Allahabad High Court
Budhish Chandra vs State Of U.P. on 30 August, 1990
Equivalent citations: 1991CRILJ808
JUDGMENT G. K. Mathur, J.
1. This appeal is directed against the judgment and order dated 31st May, 1978 passed by Sri R. B. Lal Sessions Judge, Kanpur in Session Trial N o. 240/ M of 1977, convicting and sentencing the appellant Budhish Chandra for life imprisonment for the offence punishable Under Section 302, I.P.C. and one year's rigorous imprisonment for the offence punishable Under Section 25, Arms Act and the sentences were made to run concurrently.
2. The case of the prosecution, in brief, has been that in the night between 6th/7th July, 1977 Roshan Lal, his wife and their sons Yograj Bajaj and Jagmohan Lal were sleeping in the court-yard of their first floor quarter No. 465-A, Shastri Nagar, Kanpur and at about 2-30 a.m.Yograj and his younger brother Jagmohan Lal woke up from sleep due to the report of the fire arm shot and saw in the light of the street electric pole Budhish Chandra appellant, who is the real brother-in-law (Sala) of Yograj climbing on the wall. It is alleged that their mother after moving the hand of her husband Roshan Lal from his body, said that he had been hit fire arm-shot and they all raised alram but in the mean time the appellant fled away through the roof of staircase and by descending down through the drain pipe on the partition wall. It is alleged that Yograj and Jagmohan Lal then opened the lock of the stair case door and came down at once and ran to apprehend the assailant. P.W. 3 R. C. Mitra, Sardar Tara Singh etc., according to the prosecution, joined them and apprehended the appellant at a distance of about 100 yards from the quarter No. 465-A in the open space situate in front of the Block No. 461, Shastri Nagar because of the help of the police Patrol Party headed by Ahamad Hasan constable coming from the other side and that a country made pistol, the barrel of which contained the spent cartridge, was recovered from his hand and three live cartridges from the pocket of his pant. It is alleged that they all came back along with the appellant and the Police Patrol Party to the building containing the quarter No. 465-A and kept the appellant detained there at the ground level where Yograj and Jagmohan Lal went up stairs to see their father and found that Roshan Lal had a wound on his chest and died on the cot on which he was sleeping. Yograj, according to the prosecution, wrote the written report Ex.Ka. 1 and he along with the police party and R. C. Mitra etc. came to the police station Swarup Nagar Kanpur situate at a distance of about 3 Kilometres from the place of occurrence along with the appellant in his custody and the articles recovered from him and lodged the report there. P.W. 5 Jagdish Narain Sharma constable clerk at the pollice station prepared the check report Ex.Ka.3 and took in possession the recovered pistol and cartridges vide Ex. Ka. 2 and put the appellant in the lock up and the recovered articles in the sealed cover in the Malkhana of the police station and made an entry of the substance thereof in the General Diary at serial No. 57, a copy of which is Ex.Ka. 4. Appellant, according to the prosecution, desired to marry the younger sister of Yograj but Roshan Lal had turned down his proposal.
3. Sri R. S. Kulshrestha senior Sub-Inspector of Police in whose presence the first information report was lodged, made the investigation of the case. Lakshmi Singh Sub Inspector of police posted at the out post Shastri Nagar prepared the inquest report.
4. Dr. Satish Chandra, P.W. 6, Medical Officer Ursala Hospital, Kanpur conducted the post mortem examination on the body of Roshan Lal on 7th July, 1977 at 4-00 p.m. and found the following ante mortem external injuries on the person of Roshan Lal deceased :--
"Gunshot wound of entry with irregular margins and outline 3 1/2 cm x 3 cm x chest cavity deep on the front of chest, just left to mid-line. The upper border of the wound was at the level of the left nipple. Margins were inverted. Blackening and scorching was present."
On internal examination, the doctor found the following condition:--
Left 4th and 5th ribs had fracture near the sternum. Right pleura was punctured at six places. Size of each puncture was .75 cm in diameter. Right pleural cavity contained 450 M.Ls. blood.
Right lung was punctured at six places, punctures being circular and .75 cm in diameter.
Pericardium was ruptured.
Right ventricle ruptured 4 cm x 3 cm x lumen deep. Left ventricle was punctured at two places. Punctures were circular and .75 cm diameter.
All the above injuries were under the external injury.
Stomach was empty. Small intestines were also empty. Large intestines were half full.
5. The doctor removed six pellets from the muscles of the right part chest wall.
6. In the opinion of the doctor, death was due to shock and haemorrhage as a result of gun shot injury to heart and right lung.
7. Sri R. S. Kulshrestha obtained sanction for prosecution of the appellant from the District Magistrate and submitted charge sheet for the offence punishable Under Section 25, Arms Act and another charge sheet for the offence punishable Under Section 302, I.P.C.
8. The prosecution in order to prove the case examined eight witnesses. A mention of all of them has come in the narration of the prosecution case.
9. The appellant pleaded not guilty and in his statement recorded Under Section 313 of the Code of Criminal Procedure, he admitted that he is the brother-in-law of Yograj but denied to have made proposal to marry the sister of Yograj. He stated that Yograj wanted more dowry after marriage of his sister with him while Sri R. C. Mitra demanded commission from him on the insurance business which he got through him and the answering appellant was not prepared to oblige him. His contention has been that both of them were annoyed with him. The appellant in his statement Under Section 313, Cr. P.C. further stated that one person came to him in the morning and told him that the condition of Roshan Lal was very bad, hence he went with him up to the ground level of the house of Roshan Lal where he came to know that Roshan Lal had been murdered and as all the persons present there were going to the police station, he also went to the Police Station Swarupnagar and remained sitting there up to noon and that the police arrested him in the noon. He has specifically denied the allegations made against him by the prosecution.
10. The appellant examined two witnesses in defence, namely, Gayan Singh (D. W. 1) and Mohammad Ahamad (D.W. 2).
11. The learned trial court found the case proved and convicted and sentenced the appellant as indicated in the opening of the judgment.
12. Feeling dissatisfied by the conviction and sentence, the appellant has preferred this appeal.
13. Heard the learned counsel for the appellant and the learned Standing Counsel for the State and perused the record.
14. Learned counsel for the appellant at the outset urged that the appellant was not on bail during the trial and that he was granted bail in 1985, in appeal because of the delay in disposal of appeal. He submitted that the conviction be converted for the offence punishable Under Section 304, I.P.C. and the appellant be sentenced to the period already undergone. The learned counsel for the appellant, however, could not advance a single argument to show that how the offence in question is culpable homicide not amounting to murder. The incident had taken place in the night when the deceased Roshan Lal was sleeping in the court-yard of his house on the first floor. The fire arm shot has been made from a close range which is evident from the fact that blackening and scorching were found around the wound. The assailant has definitely fired shot after forcing entry in the courtyard of the house on the first floor.
15. The learned counsel for the apppellant finding himself unable to bring the offence in question within the purview of any of the Explanations of Section 300, I.P.C. the burden of which was upon the appellant according to the provisions of Section 105 of the Indian Evidence Act, started arguing the appeal on merits.
16. We considered over the matter and were convinced that the offence in question is culpable homicide amounting to murder and nothing short of it and heard the arguments of the parties on merit at length.
17. Learned counsel for the appellant urged that the appellant appears to have been falsely implicated in the case by Yograj in order to remove him from the scene and in order to frustrate him in his design to marry his sister by sending him to jail. By advancing this argument, the learned counsel for the appellant has in a way conceded that the appellant desired to marry Neera, the daughter of Roshan Lal to which Roshan Lal was not agreeable. There is the testimony of Yograj on this point, which has rightly been accepted by the learned trial court.
18. The learned counsel for the appellant next submitted that the failure in matrimonial proposal in ordinary course, would not lead one to commit murder. The learned trial court before whom this argument was advanced, found no merit in it. It all depends upon the mentality of individual and how he look the objection. We, therefore, also find this argument devoid of merit. Moreover, the case has to be decided on the merits of the evidence on record.
19. Learned counsel for the appellant tried his best to persuade the court that the case of the prosecution with regard to the arrest of the appellant after chase, is not correct. He submitted that the testimony of Yograj and Jagmohan Lal to the effect that they recognised the assailant when he was retreating by climbing on the Angan wall and roof of staircase, is not believable because there was no sufficient light and the face of the assailant must be opposite to the light as the electric pole of the street is situate towards west while, the assailant fled away towards east. The assailant, according to the prosecution, climbed on the boundary wall of the Angan and then came up on the roof of the staircase and then went towards east through the drain pipe and the partition wall. The witnesses Yograj and Jagmohan Lal were sleeping in the northern side of the Angan while the staircase is situate on the southern-side of the Angan. It cannot, therefore, be said that they were not in a position to see the assailant while climbing on the wall and going on the roof through the staircase.
20. The electric pole was no doubt situate towards west across the road from the house in question. These witnesses have conceded that the light of the street pole available in the Angan was not much. Looking to the distance of the pole from the Angan, the statement of Yograj that the light was not much appears to be a frank statement. The appellant was known to Yograj and Jagmohanlal from before. He happens to be the real brother of the wife of Yograj. In this view of the matter, it is quite reasonable and probable that they recognised the appellant in street light available in the Angan. It will not be out of place to mention here that the appellant not only failed to substantiate his plea that in the night in question, the light on the electric pole in question was not of order but his witness Mohammad Ahamad (D.W. 2) an employee of the light Department of Nagar Mahapalika, Kanpur stated with the help of the record that the bulb or the electric rod on the pole in question was not fused on that night and was in order.
21. Learned counsel for the appellant next submitted that it appears highly improbable that Yograj and Jagmohan Lal would have come down after opening the lock of the door of the staircase so quickly that they could apprehend the appellant only at a distance of 100 yards. His argument has been that the assailant would have made his escape good by the time they came down from the staircase. He further argued that Sri R. C. Mitra P. W. 3 at the dead of night could not be so alert to have joined the chase. He further submitted that it was highly improbable that the assailant would have kept the pistol in his hands throughout till his arrest.
22. We have examined the evidence in the light of these submissions. From the statements of Yograj and Jagmohanlal it is clear that they opened the lock and came down to chase the assailant without losing any time and they even did not care to look at their father at that time. The assailant had to descend down through the drain pipe and to cross the partition wall before coming down in eastern lane and according to the prosecution he came on the southern road on which the chasers came from the western lane as shown in the site plan. R. C. Mitra's house is situate towards west of the House of Roshan Lal across the road. He awoke at the relevant time to urinate and on hearing the report of the fire arm shot he came out of his house and saw Yograj and Jagmohan Lal coming down from the staircase running towards south in the lane and he at once followed them. R. C. Mitra in his statement made before the court, stated that he had come out of his house quickly. R. C. Mitra, however, admitted in cross-examination that his statement which he gave before the Investigating Officer to the effect that he had woke up to urinate and hearing the report of the gun shot, came out from his house is correct. Thus there remains no contradiction in his statement on this point and the position is that he had come out of his house on hearing the report of the gun-shot as he was already awake to make water. R. C. Mitra P.W. 3 is related to Budhish Chandra appellant. The appellant is the son of the maternal uncle of the wife of R. C. Mitra. He has denied the suggestion put to him that he wanted commission from the appellant on the Insurance business supplied by him to the appellant. R. C. Mitra is an Assistant Engineer in Elgin Mill No. 2, Kanpur. He has also denied the suggestion put to him that he was not prepared to give evidence in this case and, therefore, his statement was not recorded on the same date but was recorded on the next day. R. C. Mitra is one of those persons who went to the police station along with Yograj Bajaj for lodging the report of the incident in question. The suggestion put in the cross-examination to him that he was not prepared to give evidence, and therefore, his statement was not recorded on 7th July, 1977, cannot be accepted as correct in the circumstances of the case. There is the testimony of P.W. 4 Constable Ahmad Hasan who has stated that he was posted at out-post Shastri Nagar, Police Station Swarup Nagar and was on petrol duty along with two homeguards, namely, Ram Achal and Mohammad Aslam and that at about 2-30 a.m. he heard the alarm coming from the western side when they reached the Block No. 461 and at once proceeded towards that side and saw one person coming towards his side chased by 4-5 persons and that they all apprehended him there. He has also deposed about the recovery of pistol and live cartridges from his possession. There is no reason to disbelieve his testimony. The circumstance that he did not seal the pistol and cartridges recovered from the possession of the appellant at the spot, is of no help to discredit the prosecution story. He has stated that the articles remained in his possession throughout and that he placed them before the constable clerk at the police station. It is true that in the recovery memo prepared by Jagdish Narain Sharma, it has been mentioned that these articles had been produced by the complainant. P.W. 1 Yograj has stated that the pistol and the cartridges have been recovery by the police from the appellant and that they remained in the custody of the police throughout and that the police deposited them at the police station. P.W. 4 Ahamad Hasan has stated that he placed the pistol and cartridges before the constable-clerk at the police station and that he had also verified earlier after recovery that the barrel of pistol contained a spent cartridge. The coming of Ahamad Hasan along with Yograj and others at the police station is noted in the General Diary at serial No. 57 at 4-00 a.m. on 7th July, 1977. The circumstance that in the memo the constable-clerk Jagdish Narain in a routine way mentioned that the recovered articles have been deposited by the complainant at the police station, in view of the categorical statement of the witnesses that they remained in the possession of constable Ahamad Hasan and he placed them before Jagdish Narain at the police station, is immaterial and does not affect the evidentiary value of the statement of the witnesses. The keeping of the pistol by the assailant in his hand throughout while he was being chased, is not unnatural or improbable, rather it was natural conduct because its sight could deter the chasers and assailant could scare the chasers by its use to make his escape good.
23. The appellant in his statement recorded Under Section 313 of the Criminal Procedure Code stated that he went to the police station along with the persons in the morning and that he remained sitting at the police station up to noon there. Gyan Singh D. W. 1 stated that he happened to be the friend of Budhish Chandra appellant and in the night in question he along with Budhish Chandra appellant witnessed the second cinema-show and came to the house of Budhish Chandra at about 1.00 a.m. and he also slept there that night. He stated that at about 4-00 a.m. in the morning some one came and called Budhish Chandra appellant and told that the condition of the father-in-law of the sister of Budhish Chandra was serious and had called him. He stated that Bidhish Chandra then went away with him and he could not tell the name of the person who allegedly came to call Budhish Chandra appellant. Earlier Gyan Singh had given an affidavit in this case Ex.Ka. 17 in which he stated that the appellant was brought to the police station Swarup Nagar from his house and had been implicated in this case due to enmity. As a matter of fact the suggestion put in the cross-examination of P.W. 1 Yograj was to the effect that the accused had been arrested from his house.
24. Thus the statement of D.W. 1 Gyan Singh is inconsistent and does not inspire confidence. The established position, therefore, is that the appellant had been handed over to the police at the police station Swarup Nagar at 4-00 a.m. along with the recovered pistol and cartridges by Yograj P.W. 1 and others. It is in the statement of the appellant that he remained at the police station from early morning till he was sent on remand in the afternoon.
25. The learned counsel for the appellant next tried to discredit the prosecution case by pointing out that in the Challan Lash Ex.Ka. 13, the crime number is not given and in the inquest report Ex.Ka. 11 and Photo Lash Ex.Ka. 12, the crime number has been subsequently added and that the name of the complainant, the time of lodging the report and the time of commencement and the conclusion of the inquest, had not been given in the inquest report. Thus the argument has been that these omissions suggest that the first information report was in fact not lodged at 4-00 a.m. on 7th July, 1977 and was prepared subsequently.
26. P.W. 8 Laxmi Singh S. I. who made the inquest, reached the spot from the out post Shastri Nagar P. S. Swarup Nagar on getting the telephonic message from Sri R. S. Kulshrestha, the Investigating Officer in this case. Sri Laxmi Singh conceded that he noted the crime number subsequently in the inquest report and Naksha Lash and that he omitted to note it in the Challan Lash and also omitted to note the timing in the inquest report. He stated that he could not note the crime number while preparing these documents because the papers were with the Investigating Officer who had gone down stairs for investigation purposes and that he noted the crime number at the spot before despatch of the dead body. It has come in the statement that he has started the inquest at 6-00 a.m. and concluded it by 8-00 a.m. The dead body along with the papers was received at 11-10 a.m. on 7th July, 1977 at the police head quarter which is clear from the entry made in the Challan Lash Ex. Ka. 13. Constable Harbansh Singh who had taken the dead body from the spot for post mortem examination along with the necessary papers, has filed an affidavit to this effect which is Ex.Ka. 16. Section 174 of the Criminal Procedure Code under which the inquest report was prepared simply requires that the police officer in the presence of two or more respectable inhabitants of the neighbourhood, shall make investigation and draw up a report of the apparent cause of death, describing such wounds etc. as may be found on the body stating in what manner or by what weapon or instrument such marks appear to have been inflicted. The Hon'ble Supreme Court in the case of Podda Narayana v. State of Andhra Pradesh reported in AIR 1975 SC 1252: (1975 Cri LJ 1062), has laid down that "the proceedings Under Section 174 Cr. P.C. have a very limited scope. The object of the proceedings is merely to ascertain' whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death". All these requirements have been complied with while preparing the inquest report. The form prescribed by the Police Regulation no doubt contains the column relating to the crime number, name of the complainant, time of commencement and time of conclusion of the inquest report. They appear to have been prescribed in the form for the purpose of having check on the movement and conduct of the police officials. It cannot give a handle to spoil the prosecution case by * merely omitting to mention them in the prescribed form of the inquest report and related papers. Similarly the complete entries without committing any omission or lapse in preparing the inquest report Form, can give any premium to the prosecution case. It has to be judged in each case as to what is the effect of such lapses. It is settled law that taking singly such lapses cannot be sufficient to lead to the conclusion that the investigation was tainted or unfair. In the present case these lapses lead us to nowhere. We have shown above that the evidence of the prosecution witnesses, Yograj, Jagmohan Lal, R. C. Mitra and Ahamad Hasan are convincing on the point of arrest of the appellant in the night along with the pistol and cartridges. The appellant was handed over to the police at the police station Swarup Nagar at 4-00 a.m. along with the recovered pistol and cartridges. In the case of Shyam Charan v. State (reported in 1984 All LJ 1303) cited by the learned counsel for the appellant, the prosecution witnesses were not independent and were chance witnesses and the prosecution version of murder was unnatural and artificial. Further in that case the impression of the Panches appeared to have been obtained earlier on the inquest report and the writing was done later on. The case of Shayam Charan (supra) is, therefore, of no help to the appellant.
27. In the end we hold that the case has been proved against the appellant beyond doubt and the appellant has been rightly convicted and the appeal has no force and is liable to be dismissed.
28. The appeal is dismissed. The conviction and sentences awarded by the trial court vide its judgment and order dt. 31st May, 1978 are confirmed. The appellant Budhish Chandra is on bail. He be taken into custody forthwith to serve out the sentences awarded by the trial court.