Allahabad High Court
Ram Asrey & 2 Ors. vs State on 3 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 31
Author: Alok Mathur
Bench: Pankaj Kumar Jaiswal, Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVE JUDGMENT AFR Court No. - 1 Case :- CRIMINAL APPEAL No. - 448 of 1981 Appellant :- Ram Asrey & 2 Ors. Respondent :- State Counsel for Appellant :- Nagendra Mohan,Chandra Bhushan,J.N. Singh,K.K.Tewari,Mmmanish Bajpai Counsel for Respondent :- G.A.,Sharad Dixit Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Alok Mathur,J.
(Delivered by Hon'ble Alok Mathur, J.)
1. Head Sri Nagendra Mohan, learned counsel for the appellants as well as Mrs. Smiti Sahay, learned Government Advocate for respondent-State.
2. This criminal appeal has been filed by the convicted appellants under Section 374(2) Cr.P.C. against the judgment and order dated 20/06/1981 passed by the 1st Additional Sessions Judge, Kheri in S.T No. 387 of 1980. The trial court convicted the appellant's for the offences punishable under sections 302/24 IPC and also appellants no.1 & 2 under section 323 read with section 34 IPC and appellant no.3 under section 323 IPC sentencing them to 2 months rigorous imprisonment and imprisonment for life.
3. Out of three convicted appellants, appellant no. 1 -Ram Asrey and appellant no. 2 - Hardwari Lal have died during pendency of this appeal, thus this appeal stands abated in respect to appellant nos. 1 and 2 and the appeal survives only in respect of appellant no. 3 - Shiv Shanker.
4. The case of the prosecution in brief is that Krishna Kant Shukla (deceased victim) was a lecturer in Lucknow University and belong to village Kalwa Moti PS Maigal Ganj in Kheri district. There had been a lot of litigation about landed property between Krishna Kant Shukla and Ram Asrey, and his sons (the accused) including proceedings under section 107/117 CRPC between them. Krishna Kant resided at Lucknow and visited his village infrequently mainly on account of enmity between Krishna Kant and Ram Asray and his sons. Father of Krishna Kant, Duryodhan, had died about one and half years earlier, and his Shraadh ceremony was to be performed on 18/09/1979. Krishna Kant came to his village Kalwamoti on 17/09/1979 in the evening. In the morning of 18/09/1979, Krishna Kant went out towards the fields to ease himself in the Khain adjoining the chak road, to the west of the Har of the village. The mother of Krishna Kant, Smt Bitoli Devi PW 4 also accompanied him, but stopped near the flour Mill, and kept a vigil in the direction where her son had gone to ease himself. She saw Ram Asray, accused armed with Kanta, Hardwari with Lathi, and Shiv Shanker with knife moving on the service road towards Krishna Kant. PW4 on seeing the accused walking towards his son, raised an alarm and rushed towards her son. The accused's started assaulting Krishna Kant, and when his mother PW4 tried to save him and she was assaulted by Hardwari with Lathi from which she received injuries on the head and she started bleeding and fell down. The accused fled towards the west and in the meanwhile Sri Prakash Shukla PW1 was a cousin of the deceased also reached the spot and accompanied the injured Krishna Kant and his mother on a bullock cart to PS maingalganj but Krishna Kant succumbed to injuries on the way near Aurangabad. They then took the dead body to PS Maingalganj where the FIR was written at 1 PM on the same day.
5. Sri Mahendra Kumar Shukla, PW-9 (Investigating Officer) had held inquest upon the dead body of Krishna Kant at the premises of P.S. Maigal Ganj, shortly after the registration of the case on 18.09.1979 and had prepared Inquest Report, Challan Lash, Khaka Lash and letter to Chief Medical Officer, Sitapur for postmortem examination. The Investigating officer - PW-9 had taken in custody a Dhoti, a Banian and a Janeo (all blood stained) from the dead body and sealed them. He had also taken off a gold ring, a silver ring, a plastic ring from the fingers of the dead body and a 'Tabiz' from the neck of the dead body and had given these things in supurdagi of Smt. Bitoli Devi - PW-4. He sealed the dead body and had sent the same through Constable Atma Ram - PW-2 to the District Hospital, Sitapur for postmortem examination at 3.00PM on 18.08.1979.
6. The I.O. - PW-9 had taken statements of Sri Prakash, complainant - PW-1, Smt. Bitoli - PW-4 and of certain others, at P.S. Maigal Ganj. He had deposited the sealed bundle of blood stained clothes at the Malkhana of P.S. - Maigal Ganj and had made G.D. entry in this regard. Thereafter he accompanied Shri Prakash Shukla, complainant PW-1 and reached the scene of occurrence in village - Kalwa Moti. He inspected the site of occurrence which lay in north-west corner of the field of Pahari Singh, on the outskirts of the village and prepared Site Plan. He found blood at the place of incident and marked the same by letter 'A' in the spot map. He had also taken samples of blood stained and simple soil and placed them in separate containers and sealed the same. He had also taken possession of the 'Lota' of the deceased victim which had been handed over to him by the complainant - PW-1 and thereafter gave the same in supurdagi of the complainant.
7. The I.O. - PW-9 also undertook search of the house of accused persons to apprehend them. However, they were not available.
The Doctor L.B. Shukla, PW-3, who examined the deceased Krishna Kant at the relevant time was posed as Medical Officer, Sadar Hospital, Sitapur, stated in this testimony that he had conducted postmortem on 19.09.1979 at 9.30AM, he submitted the postmortem report and found thirteen ante mortem injuries on the deceased. The details of injuries are given below :
1. Lacerated wound 9cm x 1/2cm x bone deep on the right side head 10cm above right ear.
2. Lacerated wound 5cn x 11/2cm x bone deed on the left side 9cm above left eye brow.
3. Lacerated wound 31/2cm x 1/2cm x bone deep on left side heard 7cm above outer corner of left eye brow.
4. Lacerated wound 7cm x 2cm x bone deep onleft side head, 7cm above the left eye brow, 1cm lateral to injury no. 3.
5. Lacerated would 8cm x 2cm x bone deep on left side head 3cm above ear and 3 1/3cm behind injury no. 5.
6. Lacerated wound 10cm x 3cm x bone deep on left side head 3cm above ear and 3 1/2 cm behind injury no. 5.
7. Lacerated wound 7cm x 1/2cm x bone deep on the back of head in occipital region 5cm behing left ear, and 2cm below injury no. 6.
8. Lacerated wound 3cm x 11/2cm x bone deep on the left side face, 1/2cm behind lower eye lid. Maxilla bone on left side fractured.
9. Contusion 10cm x 4cm on the left shoulder tip and adjacent portion of left upper arm.
10. Lacerated wound 1cm x 1cm x bone coming out of the wound on the back of right forearm, 12cm below elbow. Both bones fractured underneath the injury.
11. Lacerated wound 1 cm x 1cm x bone deep on the back of right forearm, 41/2 cm above wrist.
12. Contusion 5cm x 3cm on the right forearm on back just adjacent and below injury no. 10. Ulna bone fractured.
13. Incised wound 10cm x 5cm x cavity deep on left side abdomen, 10cm away from umbillicus at 3 O'clock position. Loops of small and large intestines coming out of the wound.
8. In the opinion of PW-3, death had occurred about one day prior to the postmortem examination. He further opined that death was caused due to coma as a result of head injury. In his deposition PW-3 stated injury no. 13 was sufficient in ordinary course of nature to cause death which was caused by knife.
9. PW-6 Dr. Sohan lal Gupta was examined who deposed that on 18.09.1979 while he was posed in Jangbahadur Hospital, at about 5.00 examined Smt. Bitoli - PW-4, who had three injuries on her body which are described as follows :
(1) Lacerated wound 1cmx1cmx1/2cm on this side of forehead 9cm above the left eyebrow blooding original.
(2) Lacerated wounds 1/2cmx1/2cm on he left side of scalp 5cm above the left ear.
(3) Contusion red colour 2cmx2cm on the middle of scalp.
(4) all the injuries are simple lacerated by the one (S/C) weapon duration (sic) 1/2 day.
10. The Trial Court relying on the account of two eye witnesses namely Shri Prakash Shukla - PW-1 and mother of the deceased Bitoli - PW-4, held the accused to be guilty, as discussed by it in the impugned judgment and order.
11. The Trial Court after taking into consideration aforesaid facts, has observed as under :
"To sum up, it is held that the prosecution has succeeded in establishing beyond reasonable and probable doubt, that the present accused persons, namely Ram Asrey, Hardwari Lal and Sheo Shankar Lal had made the fatal assault upon Krishan Kant (deceased victim) in the relevant morning (18.9.79) on out skirts of village Kalwa Moti P.S. Maigal Ganj in this District. All the present accused persons are, therefore, found guilty of the charge u/s 302 IPC read with section 34 IPC, as brought against them.
Hardwari Lal accused has also been charge for the offence u/s 307 IPC for making an attempt upon the life of Smt. Bitoli PW-4 on the relevant occasion by giving LATHI blows on her head. Ram Asrey and Sheo Shankar Lal accused persons have on this score been charged u/s 307 IPC read with Section 34 IPC.
No doubt, as has already been found above, Hardwari Lal accused had inflicted Lathi blows on the head of Smt. Bitili PW-4 on the relevant occasion of the instant occurrence. The medical evidence on record (vide injury report Ext.Ka12., and the testimony of Dr. Sohan lal Gupta PW6) show that upon her medical examination only simple injuries had been found upn the body of S,t. Biroli PW-4 The prosecution has failed to show that Hardwari Lal accused has caused injuries Smt. Bitoli PW 4, which were dangerous to life. The charge under Section 307 IPC is, thus, not made out against the accused persons. In this view of the matters, Hardwari Lal accused is found to have committeed offence u/s 323 IPC for causing simple hurt to Smt. Bitoli PW4 on the relevant occasion, and the remaining accused persons namely, Ram Asrey and Sheo Shankar lal are found guilty of the offence u/s 323 IPC read with Section 34 IPC, on this score."
12. Sri Nagendra Mohan, learned counsel for the appellants has straneously urged that the testimony of PW-4 Smt. Bitoli, mother of the deceased is not trustworthy and reliable and her testimony cannot be made the basis of conviction on the accused. He has submitted that it was not probable or natural for a mother to accompany her son who is aged about 42-43 years while going to ease himself in the fields. He also submitted that it was also unreasonable for a person to go to the fields despite of the fact that they had toilet inside the house. To counter the prosecution version he states that in fact the deceased was murdered around midnight and the injuries received by PW-4 was on account of hitting her head with the 'cot'.
13. The second submission made by learned counsel for the appellants was that PW-1 Sriprakash Shukla PW-1 who is also the informant was a chance witness and his presence at the scene of crime is improbable and his evidence therefore is not worthy of any credence and therefore, cannot be made basis of conviction of the accused.
14. Heard learned counsel for the parties and perused the record.
15. The issue raised by the counsel for the appellant - Hardwari Lal which needs consideration is regarding the presence of PW-1 and PW-4 at the place of incident and also with regard to credibility of their evidence, which have lead to the conviction of the accused - appellants.
16. The PW-4 Bitoli, mother of the deceased in her examination-in-chief has clearly stated that time of occurrence was around 7.30am and has stated that the accused were inimical to the deceased on the basis of certain property dispute and most specifically with regard to the property left by one Raja Ram who is father of Ram Dulari, first wife of her husband Duryodhan.
17. PW-4 has narrated the entire occurrence in detail stating that she has accompanied the deceased when he had gone on the date of occurrence for easing himself to a spot near the flour mill (ata chakki) of Khema Singh which is about 200 steps from the field of Pahari Singh. She stated that 8-10 minutes later deceased Krishna Kant sat for easing himself in the north-west corner of the field, then all the accused started assaulting her son, seeing this she rushed towards west and headed towards her son (deceased Krishna Kant) and raised alarm. Hearing her shouts Upendra Misra, Sri Prakash Shukla who were passing through the "chak road" also rushed towards the scene. The accused persons had surrounded the deceased and when she rushed to rescue the deceased, accused Hardwari assaulted her with 'lathi' due to which she fell down on the ground and sustained injuries. PW-4 has further stated that deceased Krishna Kant had fallen on the ground in injured condition and the accused kept on assaulting him, accused Shiv Shankar with knife cut open the abdomen of the deceased and after that the all the accused persons rushed away from the scene.
18. The other ocular witnesses namely Shri Prakash Shukla, informant and Manohar Lal - Pw-8 rushed towards the scene on hearing the alarm raised by PW-4 Bitoli. PW-4 was injured in the occurrence on being assaulted with 'lathi'. PW-4 was medically examined by Dr. Sohan lal Gupta on 18.09.1979, at about 5.00, while he was posed in Jangbahadur Hospital. PW-4 was found to have sustained two lacerated wounds on head and one contusion, all the injuries sustained by her have been opined to be simple in nature and around 1-1/2 day old.
19. Even her cross examination PW-4 adhered to the deposition made by her in examination in chief and no discrepancy could be elicited so as to doubt her testimony.
20. From the discussion made above, the presence of PW-4 Bitoli at the crime scene cannot be doubted as she is injured witness and it was not unnatural for her to accompany her adult son to fields for easing himself. It has been brought on record as per testimonies of various witnesses as well as PW-4 herself that the accused persons were on inimical terms with deceased Krishna Kant and the accused persons on several occasion had threatened to kill the deceased when ever they used to pass in front of the house of PW-4 and in this regard PW-4 has also lodged a complaint at the concerned Police Station.
21. Hon'ble Apex Court in Manjit Singh Vs. State of Punjab, (2019) 8 SCC 529, while discussing the issue of reliability of testimony of injured witness, has held in para 13.2 of the Judgment as under :
"13.2. Likewise, the submission about want of independent witnesses in support of prosecution case is also baseless. There is no rule that in every criminal case, the testimony of an injured eye witness needs corroboration from the so-called independent witness(es). When the statement of injured eyewitness is found trustworthy and reliable, the conviction on that basis could always be recorded, of course, having regard to all the facts and surrounding factors. In the present case, the reliable evidence of the injured eyewitnesses cannot be discarded merely for the reason that no independent witness was examined."
22. The Supreme Court in Balraje @ Trimbak Vs. State of Maharashtra, (2010) 6 SCC 673, in para 30 of the judgment has observed as under :
"30. In law, testimony of an injured witness is given importance. When the eyewitness are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope inn innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically. The court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same. Conviction can be made on the basis of such evidence."
23. Apex Court, in Abdul Sayeed Vs. State of Madhya Pradesh, (2010) 10 SCC 259, while dealing with the issue of evidence of injured witness, has held in paras 28, 29 and 30 as follows :
"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P., Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.]
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under :
"28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it was proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishna v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below."
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless thee are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
24. Looking to the facts and circumstances of the present case, the act of PW-4 in accompanying her adult son while he was going out to ease himself, is not unnatural and on the contrary has been sufficiently explained and there is no reason to doubt her testimony as even in her cross examination she has consistently adhered to the version narrated by her all through out her examination in chief.
25. According to PW-1 on 18.09.1979 i.e. the date of incident, while he was going to Baba Kishan Das Temple and on the way he met Manohar Lal and Upendra Mishra at the intersection, where he heard screams of the deceased and his mother Bitoli - PW-4 which were coming from the west direction. He saw the accused-appellants assaulting the deceased (Krishna Kant) and his mother Bitoli was trying to save him. Hardwari (one of the accused) struck PW-4 with lathi and as a result of which she fell down. In the meanwhile, PW-1 reached near the place of incident and at that point of time Ram Asrey - another accused, while showing his 'kanta' said that if any one came near them, he would also be killed. After struggle between the accused-appellants and the deceased, the accused Shiv Shankar cut away the stomach of the deceased and ran away. In the meanwhile, number of persons gathered on the spot and the deceased was taken to the hospital in Aurangabad but about one mile from the hospital, the deceased passed away. PW-1 claims himself to the the witness of the crime in question. It has also come on record that PW-1 had taken the deceased to Police Station and shortly after occurrence first information report regarding the incident in question was lodged. All the aforesaid facts lead credence to the ocular testimony of PW-1.
26. Taking into consideration all the facts and circumstances as stated above, it is clear that the accused-appellants namely Ram Asrey, Hardwari Lal and Shiv Shanker Lal assaulted the deceased - Krishna Kant on 18.09.1979 by inflicting 'lathi' blows and knife injury resulting into death of Krishna Kant (deceased victim). The medical evidence on record also shows that the deceased had incurred thirteen injuries in all and in the opinion of PW-3, death took place due to coma as a result of head injury and also the injury no. 13 was sufficient in ordinary course of nature to cause death which was caused by knife. Despite the fact that mother of the deceased is an interested witness and her evidence has been carefully examined which convincingly points towards the guilt of the accused. PW-4 (mother of the deceased) had witnesses the entire incident from the start to the end and has given detailed evidence about the incident. During the incident PW-4 was also injured and her medical report has also been placed on record which shows that she sustained three injuries out of which two were lacerated woulds and one contusion, which were caused by Hardwari Lal one of the accused.
27. The testimony of PW-4 is corroborated by the testimony of PW-1 (informant) in all material particulars with regard to identity of the accused, time of occurrence, nature of weapons, taking the deceased from the scene of crime to the Police Station and lodging of the first information report. Thus, evidence of PW-4 Bitoli cannot be rejected only on the ground that she being mother of the deceased is an interested witness.
28. No other point was argued by learned counsel for the appellant.
29. In view of above, we find no cogent reason to take a view other than the view taken by the Trial Court, thus, no interference in the impugned judgment and order is required, same is hereby affirmed.
30. The appeal is dismissed.
31. Appellant no. 3 - Shiv Shanker is on bail pursuant to the order of this Court. His bail bonds are cancelled and surety is discharged. He is directed to surrender before the trial Court within month from the date of this order. The learned trial Court shall remand him to jail for serving out the remainder part of the sentences. On failure of appellant no. 3 - Shiv Shanker to appear before the trial Court within the stipulated period, the learned trial Court shall take appropriate steps against the appellant no. 3 - Shiv Shanker, in accordance with law.
32. Office is directed to transmit the lower Court record to the concerned Court forthwith.
Order Date :- 03.01.2020
A. Verma
(Alok Mathur, J.) (Pankaj Kumar Jaiswal, J.)