inspector. He did not tell the Inspector that Kamlesh fired with gun; Mool Chandra caught and Rajesh assaulted with Banka. He denied the suggestion that he falsely deposed in connivance with accused. He further deposed that ''panchayatnama' of the dead-body was conducted before him and he put signature thereon and he did not see any incident.
P.W.4-Babu Lal had further deposed that he saw in the house of Hira Lal at 04:00 p.m. that the children of Hira Lal were crying, then, on asking, he was told that Hira Lal was murdered. He did not go the house of Hira Lal. The house of Hira Lal is at his village. After that he went to his house. In the evening at about 04:45 p.m., he went along with Pradhan and children of the deceased to the place of occurrence. The marriage of Hira Lal was fourth one. The first wife of Hira Lal was Chirauti, who was murdered. The place of the occurrence is about one kilometer from his house. When he reached at the place of occurrence, then, some of the villagers were already present there. While on way, no talk was made who murdered the deceased and why he was murdered.
34. The learned trial Judge believed the evidence of Radha (P.W. 1) and Rajneesh (P.W. 2) and the recoveries effected at the place of the incident on the pointing out of the convicts/appellants, and convicted and sentenced the appellants, Kamlesh alias Ghora, Rajesh and convict Mool Chandra in the manner stated hereinabove.
35. As mentioned earlier, aggrieved by their convictions and sentences convict/appellant Kamlesh alias Ghora preferred Criminal Appeal No. 1104 of 2009 before this court and convict/appellant Rajesh also preferred another appeal i.e. Criminal Appeal No. 1105 of 2009 and since these appeals arise out of a common factual matrix and impugned judgment, we are disposing them of by one judgment.
36. Heard Shri Ishan Baghel, learned Amicus Curiae for the appellants and Shri Vishwas Shukla, learned Additional Government Advocate for the State and perused the impugned judgment as well as material brought on record.
37. Shri Ishan Baghel, learned Amicus Curiae appearing on behalf of the appellants submits that as per the prosecution case, incident had taken at a spur of moment between the parties on account of which, convict/appellant Kamlesh armed with country made pistol, whereas convict/appellant Rajesh armed with banka assaulted the deceased with their respective weapons and convict/accused Mool Chandra caught hold the deceased. He contended that even if the case is taken at its face value, the present case would not travel beyond Section 304 I.P,C.
38. The next argument of Shri Baghel, learned Amicus Curiae is that two eye-witnesses, i.e. P.W.1 and P.W.2, who are daughter and son of the deceased, respectively, were minor aged about 15 and 8 years, respectively and their presence at the place of occurrence is doubtful and they appear to be a tutored witnesses. He further argued that P.W.4-Babu Lal had turned hostile and did not support the prosecution case. He argued that the dispute arose between the parties with respect to bidai of Smt. Seema, who is the second wife of deceased Hira Lal, as she had left the house of her husband (deceased), and had come to the house of appellants. The prosecution has not examined Smt. Seema to establish the motive attributed to the appellants for committing the murder of the deceased. It is further argued that P.W.1 and P.W.2 are the residents of Village Guhana Khurd which is situated at a distance of 4 kms. away from the village of the appellants.
39. Shri Baghel has further argued that the human blood could not be ascertained in blood stained soil collected by the Investigating Officer from the spot, in the serological examination report, hence the prosecution has failed to prove the place of occurrence.
40. It has been argued by the learned Amicus Curiae for the appellants that there are major contradictions in the statement of P.W.1 and P.W.2 vis-a-vis the first information report and the statement recorded under Section 161 Cr.P.C. regarding the place and manner of occurrence, as such the prosecution story is unworthy to be believed.
41. It has been lastly argued that the trial court committed grave error of law in believing the testimony of P.W.1 and P.W.2, who are minor children of the deceased, before testing the veracity of the testimony of P.W.1 and P.W.2, hence the impugned judgment and order passed by the trial court is liable to be set aside and the appellants be acquitted.
42. Learned A.G.A., on the other hand, has vehemently opposed the submissions advanced by learned Counsel for the appellants and has submitted that the incident took place in the house of the appellants and their sister Smt. Seema was the second wife of the deceased. There was some matrimonial dispute between the two on account of which she has left the house of the deceased and started living with her parents and brothers, i.e. the appellants. The deceased on the day of incident 20.06.2005 had gone to the house of the appellants for bidai of his second wife, namely, Smt. Seema and two children of the deceased, i.e. P.W.1 and P.W.2 were also with him at the house of the appellants. A quarrel took place between the deceased and co-convict Mool Chandra, on account of which deceased became angry and left to go back to his house. After that, the appellants Kamlesh, Ramesh and Mool Chandra surrounded the deceased and Kamlesh fired on the deceased with country made pistol whereas co-convict Mool Chandra caught hold the deceased and appellant Rajesh assaulted him with banka, on account of which the deceased succumbed to his injuries. The incident was witnessed by P.W.1 Radha Devi and P.W.2 Rajneesh and also by one Babu Lal and other persons of the village. The FIR of the incident was lodged by P.W.1 at the concerned police station on 20.06.2005 at 18.40 hours against the convict/ appellants and co-convict Mool Chandra. Hence the trial Court has rightly convicted and sentenced the appellants by means of the impugned judgment.
43. We have examined the submissions advanced by the learned Counsel for the parties and gone through depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution; the statements of the appellants recorded under Section 313 Cr.P.C. We have also perused the impugned judgment along with the lower Court record.
44. It would become manifest from the above that the learned trial Judge has based the conviction of the appellants on the testimonies of Radha Devi (P.W. 1) coupled with the evidence of Rajneesh (P.W. 2).
45. We would first like to deal with the evidence of Radha Devi (P.W. 1). Since in paragraph-17 we have set out the prosecution story primarily on the basis of the recitals contained in his examination-in-chief, we do not want to burden our judgment by reiterating the details. In short, her evidence shows :-
2-3 days' before the incident, a scuffle took place between her father Hira Lal (deceased) and her second mother Seema and her father slapped her second mother Seema. On account of this scuffle, her second mother Seema left the house and went to her parental house at Pipri village.
On the date of the incident i.e. on 20.06.2005, her father Hira Lal (deceased) took her and her brother Rajneesh (P.W.2) along and went to Pipri village for taking her second mother back, wherein a quarrel took place between father of her second wife, namely, Mool Chandra (co-convict), brothers of her second wife, namely, Kamlesh and Rajesh (convict/appellants) and her father Hira Lal (deceased), upon which her father Hira Lal (deceased) became angry and took her (P.W.1) and her brother (P.W.2-Rajneesh) and left towards Munna Maurya's orchard when appellants Kamlesh and Rajesh and their father Mool Chandra (co-accused/convict) surrounded her father Hira Lal (deceased). After that, convict/appellant Kamlesh fired two shots upon her father Hira Lal (deceased), as a consequence of which, her father sustained injuries and fell on the ground. P.W.1 had also stated that her father sustained bullet near his waist and blood was oozing out. After that, Mool Chandra (convict/appellant) caught hold of her father Hira Lal and convict/appellant Rajesh slit the throat of her father with banka. At that time, she, her brother Rajneesh (P.W.2) and Babu Lal (P.W.4) were present at the place of the incident and saw the incident. Immediately thereafter, she and her brother Rajneesh (P.W.2) ran towards police station but before reaching police station, they met a person (Mohd. Bilal) and narrated incident to him, whereupon that person prepared a report on a paper and thereafter that person read the report on which the witness made her signature thereon and proceeded along with it to police station and submitted there.
46. We have gone through the statement of P.W.1-Radha Devi and in our view it would be extremely safe to accept it as P.W.1 has stated in her deposition before the trial Court that convict/ appellant fired two shots upon her father Hira Lal as a consequence thereof her father sustained injury of bullet near his waist and blood was oozing out and fell down on the ground. After that Mool Chandra (co-convict) caught hold the deceased Hira Lal and convict/appellant Rajesh slit the throat of her father Hira Lal with Banka. This is corroborated by the nature of the ante-mortem injuries found on the person of Hira Lal by the autopsy surgeon Dr. Anil Kumar Srivastava (P.W. 6) which we have reproduced in entirety in paragraph-25. The perusal of ante-mortem injuries would show that Hira Lal sustained four clean cut incised wounds and one fire arm injury.
47. The statement of Radha Devi P.W.1 further shows that the FIR was lodged by her at 4 p.m. on the date of the incident i.e. on 20.06.2005, which is corroborated by the evidence of P.W.4-Molhe Ram, who registered the case on the basis of the FIR and that of the Investigating Officer S.I. Panna Lal Saroj (P.W. 9).
48. P.W.2-Rajneesh has fully supported the testimony of P.W.1-Radha Devi.
49. Learned Counsel for the appellants argued that P.W.1 and P.W.2 were aged about 15 years and 8 years, respectively, at the time of occurrence and their presence at the place of occurrence is improbable and their evidence being child evidence cannot be said to be trustworthy as they are tutored witnesses.
50. It transpires that the case of the prosecution is mainly dependent on the testimony of Radha Devi and Rajneesh, the child witnesses, who were examined as PW-1 and P.W.2, respectively.
51. Section 118 of the Evidence Act governs competence of the persons to testify which also includes a child witness. Evidence of the child witness and its credibility could depend upon the facts and circumstances of each case. There is no rule of practice that in every case the evidence of a child witness has to be corroborated by other evidence before a conviction can be allowed to stand but as a prudence, the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Only precaution which the court has to bear in mind while assessing the evidence of a child witness is that witness must be a reliable one.
52. The Apex Court has consistently held that evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon. It is more a rule of practical wisdom than law. [See Panchhi and others v. State of U.P, (1998) 7 SCC 177, State of U.P. v. Ashok Dixit and another, (2000) 3 SCC 70, and State of Rajasthan v. Om Prakash, (2002) 5 SCC 745].
53. In Alagupandi alias Alagupandian v. State of Tamil Nadu : (2012) 10 SCC 451, the Apex Court has emphasized the need to accept the testimony of a child with caution after substantial corroboration before acting upon it. It was held that :
"36. It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence. The court in such circumstances can safely rely upon the statement of a child witness and it can form the basis for conviction as well. Further, the evidence of a child witness and credibility thereof would depend upon the circumstances of each case.
The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and that there exists no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a rule of prudence the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Further, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable."
54. It is clear from the testimony of PW-1 and P.W.2 that they are the eye-witnesses of the incident. They were aged about 15 years and 8 years, respectively, at the time of the incident. Both the witnesses have categorically stated that on the date of the incident, their father Hira Lal (deceased) had brought them to take back their second mother from the house of maternal grandfather, wherein quarrel took place between their father Hira Lal (deceased) and father of their second mother, namely, Mood Chandra (convict/accused) and brothers of the second mother, namely, Rajesh and Kamlesh (convicts/appellants). After that, their father became annoyed and took them and left for home. When they reached the orchard of Munna Maurya, convicts/appellants Kamlesh and Rajesh and their father Mool Chandra surrounded their father. After that, Kamlesh (convict/appellant) fired two shots upon her father Hira Lal on account of which their father sustained injuries of bullet near his waist and blood was oozing out and after that Mool Chandra (convicts/appellants) caught hold their father and Rajesh (convicts/appellants) slit the throat of their father with banka. P.W.1, in cross-examination, had specifically deposed that two gun shots had been fired upon her father; she saw that both the fires had been shot, but she did not see whether both the gunshots had hit her father or not; she is conversant with right, left and back; one fire was shot on her father from back; another fire was shot on her father from front; after both the shots had been fired, her father fell down on the ground; the gunshot fired from back was fired on her father from a distance of two-three paces; the gunshot fired from front was also fired upon her father from a distance of two-three paces. This statement of P.W.1 has been supported by P.W.2. Both the witnesses right from the beginning had supported the prosecution case and stood as a rock of Gibraltar. The post-mortem report of the deceased Hira Lal has also corroborated the evidence of P.W.1 and P.W.2 as it transpires from the post-mortem report that apart from four incised wounds, deceased Hira Lal sustained one fire arm injury. The evidence of Dr. Anil Kumar Srivastava (P.W.6), who conducted the post-mortem of the deceased Hira Lal, shows that the reason of death of the deceased was shock and haemorrhage due to ante-mortem injuries, which was caused by fire arm injuries and the injuries caused by sharp edged weapon. P.W.6 had also stated that there was no contusion or abrasion on the body of the deceased.
55. P.W.1-Radha Devi, in her deposition, had clearly stated before the trial Court that her relation with the second mother Seema was good when she resided with her; her second mother Seema had loved a lot to her and her brother Rajneesh (P.W.2); food etc. was given to her and her brother; the second mother did not quarrel to her and her brother Rajneesh; both she and her brother Rajneesh had loved a lot to their second mother Seema and they did not make quarrel. When they reached to the house of Mool Chandra, they sat with their mother Seema and their father sat outside of the door and after that scuffle took place for about 10-5 minutes; and after that, their father became annoyed and left with both of them. This itself shows that there were good terms between P.W.1, P.W.2 and their second mother Seema. Even otherwise, there is sufficient corroboration, on record to rule out the possibility of PW 1 and P.W.2 being tutored or used for ulterior purposes by some alleged interested persons. In the absence of any inherent defect we do not find any substance in the plea to reject the testimony of child witnesses i.e. P.W.1 and P.W.2. The factum of the deceased having received fire-arm wound and incised wound with banka are proved by the medical evidence.
56. The recovery of the blood stained banka and empty cartridge at the place of the occurrence and further pistol on the pointing out of convict/appellant Kamlesh leaves no doubt to disbelieve the presence of P.W.1 and P.W.2 at the place of occurrence. The place of occurrence being near the house of the appellants has not been disputed. The report received from FSL as per Exhibit 21 and 22 shows that blood stained soil and plain soil (item 1), banka (item 2), which was used in the commission of crime, and pants (item 3), belt (item 4), shirt (item 5), baniyan (item 6) and underwear (item 7) of the deceased and the knife (MO 1) were found to be stained with blood. Dr. Anil Kumar Srivastava (PW 6) has opined that the injuries found on the dead body of the deceased could be caused with a sharp edged weapon and fire arm. The FSL report (Ext. Ka. 21) further shows that catridge (EC-1) recovered from the place of the occurrence, was fired from the country made pistol in question (1/2005). These all evidences shows that the testimonies of P.W.1 and P.W.2 are trustworthy and reliable. Hence, the plea of the counsel for the appellants in this regard is hereby rejected.
57. So far as the submission of the learned Counsel for the appellant that there is a major contradiction in the statement of P.W.1 and P.W.2 vis-a-vis the First Information Report and and statement under Section 161 Cr.P.C. regarding place and manner of the occurrence, therefore, the prosecution story is unworthy of credit, it is pertinent to mention that the present is a case where incident took place on adjoining way of the residential house of the appellants in the evening at about 4.00 pm. The presence of P.W.1, P.W.2, the deceased Hira Lal and appellants and co-convict Mool Chandra at the place of occurrence was natural. The post-mortem of the deceased Hira Lal was conducted by Dr. Anil Kumar Srivastava, who had appeared, as PW.6 and proved the injuries. The eye- witnesses P.W.1 and P.W.2 have corroborated the incident and have proved the role of convicts/appellants in causing injuries to Hira Lal. PW.1 and P.W.2 have proved the incident and the role of the different convict/appellants in their eye-witnesses account. The mere fact that there are certain inconsistencies with regard to the manner of causing injuries to Hira Lal by the witnesses as noted in the F.I.R. and as noted in the statement under Section 161 Cr.P.C., can in no manner shake the entire evidence or make the statement of witnesses unreliable.
58. The above argument of the learned Counsel for the appellants is not at all acceptable for the reason that before the Police also the role of convicts/appellants was mentioned by eye-witnesses. In their statements under Section 161 Cr.P.C. and before the Court also eye-witnesses proved the role of the appellants and presence of the appellants. Hence, the eye-witness account of witnesses proves the presence of the appellants and commission of murder by them. They have been rightly convicted under Section 302 IPC.
59. It is relevant to add here that each person being a member of unlawful assembly is guilty of offence being committed in prosecution of common object, has been held both by Apex court and High Court. The Apex Court in Chandrappa and Others versus State of Karnataka : (2008) 11 SCC 328 has laid down that it is unreasonable to expect from a witness to give a picture perfect report of the incident and minor discrepancies in their statement have to be ignored. Para 17 and 18 of the judgment is extracted as below:-
"17. It has been contended by the learned Counsel for the appellants that the discrepancies between the statements of the eyewitnesses inter se would go to show that they had not seen the incident and no reliance could thus be placed on their testimony. It has been pointed out that their statements were discrepant as to the actual manner of assault and as to the injuries caused by each of the accused to the deceased and to PW3, the injured eyewitness. We are of the opinion that in such matters it would be unreasonable to expect a witness to give a picture perfect report of the injuries caused by each accused to the deceased or the injured more particularly where it has been proved on record that the injuries had been caused by several accused armed with different kinds of weapons.
18. We also find that with the passage of time the memory of an eyewitness tends to dim and it is perhaps difficult for a witness to recall events with precision. We have gone through the record and find that the evidence had been recorded more than five years after the incident and if the memory had partly failed the eye witnesses and if they had not been able to give an exact description of the injuries, it would not detract from the substratum of their evidence.
It is however very significant that PW 2 is the sister of the four appellants, the deceased and PW 3 Devendrappa and in the dispute between the brothers she had continued to reside with her father Navilapa who was residing with the appellants, but she has nevertheless still supported the prosecution. We are of the opinion that in normal circumstances she would not have given evidence against the appellants but she has come forth as an eyewitness and supported the prosecution in all material particulars."
60. We have gone through the oral evidence recorded before the trial court and are of the view that finding of guilt recorded by trial court is based on correct appreciation of evidence. Minor contradictions and inconsistencies as pointed out by the learned Amicus Curiae for the appellants rightly have been ignored by the trial Court as we find from the evidence on record that the intention/object of the unlawful assembly was to assault and teach the victim a lesson and for that purpose they came armed with weapons immediately when the deceased along with P.W.1 and P.W.2 left from the house of the appellants, and committed the crime.
61. No doubt, in case of direct evidence and the ocular testimony of the eye-witness being found to be trustworthy, reliable and cogent, it will not be necessary for the prosecution to prove the motive for the crime. In the present case, we have already held hereinabove, that the testimony of the eye-witnesses is wholly reliable and trustworthy. Even otherwise, as per the prosecution version, the main motive behind the crime was with regard to the dispute over bidai of the second wife of the deceased Hira Lal and appellants in the instant appeal are the brothers of the second wife and at the time of the incident, the second wife of the deceased was residing at the house of the appellants. When the deceased along with P.W.1 and P.W.2 went to take back his second wife Seema, scuffle took place between appellants and their father and the deceased Hira Lal. After that deceased Hira Lal became annoyed and in an annoyed stage, the deceased Hira Lal left along with P.W.1 and P.W.2 towards his house and in the way, the appellants surrounded and committed the crime. These all establishes the immediate motive of the appellants to commit the murder of the deceased Hira Lal.
62. Considering the aforesaid, we are of the view that the prosecution has proved his case beyond reasonable doubt against appellants Kamlesh alias Ghora and Rajesh and their conviction and sentence for the murder of deceased by the impugned judgment is fully justified.
63. In view of the foregoing discussions, the conviction and sentence of the appellants Kamlesh alias Ghora and Rajesh for the murder of deceased Hira Lal by means of the impugned order dated 06.04.2009/09.04.2009 does not call for any interference by this Court.
Appellants Kamlesh alias Ghora and Rajesh are in jail and they shall serve out the sentence as ordered by the trial Court.
64. Both the above-captioned appeals stand dismissed.
65. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.
(Saroj Yadav, J.) (Ramesh Sinha, J.)
Order Date :- 07th March, 2022
A.K. Singh/Anand Sri.