High Court · 2006

Ms. Nirupama Bajpal, iearned cpunsei for the appeilant. 1 M .iiS; pi&ri oni! ^.r^.o.uso, ^hi-^ ? ~ - l£aaE-n>^rl isgmsci '^s^-iVL' f"^rt^'A...' &.fi^f^<~A*G i.i^lfh . MQVOCSIS \lviin csi ti'' <^hr; P^'^L^,^?*- r^svsn'ji' Agrawai, P.L. for thsState/respondent. AL >J y UUI.^^ aiSS ^ ^Ki ? L.C.Bhad Ul.i The accused,''appellant Pracle^p has preferred this appea! under Section 374 (2) of the Code of Crimin^l Procedure questionlng the iegallty and correctness of the judgment of c^nviction and order of sentence dated 29;03.1996 passed by learned FourtH Additionai Ssssions Judge, Durg in S.T. No. 131/95 whersby the learn^d Additional Sessions Judge after ,i!*.i t hoiding the accused/appellant guifry br the commission of offence under Section 302 of the 1PC fbr committin^ the murder bf Tek Singh sentenced 1 him to undergo imprisonment for iife pnd to pay a fine of Rs. 25,000/- and^ aiso convlcted and sentenced him |for commlfting the murder of'Ravi * Prakash under Section 302 of th^ IPC and sentenced to undergo imprisonmeht for life and to pay firje -of Rs. 25,000/- and in default of payment of fine to furthar undergo Ri for 5-5 years in each offence. [ift^^feq XI-HC-22 'Svf ^RTRp!, s>Til^j|i», T5I?rRTIP G.4..^.-.^ 'jwr aiicRiqii f3^ra'3!I^ST '?qN?'a1%?r 311^T?T(IIWgfef •i~} •SRIWW^-1 IS^. •? fe^t Tf^3R '?? 3Tf'?n 3T[e?i Case ofthe prosecution, in brief, istl hat P.W.-2 Neelkanth Verma 'odced a report P-S at police station Uttai or|

27.12.92 at about 10.00 p.m. to the effsct that at about 9.00 p.m. h e alon A/ith Kav kash (since deceased), Tek Singh (since dece^sed) and Pradeep (accused), ali the four went tovi'ards the tube weil. Th^re they wsshed their mouth. and went ijng the cail of nature. When Ravi to'ws.rds Pahdore Road for attencj i'eached Ti®arthe.banysn fe-ee, acci. sed Pradeep caught him from behind on which Ravi Verma started cryini At this he along with Tek Singh tried to rescue Ravi upon which accused| Pradeeo attacked Tek Sinah and Tek SingSi saici that he has been stsbbet B with knife. He took Tek Singh aside 'made him !ay on the ground. in| She meantlme Ravl started runnins on Vi'hich accussd Pradeep chased hi| T! and sttacked with knife. Ravi was lying by the side of the roao' in '4 nconscious condition and biood was oozing out of ths injuries. He rais^ itf screams on which 20-25 vil'agere came on the spot and in which Di| ip Kumar Verma, Shiv Kumar Verma and Kant Sharan Verma were also fhere. Thereafter Raiendra & Hemant Kumar took the injured persons oijs bike for rsporting the matter i" the poiics station. Receiving this repori|, Ghanshyam Singh, Head Constabie reg'stered the crime under Section |Q7 of the !PC. Hcweyer, Ravi Prakash died in unconscious coridltion and fTek Singh died In the hospitai. AS the lospital, P.W.-17 Dr. V.S. Bas ^xamined the injuries on the body of Rsf-/i Prskssh snd Tsk Sincih. Th©dost mQrtsn'i or; th.s-bcsdv of Rsv! & Tak'1 . i S/t ^ •^tf 1 ? i>-£-r i & i =^/" ^fS/lJ' L ; ) t V-J i^S/i i 1 ; ^p, 1 ^.^/f^.rf a' ^/'^ lhjl ^ ^F3 £ fa; 3 ^*r i?^ Iri 17 J '\^fi t^ . ~-*^,t ^ : '^-1 ^rfi '^/ '''i < ; ? 'i i 3ingh was CDndycted by'P.W.-15 Pr. Prabhat PsYidey on 28.12,92 an' post mortem report of Ravi and T^k Singh was prepared under P-29 & 'vas siven bv Hemant Kumar Verma. n^.^i/^ffi^s'ftisf (^J]s?jplf5 riot'ic?1 P~? fo ths psnchsis.. or'SDsrsd

30. Dehati Merg intlmation P-1 /ac'^.n'sTtri, [^ ^Ra^ ':fi_wr'_'n •TSf^ffqRra, (STllu'ia. I^WA^ A^...^... snS?;^ ri^ 3:n^?r ^tfe'ff^T 'qWfeFfN'qpRJT •? IB^'rfsRSTC 3; aifigi? .3[i^! an^; ^aiwafts ^.L panchanama P-3 of the body of'Te| Singh and P-12 of the body of Rsvl Prakssh. The Snvestjgating Officsr a|3o took into possession b'ood stained a cotton . iungi ana sh'it, one Sandow Banyan, one | haif sweater, underwear of Tek Singh. One paif of V-type siippers were taken into possession from the piace of occ{jrrence under P-7 and one paii' of siippers of Ravi Verma, one shaw! pnd^blood stained and piain soii from the place of occurrence were iak^n into possession under P-8. Biood stained sot' and ptaln soil from the |!ace of occurrence of incident of Tek Singh and one piastic green colour ijnug (lota) were taken into possessjon under P-9. Site plan P-14 was prep^red by Lakhan Lai Banjai'e, Patwari. Accused Pradeep whije in poiicsj custody gave memorandum P-15 regarding the place where he kept) the weapon of ofl'ence-knlfe and in s pursuance of that, the knife was.rec^vered at the.lnstance ot' the accused under P-16. Clotbes of the accus^d were taken into possession under I P-17 and the.bicycie of the accus^d was taken mto possession under P-20. Injury report P-21A pf Ravi arjd' P-22A of Tek Slngh were prepai'ed by Dr. V.S. Baghs!. The blood st^ined artlcles Vi/ere sent to Director, . ' Forensic Science Lafcioratorif, Sagaj' from where report P-28 A, P-28 B, P-28 C and P-28 D were received.jAfter completion of the investigation, charge shest wss filed against the sjccused for the commission of offence under Section 302 of the 1PC in Sie Court'of Judlcial Maaistrate First Class, Durg who in turn committed ^he: case to the Sessions Judge, Durc from where the iesrned Fourth Adflitionai Sessions Judae receivsd the case on transfer for trial. i J— Xi-HC-22 "s^ ^(rai5izi, ®-ai-y'!s,P«ni-«y ....^^.S^.ns^J^ iK|S.<l ?5I EN?3?T^T S^^ilqi ^llea •3a^(?Riw:^tg ^^?ei'cft;l 3JP^t ^ TS^ <^f$l< ^siRraaK^i —4— Prosecution In order to estab'ish the t examined as many as seventeen *4 was a!so i'ecorded under Section 3' tl'i.e 'materia! appearing against him itl that the witnssses haye so deposed] sharge against the accused/appeiiant Mtnesses. Statement of the accused 13 of the Cr.P.C. in whlch he denied the prosecutjon evidence and stafed against him on account of animosity and he is innocent ari'd has been falsi ^ly implicated In the crime. Leamed Additional Sessions Judg4 after hearing the arguments of the Additional Public Prosecutor and counsel the accused/ao^eiignt convicted and ssntenced the at cused/aDpeliant as /^n^r ;n paragraph one ofthejudgment. We have. heard Ms. Nirupama sajpai, leamea counse accused/appeitant and Sh" U.N.S.Cj eo, iearned G,A. with Shi iavmara o on behalf ofthfe State. HoiT'icidal deaths of Ravi Prakash iTek Singh are not in dispute. It is aiso not in dispute that the sccused ancj the deceased persons narneiv Ravi Prakash and Tek Singh were cdusin brothers jusin brother; As far as the involvement of the accil ased/appeliant Pradeep in committlng the murder of Ravt Prakash & Tek Sij the accused/appeliant argued that F) examination has stated that he was li ngh is concernsd, tearned counse' for '.W.-2 Neelkanth Verma in the cross hot abie to see that wlth whlch kind of j j weapon the accused atfacked the dj sceased and she further argued ihat the incldent took place in the dark him (Neetkgnth Verma) to have w| iighf therefore it was not possibie for |tnessed the sccused attacking the [•'il^^feq XI-HC-22 ~s^ •^M\"\^, 's^ira'TS, Ryi'yy.i a..^.^...ig> aiRg'^il E<-ii<*>' 3?1^?T ^*iic^ ^^^ MWI ^viwsws ^W<i^?i ^.^-^t ~^ i^y.i ^f^tri-K ^ isf'dN s^^i —5+ deceased with the said knife. Moredve Prakash ran awav and thereafter he about 40 steps away frorn the body >r the prosecution case is that Ravi jwas attacked arid his bodyvvas found bf Tek Sihgh and'in such a dark nlaht it was nct posslbie for.Neeikanth Vel 1'ma to witness the attack being made by accused pradeep. She furthec ar^ue jued that even the recovesy wifness of la'has turned hostile and the reccven,' knlfe P.W.-9 Jitendra Kumar Madharji of knife 1s 'aiso not proved. On the other hand Shrl U.N.S.Det ;, tearned G.A. with Shri'Ravindra Agrawal, P.L. for the State supportecj the judement of the tria! Court. in order to appreciate the argumerj advanced bv the counsei for the i'espectlve parties we have scruti witnesses. P.W1-2 Neeikanth, as pes with accused Pradeep, deceased pi and a!S of them went toaether to mouth and thereafter they proceedes cs!! of nature. P.W.-2 in his evidenc. nized the evldence of orbsecution the prosecution cass. He was along srsons Ravi Prskash and Tek Sinah t tybe well where they washed their towards Pahdore Road to attend the ^ has stated that he along with Ravi, Fek Slngh and Pradeep wenf to attei|)d the cal! of nature towards Pahdore Koaa and aner covenna eertair tance'Ravi Prak« 'aiseci cnes. aiong with Tek Singh sa*/ that accij whlch h®aiong v/ith Tek Sinah i.ntei sed pradeep had caught Ravi upon ijvened ^whereupon accused Pradsep pu.shed them and attacked. Tek Sin^h and thereafter he ran towards the ;ide where Ravi Prakash ran. He jenquired ft'om Tek singh that.wrtat i happsned. At thjs Tek Singh repliec| that Pradeep a'itacked him v»'ith the knife on which he took Tek Singh onlthe side ofthe road and made him to sie on the ground and started shoutjng "run, run" on which the viiiagers 1-1 > [^3 ^s^ XI-HC-22 '3^? 'sfwi'if, 9-aww, raeii-yy ^^ .:.5i^...~lsi fM. "^ j2W^- SI'^H'^i 'R'IRTSIB?! ^-l-ilq7 W^ siK% ?:Egiw¥!wg -<0 "wRn'qre'st-'T ~^ SfRP? 3?Iq?i' came and fhereafter they saw that distance of40 s'sps away from Tek Singh. Btood vva^ oozing out of ths injuries of Ravi Prakash and thereafter the viilag^ scooter to the Doiice station |'s took Tek Singh. and Ravi on the ladged the report P-6. in ule cross examination DV ivir. LJI jurandar he statecl that when accused Prsdeep caught Ravi, he along h Tek Sinah and Ravi were at a distancs of 1-1 14 feet Ravi raised t| Thereafter Ravi ran away from th^i |ie cries but he cid not speak anything. fre and he did noi saw wfo attacksd Ravi and he even could not see wit} h which weaoon the accused attacksd Tek Sinsh but he was abie to see aiso did not saw the knife in ihe ha| that Tek Singh told him that Prade^: this pniy he is stating thst Pradeep Iji Panna Lai has siated that on heasi ithat accused afiacked Tek Slngh, He |id of accused Pradeep. Again he said Ip has'attacked him with the knife. On sas attacked him with the khife. P.VV.-4 Eng the screams they reached on the spot and on en.quiry from P.W.-2 Nj ^eikanth he informed that the accused |nd Ravi with the knife. They reached Pt-adeep has attacked Tek Slngh ^ Irom Tek Sinah v/ho was conscious, near Tek Singh snd on enquir/ nas'rsted that Pradeep has attacke^! him with a knife and' then ihey went towards Ravi vvho was iying on th^ iround but he was unconscious and there was dark. Simiiar is the evid^ ics of P.W.-5 Kant Sharan Verns fhat Tek Singh dlsclosed that Pradeeo attacked him with the knife and Fiavi was iying ahead in unconscious cosj] injuries on the body of Ravi & Tek ^i Thanu Ram. P.W.-7 Ashok Kumar B idition snd biood was oozing out of ths lingh. SimiSar is the svidence of P.W.-6 las also stated tha{ Tek Sinah narrated thaf accused pradeep has attackeel Ghanshyam Singh, Head Constab!4 him and Ravi.with ths knife. P.W.-12 i?s cf^tsj^ ths;f :FiH fhs ri^fft f^f iHi'^id^H' *»f^'^i^\H ^ii^tL -^i? ^Il^ ^riC^ fc-& Ve St t^-i-wi.^a i pfiairaq XI-HC-22 "3^ ''-liwpt, IR^^iT R:'W3ns!CT ^*n^-'s?i^T SIR^tI^iRR'HRa .C.IA.^^.^sf^ 'wwran'wraf •4 Ti'sr •(fSFerc i? Slfigq 31Rg -I ~at 'iuX'u aDou'i p.m. wnen ne was o; came and iodged the report P-6. T! i duiy ai puiice stauyn Utlai, Ntite!kt<!!th terefore from the above evidence it is established that at the time of ci ;SIi! sccused Pradeep, eyewitness Nee| scaiiisi, eassci h 's. i eK ymsn anct KSV! were together. They vi'ent togetheii to the tube wel! and from ihere they v/ent to attsnd the cail of nature and after covering csrtain distance, before they couid'sit to attend ihe call of n| that P.W.-2 Neelkanth has stated ature, the incident took piacs. !t is true iat due to darkness he was not able fo see that with which kind of we; ;f! ]?^ri P?^fi?s;'an ?;"f?;ft<'jsd h^ it ^^4.LtlluTi\+w:-^ ^ i^! ? £x<Srfii S^ Js*/Eh-f wi^^*^3-^'^\^ 1 deceased Tek Sinsh was consc'o! attacked him wtth the knlfe and ihe ks.and he clearlv stated that accused same statementwas 'nade by hlm to other witnesses whose name has b^en menSioned eari'er. Thus, deceassd Tek Sing'n' mad®oral dying declai tion before these witnesses.which v'as voiuntary and immediate and before t whom there was no occssion to make a false statement implicating the ac| sused in the crime in ausstion. ^ The fsct that all the four persons witness Neeikanth were togethei) the two deceased, accused and eye has not been disputed. "^^to The dsceased oersons were seen s-livi with the accused and the eye witness and the incident of murders of Ravi Prakash and Tek Sinah was so proximate and there is no evidencj thev stsrted to attend the cali of anvbodv elss came there. P.W. accused attacked Tek Sinsh and Tl accused attacked him 'A'ith the kr1 that In bsfween the short time vmen tature and the insident happened and 1-2 Neeikanth has c'eariy stated shat [ek Singh made a dv'ng declaration that life. This estabiishes ihat the accused attacked with fhe knlfe. Now;comink to the attack ypon Ravi is'coRcerned, as per NeelkanSh, this witness in ^ Se first instance stated that the accused <& [^ ^s^ Xi-HC-22 -ys:. •^n^Rpi, s»tii«ire',TOCTTay ........^^.£^.0^& S'icSI'SSI 3?i^?i 5irRw'HI5?[ ^fi^. '?^I^? ^f^^ -%. wtt-!^ :WRn '?1s^"ipReiT ^? 31RF; ;S!KH ~ • cauaht Ravi on Vi'hich he ralsed t| screams whereupon he and Tek Singh intervened and separated Pr^ from Ravi whereupon Pradeep attscked Tek Singh with a knifej and after getting tiimself free from Tek Singh and Neeikanth.he chased) 'A'as founc! sustainlng injuries. Rav' Prakash and bedy of Ravi Prskash 'herefore is established that accused Pradeep was the author of the s1 ;d wounds infiicted uoon Ravi.

12. Thus, based on the dying declai tetion of Tek Singh and witnessing cf the 'Neeikanth it is s cnme bv P.W.-2 the author of the injuries •nfSicti ^tabllshed that the accused Pradeep v/as id on the bodv of Tek Sinah ana Ravi Verma. This fact stands further c biTobcr^tsd fov ths fsct that wlthin no tin^s PW.-5 Neeikamh lnd"ed the rei ]'^W^'iT-.'^S.S',»': ^ ^Vwy^'V^ S.E ji^ ; ^; V-~^. bort P~©in th©oolics st^tlon'Uttai •snd In which hc h^s c sssi'lv msntlonsci -w^^i |»h?sf •%^nu!=;!sn pr^^iSisn ??t"sr>:;r£s^ Nt?s'^ .^n^ •!iu<3» fa^'^'It^- ^"^^r ^- '^,; ^Litikt^Tll^ a'-^'fuf^u^ t h^."-W.~\^ <irit L r^/.l t ^.tA ^' ~^/ 'fc' i- ; Tek Singh with knife. Even thi •A'hich have been proved by P.1 Prabhat Pandey as vsrious cul!^ 'fccdy of Ravl and Tek Sinah whid iHjury rspons ^na posT mor^sm rsporx ~!!- '.^ —/;. ihf.1-i.7 n' M K Rc:-i~ni -snri PW-I^ i.j^gyiie;; su su r' ,.'.?"." i '^"s, y , s^j. ^v^ ^h'^^^.f^y^ -c'L—b.:I"^/s-f'^ y^.^E?11^ s «' ^*^T^/^ ^^•o nd inciss1^ wounas we9fs TOU'^CI on ^n^ ih S.l'Q CdUS^d b11?' ShSfD Snd h3;*d. W€1'3DOH Th©rsfc?ysthis msd c^i ©vd^ncs is •suQcestive that the inluries which were founci on the bodv of Ravi and T4 Ik Sinah were of knife. 'Even thouQh P.W.-8 Jitendra Kumar has tumed hostils and has net supported the prosecutiQn cas^ 'nes steted that on 31.12.92 accil' information P-15 thst he has kel but P.W.-14 B.S.Thakur, PoSlce Officer |sed Pradeep whi!e in poiice custodY gave 3t the knife in'his vitiage in the house of one Ra.mdin Verma and he can set recovered ths same and in Dursusnce of that took him to the place If/here the weapon of offence-kn'fe was conceaied snd. he oroducsd W same after bringing the same from the [1[ftS^R3?l F5?'=qra"Pl, -3^TT"!S, TqwRiy "1 .^^Sft ..........Q^GL..^ &. Jfifl^" 3?R?f^I T?s[|3? 31S5I ~eT??T ^i^i!^ siTOd^i'gT'gt^ -k" -^-^ 'qiFfeWT ti'flR?!' •? feerTH^R •¥aRn3iK?f house of Ramdin Verma and the s^me was taken into custody under P-18 which was stained with blood and 4'otted biood.vras present on the kn'fe. As per the report of Forensic Sci^ice Laboraton/ P-23 D, the knife and ciothes of the accused were found! stained with blood. Therefore in the cireumstances, recovery of knife st^ined with biood at the instance of the accused further corroborates ihe brosecution cs.se. P.W.-3 Jeevan Lai who 1s none eise than the uncle of aecused Pradeep and fsther of Ravi Prakash Verma has stated that in tfie year 1985, a case regarding theft of a golden neckiace of his wife was pjending in the Court and some summon was Issued In that cgse and accus^d Pradeep csme with fhat summon to thesr house. At.thls they repiied fiat it therefore some Government pers|?n ought to have brought upon v/hich accused Pradeep thr4atened him saying that he has been '?avi is a Govsrnment summon snd Insui'ted and he will sse them and ths said aitercation took between the same, Prakash and Pradeep and he thr4atened Ravl. Therefore from this fact and also the fact that there was ^ pond of the joint family in the villsge fishing contract and in that contract which was glven by the faml'y fo some smount of Rs. 25,000/- v^hich was paid by the Contractor to y and the same was not distributec Yashwant, brother of the accusel \ imong the co-shsrers, on that accc; untthere was a dispute sr 3v<E L! was a mofive behind the commissid th^ fln?ns Sr^.n in the'resuit the cuniuiative effecti of ali the above factors is suggestive and it is established that the acdused /as the author of the crime i" question in which the murder of R^ foregoing ressons we do not find 4 r-.if^ ^|!iSftJ~ci3"y ri3 -" • - -/ f^r i y^vi i'':'¥irh/ in AhA finrl'' *" -' • " - • - - -- -^—•-- - - - .-.-—---^,, /i & Tek Sinah was committed. For the iy substance in this appeal as there is rvf fh^ friffil Cou;4 [T^^f©^ rfr;7T.vp^E^W»^.^^.!.J!^(7^vLp';A4'^*B^' 'dsr lsa3iRiud-a*luuu- •vaHsm aSpnf vaaNsama -/PS ?q QI giq'eii si suies eqi pue s}i.iaui aBpnr ooavHa'o'n -/PS pssssiusip Aqsjsu si u pue pssstiussp 'iinssj sqi ui lesdde sqi o DioAsp si ayi£)i6:Bes. M&fe?. )2i2t fr U»t!ttiaUiBBiife -°)- BSiB: iftflaa itett£ 1 nai»iblh>» ttalteaik^ ! .Si -^^rv-^^"y--w ...........attia ife&h'lAJ&lK ^fiIKy.'glt&^S.'!2^!bU2±E£ ZZ-3H-IX