Bhagloo Lodh & Anr vs State Of U.P

Bhagaloo Lodh & Anr. ...Appellants

Versus

State of U.P. ...Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This criminal appeal has been preferred against the judgment

and order dated 28.4.2004 passed by the High Court of Judicature at

Allahabad (Lucknow Bench) in Criminal Appeal No. 956 of 2002

dismissing the appeal against the judgment and order dated 12.7.2002

passed by the Sessions Court, Hardoi, in Sessions Trial No. 108 of

2000 convicting the appellants and co-accused Bhagaloo Singh, under

Sections 302/34 of Indian Penal Code, 1860 (hereinafter called as

`IPC') and sentencing them to undergo rigorous imprisonment for life.

1 2. Facts and circumstances giving rise to this case are that:

A) An FIR dated 26.10.1999 was lodged by Rajesh Singh (PW.1)

in Police Station-Tandiyanwan, Fatehpur District, Hardoi, against the

appellants and two other co-accused Ram Lakhan and Bhagaloo Singh

that the said four accused had killed Vinod Kumar on 25.10.1999 at

9.00 P.M. Vinod Kumar, aged 22 years was friend of Raj Kumar, the

son of Ram Lakhan, accused, and thus had visiting terms with the

family. One day, when he went to the house of Ram Lakhan, accused,

he saw Bhagaloo Singh, accused in compromising position with the

daughter of Ram Lakhan, accused and reprimanded him. Bhagaloo

Singh was living with Ram Lakhan, accused and helping him in his

agricultural work. Bhagaloo Singh had told Vinod Kumar not to

disclose the factum of his intimacy with the daughter of Ram Lakhan

to anyone. Thus, a quarrel took place between the two and Bhagaloo

Singh, accused threatened Vinod Kumar to face the dire

consequences. It is in that consequence that the two appellants,

alongwith Ram Lakhan caught hold of Vinod Kumar (deceased) and

Bhagaloo Singh gave several blows by a sharp edged weapon

"Karauli". Vinod Kumar died immediately on the spot after having

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12 injuries. There had been enmity in these groups of parties and

there had been criminal cases between them.

B) On the basis of the said FIR, Case Crime No.155/1999 was

registered under Sections 302/34 IPC and investigation ensued. The

dead body of Vinod Kumar was recovered and sent for post mortem

examination. Buddhi Narain Lal (PW.5), Investigating Officer

completed the investigation and submitted chargesheet under Sections

302/34 IPC. All the four accused pleaded not guilty and claimed trial.

Thus, they were put to trial under Sections 302/34 IPC in Sessions

Trial No. 108/2000.

C) The prosecution in order to prove its case examined five

witnesses, namely, Rajesh Singh (PW.1), Devi Gulam Singh (PW.2)

as eye-witnesses, Dr. R.K. Porwal (PW.4), Constable Shailendra

Singh (PW.3), and Buddhi Narain Lal, I.O. (PW.5). The accused also

examined Jag Dev (DW.1) and Salim (DW.2) to prove alibi that the

appellants could not be present on the place of occurrence as they had

been in their agricultural field.

After conclusion of the trial, the Sessions Court

convicted and sentenced the appellants along with Bhagaloo Singh

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under Sections 302/34 IPC and sentenced them to undergo rigorous

imprisonment for life vide judgment and order dated 12.7.2002.

It may be pertinent to mention here that accused, Ram

Lakhan had died during the course of trial.

D) Being aggrieved, the appellants and co-accused Bhagaloo Singh

preferred Criminal Appeal No. 956 of 2002 before the Allahabad

High Court (Lucknow Bench) which has been dismissed vide

impugned judgment and order dated 28.4.2004. Hence, the appellants

filed this appeal.

3. Shri J.P. Dhanda, learned counsel appearing for the appellants,

has submitted that the appellants had falsely been implicated in the

case due to enmity as there had earlier been criminal cases between

the parties. The FIR was lodged with a delay of 9 hours and the

prosecution failed to furnish any plausible explanation for the same.

Rajesh Singh (PW.1) and Devi Gulam Singh (PW.2), the alleged eye-

witnesses, were very close relatives of the deceased, and thus, their

testimonies cannot be relied upon safely. Prosecution failed to

examine any independent witness. Thus, the appeal deserves to be

allowed.

4 4. On the contrary, Shri T.N. Singh, learned counsel appearing for

the State has opposed the appeal contending that the prosecution

furnished satisfactory explanation of delay of 9 hours in lodging the

FIR, as nobody could go to the police station at a distance of 18 Kms.

out of fear. Both the eye-witnesses were closely related to the

deceased but their testimonies had been found trustworthy by both the

courts below, and thus cannot be discarded. More so, the law does not

prohibit to rely upon the evidence of the closely related witnesses of

the deceased or victim if it is found to be reliable. In view of the

above, appeal lacks merit and is liable to be dismissed.

5. The autopsy on the body of the deceased Vinod Kumar was

conducted Dr. R.K. Porwal (PW.4) on 26.10.1999 and he found the

following ante-mortem injuries:

i) Incised wound size 1 cm x 0.5 x muscle deep present on left

temporal region, 1.5 cm lateral to left eyeball.

ii) Incised wound size 16 cm x 5 cm x bone deep present in front

of the neck, 2 cm above the xiphisenuim the trachea is clean

cut, margins of the wounds are clean cut.

iii) Incised wounds size 2 cm x 1 cm x chest cavity deep present

on left side of the chest at the level of nipple at 9 O' clock

position. Wound is 6 cm medial to nipple underlying heart is

clean cut.

5 iv) Incised wound size 2.5 cm x 1 cm x muscle deep present on

right side of chest at 4 O'clock position from right nipple. It is

6 cm away from right nipple.

v) Incised wound size 2 cm x 0.7 cm x chest cavity deep (lower

chest) present on right side of chest, 7 cm away from right

nipple at 4 O' clock position underlying lower is lacerated.

vi) Incised wound size 6 cm x 1 cm x chest cavity deep. Present

on right side of chest left O'clock position, 9 cm away from

nipple margins of the wounds are clean out.

vii) Incised wound size 6 cm x 2.5 cm x chest cavity deep on left

side of chest 1.5 cm left to midline.

viii) Incised wound size 1.5 cm x 1 cm x muscle deep present on

left side of chest 4 cm lateral to midline at the level of

xiphislesinim.

ix) Incised wound size 5 cm x 2.5 cm x abdominal cavity deep

present on left side of upper abdomen 1 cm lateral to medline

at the level of T8 spine intestine is coming out of the wound.

x) Incised wound 1 cm x 0.5 cm x muscle deep present side of

back at the level of T9 spine 8 cm lateral to midline.

xi) Incised wound size 1.5 cm x 0.5 cm x muscle deep present on

right side of back at left the level of T12 spine 6 cm lateral to

medline.

xii) Incised wound size 1 cm x 0.5 x muscle deep present on left

side of back at the level of T10 spine 7 cm lateral to midline.

The cause of death spelt out in the post-mortem report was

shock and hemorrhage as a result of ante-mortem injuries. It is

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pertinent to mention that in his deposition in the Trial Court, Dr.

Porwal reiterated the said cause of death and also stated therein that

the ante-mortem injuries suffered by the deceased were attributable to

a sharp edged weapon, like karauli and were sufficient in the ordinary

course of nature to cause death.

6. The fact of homicidal death of Vinod Kumar, the place of

occurrence and time of his death are not in dispute. Shri Dhanda has

raised very limited issues referred to hereinabove and the case is

restricted only to those issues.

7. Prompt and early reporting of the occurrence by the informant

with all its vivid details gives an assurance regarding truth of its

version. In case there is some delay in filing the FIR, the complainant

must give explanation for the same. In absence of such an

explanation, the delay may give presumption that

allegations/accusations were false and had been given after thought or

had given a coloured version of events. Undoubtedly, delay in

lodging the FIR does not make the complainant's case improbable

when such delay is properly explained. However, deliberate delay in

lodging the complaint is always fatal. (Vide: Sahib Singh v. State of

Haryana, AIR 1997 SC 3247; Gorige Pentaiah Pentaiah v. State of

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A.P. & Ors., (2008) 12 SCC 531; and Kishan Singh (dead) thr. Lrs.

v. Gurpal Singh & Ors., AIR 2010 SC 3624).

8. So far as the delay in lodging the FIR is concerned, it has been

explained by Rajesh Singh (PW.1) as under:

"I had not gone to lodge report in Police Station

Tandiyanwan due to fear. We looked the corpse at

night. I and Hanif went to Tandiyanwan Police Station

by motorcycle in next morning".

9. The incident occurred at 9.00 P.M. on 25.10.1999 and the FIR

was lodged on 26.10.1999 at 6.10 A.M. at the police station at a

distance of 18 K.M. from the place of incident. Rajesh Singh (PW.1)

has mentioned that on account of fear of the accused persons, he could

not go to the police station to lodge the FIR at night. This explanation

has been found by both the courts below to be perfectly convincing,

and after considering all the facts and circumstances of the case, the

courts below drawn an inference that the explanation furnished was

quite satisfactory. We do not see any cogent reason to take a view

contrary to the view taken by the courts below.

10. So far as the issue of accepting the evidence of closely related

witnesses is concerned, both the courts below had placed a very heavy

reliance on the depositions of Rajesh Singh (PW.1) and Devi Gulam

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Singh (PW.2), in spite of the fact that Rajesh Singh (PW.1) was the

brother of the deceased Vinod Kumar and Devi Gulam Singh was

also closely related to Rajesh Singh (PW.1). The daughter of Rajesh

Singh (PW.1) got married with Sarvesh, the nephew (sister's son) of

Devi Gulam Singh (PW.2). Both of them had supported the

prosecution case. Both of them have been extensively cross-examined

by the defence, but nothing could be extracted therefrom which could

impair their credibility. The courts below found that evidence of both

the eye-witnesses inspired confidence and was worth acceptance as

both of them had given full version of the incident.

More so, both the courts below have held that the

witnesses had no reason to falsely implicate the appellants and the co-

accused and spare the real assailants.

11. In the statement under Section 313 of Code of Criminal

Procedure, 1973, the appellants had not taken the defence that they

could not be present at the place of occurrence as at the time of

occurrence they were working in their paddy field. Thus, in view of

the above, the deposition of the two witnesses examined in their

defence becomes meaningless.

9 12. The incident had occurred outside the village and not inside the

village. Therefore, it is likely that some other persons might have

come there after the accused had run away from the place of

occurrence. Rajesh Singh (PW.1) had deposed that one Sushil Kumar,

a resident of far away village of district Hardoi, who got married in

the same village was also with him. However, no question had been

put to Buddhi Narain Lal (PW.5), I.O. by the defence as to why Sushil

Kumar had not been examined.

13. So far as the evidence of defence witness, namely Jag Dev

(DW.1) is concerned, he has deposed that the present appellants had

been working in their paddy field at the time of occurrence of the

crime. However, the court below did not believe his statement for the

reason that the witness had never got his statement recorded by the

Investigating Officer, nor did he disclose such fact to any other

person. He was examined first time in the court. Similarly, statement

of Salim (DW.2) has been found not worth acceptance. The said

witness was present in the morning at the place of occurrence when

the Investigating Officer reached there. The appellants had been

named in the FIR. Salim (DW.2) also admitted that he knew that a

murder case had been registered against the appellants, but he did not

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disclose to the Investigating Officer or to any other person that the

appellants could not be the assailants. Salim (DW.2) has also

admitted that his father was the Pradhan and he had defeated Saroj

Singh, a very close relative of Vinod Kumar, deceased.

14. Evidence of a close relation can be relied upon provided it is

trustworthy. Such evidence is required to be carefully scrutinised and

appreciated before resting of conclusion to convict the accused in a

given case. But where the Sessions Court properly appreciated

evidence and meticulously analysed the same and the High Court re-

appreciated the said evidence properly to reach the same conclusion,

it is difficult for the superior court to take a view contrary to the same,

unless there are reasons to disbelieve such witnesses. Thus, the

evidence cannot be disbelieved merely on the ground that the

witnesses are inter-related to each other or to the deceased. (Vide:

M.C. Ali & Anr. v. State of Kerala, AIR 2010 SC 1639;

Myladimmal Surendran & Ors. v. State of Kerala, AIR 2010 SC

3281; Shyam v. State of Madhya Pradesh, (2009) 16 SCC 531;

Prithi v. State of Haryana, (2010) 8 SCC 536; Surendra Pal & Ors.

v. State of U.P. & Anr., (2010) 9 SCC 399; and Himanshu @

Chintu v. State (NCT of Delhi), (2011) 2 SCC 36).

11 In view of the law laid hereinabove, no fault can be

found with the evidence recorded by the courts below accepting the

evidence of closely related witnesses.

15. In view of the above, we are of the considered opinion that the

facts and circumstances of present case do not warrant any review of

the judgments and orders of the courts below. The appeal lacks merit

and is accordingly dismissed.

....................................J.

(Dr. B.S. CHAUHAN)

.....................................

J.

(SWATANTER KUMAR)

New Delhi,

June 14, 2011

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