Full Judgment
M. Chaudhary, J.
1. This an appeal from Judgment and order dated 11th ofMarch, 1981 passed by Sessions JudgeAllahabad in Sessions Trial No. 285 of 1979,State v. Virendra Kumar Singh convictingthe accused under Section 302, IPC andSection 25 of the Arms Act and sentencinghim to imprisonment for life and sixmonths's rigorous imprisonment respectively thereunder.
2. Brief facts giving rise to this appealare that at about 12 : 15 noon on 18th ofDecember 1978 HC Ram Saran Singh lodgedan FIR at police station Daraganj DistrictAllahabad alleging that in the forenoon ofthat very noon he was on patrol duty and atabout 11.30 a.m. as he reached Matiyaracrossing he saw Ratneshwar Prasad aliasRaja going on a bicycle In front of the grocery shop of Gopal Das Jaisval on the roadgoing through the Kidwai Nagar locality; thataccused Virendra Kumar Singh who was alsoon his bicycle made the bicycle of Ratneshwaralias Raja stop telling him he used to misbehave with his sister and now he wouldkill him and immediately leaving his bicyclethere he gave blows to him with 'Karauli'and that sustaining the fatal injuriesRatneshwar alias Raja crying for help felldown a few paces ahead and immediatelyVirendra fled away. HC Ram Saran Singhchased Virendra and caught hold of him byusing necessary force in front of the houseof one Shyam Ji Lal Srivastava with blood-stained 'Karauli'. He also mentioned in the FIR that the said incident was witnessed byBhairo Din, Hira Lal, Hari Om and severalothers. Immediately he got injuredRatneshwar Prasad alias Raja sent to SRNHospital, Allahabad with constable RamanujShukla who was on duty and reached thescene of occurrence. H. C. Ram Saran Singhalso handed over accused Virendra KumarSingh and the Karault recovered from himand his bicycle to the police at the policestation. The police registered a crime againstthe accused under Section 307, IPC andSection 4/25 of the Arms Act and also prepared the memo of the blood stained 'Karauli'and the bicycle handed over at the policestation (Exts. Kal and Ka 2). He also madeentry regarding the registration of the crimein the General Diary (Ext. Ka 3).
3. It appears that by the time constableRamanuj Shukla taking the injured reachedthe Hospital Ratneshwar alias Raja succumbed to the fatal injuries sustained byhim. On receiving Information regarding thedeath of injured Raneshwar alias Raja atabout 12.15 the same noon the police altered the crime under Section 302, IPC vide GD entry report No. 22 (Ext Ka 4). StationOfficer J. B. Tewari who took up investiga-tion of the crime in his hands went to SRNHospital and drew inquest proceedings onthe dead body of Ratneshwar and preparedthe inquest report (Ext Ka 10) and othernecessary papers (Exs. Ka 14 and Ka 15)and handed over the dead body in a sealed cover along with necessary papers to con-stable Ramanuj Shukla for being taken forits postmortem. Then he visited the place ofoccurrence, Inspected the site and preparedits site plan map (Ext Ka 16). He collectedbloodstained and sample earth from theplace of occurrence and picked up bicycleof the deceased lying there occurrence andprepared their memos (Exts Ka 11 and Ka12). He also recorded statements of the witnesses and did other necessary things.
4. Autopsy conducted on the dead body of Ratneshwar alias Raja by Dr. R. B. Singh . Medical Officer SRN Hospital, Allahabad on 19th of December 1978 at about 2.30 p.m. revealed following ante mortem injuries :
1 Incised wound 1' x 1/4' cavity deepplaced obliquely and transversely on the leftside back of chest in infra scapular regionand 3 1/2' from the 11th thoracic vertebrae.
2. Incised wound placed transversely justbelow the right infra scapular angle 1/2' x 1/4' muscle deep.
On internal examination the doctor foundleft side of pleura below injury No. 1 andposterior segment of the left lower lungpunctured as well as left dome of diaphragmpunctured. Peritoneal reflexion along theleft dome of diaphragm below injury No. 1penetrated. Stomach contained partially digested food about 1/4 litre. Small intestinewas half full and large Intestine empty. Thedoctor opined that the death was caused dueto haemorrhage and shock as a result of In-Jury No. 1 about one day ago.
5. The bloodstained clothes and earth and the bloodstained 'Karauli' were sent to Forensic Science Laboratory Agra for theSerologist's opinion if the articles contained human blood and if so of the same blood group. A perusal of the Serologist's reportgoes to show that bloodstained earth, 'Karauli' and clothes contained human blood and the blood on clothes and earth was found of group 'B', Blood stained on the 'Karauli' were found Insufficient for classification of blood group (Exts Ka 19 and Ka 20).
6. After completing investigation the police submitted charge sheet against the accused accordingly.
7. The accused pleaded not guilty denying the alleged occurrence altogether stating that he was not apprehended by thepolice nor any 'Karauli' or bicycle was recovered from him by the police at the timeand place as alleged by the prosecution. Healso stated that Ratneshwar son of Hira Lalwas a ruffian; that the alleged forenoon hewas returning from the house of K. D. Singhwho happened to be his 'Mausa'; that on theway Ratneshwar alias Raja along with hisassociate whom he did not know made himstop and started hurling abuses and as heasked them not to abuse him both of themgave him 'Danda' and knife blows. Apprehending danger to his life he gave knife blowto Ratneshwar alias Raja in his self defenceand that thereafter he went to the police station to lodge an FIR of the said incident but his report was not taken down by the policeand he was confined in the lock up there.
8. In order to bring the charge home tothe accused the prosecution examined H. C.Ram Saran Singh (P.W. 1) Bhairo Deen (P.W. 2)and Hari Om (P.W. 3) as eye-witnesses ofthe occurrence. Testimony of the remainingwitnesses is more or less of formal nature.P.W. 4 H. M. Raghubar Dayal who recorded FIR lodged by H. C. Ram Saran Singh at thepolice station and prepared the memo ofbloodstained 'karauli' and bicycle handedover to him by the first informant and madeentry in the G. D. regarding the registrationof the crime and the handing over of accusedVirendra Kumar Singh along with 'karauli'and bicycle at the police station has provedthese papers (Exts. Ka 1 to Ka 3). ConstableRamanuj Shukla (P.W. 9) who took the in-jured to the Hospital and handed over memoinforming the police regarding the death ofRatneshwar issued from the Hospital andto whom dead body in a sealed cover alongwith necessary papers was entrusted forbeing taken for its postmortem has filed anaffidavit in support of these facts. P.W. 11constable Udai Vir Singh who took blood-stained articles in sealed cover to ForensicScience Laboratory Agra for Serologist'sopinion and thereafter deposited the samein sealed packets in the Sadar Malkhana hasalso filed an affidavit in support of thesefacts. P.W. 5 Nanhku Singh, AssistantMoharrir Sadar Malkhana has filed an affidavit that the case property in sealed bundles was sent to Forensic Science Laboratory, Agra for chemical examination and wasreceived back in the Sadar Malkahana there-after in sealed cover. P.W. 6 Mauji Lal is thewitness of the inquest report. He also statedthat Virendra Kumar Singh is related to K. D. Singh; that the house of Hira Lal, father of the deceased is situate adjacently to the house of K. D. Singh and his house is abutting the house of Hira Lal; that in the evening of 16th of December, 1978 NarendraSingh, son of K. D. Singh had come to the house of Hira Lal and complained that Ratneshwar alias Raja used to tease his sister Madhurima and thereon Hira Lal told him that if it was a fact he would rebuff him and that at that time he was also present there.P.W. 7 Hira Lal, father of the deceased also-stated that in the evening of 16th of December, 1978 Narendra son of K. D. Singh hadcome to his house and complained that hisson Ratneshwar alias Raja used to misbehave with his sister and thereupon he hadtold him that if there was any such thing hewould rebuke him. P.W. 8 Dr. R. B. SinghMedical Officer SRN Hospital Allahabad whoconducted autopsy on the dead body ofRatneshwar alias Raja has proved the post-mortem report stating that ante mortem in-juries sustained by the deceased were sufficient to cause death in ordinary course. P.W. 10 Station Officer J. B. Tewari who investigated the crime has proved the police papers.
9. The accused examined Dr. ArvindKumar, Medical Officer Central Jail Naini,Allahabad (D.W. 1) and Basant Lal (D.W. 2)in his support. (D.W. 1) Dr. Arvind Kumarwho medically examined Virendra KumarSJngh in Central Jail Naini on 20th of December 1978 at about 9.45 a.m. has provedthe injury report filing true copy thereof (Ext.Kha 5). D.W. 2 Basant Lal who was a teacherin Sardar Patel Junior High School Allahpur,Allahabad stated that on 18th of December1978 he was the class teacher of Class V-Aand that he took attendance of the studentsof his class at about 7.00 a.m. that day forboth the shifts and Hari Om was present inthe class.
10. On an appraisal of the parties' evidence and after hearing the parties' counsel the learned Sessions Judge found theaccused guilty of the charge levelled againsthim and he convicted and sentenced himas stated above.
11. Feeling aggrieved by the impugnedJudgment and order the accused preferredthis appeal for redress.
12. We have heard Sri A.K. AwasthiAmicus curiae for the appellant and Sri R. K. Singh the learned AGA for the State andgone through the record.
13. Firstly, it has been argued on behalfof the appellant that the FIR is ante timedand it was recorded at the police station after consultations and deliberations. The saidargument advanced by the learned AmicusCuriae is devoid of any force for the following reasons : (i) the crime was registered atthe police station on 18th of December, 1978at 12.15 noon soon after the alleged incident under Section 307, I.P.C. and Section 4/25 of the Arms Act and that on receivingthe information regarding the death of injured Ratneshwar alias Raja through constable Ramanuj Shukla from the Hospitalat 12.50 noon the crime was altered underSection 302, I.P.C. vide GD entry reportNo. 22 (Ext. ka 4). An affidavit duly swornby Ramanuj Shukla (PW 9) has been filedasserting that on 18th of December 1978HC Ram Saran Singh apprehended accusedVirendra along with the 'Karauli' and on hisdirections he took injured Ratneshwar aliasRaja lying injured near the shop of GopalDas in a rickshaw at about 11.45 a.m. tothe Hospital but by the time he was rushedto the Hospital he succumbed to the injuries sustained and that he took the memoregarding information of his death from theHospital to the police station and taking thememo he reached at PS Dara Ganj at 12.50noon and the entry was made In the GD (report No. 22). Opportunity was given to thedefence counsel to cross-examine him butthis witness was not cross examined at allby the learned counsel of the accused, (ii)Special report of the said crime was sent tothe Higher Authorities vide GD entry No. 27at 2.50 p.m. through constable Paras Ram(Ext. ka 5). (iii} After completing inquest proceedings on the dead body of Ratneshwaralias Raja the Investigating Officer handedover the dead body in a sealed cover alongwith the necessary papers to constableRamanuj Shukla to be taken for its postmortem at 4.45 p.m. the same day. Thesefacts completely dislodge the appellant's pleathat the FIR was ante timed and was notlodged at the police station at the time itpurports to be.
14. Secondly, it has been argued on be-half of the appellant that the alleged incident occurred In a thickly populated areawhere several shops and houses are situatebut no Independent witness from the vicinity has been examined in support of the prosecution case. It is true that the alleged occurrence took place in broad day light inthe thickly populated area where there wereseveral shops and houses; but it is a matterof common experience and knowledge thatgenerally the people keep themselves awayfrom the Courts unless it is inevitable asthey do not want to invite trouble for them-selves.
15. Besides it out of the three eye wit-nesses examined by the prosecution even ifthe testimony of PW 3 Hari Om is left out ofconsideration as he is a child witness andadmittedly at the time of the occurrence hewas studying in Class V and according tothe school register he attended the class onthe date of the incident and there is no convincing reason as to why he did not go tothe school the fateful day the incident tookplace there remains the testimony of PW 1HC Ram Saran Singh and PW 2 Bhairo Din.As far as the testimony of PW 1 HC RamSaran Singh is concerned, he is absolutelyan independent witness. As stated by himhe did not know even the deceased and theaccused at the time he apprehended the latter when he was running away after assaulting Ratneshwar alias Raja and it was afternabbing him that he inquired from him andasked his name, the name of the victim andthe witnesses with their addresses and notedtheir particulars on a piece of paper and thentaking the accused along with the 'Karauli'recovered from him and his bicycle lying onthe spot he went to the police station andlodged an FIR of the occurrence with the helpof that piece of paper on which he had noteddown the names of the accused, the victimand the witnesses. Under these circumstances there is absolutely no reason todoubt his testimony. Further, the testimonyof PW 1 HC Ram Saran Singh stands corroborated on all the material particulars bythe testimony of PW 2 Bhairo Din. No doubt PW 2 Bhairo Din was close neighbour of HiraLal, father of the deceased having acquaintance with him but his sworn testimony cannot be thrown over board on that groundalone If on a close and careful scrutiny histestimony is found to be above reproach ofsuspicion. Both these witnesses have giventruthful and honest account of the occurrence witnessed by them as both of themwere subjected to searching and gruellingcross-examination but nothing useful to the accused could be elicited therefrom. It hasalso been argued by the learned AmicusCuriae that PW 2 Bhairo Din was a chancewitness as admittedly he was a peon in Colonel Ganj College and according to the attendance register he remained present onhis duty in the college. Explaining his presence at the scene of occurrence PW 2 BhairoDin stated that in the alleged forenoon hewas going from his house to Alopin Bagh onfoot and at about 11.30 a.m. as he reached .near the shop of Bhola Nath he witnessedthe said incident; that he had requested thePrincipal of the College the previous day thatsince he had some personal work he wouldcome late next day. It is a matter of common knowledge and experience that in dayto day working the officials are accommodated on their oral request and in spite oftheir attendance in the attendance registerin the office they practically remain absentfrom duty for hours together. PW 2 BhairoDin is resident of the same locality in whichthe incident took place and knew both theassailant and the victim since before andstood firmly in the test of cross-examination. Thus the said argument advanced bythe learned Amicus Curiae for the appellantholds no water and is repelled.
16. Lastly, It has been argued by thelearned Amicus Curiae that In the allegedforenoon the accused appellant was assaulted by Ratneshwar alias Raja and hisassociate who gave him 'danda' and knifeblows and apprehending danger to his lifeVlrendra Kumar Singh gave knife blows toRatneshwar alias Raja In his self defence.The said argument advanced by the learnedAmicus Curiae is fallacious. A perusal of theinjury report of accused appellant VirendraKumar Singh goes to show that he was medically examined by Dr. Arvind Kumar at Central Jail, Naini on 20th of December, 1978at about 9.45 a.m. and his medical examination disclosed traumatic swelling on hisboth legs and left hand besides a laceratedwound between two toes little and the 4th(sic) (Ext. Kha 5). His medical examinationalso revealed a lacerated wound 5 c.m. x 0.5c.m. x 0.5 c.m. on back of head left sidebesides an incised wound 2.5 c.m. x .5 c.m.x .5 c.m. on palmar surface of right handwith margins everted and regular. The doctor opined that all the injuries were simplein nature and were about 1 to 3 days old induration. He also stated that all the injuries excepting an incised wound on palmer surface of right hand were caused by blunt object and the incised wound by sharp object.D. W. 1 Dr. Arvind Kumar stated in his deposition that all the injuries were superficial.P. W. 1 HC Ram Saran Singh stated thatfew injuries were caused to accused Virendraas he caught hold of him by giving 'danda'blows to him. Incised wound on palmar surface of right hand and lacerated wound onback of head are not noted in the injuries ofthe accused in the GD. Looking to the seatand nature of the head injury and the incised wound the possibility cannot be ruledout that both the injuries could be self inflicted or self suffered in order to create adefence sometime after the incident as thedoctor medically examined accused appellant Virendra opined that the injuries foundon his person were about 1 to 3 days old induration. For the above the said argumentis wholly untenable and has got no substance.
17. After considering carefully all thearguments advanced by the learned AmicusCuriae in the light of the parties' evidenceand the circumstances attending the casewe do not find any merit in any of them. It isa broad day light murder and the FIR waslodged promptly. The testimony of the twoeye witnesses corroborated by the prompt FIR and the medical evidence on the recordforms the sound basis for conviction of theaccused. The learned trial Judge has givencogent and convincing reasons for findingthe accused guilty of the charge levelledagainst him and we are in complete agreement with the findings recorded by the Trial Court against the accused appellant. Theappeal has got no substance and is liable tobe dismissed.
18. The appeal is hereby dismissed. However it may be pointed out here that by oversight the learned trial Court framed thecharge against the accused under Section 25 of the Arms Act which should have beenframed under Section 4/25 of the Arms Actas the accused was possessed of a 'Karauli',a sharp cutting weapon. Since the offenceunder Section 4/25 of the Arms Act is lesserone conviction of the accused is modified tothe extent that is convicted under Section 4/25 of the Arms Act instead under Section 25 of the Arms Act. His conviction underSection 302, I.P.C. and sentence of imprisonment for life thereunder is maintained.He is sentenced to two years' rigorous imprisonment under Section 4/25 of the ArmsAct. Both the sentences shall run concurrently. He is on bail. He shall be arrestedand lodged in the jail to serve out the sentence imposed upon him.
19. Rs. 1000.00 (Rs. one thousand) onlyshall be paid to Sri A.K. Awasthi the AmicusCuriae as his legal remuneration.
20. A certified copy of the judgment andrecord of the case be transmitted to theCourt below immediately for complianceunder intimation to this Court within twoweeks from today.