JUDGMENT
Shiv Shanker, J.
1. This criminal appeal has been preferred against the judgment and order dated 28.7.2001 passed by Additional Sessions Judge, Bulandshahr in S.T. No. 887 of 1996, State v. Suresh under Section 302 IPC and S.T. No. 889 of 1996, State v. Suresh under Section 25/4, Arms Act, P.S. Khurja Nagar, district Bulandshahr. convicting the accused-appellant Suresh thereunder and sentencing him to life rigorous imprisonment and three years R.I. respectively. Both the sentences were ordered to run concurrently. Accused-appellant was also sentenced to pay a fine of Rs. 5,000/- and in default of payment of fine, he shall further undergo two years R.I.
2. Brief facts, arising out of this appeal, are that Devendra alias Bhondu (P.W.I) lodged a written report (Ext. Ka-1) at Police Station Kotwali Khurja Nagar (Bulandshahr) on 14.5.1996 alleging that the son of accused Suresh had fallen down from roof about twenty days ago. Shiv Kumar, brother of informant, had taken a taxi on hire of Rs. 100/- and brought the son of accused for treatment but the fare of Rs. 100/- was not given by him to the driver of the taxi. Therefore, on 14.5.2006 at about 9.30 P.M., Juganu, another brother of informant, had demanded the above Rs. 100/-from accused whereupon he abused him. However, he was saved by the informant and one Dwarika in front the house of the informant. Thereafter, the accused rushed to his house and and brought a Chhuri from his house and assaulted Juganu by saying I will kill you due to demand of above money of Rs. 100/-. Consequently, he was attacked by the said Chhuri by him. Therefore, he sustained injuries on his person and had fallen down on the ground. Thereafter, the accused had run away to his house and closed the door of his house and after climbing upon the room, he ran away. Juganu, in an injured condition, was taken by the complainant to the hospital but he succumbed to his injuries in the way. After leaving the dead body in the hospital, he got prepared the written report (Ext. Ka-1) from one Jogendra Singh and filed the same at the concerned police station upon which case under Section 302 IPC was registered against accused Suresh.
3. The investigation of the case was entrusted to S.H.O. Sri Pratap Bhanu Sharma (P.W.9). On 14.5.1996,the inquest report regarding the dead body of deceased was prepared from 22.45 hours to 1 hour. After sealing the dead body of deceased, the same was entrusted to Constable 398 Satya Pal Singh and Constable 186 Mahendra Singh for autopsy.
4. On 15.5.1996, at 3.00 P.M., the post mortem of the dead body was conducted by Dr. Anil Kumar (P.W.4). Four ante mortem injuries as incised wounds, were found on the body of deceased, as mentioned in the post mortem report (Ext Ka-6).
5. ON 17.5.11996, the accused was arrested by S.H.O. Sri P.B. Sharma (P.W.9). At about 1.30 A.M. Near Nehrupur Chungi and one blood stained Chhuri was recovered from his possession. After inquiry, he disclosed that he had committed the murder of deceased by this Chhuri. Thereafter, the recovery memo was prepared and after sealing the same, the accused and recovered article were taken to the concerned police station where the case under Section 25/4 Arms Act was also registered against the accused. After completion of investigation, charge sheets for the offence under Section 302 IPC as well as under Section 25/4, Arms Act were filed against the accused-appellant.
6. After committal of the case by the concerned Magistrate to the Court of Sessions, charges for the offence under Section 302 IPC and 25/4 Arms Act were framed against the accused by the concerned Sessions Judge to which he pleaded not guilty and claimed to be tried.
7. In support of its case, the prosecution has examined P.W.I Devendra who is informant and eye witness and brother of deceased. P.W.2 Dwarika Prasad is the eye witness of the alleged incident. P.W. 3 S.I. Raghubir Singh Vikram is the arresting officer of the accused and the recovery of the alleged Chhuri (Material Ext.-1), P.W. 4 is Dr. Anil Kumar who conducted the post mortem of deceased. P.W. 5 is Constable 186 Mahendra Singh in whose presence the S.I. Raghubir Singh prepared the inquest report and after sealing the dead body, it was entrusted to him for post mortem. P.W. 6 is S.I. Mukhtiyar Singh, who was Head Moharrir at he concerned police station and prepared the Chik F.I.R. (Ext. Ka-7) and case Kayami G.D. Ext. Ka-8. P.W. 7 is S.I. Bhojraj Singh, second Investigating Officer regarding the case under Section 25/4 Arms Act. P.W. 8 is H.S. Shukla, the second Investigating Officer regarding the murder of deceased. P.W. 9 is Sri Pratap Bhanu Sharma, L.I.U (Vigilance), Agra. No oral and documentary evidence has been adduced on behalf of the accused in defence.
8. The accused has denied all the questions put before him under Section 313, Cr.P.C. and stated that he has been falsely implicated in this case. The deceased was a man of bad character. Therefore, he was murdered by some unknown persons in the dark night and he has been falsely implicated in this case due to enmity.
9. After considering the submissions made by the learned Counsel appearing on behalf of the parties and perusing the whole evidence on record, the accused was convicted for the charge under Sections 302 IPC. As well as under Section 25/4 Arms Act by awarding the sentences, as mentioned above by the trial court. Feeling aggrieved, this appeal has been preferred on the accused. Heard Sri Harish Chandra Tiwari, Amicus Curiae, on behalf of accused-appellant and learned A.G.A. as well as perused the entire records.
10. Learned Counsel appearing on behalf of the appellant has contended that F.I.R. Is anti timed; the place of incident is also disputed; there is inadequate motive ; there is no independent witness of this case; there was no house of P.W. 2 Dwarika Prasad at the place of incident and also there was no source of light mentioned in the first information report. It is further contended that there is medical conflict according to the testimony of all the witnesses. It is further contended that the recovery of Chhuri is also doubtful. The deceased was a man of bad character and he was murdered in the night by some one else and the accused-appellant has been falsely implicated in this case. However, the trial court has convicted and sentenced the appellant for the charges leveled against him without any reliable and trustworthy evidence and, as such, he was entitled to get the benefit of doubt.
11. On the other hand, learned A.G.A. has submitted that this is a case of direct evidence wherein the first information report was lodged promptly; the testimony of eye witnesses is supported with the postmortem report of the deceased and the weapon was recovered from the possession of appellant which was allegedly used in committing the murder. P.W. 1 Devendra P.W. 2 Dwarika Prasad have stated that there was electric light at the place of incident. However, the appellant could easily be identified at the place of occurrence as he is the neighbour of the above two witnesses Therefore, the trial court has rightly convicted the appellant.
12. This incident had taken place on 14.5.1996 at 21.30 hours and the first information report (Ext. Ka-1) was lodged at the concerned police station at 22.30 hours after covering a distance of one and half furlongs. P.W. 1 Devendra is the informant of this case. I has come in his testimony that the deceased, in an injured condition, was taken from the place of occurrence to the hospital who died in the way due to the sustaining of injuries in the incident. Thereafter, his dead body was left at the hospital and then he got prepared the written report Ext. Ka-1 and submitted the same at the concerned police station. Therefore, it has been lodged within an hour after the incident. Sufficient explanation has been given regarding such delay of one hour. Although, P.W. 5 Mahendra Singh has admitted in his cross-examination that he along with other police officials had proceeded from the concerned police station to Jatiya Hospital, Khurja at 9.00 P.M. And reached at9.3- P.M. At the place of occurrence. The alleged incident had taken place at 9.30 P.M. Therefore, he and other police officials could be reached at 9 or 9.30 P.M. On the other hand, S.I. Mukhtiar Singh, who prepared the Chik F.I.R. (Ext. Ka-7) and case Kaymi G.D. (Ext. Ka-8) has stated that informant P.W. 1 Devendra reached police station at 10.30 P.M. And thereafter the case was registered against the accused. P.W.3 S.I. Raghubir Singh Vikram is also the witness of preparing the inquest report who had not supported this fact that he along with P.W. 5 Constable Mahendra Singh reached at the place of incident at 9.30 P.M. Therefore, there is no doubt, as per the testimony of P.W. 1 Devendra, P.W. 6 Mukhtiar Singh, P.W. 3 Raghubir Singh Vikram and P.W. 5 Mahendra Singh, that the first information report was lodged within one hour of the alleged incident. It is worthwhile to mention here that the inquest report was also prepared on the same night in between 22.45 and 1 hour. Therefore, there is no any stretch of evidence which could reflect that the first information report was lodged anti timed. In such circumstances, there is no force in the contention of the learned Counsel for the appellant regarding the lodging of the first information report.
13. So far as the contention of motive is concerned, P.W. 1 Devendra has stated in his testimony that the son of appellant-accused had fallen down from the roof. Consequently, he sustained injuries and a taxi was made available on hire by Shiv Kumar, brother of P.W. 1 Devendra and deceased but the fare of Rs. 100/- of the taxi was not given to Shiv Kumar upon which deceased Juganu, brother of Shiv Kumar, had demanded the said amount from accused-appellant which was not paid due to this reason, the deceased was murdered by the appellant. In this regard, the contention of the learned Counsel for the appellant is that Shiv Kumar was the material witness regarding the motive but he has not been produced. P.W.I Devendra has stated in his deposition and nothing has come adverse in his cross-examination. He was also the brother of Shiv Kumar and deceased was also brother of Shiv Kumar. Therefore, there was no need to repeat the same thing by producing Shiv Kumar in evidence. It is worthwhile to mention here that this is a case of direct evidence wherein the motive has no significance. However, P.W. 1 Devendra has given the evidence regarding the motive. Therefore, it is not liable to be deemed that the alleged motive is inadequate, as contended by the learned Counsel for the appellant.
14. The prosecution has examined P.W. 1 Devendra, brother of deceased and P.W. 2 Dwarika Prasad. The contention of learned Counsel for the appellant is that there is no independent witness in this case as P.W. 1 Devendra is real brother of deceased. His evidence cannot be thrown out merely on the basis of relationship of deceased but the same could be scrutinized with great care and caution. P.W. 2 Dwarika Prasad has stated that the deceased was murdered by accused-appellant infornt of his house. The contention of learned Counsel for the appellant is that there is no house of P.W. 2 Dwarika Prasad in the site plan (Ext. Ka-12). On that basis it has been contended that he is not the independent witness and he had given the evidence merely on the basis of friendship with P.W. 1 Devendra. This contention has also no force. The deceased was murdered at place ‘C’. In the east, there is house of appellant and in the west there is house of one Smt. Ram Murti wife of Pt. Om Prakash. Mathura Prasad is the son of Om Prakash. P.W. 2 Dwarika Prasad is also son of Om Prakash and, as such, he is son of Smt. Ram Murti Therefore, it is also proved on the basis of site plan that his house was situated in front the house of appellant and the incident had taken place in front the house of P.W. 2 Dwarika Prasad. During the course of cross-examination, it has not been accepted by P.W.2 Dwarika Prsad that he is friend of P.W. 2 Devendra. Only suggestion has been given to this witness that he is giving the evidence on the basis of friendship with P.W. 1 Devendra. This suggestion has been denied. Therefore, there is no evidence on record that P.W. 2 Dwarika Prasad was the friend of P.W. 1 Devendra. Therefore, it is liable to be deemed that P.W. 2 Dwarika Prasad is an independent witness. No reason or explanation has been given on behalf of accused-appellant why P.W. 2 Dwarika Prasad, who is an independent witness, is giving the evidence against him.
15. It has come in the testimony of P.W. 1 Devendra and P.W. 2 Dwarika Prasad that accused-appellant had assaulted and inflicted Chhuri injuries on the person of deceased. Consequently, he sustained injuries and fallen down on the ground. Thereafter, he was taken to the hospital but in the way, he succumbed to his injuries. Nothing has come in their cross examinations for contradicting and conflicting evidence in respect of the manner of causing injury by Chhuri on the person of deceased. According to the site plan (Ext. Ka-12), the house of deceased was situated after two houses. It has come in the cross-examination of P.W. 1 Devendra that Juganu had fallen after sustaining Chhuri injury at the tap after taking the bath. The distance from the tap to the place of causing injuries is about twenty steps. This is not much distance. The fact of taking the bath is supported with the post mortem report of the deceased as only one under bear was found on his person and no other cloth was found. In such circumstances, it is not liable to be believed that the place of incident is different.
16. So far as the source of light is concerned, it has not been mentioned in the first information report as well as in the previous statements of P.Ws. 1 and 2, namely, Devendra and Dwarika Prasad respectively. Both have stated that there was electric light at the time of incident. The trial court has considered that there was electric light according to the testimony of P.W. 1 Devendra who has stated that there was electric light at the time of incident. The appellant is the next door neighbour of Devendra and Dwarika Prasad (P.Ws. 1 and 2). Before assaulting the deceased with Chhuri, some altercations took place in between the accused-appellant and deceased. Thereafter, he assaulted the deceased by saying that I will kill you due to demand of money. Therefore, the accused-appellant could easily be identified by voice/structure of body etc. even in the absence of source of light as well as in the dark night.
17. It is also worthwhile to mention here that accused-appellant had assaulted with Chhuri upon the deceased at three times but he sustained four ante mortem injuries. It is not a material contradiction. It has been stated by P.W. 1 Devendra in his deposition that several assault were made upon the deceased. According to the post mortem report of the deceased, four incised wounds were found on the upper part of chest, left side chest left side abdomen. The ante mortem injuries of the deceased reveals that the appellant had assaulted the deceased with Chhuri several times. Consequently, he sustained sharp edged injuries. This also reflects that the accused-appellant had assaulted with Chhuri upon the deceased with intent to kill him. In such circumstances, the contention made by learned Counsel for the appellant has no force that it is case of sudden fight and the offence of Section 302 IPC is not made out. The oral testimony of P. Ws. 1 and 2 Devendra and Dwarika Prasad, is fully supported with the medical evidence, i. e. Post mortem report of the deceased. The first information report was also lodged promptly against the accused.
18. The contention of the learned Counsel for the appellant has no force that the recovery of weapon (Chhuri) was doubtful. In this regard, P.W. 3 Raghubir Singh Vikram and P.W. 9 S.H.O. Pratap Bhanu Sharma are the arresting officers of the appellant. They had arrested the appellant on 17.5.1996 after three days of the alleged incident. Blood stained Chhuri (Ext-1) was recovered from his possession. Although, such Chhuri was not sent for chemical examination by the Investigating Officer. There is no connecting evidence against the appellant that it was used in committing the murder of deceased. However, an illegal weapon was recovered from the possession of the appellant in respect of which he was not holding a valid license. Therefore, the accused-appellant has committed the offence under Section 25/4 Arms Act. This fact is supported with the testimony of P.W. 3 Raghubir Singh Vikram and Pratap Bhanu Sharma. The investigation of the case was also conducted by P.W. 7 S.I. Sri Bhoj Raj Singh who submitted the charge sheets against the appellant. Therefore, there is no any evidence which could reflect the recovery of the said Chhuri doubtful from the possession of accused-appellant.
19. In this view of the matter, we hold that the trial court has rightly convicted and sentenced the accused-appellant for the charges levelled against him upon relying the oral and documentary evidence. Therefore, the appeal is liable to be dismissed. Consequently, the appeal fails and is hereby dismissed.