Allahabad High Court
Pooran, Maharaj Singh, Both Sons Of Devi ... vs State Of U.P. on 21 April, 2004
Author: K.N. Ojha
Bench: M.C. Jain, K.N. Ojha
JUDGMENT K.N. Ojha, J.
1. Instant appeal has been preferred against the judgment and order of conviction and sentence dated 23.2.1981 passed by IV Additional Sessions Judge, Agra, in Sessions Trial No. 468 of 1979, by which appellants Pooran, Maharaj Singh, Munna and Rakesh were convicted under Sections 147 and 302 read with 149 I.P.C. and were sentenced to undergo R.I. of one year and life imprisonment, respectively. It was directed by the trial court that both the sentences would run concurrently.
2. It was reported by the Chief Judicial Magistrate, Agra that the appellant no. 3 Munna son of Pooran had died, hence the appeal filed by him stood abated as per order dated 8.1.2004 passed by this Court.
3. During the pendency of the appeal, the appellant no. 4 Rakesh absconded and he could not be arrested. Sri Ghanshyam Joshi, learned counsel for the appellants Pooran and Maharaj Singh, agreed to advance arguments for appellant Rakesh also. We have heard him and Sri A. K. Dwivedi, learned AGA from the side of the State.
4. The occurrence is said to have taken place on 9.4.1979 after 8.00 P.M. and F.I.R. was lodged on 10.4.1979 at 7.30 A.M. The place of occurrence was Arhar field of one Hariom behind Nardanand Ashram in Mohalla Devnagar of town Firozabad, police station Firozabad (South), then comprised in district Agra. The distance of the police station from the place of occurrence was about 1 1/2Kms. FIR was lodged against three accused Pooran, Maharaj Singh and Munna only. The appellant Rakesh came to light later on. He was put up for identification and he was also booked to face trial.
5. According to prosecution, Tej Bahadur Mishra PW 3 is resident of House no. 163, Street No. 3, Mohalla Mahavir Nagar, town Firozabad, district Agra (now district Firozabad). His son Vippi alias Vivekanand aged about six years had gone somewhere on 9.4.1979 at 7.30 P.M. There was fair of Mahavir Jayanti and Hanuman Jayanti on that day. Several children and ladies of the Mohalla had gone to the fair and Vippi was also insisting in the day to go to the fair. Hence it was suspected by Tej Bahadur Mishra and other family members that Vippi might to have gone to the fair with the ladies and children of the Mohalla. When the ladies and children of the locality returned back from the fair without Vippi, Tej Bahadur and his family members were disturbed and started search for him. No trace of Vipi was found in the night. In the following morning of 10.4.1979 Nathu Ram, a person of the same locality, told the informant that he had seen Vippi along with appellants Maharaj Singh and Munna going towards Nardanand Ashram on 9.4.1979 at about 7.30 P.M. On further search of Vippi in that side Santosh Kumar PW 5, Ratan Kumar and Tara Shanker, PW 9 told him that they had seen Vippi going towards Arhar field behind Nardanand Ashram along with Pooran, Munna, Maharaj Singh and two other unknown persons at about 8.00 P.M. on 9.4.1979. Bhure, PW 6 of the same locality went to Arhar field to answer the call of nature in the following morning at 6.00 A.M. He found the dead body of Vippi in the Arhar field. On getting this information Tej Bahadur and other persons of his Mohalla went to that Arhar field and identified the dead body of Vippy. It was the prosecution case that Munna, Pooran and Maharaj Singh nursed grudge against the complainant because a quarrel had taken place on 7.4.1979 between Mahesh son of Pooran with some other persons. Pooran had suspicion that it was at the instigation of the informant. Hence, Pooran had to shift his residence elsewhere and while doing so, on 8.4.1979 he had threatened to take revenge.
6. After the FIR was lodged against Pooran, Maharaj Singh and Murina, son of Pooran and two unknown persons, investigation started at the hands of I.O. C. S. Rathore, PW 12. He reached the spot, prepared inquest report and performed other activities related to investigation including the recording of statements of the informant and other witnesses. Dead body of Vippi @ Vivekanand was sent to mortuary. PW 2 Dr. B. C. Tiwari conducted the postmortem examination on 10.4.1979 at 10.00 A.M. over the dead body of Vippi and found the following ante-mortem injuries:
I. Multiple contusions and abrasions in area 14 cm x 8 cm on the front and lateral aspect of neck.
II. Abrasion 1 cm x 0.5 cm on left side of forehead 3 cm above the left eyebrow. III. Abrasion 0.5 cm x 0.5 cm on the bridge of nose.
7. On internal examination, he found that the neck vessels and muscles were lacerated and congested. Membranes and brain were congested. Pleura, larynx and trachea were also congested. Semi digested food material was present in the stomach and digested food was present in small intestine. Faecal matter was present in large intestine. In the opinion of the doctor, the death had occurred about 12 hours before due to axphyxia as a result of strangulation.
8. The I. O. arrested the accused Pooran, Munna and Maharaj Singh from near Hazari Lal Degree College, Firozabad, on 10.4.1979 and submitted charge sheet against Pooran, Munna and Maharaj Singh on 15.4.1979. The accused Rakesh was absconding. He was arrested on 22.4.1979 from near Mahatma Gandhi Balika Degree College, Firozabad and was made Baparda. His identification was done in jail. Thereafter, charge sheet was submitted against him also. After the case was committed to the Court of Sessions, accused Pooran, Maharaj Singh, Munna and Rakesh were charged under Section 147 and 302 read with 149 I.P.C.
9. Apart from medical and formal evidence, the prosecution examined PW 3 complainant Tej Bahadur Mishra, who lodged the FIR, PW 4 Nathu Ram son of Lala Ram, PW 5 Santosh Kumar, PW 6 Bhuri Singh, PW 7 Nathu Ram son of Harpal, PW 8 A. P. Srivastava, Special Executive Magistrate, Agra, who conducted identification of Rakesh and PW 9 Tara Shanker.
10. The defence was of denial.
11. After appreciating the evidence, the learned Additional Sessions Judge held that the charges under Sections 147 and 302 read with 149 were proved against the appellants. Hence the impugned order of conviction and sentence was passed.
12. The evidence against the accused appellant Rakesh was of identification. He was not named in the FIR. It was only written in the FIR that Pooran, Maharaj Singh and Munna along with two other persons were seen on 9.4.1979 at about 7.30 P.M. going with Vippi towards Arhar field behind Nardanand Ashram. After Rakesh was arrested by the police on 22.4.1979, he was put up for identification in jail on 7.6.1979. Thus, the identification parade was conducted 59 days after the occurrence which was inordinately delayed. Besides, the three witnesses, who are said to have identified Rakesh in jail were Santosh Kumar, Ratan Singh and Tara Shanker, who were residents of Mohalla Mahabir Nagar, town Firozabad. Out of them, Santosh Kumar and Tara Shanker were produced as witnesses. The accused Rakesh was also resident of the same Mohalla Mahabir Nagar, Firozabad. PW 12 police Inspector C. S. Rathore, who investigated the case stated that Rakesh accused was resident of the same Mohalla Mahabir Nagar. He used to live in lane no. 4 Mahabir Nagar, Firozabad. He admitted that the house of the accused Rakesh was at a distance of 8 or 10 houses from the house of the complainant Tej Bahadur. When the witnesses, who are said to have identified Rakesh in jail were also residents of the same Mohalla Mahabir Nagar, the identification lost its significance. It is presumed that the witnesses being of the same locality where the accused Rakesh was living, must have seen him prior to the occurrence and if he would have been seen at the time of the occurrence, he must have been named in the FIR, which was lodged by the father of the victim on the basis of the information given by the witnesses to him. This is in addition to the fact that identification parade was conducted with undue delay. The witnesses were knowing Rakesh prior to the occurrence. Rakeh had no motive to kill Vippi as there is no evidence to show any enmity between Rakesh and the family of the victim. Thus the evidence adduced against the accused Rakesh is not sufficient to prove his involvement in committing the murder of Vippi.
13. Now there remain only two accused, namely, Pooran and Maharaj Singh, who are real brothers, It is not denied that they were living in Mohalla Mahabir Nagar. Some dispute took place between Pooran accused and the complainant Tej Bahadur and circumstances took such turn that Pooran left the locality and shifted his residence elsewhere on 9.4.1979. This fact has come in the evidence of PW 3 Tej Bahadur Mishra. PW 3 Tej Bahadur Mishra, father of the deceased, also stated that earlier his relations with Pooran were cordial but their relations became strained since 6.4.1979 because Pooran made complaint to him that his brother-in-law (sala) used to cast covetous eye on his daughter. Therefore, exchange of hot talks took place and Pooran threatened Tej Bahadur of dire consequences. A new development further took place because Mahesh son of Pooran accused quarreled with some boys of the same locality on 7.4.1979 and 'marpeet' took place. Pooran had suspicion that there was hand of the complainant in the occurrence. As a consequence of all this, Pooran vacated the house on 8.4.1979 but he threatened that he would destroy the whole family of the complainant within 72 hours in such a manner that there would not even be dogs to bark. A detailed cross examination of PW 3 Tej Bahadur was done but he successfully proved the motive of offence against Pooran. However, the motive is proved against accused Pooran only because quarrel had taken place with his son and threatening was also extended by him. There is no evidence that threat was extended by the accused appellant Maharaj Singh, brother of appellant Pooran. Pooran admitted in his statement under Section 313 Cr. P. C. that a quarrel had taken place and knife injury was caused to his son. Thus, the grievance was to Pooran. Though Maharaj Singh is brother of Pooran but neither he had made any complaint about the conduct of brother-in-law of the complainant nor he had extended any threat to him of taking revenge.
14. The injuries on the body of the victim, as revealed in the ¦ postmortem examination report, show that the minor boy was strangulated and injuries in the nature of abrasions were caused on his neck, forehead and nose. The victim was only six years old at the time of the occurrence. The main grievance was to Pooran. Arhar field was at a distance of 200 or 250 steps from the residence of the complainant. A single person was capable of catching hold of him and to strangulate him. Abrasions could be caused to him during strangulation. Therefore, the age of the boy, place of occurrence, and the manner of his murder by strangulation show that the offence was committed by a person, who was aggrieved with the father of the victim. The main aggrieved person was Pooran because problem had arisen due to quarrel relating to his son and due to alleged misconduct on the part of brother-in-law (sala) of the complainant with his (Pooran's) daughter. In such circumstances, he thought that disrepute and ever present dispute could be avoided by leaving the locality and then translating his revenge into reality by murdering the innocent son of the complainant. The evidence lied by the prosecution of the boy having been last seen with Pooran and Munna is perfectly believable as would be more clear from the subsequent discussion.
15. Obviously, the evidence of murder of Vippi by Pooran is of circumstantial nature. The learned counsel for the appellant Pooran Chand has cited (2003)2 SCC 566, Subimal Sarkar v. Sachindra Nath Mandal and Ors., in which it has been held by the Apex Court that motive by itself is not sufficient to pass order of conviction. The prosecution has to establish all the links in the chain of circumstances so as to prove that in all probability only the accused person could have committed the crime.
16. Sri Ghanshyam Joshi, learned counsel for the appellants has also cited 2001 (1) JIC 357 (Allahabad), Bhuri Singh and Anr. v. State, in which it has been held by this Court that when the victim boy was aged about 8 years and the evidence of his murder was of circumstantial nature, it must be proved by cogent, succinct and reliable evidence. Distorted and scanty pieces of circumstantial evidence cannot be said to be sufficient to prove the guilt.
17. Thus, it is submitted that in this case the chain of circumstances is not proved to bring the guilt home to the accused Pooran. Each case has to be judged on its own facts and the circumstantial evidence brought on record. There are two eyewitnesses who have stated that they saw the victim Vippi going with accused Pooran. They are PW 5 Santosh Kumar and PW 9 Tara Shanker. They said that they had seen Vippi going with accused Pooran, Munna, Maharaj Singh and two others near Ganesh Glass Works on 9.4.1979 at 8.00 P.M. PW 5 is a rickshaw puller. There is evidence that complainant PW 3 Tej Bahadur owned rickshaws and was giving them on hire, but it is stated that Pw 5 Santosh had his own rickshaw. It excludes any possibility of statement being made by PW 5 Santosh Kumar under any undue influence of PW 3 Tej Bahadur, complainant. Likewise, PW 9 Tara Shanker has stated that he had gone to Majar of Sayeed for worship and was coming back. When he saw Pooran, Munna and other persons near Ganesh Glass factory, Vippi was with them. He also stated that he saw these persons in the light of electricity and moon. He did not make any query as to where Vippi was going with them because upto that time his knowledge was that relations of Tej Bahadur Mishra with Pooran were cordial. So far as Vippi going with Pooran and his son Munna, who is now no more alive, is concerned, the statement of both these witnesses PW 5 Santosh and PW 9 Tara Shanker deserves to be Believed because it is supported by strong motive also. The victim was only aged about six years. He knew nothing about the evil design of Pooran. He innocently took the company of Pooran and his son Munna. May be, he was lured for being taken to the fare where he was insisting to go in the day.
18. If murder had been committed at some other place distant to the house of the complainant, it could be said that some outsiders were involved in it or some other persons had grievance, but when dead body was found at the distance of 200 or 250 steps in Arhar field, it shows that the crime was committed by a person who was of the same locality and had grievance with the complainant Tej Bahadur.
19. A suggestion was made from the side of the accused to Tej Bahadur that he wanted to purchase Pooran's house but he sold it to another person, therefore, Pooran and his son had been falsely involved in the case. This motive does not appear to be natural or probable. No person would kill his own son in order to falsely implicate another person because he had not sold his house in his favour.
20. Another suggestion was made from the side of the accused that brother-in-law (sala) of Tej Bahadur had enmity with him, therefore, he would have got Vippi killed. The fact of enmity with his brother-in-law was denied by Tej Bahadur in his statement and there is no evidence to show enmity between him and his brother-in-law.
21. Thus, in this case Pooran had strong motive to commit this crime. He was seen by witnesses while going with Vippi. There was also evidence that Pooran had to vacate his house due to enmity with complainant. He left the house but threatened to take revenge from Tej Bahadur. He had given ultimatum of 72 hours and within this period murder of Vippi, son of the complainant, was committed. Dead body was recovered from nearby Arhar field. The moment Vippi was found missing, his father and family members started searching him. Therefore, the accused had no occasion to conceal the dead body from Arhar field, Thus the motive, evidence of last seen, light in which witnesses saw Pooran and Munna going with Vippi, injury on the body of Vippi and recovery of dead body from the Arhar field near the houses of the accused and the complainant, conclusively prove the involvement of Pooran in murder of Vippi and chain of circumstances is complete so far as he is concerned. Only underwear was found on the body of the deceased. It. means he was near his house. His neighbour Pooran lured or persuaded him to go to a solitary place in Arhar field and killed him there.
22. Now the question arises as to whether the evidence adduced by prosecution was sufficient to prove the guilt of Pooran so far as offence under Section 147 I.P.C. is concerned. It is not proved that there were at least five persons in commission of murder of Vippi. Therefore, this charge is not proved against Pooran. The other charge is under Section 302 read with Section 149 I.P.C. The charge under a substantive offence is framed along with ancillary Section 34 or 149 I.P.C. At the stage when charge is framed, it may not be clear as to who was the real person, who committed the offence. If after evidence it is found that an offence has been committed by a particular person, the order of conviction and sentence can be passed against the culprit under that section simpliciter. In the present case, Pooran alone is proved to be guilty and he can be lawfully convicted under Section 302 I.P.C. even though the charge was framed under Sections 147 and 302 read with Section 149 I.P.C.
23. In view of above discussion, this Court arrives at the conclusion that charge under Section 302 I.P.C. is proved against Pooran but it is not proved against Maharaj Singh and Rakesh to whom benefit of doubt is to be extended.
24. Appellant Munna has already died. Therefore, the appeal stood abated respecting him as per order of this Court passed on 8.1.2004.
25. In the result, the appeal is partly allowed. Only the accused appellant Pooran is found guilty of the offence under Section 302 I.P.C. for the murder of Vippi. He shall undergo life imprisonment there under. He is acquitted of the charge under Section 147 I.P.C. The accused appellants Maharaj Singh and Rakesh are acquitted of all the charges. The appeal has already abated in respect of Munna.
26. The accused appellant Pooran is on bail. C. J. M. Firozabad shall cause him to be arrested and lodged in jail to serve out the sentence of life imprisonment.
27. Copy of this judgment with record be transmitted to the lower for reporting compliance within two months.