Om Prakash-VII ORDER
Om Prakash-VII, J.
1. Present jail appeal has been preferred by accused appellant Algu Gaur against judgment and order dated 23.9.2010 passed by Sessions Judge Mirzapur in Session Trial No. 95 of 2009 convicting and sentencing appellant for the offence punishable under Section 302 I.P.C. to undergo imprisonment for life and a fine of Rs. 5,000/-. In case of default in payment of fine, appellant was also to undergo two months' additional rigorous imprisonment.
2. Facts of case, as unfolded by informant Kali Charan Singh, son of Achhaiwar Singh, resident of Duhi Kala, P.S. Jamalpur, District Mirzapur, are that on 30.10.2008 at 6.30 p.m. while his son Dilip Kumar Singh was returning home on motor cycle from his in laws' house after leaving his wife and as and when he reached near Baha (Drainage) Culvert, Algu Gaur, who was ambuscading there armed with spade, stopped informant's son and assaulted him with spade, on which his son tried to escape but after covering some distance he fell down and accused reaching there again assaulted him with spade repeatedly due to which informant's son died on the spot. The incident was witnessed by Vinit Singh, Manoj Kumar Singh and Santosh Kumar Singh and they tried to intervene in the matter but accused also tried to cause injury upon them with spade on account of which they became scared. In the meantime, taking benefit of darkness, accused ran away towards northern side.
3. On the basis of written report (Ext. ka-1), chik First Information Report (Ext. Ka-14) was registered at Police Station concerned mentioning all details as had been described in Ext. Ka-.1. G.D. entry (Ext. ka-15) was also made at the same time.
4. Investigation of the matter was started by Sub-Inspector Ashish Kumar Singh. He proceeded to place of incident and interrogated the informant. He also took sample of plain earth and bloodstained earth and prepared memo (Ext. ka-9) in this regard. Since it was night, inquest of deceased was done next day. Inquest report of deceased was prepared which is Ext Ka-3. Investigating Officer also prepared photo lash, challan lash, letter to Chief Medical Officer, letter to R.I., sample seal, which are Ext. ka-4 to ka-8. Keeping dead body in sealed cover, it was dispatched through constable alongwith police papers for post mortem. Site plan (Ext. Ka-10) was also prepared. Investigating Officer has also recovered weapon 'spade' on pointing out of accused-appellant on the basis of disclosure statement and prepared recovery memo Ext. Ka-12.
5. Autopsy report (Ext. ka-2), after conducting post mortem on the dead body of deceased, was prepared on 31.10.2008 at 3.30 p.m.
6. As per post mortem report, deceased was average body built. Rigor mortis was present in both limbs. Eyes were half opened. Following ante-mortem injuries were found on the body of deceased:
"(i) Head lacerated wound 6 cm x 4 cm left parietal region 5 cm above left ear.
(ii) Lacerated wound 10 cm x 3 cm over left side of neck 2 cm post to left ear.
(iii) Lacerated wound left side face 10 cm x 2 cm extending to face (left) through left ear 5 cm. Lateral to outer angle of left eye.
(iv) Lacerated wound 1cm x 2 cm left side of neck extending post from just below left chin to left ear.
(v) Multiple abrasion 6 cm x 7 cm area left clavicle.
(vi) Multiple abrasion on left upper arm and fore-arm.
(vii) 3 cm x 1.5 cm abrasion over left patella of left knee."
7. On internal examination, membranes and brain were congested and blood clots present. In small and large intestines, gases and faecal matter present. Left parietal bone and left temporal bone fractured.
8. In the opinion of doctor, cause of death was shock and hemorrhage as a result of ante mortem injuries.
9. After completing investigation, charge-sheet (Ext. ka-11) against accused-appellant was filed. Concerned Magistrate took cognizance and case being exclusively triable by sessions court, was committed to Court of Sessions. Accused appeared and charge under Section 302 IPC was framed. Accused denied the charges framed against him and claimed his trial.
10. Trial proceeded and in order to prove its case on behalf of prosecution six witnesses, namely, PW-1 Kali Charan (informant), PW-2 Vinit Singh, PW-3 Dr. Awdhesh Pratap Singh, who conducted post mortem of deceased, PW-4 Manoj Singh, PW-5 Sub Inspector Ashish Kumar Singh, Investigating Officer and PW-6 Constable Gulab Shankar Sonkar, were examined.
11. After closure of prosecution evidence, statement of accused appellant under Section 313 Cr.P.C. was recorded in which he denied entire allegations levelled by prosecution and stated that he was falsely implicated due to enmity and parti bandi of Pradhani Election.
12. Having heard learned counsel for parties and going through record, trial court found that prosecution has fully succeeded in bringing home the charges against accused appellant beyond reasonable doubt and convicted and sentenced accused appellant. Hence this appeal.
13. We have heard Shri Sudist Kumar, learned counsel for appellant and Shri Syed Ali Murtaza, learned AGA for State at length.
14. It was submitted by learned counsel for appellant that prosecution was not able to prove its case beyond reasonable doubt. Date, time and place of occurrence is not established from prosecution evidence beyond reasonable doubt. Medical evidence is contrary to oral testimony. PW-1, PW-2 and PW-4 are not eye account witnesses. There are major contradictions in the statement of prosecution witnesses on the point of place of recovery of weapon 'spade'. Conduct of witnesses said to be present on the spot is unnatural and, therefore, their presence at the place of occurrence is doubtful. In fact they are chance witnesses. Reason disclosed by them regarding their presence on the spot is not acceptable. Motive is also not established. Appellant has been falsely implicated in this case due to village pradhani election. In fact deceased was done to death by some other person. Findings recorded by trial court in the impugned judgment and order are perverse and illegal warranting interference by this Court.
15. On the other hand, learned AGA supporting the findings recorded by trial court in the impugned judgment and order submitted that there in no infirmity or illegality in the impugned judgment and order. Prosecution has proved its case beyond reasonable doubt.
16. We have considered rival submissions made by learned counsel for parties and have gone through the entire record carefully.
17. In the present matter offence is said to have been committed on 30.10.2008 at 6.30 p.m.. F.I.R. was lodged on 30.10.2008 at 10.30 p.m.. Distance between place of occurrence and police station is six kilometers. Written report was prepared by one Abhishek Singh on dictation of PW-1 Kali Charan (informant). It is case of prosecution that deceased was returning after leaving his wife at the house of sister of his wife wherefrom both sisters were to go to their parental house. As and when deceased reached the place of occurrence at the time mentioned in the F.I.R., accused appellant caused injuries by spade blows due to which he died instantaneously. Although inquest report was prepared in this matter next day i.e. 31.10.2008 at 6.30 a.m. yet perusal of this document clearly indicates crime number and details of offence on it. Thus, in this matter if statements of PW-1, PW-5 and PW-6 are minutely analyzed in entirety, F.I.R. lodged in the matter was in existence at the time mentioned therein. There is only four hours difference between time of occurrence and lodging of F.I.R.. Sometime would have been consumed in preparing the written report and also in managing to go to concerned police station. Therefore, delay of four hours in lodging F.I.R. in no way could be fatal to the prosecution case. If four hours have been consumed in lodging F.I.R. and same has been properly and satisfactorily explained by prosecution witnesses, then keeping in view the entire facts and circumstances of the case and the distance between place of occurrence and police station concerned, F.I.R. in the present matter cannot be said to be a delayed document. It is pertinent to mention that if there is few hours delay in lodging F.I.R., then also it is not sufficient to disbelieve the prosecution case. Other evidence has to be considered minutely.
18. As regards motive is concerned, it is an essential ingredient to constitute the crime. Though we are oblivious of fact 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. Although nothing has been mentioned in the F.I.R. on this issue but PW-1 has stated before court in this regard that present offence was committed by accused appellant due to enmity of village parti bandi and pradhani election as both parties were supporting rival candidates.. Therefore, in our view, prosecution case cannot be disbelieved only on this score that nothing was mentioned to disclose the motive in the F.I.R. at initial stage. As stated above, though motive is an essential ingredient to constitute the crime but where there are eye account witnesses, motive loses its significance. The effect of motive attributed in the present matter has to be seen in the light of other evidence.
19. So far as presence of PW-1, PW-2 and PW-4 at the place of occurrence is concerned, PW-1 is not an eye account witness. He reached on the spot on the information received by some other person about commission of present offence. When this witness reached at the place of occurrence, he saw dead body of deceased. Thus, statement of this witness is only relevant to the extent that deceased had gone to leave his wife at the house of sister of his wife and after leaving his wife he was returning to his village and is also relevant to the fact that when he reached at the place of occurrence, saw dead body of deceased. Since PW-1 has not seen the incident, he received information from PW-2 Vinit Singh, statements of PW-2 and PW-4, who claim to be eye account witness, are material in the present matter. Counsel for appellant submitted that PW-2 and PW-4 are not eye account witnesses; they are chance witnesses; their presence on the spot is improbable and unbelievable as they were not having any agricultural instrument/equipment but they were going to irrigate their paddy crop. It was also urged that accused appellant was all alone but three witnesses are cited to be present on the spot and they did not try to save the deceased nor apprehended the accused appellant. Thus, conduct of these witnesses also shows that they were not present on the spot. If submissions of learned counsel for accused appellant are minutely analyzed in light of findings recorded by trial court in the impugned judgment and order, the same are not acceptable. PW-2 has clearly stated that Santosh Singh and Manoj Singh were also present at the place of occurrence. Their field are also situated there. They used to go for natural call in the evening and also to see the crop. He has also stated that accused appellant was sitting on the culvert having farsa and when deceased reached there, accused appellant stopped him and caused injuries on his head by the weapon 'spade' and after receiving injuries deceased fell down and again accused appellant caused 4-5 blows upon deceased. Witnesses tried to catch him but threatening them accused appellant ran away from the place of occurrence. PW-4 Manoj Singh, who is also resident of same village, has stated that his field is also situated near the pulia (culvert) (place of occurrence) and he has also seen the entire incident. In the cross-examination, this witness has explained the reason for his presence at the place of occurrence. He has stated that he was irrigating his field and due to that reason he was present at the place of occurrence and entire episode happened before this witness. If statements of PW-2 and PW-4 are minutely analyzed on the point of their presence at the place of occurrence in entirety when both are resident of same village, it was evening hour, field of witnesses is also situated near place of occurrence, irrigation of paddy crop in the month of October is natural phenomena, then we are of the view that presence of PW-2 and PW-4 at the place of occurrence at the time of incident is not improbable or unbelievable. Keeping in view the reasons explained by them for their presence at the place of occurrence, though they are chance witnesses yet despite this fact, PW-2 and PW-4 were present on the spot at the time of occurrence and their testimony on this point is not doubtful. Therefore, submissions made by learned counsel for appellant in this regard is not acceptable. But only thing remains to be discussed in this matter is as to whether oral version of PW-2 and PW-4 supports medical evidence. Though there is minor variation in their statements on point of recovery of spade, yet their presence on the spot cannot be doubted.
20. In this case, prosecution case is that accused appellant caused injuries upon deceased with weapon 'spade' (fawda). Nothing has been mentioned in chick F.I.R. as to whether spade said to have been used in commission of crime was used in committing the present offence in natural course or not. PW-2 and PW-4 when examined before Court they also did not clarify this fact in examination in chief. PW-3 Dr. A.P. Singh, who has conducted post mortem on the dead body of deceased, has found four lacerated wound on the head of deceased and two contusions on different part of body of deceased. Left parietal bone of head and left temporal bone both were found fractured and cause of death is the result of ante mortem injuries found on the body of deceased. This witness has also stated that injuries found on the head of deceased could be caused from backside of 'spade'. He has also stated that injuries were on vital part and death could come instantaneously. If opinion expressed by PW-3 in the statement recorded before Court on oath is compared with statements of PW-2 and PW-4, medical evidence does not belie the injuries said to have been caused with the use of weapon 'spade'. Thus, there is no conflict between medical evidence and oral testimony. It is not the prosecution case that 'spade' was used from its front side. Hence, on close scrutiny of entire evidence including statement of PW-3 Dr. A.P. Singh, we are of the opinion that injuries found on the head of deceased were caused forcibly by accused appellant from backside of spade.
21. As regards recovery of 'spade' is concerned, as per statement of PW-5, spade was recovered on pointing out of accused appellant from Arhar (pigeon pea) field, which was at some distance of Bhoka Nala Pulia, where incident is said to have taken place. Though PW-4 has stated that accused appellant ran away from place of occurrence throwing the spade in nala yet only on this ground recovery of spade cannot be doubted, especially when blood was found on the recovered spade in the report of Forensic Science Laboratory, as is clear from Ext. ka-17.
22. As far as submission of learned counsel for the appellant that three witnesses are said to be present at the place of occurrence but they did not try to catch accused appellant is concerned, accused appellant was causing spade blow upon deceased and incident took place within few minutes and in response witnesses tried to apprehend accused appellant but he threatened them also and also tried to cause injury upon them with spade then in that situation submission raised by learned counsel for appellant in this regard cannot be accepted.
23. So far as omissions, contradictions and laches are concerned, in the case of State of U.P. Vs. Krishna Master and others; MANU/SC/0553/2010 : 2010 Cri. L.J. 3889 (SC) 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, in Sampath Kumar vs. Inspector of Police, Krishnagiri, MANU/SC/0188/2012 : (2012) 4 SCC 124, Court 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.
24. As regards sentence awarded to appellant vide impugned judgment and order 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 the manner in which it was executed or committed. It is further settled that punishment should be proportionate to gravity of offence. 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, the enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal. Hence, applying the aforesaid principles and having regard to the totality of facts and circumstances of the case, nature of offence and the manner in which it was executed or committed, we find that punishment imposed upon accused-appellant by the 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.
25. Hence, in these circumstances, after close scrutiny of entire evidence, we are of the opinion that findings recorded by trial court in the impugned judgment and order about existence of F.I.R., presence of PW-2 and PW-4 on the date, time and place of occurrence, motive, deceased was done to death by accused appellant before PW-2 and PW-4 using weapon assigned to him and also on the point of recovery of weapon 'spade' are based on correct appreciation of evidence. There is no conflict between oral and medical evidence. After receiving injuries, deceased died instantaneously and ingredients of offence under Section 302 IPC are also clearly attracted in the present matter. Thus, on the point of conviction of appellant for the offence under Sections 302 IPC, we are 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 order are based on correct appreciation of evidence and same do not warrant interference by this Court. Minimum sentence has been imposed upon the accused-appellant for the offence under Section 302 IPC.
26. In the light of foregoing discussions, this jail appeal is liable to be dismissed and conviction and sentence of appellant for the offence under Section 302 IPC is liable to be upheld and impugned judgment and order dated 23.9.2010 is liable to be affirmed.
27. Accordingly, jail appeal is dismissed. Conviction and sentence of appellant under Section 302 IPC is upheld and impugned judgment and order dated 23.9.2010 is affirmed.
28. Let a copy of this judgment along with lower court record be sent to Sessions Judge, Mirzapur for compliance. A compliance report be sent to this Court. Copy of this judgment be also supplied to accused appellant through concerned Superintendent of Jail.
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