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Shambhoo And Another v. State Of U.P. - CRIMINAL APPEAL No. 212 of 2005  RD-AH 6649 (11 April 2007)
Criminal Appeal No.212 of 1995
Sajan alias Sajna Vs. State of U.P.
Sajan alias Sajna who was convicted by the Vth Additional Sessions Judge, Fatehpur in Sessions Trial No.24 of 1994 and sentenced to imprisonment for life u/s 302 IPC has challenged the judgement of the trial court through this appeal.
When this appeal came up for hearing before this court none of learned counsel for the appellant i.e. S/Sri V.S.Kushwaha , A.K.Pandey and P.V.Pandey mentioned in the cause list put in appearance. Hence in view of law laid down by Apex court in the case of Bani Singh Vs. State of U.P. reported in AIR 1996 Supreme Court 2439 we have heard learned AGA and have gone through the evidence on record.
According to the prosecution Hori Lal son of Daya Ram was done to death on 4.9.1993 at about 5 p.m. within the circle of police station Kalyanpur district Fatehpur. It is stated that on that date the deceased had gone to forest for grazing his cattles and his father Daya Ram the first informant was around him at some distance for collecting fuel wood. The appellant Sajan who was passing through the forest at that time was asked by Hori Lal as to where he was going. On this appellant Sajan got infuriated and attacked Hori Lal with axe which was in his hand. Hori Lal who was aged about 10 years died on the spot.
The prosecution case is that P.W.1 Daya Ram and P.W.2 Raj Narain were present around the place of occurrence. They saw the accused making assault and then running away with an axe in his hand. These two persons were also collecting fuel wood from the forest.
FIR in the matter was lodged at the police station Kalyanpur at
22 hours and the same was registered as crime case no.154 of 1993 u/s 304 IPC.
P.W.4 Awadhesh Maurya commenced the investigation forthwith and inspected the place of occurrence, prepared site plan, collected blodstained and plain earth from the spot, prepared inquest report and sent the dead body of victim for postmortem examination.
Dr.G.C.Sethi P.W.3 had conducted the post mortem examination of the dead body of the deceased on 5.9.1993 about 4.30 p.m. and found seven ante mortem incised wounds. On the internal examination 6th cirvical vertibra was found cut. Larynx trachea and bronchi were found cut. Vessels were found cut. Oesophagus were found cut. The age of the boy was found tobe ten years.
The police after investigating the case submitted charge sheet u/s 304 IPC.
When the trial commenced the trial court found the offence to be punishable u/s302 IPC to which the appellant pleaded not guilty.
Before the trial court the prosecution examined four witnesses. P.W.1 Daya Ram is the first informant and father of the victim. He got the FIR prepared with the assistance of Virendra Singh and went to the police station to lodge the same in the evening itself, on the date of occurrence. The prosecution has further examined Raj Narain P.W.2. Both these witnesses clearly named the appellant as a person who had assaulted the deceased with an axe and they have confirmed the date, time and place of occurrence and also have stated that before boy could be shifted for medical aid he died.
P.W.3 Dr.G.C.Sethi has been examined to prove the post mortem examination report of the body of the deceased. He has fully supported the prosecution story.
Lastly P.W.4 Awadhesh Maurya has been examined as
Investigating Officer. He stated that on the FIR having been lodged, he immediately started the investigation. He went to the place of occurrence , prepared site plan, collected blood stained and plain earth from the spot, prepared inquest report of the dead body. He recorded the statement of first informant Daya Ram on 5.9.1993.
The accused has not led any evidence in defence. The stand taken in the defence was that the appellant has been falsely implicated in this case on account of a boundary dispute with Daya Ram and in respect of a Chappar dispute with Raj Narain P.W.2.
Before the trial court it was contended on behalf of the appellant that FIR was ante timed and the medical and other evidence of the prosecution does not corroborate the ocular version of the witnesses. It was further contended before the trial court that on facts, offence u/s 304 IPC would only be made out and not u/s 302 IPC. All these submissions have been rejected by the trial court. We have looked into the evidence led before the trial court and come to the conclusion that the trial court has concluded the trial in accordance with law.
So far as the prosecution evidence is concerned there appears to be no doubt that the prosecution has successfully established the date, time and place of occurrence. The incised wounds found on the neck, head, chest and back of the chest fully corroborate the testimony of the prosecution witnesses.
The F.I.R. of this case was registered five hours after the incident. The police station was 15 k.m. Away. Daya Ram, the first informant explained that it took him about one or one and half an hour before he could leave for police station from the place of incident. His son had been done to death all of sudden and for no reason. In such a situation, any body would take that much time to compose himself and to come in a position to decide what action be
taken. There is thus no delay in lodging of the F.I.R.
The fact that the F.I.R. was registered on 4.9.1993 at 5 p.m. is evident from chick report , the statement of P.W.1 Daya Ram and statement of P.W.4 Awadhesh Maurya, I.O. Daya Ram says that police arrived after about 7-8 hours. After the incident he got the written report prepared and left for police station after about one and half hours. At police station F.I.R. was registered in his presence. The time on chick report, G.D.entry and statement of I.O. P.W.4 also confirm this. We are therefore of the view that F.I.R. is not ante timed.
From a perusal of the evidence we are satisfied that the presence of the witnesses on the relevant date, time and place was probable. There is no contradiction in the testimony of the witnesses about the date, time and place of the death of the deceased. Villagers going to the forest for grazing of cattles or for collecting fuel wood is common feature. P.W.1 Daya Ram says every day he used to go to jungle at about 2 p.m. to 3 p.m. for collecting fuel wood while his son used to accompany him for grazing cattles. In view of this, presence of witnesses in Jungle was very probable and natural.
It is true that the statement of first informant Daya Ram was recorded by the Investigating Officer on the following day i.e. 5.9.1993. Sample of blood stained earth was taken on 5.9.1993 and inquest was also prepared on 5.9.1993. Normally the statement of informant is recorded by the Investigating Officer immediately after commencement of the investigation of the case. However the circumstances in which the Investigating Officer of this case has recorded the statement of the first informant Daya Ram on the following morning do not have any adverse effect. The Investigating Officer has stated that it was raining in the night and the place of
occurrence was in the forest. The police station was at a distance of 15 k.ms. from the place of occurrence and the FIR was lodged at 22 hours. He collected the blood stained and plain earth from the spot in the next morning and prepared the inquest report of the dead body so as to send it for the chemical examination. We are of the view that in these circumstances, slight delay in recording the statement is probable.
We would also like to make some observation with regard to failure of I.O. in sending the blood stained earth for chemical examination. It would have been better if the I.O. had sent it for such examination but under the circumstances no adverse inference can be drawn on the basis of the failure on the part of the investigating officer in not doing so. The Investigation officer who had visited the place of occurrence found the dead body of the deceased and also found blood stained earth around the place of occurrence. The place of occurrence had therefore certain. In State of U.P. Vs. Jagdeo and others 2003 S.C.C.( Crl) 351 the Apex court has held that mere faulty investigation can not be a ground for acquittal of the accused. For the fault of the prosecution, the perpetrators of a ghastly crime can not be allowed to go scot free.
In the present case testimony of the eye witnesses is wholly trust worthy and is corroborated by medical evidence as well as by circumstances. We therefore, do not find any circumstance to give benefit of doubt to the appellant.
We therefore come to the conclusion that the appellant is a person who had given axe blows to the victim on the date, time and place in the manner as has been stated by the prosecution story.
It is true that charge sheet was submitted under section 304 IPC but the trial court found it a case for trying the appellant u/s 302 IPC.
As we have stated earlier the appellant was carrying an axe in his hand. On being questioned by the child (deceased) as to where the appellant was going the appellant got provoked and gave repeated axe blows to the child. The medical examination report clearly indicates that the appellant gave forceful blows on the child who was ten years of age only and caused his death. The nature and number of blows were quite heavy. The appellant had aimed on neck, chest and head. All these are vital parts of the body. Axe was used. In the circumstances of the case it can be fairly concluded that appellant had clear intention to cause death or he had knowledge that his action would cause such bodily injury to the victim which would be so imminently dangerous as to cause death of the victim in all probability . In the instant case we therefore fully agree with the findings recorded by the trial court that the act of the appellant falls within the definition of murder punishable under section 302 IPC.
For the aforesaid reasons we find no force in the appeal and the same is accordingly dismissed.
A copy of this judgment be sent to trial court for ensuring execution.
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