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Ashok v. State - CRIMINAL APPEAL No. 2729 of 1981 [2005] RD-AH 1370 (20 May 2005)


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Criminal Appeal no. 2729  of 1981

Ashok  ..................................................................Accused



State of U.P.............................................................Respondent

                                   Connected with

Government Appeal No.   917    of  1982

State of U.P...........................................................Appellant


1. Ashok

2. Shanker

3. Mahesh

4. Kallu alias Jitendra (deceased)...........................Accused


Hon'ble M. C.Jain,J.

Hon'ble M.Chaudhary,J.

               (Delivered by Hon'ble M Chaudhary,J.)

Since criminal appeal no. 2729 of 1981 Ashok versus State of U.P. and Government Appeal no. 917 of 1982 State of U.P. versus Ashok & others have arisen out of one and the same judgment and order dated 21st of November 1981 passed by Sessions Judge Jalaun at Orai in Sessions Trial no. 145 of 1981 State versus Ashok & others  acquitting accused Ashok under section 302 IPC and convicting him under section 326 IPC and sentencing to seven years' rigorous imprisonment thereunder and acquitting accused Shanker, Mahesh and Kallu alias Jitendra under section 302 read with section 34 IPC, both the appeals have been heard together and are being disposed of by common judgment.

Brief facts giving rise to these appeals are that at about 12:30 noon on 8th of April 1981 Kali Charan and his son Murat Singh were going from their house to the market, that Kali Charan was going a few paces ahead and as he reached in front of the Telies' Temple in the locality of Gandhi Nagar, Ashok alongwith one Shanker, Mahesh and Kallu alias Jitendra met him and immediately sighting Murat Singh,  Kallu alias Jitendra  shouted that he should be killed. Then Mahesh caught hold of Murat Singh,  and Ashok, Shanker and Mahesh gave him knife blows with their respective knives and on hearing the hue and cry raised by him and Murat Singh one Uma Charan , Ram Prakash Yadav, Anjani Kumar and few others  rushed to the scene of occurrence and  sighting them the assailants took to their heels.  Immediately injured Murat Singh was rushed to the Civil Hospital Konch in a rickshaw by one Virendra who reached the spot just after the occurrence.  Kali Charan, father of the injured also went to the Hospital following him.  Injured Murat Singh was  medically examined by Dr V.K.Verma, Superintendent Government Male Hospital, Konch at about 12:50 the same noon. His medical examination revealed below noted injuries on his person:

1. Incised wound 1" x 2/10" x  bone deep on the left arm front placed transversely 5" below left shoulder top.

2. Incised wound ¾" x 2/10" x bone deep  on the left arm inner side  1 ½"  below the arm pit placed transversely.

3. Incised wound 1" x 2/10" x  depth not probed on the outer side of chest (left side) 3" below the arm pit placed obliquely.

4. Incised wound 1 ½"  x 4/10" x depth not probed on the right side of back ( outer lumbar region) placed obliquely.

5. Linear abrasion ¾" x 1/10" left wrist dorsum placed obliquely.

6. Linear abrasion 1" x 1/10" on the left side of abdomen 2 ½" above umbilicus at   1 O'clock position.

The doctor opined that all the injuries were clean cut having sharp margins with tapering ends caused by sharp object  and  fresh in duration. It appears that the patient was admitted in the Hospital. After leaving his injured son Murat Singh in the Hospital  Kali Charan went  to the police station Konch situate at a distance of some four furlongs  from the place of occurrence and handed over written report of the incident to the police there.  On the basis of the written report handed over by Kali Charan at the police station   HM Bhola Prasad  registered a  crime against the accused under sections 307, 324 and 504 IPC and made entry regarding registration of the crime in the general diary (Exts. Ka 6 & Ka7).  Investigation of the crime was entrusted to SI Zubair Ahmad.

In the meanwhile on receiving the information from  Dr V K Verma, Medical Officer Civil Hospital Konch Sri  Bhawani Deen Naib Tehsildar Konch  reached the Hospital and recorded dying declaration of injured Murat Singh in presence of Dr V.K. Verma that  very noon at 1:15 p.m. ( Ext. Ka 4).

Since the condition of injured Murat Singh was quite serious he was advised to be taken to Medical College Jhansi for treatment but it appears that Murat Singh succumbed to the injuries sustained by him in the said incident on the way.

At 6:00 p.m. on 8th of April 1981  information was received at police station Konch  that  injured Murat Singh succumbed to the injuries sustained on the  way  while being taken to Medical College Jhansi and his dead body was kept in the mortuary there.  Then SI Zubair Ahmad reached there on 9th of April 1981 and drew inquest proceedings on the dead body of Murat Singh. He prepared the inquest report (Ext Ka 12) and other necessary papers (Exts Ka 19 to Ka 22) and handed over the dead body in sealed cover alongwith necessary papers to constables Sheo pal Singh and Ram Sewak, Police Out Post Medical  College Jhansi for its post mortem.

Autopsy conducted on the dead body of Murat Singh by Dr  P.C.Agrawal  District Hospital Jhansi on 9th of April 1981 at 1:00 p.m. revealed below noted ante mortem injuries on the dead body:

1. An incised wound  1 ¼" x ¾" x bone deep over left side  chest  in  posterior mid axillary line placed horizontally   4 ¾" away from left nipple spindle shaped with  margins  regular,  clean cut  smooth and everted; coagulated blood present and blood staining present around the wound.  Direction lateral to medial.

2. An  incised wound 1" x ¾"  x  bone deep  over left upper arm  medial aspect  2" away from left axilla placed horizontally spindle shaped;  coagulated blood present.  Margins clean cut, regular and everted.  Direction lateral to medial.

3. An  incised wound 1" x ¾"  x  bone deep over left arm  mid third  5" away from left shoulder horizontally placed spindle shaped Margins clean cut, regular,  smooth and  everted. Direction lateral to medial.

4. An abrasion ¾" x ¼" over left wrist extending to dorsum of left hand, obliquely placed and clotted blood present.

5. An incised wound 1 ¾" x ¾" x cavity deep over lumbar region  obliquely placed spindle shaped   at the level of  L 1  vertebrae     3 ¼" away  clotted blood present and blood staining also present. Margins regular, smooth and everted. Direction lateral to medial.

On internal examination brain and its membranes, both the lungs, pericardium, gall bladder, spleen and both the kidneys were  found congested. Right upper  pole of kidney and right side large intestine under injury no. 5 were found cut. Peritoneum was also found cut.  Huge amount  of blood was found  present in  abdomen (internal). Stomach contained semi digested food material. The doctor opined that the death was caused due to haemorrhage and shock as a result of ante mortem injuries within 24 hours.

On 11th of April 1981 investigation of the case was taken up by station officer Chandra Bhan Singh police station Konch in his  hands.  He visited the scene of occurrence , inspected the site and prepared its site plan map                (Ext ka 10). He also recorded statements of the witnesses. After completing investigation he submitted charge sheet against the accused.

After framing of the charge against the accused the prosecution examined Kali Charan (PW 4) and Ram Prakash (PW 5) as eye  witnesses of the occurrence.   PW 1 Sri Bhawani Deen, Naib Tehsildar who recorded dying declaration of injured Murat Singh in Civil Hospital Konch in presence of Dr V.K.Verma has proved the dying declaration (Ext Ka 1).  Testimony of rest of the witnesses is more or less of formal nature. PW 2 constable Sheo Pal Singh and PW 3 constable Ram Sewak to whom   dead body of Murat Singh in a sealed cover alongwith necessary papers was entrusted for its post mortem have deposed  the said fact.   PW 6 Dr V K Verma Medical officer Civil Hospital Konch who medically examined injured Murat Singh on 8.4. 1981 at about      12: 15 noon and referred him for Medical College Jhansi has proved the injury report (Ext Ka 3) and reference slip  (Ext Ka 5).   PW 7 HC Bhola Prasad  who prepared check report on the basis of the written report handed over to him  at the police station by Kali Charan and made entry regarding registration of the crime in general diary has proved these papers (Exts Ka 6 and Ka 7). He also proved GD entry regarding alteration of the crime under section 302 IPC         (Ext Ka 9).   PW 8 Station officer Chandra Bhan Singh who investigated the crime in main and after completing the investigation submitted charge sheet against the accused has proved the police papers.

The  accused examined DW 1 Naib Tehsildar Ujagar Singh who issued certificates to some persons including accused Mahesh to the effect that he was of the scheduled caste. The court examined  one Ramadhar Jha Revenue clerk tehsil Konch.  He stated that he issued the certificate to accused Mahesh  to the effect that he belonged to scheduled caste.

On a conspectus of parties' evidence on the record and hearing the parties' learned counsel the trial Judge passed the impugned judgment acquitting all the accused under section 302 read with section 34 IPC but convicting accused Ashok under section 326 IPC and sentencing him to seven years' rigorous imprisonment thereunder.

Feeling aggrieved by the impugned judgment  the State preferred  this appeal against all the accused for redress.  Accused  Ashok also filed an appeal from the impugned judgment.

We have heard learned AGA for the State appellant  and learned counsel for the accused respondents in the government appeal and learned counsel for the accused appellant and learned AGA for the State respondent in both  the  appeals  and have gone through the record.

  It is well settled that in criminal case  if two views are possible on the evidence adduced in the case one pointing to the  guilt  of the accused and the  another to his innocence,  the view  which is favourable to the accused should be adopted.  On the basis of this  very principle  appeal from  an order of acquittal  should be interfered with only  when there are  compelling and substantial reasons therefor.  After going  through the impugned judgment and order and record of the case  we find ourselves unable to  agree  with the findings recorded by the court below.

             In the instant case PW4 Kali Charan, father of the deceased and the first informant  and PW5 Ram Prakash  appeared as eye witnesses of the occurrence .  PW4 Kali Charan deposed  that at about 12:00 or 12:30 noon  the alleged day he alongwith his son Murat Singh was going  from his  house to the market;  that Murat Singh was going  a few  paces ahead from him  as he started talking to some person  for a little while on the way;  that as they reached  in  front of the Telies' temple  at Mohalla Ashok Nagar  they saw accused Ashok alongwith Mahesh, Shanker and Kallu @ Jitendra.  Then  sighting Murat Singh  Kallu  shouted that  he should  be killed ; that immediately Mahesh  caught hold  of Murat Singh and the remaining three  Ashok, Shanker and Mahesh gave him knife blows and sustaining the  said injuries  Murat Singh fell down, that on hearing the hue and  cry  raised one Uma Saran, Ram Prakash  and several other  rushed to the scene of occurrence and that then the  assailants bolted  away. He further deposed that one Virendra  who reached the scene  of occurrence immediately  thereafter took  injured Murat Singh in a rickshaw to the Civil Hospital Konch and he also followed  him to the Hospital.  It appears that since the  condition of his son  Murat Singh was  quite serious he  went for arranging  a metador and after arranging the same he went  to the police station Konch and on the way scribed the report of the  occurrence after  purchasing paper  from  a shop  and then handed over  written report of the occurrence to the  police there.  A perusal of the   check report   goes to show that he  lodged FIR of the occurrence at the police station Konch situate at a distance of some four furlongs from the   place of occurrence at  1:40 p.m. the same noon.  Thus he gave   such a  graphic  description of the occurrence  and his statement is  so natural and spontaneous and he withstood his cross - examination so firmly that his presence  at the scene of occurrence cannot be doubted. He stated in his                      cross-examination that  accused Shanker gave a knife blow to Murat Singh   from behind hitting him on the  back of his abdomen and Ashok also gave knife blows to him which he took on his  hands in order to ward off.  PW5 Ram Prakash,  son of Jagannath corroborated him deposing that he  was peon in SR  Inter College  in which  Kali Charan was teacher, that  the alleged day at about 11- 12 noon he was returning back to his house from the college and as he  reached  near  the Telies' temple he saw that accused Mahesh was  catching hold of Murat Singh and Shanker and Ashok were giving knife blows to him  and Jitendra  @ Kallu was exhorting  to kill him shouting that he should not be left  alive.  He also stated that  accused Shanker  gave knife blows to Murat Singh  hitting him at his back.  However, he stated that after  witnessing the incident he  stayed there for a few minutes and  went away to his house as he was  quite hungry.  Presence of witness Ram Prakash (PW5)  too at the scene of occurrence cannot be doubted.  Since he was peon in S R Inter College and  Board examinations were going on,  it was quite natural that at about  12:00 noon he must be returning from the college to his house after his duty.  His statement is quite natural and spontaneous and  he appears to be  an honest  and straight forward witness.  He too was subjected to rambling and  gruelling                 cross-examination but nothing useful to the  accused  could be elicited           therefrom   .

 However the trial judge  discarded  their testimony   doubting  their  presence at the  scene of occurrence  on flimsy grounds.  He doubted the presence  of  Kali Charan at the scene of occurrence  on the grounds : (i) being the father of the victim  he did not make  any effort to intervene  and save his  son  Murat Singh,  (ii) he did  not  take his injured son to the Civil Hospital, Konch as in the  injury report name of  Virendra is mentioned   who  brought the  injured to the Hospital,  (iii) Kali Charan, father of the  deceased admitted that   statement of injured Murat Singh was not recorded  by Naib Tehsildar in the Hospital in his presence and (iv)  the injured Murat Singh did not state in his  dying  declaration that his father  Kali Charan was  present at the time of  assault at  the scene of occurrence.  In our opinion neither of  these  grounds is  tenable  for  doubting  presence of  PW4 Kali Charan at the scene of  occurrence.    Because it all depends upon the  personal capacity, stamina  and mental faculties     as one may be quite  courageous  and  the other  may be timid or coward. Since the  three   assailants were  armed with knives  he could not muster  courage to go and  intervene  in order to  save his son.   Regarding the name of Virendra mentioned in the injury report as the person who took the  injured to the Hospital  there is nothing  strange as it has come in evidence that  the Civil Hospital , Konch was situate only at a distance of 40-50 paces from the place of occurrence.  Virendra also  stated that he  took the injured  in a rickshaw to the Hospital. May be that Kali Charan seeing his young son injured seriously  got perturbed and  confounded and  took 2-3 minutes time  in  getting himself  composed.  He stated that soon thereafter he followed  them to the Hospital and  after  getting the injured  son admitted there he went for  arranging  a metador as he was  to be rushed to  the Medical College,  Jhansi.  PW6  K. K. Verma, Medical Officer, Civil Hospital, Konch  who medically examined injured Murat Singh, bandaged the injuries and administered   glucose to him and referred him to  Medial College, Jhansi deposed that  at the time of referring the injured to the  Medical College, Jhansi his father Kali Charan was present  there and  he  put his signature  on the carbon copy of the reference slip in the Injury  Register.  So far as  the fact that  Murat  Singh,  the injured  did not state that his  father Kali Charan was present at the  scene of occurrence is concerned, we  have gone through  his  dying declaration and  we find that his dying declaration is not  detailed one as he  had  given only  the names of the assailants  naming two of them  who  gave him knife blows.  As his condition  was  quite serious  it is insignificant if he did not name  the witnesses who were present  there and  the details of the occurrence under the  circumstances.   The trial judge also doubted the presence of  PW5 Ram Prakash,  son of Jagannath  as his name  was not mentioned as  one of the witnesses in the FIR  lodged by Kali Charan, father of the injured.  We are of the view that if name of PW5  Ram Prakash  son of Jagannath  does not find place  as one of the witnesses in the FIR of the occurrence that fact is not sufficient in itself  to discard  his  sworn testimony if his presence at the scene of occurrence  is probable under the circumstances and his testimony  appears to be  trustworthy.  As mentioned  above PW5  Ram Prakash  stated in   his examination-in-chief  that it was 11-12 noon  when he was returning from his  college as he was  peon there and as he reached  near the Telies' temple  he saw that  accused Mahesh   was catching hold  of Murat Singh and Shanker and Ashok were giving  knife blows to him and Jitendra @ Kallu  was  shouting  that he should be killed.  He corroborated PW4 Kali Charan on all material aspects of the  prosecution   version.    However,  this witness  admitted  this much that he did not  know  accused Ashok by  face  since before the occurrence and that he  saw him for the first time at the time of  occurrence.  His statement was recorded  in the court on 15th of October, 1981 near about  six months after the occurrence.  He identified  him in the court and withstood his cross- examination so firmly that his presence can not be doubted at the scene of occurrence.

Learned   counsel for the accused respondents  also argued that  several persons  used to reside  in the vicinity  of the place  of occurrence but no independent  witness  has come forward  to support the prosecution case. Learned counsel for the respondents also argued that   since PW5 Ram Prakash  is a peon in the same college  in which Kali Charan is a teacher, he cannot be  treated to be an independent  and impartial witness. Both   the eye witnesses PW4 Kali Charan and PW5 Ram Prakash have  given truthful and  honest  account of the occurrence witnessed by them and  once these two witnesses are believed  non-examination of  independent witness would not  go to  demolish  or   introduce any element of doubt  in the prosecution case.  Otherwise too it is a matter of  common experience that  normally  persons of the locality who witness the occurrence remain reluctant to appear as witnesses  in the court unless it is inevitable for  them  because  they  do not want to invite trouble for themselves  by appearing in the court  as witnesses  and  depose  against  miscreants.  The said argument  advanced by the learned counsel for the accused respondents  and accused appellant  Ashok  is  fallacious.

Testimony of   two  eye witnesses  stands corroborated by FIR of the occurrence lodged   promptly at the police station  by Kali Charan (PW 1)  father of the victim.  Medical evidence  also lent support  to the prosecution  version as to the weapons used  in the assault, time of the occurrence  and injuries inflicted upon the  victim.  Testimony  of   two eye witnesses  gets further strengthened  by the  dying declaration  of  the injured Murat Singh recorded by  PW1 Sri Bhawani Deen Naib Tehsildar  in the  Civil Hospital at 1:15 p.m. soon after the occurrence.  A perusal of the  dying declaration  goes to show that  injured Murat Singh  stated that that very noon at about 11:00 p.m. Ashok alongwith Shanker, Mahesh and Kallu assaulted  him near  Telies' temple and Ashok  and Mahesh  gave knife blows to him and  then they  ran away.  Dying declaration   was  recorded in presence of PW6  Dr. K.K. Verma who certified  that at  that time the patient  was in a fit mental  state to give  statement.

          PW4 Kali Charan  stated in his  examination-in-chief  that accused Ashok  was being prosecuted for  causing knife injury  to Murat Singh earlier also in  the year 1980 and that case  was pending in the court at that time.

Since the order of acquittal of  accused  Mahesh,     Shanker  and Kallu  suffers from illegality and  manifest error in evaluation of evidence and the grounds on which  order of acquittal is  based are unreasonable it cannot be sustained  in law.  Since it has not come in  evidence that the injuries sustained by the   victim were  sufficient to cause  his death  in ordinary course  of nature, we find  that the accused Ashok, Shanker and Mahesh are  guilty of  offence  punishable  under section 304  Part I read with   section 34 IPC. Therefore accused Mahesh, Shanker and Kallu are convicted under  section  304 Part I  read with section 34 IPC and each of them is sentenced to seven years' rigorous imprisonment thereunder.

           Government Appeal against accused Kallu  @ Jitendra  stood abated as he was reported  having died.

        Thus Government Appeal No. 917 of 1982  State  of UP vs. Ashok   & others  is allowed and acquittal of accused respondents Shanker and Mahesh is hereby set aside. Accused Shanker, Mahesh and Ashok are convicted under section 304  Part I  read with section 34 IPC and each of them  is sentenced to  undergo  seven years' rigorous imprisonment thereunder.  Criminal appeal no.2729 of 1981  Ashok vs. State of UP  is dismissed  with the  modification  that accused Ashok  is  convicted under section 304 Part I  read with section 34 IPC instead of Section 326 IPC.

                 All the three accused respondents namely Shanker, Mahesh and Ashok are on bail.  CJM, Jalaun at Orai is  directed to   get all the three  accused  respondents   arrested   and sent them to  jail to serve out the  sentence  imposed upon them.

          Office is directed to send  copy of the judgment  alongwith  record of the case to the court concerned immediately to  ensure compliance  under intimation to this  court within two months from today.

Dated:  May  20, 2005

Dks/ Crl. Appeal No. 2729 of 1981 &

GA 917 of 1982


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