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SHAMBHOO AND ANOTHER versus STATE OF U.P.

High Court of Judicature at Allahabad

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Shambhoo And Another v. State Of U.P. - CRIMINAL APPEAL No. 212 of 2005 [2007] RD-AH 6649 (11 April 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.41

Criminal Appeal No.212 of 1995

Sajan alias Sajna  Vs.  State of U.P.

Hon.K.S.Rakhra, J.

Hon.Vinod Prasad,J.

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

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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

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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

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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

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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.

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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.

9.4.07

Gc.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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