High Court · 1999

Shri S.L. Bajaj.counse! fc Shri U.N.S. Deo, Additior|al Public Prosecutor with Shri G.D. Vasvani, r the appellant. Govt. Advocate for the State/resbondent. Oral Judgment dictated 01 i Da/'s. PER L.C. BHADOO. J. This appeal is directed sentence dated 29th April 1999 No. 192/98 whereby learned S| appellant guilty for commission committing murder of Mohan a^ainst the judgment of conviction and order of j^assed bythe Sessions Judge, Raipur in S.T. i|essions Judge after holding the accused/ <>f offence under Section 302 of the I.P.C. for S<|>ni, sentenced him to undergo imprisonment for life. -yth/Qth The case of the prosecut] on, in brief, is that in the intervening night of "/8I"April 1998 deceased M^han Soni, accused Bablu @ Mahesh Jain aiong with witnesses PW-5 Shif @ Shatrughan, PW-16 Bharat Lal Yadav & ere roaming in the hotels in front of Railway Gopi Yadav (since deceased) ^ Station Tilda and they consume^l liquor also at two places. Ultimately, in the mid night, witnesses Shiv @ Sh^trughan, Bharat Lal Yadav and 3rd associate Gopi Yadav left for their resjdei|ice, the accused and the deceased also left the place for other side. When (he accused and deceased Mohan Soni were going towards petrot pump that raised suspicion in the mind of the witnesses as to why they are going to tl^at side, therefore, they also followed them. However, after some distance, 1|hey saw that the accused and the deceased started quarrelling near Sasaholi Railway Cmssing where mercury light was P.T.O. XI-HC-78 3:ST^I<41d^, ^TTl-H^Ko, Rldl^^< +11*1^11 »>^11<*> ^200 311^1 45<ch 3TT^T^T^i<=h cW 3TT^T sR^TW s^RTTW^crW^T ^- chi^l^i41ri ^i^i^iT ^'te^ <Ri^i< ^3Tf^T3TT^?T burning. They saw that the accu^ )d, in the first instance, slapped deceased Mohan Soni and when he fell dow|n i, he attacked with a stone on the head of the deceased 4-5 times, as a restlil head, occipital and parietal bor|< Abhaydas, Kotwar of village Sas^holi It of which he sustained fatal injury on the ss were fractured. Next day morning, loli saw the body of Mohan Soni on one side of the road whlch was betwe^n Sasaholi Railway Crossing and Saurabh Petrol Pump. Amritlal, owner of tl^c Soni as his servant. On this, Abh{ 8-4-98 at about 9 a.m. in the Polic^ hotel Ambu jdentified the body of Mohan lydas gave a merg intimation (Ex.-P/1) on Station Nevra. The Investigating Officer in^rr after giving notice Ex.-P/2 to the the dead body of the decea; possession onepair of sleepers, p| stained stone weighjng about 4-i Ex.-P/5. Clothes of the accused The Executive Magistrate conducl] in which witness Shiv jdentjfied prepared. Another Executive Magistrate of the accu; identification accused of which report Ex.-P/K deceased was sent for postmorterrl Tilda under Ex.-P/S where Dr. the postmortem, prepared the re( death is due to severe haemorrhade that there were multiple lacerated to 1/2" in depth and 1/4th" jn brea bone, temporal bone and mastoi in^mediately left for the scene of occurrence, >anchas, prepared Panchanama (Ex.-P/S) The Investigating Officer took into ^ed. |ajn soil & blood stained soil and one blood kg from the place of occurrence under /ere taken into possession under Ex.-P/6. Ijed jdentification parade of accused Bablu le accused of which memo Ex.-P/7 was parade was conducted by the same )ed in which witness Bharat identified the was prepared. The dead body of the examination to the Government Hospital, Meelna Samual, Assistant Surgeon, conducted as a result of head injury. ^ort Ex.-P/30, and opined that cause of It was noticed tvounds in the size of 2" to 1" in length, 1" <dth all over the head placed on occipital bone. Right occipital bone was found P.T.O. XI-HC-78 3^^TPTR^T, ^TTl^41(o, R<diy^< *IW^TT »i*l|Ch ^[200 3T1^?T<T^7 (^di^^aT) 3TT^T^T^Jch cWW^Tsb^ich ^ ?^<TTW ^f?cT 3TT^T -^^— <=hl^I<rl<41v1 ^I^^T ^f tec^t <F^«K ^3Tf^T3:TT^T fractured. There Were 6 lacerat^d wounds on the head. Smell of alcohol was present in the stomach. Thereafter, First lnformatic|n Report Ex.-P/33 under Section 302 of the I.P.C. was registered. The accu^e i4ed was also medically examined by PW-18 Dr. A.A; Siddique and as per shoulder, on right forearm and There was cut wound on the inde wound on the middle finger of rj Ex.-P/31 was prepared. examination to the Forensic P/39, P/40, and 41 were receive<|. th|e report, abrasionswere found on the left o^er right posteriolateral upper part of elbow. inc|ex finger of the right hand. There was cut Ight hand. After examination, injury report for chemical Redovered articles were sent Scjence Laboratory from where reports Ex.- Site plan Ex.-P/4 was prepared by Halka Patwari. After completion of the ir| ir|vestigation, charge sheet was fited in the Court of Judicial Magistrate 1 ilass, Raipur, who in turn, committed the case to the Sessions Judge, Raipl <ur. The prosecution in order examined 19 witnesses. On the t|o establish the charge against the accused other hand, statement of the accused was recorded under Section 313 of appearing against him in the pi seizure of his clothes and stat^d Cr.P.C. in which he denied the material tosecution evidence. Even he denied the that he was at the hotel at Bhatapara. Deceased Mohan Soni and his bk'other used to work at his uncle's hotel and he has been falsely implicated in the crime. Learned Sessions Judge s|fter hearing arguments of Public Prosecutor and counsel mentioned in para-1 of this judgn^ent. for the accused onvicted and sentenced the accused as P.T.Q. XI-HC-78 3'^'^^TPTR^T, «irn'y41<S, fs|<ni^^< *11*1ClTShH|Ch t4 ^ 200 {?T^5(<h (^t^q^T) W^T^Tf^TToF cTSTT3TT^?T$hHi<=h -y ^RTTW: ^rf?cT 3TT^T ^ <=bl^f^41r1 ^\H^\\ ^'te^ <p3t«K ^^Tf^TCT^T We have heard Shri S.L. Legal Aid Commjttee on behall ?ajaj, Advocate appointed by the High Court of the accused/appellant and Shri U.N.S. Deo, Additional Public Prosecutdr with Shri G.D. Vasvani, Govt. Advocate for the State/respondent. As far as homicidal dealh of deceased Mohan Soni is concerned, learned counsel for the accuse Samual has stated in her evider may be homicidal. therefore, the that the death of deceased Mohs d/appellant argued that PW-17 Dr. Meena ice that the death of deceased Mohan Soni prosecution has not been able to establish n Soni was homicidal. the reci But, perusal of learned counsel for the accusec that as per the evidence of PW- bones wer§found fractured and —^ < \-<?kAA*-^ . parietal aitA-inasteid ben^is. haemorrhage and excessive bl^eding |>rd reveals that arguments advanced by (/appellant is devoid of merit for the reason (17Dr. Meena Samual, occipital and parietal |there were lacerated wounds over occipital, ^he has stated that the death was due to is possible that the death was If we examine the Ite-mortem in nature. homicidal and injuries were ar\ It and PW-16 Bharat, who witnessed the evidence of PW-5 Shiv @ Shatrijghan crime in question. they have sta{ on his head with a stone, as wounds on the head, parietal is vital organ and the manneil anU ted that the accused attacked the deceased |a result of which he received 6 lacerated ocdpital bones were fractured. The head in which injuries were sustained by the deceased, we have no manner (|)f doubt that in view of the nature of injuries sustained by the deceased anc( looking to the ocular evidence as well as medical evidence, death of decefesed Mohan Soni was homicidat in nature. As far as involvement question is concerned, convicti^ the accused/appellant in the crime in ^f |n primarily rests on the ocular evidence of P.T.O. XI-HC-78 3^r<=3TPTI^PT, ^Tfl^^Ko, Rfdl^^< ^TT^TSFH'f^T^ cT8TT3TR?T$b^l<^ 'v *11+1WSbHlch ^ 200 3ii^i ^sitt) (<{cii^<sj(^saT) ?^TTW ^f?<T 3TT^?T —^- <^l^?^l41rl HP^ff ^ f^t rf^F^K ^3Tf^T3T1^T eyewitnesses namely R/V-5 Shiv) have categorically stated that in Yadav (since deceased), accusecf spells and thereafter at about 11 PW-16 Bharat and Gopi teft the the accused left together to anothfer and the accused were going tow^rds where they aregoing, they turn^d Shatrughanand PW-16 Bharat. They |the fateful night, they along with one Gopi and the deceased consumed liquor in two |15 in the night, RA/-5 Shiv @ Shatrughan, |)lace together whereas, the deceased and '|er side. When they saw that the deceased the wrong side, in order to know as to and sterted following them. After some the|y saw that the deceased and the accused accus^d pr^cess, >, the accused slapped the deceased, picked up a stone and attacked the ^tone 4-5 times. Being frightened, they left distance, in the mercury light started quarrelling and in that when he fell down, deceased on his head with that the scene of occurrence. Learned counsel for the witnesses are cooked up witnesjses pcused/appellant submitted that these two In fact, they had not witnessed the incident for the following reasons:^ (1) that as a natural consequence when these witnesses, accused liquor together, wherj was attacking the dec|s2 jind the deceased consumed they saw that the accused ;|sased, in the ordinary course, they ought to have in^ervened and tried to save the deceased; (2) Witness PW-16 Bh^r PW-9 Ramesh, as h4 trat, who was employee of i4 was working at the hotel of Ramesh, next day wtien he came on duty, he dfd not disclose about thel incident to him. P.T.O. >-7; XI-HC-78 70CI' r^|q|^tq, ^Tfl^^Ko, f^^11^|^< *11*ini Sh+lich ^200 W M5<cb OT^T^T^Jcb cWW^TsbHlch V . ^- ^RTT^IT ^Tf^T 3TT^T ^k^ chi^Ici^^i ^i^cnl ^te^t <RI^I< ^3^'q'3TI^T Learned counsel for the| appellant further argued that in the map Ex.-P/4 prepared by Patwari, witnesses saw the incident and are said to have witnessed the las not been indicated that from which place (ooking to the distance from where witnesses c|rime, it was not possible for them to witness the incident. (3) the incident is said to have been occurred in the interyening night o1 7th/8th April 1998 whereas, statements of these witnesses under Section 161 of the Cr.P.C. were recorded only on 17-4-98 by the 1.0., therefore, evidence of these witnesses cannot bebelieved. On the other hand, 1< ^arned counsel the State/respondent supported the judgment of the tri|al Court. Having heard learned co|unsel for the parties, we have perused the record of the trial Court. ^ised that why these witnesses had not As far as first point r^ deceased is concerned, PW-5 Shiv @ intervened and tried to save ^tated in the examination-in-chief that after Shatrughan has categorically ^ Bharat came to their house and next day seeing the incident, he along morning, he came to know abouf u|t the death of deceased Mohan Soni. In the \ -^' cross-examination, he has stat^d witnessed the crime. He did nol But, in cross-examination, no qu| did not inter/ene when the that it is wrong to say that he has not go to the Police Station on account of fear. u^stion was put to this witness as to why they was assaulting the deceased. PW-16 acclised Bharat has stated that first the a| a|scused slapped the deceased, as a result of which the deceased fell down |on the earth and thereafter, the accused P.TO. XI-HC-78 v3^T ^NKn^, ^TH^^KD, Ricni^^< +ll*ic<ll sh+<ich ^200 3TT^?T ^5ich (^i^cK^T) 3Ti^T^T^i<=h cTSTT3TI^Tsb^l<sb ^TTW^f^TW^T - <?hi^?^i4i^ ^i^^iT ^" r^^ <r^^<i< ^ 3Tf^T 3TT^T attacked on his head with a sflone 4-5 times, as a result of which the deceased died on the spot. Thi^ the point that as to why they had t|iot inten/ened witness has not been cross-examined on Now, question comes tha| why they had not intervened when they that these witnesses had not inNn j, inNrvened, consumed liquor together. It is in particular circumstances how h|e be laid down that a particular manner, in particular situation. upon the nature of a person Shatrughan has stated that whert the deceased, they left for their witness the crime, of-course, in 01] of occurrence, their evidence h{ circumspection. Their presence| reason that in the first instance, ir| show that on account of any ani} the accused person. Moreover, t^ and these witnesses consumeld djfficult to say anything about a person as to will behave, no hard and fast formula can |>erson will always behave in a particular varies from person to person depending also circumstances. As PW-5 Shiv @ they saw that the accused was attacking ijesidence, therefore, merely on this ground it cannot be said that they did not i|der to ascertain their presence at the scene ts to be scrutinized with more care and on the scene cannot be doubted for the their cross-examination, there is nothing to (nosity or bias, they have deposed against ley have stated that the deceased,accused together and this fact stands liquot substantiated by the fact indicates consumption of tiquor b^ |the postmortem report of the deceased. Moreover, PW-9 Ramesh, the deceased who is the owner of hotel of witfiess examination, has categorically sNed PW-16 Bharat, in last para of cross- that when Bharat did not disclose to him, he himself enquired from hin[i liquor, therefore, he may have fact to the Police also. Therefoil deceased, accused and these that yesterday night they were consuming nturdered the deceased. He disclosed this |e, consumption of liquor together by the has further been established by the withesses P.T.O. k.._ XI-HC-78 3^T ^1<11^1^, ^TTl^41<o, Rfdiy^< 3:n^T^T^i<=h c^TT3TT^T$h^i<=b -^A ^1*4011 Sh+licb ^ 200 3ii^i ^sith (*i<:<i^s'^£r) ?^TT8fK ^fN'W^T —S^tn' <=bi^T^i41^ Hm^ff ^' tecc?!' <Ri<^i< ^3Tf^TW^?T evidence of PW-9Ramesh. this connection, as far as judgment cited by learned counsel for the accus^d/appellant in the matter of Mohan Singh V. Id Prem Singh and another principle lajd down in para-2^ because conduct of the witn^ eported in 2003 CRI. LJ. 11 is concerned, of the judgment is distinguishable on facts sses was not believed by the Apex Court, looking to the other aspects o< the case apart from their unnatural conduct, not intervened in the incident. As far as the question Shatrughan did not disclose thi as to why PW-16 Bharat and PW-5 Shiv @ ^ fact to anyone is concemed, PW-9 Ramesh, owner of the hotel where witn^ss Bharat was working, has stated that next day morning when Bharat can^e to his hotel, he did not disclose about the incident. He himself enquired| from Bharat that previous night this witness along with accused, decease<|i and other persons were consuming liquor together, therefore, he may ha^/e committed the crime. As the incident was of the mid night, these witness^s left for their residence, these witnesses had also consumed liquor with the |deceased and the accused, possibility cannot be ruled out that out of fear tftese witnesses had not disclosed this fact to anyone and also as these persjons were in drunken condition which might be 3 incident to anyone. Moreover, in the cross- the cause for not disclosing th| examination of these witnesse) >, it has not been specifically asked for as to why they had not disclosed presence on the scene of oc<] their evidence, they consumed| and fact of consumption of tiqi| doctor who conducted postmorl In the viscera r^ the deceased. Their immediately to the police. this fact ;urrence cannot be doubted because as per liquor together with the accused & deceased, lor has been corroborated by the fact that the ;em found the smell of liquor in the stomach of port. contents of alcohol has also been found. P.T.O. XI-HC-78 3^T ^ 1^1^^, ^Tfl^l^Ko, i^^1l^^< W^TcFrR^Jcb c^TT3TT^T$b^ich V s^.. ^l^^l »»^1<*» ^200 311^1 M^ch (^cii^^T) ^:cfT^T^f?53TRt?T —3— <=hi^?<n41'i ^ii^^iT ^ teT^t <Rt^i< ^3Tf^T3T^T There is no cross-examination 0}1 unnecessary implicate the accusled this aspect that why these persons will in such a hejnous crime without any rhyme or reason. Moreover, Involvement of the accused in crime is established from the fact that h^ various parts of the body i.e. left | medical report Ex.-P/31 prepaj examination of the accused, that it has been mentioned {n the rep| incident was of intervening night o] himself sustained several abrasions on |shoulder, right forearm and fingers as per ted by PW-18 Dr. Siddique after 4xamination was conducted on 11-4-98 and >{>rt that injuries were 3-4 days old and the ' 7th/8th April 1998, therefore, injuries on the body of the accused further ^stablish his involvement in the crime. Therefore, looking to the totality o\ on record, presence of these occurrence and their evjdence insl the circumstances and evidence available witrtesses cannot be doubted on the scene of insDire confidence ofthe Court. As far as the question, thaf these witnesses were not able to see the incident as there was dark night a|id from where they saw the incident, it was thlese witnesses is that the crime. In the first instance, case ofthe not possible for them to witnesse^ the accused was prosecution and evjdence of placje where mercury light was on, therefore, it assaulting the deceased at a plac|i to witness the crime in the mercury iight. was possible for these witnesses) hs|s been put to these witnesses that looking Moreover, no specific question hs| 4re said to have been witnessed the crime, to the distance from where they ^ ttness the crime, therefore, we do not find it was not possible for them to w( any substence in this argument al^ ^o. Coming to the points rai^ appellant that Patwari, who plan it has not been shown from It is true that Patwari wh<^ crime. i^ed by learned counsel for the accused/ prep^red the site plan Ex.-P/4, in the said site Iwhere these witnesses had witnessed the prepared the site plan has not shown the P.T.O. XI-HC-78 3^T^Ni<n^, ^in^Ko, (^<ni<H^< (® +11*1^1 sh+lich ^ 200 3TT^?T 4^ch (^c<t^<s«^T) 3TI^T^T^TW cWW^Tsb^lcb ^cTTW ^^ 3TT^T ^ | O <=hi^I<n41'i ^i^<nT^te^t<Ri^i< ^3T^T3:TT^T place from where these witnes^es examined as PW-10, who has

98. He has stated that he pre^ared Kotwar. The site plan was not p|' as to from which ptace they ha<| the consi'dered opinion that look|ing case and evidence available or} 4es witnessed the crime. Patwari has been sltated that he prepared the site plan on 10-4- the site plan after enquiring from the 1-epared after ascertaining from the witnesses witnessed the crime. Therefore, we are of to the totality of the circumstances of the record, merely not showing the place from where witnesses witnessed the (trime does not affect the prosecution case. by 1.0. with a view to jntroduce a cooked up As far as late examinaticjn of the witnesses by the 1.0. i.e. about 10 days after the incident is conc^rned, the question of delay in examining a witness during investigation is n|iaterial only if it js indicative and suggestive of some unfair practice adopted wrtness to falsely support the pr{)secution case. Evidence of a witness does not become untrustworthy mer^y because there was delay in recording his statement. The evidence of P\|V-5 Shiv @ Shatrughan and PW-16 Bharat discloses that they along with ^ iccused and the deceased consumed liquor and their evidence to that effectl is clear, cogent, convincing and truthful from the fact that the accused himse|f received injuries in the incident as per the f liquor was found in the stomach of the report Ex,-P/31. Even smell deceased as per the postmorten|i report. Moreover, these witnesses have not been cross-examined on the asriect of delay in examination ofthe witnesses, ^>- therefore. in the totality of the| opinion that 10 days' delay in e^ circumstances, we are of the considered [aminjng these witnesses does not affect the examination of a witness cannot in all cases prosecution case. Mere delay in| be termed to be fatal. There majy be several reasons. The Court can act on the testimony of witnesses if jt is| found to be cogent and credible. Unless the investigating officer is categori <|;ally asked as to why there was delay in P.T.O. XI-HC-78 3rcT ^l^ld^, ^Tfl<-141<o, ^tclK-l^i 3TI^T ^T f^TTpF cT8TT3TT^T5h^i<=b \\ ^. ^IIH^I sh+lich ^ 200 3TTi^T ^?(ch (^cii^q^T) ?^TTW:^cT3TT^T —\\ <=M^Td41vi RTR^rf ^ te^ <Ri<^j< ^3Tf^:T3T7^?T examination of the witnessesf therefrom. Itcannot be laid dt there is any delay in examin^tion version becomes suspect. It explanation offered for the del^ and the court accepts the sam^ wjth the conclusion, On the the defence cannot gain any advantege t?wn as a rule of universal application that if of a particular witness the prosecution If the |would depend upon several factors. jyed examination is plausibleand acceptable as plausible, there is no reason to interfere if the explanation is found to be c|ther hand, implausible, certainly the Courf can consider it to be one of the factors to affect credibility of the witnessjes principle has been laid down by| Vs. Satish reported in (2005) 3| who were examined belatedly. The said 1 the Apex Court in the matter of State of U.P. ISCC114. For the foregoing reasor^s, >, looking to the medical examination of the accused, postmortem report of considered opinion that the evj^ence 16 Bharat inspire confidence of the deceased and other record, we are of the of PW-5 Shiv @ Shatrughan and PW- the Court. We have not been able to notice any infirmity in their evidence r^garding witnessjng of crime by them, as such we do not fmd any Hlegality o|i o|r ;|;used in crime in question. regarding involvement ofthe act infirmity in the judgment of the trial Court In the last, learned coum the facts of the case, it js establ the accused, deceased & witne^s animosity. They consumed accused and the deceased we^e some quarrel ensued and on picked up a stone and attacked |the falls within Exception IV of Sect|on |el for the accused/appellant argued that from |ished that quarrel took place all of a sudden, ^ses were on friendly terms and there was no together, however, unfortunately, fre in drunken condition and all of a sudden, trivial matter, the accused, all of a sudden, deceased, therefore, case of the accused iSOOofthel.P.C.. P.T.O. XI-HC-78 3^cT ;:2TFnoTq', ^rfl^^Ko, f®«ni^< HTq^TT Sf»*T[ch ^[200 ^ 1^1 ^5<Ch STT^ST cR f^TW <T8TT3TT^Tsb^ict) 'Y" g^TT^K ^rfN'W^?T -— <=hl^Id41r1 HPT^Tf ^ tel<9' <fa«l< ^^rf^TOT^r In order to appreciate a|rguments advanced by learned counsel for the accused/appellant, we have p^r on record. Even the prosecutil; stated that the accused, dece^sed ^rused the evidence. There is ample evidence >n witnesses in their examinatjon-in-chief have and witnesses consumed liquor together in two spells and at about 11.1 the deceased left for one s| occurrence, all of a suddenj accused first slapped the de^ pjcked up a stone and attac|t Ex-P/31 shows that he sustali therefore, this fact further strt 15 jn the night they set apart, the accused and the place of |de, when they were going at |they started quarrelling, ^eased and when he fell down, the accused Injury report of accused |ked on his head. ined abrasions on various parts of the body, mgthens that there was scuffle between the in that quarrel, deceased and the accused, preparation or pre-meditation up a stoneand attacked the d< or cruel manner, as such, cas^ as there was sudden quarrel, without any |and jn a heat of passion, the accused picked ^ceased, the accused had not acted in unusual of the accused is covered under Exception IV to Section 300 of the I.P.CJ therefore, conviction of the accused under Section 302 of the I.P.C. and ^entence imposed upon him under that Section cannot be sustained. In the result, the appeal and sentence imposed upon I.P.C. He is convicted under S to undergo R.l. for 8 years. 11-4-98 as per arrest memo about Syears 4 months,as s It therefore, he be set at liberty f< Ipartly succeeds, while setting aside conviction tt^e accused/appellant under Section 302 of the Slection 304 Part II of the I.P.C. and sentenced |s stated that the accused is in detention since (.-P/43, thereby the accused is in custody for ^ch, he has already undergone the sentence, ^rthwith, if not required in any other case. Sd/- L.C, Bhadoo Judge Sd/- V.K. Shrivatava Judge Barve ^ '<' J^. 'y^