Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Crl. Appeal-conviction U/S 302/34 I.P.C.-prosecution Witnesses Reliable And Their Evidence Is Unblemished-motive Also Proved-appeal Dismissed
JUDGEMENT TITLE : Ram Veer & Another Vs. State Of U.P. On 03/09/2009 By Allahabad High Court
CASE NO : CRIMINAL APPEAL NO. 2167 OF 2006
CORAM : Hon'ble Vinod Prasad,J. And Hon'ble Virendra Singh,J

HIGH COURT OF JUDICATURE AT ALLAHABAD 

AFR 
Reserved 


Criminal Appeal No. 2167 Of 2006 


Ram Veer & Another...................................Appellants 
Versus 
State Of U.P.........................................Opposite Party 


Hon'ble Vinod Prasad, J. 
Hon'ble Virendra Singh J. 

(Delivered By Hon'ble Vinod Prasad, J.) 

The Two Appellants Ram Veer And Saudan Were Convicted By Additional Sessions Judge, Court No.14, Aligarh In Sessions Trial No.1052 Of 1998, State Vs. Ram Veer And Others, Under Section 302/34 IPC, Police Station Barla, District Aligarh And Were Sentenced To Imprisonment For Life With Fine Of Rs.3000/- Each With Further Direction That In Default Of Payment Of Fine Each Of The Accused Appellant Shall Undergo Six Months Further Imprisonment, Which Conviction And Sentence Has Been Challenged In The Instant Appeal By The Appellants. 
According To The Prosecution Case Informant Afjal Ahmad Was Having Enmity And Litigation With Appellant Ram Veer And Others .On 21.2.1995, When Informant Afjal Ahmad Was Returning To His House From His Field, To Have Victuals Along With His Brothers Aflaq And Abdul Razaq, Then, At 10.00 A.m., In Front Of The House Of Raja Ram And Khem Karan Appellants Ram Veer And Saudan Along With Two Other Accused Mewa Ram And Udai Ram Surrounded Abdul Razaq, Youngest Brother Of The Informant, And Assaulted Him With Their Spades. Hue And Cry Raised By The Informant Attracted Shamim Ahmad, Naseem Ahmad And Many Other Co-villagers At The Spot Who Tried To Save Abdul Razaq But Were Kept At Bay By Ram Veer Appellant At A Country Made Pistol Point And With Threatening Utterances Not To Come Close By Otherwise They Will Be Shot Dead. Sustaining Injuries Abdul Razaq Squatted On The Ground And His Neck Was Severed By The Assailants, Who After Committing The Murder Escaped Towards Village Bai Khurd. Leaving The Corpse Of His Brother At The Spot, Informant Afjal Ahmad Got FIR, Ext Ka 1, Scribed Through Anees Mia And, After Covering A Distance Of 3 Kilometres, Lodged It At Police Station Barla, District Aligarh The Same Day At 11.30 A.m., One And A Half Hours After The Incident, As Crime No.22 Of 1995, Under Section 302 IPC. 
Head Moharrir, Siya Ram, P.W.2 Prepared The Chik FIR, Ext. Ka-2, And The Relevant GD Entry, Ext. Ka-3, And Handed Over The Investigation Of The Crime To S.I. Pushpendra Singh, P.W.5, Who First Of All Copied The Chik FIR And The GD Entry And Thereafter Recorded 161 Cr.P.C. Statement Of The Informant. Thereafter The Investigating Officer Proceeded For The Spot And Got The Inquest Report And Other Relevant Documents, Ext. Ka 9 To Ext. Ka 15, Prepared Under His Direction From S.I. K.P. Singh. Investigating Officer Also Recorded The Statements Of Eye-witnesses Shamim Ahmad, Naseem Ahmad And Anees Mirza And Thereafter Copied The Inquest Report And The Memo Regarding Collection Blood Stained And Plain Earth, Ext. Ka 8. Subsequent Thereto He Recorded The Statements Of Witnesses Of Inquest, Conducted The Spot Inspection And Prepared The Site Plan, Ext. Ka-7. He Had Also Collected A Diary And Some Papers From Near The Dead Body And Had Prepared It's Recovery Memo Ext. Ka-16. Subsequent Thereto, On 25.2.1995 Investigating Officer Copied The Post-mortem Examination Report, Ext. Ka 4, Of The Deceased And Thereafter Got The Property Of The Accused Attached. After Accused Persons Were Apprehended, Their Statements Were Recorded By The Investigating Officer, PW 5. Further Investigation Of The Crime Was Conducted By S.O. O.P. Sachan, P.W.4, Who Concluding The Same Had Laid The Charge-sheet, Ext. Ka-6, Against The Accused Appellants. 
Autopsy On The Dead Body Of The Deceased Was Performed By Dr. S.R.P. Mishra On 22.2.95 At 4.00 P.m Which Was Brought To Him By Constable Mahesh And Constable Bharat Bhushan. In The Estimation Of The Doctor, Deceased Was 26 Years Of Age And One Day Had Lapsed Since His Death. Rigor Mortis Was Present In Both The Extremities And Following Ante-mortem Injuries Were Present On The Dead Body:- 
"1. An Incised Wound In Mid Line Scalp 9 Cm X 1.5 Cm X Bone Deep. The Bone Is Cut (outer Table Of Skull 6 Cm X 1/2 Cm X Inner Table). 
2. An Incised Wound (R) Side Mandible At Its Lower Border 3 Cm X 1 Cm X Bone Deep. 
3. There Is An Incised Wound Over Neck Leaving Behind Headless Body. The Wound Surface On Head Side Area 11 Cm. X 11 Cm X All Neck Structure Deep And On Base Of Neck 11 Cm X 11 Cm X All Structure Of Thoracic Inlet. Margin Of Both Opposing Surfaces Of Wound Are Clean Cut, The Level Is 3rd Cervical Vertebra. All Structures Of Neck Are Cut-eg., Muscles, Skin Platysm, Vessels, Spine Medulla - Trachea, Oenophagm Etc. 
4. Multiple Abrasions, 'R' Delhoid Region In An Area Of 6 Cm X 4 Cm." 
In The Opinion Of The Doctor The Cause Of Death Was Shock And Haemorrhage As A Result Of Sustained Injury Number 3. 
Accused Persons Were Summoned By The Court And Their Case Was Committed To The Court Of Sessions For Trial As S.T. No. 1052 Of 1998 , State Versus Ram Veer And Others. Trail Judge Charged All The Accused Under Sections 302/34 IPC On 27.2.99 Which Charges Were Denied By The Accused Who Claimed To Be Tried. 
During The Trial, Accused Mewa Ram Expired And Therefore His Trial Was Abated And Another Accused Udai Raj Absconded And Therefore, His Trial Was Separated By The Trial Judge. Only The Appellants Before Us Faced The Whole Trial And Were Convicted And Sentenced As Mentioned Above. 
In Order To Establish The Charge And Bring Home The Guilt Of The Appellants, Prosecution, In All Examined Five Prosecution Witnesses Out Of Whom Afjal, P.W.1 Was The Only Witness Of Fact. Siya Ram P.W.2 (Head Constable, Who Had Prepared The Chik Of The GD Entry), Dr. S.R. P. Mishra P.W.3 (Autopsy Doctor), O.P. Sachan P.W.4 ( S.O. Second Investigating Officer) And S.I. Pushpendra Singh P.W.5 (First Investigating Officer) Were The Formal Witnesses. 
Informant Afjal P.W.1, In His Deposition Before The Trial Court Stated The Prosecution Version Contained In His Report Ext. Ka-1 And Further Deposed That He Was Prosecuted In A Case Of Assault On A Police Personal And In The Murder Case Of Bhura He Has Been Sentenced To Life Imprisonment And Is On Bail In The Appeal Preferred By Him. He Has Showed His Ignorance Regarding The Life Sentence Implanted On Razaq Deceased In The Murder Case Of Sardar Khan, In Which Case Father Of Witnesses Shamim And Nafis, Namely Halimdad Was Also An Accused. He Had Also Pleaded Ignorance That Lekha Raj, Father Of Appellant Accused Saudan, Had Lodged A Report Under 307 IPC. He Has Also Showed His Ignorence Regarding Another Case Of Attempt To Murder Habib. PW 1 Was Further Questioned On The Other Criminal History Of The Deceased And Of The Witnesses To Which He Has Shown His Ignorance, But Has Accepted That Nasim @ Pahadi Was Sentenced To Life Imprisonment In The Murder Case Of Bhura. He Has Further Deposed That All The Three Brothers Had Gone To The Field In The Early Hours Of The Morning To Get It Plough Through Tractor Of Ratan Singh, A Co-villager, Empty Stomach And At The Time Of The Incident They Were Returning To Their House For Lunch. He Has Also Admitted That Many People Had Collected At The Time Of The Incident. He Has Testified That The Assailants Had Carried Head Of The Deceased With Them, Which Was Buried 2 Or 3 Fields Away In A Paddy Field. He Has Further Deposed That Islam And Not The Police Had Brought The Chopped Head After Half An Hour Of The Incident And By That Time Police Had Already Arrived At The Scene Of The Incident. He Has Further Deposed That He Was Made To Sign On A Blank Paper By The Police Who Had Brought Him To The Police Station Where Also He Was Made To Sign On Some Blank Papers. He Has Further Deposed That Police Had Interrogated Him The Same Day And Deceased Was Killed In Front Of The House Of Raja Ram. He Has Further Admitted That There Are Houses Of Suresh, Ram Karan Etc. Near The Scene Of The Incident But Nobody Was Present At That Time. He Has Also Stated That Razaq Had Brought The Bundle Of Fodder On His Head, Which Was Shown To The Investigating Officer By Him. He Has Also Testified That Anees Had Companied Him At The Police Station. He Has Denied The Suggestions That He Was Not Present At The Spot And Subsequent To The Murder He Was Sent For From Village Arra. He Has Further Denied The Suggestion That The Deceased Was An Anti-social Element And Some Unknown Persons Had Done Away With Him. He Has Also Denied The Suggestion That He Had Implicated The Accused Persons At The Instance Of Halimdad, Who Was Litigating With The Appellants. 
Siya Ram P.W.2 (Head Constable, Who Had Prepared The Chik FIR And The GD Entry), Dr. S.R.P. Mishra P.W.3 (Autopsy Doctor), O.P. Sachan S.O. P.W.4 (second Investigating Officer) And S.I. Pushpendra Singh P.W.5 (First Investigating Officer), In Their Depositions In The Trial Have Stated Facts Already Mentioned Herein Before. The First Investigating Officer, Pushpendra Singh, PW 5 Has However Deposed That When He Had Reached The Spot Severed Head Of The Deceased Was Lying Near By And He Had Denied The Fact That When He Had Reached The Spot Then Islam Had Brought The Severed Head From The Paddy Field. He Has Further Deposed That The Dead Body Was Lying In Front Of The House Of Budha Sen, Which Was At A Distance Of 22 Paces Away From The House Of Raja Ram. He Has Denied That Any Bundle Of Fodder Was Lying At The Place Of The Incident. 
Appellants In Their Statements Under Section 313 Cr.P.C. Denied The Prosecution Case And Took The Defence Of False Implication Because Of The FIR Lodged By Lekhraj, Uncle Of The Appellant. They Also Took The Defence That At The Instance Of Witnesses Shamim And Nasim That The Appellants Have Been Falsely Implicated. 
Trial Court Believed The Testimony Of Afjal P.W.1 And Finding The Guilt Of The Appellants Established, Convicted Them Under Section 302/34 IPC And Sentenced Them To Imprisonment For Life With A Fine Of Rs.3000/- Each With Further Direction That In Default Of Payment Of Fine Appellant Shall Undergo Six Months Further Imprisonment. Hence, The Present Appeal. 
We Have Heard Sri B.B. Paul, Learned Senior Counsel Assisted By Sri A.P. Paul As Well As Smt. Raj Laxmi Sinha, Learned AGA In Opposition And Have Gone Through The Trial Court Record. 
Sri B.B. Paul, Learned Senior Counsel For The Appellants Submitted Before Us That Informant Afjal P.W.1 Was An Illiterate Person And He Is Brother Of The Deceased And Being A Related And Inimical Witness, His Testimony Should Not Be Relied Upon By This Court. No Independent Witness Was Examined During The Trial And, Because The FIR Was Cooked Up, Therefore, Even The Scribe Of The FIR Was Not Examined. It Was Further Submitted That The FIR Was Made Anti-timed And Informant Was Not Present At The Scene Of The Incident Nor He Had Witnessed The Incident And Subsequently He Has Cooked Up A False Case Against The Appellants. It Was Further Submitted That The Deceased Was A History Sheeter And His Enemies Had Killed Him And The Appellants Have Been Falsely Implicated. It Was Further Submitted That The Person, Who According To The Prosecution Version, Had Brought The Severed Head, Namely, Islam Was Also Not Examined And The Testimony Of Afjal P.W.1 Is Contradicted By The Deposition Of PW 5, First Investigating Officer. It Was Also Submitted That The Diary And The Papers Found Near The Dead Body Indicate That There Was Some Plan Of A Marriage Arrangement And It Was Because Of The Said Marriage Arrangement That The Deceased Was Done To Death And The Appellants Have Been Falsely Implicated. Concludingly, It Was Submitted That The Appeal Deserves To Be Allowed And The Conviction And Sentences Of The Appellants Deserves To Be Set Aside. 
Learned AGA Refuting The Contentions Of Learned Counsel For The Appellants Contended That It Is A Day Light Incident And The Prosecution Version Is Well Supported By The Medical Evidence. There Was No Reason For Afjal P.W.1 To Spare The Real Assailants And Implicate Innocent Persons. She Further Submitted That Even If It Is Taken That The Deceased Had Some Criminal History, That Does Not Give Right To The Appellants To Annihilate Him. She Submitted That It Is A Day Light Incident With An Eyewitness Account And Consistent Medical Evidence And Therefore, The Conviction Of The Appellants Is Well Merited. Consequently, Present Appeal Sans Merit And Deserves To Be Dismissed. 
We Have Considered The Arguments Raised By Both The Sides. It Is Not Disputed That The Deceased Was Murdered By Severing His Head, Which Fact Is Evident From The Autopsy Report And Evidence Of Doctor S.R.P. Mishra, P.W.3.There Is Nothing In The Evidence Of PW 1, Which Can Discredit His Testimony. It Is A Day Light Incident. No Doubt The Prosecution Has Not Examined Any Other Witness To Support The Testimony Of Afjal P.W.1, Who Is A Related, Inimical And Interested Witness But That Is No Ground For Us To Discard His Testimony. Had Somebody Else Been The Assailant, There Was No Occasion For The Informant To Spare Them And Falsely Implicate The Appellants. From The Evidence On Record It Is Evident That The Families Of The Deceased And The Appellants Were Involved In Many Cases Against Each Other. In Such A View, It Was Very Natural For The Co Villagers Not To Take Sides With Either Of The Parties. Absence Of Examination Of Any Independent Witness By The Prosecution, Thus, Remains Fully Explained. Otherwise Also We Don't Find Any Reason To Disbelieve The Evidence Of Informant Afjal P.W.1 Merely, For The Reason That He Was An Interested, Inimical And Partisan Witness. We Are Oblivious Of The Fact That Testimony Of Such A Witness Has To Be Scrutinized With Greatest Care And Caution And In Case Need Be Corroboration Must Be Sought From Independent Sources As Well But, In The Present Case, We Find The Evidence Of PW 1 Clear Cogent And Unblemished And, Therefore We Have No Hesitation To Act On It. There Is Nothing In His Deposition Which Can Damage The Prosecution Version. FIR Was Lodged With Promptness, Without Any Delay, And It Mentions That The Head Of The Deceased Was Severed. Informant Being An Old Man Aged About 55 Years, Omissions Of Insignificant Nature In His Statement During Investigation Does Not Make His Deposition In The Court Suspect. We Do Not Find Anything In The Deposition Of Afjal P.W.1, Which Can Make Him An Unreliable Witness. His Evidence Is Trustworthy And Inspires Confidence. 
The Evidence Of The Doctor, PW 3 Coupled With Evidences Of Two Investigating Officers, Namely, O.P. Sachan P.W.4 And Pushpendra Singh P.W.5, Further Cements Guilt Of The Appellants As Nothing Has Been Brought Out From Their Depositions Which Discredit The Prosecution Version. The Time Gap Between Time Of The Incident And Lodging Of The FIR Is So Meagre That It Is Difficult To Accept The Contention That The FIR Was Cooked Up And Was Made Anti Timed. No Material Has Been Brought Forth By The Appellants To Show That Ext. Ka.1 Is The Outcome Of Manipulation And Deliberations. The Incident Has Been Vividly Described By Afjal P.W.1, Who Is None Else Than The Real Elder Brother Of The Deceased. 
On An Over All Assessment Of The Facts And Circumstances Of The Appeal And The Evidences On Record We Find That The Prosecution Has Fully Substantiate It's Charge Against The Appellants Well And Therefore, We Concur With The Opinion Of The Trial Judge That The Guilt Of The Appellants Has Been Established Beyond All Reasonable Doubt. 
This Appeal Is Bereft Of Merit And Is Hereby Dismissed. 
Appellants Are Already In Jail. They Shall Remain In Jail To Serve Out Remaining Part Of Their Sentence Unless Their Sentence Is Remitted By A Competent Authority In Accordance With Law. 
Let A Copy Of This Judgement Be Certified To The Trial Court For It Is Intimation. 

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