Allahabad High Court
State Of U.P. vs Ram Kishan And Anr. on 23 July, 1990
Equivalent citations: 1991CRILJ895
JUDGMENT S.K. Mookerji, J.
1. The VII Additional Sessions Judge, Meerut acquitted Ram Kishan and Balbir accused, who were charged for offence, Under Section 302/34 of the Penal Code and convicted Suresh Accused, under Section 302 of the Penal Code for committing the murder of Narendra Singh and sentenced him to imprisonment for life. Against the foresaid order of acquittal passed by the VII Additional Sessions Judge, Meerut in favour of Ram Kishan and Balbir accused, the State of U.P. has filed Government Appeal No. 2129 of 1978. By the same judgment, the VII Additional Sessions Judge, Meerut has convicted Suresh accused, Under Section 302 of the Indian Penal Code and sentenced him to imprisonment for life and, therefore, Suresh has filed an appeal against the said judgment. His appeal number is 2060 of 1978. Both the above appeals (Nos. 2129 of 1978 and 2060 of 1978) arise out of the common judgment in Sessions Trial No. 341 of 1977 passed by the VII Additional Sessions Judge, Meerut dated 18th May, 1978. Both the aforesaid appeals by the State of Uttar Pradesh and Suresh have been connected and re-disposed of together by this judgment.
2. The prosecution case is disclosed in the written report submitted by P.W. 2 Dharm Pal, uncle of deceased Narendra Singh on 6-6-1977. The occurrence took place on 6-6-1977 at about 6-30 p.m. It is necessary to point out that P.W. 2 Dharm Pal is not an eye witness, but he came to know about the occurrence from the eye witness P.W. 5. Brahm Singh. According to this written report, Ext.Ka 4, Narendra Singh deceased was caught hold by Ram Kishan accused and Balbir accused on his way to his field near the sugarcane field of Vijay Singh and the accused Suresh gave him a blow from behind with a sharp edged weapon. It is also stated that on alarm raised, P.W. 3 Jeet Singh. P.W.4 Hukam Singh and P.W. 5 Brahm Singh were attracted and witnessed the incident. The assailants made their escape and since the condition of deceased Narendra Singh was precarious, he was removed to P.L. Sharma Hospital, Meerut and in the hospital, the Doctor declared him dead. The First Information Report was submitted on 6-6-1977 at 23.55 hours at police station Railway Road, Meerut, which is said to be nearest police station from the aforesaid hospital. As the case related to police station Jani, the First Information Report along with the copy of General Diary was sent to police station Jani where it was received on 7-6-1977. At this stage, it is relevant to point out that the age of accused Ram Kishan has been shown as 70 years.
3. It is pointed out that P.W. 6 H.C. Bhanwar Singh has stated that he was posted at Police Station Jani and received the copy of the First Information Report and general diary through Constable Man Singh 7-6-1977 and made general diary entry Ext.Ka-5. On 8-6-1977 Sub-Inspector Razi Haider submitted two sealed packets relating to this incident and made general diary entry. He further proved that Balbir accused lodged First Information Report on 6-6-1977, and proved general diary entry Ext. Ka-7. He sent Ram Kishan and Balbir for medical examination through constable Madan Lal. Constable Madan Lal disclosed that the Hospital was closed, therefore, medical examination could not be conducted. According to him, there was one bruise on the nose of Ram Kishan and there was no other injury available on the person of these two accused. Ram Kishan was directed to get himself medically examined on the following day. He was arrested on 8-6-1977 P.W. 9 Umrao Singh, Constable, proved the other First Information Report lodged by accused Balbir against Hukam Singh, Kripa and others on 6-6-1977 and the same is Ext.Ka-21.
4. P.W. S.I. Jagdish Prasad stated that he was posted as Sub-Inspector, police station Railway Road, Meerut and received information at about 11 p.m. about the death of Narendra Singh. He went to P.L. Sharma Hospital, Meerut at 9 a.m. on 7-8-1977 and conducted inquest proceedings and proved inquest report Ex.Ka-7 and also photolash and challan-lash Ext.Ka-2 and Ka-3. He sent the sealed dead body for post-mortem through constable Roop Ram and Kripal Singh. The post-mortem report is Ex.Ka-18.
5. Dr. O.N. Srivastava conducted postmortem examination of the deceased Narendra Singh. The Doctor found a punctured wound with clear cut margin on the back of the chest left side 11 cm. x 4.5 cm x chest cavity deep. Scapula bone under it was also cut. On internal examination, muscles of the neck were found cut, the left side of the lungs was also found cut. The pericardium was full of blood and the pleura was also found cut from left side. According to the Doctor, the death was due to shock and haemorrhage as a result of the injuries sustained.
6. P.W. 2 Dharmpal proved the written First Information Report. Balbir accused is the son of Ram Kishan accused and accused Suresh is the son of Mahabir, the second son of Ram Kishan accused. Ram Kishan has five sons. Both the parties are agriculturists and their fields are adjacent separated by a Nali in between. Their fields used to be irrigated through the said Nali. He stated that at about 4 p.m. on the date of occurrence Narendra Singh deceased along with Kripa Ram had gone to visit their field, which is adjacent to the field of Ram Kishan. Narendra Singh was the son of Kripa Ram, who is the brother of Dharm Pal, P.W. 2. They found that the three accused were digging earth from the said Nali. On their protest, there was exchange of abuses between the parties and it is stated that Narendra Singh, deceased, had abused the accused more in comparison to others. They, however, stopped the accused from putting earth on their field. They had, therefore, returned back. At about 7 p.m. Brahm Dutt, son of Jai Pal, another brother of the complainant, approached him and informed that the three accused had assaulted Narendra Singh, deceased, whose condition was precarious. He rushed to the spot and came to know that Kripa and others had taken Narendra Singh, deceased, to Meerut Hospital in a tractor of Kalu Ram as his condition was serious. Thereafter, he immediately went to the hospital in his tractor and came to know that Narendra Singh had died. The condition of his brother Kripa was also bad due to the death of his son. Brahm Singh, P.W. 5 an eye witness was also present on the spot. Dharm Pal came to know about the details of the occurrence from him and, thereafter, a written report was submitted at police station. P.W. 3 Jeet Singh P.W. 4 Hukam Singh and P.W. 5 Brahm Singh are eye witnesses of the fact and supported the incident. P.W. 7 Ram Chander Sharma investigated the case of both the parties and after completing the investigation, submitted the charge-sheet against all the three accused persons. On behalf of the prosecution certain affidavits were filed to prove some documents. The prosecution further had tendered a copy of the bail application, Ext.Ka-22 moved by Ram Kishan on 25-6-1977. In this bail application, it was urged that on 6th June, 1977, there had been exchange of hot words between Hukam Singh and Kripa on one side and Balbir on the other side and in the evening at about 7 p.m. when he and his son Balbir were inside their Gher, Hukam Singh, Jai Pal, Dharm Pal, Satyabeer and Narendra aremed with lathi and damda came to the Gher and assaulted them. Balbir intervened and was also assaulted. Narendra, who was armed with a pharsa, mounted a blow on the head of Balbir to kill him, who raised an alarm and Suresh in order to save his uncle used a kinfe. A report was also lodged at about 10 p.m. on 6-6-1977 at police station Jani, Balbir accused was medically examined by local Doctor and his injuries were noted. Ram Kishan was taken into custody next morning and was medically examined in Jail with six injuries. It will also be relevant to point out that the allegations made in the First Information Report, Ext. Ka-21, by Balbir where it was alleged that they were digging Nali. Hukum Singh and Kripa protested against their act and they stopped him for digging the Nali. At about 7 p.m. Hukam Singh, Kripa, Jaipal, Dharm Pal, Satya Pal and Narendra armed with lathi and phawara entered their house and assaulted them. Narendra received phawara injuries. The prosecution further tendered a copy of the complaint filed by Balbir accused, which is Ext.Ka-23.
7. The accused were also examined. They admitted that their plots are adjacent to the complainant party separated by a Nali in between. The rest of the allegations was denied by them. Ram Kishan and Balbir accused, however, admitted that Balbir had lodged a report, Ext.Ka-21, and also filed complaint, Ext. Ka-23, but Suresh expressed his ignorance about the bail application moved on behalf of the accused Ram Kishan. Suresh gave out his age as 16 years. The accused examined D.W. 1 Dr. V. P. Sharma, Medical Officer, Public Health Centre, Jani, who examined Balbir accused on 7-6-1977 and found the following injuries:
1 An abrasion 18 x linear on the back of right shoulder.
2. A linear abrasion 2" on the left side back" in side the medial of scapula.
3. A contusion 1" x 1/2" on the back of right shoulder.
4. A contusion 14" x 3/4" on the back of right hip.
5. A contusion 3/4 x 1/2" on the right calf.
6. An abraded contusion 1" x 1/2" on the inner side of left ankle joint.
7. An abrasion 1" x linear on the back of right leg lower part.
According to the Doctor, the injuries Nos. 1, 2 and 7 would have been caused by friction and rest were caused by blunt weapon. The injuries were on non vital part of the body and could have been self inflicted. The trial court was shown from the record brought by the Doctor that there were irregularities in the entries made by him in the said record. Chances of manipulations could not be ruled out and, therefore, the trial court also held that no reliance can be placed on the statement of the Doctor, who had left blank, pages in his register to fill up the register on his own sweet-will. The trial court rightly held that no reliance could be placed on the Doctor nor the injury report prepared by him could be accepted.
8. The accused further examined D.W. 2 Dr. C. Lal, Medical Superintendent, District Jail, Meerut, who examined Ram Kishan in District Jail on 9-6-1977. He found six injuries on the person of Ram Kishan. Four are said to be contusion, one swelling and one bruise. The trial court also came to the conclusion that these injuries could have been self inflicted. The trial court after considering the materials on record also came to the conclusion that no reliance can be placed on D.W. 2 Dr. C. Lal, Medical Superintendent, District Jail, Meerut. We fully agree with the findings of the court below. Thus, from the evidence of two Doctors produced on behalf of the accused, it is clear that their statements are not only unreliable, but the injuries mentioned on the bodies of Ram Kishan and Balbir could be self inflicted. The defence also examined D.W. 3 Jagdish Kumar, who stated regarding the running of water in the Nali in question. He also brought the register, which contained cutting and in this view of the matter the trial court also rightly did not put reliance on his statement. The accused further produced Ext. Kha-2 to Kha-5. Kha-2 is the copy of the application alleged to have been moved by Hukam Singh and others in Civil Misc. Writ Petition No. 2482 of 1974 Ram Kishan v. Deputy Director to show that they sought impleadment in the writ petition and were not on cordial terms with the accused.
9. After careful consideration of the entire facts on record, the trial court came to the conclusion that there was motive for the crime as the parties had already raised great differences on the question of Nali. However, it has to be noted that the motive is not very important normally and in absence of motive if the case of the prosecution is proved otherwise by the reliable eye witnesses, then conviction can always be recorded.
10. The trial court, no-doubt, put reliance on the prosecution eye witnesses, but preferred to give benefit of doubt to accused Balbir and Ram Kishan. It would be necessary to point out that First Information Report may not contain every point, but if a vital fact was not given in the First Information Report and such fact finds place in the statements of prosecution witnesses, then such additional facts stated by the eye witnesses have to be taken as an improvement and such part of the statement has to be discarded. In a case, Under Section 302 of the Penal Code, if proved, serious consequences shall follow. The accused will be sentenced either to death or to imprisonment for life. In such a serious situation, an embellishment from the facts given in the First Information Report subsequently in the statements of the witnesses of the prosecution have to be considered seriously. In case, there is an omission of important fact in the First Information Report, the benefit shall go to the accused persons. In the present case, Dharam Pal had filed the First Information Report. No doubt, Dharm Pal, P.W. 2, is not an eye-witness, but it is admitted that he came to know about the details of the occurrence from Brahm Singh, P.W. 5, an eye witness and Brahm Singh, P.W. 5, also corroborated this part of the statement. In the First Information Report, it is stated that accused Ram Kishan and Balbir had caught hold of deceased Narendra Singh and accused Suresh, son of Mahabir, inflicted injuries on the deceased with some sharpedged weapon from behind. The fact that accused Ram Kishan and Balbir caught hold of the deceased and accused Suresh inflicted injuries from behind is an important and vital fact.
11. Now reverting to the evidence on record, it appears that P.W. 3 Jeet Singh, an eye witness, had stated in his examination-in-chief that accused Ram Kishan and accused Balbir had caught hold of the deceased Narendra Singh and accused Suresh was standing there. Narendra Singh deceased was trying to free himself when accused Ram Kishan and Balbir had told accused Suresh to assault Narendra Singh with Kirach (Sharp-edged weapon) and, thereafter, Suresh accused took out Kirach from his Pajjama and inflicted injuries on Narendra Singh deceased. Similarly, P.W. 4 Hukum Singh, an eye witness has also made similar statement that accused Balbir and Ram Kishan incited accused Suresh to give a blow by Kirach. On the above facts, it is clear that both Jeet Singh, P.W. 3 and Hukum Singh, P.W. 4, had introduced new fact to the effect that accused Balbir and Ram Kishan had incited Suresh accused to inflict the fatal blow by Kirach to the deceased Narendra Singh, which was not mentioned in the First Information Report. It is relevant to point but that Ram Kishan accused was 70 years old and it is difficult to believe that he had taken active part of catching hold of Narendra Singh deceased. Further, from the post-mortem report, it is clear that accused Narendra Singh had suffered no other injury except one caused by Kirach. There is no averment whatsoever against accused Balbir or Ram Kishan in First information Report regarding their participation in the crime except that they had caught hold of the deceased. Their presence of the scene of the occurrence and taking active part in the crime, as alleged by the prosecution, are doubtful. The trial court has given both accused Ram Kishan and Balbir benefit of doubt after hearing the counsel for the parties examining all the facts and circumstances and materials on record, we upheld the findings of the trial court and we are also inclined to give benefit of doubt to both accused Ram Kishan and Balbir. In view of the above finding, the Government Appeal No. 2129 of 1978 is dismissed and the order of acquittal passed by the court below is upheld.
12. Regarding accused Suresh, the trial court has accepted the evidence recorded on behalf of the prosecution and has convicted him, under Section 302 of the Penal Code and sentenced him to imprisonment for life. Learned counsel for accused Suresh mildly argued that Suresh is also entitled to the benefit of doubt. His main argument was that the court below has recorded a finding that Suresh accused is a young boy of 16 years and, therefore, he is entitled to the benefit of U.P. Children Act. Regarding the merit of the case against Suresh accused, the trial court has dealt with each and every point raised on behalf of accused Suresh. The trial court by a detailed process of reasonings has also rejected the argument of the defence on behalf of accused Suresh. We fully agree with the findings recorded by the trial court and also come to the conclusion that accused Suresh is guilty of offence punishable Under Section 302 of the Indian Penal Code. No doubt, all the witnesses belonged to the same family and there was a motive for the present occurrence. Mainly, because the witnesses are related to each other is not enough to reject their testimony. The eye witnesses had fully established the case of the prosecution and they are held to be reliable as far as Suresh is concerned. The statements of the witnesses cannot be discarded merely on the ground that they are related or because one of them had applied for being impleaded in the litigation of the accused. The statements of the witnesses were dealt with great caution and, therefore, the findings recorded by the trial court are quite just and proper. The Investigating Officer found blood on the spot, as alleged by the prosecution, therefore, the place of occurrence cannot be disputed." Not mentioning the name of the weapon in the First Information Report is not enough to create any doubt in the prosecution case". From the evidence on the record, it is quite clear that the First Information Report was not ante timed and ante dated nor it could be held that the same was filed after due consultation and deliberation. It is to be noted that Kripa, father of the deceased, arrived at the spot and asked his son as to how he has sustained his injury and deceased Narendra Singh stated the incident. Kripa has not been examined in this case and, therefore, such statement of Kripa cannot be taken as dying declaration. It is also necessary to point out that the above statement made by Narendra Singh deceased to his father, Kripa, had not even been mentioned in the First Information Report. This is an important fact and should have found place in the First Information Report. In this view of the matter, the story that Narendra Singh deceased has spoken about the occurrence to Kripa, his father, naming the accused cannot be accepted and has to be totally ignored The accused Suresh is not entitled to raise an argument of self defence in his favour. This argument has also been rightly rejected by the court below and we fully agree with the trial court. The trial court convicted accused Suresh, Under Section 302 of the Indian Penal Code and while considering the question of his sentence had observed "considering the facts that Suresh is a young boy of about 16 years and further he has inflicted only one blow which has proved to be fatal, a lessor punishment is desired. In the instant case, accused Suresh is thus liable to be sentenced to imprisonment for life only for offence under Section 302 I.P.C." Learned counsel appearing for accused Suresh had urged that once the trial court had come to the conclusion that Suresh was 16 years of age, he could not have been sentenced to any term of imprisonment. We may point out that occurrence took place on 6-6-1977 and statement of Suresh was recorded, Under Section 313 of the Code of Criminal Procedure on 2-3-1978 and in this statement accused Suresh has been shown as 16 years of age. Learned counsel pointed out that although the trial court was entitled to make its own estimate about the age of the accused, but it had not chosen to do so. Therefore, the trial court had agreed with the age of accused Suresh as 16 years on 2-3-1978. Learned counsel also pointed out that the prosecution has also not disputed the age of accused Suresh. The prosecution has not even disputed the age of accused Suresh before us.
13. In view of the above facts, it is urged that on 6-6-1977 accused Suresh was below 16 years of age and no doubt today he is much more than 18 years. Learned counsel, therefore, stated that accused Suresh is entitled to the benefit under the U.P. Children Act and he cannot be convicted nor could be sent to the approved school being more than 18 years.
14. Learned counsel relied upon AIR 1982 SC 685 : (1982 Cri LJ 1000) Jayendra v. State of Uttar Pradesh. In this case, Hon'ble Supreme Court had called for a report of the Doctor, in charge of the Jail Hospital as regards the age of the appellant Jayendra. The report of the Chief Medical Officer, Bareilly, Dr. P. D.P. Mathur, dated February 17, 1981 shows that by general appearance, physical examination and radiological findings, the appellant Jayendra was about 23 years of age on the date of the report. It was also pointed out by Hon'ble the Supreme Court that on June 17, 1974, which is the date of the offence, the appellant was about 16 years and 4 months old. Hon'ble the Supreme Court further stated that the estimate given by the Chief Medical Officer, Bareilly was a rough estimate by approximation, but their Lordships of Hon'ble the Supreme Court examined the statement of the accused appellant on record, which was uncontradicted that he was above 15 years of age on the date of his arrest. In view of above facts and circumstances, it was held (para 3):
"Section 2(4) of the Uttar Pradesh Children Act, 1951 (U.P. Act No. 1 of 1952) defines a child to mean a person under the age of 16 years. Taking into account the various circumstances on the record of the case we are of the opinion that the appellant Jayendra was a child within the meaning of this provision on the date of the offence. Section 27 of the aforesaid Act says that notwithstanding anything to the contrary in any law, no court shall sentence a child to imprisonment for life or to any term of imprisonment. Section 2 provides, in so far as it is material, that if a child is found to have committed an offence punishable with imprisonment, the court may order him to be sent to an approved school for such period of stay as will not exceed the attainment by the child of the age of 18 years. In the normal course, we would have directed that the appellant Jayendra should be sent to an approved school but in view of the fact that he is now nearly 23 years of age, we cannot do so."
It is important to note that their Lordships of Hon'ble the Supreme Court has relied upon the age given in the statement of the accused. The conviction of the appellant Jayendra was upheld, but his sentence was quashed and he was directed to be released forthwith.
15. In view of the above decision of Hon'ble the Supreme Court and in view of the facts narrated above, we also conclude that the conviction of appellant Suresh, being a child on the date of the occurrence, under Section 302 of the Penal Code should be upheld, but the sentence of life imprisonment awarded by the trial court deserves to be set aside. Since, the accused Suresh on the date of hearing of this appeal was much above 18 years of age, he cannot be sent to an approved school.
16. In the result, we partly allow the appeal of accused Suresh (Criminal Appeal No. 2060 of 1978). The conviction of the appellant accused Suresh, Under Section 302 of the Indian Penal Code is upheld. We quash the sentence of imprisonment for life imposed upon him by the Court below and direct that he should be released forthwith.
17. The Government Appeal No. 2129 of 1978 is dismissed, as already mentioned above.