Babu and anr. Etc. Vs. State of U.P. Etc. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 168; [s.b. sinha & h.s. bedi, jj ] determination of compensation meaning of income of victim held, the term income has different connotations for different purposes. a court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms. section 168 uses the word just compensation which, in our opinion, should be assigned a broad meaning. it cannot be lost sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory provident fund, gratuity and other perks to attract the people who are efficient and hard working. different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family if some facilities are being provided whereby the entire family stands to benefit, the same, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. the amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. from the said amount of income, the statutory amount of tax payable thereupon must be deducted. - its entry was made in the general diary and the copy of the entry of wireless message as well as of rawangi are exts. that the reasons given for discarding the direct evidence of eye-witnesses, in part are wholly inadequate and there were just minor contradictions about the identity of nemi and others and the court below ought to have convicted the reasoning accused persons as well. as actual assailants and once the participation of naurangi, nemi and shishpal in the commission of crime has been held to be doubtful, the prosecution story being one and the same should have been disbelieved as against the appellants babu and mohkam as well. there is reliable evidence on recorded to show that babu and mohkam appellants participated in the commission of the crime. ganga devi in contesting the litigation against the appellants is also borne out from documentary evidence which clearly indicates on earlier occasion shanti prasad had moved an application in that case. we thus find that accused had a strong motive for committing the murder of shanti prasad. a litigation between soran' and ganga devi on the one side and babu and mohkam appellants on the other side was clearly pending. the accused persons were definitely annoyed with shanti prasad as to why he had been doing pairavi for ganga devi whom the appellants could have easily defeated taking benefit of the mere fact that the lady alone could not have run from post to pillar in respect of that litigation. there was thus strong motive with the two appellants to have committed the crime. therefore non-examination of the bus driver or conductor in this case by the investigating officer will not be enough to throw over board the trustworthy and reliable evidence of the two eye-witnesses, whose presence in the bus is fully established. ka-1 lodged in this case is a good corroborative piece of evidence and there is no reason to discard it. since we have endorsed the finding of learned sessions judge that on account of the witnesses being placed inside the bus they were not in a position to see and identify the as- sailants, who allegedly participated in the commission of murder of deceased behind the bus, as such the number of persons joining the two appellants babu and mohkam cannot be fixed with certainty. in the event of their failure to do so within 15 days from today, the trial court shall take appropriate steps for securing their arrest for serving out their respective sentences.m.a. khan, j.1. the above noted criminal appeal and criminal revision arise out of the same judgment and under sectioner dated 30-9-1980 passed by sri y.p. singh, the then addl. distt. and sessions judge, budaun in sesssion trial no. 408 of 1979 thereby convicting the appellants babu and mohkam of the offences punishable under sections 147/148/302 read with section 149, i.p.c. and sentencing them to undergo imprisonment for life under section 302 read with section 149, i.p.c. and r.i. for a period of one year under section 147, i.p.c. to appellant babu as also r.i. for a period of two years under section 148, i.p.c. to appellant mohkam. accused naurangi, nami and shishpal have however been acquitted under the same under sectioner and against that acquittal, the complainant tarachand has filed the revision. since the appeal and the revision arise out of the same judgment and under sectioner, they are being disposed of by the common judgment.2. the facts leading to the prosecution of the appellants are as follows :babu and mohkam are brothers while naurangi is the cousin-in-law of the two. nami and shishpal belong to the same family. aaram singh was the father of babu and mohkam. aaram singh were four brothers and saran was one of them. chandra kesh was soran's son and barfi is his daughter. barfi is married to naurangi. ganga devi is the wife of chandra kesh. ganga devi and ram sanehi are sisters. ram sanehi was married to goverdhan, the brother of informant tarachand, saran had given some land to his son's wife ganga devi. litigation over mutation of that land started between ganga devi on one side and babu accused on the other. this case was pending at the time of the incident. shanti prasad deceased used to do parivi in this case on behalf of ganga devi.3. on 31-8-1979 tara chand and shanti prasad had come to budaun in the pairvi of the case. babu and mohkam had also come in the same case. at about 1.30 p.m. a date was fixed in that case and tara chand and shanti prasad started for their village in a private bus. mohkam and babu also boarded the same bus. mohkam, out of the two, was armed with a double barrelled gun. gajram boarded the bus from kaulhai and malkhan and nathoo boarded it from sahaswan. when the llus reached the culvert of choyee it was about 3.30 or 3.45 p.m. babu and mohkam got the bus stopped and caught hold of shanti from behind and started dragging him. shanti said as to why they were dragging him at which the accused said that they will teach him a lesson for doing pairvi in ganga devi's case. tara chand wanted to stop them at which mohkam pointed his gun towards him. when they were dragging shanti out of the bus, babu shouted that naurangi should come soon as the enemy has been caught. thereupon 6 or 7 persons came out of the dhencha crop, out of them naurangi had a single barrelled gun, nemi was armed with a swunder section, while shishpal had a country made pistol. there were some strangers also out of whom one was armed with a tabbal and others had pistols.4. about four or six paces towards the east below the patri shots were fired upon shanti. shanti remained standing for a while and then fell down. when he fell down more gun shots were fired on him and nemi gave a sward blow. as one of the shots was fired at very close range shanti's kurta caught fire. then the bus started towards zarifnagar. tara chand went to zarifnagar police station. when the bus reached there he found vijaipal outside the police station and got report ext. ka-1 scribed by him. he gave the report at the police station and after the chick report ext. ka-5 was scribed and the case registered in the general diary the copy of which is ext. ka-6, the sub-inspector and some constables started along with him towards the scene of occurrence in a bus that had come there from the opposite side. when they reached the scene of occurrence two constables and a sub-inspector arrived from sahaswan. a wireless message had been received at police station sahaswan at 4.30 p.m. from police station zarifnagar giving information about this incident and it was in pursuance of this information that the sub-inspector and the constables had started for the scene of occurrence. its entry was made in the general diary and the copy of the entry of wireless message as well as of rawangi are exts. ka2 and ka-3.5. s.i. data ram prepared the inquest memo, diagram and challan of the dead body exts. ka-8 to ka-10. he also inspected the scene of occurrence and prepared the site plan ext. ka-11. he found a bloodstained tikli and took simple and bloodstained earth and that tikli in possession and put simple earth in one container and blood stained earth and tikli in another container, which are exts. 3 and 4, after preparing the memo ext. ka-12. an empty cartridge case and two simple tiklees were sealed in different bundles, exts. 5 and 6, after preparing the memo ext. ka-13. he examined the panches, the witnesses of the memo and the informant there and as it become late, he came back to the police station and examined the head moharrir. on 1-9-1979 he examined gajram witness and then the investigation was taken over by s.o. the s.o. sri m.k. kaushik continued the investigation and examined nathoo on 2-9-1979 and took steps under sections 82 and 83, cr.p.c. against the accused and when they surrendered in court he interrogated them and after concluding investigation, submitted the charge-sheet ext. ka-14 against all the accused.6. the post mortem examination of the dead body of shanti saroop was conducted by dr. arun kumar malpani, medical officer district jail budaun. he found the following ante-mortem injuries on his person:1. lacerated wound 4 cm x 1 cm x scalp deep front of the middle of scalp 6 cm above nasal bridge. edge everted.2. gun shot wound of entry 2.5 cm x 2 cm over the front of left chest 2 cm above from left nipple at 11 o'cloc position, cavity deep.3. four gun shots. duration present 5 cm of chest (nausea 6 cm x 6 cm 2 cm above injury no. 2).4. gun shot wound of exist 1.5 cm x 1.5 cm over the front of right chest 5 cm above from right nipple at 12 o'clock position. edge everted and irregular probing deep.5. three gun shot abrasions area the right side of the chest in an area 5 cm x 5 cm right to nipple at 9 o'clock position.6. contused index finger right from in- dex phalanegial joint of two middle and proximal phalys. edges of skin irregular.7. gun shot wound of entry 2 cm x 2 cm over the back of right shoulder front just below spin of right scapula cavity deep blackening and tatooing present around the wound.8. gun shot wound of entry 2 cm x 2 cm over the lateral side of right. 17 cm below spear wound bone deep. charring and tatooing present. edge inverted.9. superficial burn over the right side of abdomen in an area 8 cm x 6 cm.10. superficial burn injury front of abdomen and back.7. on internal examination he found the 4th, 5th ribs on the left side fractured. injury no. 4 and the fourth rib on the 9th rib fractured on the back side. the pleura on the right side was ruptured, right lung was ruptured and there was blood in cavity, the left lung was also ruptured and there was blood in the cavity. in the cavity in left lung he found a longish pellet and two big pellets which were taken out. pericardium and heart was also ruptured. thigh bone under injury no. 8 was fractured and three big pellets were taken out from there. there was a hole in the right scapular blade and some semi-digested food in the stomach. the small intestines had gases while large intestines had faecal matter. the death accunder sectioning to him was due to shock and haemorrhage as a result of the above injuries. the post mortem examination report ext. ka-4 was prepared by him at the time of such examination. he took the clothes from the dead body and put them in a bundle ext. 1 while the pellets were put in a container ext. 2. there were burn marks on the dhoti and the kurta found over the dead body.8. the accused have pleaded not guilty to the charges and their defence version is that soran had not got any land entered in the name of ganga devi but the mutation case was in respect of the land which soran had sold to babu. they have denied that shanti prasad had gone that day to budaun for pairvi of the case and further says that babu alone had gone for the pairvi. they claim to have been falsely implicated in the case due to enmity.9. the prosecution examined 8 witnesses in all, out of whom p.w. 1 tara chand and p.w. 2 nathoo singh are witnesses of oc currence, p.w. 3 and p.w. 4 head constable indra pal giri and bankey lal are formal witnesses and they have proved the general diary etc., p.w. 5 dr. a.k. malpani performed the post mortem examination, p.w. 6 h. c. rama nand is another formal witness. p.w. 7 s.i. data ram is the initial i.o. and p.w. 8 m.k. kaushik is the subsequent investigating officer. the accused did not produce any witness in defence.10. the learned court below believed the prosecution story in part. it gave benefit of doubt to naurangi, nemi and shishpal accused and recorded the verdict of acquittal. still however the complainant tara chand filed a revision against that under sectioner of acquittal, amongst others, on the grounds that the learned trial court found the charges against the accused babu and mohkam proved and the verdict of acquittal in favour of naurangi, nemi and shishpal is against the evidence on recorded and their acquittal has resulted in grave miscarriage of justice; that the reasons given for discarding the direct evidence of eye-witnesses, in part are wholly inadequate and there were just minor contradictions about the identity of nemi and others and the court below ought to have convicted the reasoning accused persons as well. the learned lower court believed the prosecution theory in part and convicted the two appellants and the remaining three alleged participants have been given benefit of doubt and have been acquitted. feeling aggrieved by the judgment and under sectioner of conviction the appeal has been filed.11. the first point that has been argued by the learned counsel for the appellants is that the learned lower court has disbelieved the prosecution story in part and held that there remains a lurking doubt about the complicity of naurangi, nemi and shishpal and, therefore, the court below held that these persons deserved to be given benefit of doubt and acquitted. it has been argued by the learned counsel for the appellants that when all the five persons were named in the f.i.r. as actual assailants and once the participation of naurangi, nemi and shishpal in the commission of crime has been held to be doubtful, the prosecution story being one and the same should have been disbelieved as against the appellants babu and mohkam as well. we have considered this argument of the learned counsel for the appellants and we find no force in it. the rule which has been attributed to the two appellants babu and mohkam has been that they had alighted from the bus along with shanti prasad and immediately they shouted for naurangi and others to come out as the enemy has been caught. the court below held that it was not at all necessary on the part of the appellants babu and mohkam to shout out the names of naurangi and others. further more as the deceased shanti prasad was carried a little behind the bus and the companions of babu and mohkam had arrived from the dhencha crop, the witnesses were not in a position to see as to who the other persons were as the witnesses remained sitting inside the bus which started from the scene of occurrence immediately when shanti prasad deceased was taken out of the bus by appellants babu and mohkam. therefore, the court below was in doubt that these witnesses, who remained inside the bus, were in a position to see and identify the other assailants who had allegedly participated in the commission of the crime. it is under these circumstances and on the basis of the evidence on recorded that naurangi, nemi and shishpal have been given benefit of doubt by the court below and we find no illegality or impropriety in that finding and even otherwise that finding cannot be termed as perverse. it is an established law that it is the duty of the court to separate the chaff from the grain. there is reliable evidence on recorded to show that babu and mohkam appellants participated in the commission of the crime. it is they who forcibly took shanti prasad from out of the bus at the gun point and dragged him behind the bus and was ultimately done to death. the learned court below was thus fully justified in believing this part of the evidence adduced by the prosecution that babu and mohkam appellants are the actual persons who committed the murder of shanti prasad no doubt, with the help of others.12. we now take up the motive part of the prosecution case. it has come in the oral evidence of the witnesses that a litigation between ganga devi and appellants babu and mohkam was pending since before the present occurrence. shanti prasad, deceased was doing pairvi for ganga devi in the mutation case and therefore, the accused persons thought that shanti prasad was a thorn in their way. but for the help rendered by shanti prasad, the accused persons could have easily taken advantage of the vulnerable position of smt. ganga devi. the fact that shanti prasad was helping smt. ganga devi in contesting the litigation against the appellants is also borne out from documentary evidence which clearly indicates on earlier occasion shanti prasad had moved an application in that case. thus there was nothing unnatural if the appellants had decided to kill shanti prasad with a view to eliminate him from doing any pairvi in the case. we thus find that accused had a strong motive for committing the murder of shanti prasad. the evidence on recorded shows that shanti prasad (deceased) was doing pairvi in the mutation case between ganga devi and the accused. this fact is established and corroborated by the fact that on earlier occasion, in that case, an application was moved by shanti prasad and this fact is established by the documentary evidence on recorded. it is not denied that a litigation between ganga devi and the accused persons in respect of the land was pending and documentary evidence in that regard is on the recorded. it may be mentioned here that tara chand (pw 1) the complainant of the case was just a companion of shanti prasad and on that particular day, he too was coming from budaun in that bus. a litigation between soran' and ganga devi on the one side and babu and mohkam appellants on the other side was clearly pending. deceased shanti prasad was doing pairavi in that case against the accused persons and for ganga devi. it is not expected that a lady herself might have been looking after her case and it is how that she had required the services of shanti prasad. the accused persons were definitely annoyed with shanti prasad as to why he had been doing pairavi for ganga devi whom the appellants could have easily defeated taking benefit of the mere fact that the lady alone could not have run from post to pillar in respect of that litigation. the deceased shanti prasad was obstacle in the way of the appellants and this is how that they weeded him out. there was thus strong motive with the two appellants to have committed the crime.13. now we come to the evidence adduced by the prosecution in this case. it consists in the testimony of tara chand (pw 1) and nathoo singh (pw 2). both of them have consistently deposed before the court below that they were sitting in the same bus and had witnessed the incident. these two witnesses have given minute details of the occurrence. they have stated that at the culvert of choi, the appellants babu and mohkam got the bus stopped, caught hold of shanti prasad from behind and pulled him of out of the bus. tara chand (pw 1) has further stated that he objected to the aforesaid pulling but appellant mohkam pointed him gun towards him and directed him to keep quite. these witnesses further stated that after taking out shanti prasad from the bus these two appellants shouted naurangi and others to come out and then shots were fired at shanti prasad who fell down and died. the testimony of these two witnesses has been assailed by the learned defence counsel on the ground that the bus ticket has not been found from the dead body of shanti prasad by the investigating officer at the time of preparation of inquest report and this makes the presence of shanti prasad in the bus doubtful. we have considered this argument and find no force in it. it is in evidence on recorded that the occurrence took place in the jungle area and after commission of the murder, the dead body of shanti prasad was left uncared for quite some time. therefore the possibility was very much there that some body might have taken out the money, if any, and/or bus ticket etc. from the pocket of the deceased. it may also be that the deceased shanti prasad by that time might have not purchased the ticket. thus the mere fact that no bus ticket was found with the dead body of shanti prasad will not have any adverse affect on the unimpeachable evidence of these two witnesses.14. out attention has also been drawn by the learned counsel for the defence to the fact that the number of gun shots has not been ascertained in this case and it is also not certain as to from which distance the shots were fired at the deceased and, therefore, the prosecution story is highly doubtful. we have considered this argument of the learned counsel for the defence and we find that it was not possible for tara chand (pw 1) and nathoo (pw 2) to have witnessed the exact mode of firing as they were admittedly sitting in the bus when shanti prasad was taken out and dragged away by babu and mohkam appellants and immediately thereafter he was fired. it is also there in evidence that appellant mohkam had a gun with him and he threatened tara chand with that gun by pointing the same towards him and also directed him to keep quite. fear instinct was very much there in the mind of the two witnesses sitting in the bus that they might also be pulled out, dragged away and killed if there was even slightest overt act on their part. the natural conduct of these two witnesses, under the given circumstances was to keep quite, wait and watch and they come into action as soon as the bus moved ahead and the matter was reported at the police station. it was under these circumstances that the witnesses were not in a position to state with minute details about the mode of firing and the exact numbers of fires made at the deceased. it has also been submitted by the learned counsel for the defence that no independent witness said to be sitting in the bus has been examined by the prosecution in this case and nathoo (pw 2) cannot be termed as an independent witness. we find this submissip.n also untenable. once the passengers in the bus witnessed the incident of dragging away of shanti prasad by the armed persons a sense of insecurity must have aroused in their minds and they could not have dared to oppose or raise cry. however one of the passenger of the bus. tara chand (pw 1) came forward to depose about the incident and has named both the appellants. he is neither related to the deceased or tara chand (pw 1) nor was inimically deposed towards the appellants. his evidence is of independent character which inspires full confidence.15. the last point that has been argued before us by the learned counsel for the defence is that the bus driver and the cleaner (conductor) were the most material and important witnesses but the investigating officer did not examine them. this itself suggests that the incident did not occur in the manner as alleged by the prosecution. we have duly considered this argument and find that no doubt the conduct of the investigating officer in this case in not examining the bus driver or the conductor deserved to be censured, yet in the wake of overwhelming evidence of two eye-witnesses and circumstance of the case the complicity of the appellants babu and mohkam in this case is fully established beyond reasonable doubt. therefore non-examination of the bus driver or conductor in this case by the investigating officer will not be enough to throw over board the trustworthy and reliable evidence of the two eye-witnesses, whose presence in the bus is fully established. the evidence of bus-driver or the conductor would have been to same effect as that of p.w. 1 and p.w. 2. it was not necessary for the prosecution to examine each and every passenger of the bus or its driver and conductor simply to multiply witnesses after witnesses on the same point. once the presence of p.w. 1 and p.w. 2 inside the bus is established and their evidence has been found believable, is an end of the matter.16. the medical evidence in this case is also consistent with the occular evidence. both the witnesses of fact have stated that they heard the gun shots and had also witnesses from inside the bus that the appellants and their companions had fired at shanti prasad and assaulted him. there is nothing contradictory in the medical evidence with the occular evidence of the prosecution in this case. the f.i.r. in this case is also quite prompt. the occurrence accunder sectioning to the (pw 1 and pw 2) tara chand and nathoo had taken place at 3.30 p.m. in the day on 31-8-1979 and the same day at 4.15 p.m. f.i.r. was lodged at the police station which was at a distance of 5 kilometers. tara chand (pw 1) has lodged the report at the police station and there is nothing in his cross-examination to show that he had consulted anybody before the lodging of f.i.r. or that a coloured or concocted version has been mentioned in the f.i.r. which otherwise also mentions the date, time and place of occurrence as also the names of assailants, the mode of assault and the weapons of attack. thus the f.i.r. ext. ka-1 lodged in this case is a good corroborative piece of evidence and there is no reason to discard it.17. as a result of above discussion and on consideration of facts and circumstances of the case, we find that the prosecution has succeeded in proving beyond reasonable doubt that appellants babu and mohkam dragged shanti prasad out of the bus and thereafter his murder was committed. since we have endorsed the finding of learned sessions judge that on account of the witnesses being placed inside the bus they were not in a position to see and identify the as- sailants, who allegedly participated in the commission of murder of deceased behind the bus, as such the number of persons joining the two appellants babu and mohkam cannot be fixed with certainty. accunder sectioningly their conviction under sections 147/148, i.p.c. cannot be upheld because in under sectioner to constitute an unlawful assembly participation of at least 5 or more persons is necessary. the conviction of appellants babu and mohkam is, therefore, altered from 302/149, i.p.c. to section 302, i.p.c. read with section 34, i.p.c.18. the appeal is accunder sectioningly partly allowed. the conviction and sentence of appellant babu under section 147, i.p.c. and of appellant mohkam under section 148, i.p.c. are set aside and they are acquitted thereunder. however their conviction under section 302 read with section 149, i.p.c. is altered to under section 302 read with section 34, i.p.c. but their sentence of imprisonment for life is maintained. both the appellants are on bail. they shall surrender to their bail bonds forthwith before the trial court for being sent to jail to serve out their respective sentences. in the event of their failure to do so within 15 days from today, the trial court shall take appropriate steps for securing their arrest for serving out their respective sentences. criminal revision no. 22 of 1981 filed by tara chand is, however, dismissed.