Allahabad High Court
Daya Ram & Others vs State Of U.P. on 30 May, 2013
Bench: Dharnidhar Jha, Pankaj Naqvi
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 52 A.F.R. Case :- CRIMINAL APPEAL No. - 570 of 2006 Appellants : 1. Daya Ram & Others 2. Raj Kumar @ Pappu 3. Raj Karan @ Nankoo Respondent : State Of U.P. Counsel for Appellant : Sri R. C. Yadav, Advocate for Sri Mahaveer Verma, Advocate Counsel for Respondent : Sri A. N. Mulla, A.G.A. Hon'ble Dharnidhar Jha,J.
Hon'ble Pankaj Naqvi,J.
1. Appellant Raj Kumar @ Pappu has filed the certificate of having passed the secondary school examinations conducted by the Madhymik Shiksha Parisad, U.P. in the year,1999 with the supplementary affidavit filed by him on 23.01.2013. As per the entry in respect of age of the appellant, his date of birth was 22.08.1983 and reckoning the exact age of the appellant on the date of occurrence, the court found that he was aged 16 year and 11 days on 22.07.200o when the occurrence had taken place. The evidence produced by the appellant is admissible under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rule, 2007. We, as such, have decided not to direct the holding of the enquiry under Section 49 of the Juvenile Justice (Care and Protection of Children) Act as the exercise would be a futility as this Court could also very well look into the aspect of the case when there is an appropriate plea raised by the appellant claiming that he was juvenile on the date of occurrence.
2. Considering the relevant rules and admissible evidence, we do not have any hesitation to hold that the appellant was a juvenile on 22.07.2000.
3. The Juvenile Justice (Care and Protection of Children) Act, 2000 by virtue of its provision contained in Section 20 requires that when an appeal was pending on account of the conviction of the appellant who was a juvenile on the day of occurrence then in that case what the court was required to do was to examine the correctness of the finding of guilt of such a juvenile-appellant and in case it had found the same correctly passed then in that case, without upholding the order of sentence, this Court was required to transmit the case to the concerned Juvenile Justice Board for passing an order in the light of Sections 15 and 16 of the said act. This was why the court embarked upon the hearing of the appeal on its merits.
4. We have passed an order only yesterday, i.e., 29.05.2013 to the above effect and we have also pointed out that the appeal which was also filed by Daya Ram and Raj Karan @ Nankoo stood abated as regards them on account of their death, thus leaving the appeal surviving only on behalf of the present appellants Raj Kumar @ Pappu.
5. The appellant was tried alongwith deceased accused persons for charges under Sections 302, 307/34 and 504 I.P.C. and was held guilty of committing the above offences by the learned 3rd Additional Sessions Judge,Fatehpur in Session Trial No. 479 of 2001 by judgement dated 30.01.2006. The convicts were heard on sentence on the very day of the judgement and as regards the present appellant-Raj Kumar @ Pappu, he was directed to suffer rigorous imprisonment for life under Section 302 I.P.C. as also to pay a fine of Rs. 10,000/- else to suffer further period of one year of imprisonment. The appellant was also directed to suffer rigorous imprisonment for five years and to pay a fine of Rs. 5,000/- else to suffer further imprisonment for six months on account of his conviction under Section 307/34 I.P.C. and was to suffer rigorous imprisonment for one year besides paying a fine of Rs.500/- for his conviction under Section 504 I.P.C. and in case of default in paying the fine of Rs. 500/- he was to suffer another term of imprisonment for one month.
6. The appellant challenges the correctness of the judgement of conviction and appropriateness of the order of sentence through the present appeal.
7. The deceased-Ram Khelawan, as may appear from the evidence of P.W.-2 his wife, had three other brothers, namely, Daya Ram, Shiyaram and Shyamlal. Daya Ram was one of the appellants and his two sons, namely, the present appellant Raj Kumar @ Pappu and Raj Karan @ Nankoo were the other two convicts. The short facts which were stated by P.W.-1 Shailendra Kumar Patel, the son of the deceased-Ram Khelawan, was that while deceased alongwith his wife P.W.-2, Smt. Kamlesh Kumari and the informant Shailendra Kumar Patel were sitting at his darwaja in the light of a lantern which was burning there and were talking among themselves, the three accused persons came there. Accused Daya Ram was armed with a lathi. Appellant-Raj Kumar @ Pappu was carrying a SBBL gun licenced to his father while his younger brother Raj Karan @ Nankoo had a country made pistol in his hand. The three accused persons having come to the darwaja of the informant, started hurling abuses at him by uttering as to why he had inundated his field with water after creating a breach into the canal, which had resulted in complete immersion of the standing paddy plants. The informant stated that he had forbade them to abuse and further warned them to be cautious in choosing words, upon which accused Daya Ram is said to have remonstrated his two sons to kill the informant and others and the three accused moved forward with an intent to assault.
8. The old father of the informant, that's, deceased-Ram Khelawan came forward to save his son (P.W.-1) and stated to the accused as to why they had become hell-bent to assault his son, who had done no harm to them hearing which Daya Ram again remonstrated his sons to kill deceased-Ram Khelawan first, upon which this appellant Raj Kumar @ Pappu is said to have fired the shot from the SBBL gun he was carrying at deceased-Ram Khelawan. The deceased-accused-Raj Karan @ Nankoo who was armed with a country made pistol, fired a shot targeting the informant but he missed the target and the informant did not sustain any injury. Having received the shot, deceased-Ram Khelawan fell on the path way running in front of his house.
9. The informant stated that the incident was seen by his mother Smt. Kamlesh Kumari (P.W.-2), his grand father Siyaram and other persons, like, Shyam Lal, Shiv Nath and Ram Sevak, who had also assembled after having heard the sound of gun shot. They challenged the accused persons, who made good their escape from there.
10. Written report, Ext.Ka.-1, was presented by P.W.-1 containing the above story before P.W.-5 constable Umashamker Misra to register the case by drawing up the F.I.R. Ext. Ka.-14. P.W.-5 also prepared the copies of the written report and the F.I.R. besides making entries of the contents of those documents in general diary on 22.02.2000.
11. The injured Ram Khelawan was rushed to the hospital as appears from the evidence of P.W.-4, S.I. J.P. Singh who had taken up the investigation of the case and it appears that initially the case was registered only under Section 307 I.P.C., but after the death of deceased-Ram Khelawan section 302 I.P.C. was added up into the F.I.R., subsequently. P.W.-4 inspected the place of occurrence and during that course he seized the blood stained earth by preparing the seizure memo Ext. Ka.-5. P.W.-4 also prepared the site plan regarding his findings and it appears from his evidence as also from Ext. Ka.-6 that during the course of his inspection, he found empty of a cartridge as per description contained in Ext. Ka.-6 and he seized the same by preparing the above document. He sealed it. P.W.-4 also seized the SBBL gun licensed to the deceased-accused Daya Ram alongwith few empty cartridges by preparing seizure memo Ext. Ka.-7. The description of the arms and ammunition had duly been given in the respective seizure memo Ext. Ka.-7. He sent the seized empty cartridge found at the place of occurrence and seized SBBL gun to the ballistic expert for eliciting his opinion as to whether the cartridge, empty of which had been found at the place of occurrence, had been fired from a gun. The report of ballistic expert had not been marked but the same is available as part of the records as may appear from page 10 of the paper book. As such, we direct the same to be marked as an Exhibit in exercise of our powers under Section 293 Cr.P.C. read with Section 391 Cr.P.C. The Investigating Officer recorded the statements of witnesses and also collected the copy of the post-mortem examination report and after completing the investigation, sent up the accused persons for their trial which ended in the impugned judgement.
12. The defence of the accused was multifold. One of the difences was that the deceased had been murdered by some of his enemies whom he had earned on account of being one of the members of home-guard and also on account of being posted in the police station. The other part of the defence appears stated by this appellant in his statement under Section 313 Cr.P.C. which is available at page 50 of the paper book. The appellant was stating that the sister of the informant, that's, the daughter of the deceased, was married to one Rakesh Patel of village Chitaura, who had been deserted by her husband and the said Rakesh Patel was to get himself married to the 'sali' of the present appellant, which marriage was attempted to be stalled by the informant, who could not succeed, which created an acrimony between the parties so much so that after his father had been killed by some unknown person, a false case was instituted to put pressure upon the accused persons.
13. In support of the prosecution charges, five witnesses were examined. We have already noted that P.W.-1 Shailendra Kumar was the informant of the case and was the son of the deceased and had given an eye witness account of the incident. P.W.-2, Smt. Kamlesh Kumari, was also an eye witness to the occurrence. P.W.-3, Y. C. Katiyar had held post-mortem examination on the dead body of Ram Khelawan and had issued the report Ext. Ka.-3. We have already noted that P.W.-4, S.I. J.P. Singh was the Investigating Officer of the case and P.W.-5 Umashanker Misra was the moharrir posted in the police station who drew up the F.I.R. and created other documents and also made the relevant entries in the general diary.
14. Sri R.C. Yadav, Advocate appearing on behalf of Sri Mahaveer Verma, learned counsel for the appellant was submitting that the deceased being a home-guard had earned many enemies and anyone of those of his enemies could have killed him and the accused persons were falsely implicated. It was next contended that the very evidence of the Investigating Officer P.W.-4 indicated that Daya Ram alongwith his two sons was found very much present at their house and that clearly indicated their bonafide and innocence as it was not expected that after having committed the murder, they will still be sitting at their darwaja in the manner as was found by P.W.-4 and that amply indicated their innocence. The motive was very innocuous as mere inundation of the field by water would not have created such an acrimony or heart burn to the accused persons so as to impel them to pick up guns to go to the house of the deceased to shoot him dead. It was, lastly, contended that the injury which was found by Dr. Y. C. Katiyar appears not possible from a distance and from the gun which was used allegedly in causing it.
15. Sri A. N. Mulla, the learned A.G.A. was submitting that in a case of direct evidence, motive looses most of its importance. The witnesses were not inimical and a home-guard was never associated in investigation of a case so as to earning ill-will of anyone so much so as to be targeted and killed. Submission also was that there was no enmity of the class which could be influence the informant and his witnesses to implicate the set of accused persons who were claiming their innocence leaving aside the real culprits. The competence of witnesses was beyond doubt and they appeared telling the truth and the charges were proved to the hilt.
16. We have very often pointed out that the rural life has its own peculiarity and persons who live in villages are very deeply influenced by incidents which may appear to an urbanite trifle due to the attachment and dependence of rural persons on agricultural operations. The amount of labour and economy which is required to be invested in agricultural operations are valued past assets which are expected to generate future economy for the subsistence of a farmer and a mere damage of few plants, which might be planted in a field to grow grains are often found generating such hostilities between the proprietor of the land and the person who is found damaging the crop that acrimony runs very high. Paddy is known always susceptible to excess of water in spite of the fact that it thrives on water. Paddy plants if submerged in water for a few days, are known to get destroyed and, as may appear in the present case the field which was measuring 3 Bighas as may appear from the evidence of P.W.-1, was submerged by water on account of suspected breach which was created by P.W.-1, could have caused substantial damage and loss to the accused persons. P.W.-1 had stated in paragraph 4 about the situation of the different fields beside the field which was belonging to the accused persons and which was lying east of the field of the informant. Three Bighas of land transplanted with paddy if submerged on 22nd of July of any year would leave little chances of survival of plants and the damage which was expected on that account could have run tempers definitely to such an height as to impel the accused persons to pick up guns to go to the darwaja of the supposed-heaper-of-the-calamity to teach him a lesson, specially when the plants were merely 8-inch-saplings. In our opinion, the motive could not be said to be less serious in rural context. We do not have any doubt that the very reason, which was impelling the accused persons to go to the darwaja of the deceased after having fully armed themselves, was very much established by the evidence and could not be said to be innocuous or trifle.
17. Submission was made by the learned counsel for the appellants also on the sufficiency of light at the place of occurrence. It was pointed out that a mere lantern which was burning at the darwaja of the deceased could not illuminate such an area as could be facilitating appropriate identification of the accused persons. Besides, it was contended that the place where the lantern had been put, had not been shown in the site plan. We had many reasons to hold that the identification could have been very easy for the witnesses who were non-else than the full brother of the deceased and his nephews. They were not alien. They had not come from a place, which could have made identification impossible. They were the very part of the same family which had separated in satellite families and who probably were residing side by side in the same village. Even in darkness, the very body posture, gait and the appearance by shadow could have facilitated the picking up of the identity of the accused persons. More-over, it was not that the lantern was not there. P.W.-1 had stated that he had produced the lantern before the Investigating Officer and had shown the same to him. P.W.-4 the Investigating Officer also stated that he had found the lantern and had also indicated a place by putting up letter "E" in the site plan but missed in describing the presence of lantern at place E in the index of site plan. We do not have any material even by way of a suggestion either to P.W.-1 or to P.W.-4 that the lantern was not there. Nonetheless, we have already noted that the close relationship between the parties, the situation of their residence as also the situation of their field could not have made it impossible, at any rate, to pick up the identity of the accused persons properly. Not only the above, there were some exchange of words, like, hurling of abuses and the forbidding, which was done by the informant, and on the intervention of the deceased the accused persons had stepped forward to open up the fire. In our opinion, it must have been of such a duration that the identification had been quite easy. Nonetheless, we have already noted the argument of learned A.G.A. as to why the real culprits should be left aside so as to be substituted by innocence persons, who were non-else than the very family members of the deceased.
18. The deceased was a member of the home-guard, this is undisputed. P.W.-4 the Investigating Officer, who was also the officer-in-charge of the police station, had also stated that the deceased had been attached to his police station. A member of the home-guard, to our knowledge of the Cr.P.C. regarding the steps in investigation, could be used in controlling the law and order situation for maintaining peace if such situation arises. But, when it comes to participating in any part of the investigation, it is always the police, as per definition of the term, who has the power under the established law and rules of the police Act or the relevant Police Manual or instructions to take part in such investigation. In the state of U.P., the home-guards are known also to be deployed for controlling the traffic by being deputed at different traffic posts. The very duty which is assigned to a home-guard and the duties which are performed by a regular police personnel, could not give rise to any reason to anyone to treat the deceased as his enemy. The very first premise, upon which we dismiss the contention of the learned counsel for the appellant appears also borne out and appears supported by circumstance and service conditions of police personnel. More-over, the reason for false implication, which was stated by the present appellant, was not that which was submitted before us rather it was altogether a different fact that the sister of the informant had been deserted by her husband and that man Rakesh Patel was likely to get married to the Sali of the present appellant, which was being resisted by the informant and, as such, the false implication for putting criminal pressure was made. This statement of the accused also makes it unacceptable that any one of the enemies of the deceased could have killed the deceased. In fact the record does not give us any reason to entertain any option, even a slim one, to imagine such a situation.
19. The next contention was regarding the innocence of the accused persons on account of being found present on the very next day of the occurrence at their house. The evidence of P.W.-4 in paragraph 3 indicates that the three were found sitting at their house and they were arrested there with the recovery of the gun. We may point out that the present-day society is formed by complex characters, who are very often found committing serious offences for very trifle reasons. Not only that, we very often find that persons, who had committed serious offences like, rape or murder are often found roaming around into the streets in public view without fear. This is one important development, which has taken place on account of many reasons. Sometimes the police is wanting in acting with full authority to apprehend such a person and most often in the present-day circumstance, criminals are being directed by higher ups. It may not be a case with the present set of accused persons but fall in standard of policing, could be one reason which could have emboldened the accused persons in spite of having committed the murder of the deceased, to remain sitting at their house. We do not find it a circumstance which could indicate that they were innocent and, above all, we do not treat it as strong as a circumstance as to reject the whole prosecution case, which otherwise, in our opinion, has been established by admissible reliable evidence.
20. P.W.1 and P.W.-2 are eye witnesses to the occurrence. It is true that they were the son and wife of the deceased but their presence at the scene of occurrence was natural. They could not be treated as persons who could not have remained present at the scene of occurrence. It was the darwaja of the deceased, which was equally a place of the residence of the two witnesses. P.W.-2 had stated that the three were sitting together and were discussing further plans of transplanting paddy. It does not appear unusual in a farmer's family in the month of July that they should discuss further plans of transplanting their paddy. It was not such a place where any other person from the neighbourhood should be supposed to be present and that too, late in the night by standard of rural life where 9-00 pm could be a very late time in the evening.
21. There was no other reason as to why the two persons should falsely depose against the set of three accused persons, who were none else than the very part of the same family, of course, living separated from the informant. Both P.Ws. 1 and 2 had stated that the three accused persons came and after Daya Ram had remonstrated, this appellant Raj Kumar @ Pappu had fired the shot as a result of which deceased Ram Khelawan fell on the ground and started bleeding.
22. By reference to the evidence of P.W.-2 in paragraph 5 at page 18 of the paper book, it was contended by learned counsel for the appellants that this appellant-Raj Kumar @ Pappu is said to have fired the shot from a single barrel gun at the deceased but in cross-examination P.W.-1, the informant appears naming Raj Karan @ Nankoo as the person who had fired a shot.
23. We have examined the contention and we also had the opportunity of looking to the reasons assigned by the learned trial Judge who was also being addressed in the same term. The discussion of the above argument has been made by the learned trial Judge in paragraph 39 of the impugned judgment and after having gone through the discussion and reasons assigned by the learned trial Judge, we only want to adopt the reasons and analysis given by the learned trial Judge. The very prosecution case was that it was this appellant Raj Kumar @ Pappu who was carrying SBBL gun, which was licensed to his father, in his hand and on being remonstrated that Ram Khelawan be killed first, he fired a shot at him. It is true that in evidence, P.W.-1 had stated that the gun was fired by Raj Karan @ Nankoo as we have just noted in paragraph-5 at page 18 of the paper books, but the name of Raj Karan could not be depicted into the scheme of the whole prosecution story when we consider it in terms of the weapon which was assigned to him. Raj Karan @ Nankoo was assigned a country made pistol and he was alleged to have fired at the informant. He was never said to have fired a regular gun. This was the fallacy, which could have been picked up even by an untrained man in law practice. The weapon gun was very much stated by the informant in his cross-examination at page 18 of the paper book and it appears to us, as it occurred to the learned trial judge, that either it was an overhearing by the learned trial judge in recording the evidence or it could be a slip in attention of P.W.-1 that he was misnaming Raj Kumar @ Pappu as Raj Karan @ Nankoo. This we find more probable due to the reason that P.W.-2 his mother was cross-examined on the real official name of Raj Kumar @ Pappu and Raj Karan @ Nankoo who was being named by P.W.-2 as Pappu and Nankoo the witness was very honestly stating that she did not know as to what was exactly were the real names of those two accused persons. We have noted at some stage of the present judgement that the rural life has its own peculiarity. We simply want to note that a rural, illiterate-person-and if she happens to be a lady-could be found quite a different personality from the urban lady who is well-versed on account of exposer to many things. In rural areas a man may not be known by his real name till his death. He could be known only by the name, which is his nick name. This appears to be a case with the case in hand.
24. The merit of evidence of the two eye witnesses could not be minimised. They appear having truly stated as to what had transpired in that night when the three accused person furiously came to the house of the deceased and this appellant had fired and killed him.
25. In the above connection, we must notice the submission of the learned counsel on the prospect of the injuries caused by a single barrel gun. The submission was that both the eye witnesses had stated that the shot was fired from a distance of about 6 or 7 ft. It was contended that P.W.-3 the doctor had found the gun shot wound of entry measuring 12cm x 8cm x 4cm. Submission was that the dispersal could have been spread up and could not have localized into an area of almost 12cm. The argument appears missing the length of the gun. The shot was fired from a distance of 6-7 ft. and that distance should also cover the distance of a gun and if we imagine the barrel position of the gun then we may have no hesitation in noting that the dispersal could be as localized as to be confined into an area which was found by the doctor. The other limb of the argument on the same point was again with reference to the evidence of the doctor P.W.-3 who was giving an opinion as if the wound might also be caused by detonating a bomb. What we simply want to record is that P.W.-3 was not honest in making the above statement, who had come into the witness box to assist the cause of justice. If the bomb had been detonated, no one could find a wad, it may be found only when a regular cartridge was fired by any firing mechanism; be it a regular mechanism or be it a spurious mechanism. P.W.-3 had given evidence that he had found one wad-piece and ten pillets from the wound of entry during holding post mortem examination. To our dismay, we are of the view that the doctor was predetermined to help out the accused persons by rendering an opinion in cross-examination which could have given a different manner of occurrence. We record our disapproval of the manner in which the medical-man (P.W.-3) was deposing in court and we restrain ourselves from further passing any observation or direction in respect of his conduct. We are satisfied that the manner of occurrence and the story which was told by the witnesses, were fully corroborated by the evidence available on record and the conviction of the appellant under Section 302 was appropriately recorded which could have the only result on the basis of evidence available to the learned trial Judge.
26. However, as regards the conviction of the appellant under Section 307/34 I.P.C., we have some reservation in upholding and sustaining the order of sentence in that behalf. The allegation and evidence is that a shot was fired by the deceased-accused-Raj Karan @ Nankoo by a country made pistol and the shot had missed the target. Three persons were sitting at the darwaja and they had been shot at. In the examination in chief, it was stated that the shot had missed the target. In our opinion, it must have hit the background of the wall or any other place of darwaja. But there is no finding in that behalf recorded by the Investigation Officer. Our experience of such cases indicate that even if there is no part played by an accused or a family member, he is assigned a role so as to be dragged into criminal proceedings. We feel that Raj Karan @ Nankoo was probably targeted with such an intent. The conviction and sentence of appellant Raj Kumar @ Pappu under Section 307/34 appears not sustainable and that part of the judgement, in our opinion, is fit to be set aside.
27. Likewise, the appellant was convicted also under Section 504 I.P.C.. Section 504 of the I.P.C. reads as under:
" 504. Intentional insult with intent to provoke breach of the peace--
Whoever intentionally insults, and thereby gives provocation to any person intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or with both."
28. From a bare perusal of the above provision, we find that there are several ingredients which constitute the offence under Section 504 I.P.C., the first, being intentionally being insulted by any person and the second, being that such intentional insult should provoke anyone knowing him to break the public peace or to commit any offence. Thus, there are at least three ingredients of the offences which are required to be constituted by appropriate and admissible evidence. In spite of our anxious search, we could not find out a single line of evidence that the hurling of abuses was intentionally done to give a provocation to the informant and that the informant due to such provocation was to commit certain acts to break the public peace or to commit any offence. The law is trite that if an accused has to be convicted of an offence, all ingredients of such an offence must be established by admissible evidence to the hilt. If any of the ingredients, out of many, is not established then the offence could not be said to be proved to the hilt and the charges in that behalf has to fail.
29. In the above view and in the light of the evidence, we find that the conviction of the appellant under Section 504 I.P.C was also not in accordance with law and as such not sustainable. The appellant is acquitted of the charges under Section 504 I.P.C.
30. In view of the above discussion, while upholding the conviction of the appellant under Section 302 I.P.C., we acquit him of the charges under Section 307/34 and 504 I.P.C.
31. Section 20 of the Juvenile Justice (Care and Protection of Children) Act 2000 requires that if the court has upheld the judgement of conviction, which was passed in respect of the juvenile then it could not pass any order of sentence. The said Act requires that in such a case the whole records of the case shall be transmitted to the concerned Juvenile Justice Board for passing appropriate order of sentence upon such convicted juvenile in the light of sections 15 and 16 of the said Act.
32. In view of the above position, we direct that the whole record of the trial court be transmitted back to the learned District Judge, Fatehpur who shall ensure that the same is placed before the Juvenile Justice Board, Fatehpur who shall proceed to pass the order of sentence in the light of provisions of Sections 15 and 16 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
33. The appeal is dismissed with above direction. The appellant is in custody. He shall be released forthwith as he had served more than three years which is permissible statutory period of sentence, which could be passed under Section 15 of the said Act and, as such, we direct him to be released forthwith if not wanted in any other case.
34. We direct him, further, to appear before the Juvenile Justice Board as and when he is required by the Board and he shall give an undertaking before the Court, which issues the release order in connection with the present case.
(Pankaj Naqvi,J.) (Dharnidhar Jha,J.)
Order Date :- 30.5.2013
YK