Allahabad High Court
Veer Singh Pal S/O Dharam Pal Singh vs State Of U.P. on 23 August, 2007
Author: Shiv Shanker
Bench: Amar Saran, Shiv Shanker
JUDGMENT Shiv Shanker, J.
1. This criminal appeal from jail has been preferred by appellant Veer Singh Pal against the impugned judgment and order dated 19.3.2002 passed in ST. No. 434 of 1996, State v. Virsingh Pal and Komal under Section 302 IPC, Police Station Chirgaon, district Jhansi whereby appellant Veer Singh Pal was convicted and sentenced to undergo imprisonment for life under Section 302 IPC with a fine of Rs. 1,000/- in default of which he shall undergo simple imprisonment for six months while accused Komal Singh was acquitted.
2. Brief facts, arising out of this appeal, are that Gajraj (P.W.1) submitted a written report at Police Station Chirgaon, district Jhansi on 7.7.1996 at 8.15 A.M. by stating that on 6.7.1996, his father had gone to Chirgaon for filling the form of taking loan along with Kunwar Lai. They were returning from there and reached near the village. Same time, accused Komal Singh came there and said that no amount will be withdrawn as loan without his consent. Therefore, some altercations took place between Komal Singh accused and Shyam Lai. At that time, accused Veer Singh Pal also came there and extended threats to see him within three days. Thereafter, Shyam Lal told about this incident at his house
3. On 6.7.1996, at mid-night, Shyam Lal was sleeping on his cot. The informant Gajraj and his brother Hargovind were also sleeping on the Chabutra nearby the cot of their father Shyam Lal Same time, accused Komal Rajpoot and Veer Singh Pal came there and saw the cot of his father. On hearing sounds they awakened and saw accused Komal Singh, Veer Singh Pal,having axes with them. Thereafter, they assaulted and inflicted axe injuries on his neck. They raised alarm and tried to apprehend the accused persons but they could not be apprehended. Veer Singh Pal had grudge with the family of the informant. Accused persons fled away from the place of incident after extending the threats. Several persons of the village also reached there. Shyam Lal died on the spot due to the sustaining of axe injuries. On the basis of the written report, Chik F.I.R. was prepared and investigation of the case was entrusted, to the Station Officer Shiv Singh Bisen (P.W.5). Thereafter, on the next day, the Investigating Officer reached at the place of incident and prepared the inquest report etc. After sealing the dead body of the deceased, the same was sent for post-mortem through the constables.
4. Dr. C.M. Agarwal (P.W.4). conducted the post-mortem of the deceased and following ante mortem injuries were found or the body of deceased:
1. Incised wound on right side of face on jaw size 12 cm x 04 cm x 04 cm (bone deep) extending from middle of chin to angles of jaw. Wound show fracture of jaw (mandible) and cut surfaces of muscle, vessels etc.
2. Incised wound on left side of face over and below jaw (mandible) size 8 cm x 4 cm on deep, extending from 2 cm from middle of chin towards angle of mandible.
5. The cause of death was shown due to shock and haemorrhage on account of ante mortem injuries.
6. After completion of the investigation, charge sheet was filed against Veer Singh Pal-appellant. Another accused Komai Singh was not charge sheeted and final report was filed.
7. After commitment of the case, accused Veer Singh Pal was charged for the offence under Section 302 IPC by the Sessions Judge who pleaded not guilty and claimed to be tried.
8. Later on, another accused Komal Singh was summoned for trial by invoking the powers under Section 319 Cr.P.C. by the Sessions Judge. He was also charged for the offence under Section 302 IPC to which he pleaded not guilty and claimed to be tried.
9. Accused Veer Singh Pal, in his statement recorded under Section 313 Cr.P.C. stated that he has been falsely implicated in this case under the pressure of the police. There was no enmity regarding taking of the loan from the deceased and his family members. He further stated that he was not present in the village on the day of incident. Later on, he was apprehended by the police from has house.
10. Accused Komal Singh has stated that he has been implicated falsely due to enmity and he was present in his in-laws house.
11. In support of its case, the prosecution has examined Gajraj (P.W.1), Hargovind (P.W.2), Constable 313, Nohiuddin (P.W.3), Dr. CM. Agarwal (P.W.4) and S.O. Shiv Singh Bisen (P.W.5).
12. In defence, Kalka Prasad (D.W. 1) was examined by accused Komal Singh.
13. After considering the whole evidence on record and the submission made by the learned Counsel appearing for both the parties, accused Komal Singh was acquitted while accused Veer Singh Pal was convicted for the offence under Section 302 IPC and awarded the sentence as mentioned above.
14. Feeling aggrieved by his conviction and sentence, accused Veer Singh Pal has preferred this appeal through jail.
15. Heard Sri D.R. Azad, Amicus Curiae, learned Counsel appearing on behalf of the appellant and learned A.G.A. as well as perused the whole records.
16. Learned Counsel appearing on behalf of the appellant has contended that the name of accused has not been mentioned in the inquest report along with crime number and sections. Therefore, it is liable to be deemed that the first information report was lodged later on and ante timed after preparing the inquest report and perusing the post-mortem report of the deceased. However, the trial court has wrongly discarded the point of ante timing while the Chik F.I.R. was received after five days of the alleged incident in the court of concerned Chief Judicial Magistrate. In such circumstances, no reliance can be placed on the written report.
17. It is further contended by the learned Counsel for the appellant that P.W. 1 Gajraj and P.W. 2 Har Govind are real brothers and and sons of deceased and no independent witnesses have been produced who were admittedly residing in the same locality including the neighbours. The place of sleeping of both the witnesses at the time of incident is also doubtful. In such circumstances, their presence is liable to be deemed suspicious at the time of incident. It is further contended that the deceased had taken the meal on 7.7.1996 at about 7 or 8 P.M. according to the testimony of P.Ws. 1 and 2. He was allegedly murdered about 12.00(mid-night) and undigested food was found in the stomach at the time of conducting the post-mortem of the deceased. Therefore, undigested food could not be found in the postmortem after 4-5 hours of taking the meal. This shows that the incident did not occur at about 12.00 in the mid-night but the same was committed after 1 or 2 hours of taking the meal by the deceased. This also shows that the presence of both the witnesses is suspicious. It is further contended that P.W.1 Gajraj had proceeded to the concerned police station next day in the morning. This also shows that an unknown person committed the murder of the deceased and when the dead body of the deceased was found on the next day in the morning then P.W.1 had proceeded to the police station for lodging the report regarding the murder. It is further contended that there was no motive against the appellant. Motive was allegedly given against co-accused Komal, who had been acquitted by the trial court. Two persons namely Garibey and Kalka had contested the election of Pradhan wherein the appellant had supported Garibey candidate while complainant supported Kalka Rajpoot, who was declared elected. Due to this reason Kalka Rajpoot, the elected Pradhan, has got falsely implicated the appellant due to this enmity with the connivance of P.W. 1 Gajraj. The motive against appellant has been alleged later on regarding the land as he wanted to construct the house upon the land of P.W.1 Gajraj. This version has no force as no litigation was pending in between them at the time of incident. The said motive has also not been mentioned in the first information report. Co-accused Komal has been acquitted. In such circumstances, the appellant could not be convicted on the basis of the same set of evidence. Therefore, the trial court has wrongly convicted the appellant for the murder of the deceased. It is also a fit case for acquittal according to the same set of evidence.
18. On the other hand learned A.G.A. has submitted that here is no sufficient ground regarding the contention of lodging of the F.I.R. being ante timed. Due to fear P.W.1 Gajraj could not go to the police station in the night for lodging the report. Next day in the morning, he went to the police station and lodged the F.I.R. at 8.00 A.M. after covering the distance of 5 kilometers. Therefore, it is also not liable to be deemed that there is a delay in lodging the F.I.R. and no sufficient explanation has been given regarding it. This is the case of direct evidence and motive has no significance. P.Ws. 1 and 2 although are cons of the deceased but their testimony was rightly believed by the learned trial judge. If co-accused has been acquitted on the basis of evidence, in such circumstances, appellant could not be acquitted merely on that basis. The testimony of P.Ws.1 and 2 are supported with the post mortem report. In such circumstances, the trial court has rightly convicted the appellant for the murder of the deceased.
19. So far as the first point regarding the participation in the crime is concerned, the prosecution has examined P.W.1 Gajraj and P.W.2 Har Govind as eye witnesses for proving the facts of the case, although both the witnesses are the real brothers and sons of deceased Shyam Lal. However, their testimony cannot be discarded merely on the ground of relationship but their evidence is to be scrutinized with great care and caution.
20. P.W.1 Gajraj has deposed that he along with his brother Har Govind (P.W.2) was sleeping at the Chabutra attached to his house and his father Shyam Lal was also sleeping on a cot under the said Chabutra meaning thereby on the way at the time of incident. The accused Komal Singh and Veer Singh Pal had come near the cot of his father. After hearing the sound of their coming, both had awakened and saw that accused Komal Singh and Veer Singh Pal, armed with axes were present near his father. They had assaulted Shyam Lal by giving one blow of axe each. Consequently, he sustained injuries on his neck. They also raised alarm and tried to apprehend the accused but they ran away from there by extending threats to kill them. Shyam Lal died on the spot due to the sustaining of injuries. After the incident, several persons of his village had assembled there after the departure by the accused.
21. P.W.2 Har Govind has also deposed that he and his brother were sleeping at the Thakur Baba Chabutra and the cot of Shyam Lal deceased was under the said Chabutra on the way. Same time, two persons came there wherein one was identified as Veer Singh Pal who was holding an axe and another persons was tying a Patti in his neck. Accused Veer Singh Pal assaulted and inflicted the injury in the neck of the deceased. The eyes of both the witnesses had opened at that time. Both the witnesses had tried to apprehend Veer Singh Pal but he could not be apprehended. His father had died on the spot due to sustaining the injury in the neck.
22. Therefore, the testimony of P.W.1 Gajraj reveals that appellant along with co-accused Komal Singh had assaulted upon the deceased with their respective axes. According to the post-mortem report of the deceased, two sharp edged ante mortem injuries were found on the dead body of deceased. Therefore, this shows that the present appellant had inflicted only one injury from his axe and another co-accused Komal Singh also inflicted one sharp edged injury on the dead body of the deceased. It has been similarly mentioned in the first information report lodged by P.W.1. However, this witness has changed his version in his cross-examination by stating that two assaults were made by the appellant upon the deceased and co-accused Komal Singh had not assaulted, as he was caught hold by him at the time of causing the injuries. The changed version regarding the two assaults and the role of catching hold of co-accused has neither been mentioned in the first information report nor in his examination-in-chief. Similarly, it has also not been staled by this witness to the Investigating Officer Shiv Singh (P.W.5) in his earlier statement recorded under Section 161 of the Code of Criminal Procedure. He has further stated in his cross-examination that the statement given against co-accused Komal Singh was wrong. Therefore, there is no ambiguity regarding the role of present appellant to cause one injury on the body of deceased. On the basis of evidence of this witness, he had participated in committing the murder of deceased.
23. So far as the testimony of P.W. 2 Har Govind is concerned, he has stated in his examination-in-chief that two shots were made by the appellant upon the deceased while other person did not assault the deceased. On the basis of the testimony of P.W.2 Har Govind, only the appellant was identified at the place of occurrence in causing the injuries and another was not identified. This witness has also changed his version in his examination-in-chief. According to his previous statement recorded under Section 161 of the Code of Criminal Procedure by the Investigating Officer Shiv Singh (P.W. 5), the appellant and Komal Singh, both assaulted and inflicted injuries on the body of deceased. Therefore, there is improvement in the testimony of P.W. 2 Har Govind regarding giving the second assault upon the deceased and not naming the other assailant. However, it is established that the appellant had participated in committing the murder of deceased by giving axe blow. Both witnesses have changed their version regarding the second assault given by co-accused Komal Singh. Therefore, the benefit of doubt was extended by the trial court to co-accused Komal Singh. However, the evidence of P.W. 1 Gajraj and P.W. 2 Har Govind is not liable to be thrown out merely on the basis of acquittal of co-accused Komal Singh. The principle of falsus in uno falsus in omnibus in India is not applicable as has been held in Major Singh and Anr. v. State of Punjab (2006) (56) ACC 1000(Supreme Court) in para 15 at page 103 by holding as follows:
It is well settled that the principle of falsus in unc falsus in omnibus is not an acceptable principle. It is well known fact that in our country very often the prosecution implicates not only real assailants but also implicates innocent persons so as to spread the net wide. The Court can always discriminate and find out that who were the real assailants and who were not.
24. There is minor contradiction for sleeping at Chabutra "A" attached to the house of deceased by P.W.1 Gajraj and P.W. 2 Har Govind. Both the witnesses have stated that they were sleeping at their said Chabtura at the time of incident by spreading the bed sheet. According to the previous statement of these witnesses, both were sleeping at the said Chabutra at the time of incident on one cot as per Ext. Kha-1 and Kha-2. It will not affect the testimony of P.W. 1 Gajraj and P.W. 2 Har Govind regarding their presence at the time of incident.
25. There is also one minor contradiction in the statements of both the witnesses. It has come in the testimony of P.W. 1 Gajraj that he was sleeping at his Chabutra attached to his house and P.W. 2 Har Govind has stated that he along with his brother P.W. 1 Gajraj was sleeping at the Chabutra of Thakur Baba. The statement of P.W. 5 Shiv Singh, who is the Investigating Officer, and site plan Ext.Ka-11, reveal that one Chabutra marked "A" has been shown attached to the house of these witnesses. Thereafter, there is one way which has been shown by word "B" where the deceased was sleeping. Thereafter another Chabutra of Thakur Baba has been shown by word "C". Therefore, P.W. 2 Har Govind has stated regarding the Chabutra Thakur Baba for his sleeping but it has been explained in has evidence that such Chabutra. was attached to his house. Therefore, he has indicated the same place "A" Chabutra by saying the name of Thakur Baba. It is not liable to be deemed that both the witnesses were sleeping at Thakur Baba Chabutra which is marked "C". It appears that such contradiction has come in the evidence due to some interval as he was examined after about five years of the incident.
26. It is worthwhile to mention here that P.W.1 Gajraj had admitted in his cross-examination that his wife had gone to her parents' house 15 days before this incident. P.W.2 Har Govind was a unmarried man. In such circumstances, it was also natural that both witnesses had been sleeping at their Chabutra in the same night of incident due to summer days.
27. It has not come in the testimony of P.Ws. 1 and 2, Gajraj and Har Govind, that other person/persons was/were also present at the time of incident. They have stated that they had arrived at the place of incident after running away of the accused persons. In such circumstances, no question arises of producing the independent witnesses regarding the incident. On the basis of the evidence of P.Ws. 1 and 2, the appellant had participated in committing the murder of the deceased by causing injuries on his body. Their evidence is also corroborated in the post mortem report (Ext. Ka-4) of the deceased as the deceased sustained two injuries of sharp edged weapon on his mouth and face and the said injuries were sufficient in the ordinary course of nature to cause his death.
28. So far as the contention of the learned Counsel for the appellant regarding the undigested food in the stomach of the deceased is concerned, it is pertinent to mention here that the incident had taken place in the night at 12.00 P.M. The deceased had taken the vegetarian food at about 7 or 8 P.M. As per P.W.1 Gajraj and P.W. 2 Har Govind. On the basis of undigested food, the time of death of the deceased cannot be determined. On the other hand, P.W.4 Dr. C.M. Agarwal, has stated that he conducted the post mortem of the deceased on 8.7.1996 at 10.15 A.M. The duration of the death of deceased had been shown about one and half days ago. Therefore, the duration of death of deceased had come at about 10.P.M. on 6.7.1996 or onwards. Therefore, the time of death of deceased, as stated by P.Ws. 1 and 2, Gajraj and Har Govind, is supported by the testimony of P.W. 4 Dr. CM. Agarwal as there is a margin of two hours. Several decisions have been given by the Apex Court regarding undigested food, semi-digest food and digested food.
29. In the decision of Ram Bali v. State of U.P. , it has been held as under:
The plea that the medical evidence is contrary to the ocular evidence has no substance. It is merely based on the purported opinion expressed by an hypothetical answers given to hypothetical questions, and mere hypothetical and abstracted opinions by textbook writers, on assumed facts, cannot dilute evidentiary value of ocular evidence if it is credible and cogent. The time taken normally for digesting of food would also depend upon the quality and quantity of food as well, besides others. It was required to be factually proved as to the quantum of food t hat was taken, atmospheric conditions and such other relevant factors to throw doubt about the correctness of time of occurrence as stated by the witnesses. Only when the ocular evidence is wholly inconsistent with the medical evidence the court has to consider the effect thereof.
30. In the case of State of U.P. v. Shyam Sunder , it has also been held under under-
Undigested food in stomach- murder According to prosecution case deceased was murdered at about 9 a.m. when he was taking food-Post-mortem examination revealing three ounces of semi-digested food in stomach of the dead body-Held, this supports the prosecution case that the victim had taken meal just before the incident-In view of post-mortem report, defence version that the incident had happened at 6 a.m. cannot be accepted as in that case the victim should have taken breakfast before sunrise for such semi-digested food to be present in the stomach during autopsy.
31. In Sardul Singh v. State of Punjab 993 Supp. (3) SCC 678, it has also been held under under:
Stomach contents cannot be determined with precision at the time of death- Semi-digested food found in stomach of deceased-Merely because illiterate witnesses stated that deceased took her meal immediately before the occurrence cannot by itself be a circumstance to discredit their evidence.
32. In State of Uttar Pradesh v. Sheoi Sanehi reported in, it has been held as under-
In the opinion of the doctor, the injuries caused to the three deceased persons were sufficient to cause death in the ordinary course of nature and death was caused within a period of 30 to 36 hours from the time of post-mortem examination. Dr. S.K. Govil (P.W. 7) categorically stated in his evidence that death might have been caused at about 7.30 a.m. According to the finding of doctor referred to above, as would appear from post-mortem report, stomach of deceased Rakesh alias Chhotey, aged 23 years, was empty. In this connection, reference may be made to Modi's Medical Jurisprudence page-SC 4978 and Toxicology, 22nd Edition, at pages 246 and 247 wherein it has been noted that the conditions producing changes vary so much in each individual case that only a very approximate time of death can be given. According to Modi, in addition to this, the time of death can be ascertained to some extent from the contents of the stomach, bladder and the intestines and rate of emptying of stomach varies in healthy persons which is dependent on the consistency of food; motility of the stomach; osmotic pressure of the stomach contents; quantity of food in the duodenum; surroundings in which food is taken, emotional; and residual variations. The learned author opined thus that the time varies in a man from 2.5-6 hours. The aforesaid opinion of the learned author in his favour treatise has been noticed by this Court with approval of the case of Suresh Chandra Bahri v. State of Bhihar 1995 Suppl. (1) SCC 80, at page 131 para 88 wherein it was observed that as the deceased was a young boy of 12 years, his power of digestion must be assumed to be quick and strong, therefore, if the stomach at the time of postmortem was found to be empty, it was but natural.
33. Therefore, there is no contradiction regarding the time of death of deceased according to the statements of P.Ws. 1, 2 and 4, namely Gajraj, Har Govind and Dr. C.M. Agarwal, respectively. The time of death of the deceased cannot be determined merely on the basis of any food being either digested, or semi digested or undigested. Therefore, appellant had participated in committing the murder of the deceased.
34. So faras the point of ante timing/delay in F.I.R. Is concerned, this incident had taken place on 6.7.1996 at 12.00 mid-night. The first information report was lodged by P.W. 1 Gajraj at the concerned police station at 8.15 A.M. after covering a distance of five kilo meters from the place of occurrence. Therefore, it was lodged after eight hours and 15 minutes. Sufficient explanation has been given by P.W 1 Gajraj in his report as well as in his testimony that the assailants had extended threats at the place of incident if any one dare to take action, he will be killed. He has stated in his testimony that due to fear, he could not go on the same night at the police station for lodging the first information report and in the morning of next day, he had gone to the concerned police station after sun-rise and lodged the report at 8.15 A.M. against the present accused-appellant and Komal Singh who has been acquitted by the trial court. In such circumstances, there is no inordinate delay in lodging the first information report against the appellant.
35. So far as the contention of ante timing is concerned, the Chik F.I.R. was sent to the concerned Court after lodging the same by the concerned police station in compliance of the provision of Section 157 of the Code of Criminal Procedure. But concerned court made its endorsement upon it on 12.7.96. It does not mean that it was sent very late. Moreover, Section 157 is not mandatory but it is directory. Merely, on that basis, it cannot be presumed that the F.I.R. was not in existence at the time of preparing the inquest report and post mortem report. There are several decisions of the Apex Court regarding the delay or ante timed F.I.R. The citation of some of them are given as under:
1. State of Punjab v. Hakam Singh .
2. State of Rajasthan v. Bhanwar Singh 2004(13) SCC 147.
3. Jai Shree Yadav v. State of U.P 2005 (5) SCC 788.
4. State of Punjab v. Jogindra Singh .
36. Therefore, this contention of the learned Counsel for the appellant has also no force that the first information report was lodged with great delay which has not been explained satisfactorily or it was lodged ante timed. On the other hand, there was no inordinate delay in lodging the first information report.
37. So far as the point of motive of this case is concerned, This is a case of direct evidence based upon the testimony of P.Ws. 1 Gajraj and P.W.2 Har Govind. In a direct evidence case, motive has no significance whether it has been alleged or not. It is worthwhile to mention here that if the evidence of eye witnesses is reliable, truthful or inspires confidence, then their testimony cannot be discarded merely in the absence of evidence of motive.
38. So far as the point of false implication is concerned, it has been suggested to P.Ws. 1 and 2. Similarly, in his statement recorded under Section 313 Cr.P.C. that Kalka Pradhan and Garibey of his village had contested the 'election' of the office of Pradhan wherein Kalka Pradhan had succeeded by defeating Garibey. He has supported Garibey's candidate and P.W.1 Gajraj had supported Kalka Pradhan in the said election. Therefore, he has been got falsely implicated by Kalka Pradhan with the connivance of P.W. 1 Gajraj in this case while he had not committed the murder of deceased. This contention has also no force. If the first information report was got written by Kalka Pradhan from P.W.1 Gajraj, in such circumstances, the main contestant Garibey could be implicated who had directly contested the election against him but being the supporter, he could not have got involved by Kalka Pradhan with the connivance of P.W. 1 Gajraj. On the other hand, there was no previous enmity of the appellant either with the deceased or his sons, who are P.W. 1 Gajraj and P.W. 2 Har Govind. Without any enmity the appellant could not implicated falsely in this case. This also goes against the appellant. Therefore, it is not liable to be deemed that the appellant has been implicated falsely due to the enmity of the said election.
39. From the above discussion, we hold that the trial court has rightly believed the evidence adduced by the prosecution against the appellant and there is no error in the impugned order of conviction. The prosecution has been able to prove its case beyond any shadow of doubt against the appellant. In this view of the matter, the appeal is liable to be dismissed by upholding the judgment of the trial court.
40. In the result, the appeal fails and is hereby dismissed. The impugned judgment and order of the trial court is hereby upheld. The appellant Veer Singh Pal is in jail. He shall serve out the sentence as awarded by the trial court.
41. Let a copy of this order be sent to the concerned jail authority for information to the appellant.