Allahabad High Court
Ram Nagina Sahni vs State Of U.P. on 13 January, 2020
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 7.1.2020 Delivered on 13.1.2020 Jail Appeal No.4770 of 2017 Ram Nagina Sahni ---- Appellant Vs State of Uttar Pradesh ---- Respondent For Appellant : Sri Satish Kumar, Amicus For Respondent/State : Sri Amit Sinha, AGA Hon'ble Pritinker Diwaker, J.
Hon'ble Dinesh Pathak, J.
Per: Pritinker Diwaker, J (13.1.2020) This appeal arises out of impugned judgment and order dated 14.4.2017 passed by Additional Sessions Judge/Court No.3, Gorakhpur in Sessions Trial No.74 of 2013, convicting the appellant under Section 302 of IPC and sentencing him to undergo imprisonment for life and a fine of Rs.20,000/-, in default thereof, he has to undergo six months additional sentence.
2. In the present case, name of deceased is Paras Sahni, cousin brother of the accused appellant. It is said that on account of objection raised by the deceased upon construction of a boundary wall on the land of the deceased by the appellant, the appellant on 24.10.2012 at about 7:00 am entered the house of the deceased, who was reading Newspaper at the relevant time, and caused injuries on the deceased's head by an iron rod. The deceased was immediately taken to hospital, but was declared dead. The incident has been witnessed by (PW-1) Narad Sahni (brother of the deceased), (PW-2) Gita Devi (wife of the deceased) and (PW-3) Ram Briksh (brother-in-law of the deceased). On the basis of written report, Ex.Ka.1, lodged about 8:45 am on 24.10.2012, FIR Ex.Ka.5 was registered against the appellant under Section 302 of IPC.
3. Inquest on the dead body of the deceased was conducted vide Ex.Ka.2 on 24.10.2012 and the body was sent for postmortem, which was conducted on 25.10.2012, vide Ex.Ka.4 by (PW-5) Dr H R Yadav.
As per Autopsy Surgeon, following injuries were noticed on the body of the deceased:
"(1) Traumatic swelling (6 cm x 5 cm) c L/W size 3 cm x 2 cm x bone deep over (Rt) side of Top of head. Margins irregular. Haematoma present.
(2) L/W size 1.5 cm x 1 cm x bone deep over (Rt) angle of mouth. Margins irregular. Haematoma present."
Cause of death of the deceased was due to coma as a result of antemortem injury noted above.
4. While framing charge, the trial Judge has framed charge against the appellant under Section 302 of IPC.
5. So as to hold the accused guilty, prosecution has examined seven witnesses. Statement of the accused was recorded under Section 313 Cr PC in which, he pleaded his innocence and false implication.
6. By the impugned judgment, the trial Judge has convicted the appellant under Section 302 of IPC and sentenced him, as mentioned in paragraph no.1 of this judgment. Hence, this appeal.
7. Learned counsel for the appellant submits:
(i) that there was no motive for the appellant to commit the offence;
(ii) that only family members of the deceased have been examined by the prosecution and the statements of these interested witnesses are not reliable and admissible in law.
(iii) that independent witness, Laxmi Hazzam (Barber) has not been examined by the prosecution; and
(iv) that considering the nature of weapon used in commission of offence and the injuries sustained by the deceased, at best, offence under Section 304 Part I or Part-II is made. It has been argued that the appellant is in Jail since 25.10.2012 and, therefore, after converting his conviction into lesser offence, his sentence be reduced to the period already undergone by him.
8. On the other hand, supporting the impugned judgment, it has been argued by learned State Counsel that the conviction of the appellant is in accordance with law. He submits that motive has been duly proved by the prosecution where it has come that on account of construction of a boundary wall on the land of the deceased by the appellant, which was objected by the deceased, the appellant got annoyed with the family of the deceased and as a result of which, he committed the murder of the deceased in a cruel manner. It has been argued that the appellant is a fearless person and that is why, in the day light, he killed the deceased.
9. We have heard learned counsel for the parties and perused the record.
10. (PW-1) Narad Sahni, is the informant and a brother of the deceased. He states that the appellant is his cousin and as the appellant was raising some construction on his land and the same was objected by the deceased (his brother) as a result of which, on the date of occurrence at about 7:00 am when his brother was reading Newspaper, the appellant entered the house and caused severe injuries to him by an iron rod 3-4 times. As a result of injuries, head of the deceased was literally broken in pieces and he was immediately taken to Sadar Hospital, where he was declared dead. He further states that the incident was also witnessed by (PW-2) Gita Devi and (PW-3) Ram Briksh and one Laxmi Hazzam (Barbar).
In the cross-examination, but for minor contradictions, this witness remained firm and has reiterated as to the manner in which, the deceased was done to death.
11. (PW-2) Gita Devi, is the wife of the deceased and the second eyewitness to the incident. She too has categorically stated that on account of construction of a boundary wall by the appellant, which was objected by her husband (deceased), the appellant got annoyed with him and on the date of incident, at about 7-7.30 am, he entered her house and caused injuries on the head of the deceased by iron rod, resulting his death. She states that the construction was being raised since last eight years and the appellant had encroached about 4 feet of the land of the deceased.
In the cross-examination, this witness also remained firm and nothing could be elicited from her, though it appears that exact date of raising construction has not been brought by the prosecution.
12. (PW-3) Ram Briksh, is a brother-in-law of the deceased who incidentally had come to the house of the deceased, has stated that while he was shaving and his brother-in-law was reading Newspaper, the appellant entered the house carrying an iron rod with him and caused 3-4 injuries to the deceased as a result of which, the deceased started bleeding. The deceased was immediately taken to the hospital, but was declared dead.
13. (PW-4) Subash Sahni, saw the appellant fleeing from the spot after committing the offence.
14. (PW-5) Dr H R Yadav, conducted postmortem on the body of the deceased. (PW-6) Nar Singh Gautam, is a witness of Chik FIR. (PW-7) Shri Prakash Yadav, Investigating Officer, has duly supported the prosecution case.
15. On 25.10.2012, on the pointing out of the appellant, from the thatched roof of one Prakash, an iron rod was seized. However, in the FSL report, blood has been found to be disintegrated.
16. Close scrutiny of the evidence makes it clear that on 24.10.2012, it is the accused appellant who killed the deceased by causing severe injuries on his head and face. Incident has been witnessed by three witnesses and all of them have duly supported the prosecution case. Statements of the eye-witnesses duly find support from the postmortem report of the deceased where severe injuries have been notice on his head. That apart, (PW-4) Subash Sahni also saw the appellant fleeing from the spot after committing murder of the deceased.
Yet another piece of evidence against the appellant is recovery of weapon on his pointing out. Though there is no FSL report, the recovery of weapon, which has been duly supported by the independent witness, can be treated as an additional evidence against the appellant.
17. We find no substance in the argument of the defence that the prosecution has failed to prove the motive part. It has come in evidence of almost all the important witnesses that on account of construction of a boundary wall by the appellant on the land of the deceased, which was objected by the deceased, the appellant got annoyed with the deceased and on the date of incident, after entering his house, the appellant killed the deceased. Even assuming that it is not clear as to on what date the boundary wall was constructed, it will not make difference in the case because once it has come in evidence that there was a dispute regarding construction of boundary, time becomes immaterial.
18. We further find no substance in the argument of the defence that the act of the appellant would fall within the purview of lesser offence and, therefore, his sentence be reduced to the period already undergone by him. His case does not come within any exceptions of Section 300 of IPC and, therefore, his conviction cannot be altered into Section 304 Part I or Part II of IPC. Moreover, the appellant gave repeated blows on the head of the deceased resulting his death and, therefore also, his conviction cannot be altered into any lesser offence.
19. Taking cumulative effect of the evidence, we are of the considered view that the appeal has no substance and the same is, accordingly, dismissed.
20. The appellant is in jail and, therefore, no further order is required in his respect.
21. Sri Satish Kumar, learned Amicus, who has argued the appeal on behalf of the appellant, shall be paid Rs.5000/- as his remuneration.
Dated:13.1.2020 RKK/-
(Dinesh Pathak, J) (Pritinker Diwaker, J)