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Kishan Singh v. State - JAIL APPEAL No. 4669 of 2005 [2007] RD-AH 12453 (20 July 2007)


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Court No. 52

Reserved on 4.7.2007

Delivered on 20.7.2007

Criminal  Jail Appeal No. 4669 of 2005

Kishan Singh. Vs. State of U.P.

Hon'ble R.N. Misra, J

This appeal has been preferred by the appellant against the judgement and order dated 10.8.2005, passed by  Km. Manju Rani Gupta, the then Additional Sessions Judge( Court no.3), Firozabad in S.T. No. 335 of 2004, by which the appellant has been convicted for the offence, punishable under Section 304 I.P.C and sentenced to undergo ten years R.I and fine of Rs. 1000/ and in default of payment of fine, he shall further undergo three month simple imprisonment.

The facts of the case giving rise to this case are as under:

According to the prosecution case, the deceased Sanjiv Kumar was the husband of complainant-informant Smt. Radha  and the appellant is his father. The appellant was habitual drunkard and for that purpose, he used to ask money from his sons and also used to quarrel  with them and village people also.  On 8.3.2004 at about 6.00 P.M, the appellant Kishan Singh came to his house in drunken condition and asked deceased Sanjiv Kumar to pay for liqour and when he refused to give the money, the appellant gave him knife blow on his neck. The witnesses Smt. Radha, Anil Kumar and Rajiv and others saw the incident. The family members rushed up to the hospital with the injured Sanjiv Kjmar, but in the way to District Hospital, Firozabad, he died. The complainant-informant got the F.I.R. Ext. Ka-1 scribed by Surendra Singh and handed it over to Shikohabad police, the chik is Ext. Ka-4. The police registered a case against the appellant, under section 304 I.P.C., which is evident from the G.D. entry ext. Ka-5. The Investigating Officer visited the spot and prepared inquest memo, ext. Ka-2, Challan of body Ext. Ka-10, photo ext. Ka-11 and letter to R.I. Ext. Ka-13. He sealed the dead body and sent it for post-mortem examination. The post-mortem report is Ext. Ka-6. The site plan of place of occurrence, prepared by the Investigating Officer is ext. Ka-7.The accused was arrested and on his pointing out, the knife used in the murder was recovered by the police, memo of which is ext. Ka-8. After completing the investigation, the Investigating Officer has submitted charge sheet Ext. Ka-14 against the accused-appellant.

The appellant had denied the allegations levelled against him and has alleged  his false implication in this case. He has stated in his statement under section 313 Cr.P.C that for grabbing his property, he has been falsely implicated in this case. However, no evidence in defence has been given.

The accused-appellant was charged for offence, punishable under Section 304 I.P.C . In support of its case, the prosecution has examined PW-1, Smt. Radha, PW-2 Rajiv Kumar and PW-3 Anil Kumar as witnesses of fact. PW-4  Surendra Kumar, who was scribe of report Ext. Ka-1 has been examined as witness of inquest and recovery of knife also. PW-5 Ram Narain is  Constable who had prepared chik and entry in G.D for registration of the case. PW-6  Dr. S.S. Chhabra, who had conducted the post mortem examination on the body of deceased. PW-7 is Sub-Inspector Tikam Singh, who had investigated the case.

I have heard Sri Sandeep Kumar Srivastava, the learned Amicus Curiae, appointed by the court for the appellant and learned A.G.A for the State and have gone through the evidence on record.

This fact is admitted that the complainant-informant Smt. Radha is the wife of deceased  Sanjiv Kumar and the appellant is the father of deceased.  PW-2 Rajiv Kumar and PW-3 Anil Kumar are also sons of appellant and real brothers of deceased. Rest of the witnesses are formal witnesses.

According to the prosecution case, the appellant was habitual drunkard and for the money to purchase liquor, he often used to quarrel with his family members including villagers. However, in his statement, under section 313 Cr.P.C, he has denied it. PW-1 Smt. Radha has stated that the appellant, her father-in-law was a drunkard and for money to purchase the liqour, he used to quarrel with the family members. PW-2 Rajiv Kumar, the son of the appellant has also corroborated this fact. PW-3, Anil Kumar has also given same statement.  No useful cross examination has been made from these witnesses on this point. This crime was also committed for liquor. PW-1 Smt. Radha and PW-3 Anil Kumar have clearly stated that on the relevant date and time, the appellant came to  his house in drunken  condition and asked the deceased for price of liqour and when he refused to give the money, he was assaulted by the appellant by knife. PW-2, Rajiv Kumar has also given same statement. Nothing has come out of their cross examination to disbelieve them. Thus, motive for the crime is well proved.

The post mortem report ext. Ka-6 shows that the post mortem examination was conducted by Dr. S.S. Chhabra on 9.3.2004 at about 11.00 A.M. The deceased was aged about 24 years. The death was caused about 3/4 days back, which correspondence with the date and time given by the prosecution. The doctor found following ante-mortem injuries on the person of deceased:

1.Stab  wound 3 cm x 1 cm on the middle of the lower part of neck front side, muscle deep.

2.Abrasion 5 cm x 2 cm on the right forearm 2 cm below the elbow joint, laternal side.

3.Abrasion 2 cm x 1 cm on the medial  side of upper part of forearm 3 cm below the elbow joint.

      The doctor found Underwear and Baniyan on the body of deceased and all the three witnesses of fact have corroborated this fact that at the time of occurrence, the deceased was wearing Underwear and Baniyan. Learned counsel for the appellant has argued that this shows that the injuries were caused to the deceased at any other time in the night when he was either sleeping or in relaxed condition, but this argument has no force because village people often use to wear Underwear and Baniyan in their houses. The cause of death ascertained by doctor was due to shock and haemorrhage  as a result of Ante mortem injury. The injury no.1 was stabbed wound on the front side of neck and in ordinary course that was sufficient for death.

     In his cross examination, Dr. Chhabra has stated that both the chamber of heart remained empty, meaning thereby, more than sufficient blood had been out due to cut injury on the neck. Further, he has stated that even if the deceased had been given immediate medical help, even then there were less chances for his survival.

The Investigating Officer PW-7 Tikam Singh has stated that he had recovered  the knife used in the crime on the pointing out of deceased. He has prepared site plan ext. Ka-8 and the place of recovery was shown by letter A towards north side of road Firozabad  to Shikohabad. But nothing has been disclosed in the recovery memo Ext. Ka-3. The Investigating Officer has also not stated that from where the recovery of knife was made. PW-4 Surendra Kumar, the witness of recovery had also not specified place of recovery. He has stated that on the next day of incident, the police had recovered the  knife. However, he has stated that the knife was recovered in his presence. In such circumstances, the recovery of knife becomes doubtful. The Investigating Officer has stated on oath that the   clothes and knife were sent for chemical examination. The  report of chemical examiner is on record, which has not been exhibit marked by the trial court. This  is paper No.26A/5 in the trial court's file. The report shows that on the knife, Baniyan and underwear, the human blood was found. Learned trial court has rightly observed that this report was admissible in evidence without proof, under section 293 Cr.P.C. Since the eye witnesses have fully corroborated the prosecution case that the deceased was hit by the appellant by knife, therefore, this is immaterial that knife was recovered from the place of occurrence or on the pointing out of accused-appellant from anywhere else. The F.I.R of the incident was lodged by Smt. Radha, wife of deceased at 8.50 P.M on the police station Shikohabad, which was situate at a distance of about half Km from the place of occurrence. The occurrence had taken place on the same day at about 6.00 P.M. PW-1 Smt. Radha and PW-4 Surendra Kumar have clearly stated that the F.I.R was written at the place of occurrence when  the dead body of the deceased was brought back there from the way to hospital. This is, but natural that in such circumstances, the family members first make attempt to save life of injured and then legal formalities are observed. The same was done by the complainant-informant and her family members in the present case also. They rushed up to the hospital first  and when the deceased died in the way to hospital, then after coming back, Smt. Radha dictated the contents of report as has been stated by her and Surendra Singh, who had been scribe of Ext. Ka-1. PW-1 has stated that firstly  they went to government hospital Shikohabad and when  the doctor did not entertain the injured and advised to go District Hospital, Firozabad, then they proceeded to District Hospital, Firzoabad but unfortunately in the way, the injured died. Thus, there was no delay in the F.I.R.

    All the three eye witnesses are family members of the appellant. PW-1 Radha is the daughter-in-law of the appellant and wife of deceased. PW-2 Rajiv Kumar and PW-3 Anil Kumar are sons of the appellant. They have clearly stated that at the time of occurrence, the appellant came in drunken condition and asked the deceased Sanjiv Kumar for payment of liqour and when he refused for the same, he was assaulted by knife. These witnesses have very well cross examined by the appellant but nothing has come out of their cross examination to disbelieve them. PW-2 Rajiv Kumar has stated that he was a Taxi Driver but on the date of incident, he was on leave. He lives in a separate house at a distance of about 200 paces from the place of occurrence. The deceased was living in the house of his father, who is the appellant. He has further stated that he used to visit his father's house and at the time of occurrence, he was there. PW-3 Anil Kumar has stated that he was living in the house where the incident has taken place. He had seen the entire incident. He has also stated that he accompanied the injured to Shikohabad hospital from where he was advised to go District Hospital, Firzoabad. When he heard noise, he came down from the first floor of the house and saw the injured  and within one minute, he had come down. Learned counsel for the appellant has argued that this witness had not seen  the appellant while inflicting injuries to the deceased, but this argument is baseless. There is no reason to disbelieve testimony of three witnesses because they have no ill will against the appellant. They had seen the occurrence. It is very difficult to disbelieve sons of appellant, who had deposed against him. There is nothing on record to show that they have  falsely implicated the appellant due to property dispute. There is nothing on record to show that there was any property dispute between appellant and his sons. The deceased was innocent person.

     Learned counsel for the appellant has argued that no independent witness has been examined in this case, therefore, prosecution case is not believable, but this argument is baseless. The evidence on record shows that  the incident had taken place inside in the own house of appellant, therefore, there was no reason for the outsiders to remain present at the time of incident in his house. These witnesses are  natural witnesses and have deposed against the appellant without any material contradiction or omission. One contradiction has been pointed out by learned counsel for the appellant that Smt. Radha has stated that she had not gone to police station for lodging the F.I.R, whereas PW-4  Surendra Kumar has stated that she was there. Even if this fact is believed then testimony of complainant-informant cannot be disbelieved as regard the factum of incident is concerned.

   In view of my above discussion, I have come to the conclusion that the learned trial court has rightly appreciated the evidence on record and convicted the appellant. Thus, the  appeal is devoid of merit and is liable to be dismissed.

    The appeal is dismissed.  The appellant is in jail, he shall remain in jail to serve out the sentence awarded by trial court.

   Let a copy of this judgement be sent to the C.J.M  Firozabad and Superintendent District Jail, Firozabad for information and compliance.

Date: 20.7.2007



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