Allahabad High Court
Ram Prakash Yadav vs State Of U.P. on 28 September, 2018
Equivalent citations: AIRONLINE 2018 ALL 4517
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 10.09.2018 Delivered on 28.09.2018 Case :- JAIL APPEAL No. - 7016 of 2010 Appellant :- Ram Prakash Yadav Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Anita Singh,Jitendra Singh,K. Kumar Tripathi,Rukhsana, Sharda Prasad Mishra, Counsel for Respondent :- A.G.A. Hon'ble Sudhir Agarwal,J.
Hon'ble Om Prakash-VII,J.
(By Om Prakash-VII, J.)
1. This jail appeal has been preferred by accused-appellant Ram Prakash Yadav against judgment and order dated 09.09.2010 passed by Additional Sessions Judge, Court No. 1, Mahoba in Session Trial No. 01 of 2009, (State of U.P. Vs. Ram Prakash Yadav) under Section 302 I.P.C., relating to Case Crime No. 02 of 2006, Police Station Srinagar, District Mahoba convicting and sentencing accused-appellant for the offence under Section 302 I.P.C. with imprisonment for life and also fine of Rs. 10,000/-. In default of payment of fine accused-appellant was also directed to undergo one year additional imprisonment.
2. Prosecution story, in nutshell, as unfolded in written report Ext. Ka-1, is as follows:
3. Informant Katta (PW-1) moved written report Ext. Ka-1 dated 01.01.2006 at police station concerned mentioning therein that he is resident of Village Pava, Police Station Srinagar, District Mahoba. On 01.01.2006 he was returning from the field along with his younger brothers Baladeen and Kallu. It is also mentioned that informant's younger brother Kallu was going along with cattles ahead to the informant. At about 05:00 P.M. accused-appellant Ram Prakash Yadav armed with illegal weapon came near pond situated just outside the village started hurling abuses and stated that "you have spread rumour against him and had written false fact on the wall". It is also mentioned that due to this enmity, accused-appellant opened fire upon Kallu which hit him on his chest and forehead and he died instantaneously. Accused-appellant ran away towards the field. Leaving dead body at the place of occurrence in supervision of family members, informant along with written report Ext. Ka-1 came at police station to lodge F.I.R. On the basis of written report Ext. Ka-1, chik F.I.R. on 01.01.2006 at 20:30 hours was registered at Case Crime No. 02 of 2006, under Section 302 I.P.C. against accused-appellant, which is Ext. Ka-12. G.D. entry was also made on the basis of chik on the same day which is Ext. Ka-13. Investigation started in the matter. Copying chik in the case diary and recording statement of chik writer and informant, Investigating Officer reached at the place of occurrence. Since it was night hours, inquest proceeding was started on 02.01.2006 in the morning. Preparing sample seal, dead body was kept in sealed clothes and inquest report Ext. Ka-3 along with other police papers Ext. Ka-4 to Ka-7 were prepared on the same day. Investigating Officer has taken bloodstained and simple earth from the place of occurrence and keeping the same in sealed boxes prepared memo Ext. Ka-8. One used cartridge of 315 bore and one bullet 315 bore were also recovered from the place of occurrence. Investigating Officer also kept the same in sealed boxes and preparing sample seal recovery memo Ext. ka-9 was prepared. Investigating Officer has also prepared site plan Ext. Ka-10. Post mortem on the dead body of deceased was conducted on 02.01.2006 at 03:30 P.M. at the mortuary concerned.
4. On general examination, deceased was found about 35 years old. Probable time since death was about one day, he was an adult male of average height and built. Mouth was closed. Left side eye not present. Right side eye semi opened. Rigor mortis persisting all over body.
5. Following ante mortem injuries were found on the dead body of the deceased at the time of post mortem:-
"(i) An entry wound of size 14 cm X 9 cm, 2 cm anterior to left ear on the face, fractured orbital bone exposed out with blackening scarching and singing of hairs inside would.
(ii) An exit wound of size 5.5 cm X 3 cm, 3 cm anterior and slighting above to right ear with parietal bone fractured.
(iii) An entry wound of size 1 cm X 1 cm, 3 cm lateral to 12th vertebra, 14 cm below left scapula.
(iv) An exit would of size 2.5 cm X 1.5 cm, 5 cm below and right lateral to xiphi sternum and ante hypo cards in region and 12 cm above umbilicus.
An external examination stomach contains 500 milliliter peasty food material, small intestine contains gasses, large intestine gasses and faecal matter. Kidney was rapchard and congested. Gal bladder was also found rapchard. Pancriyas congested. Spleen congested. Kidneys congested. Bladder empty"
6. As per post mortem report, cause of death was shock and hemorrhage due to ante mortem fire arm injuries. Clothes found on the body of deceased were kept in sealed packet and were handed over to constables along with police papers to submit the Investigating Officer.
7. All the materials recovered in the matter were sent to Forensic Science Laboratory along with clothes worn by deceased at the time of post mortem. Investigating Officer interrogated witnesses and fulfilling all formalities submitted charge sheet Ext. Ka-11 against accused-appellant Ram Prakash Yadav for the offence under Section 302 I.P.C.. Concerned Magistrate took cognizance and case being exclusively triable by Sessions Court, was committed to Court of Sessions for trial.
8. Accused-appellant appeared and prosecution opened its case describing entire evidence collected by Investigating Officer. Trial Court after hearing accused side also framed charge for the offence under Section 302 IPC against accused appellant to which he denied and pleading not guilty claimed his trial.
9. In order to prove its case, prosecution examined five witnesses, namely, PW-1 Katta, informant who claimed himself to be eye account witness; PW-2 Baladeen, who also claimed himself to be eye account witness; PW-3 Dr. R.B. Arya, who has conducted autopsy on the cadaver of deceased; PW-4 Chandrabhan Singh, Investigating Officer; PW-5 Head Constable Gore Lal, chik writer. All the materials sent for chemical examination were placed before court and were exhibited as material Ext.-1 to Ext.-13.
10. On conclusion of prosecution evidence, statement of accused-appellant under Section 313 Cr.P.C. was recorded in which he has denied entire prosecution story and has stated that neither he hurled abuses to deceased nor caused fire arm injury to him. F.I.R. was lodged on the basis of false facts. Accused-appellant has also shown ignorance about preparation of police papers as well as report of Forensic Science Laboratory. Charge-sheet was submitted on the ground of insufficient evidence. PW-1 and PW-2 have made false statement before court due to village party bandi and he was falsely implicated in this case.
11. It also appears that accused-appellant has examined DW-1 Khalak Singh who claimed that inquest report was prepared at police station concerned and he took dead body of deceased on his tractor.
12. Having heard learned counsel for parties and going through the record, trial court has found that prosecution has fully succeeded in bringing home charges against accused-appellant beyond reasonable doubt warranting his conviction and sentence, as above. Hence this appeal.
13. We have heard Shri Sharda Prasad Mishra, learned counsel for appellant and Shri Ratan Singh, learned AGA for state at length.
14. It was submitted by learned counsel appearing for appellant that prosecution was not able to prove its case beyond reasonable doubt. Findings recorded by trial court in the impugned judgment and order are perverse. F.I.R. as well as other police papers are suspicious documents and were prepared at police station concerned after consultation. PW-1 and PW-2 both were not present on the spot and they are chance witnesses. Medical evidence is in conflict with oral version. There are major contradictions in the statement of prosecution witnesses. Referring to statement of fact witnesses, it was also submitted that if their statement be taken as true at their face value then also they could not see accused-appellant committing present offence from the place where they were present at the time of occurrence. It was next contended that contents of stomach and intestine itself create doubt about time of incident. It appears improbable and unbelievable that if deceased had taken food in the morning at about 9:00 to 10:00 A.M. then in the evening faecal matter or pasty food would be found in stomach. Motive assigned in the matter is also not proved. There was enmity between the parties and due to that reason, accused-appellant was falsely implicated in this matter. Witnesses were interrogated at belated stage. Prosecution case is also not supported with the serologist report. Empty cartridge and bullet said to have been recovered from the place of occurrence were also not sent for chemical examination. Thus, prosecution was also not able to prove place of occurrence. Referring to entire evidence and findings of the trial court, prayer has been made to allow the appeal acquitting accused-appellant.
15. On the other hand, learned A.G.A. argued that presence of PW-1 and PW-2 on the spot is not improbable. Deceased and these two witnesses were returning in the evening to their homes along with their cattles. Date, time and place of occurrence have been proved by prosecution beyond reasonable doubt. Medical evidence fully supports oral version. Contradictions said to have been occurred in prosecution evidence are minor in nature and are not fatal to prosecution case. Laches on the part of Investigating Officer is also not fatal to prosecution case as no prejudice is caused to accused-appellant. There is no illegality, infirmity or perversity in the impugned judgment and order warranting interference by this Court.
16. We have considered rival submissions made by learned counsel for parties and have gone through entire record carefully.
17. In this matter, as is evident from record, incident is said to have taken place on 01.01.2006 at about 05:00 P.M.. When PW-1 and PW-2 along with deceased were returning from the field along with their cattles and when they reached near pond shown in site plan Ext. Ka-10, accused-appellant came there armed with illegal fire arms and hurled abuses to deceased and also opened fire upon deceased which hit him as a result he died instantaneously. PW-1 and PW-2 both were also going towards their house behind the deceased. As per prosecution, they saw entire episode. They reached immediately at the place of occurrence. Since Kallu deceased had died, PW-1 leaving his dead body at the place of occurrence, preparing Ext. Ka-1 immediately went to police station concerned and F.I.R. was lodged on 01.01.2006 at about 08:30 P.M. itself. Distance between place of occurrence and police station concerned is about 11 kilometers. Total time consumed in preparing written report and reaching police station if calculated, time till lodging of F.I.R. comes three hours and thirty minutes. Prosecution case is also that after registering F.I.R., Investigating Officer copied chik in case diary and interrogated chik writer as well as informant at police station concerned itself. Thereafter he reached in the night itself at the place of occurrence. Inquest report and other police papers were prepared in the morning, as there was no sufficient source of light. Post mortem was conducted on 02.01.2006. Cause of death of deceased has been shown as shock and hemorrhage due to ante mortem fire arm injuries. Thus on the basis of above factual background, we have to analyze the submissions raised by learned counsel for parties.
18. First of all we proceed to deal with submission regarding lodging F.I.R..
19. As has been discussed here-in-above, F.I.R. was lodged within three hours and thirty minutes of the incident. Informant PW-1 prepared written report at village concerned itself and proceeded to police station on bicycle. If distance between police station and place of occurrence is taken into consideration in light of time consumed by PW-1, F.I.R. in the present matter in no way can be said to have been lodged belatedly. PW-1 has proved the fact of preparation of written report by Khalak Singh on his dictation. Therefore, submission raised by learned counsel for appellant cannot be accepted. Finding of trial court on this issue need no interference.
20. As far as preparation of inquest report and other police papers are concerned, crime number is clearly mentioned in inquest report in the same hand writing. Thus, statement of DW-1 to the extent that all police papers relating to inquest of dead body of deceased were prepared at police station concerned and he took the dead body of deceased at police station concerned before preparation of inquest and other police papers is not believable. If statement of DW-1, PW-1 and PW-4 are analysed cumulatively, submission raised by learned counsel for appellant is not substantiated. Dead body was carried after preparing inquest report at the place of occurrence for post mortem to mortuary. Findings recorded by trial court on this issue is also not interferable.
21. So far as motive is concerned, in written report Ext. Ka-1, it has been mentioned that accused-appellant asked the deceased that he had spread rumor against him and had also made writing on the walls and due to this reason, accused-appellant opened fire upon deceased. Same fact has been stated by PW-1 and PW-2 in their statements recorded before court on oath. Motive assigned against accused-appellant to commit present offence is a very simple motive but some time offences are committed on the basis of such type of motive. It may also be mentioned that motive relegates into back ground in a case of direct ocular testimony and is not of much significance, but where motive is false and cooked up, then it assumes importance to test veracity or other wise of prosecution witnesses. Thus on the basis that motive is very simple in nature, prosecution case cannot be disbelieved especially when there are ocular evidence.
22. As far as presence of PW-1 and PW-2 on the spot is concerned, it is consistent and clear case of prosecution from the very beginning that they were returning from field in the evening along with their cattles, deceased was going ahead to PW-1 and PW-2. Accused-appellant came at the place of occurrence and has committed present offence. It may be mentioned here that villagers used to go along with their cattles in morning to their fields and return in the evening along with cattles. Thus presence of PW-1, PW-2 and deceased at the place of occurrence in the evening at about 05:00 P.M. cannot be said to be unnatural. Incident took place on a path which leads to village Pava. Although it was a serpentine road but if places shown in site plan about presence of witnesses, accused and deceased are taken into consideration, PW-1 and PW-2 could easily see the incident from the place where they were present at the time of occurrence. Incident is said to have taken place at about 05:00 P.M.. Although it was month of January yet at about 05:00 P.M. persons standing at the place of occurrence, shown in site plan, could easily be seen and recognized from the place where witnesses were shown to be present in site plan. Deceased, PW-1 and PW-2 had gone to field in the morning along with their cattles is also normal activity of villagers. Thus, on close scrutiny of statement of PW-1 and PW-2 comparing the same with topographical details shown in site plan, finding recorded by trial court that PW-1 and PW-2 both were present at the place of occurrence shown in site plan and they have seen the incident is based on correct appreciation of facts and evidence.
23. It is also submitted on behalf of accused-appellant that PW-1 and PW-2 both are close relative of deceased. They are chance witnesses, therefore, their statement cannot be relied upon. Before dealing with this submission, we find it necessary to analyse medical evidence.
24. In the instant matter, prosecution case is that two fire were made by accused-appellant, which hit the deceased and he died instantaneously. If statements of PW-1 and PW-2, who claim themselves to be eye account witness, are analyzed in light of statement made by PW-3 Dr. R.B. Arya, injury nos. 1 and 3 are entry wounds, injury nos. 2 and 4 are exit wounds and blackening was found around the injury no. 1. Injuries found on the body of deceased clearly reveal that same are the result of two fires. Shape and size of entry wound if compared with shape and size of exit wound and place where entry wound and exit wound are found, submission raised by learned counsel for appellant that exit wound is not result of entry wound as shape and size of entry wound are bigger than shape and size of exit wound, is not acceptable. Injury no. 1 was caused on bone part. Thus, difference in the shape and size of entry wound and exit wound is natural one. On this issue, statement of PW-1 and PW-2 cannot be disbelieved. If time of death mentioned in F.I.R. and stated by PW-3 Dr. R.B. Arya are taken into consideration, then also it is evident that deceased was done to death on 01.01.2006 at about 05:00 P.M. and oral version of PW-1 and PW-2 finds support from statement of PW-3 who conducted post mortem.
25. As far as faecal matter and gases found in the intestine is concerned, it is settled that presence of semi digested food in the stomach of deceased is not conclusive in itself for determining time of death. The state of contents of the stomach found at the time of medical examination is not a safe guide for determining time of occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when the deceased had his last meal and what that meal consisted of. Further, presence of faecal matter in the intestines is also not conclusive, as the deceased might be suffering from constipation. Where there is positive direct evidence about time of occurrence, it is not open to court to speculate about the time of occurrence by the presence of faecal matter in the intestines. In villages, rural people usually go to answer the call of nature before sunrise, no such generalization is possible. It depends upon habit of the individual, the state of his health, particularly of his digestive system, weather and several other factors. Time required for digestion may depend upon the nature of food. Process of digestion is very greatly delayed in the case of vegetable food consumed by Indians. Time varies according to digestive capacity. The process of digestion is not uniform. It varies from individual to individual. Digestion varies with the state of gastric mucosa. It also depends on the health of person at particular time. [vide : 1971 Criminal L.J. 1511 (V 77 C 445), Sheo Darshan v. State of Uttar Pradesh, AIR 1971 SC 1794, State of Uttar Pradesh v. Shanker, AIR 1981 SC 897, Lachman Singh versus State, AIR 1952 SC 167, Nihal Singh versus State, AIR 1965 SC 26 and Shivaji versus State, AIR 1973 SC 2622].
26. In this matter, PW-1 and PW-2 have stated that they used to go to field after taking food in morning but only on this ground it cannot be held that deceased had not taken any sort of food in day hours during stay at the field. Thus, on close scrutiny of entire evidence, we are of the view that medical evidence in the present matter fully supports the oral version. There is no conflict between medical evidence and oral evidence. It is true that PW-1, PW-2 and deceased are real brothers, they are closely related but on this ground, their statement made before the court on oath, which is supported by medical evidence, and their presence at the place of occurrence at the time of incident is natural and probable, cannot be disbelieved. Their testimony cannot be discarded on the ground of relativeness. It may be mentioned here that there was no long standing enmity between them, therefore, it appears improbable and unbelievable that PW-1 and PW-2 will make false statement against accused-appellant. Thus, on this ground, testimony of PW-1 and PW-2 in the instant matter cannot be discarded.
27. As regards omissions, contradictions and laches on part of the Investigating Officer are concerned, in the case of State of U.P. Vs. Krishna Master and others; 2010 Cri. L.J. 3889 (SC) Hon'ble Apex Court held that "prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof." Further, Apex Court in Sampath Kumar vs. Inspector of Police, Krishnagiri, (2012) 4 SCC 124 has held that minor contradictions are bound to appear in statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person.
28. Thus on analysing of entire evidence with the settled principle of law, we are of the view that contradiction said to have occurred in the matter are not fatal to prosecution case and do not affect the veracity of statement of PW-1 and PW-2.
29. So far as sentence is concerned, it is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalized. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
30. In view of above propositions of law, the paramount principle that should be the guiding laser beam is that punishment should be proportionate to gravity of offence.
31. Hence, applying the principles laid down by Apex Court in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we find that punishment imposed upon accused-appellant by trial court in the impugned judgment and order is not excessive or exorbitant and no question arises to interfere in the matter on point of punishment imposed upon the appellant.
32. Hence, in these circumstances, after close scrutiny of entire evidence, we are of the opinion that PW-1 and PW-2 were present at the place of occurrence on the date and time of incident, deceased was done to death by accused appellant before these witnesses. There is no conflict between oral and medical evidence. F.I.R. is genuine document. Ingredients of offence under Section 302 IPC have been proved in the present matter. Thus, on the point of conviction of appellant for the offence under Sections 302 IPC, we are also of the opinion that prosecution was able to establish guilt of appellant for the aforesaid offence beyond reasonable doubt. Findings recorded by trial court against appellant in the impugned judgment are based on correct appreciation of evidence and same do not warrant interference by this Court.
33. In the light of foregoing discussions, this jail appeal is liable to be dismissed and conviction and sentence imposed upon appellant for the offence under Section 302 IPC is liable to be upheld and impugned judgment and order dated 09.09.2010 is liable to be affirmed.
34. Accordingly, jail appeal is dismissed. Conviction and sentence of appellant Ram Prakash Yadav under Section 302 IPC is upheld and impugned judgment and order dated 09.09.2010 is affirmed.
35. Let a copy of this judgment along with lower court record be sent to Sessions Judge, Mahoba for compliance. A compliance report be also sent to this Court. Copy of this judgment be also supplied to accused appellant through concerned Superintendent of Jail forthwith.
Order Date:-28.09.2018 Sanjeet