Allahabad High Court
Ramesh Kumar Pandey & Another vs State Of U.P. on 7 February, 2013
Author: Rakesh Tiwari
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Criminal Appeal No.1058 of 2004 Ramesh Kumar Pandey and another ..........Appellants. Vs. State of U.P. ......Respondent. ******* Counsel for the appellants : Sri Chaudhary Subhash Kumar assisted by Sri Yogendra Kumar Advocates. Counsel for the respondent : Sri Ram Yash Pandey, A.G.A. Hon'ble Rakesh Tiwari, J.
Hon'ble Anil Kumar Sharma, J.
(Delivered by Justice Rakesh Tiwari) We have heard Sri Chaudhary Subhash Kumar, assisted by Sri Yogendra Kumar Advocates, appearing on behalf of the appellants, Sri Ram Yash Pandey, learned A.G.A. for the State, and perused the record.
This appeal is preferred challenging the validity and correctness of the judgment and order dated 09.02.2004 passed by Additional Sessions Judge, Jaunpur, Court No. 6 in S.T. No. 113 of 2000 (State Vs. Ramesh Kumar Pandey and three others), whereby the accused/appellants have been convicted under section 302, read with section 34 IPC and each of them has been sentenced to imprisonment for life and fine of Rs.1000/-. Since the accused-Durvasha died on 22.5.2000, we are concerned only with the accused-appellants Ramesh Kumar Pandey, Sheetla Prasad Pandey and Smt. Kamla Devi.
The facts culled out from the record are that a written report dated 14.11.1999 was submitted by the complainant-Shakuntala scribed by Laxmi Narain Chaubey to the S.H.O. Police Station-Chandavak, District-Jaunpur, inter alia stating therein that she wife of Ram Chander Chaubey is the resident of Village-Harduttapur, P.S.-Chandavak, District-Jaunpur; that a stone plank belonging to her lying on the steps of the well was taken away by son-in-law of Sheetla Prasad Pandey and his son Dinesh Pandey. When her "Jeth" (husband's elder brother) (Gopal Chaubey) asked Dinesh Pandey about the stone plank, he became annoyed and came at the door of her house with his brother Ramesh Kumar Pandey armed with farsa in their hands, Sheetla Prasad Pandey son of Thakur Prasad with lathi in his hand along with Smt. Kamla Devi wife of Sheetla Prasad Pandey and Durvasa wife of Dinesh Pandey exhorting them. Thereafter the aforesaid two women i.e. Smt. Kamla Devi and Smt. Durvasha caught her jeth by his hands un-mobilising him. Dinesh Pandey and Ramesh Kumar Pandey with the intention to kill her jeth gave blows on his head by farsa causing 3 incised wound whereas Sheetla Prasad Pandey causing injuries by lathi and that her jeth has succumbed on the spot at about 3.00 P.M. It is averred in the written report that when she and her husband Ram Chander Chaubey raised hue and cry to save Gopal Chaubey then Dinesh Pandey and Sheetla Prasad Pandey also injured them and that this incident was seen by Om Prakash Chaubey son of Radhey Shyam Chaubey, Laxmi Narain Chaubey alias Pintu son of Rama Shanker Chaubey and many other residents of the village. However, on seeing the crowd of villagers coming the assailants ran away.
On the basis of averments made in the written report, G.D. entry was made and chick report was prepared registering Case Crime No. 175 of 1999 under sections 147/148/149/302/323 IPC at P.S.-Chandavak, District-Jaunpur. The FIR was lodged in the aforesaid case crime number on 14.11.1999 at about 16.35 hours showing that incident had taken place at about 3.00 P.M. at the distance of 5 km. north from the police station in village-Harduttapur.
Smt. Shakuntala/complainant as well as her husband Ram Chander Chaubey went with chitthi majrubi for medical examination. They were examined by the Medical Officer, Incharge- PHC, Kerakat, District-Jaunpur on 14.11.1999, who after identification submitted the medical report of examination of Ram Chander Chaubey, aged about 35 years which shows that he had sustained following injuries:
1.Stitched wound on top of scalp 3.5 wide and depth not taken due to stitched wound. The Red clotted blood on wound and is 8.5 cm above the right ear.
2.Red contused swelling on dorsal aspect of left wrist joint 3.5 x 3 cm.
3.Red contused wound with swelling horizontally on back 5.5 x 8.5 cm and 25.5 cm below the right shoulder.
4. Red contused wound on right gluteal regime 5cm x 4 cm.
The body of the deceased-Gopal Chaubey was sent for post mortem in the custody of Constable-Mangal Yadav and Ashok Singh both of police station-Chandavak, District-Jaunpur. The condition of dead body after death shows that deceased was aged about between 45 to 50 years, eyes and mouth were closed, rigor mortis was present all over body. Ante-mortem injuries detailed in the post mortem report shows following injuries:-
(i) incised wound 5.0 x 2.0 cm x brain deep on top of head about 12.0 cm above right ear brain matter coming out of it;
(ii) incised wound 3.0 x 1.0 cm x bone deep on top of head 2.0 cm left to injury no. 1;
(iii) incised wound 2.0 cm x 1.0 cm x bone deep on top of head about 4.0 cm left to injury no. 2.
In the opinion of the doctor, the deceased suffered death about one day before due to shock as a result of ante-mortem injury.
The investigation of the case was taken over by S.O. Gulam Abbas (P.W. 8) who prepared recovery memo of the samples of blood stained and plain earth at the place of occurrence in presence of witnesses Rama Shanker Chaubey son of Dev Raj and Kailash Nath Chaubey son of Shyam Baran.
On completion of inquest, the Investigating Officer submitted charge sheet. The matter was then committed to the court of Session and charges were framed on 24.4.2000 by the Additional Sessions Judge, Jaunpur under section 302 read with section 34 of IPC. The charge, thereafter was amended by the court vide order dated 25.8.2003 under section 148 IPC against Ramesh Kumar Pandey, under section 147 IPC against Sheetla Prasad Pandey and Smt. Kamla Devi , as well as under section 302 read with section 149 IPC against Ramesh Kumar Pandey and his associate Dinesh Pandey, under section 323 read with section 149 IPC against Sheetla Prasad Pandey and his associate Dinesh Pandey. The accused persons pleaded not guilty to the charges and claimed to be tried.
The prosecution produced 9 witnesses in support of its case namely Ram Chander- P.W. 1, Shakuntala-P.W.2, Om Prakash Chaubey-P.W.3, Dr. Hari Kant Tiwari-P.W.4, Salik Prasad Pathak-P.W. 5, Ashok Singh-P.W.6, Dr. S.P. Gupta-P.W.7, Gulam Abbas-P.W.8 and Imtiyaz Ahmad-P.W.9, whereas statements of accused Kamla Devi, Ramesh Kumar Pandey and Sheetla Prasad Pandey were recorded under section 313 Cr.P.C.
Learned counsel for the appellants has assailed the judgement and order of the trial court on following grounds;
1. that the FIR is ante-timed it is not proved from it as to in what manner it has been registered and in any case the medical report does not prove the case of prosecution beyond doubt;
2. that the court below erred in law by convicting the appellants under section 302/34 IPC and their conviction is against the weight of evidence and material on record as there is no evidence against the appellants which may prove the case of prosecution beyond doubt and the appellants have been convicted merely on the statement of interested witnesses of prosecution which is illegal and arbitrary, and that ingredients of section 302 IPC have not been proved by the prosecution as there is lack of motive or any intention to cause death;
3. that there are various contradiction in the statement of prosecution witnesses who are in fact interested witnesses;
He has further stated that Sheetla Prasad Pandey alleged to have caused injuries with lathi to Gopal Chaubey. In this regard he has also placed reliance upon the post mortem report as well as bail order passed by the Court on 24.2.2004, whereby the appellant Sheetla Prasad Pandey has been released on bail vide order dated 24.2.2004saying that without expressing any opinion on the merits of the case:
"The submission of learned counsel for the accused-appellants is that the accused-appellant Sheetla Prasad Pandey alleged to have caused injuries with lathi to Gopal Chaubey, the deceased, but a perusal of his post mortem examination report completely rules out the presence of such lathi injuries. He has further argued that the injured Ram Chander and Shakuntala alleged to have sustained injuries during the course of alleged occurrence, but injuries found on the persons of the injured were not fatal in nature. The accused-appellant Sheetla Prasad Pandey had been on bail during the trial and he had not misused the privileges of bail granted to him. There is no possibility that the appeal be heard in the near future.
Issue notice.
Summon the Trial Court's record within four weeks.
List on 12th April, 2004.
Appellant Sheetla Prasad Pandey convicted under Section 302/34 IPC in S.T. No. 113 of 2000, P.S. Chandavak, District-Jaunpur shall be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of Court concerned.
The realization of fine imposed upon accused-appellant Sheetla Prasad Pandey shall also remain stayed during the pendency of his appeal before this Hon'ble Court.
The prayer for bail of accused -appellant Ramesh Kumar Pandey shall be considered after the receipt of the Trial Court's record. "
Learned counsel for the appellants has also argued that the incident is said to have been witnessed by independent witnesses, but none of them have come forward to depose in this case; that it is apparent from reading of the FIR that all the family members of the accused and others who are supporting him were named in the FIR including his son-in-law; that there has been no investigation against Dinesh Pandey as he was declared absconder; that there is strong motive for false implication of the accused-appellants as in a criminal case filed by Sheetla Prasad Pandey, Ram Chander-P.W. 1 had been sentenced for 9 months imprisonment which had been upheld in appeal and in the case filed by him, Sheetla Prasad Pandey is appearing as one of the witness against him.
According to him there are contradiction in the statement of witnesses, as Shakuntala-P.W. 2 in her examination in chief has stated that she had gone to the police station alone for filing of the FIR, whereas in her cross-examination she has stated that "MAI APNE SATH LIKHIT REPORT BAJAR SE HI LIKHAKAR LE GAI THI, MAINE BAJAR ME REPORT LAXMI THAKUR SE LIKHAYA THA. YAH KAHANA GALAT HAI KI MAINE RAPAT LAXMI NARAIN CHAUBEY ALIAS PINTU SE LIKHAYA THA".
Per contra, learned A.G.A. submitted that the prosecution has proved its case beyond doubt as the order of conviction and sentence is based upon evidence and material on record. The alleged contradictions stated by counsel for the appellants are in fact minor irregularities due to passage of time and any small variations in statement of witnesses are not fatal for the prosecution case at all. According to him averments made in the FIR find corroboration with the medical report as well as statement of witnesses and the ingredients of Section 302 IPC have been fully proved by the prosecution. He has further submitted that since the incident has been witnessed by many persons present on the spot, it cannot be said that incident did not take place at all in the manner as stated by the prosecution. According to him, the incident is between two parties, therefore, even if independent witness is not available, still the accused persons can be convicted in law by carefully reading of the statements of partisan witness. He also submitted that it is incorrect to say by the counsel for the appellants that there are no lathi injuries on the deceased, therefore, P.W. 1 is not an ocular witness. It is argued that Ram Chander Chaubey has received injuries by lathi, hence version of appellants' counsel that P.W. 1 was not present on spot as well as of lathi not being used in the incident is misconceived.
It is lastly stated by learned A.G.A. that FIR is prompt and there is every possibility that incident being between two pattidars or co-tenure holders, independent witnesses may have not come forward. Moreover, there is no motive at all for falsely implicating the accused persons.
After hearing counsel for the parties and on perusal of record, we find that incident had taken place on 14.11.1999 at about 3.00 P.M. in the village-Harduttapur, P.S.-Chandavak, District-Jaunpur which is 3 km. away to the north of police station. Written report was submitted in the police station by Shakuntala wife of Ram Chander Chaubey, village-Harduttapur, P.S. Chandavak, District-Jaunpur on 14.11.1999 at about 4.35 P.M. Therefore, FIR is prompt and not ante-timed. Further, the contention of counsel for the appellants that deceased could not have been inflicted injuries as stated in the FIR in our view is incorrect. According to him, if injury by farsa would have been given on the head, injuries no. 1 and 3 could not have been inflicted as two women had caught hold of the deceased is also not supported by the post mortem report.
As regards blow from lathi is concerned from record, it appears that injuries of lathi have been found on the body of Ram Chander, therefore, there can be some mistake in perceiving the use of lathi in the incident and the blows given by lathi said to have been given to Ram Chander on whose body the injuries of lathi have been found.
In our considered opinion, the post mortem report clearly supports the contention of prosecution that incident took place in the manner as stated whereby Dinesh Pandey and Ramesh Kumar Pandey had inflicted the injuries on his head one by one. Further, it is also evident from the record that the assailants had strong motive to do away with the deceased as he was witness in a case against them.
We are also of the view that minor contradiction in statement of prosecution witnesses are not fatal to the case and are due to lapse of time, therefore, the finding recorded by the court below is based on evidence on record so far as involvement of accused-appellants in this case is concerned and, therefore, the appellants have rightly been convicted and sentenced under section 302 read with section 34 IPC. Their conviction is not against the weight and material on record as argued by counsel for the appellants. They have been awarded just and fair sentence which is minimum that can be awarded in a murder case.
For the reasons stated above and in view of the facts and circumstances of the case, we affirm the view taken by the court below in the impugned judgment and order. Accordingly, the conviction and sentence by the court below is upheld. In result, the appeal stands dismissed.
Let a copy of this order be certified to the concerned Chief Judicial Magistrate for immediate compliance.
Dated:7th February, 2013 RCT/-