Allahabad High Court
Subhash Rajbhar & Another vs State Of U.P. on 5 October, 2012
Author: Rakesh Tiwari
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD COURT NO. 33 RESERVED CRIMINAL APPEAL NO.1317 OF 2003 1. Subhash Rajbhar 2.Tribhuwan Rajbhar Vs. State of Uttar Pradesh CONNECTED WITH CRIMINAL APPEAL NO.1382 OF 2003 Raj Kumar Rajbhar Vs. State of Uttar Pradesh Counsel for appellants: Sri S. P. Rai Counsel for respondent: Sri Ram Yash Pandey, AGA Hon'ble Rakesh Tiwari, J.
Hon'ble Anil Kumar Sharma, J.
(Delivered by Justice Anil Kumar Sharma) In these two connected appeals, the appellants have challenged the judgment and order dated 13.3.2003 passed by the Additional Sessions Judge/Fast Track Court No.5, Ghazipur in S.T. No.224 of 2001 and S.T. No.226 of 2001, whereby, each appellant had been convicted for the offence punishable under section 302/34 IPC and sentenced undergo imprisonment for life and fine of Rs.5,000/- each with default stipulation. However, accused Raj Kumar Rajbhar had been acquitted for the offence punishable under Section 4/25 of the Arms Act in S.T. No.226 of 2001.
2. The prosecution story in nut shell is that in the evening of 20.7.2001 Ramkrit Rajbhar son of Ranjeet Rajbhar was going to return the SAGREE (Rickshaw Trolley) to co-villager Deepu. In the way in front of the house of Kuber Rajbhar accused Raj Kumar Rajbhar, Subhash Rajbhar and Tribhuwan Rajbhar tried to forcibly snatch the trolley from Ramkrit Rajbhar. Hearing the noise Chandra Dev Rajbhar rushed to the spot from his maize field and tried to pacify the dispute. Several other persons including Rajnath Rajbhar, Rajendra Rajbhar and Ram Briksha Rajbhar also arrived there. Accused Raj Kumar Rajbhar rushed to his house and soon returned back with a knife. Accused Tribhuwan Rajbhar caught the hands of Chandra Dev Rajbhar, while his hands were caught by accused Subhash Rajbhar, then Raj Kumar Rajbhar wielded 3-4 knife blows on Chandra Dev Rajbhar and leaving him injured they made their escape good. This incident took place at about 7.30 p. m. A gamchha was tied on the injuries of the injured and he was taken to Government Hospital, Manihari, where the doctor declared him dead. The complainant Lalta Rajbhar, uncle of the deceased leaving the dead body at the Hospital reached Police Station Shadiabad and lodged report of the incident the same night at 11.30 p.m. On the basis of this report a case under section 302 IPC was registered against accused Raj Kumar Rajbhar, Subhash Rajbhar and Tribhuwan Rajbhar at Case Crime No.188 of 2001, under section 302 IPC at the police station Shadiyabad and the investigation was taken up by J.P. Tiwari, Station Officer. After recording the statement of the head constable who registered the case and the complainant he reached at the Public Health Centre Manihari. On account of insufficient light inquest proceedings could not be carried out. On 21.7.2001, Panchnama was prepared by the Investigating Officer and along with the related papers the sealed dead body of the deceased was sent for postmortem examination. Dr. S.K.Rai on 21.7.2001 conducted autopsy upon the dead body of Chandra Dev Rai at 3.30 p.m. He found that 35-years old deceased had average built body. His eyes and mouth were closed. Rigor mortis was present in lower extremity and has passed from upper extremities. Abdomen was distended. Greenish discolouration was present in abdomen over caccum. Dr. Rai found the following ante-mortem injuries from the person of the deceased :
1. An incised wound size of 5 Cm. x 2 Cm.x abdomen cavity deep present. 8 Cm. below right nipple margins are clear.
2. An incised wound size of 3Cm. x 1 Cm. x muscle deep present on lateral aspect of left arm 10 Cm. below left shoulder.
3. An incised wound size of 2.5 Cm. x 1 Cm. x muscle deep on lateral aspect of chest 12 Cm. below left shoulder.
In internal examination the doctor found that 8th and 9th ribs of the deceased were fractured. His right side heart was full while left was empty. 2.5 liter semi capsulated blood was found. The stomach was empty, peritoneum was incised. In large intestine fecal matters and gases were present. In the opinion of the doctor the deceased suffered death about one day before due to shock and hemorrhage as a result of ante mortem injury number no.1. Thereafter, the Investigating Officer visited the place of occurrence on 21.7.2001 and took samples of simple blood stains from the scene of occurrence and prepared site plan. On 26.7.2001 accused Raj Kumar Rajbhar was arrested at 1.30 p.m. and he got a knife used in the offence recovered to the Investigation Officer. On the basis of the recovery memo of the knife a case at crime No.189 of 2001, under section 4/25 of the Arms Act was registered against the accused Raj Kumar Rajbhar. The investigation in both the cases ended in charge sheet against the accused persons.
3. The Magistrate took cognizance against all the three accused persons on police charge-sheet under section 302/34 IPC and on separate charge-sheet cognizance was taken against accused Raj Kumar Rajbhar under section 4/25 of the Arms Act. After complying with the provisions of Section 209 CrPC the Magistrate committed the cases to the court of Session where they were registered in S.T. No.224 of 2001 against all the accused persons under section 302/34 IPC and in S.T. No.226 of 2001 was registered against the accused Raj Kumar Rajbhar under section 4/25 of the Arms Act. Both the cases were tried together.
4. After committal of the cases to the Court of Session, the learned Sessions Judge framed charges under section 302/34 IPC against all the three accused persons and separate charge under section 4/25 of the Arms Act was prepared against the accused Raj Kumar Rajbhar. The accused persons abjured the guilt and claimed trial.
5. In order to prove the charges the prosecution has examined Lalta Rajbhar, eye witness-Ramkrit PW 2, Rajendra Rajbhar PW 3 and Rajnath Rajbhar PW 4. Constable Chandrika Yadav PW 5, Constable S.H. Pandey PW6, Constable Prem Nath, PW 7, Sub Inspector Jagdamba Prasad Tiwari, PW 8, Sub Inspector R.D. Yadav, PW 9, Dr. S.K.Rai, PW 10 and Constable Brij Bihari Paswan, PW11 as formal witnesses.
6. In their statements under section 313 CrPC all the three accused persons have again denied the prosecution story stating that they have been falsely implicated on account of election rivalry. Accused Raj Kumar Rajbhar has filed a detailed written statement under section 233 (2) CrPC wherein he has stated that in their village Manihari there are number of Rajbhars, who reside in North and South Tolas. The distance between the two Tolas is 600-700 Mts. The complainant and the witnesses reside in Northern Tola and Lalta Rajbhar is their leader. He has no enmity with the deceased Chandra Dev Rajbhar. A month before the incident election for Gram Pradhan and BDC members were held. Smt. Poonam Singh, wife of Thakur Ravindra Singh was elected as Pradhan and he and the other Rajbhars of Southern Tola has supported her, while Lalta Rajbhar and his associates were in opposition and they supported Smt. Mewati who lost the election. The scribe of the report Lal Chandra won membership election and he was supported by the complainant and all these people bore enmity with him and other Rajbhars of Southern Tola. He has further stated that about two and a half years ago witness Ramkrit Rajbhar had gone to Bombay and he returned only two months before the accident after earning money. There was whisper in the village that in the absence of Ramkrit Rajbhar, his wife contacted illicit relations with the deceased Chandra Dev Rajbhar, who was earning good money by taking the agriculture fields on BATAI. He used to guard maize during night from wild animals himself. A week before the incident he along with two other accused while returning home in the night found that Ramkrit was dragging his wife from maize field of Chandra Dev Rajbhar and thereafter the wife of Ramkrit left her matrimonial home and returned only after 20 days of the incident. It was further noted by accused Raj Kumar Rajbhar that Deepu Rajbhar had no Sagree (Rickshaw-trolley), as he was also earning in Bombay. After the incident Ramkrit was detained by the police for committing instant murder of Chandra Dev Rajbhar, but due to palm creasing of the police he was let off and accused persons were falsely indicted in the case. Accused Raj Kumar Rajbhar has also denied the recovery of knife at his instance. However, no witnesses in defence has been examined by the accused persons.
7.We have heard Sri S. P. Rai, holding brief for Ajit Kumar Singh, learned counsel for the appellants in Criminal Appeal No.1382 of 2003 and as Amicus-curiae in Criminal Appeal No.1317 of 2003 on behalf of the appellants and Sri Ram Yash Pandey, AGA for the State.
8.Learned counsel for the appellants have vehemently argued, that the FIR is delayed and has been lodged after due consultation and deliberations;
that there was no motive for the accused to have killed the deceased;
that there is variance in ocular evidence and the medical evidence;
that even if the prosecution case is accepted as it is then the case cannot travel beyond offence u/s 304, Part-II IPC and not u/s 302 IPC.
9. Per contra learned AGA has submitted that the case of the prosecution is based on direct evidence, so motive has not relevance; that the FIR has been promptly lodged with the police; the testimony of eye witnesses fully corroborate the medical evidence and accused Raj Kumar and his two associates had intention to kill the deceased and they had inflicted injuries to the deceased knowing fully well that they are likely to cause his death.
FIRST INFORMATION REPORT
10. As per the prosecution story, the instant incident took place at about 7.30 p. m. on 20.7.2001. It was rainy season. It is said that after the incident, the injured was taken to Manihari hospital, where the doctor declared him dead. Thereafter the complainant leaving the dead body of deceased at the Hospital reached Police Station Shadiabad and lodged report of the incident at 11.30 p. m. On the face of it, the report is not at all delayed. The incident took place in village Manihari, where hospital is also situated and the distance of police station Shadiabad is about 5 Kms. from this village. The complainant has stated in his examination-in-chief that he got the report scribed from Lal Chand and submitted in the night at the police station. This witness has not been cross-examined by the defence on any of the relevant point regarding preparation of written report and its submission at the police station. He was the only person who could have been cross-examined by the defence on this issue. Apart from it, we have the testimony of police officials regarding registration of the instant case as P.S. Shadiabad on 20.7.2001. HC Shanker Sharan Pandey PW 6 has testified about preparation of check report Ex. Ka-2 and copy of GD Ex.Ka-3, which were prepared by him on 20.7.2001 at 11.30 p.m. He has specifically the denied that he has anti-timed the check report or the GD. SI Jagdamba Prasad Tiwari PW 8 was station officer of P.S. Shadiabad on 20.7.2001. He has stated that this case was registered at the police station in his presence. He took up the investigation of the case and recorded the statement of the complainant at the police station. This witness has also denied the defence suggestion about anti-timing of the FIR. The learned counsel for the appellants could not point out any other circumstance to support his contention about the registration of the case. Thus, the argument of the counsel for the appellant on this score is repelled.
MOTIVE
11. Learned counsel for the appellants has vehemently argued that there was no enmity between the accused and the deceased, so there was no occasion for them to have killed him. However, his contention is that the accused have been falsely indicted in the case on account election rivalry, which had taken place a month prior to the incident. On the other hand, the learned AGA has submitted that there is direct evidence of the crime, so motive has no significance in this case. The facts of the case indicate that prior to the alleged incident of murderous assault on the deceased, there was scuffle between the accused and Ram Krit Rajbhar PW 2 on issue of forcible taking away the Sagree of Dipu, which was being taken by PW 2 for returning the same to its owner. Hearing noise of melee, deceased arrived at the spot from his maize field situated at a distance of 400 yards from the place of occurrence. The deceased was guarding his maize field from wild animals, this fact has been admitted by accused Raj Kumar in his written statement. PW 1 has admitted that there was not enmity between the accused and deceased prior to the incident. The deceased simply intervened in the scuffle between the accused and PW 2, whereupon accused Raj Kumar picked up quarrel with him. He went to his nearby house, brought the knife and with assistance of co-accused Tribhuvan and Subhash wielded knife blows on the deceased. Thus, it is a case of 'intervention malice'. The house of the accused is situated near the place of occurrence. Accused Raj Kumar leaving the scuffle left for his house and came back with knife and then assaulted the deceased with the help of his associated, clearly show that accused had taken a decision to eliminate the deceased and his companions provided active help to him. It is important to note here that none of the accused had assaulted Ram Krit PW 2 from whom they were snatching the trolley. In cross-examination of PWs, the defence has tried to brought on record election rivalry between the parties, but the witnesses have emphatically denied the same. Effort was made to label the deceased of loose character by suggesting to PW 1 and PW 2 that the deceased was having illicit relations with the wife of PW 2 when he was in Bombay in connection with his employment, but it could not be proved. In this regard PW 2 has categorically denied all the suggestions put to him by counsel for accused persons in cross-examination.
12. It has come in evidence of witnesses that there are two tolas of Rajbhars in the village, one in the north and the other in southern side of the village. The accused persons reside in southern tola, while the houses of deceased and witnesses situate on northern side. The defence has valiantly tried to show that there is partibandi in between both the tolas of Rajbhars and they have supported rival candidates in the election of Pradhan of the village. However, all the witnesses have categorically denied any party faction in the village on account election. The accused persons could not procure any witness of the vicinity where the people of their tola reside, to say that the incident has not taken place in the manner as alleged by the prosecution.
13. Moreover absence of motive cannot disprove a charge of murder. Though it is very much natural that every criminal act is done with some sort of motive, but it would be unsafe to hold that no such criminal act can be presumed unless motive is proved. Motive is locked in the mind of the accused and sometimes it becomes difficult for the prosecution to unlock the motive, which is primarily known to accused and sometimes to the deceased as well. Mere fact that the prosecution failed to lead conclusive evidence in this regard would not mean that no such mental condition existed in the mind of the accused. The motive assumes importance in the cases based on circumstantial evidence, however, it becomes meaningless when direct evidence of the crime is available and led by the prosecution to bring home the guilt to accused persons. In the instant case, there are four eye witnesses of the occurrence and the prosecution has not withhold any material witness to prove the charge against the accused persons.
OCULAR EVIDENCE VIS-A-VIS MEDICAL EVIDENCE
14. The case of the prosecution right from the inception of FIR is that accused accused Tribhuwan forcibly caught hands of Chandra Dev Rajbhar, while accused Subhash caught his feet and accused Raj Kumar wielded 3-4 knife blows on the deceased. All the four eye-witnesses PW 1 to PW 4 in unison have corroborated this part of the prosecution story. It has come in evidence of these witnesses that the prior to actual assault the scuffle took place for quite some time, so many villagers including the witnesses reached at the spot and then accused Raj Kumar went to his house, soon returned back with knife and then with the active help of his above two associates assaulted the deceased with knife. He did not intend to injure Ram Krit PW 2 from whom the accused were forcibly snatching the trolley. The place of occurrence is near the house of the accused. It has come in evidence of witnesses that there are two tolas of Rajbhars in the village, one in the north and the other in southern side of the village. The accused persons reside in southern tola, while the houses of deceased and witnesses situate on northern side. Effort was made by the defence to show that there is partibandi in between both the tolas of Rajbhars and they have supported rival candidates in the election of Pradhan of the village. However, all the witnesses have categorically denied any party faction in the village on account election.
15. PW 1 and PW 2 have seen the incident from the beginning, while PW 3 and PW 4 have reached a little later. There is no material inconsistency or discrepancy in their testimony with regard to real incident of assault on the deceased at the hands of accused. All of them have in unison stated that on the intervention of deceased the accused persons picked up quarrel with him, Raj Kumar rushed to his house and returned back with a knife. Accused Tribhuvan caught hold the hands of the deceased while accused Subhash caught his legs and accused Raj Kumar wielded 3-4 knife blows on him. There is little discrepancy with regard to the position of the deceased, whether Raj Kumar assaulted in him standing position or when he fell down on the ground. However, it is a minor discrepancy and it does not erode the otherwise reliable case of the prosecution based on the testimony of the eye witnesses. The doctor has found three incised wounds on the person of the deceased as ante-mortem injuries and has categorically stated that he suffered death on account of injury no. 1. The 3rd injury was on lateral aspect of chest, which has fractured the ribs of the deceased. Thus, we find that there is no inconsistency between the eye witness of the incident and the medical evidence rather they corroborate each other.
Section 302/34 IPC or 304-II IPC ?
16. Learned counsel for the accused-appellants has vehemently argued that if the prosecution story is accepted as it is then it becomes quite clear that there was no intention of the accused to eliminate the deceased, so the conviction of the accused is not sustainable u/s 302/34 IPC. On the other hand, learned AGA has contended that the accused have assaulted the unarmed deceased who did not give any provocation to the accused as he simply came to resolve the dispute between the accused and Ram Krit PW 2 as they were forcibly snatching the sagree from him. Accused Raj Kumar picked up quarrel with him and without any provocation at the hands of the deceased went to his nearby house and came with knife and then with the help of his associates assaulted the deceased with knife.
17. In order to resolve the controversy we usefully refer the case of State of Rajasthan Vs. Islam (2011) 6 Supreme Court Cases 343. The facts of the case in hand are in parametrically similar with this case. In this case there was a minor shuffle amongst the persons who had assembled in a meeting. The consistent evidence of eye-witnesses in the case was that thereafter, respondent no. 1 along with others went home and came back armed with a 'Farsa' and he hit the deceased thrice on his head with the Farsa. This evidence has been consistently repeated by PW 7, PW 9, PW 16 and PW 17. PW 12 said that Islam hit Jenu with Farsa on his head but the number of times had not been mentioned by him. Appreciating the evidence of these witnesses, the Trial Court reached the finding that respondent no. 1 can be held guilty under Section 302 IPC and accordingly found him guilty under Section 302 IPC and sentenced him for life imprisonment. However the High Court while converting the conviction of the respondent no. 1 from Section 302 IPC to Section 304 Part-II in paragraph 12 held that the relations between respondent no. 1 and the deceased Jenu were cordial and only one blow was caused by Islam on the head of the deceased and that proved fatal. The High Court further said that the injury inflicted by respondent no. 1 was not pre-meditated and the respondent no. 1 did not take any undue advantage or nor acted in a cruel manner and as such, the case of respondent Islam is covered by Explanation IV appended to Section 300 IPC and could only be held guilty under Section 304 Part II IPC. On these facts the Apex Court has observed as under:
".......We fail to appreciate the aforesaid reasoning by the High Court in the context of the consistent evidence discussed above. It cannot be said that respondent no. 1 had no intention to kill the deceased. After attending the assembly in which there was a minor scuffle, respondent no. 1 Islam admittedly went to his house and came back armed with a Farsa which is a deadly weapon. Thereafter, he hit the deceased repeatedly on the head, a vital part of human body, with Farsa and caused very grevious injuries. It may be true that initially there was no pre-mediation or intention of the respondent no. 1 but it is well settled that intention can develop on the spot and in the instant case, there is some amount of pre-meditation on the part of respondent no. 1 when he had gone to his house and came back to the place of occurrence armed with a deadly weapon and in furtherance of that intention struck the deceased with that weapon repeatedly and at a vital part of his body. In the background of this consistent evidence against respondent no. 1, this Court is of the opinion that the conversion of the conviction of respondent Islam from Section 302 IPC to Section 304 Part II IPC cannot be sustained and the entire approach of the High Court is misconceived, if not perverse. The finding of the High Court that the act of the respondent no. 1 is coming under the fourth exception cannot be sustained at all. It is clear that respondent no. 1 did not strike the deceased at the first instance, but he struck him after an interval of time since he left the place of occurrence, went to his home and then came back armed with a Farsa. In order to bring a case under exception (4) to section 300 IPC, the evidence must show that the accused acted without any pre-mediation and in a heat of passion and without having taken undue advantage and he had not acted in a cruel or unusual manner. Every one of these circumstances is required to be proved to attract exception (4) to section 300 IPC and it is not sufficient to prove only some of them.
In the facts of this case, none of above ingredients have been proved from the evidence to bring the case under exception (4) to Section 300 IPC. The High Court's finding to the contrary is totally against the evidence on record."
Thus, we are of the firm view that the instant case does not fall within the purview of Section 304-II I.P.C. rather it is squarely covered by section 302 IPC.
CASE AGAINST ACCUSED SUBHASH AND TRIBHUVAN
18. Learned counsel for the appellants next contended that there was no premeditation between the accused to commit the murder of deceased. He himself came at the spot and at that time none of accused was armed with any weapon, so with the aid of section 34 IPC, accused Tribhuvan and Subhash cannot be held liable for the crime, if at all it was committed by accused Raj Kumar. No doubt common intention referred to in section 34 IPC presupposes a prior concert, a prearranged plan, i. e. prior meeting of minds and it may be inferred from the surrounding circumstances and conduct of accused, however, pre-concert or pre-planning may develop on the spur of moment but such plan must precede the act of constituting the offence. After accused Raj Kumar returned back with knife, accused Subhash and Tribhuvan restricted his movement by catching hold his hands and feet and then accused Rakesh with intention to kill gave three-knife blows to him. He was immediately taken to Manihari hospital, where the doctor declared him dead. Thus, it is clear all the three accused persons shared common intention to kill the deceased. In the case of Parasa Raja Manikyala Rao V State of SP AIR 2004 SC 132, the Apex Court convicted the accused persons u/s 302/34 IPC. In the facts of this case one accused caught hold of right hand of the deceased and the other the left hand. The third accused inflicted severe stab injuries because of the land dispute between the accused and the deceased. So all three of them shared the common intention to commit the murder of the deceased and is liable to be convicted u/s 302/34 IPC. Similarly in Israr Vs. State of U. P. AIR 2005 SC 249, the accused appellant held the deceased and restrained his movements, coaccused caused knife injuries on him causing his death. On these facts the Hon'ble Court held that both of them showed the common intention to cause the death of the deceased and both of them are guilty under section 302/34 IPC Israr V State of U. P AIR 2005 SC 249. Where the prosecution proved the role played by accused persons which were proved to be in furtherance of common intention, conviction of all the accused persons u/s 302/34 IPC is proper, see Babulal V. State of Maharashtra AIR 2005 SC 1460. As already pointed out it has come in evidence that accused Raj Kumar during scuffle with Ram Krit PW 2 and the deceased went to his nearby house and soon came with a knife. Thereafter accused Subhash and Tribhuvan caught his hands and feet and then accused Raj Kumar wielded knife blows on the deceased. Thus, the role of accused Subhash and Tribhuvan is quite distinct and it confirms their intention to eliminate the deceased. They could have caught accused Raj Kumar and stopped him when he was adamant to inflict knfie blows on the deceased. In these circumstances, we find that both Subhash and Tribhuvan accused have been rightly held guilty for committing the murder of Chandradeo Rajbhar with common intention.
19. In view of what has been said and done above, we find that the prosecution has successfully established its case beyond all reasonable doubt against all the three accused-appellants and the learned trial Court has not erred in convicting and sentencing each of them for having committing the murder of deceased Chandra Dev Rajbhar. The appeals have no merits and are accordingly dismissed. The impugned judgment of the trial Court is confirmed.
20. Sri S. P. Rai, Amicus Curiae in Criminal Appeal no. 1317 of 2003 would get Rs. 2,100/-, which should be paid to him within a month.
21. Let certified copy of the judgment be immediately sent to the trial Court for compliance which should be reported within a month to the Court.
..............................Rakesh Tiwari, J .......................Anil Kumar Sharma, J October 5 , 2012 AK/-