Full Judgment Text
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CASE NO.:
Appeal (crl.) 952-953 of 1998
PETITIONER:
State of Uttar Pradesh
RESPONDENT:
Sheo Sanehi & Ors.
DATE OF JUDGMENT: 06/10/2004
BENCH:
B.N.AGRAWAL & A.K.MATHUR
JUDGMENT:
J U D G M E N T
B.N.AGRAWAL, J.
All the eight respondents were convicted by the trial court under
Sections 302/149 of the Penal Code and sentenced to undergo imprisonment
for life. Ayodhya Prasad (respondent No. 2) was further convicted under
Section 147 of the Penal Code and sentenced to undergo rigorous
imprisonment for a period of six months whereas the other respondents
under Section 148 of the Penal Code and each one of them was sentenced to
undergo rigorous imprisonment for a period of one and half years. The
sentences, however, were ordered to run concurrently. On appeals being
preferred by the respondents, the High Court of Allahabad acquitted them of
all the charges.
Prosecution case, in short, was that seven months prior to December,
1977, one Sant Saran, father of accused Santosh Kumar, was murdered in
which Debi Shanker and Rakesh @ Chhotey, both sons of Devi Din Pandey
were made accused in which case bail was granted to both the aforesaid
accused persons which infuriated Santosh Kumar. On 20th December, 1977,
in the morning, Sushil Kumar (PW 1) came to the house of his maternal
grandfather Devi Din Pandey for borrowing oxen to get his plots ploughed and
found that his maternal grandmother Smt. Gorha Devi (PW 4) and his
maternal grandfather’s brother, Promod Kumar (PW 3), were enjoying fire at
the door of Devi Din Pandey whereas Devi Din and his two sons, namely,
Debi Shanker and Rakesh @ Chhotey were cutting fodder and Vinod Kumar,
elder brother of Promod Kumar (PW 3) was milching the cow. At 7.30 a.m.,
all the respondents, excepting Gur Bax, who were related to each other,
came there armed with guns, country made pistols, farsa, barchhi and lathi.
Upon arrival, Ayodhya Prasad (respondent No. 2) exhorted other accused
person to kill the enemies, namely, Devi Din, Debi Shanker and Rakesh @
Chhotey. Respondent No. 5 \026 Santosh Kumar, son of Sant Saran, fired at
Devi Din, respondent No. 1 \026 Sheo Sanehi fired at Debi Shanker and
respondent No. 8 \026 Bhagwati fired at Rakesh from their respective guns
whereas respondent No. 3 \026 Gur Bax fired at Debi Shanker. Respondent
No. 4 \026 Santosh Kumar son of Govind Prasad fired at Rakesh from his
country made pistol. Thereupon respondent No. 6 \026 Deo Narain assaulted
Devi Din Pandey and Debi Shanker by farsa and respondent No. 7 \026 Ram
Asray assaulted them with barchhi whereas respondent No. 2 \026 Ayodhya
Prasad assaulted them with lathi. All the three injured persons, namely, Devi
Din Pandey, Debi Shanker and Rakesh @ Chhotey fell down and succumbed
to their injures on the spot. Upon halla being raised by Sushil Kumar (PW 1),
villagers Asharfi, Babbu and Hira Lal came to the place of occurrence and
when the accused persons were challenged, they went away giving out
threats. Thereupon, Sushil Kumar (PW 1), after covering a distance of five
miles, lodged the first information report on the same day at 11.30 a.m. at
Ghatampur police station stating the aforesaid facts disclosing therein names
of all the respondents.
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Police after registering the case took up investigation and upon
completion thereof submitted chargesheet, on receipt whereof the learned
magistrate took cognizance and committed all the eight respondents to the
court of Sessions to face trial.
Defence of the accused persons was that they were innocent, no
occurrence, much less the occurrence alleged, had taken place and the three
deceased persons were done to death in the dead of night and nobody had
seen the occurrence, but the accused persons have been falsely roped in to
feed fat the old grudge. Accused Sheo Sanehi and Santosh Kumar, son of
Govind Prasad, took the plea of alibi.
During trial, the prosecution examined seven witnesses, out of whom,
informant Sushil Kumar (PW 1), Promod Kumar (PW 3) and Smt. Gorha Devi
(PW 4) claimed to be eyewitnesses of the alleged occurrence. Ram Shankar
Shukla (PW 2) is the police officer who drew up the first information report,
Ratan Singh (PW 5) is the investigating officer and Devi Prasad Mishra (PW
6) is the constable who took the dead bodies for postmortem examination
whereas Dr. S.K.Govil (PW 7) is the doctor who conducted postmortem
examination on the dead bodies of all the three deceased persons. Apart
from the witnesses, several documents were exhibited on behalf of the
prosecution. Defence examined several witnesses in support of the plea of
alibi of respondent No. 1 \026 Sheo Sanehi and respondent No. 4 - Santosh
Kumar son of Govind Prasad to the effect that they were taken into custody in
connection with different cases few days before the date of alleged
occurrence and on the date and at the time of occurrence, they were in jail.
Apart from the evidence of defence witnesses, the defence has adduced
documentary evidence as well. Upon conclusion of trial, the learned
Additional Sessions Judge convicted the respondents, as stated above, but
on appeals being preferred by them, the High Court recorded their acquittal.
Hence, the present appeals by special leave by the State of Uttar Pradesh. It
may be stated at this stage that during the pendency of these appeals,
respondent No. 2 \026 Ayodhya Prasad and respondent No. 3 \026 Gur Bax died, as
such appeals against them abated and this being the position, we are
required to consider the same on merits in relation to the remaining six
respondents.
Learned counsel appearing on behalf of the appellant State in support
of the appeals submitted that upon perusal of the order of acquittal rendered
by the High Court, it would appear that the same was perverse as it has
reversed the order of conviction recorded by the trial court only upon three
grounds, viz., (I) Three eyewitnesses, namely, Sushil Kumar (PW 1), Promod
Kumar (PW 3) and Smt. Gorha Devi (PW 4) were related to the members of
the prosecution party and inimical to the accused persons; (II) medical
evidence did not fit in with the time of occurrence disclosed by the prosecution
as stomach of the deceased was found empty; and (III) plea of alibi of
accused Sheo Sanehi and Santosh Kumar, son of Govind Prasad, was
substantiated. On the other hand, learned counsel for the respondents
submitted that the view taken by the High Court was not only possible one but
the same was a reasonable view, as such no interference by this Court is
called for.
First we proceed to consider the medical evidence. Dr. S.K.Govil
(PW 7) conducted the postmortem examination on the dead body of
deceased - Devi Din on 21st December, 1977 at 3.00 p.m. and found the
following injuries on his person :-
1. Incised wound 1<" x ?" x scalp deep on the upper
occipital region. Margins were clean cut. Hair were also
cut.
2. Incised wound 1" x <" x muscle deep on the right fore
head, about =" above the right eye brow. Margins were
clean cut.
3. Three abraded contusions in the area of 3" x 2 " on back of
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right shoulder.
4. Gun short wound 1" x 1" x chest cavity deep on the left
side chest, lower axillary region in mid axillary line in 6th
inter costal space. Margins were blackened. It was wound
of entry.
5. Seven gun shot wounds in area of 5" x 3" chest cavity
deep all communicating with injury No. 4, each measuring
?" x <".
6. Gun shot wound ?" x <" x bone deep on the upper part
right axilla.
On internal examination, the doctor found 6th, 7th and 8th ribs fractured
on the right side. Both pleuras were punctured through and through. Right
lung was punctured by gun shot through and through. Left lung was also
punctured by gun shot through and through under injury No. 4. Heart was
punctured by gun shot through and through. Large and small intestines were
half full. According to the doctor, death was caused due to shock and
haemorrhage as a result of gun shot injuries. Doctor also recovered one
pellet from right axilla and one wadding piece from right lung.
Likewise, when PW 7 conducted the postmortem examination on the
same day at 4.00 p.m. on the dead body of Debi Shanker, aged 26 years, he
found following injuries on his person:-
1. Gun shot wound 1" x >" x chest cavity deep on the left
side of chest interior to axilla line. Margins were blackened.
It was a wound of entry.
2. Five gun-shot wounds in an area of 3" x 2" on the front of
left side chest communicating with injury No.1. It was
wound of exit.
3. Stab wound 1" x ?" x abdominal cavity deep on the front
of epigastic region. Margins were clean cut.
4. Six abraded contusion in an area of 4" x 3" left side of
abdomen, 3" left to umbilicus.
5. Abraded contusion 1=" x <" on the right side of abdomen,
5" lateral to umbilicus.
6. Three abraded contusion in an area of 1" x =" on the left
side of chest just below injury No. 2.
7. Four gun-shot wound, in an area of 2"x1=" on front right
shoulder. These injuries were chest cavity deep.
8. Five gun shot wounds on right side back upper part in an
area of 5" x 3". They were exit wound of injury No. 7.
9. Incised wound =" x =" x muscle deep on right side face
below jaw.
10. Gun-shot wound of entry x >" x =" x shoulder deep on the
back left shoulder outer part.
11. Gunshot wound entry >" x ?" x left elbow.
12. Nine gun shot wound of exit in an area of 2" x 1=" on the
back of left elbow.
13. Incised wound =" x ?" x muscle deep on the chin.
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14. Two abraded contusion =" x ?", =" x <" on the left thigh
upper part.
On the internal examination, the doctor found 2nd, 3rd, 4th, 5th and 6th
ribs on the left fractured. Both pleuras were punctured by gun shots. Both
lungs were punctured through and through by pellets. Pericardium and heart
were also punctured through and through by pellets. Large and small
intestines were half full. In the opinion of the doctor, the death was caused
due to shock and haemorrhage as a result of the aforesaid injuries. Doctor
also recovered some wadding pieces and number of pellets from the body of
the deceased.
Thereafter, PW 7 conducted postmortem examination on the dead
body of Rakesh @ Chhotey aged 23 years on the same day at 5.40 p.m. and
found the following injuries on his person : -
1. Gun shot wound 2" x 1" x neck deep on left side of neck.
Margins were blackened and scorched. It was wound of
entry.
2. Six gun shot wounds of entry each measuring ?" x ?" x
chest cavity deep on left side of chest. 8" below
axilla, in an area of 2" x 1=". Margins were
blackened.
3. Four gun shot wounds of exit in an area of 2" x 1" each
measuring ?" x ?". Injuries were communicating with
injury No. 2.
4. Gun shot wound of entry =" x ?" x bone deep on the right
fore arm.
On the internal examination, the doctor found right clavicle fractured.
5th, 6th ribs of the left side were also fractured. Pleura and both lungs were
punctured by pellets. Larynx, trachea were also punctured by pellets.
Stomach was empty. The large and small intestines were half full. In the
opinion of the doctor, the death had been caused due to shock and
haemorrhage, as a result of the aforesaid injuries. The doctor also recovered
some pellets and two wadding pieces from the body.
In the opinion of the doctor, the injuries caused to the three deceased
persons were sufficient to cause death in the ordinary course of nature and
death was caused within a period of 30 to 36 hours from the time of
postmortem examination. Dr. S.K.Govil (PW 7) categorically stated in his
evidence that death might have been caused at about 7.30 a.m. According to
the finding of doctor referred to above, as would appear from postmortem
report, stomach of deceased Rakesh @ Chhotey, aged 23 years, was empty.
In this connection, reference may be made to Modi’s Medical
Jurisprudence & Toxicology, 22nd Edition, at pages 246 and 247 wherein it
has been noted that the conditions producing changes vary so much in each
individual case that only a very approximate time of death can be given.
According to Modi, in addition to this, the time of death can be ascertained to
some extent from the contents of the stomach, bladder and the intestines and
rate of emptying of stomach varies in healthy persons which is dependent on
the consistency of food; motility of the stomach; osmotic pressure of the
stomach contents; quantity of food in the duodenum; surroundings in which
food is taken; emotional factors; and residual variations. The learned author
opined thus that the time varies in a man from 2.5 \026 6 hours. The aforesaid
opinion of the learned author in his famous treatise has been noticed by this
Court with approval in the case of Suresh Chandra Bahri Vs. State of Bihar,
1995 Suppl. (1) SCC 80, at pages 131 para 88 wherein it was observed that
as the deceased was a young boy of 12 years, his power of digestion must be
assumed to be quick and strong, therefore, if the stomach at the time of
postmortem was found to be empty, it was but natural.
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In the present case, it is the prosecution case and evidence that at
7.30 in the morning when other members of prosecution party were warming
up near the fire and milching the cow, three deceased persons were cutting
the fodder for being given to the cattle in the morning and the possibility of
their taking the breakfast around 5.30 in the morning before starting the work
is but natural and as Rakesh @ Chhotey, aged 23 years, was a healthy
young boy at the prime of his youth might have digested the food within two
hours as his power of digestion must be quick and strong due to which
stomach was found empty. Thus, the finding of the doctor in the postmortem
report that the stomach of Rakesh @ Chhotey was found empty at the time of
postmortem examination was but natural and cannot create any doubt in
relation to the veracity of the prosecution case that occurrence had taken
place at 7.30 a.m. on 20th December, 1977 and consequently, the High Court
was not justified in throwing out the prosecution case and rejecting ocular
version of the occurrence disclosed by the witnesses, more so when the
medical evidence supports the prosecution case of assault by different
weapons.
Apart from the medical evidence, the prosecution case is supported by
the objective findings of the police. The investigating officer \026 Ratan Singh
(PW 5) when visited the place of occurrence found bloodstained earth inside
the bhusaura (a store room of cattle fodder) where all the three deceased
persons were working on the fodder cutting machine at the time of the alleged
occurrence. He further found cut fodder in the said room with stains of blood
thereon, seized the same and sent it to the chemical examiner. The
Serologist reported that the same contained human blood. Apart from that,
the investigating officer found the signs of burning of fire at the door of
deceased Devi Din Pandey, as would appear from the site plan, Ex. Ka-22,
recovered four empty cartridges and three pellets from the place of
occurrence and prepared seizure memos therefor. Thus, the objective
findings of the investigating officer fit in with the prosecution case that the
occurrence had taken place at the place where the three deceased persons
were working on fodder cutting machine at the time of the alleged occurrence.
As far as motive for the murder is concerned, from the evidence of
Sushil Kumar (PW 1), it would appear that all the accused persons, excepting
accused Gur Bax, were related to each other. Accused Santosh Kumar is
son of Sant Saran who was murdered for which deceased Debi Shanker and
Rakesh @ Chhotey were made accused and were granted bail prior to the
date of the alleged occurrence. Accused Ayodhya Prasad is grandfather of
accused Santosh Kumar, son of Sant Saran, and accused Ram Asray
whereas accused Sheo Sanehi and Deo Narain are sons of accused
Ayodhya Prasad. Accused Bhagwati is cousin of aforesaid accused Santosh
Kumar as mothers of both of them are sisters. Accused Santosh Kumar son
of Govind Prasad is grandson of brother-in-law of accused Ayodhya Prasad.
Accused Gur Bax is friend of accused Ram Asray and was on visiting terms
with him. PWs 1, 3 and 4 have categorically stated that as father of accused
Santosh Kumar was murdered for which deceased Debi Shanker and Rakesh
@ Chhotey were accused and before the date of the alleged occurrence, they
were granted bail, accused Santosh Kumar was having a grudge with the
deceased persons which led to the commission of the present crime.
Coming to the ocular version of the occurrence, the prosecution has
relied upon the evidence of three eyewitnesses, viz., PWs 1, 3 and 4. PW 1
has supported the prosecution case in all material particulars which is
consistent with his subsequent statement made before the police. The
ground of attack to his evidence was that he was a resident of village which is
situated at a distance of 40 kilometers from the place of occurrence and he
had no occasion to be present at the place of occurrence. He stated that his
mother was adopted by one Smt. Mahadei of village Siromanpur where the
occurrence had taken place, he was born in village Siromanpur and was
residing in the said village with his mother - Smt. Bishandei since his
childhood inasmuch as he was looking after cultivation of her lands. The fact
that his mother was adopted by Smt. Mahadei would be apparent from the
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registered Will dated 11th August, 1977 (Ex. Ka 52) executed by Smt.
Mahadei in favour of his mother showing that she was her adopted daughter
and was residing with her. Ex. Ka-50 and Ex.Ka-51 are the extracts of
khatauni and khasra in which name of Bishandei, mother of this witness, is
recorded along with Smt. Mahadei in relation to the agricultural lands. That
apart, Exs. 13,14 and 15 are transfer certificates, high school certificate and
mark sheet in relation to this witness which show that he had passed out from
a school situated in village Siromanpur. Apart from the aforesaid documents,
invitation card Ex. 16 has been filed to show that the sacred thread ceremony
of PW 1 as well as his younger brother - Subhendu Kumar was held in the
year 1975 in village Siromanpur. Besides that, letters - Exs. 17 to 20 have
been filed to show that he had received the same at his address in village
Siromanpur. Ex. Ka-47 is gun licence in the name of PW 1 in which he was
shown to be a resident of village Siromanpur. These facts clearly show that
PW 1 was resident of village Siromanpur, as such his presence at the place
of occurrence and time of occurrence cannot be doubted.
So far as PWs 3 and 4 are concerned, PW 3 is nephew of deceased
Devi Din whereas PW 4 is widow of the said deceased, as such they are
natural witnesses and their presence at the alleged place of occurrence
cannot be doubted. The names of these two witnesses were disclosed in the
first information report itself and they supported the prosecution case in all
material particulars in their statements made before the police as well as in
court and no infirmity could be pointed out in their evidence, excepting that
they were related to the deceased persons and inimical to the accused. It is
well settled that merely because a witness is related to the prosecution party
and inimical to the accused persons, his evidence cannot be discarded if the
same is otherwise trustworthy. In the case on hand, we do not find any
infirmity whatsoever in the evidence of PWs 1, 3 and 4, as such it is not
possible to disbelieve them, especially in view of the fact that their evidence is
supported by medical evidence as well as objective findings of the
investigating officer, but the High Court has committed a serious error in
discarding their testimonies on this score.
In support of the plea of alibi of accused Sheo Sanehi and Santosh
Kumar, son of Govind Prasad, the defence examined several witnesses. So
far as accused Santosh Kumar is concerned, the two Assistant Jailors,
namely, Mani Kant Singh (DW 1) and Ram Raj Tripathi (DW 3) proved entry
of the jail register. In their evidence, they admitted that when this accused
was taken to Unnao jail on 17th December, 1977 and released on 24th
December, 1977, his identification marks were noted down in the original gate
book and register of the said jail, but most of the identification marks noted
down in the aforesaid registers of jail were not traceable on the person of this
accused. They further stated that though prominent identifying marks were
visible on the body of this accused, but the same were not noted down in the
register. That apart, this accused is said to have been arrested by Radhey
Shyam Gupta (DW 4) and Raj Kumar Pandey (DW 6) and entry to that effect
was made in the crime register duly maintained but the trial court, after
threadbare discussion of evidence and taking into consideration all the pros
and cons of the matter, has come to the conclusion that the entries therein
were fabricated. Learned counsel for the respondents could not point out any
infirmity in findings of the trial court on this score. This being the position, we
are of the view that the trial court was quite justified in holding that this
accused set up a false plea of alibi, but the High Court was not justified in
reversing the findings in this regard and that also without considering
discrepancies in the evidence adduced on behalf of the defence in relation to
the plea of alibi.
So far as the plea of alibi of accused Sheo Sanehi is concerned, the
prosecution examined Pyare Lal Gupta (DW 8) and Kanhya Lal (DW 10).
DW-8 is a constable who claimed to have arrested the accused on 19th
December, 1977 at 9.45 p.m. at Unnao railway station. He deposed in court
that the only ground of arrest of accused Sheo Sanehi was that he was found
crossing the railway line. This witness during the course of cross-examination
had accepted that, excepting this accused, nobody else was ever arrested for
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crossing the railway line. DW-10 is a person who stated that DW-8 brought
this accused to the Government Railway Police Station at Unnao from where
Ramjas Yadav (DW 9) took him to jail. DW-10 admitted in his evidence that
the person who was brought to the police station and taken therefrom by
DW-9 for being lodged into jail was not baldheaded whereas this accused
was baldheaded. After taking into consideration these infirmities, the trial
court did not accept the plea of alibi of this accused, but the High Court,
without considering discrepancies in the evidence adduced by the defence in
this regard, reversed the finding and accepted the plea of alibi set up by the
accused. We have no difficulty in holding that the trial court was quite
justified in rejecting the plea of alibi of the aforesaid two accused persons and
the High Court has committed error in accepting the same. For the foregoing
reasons, we are of the view that the prosecution has succeeded in proving its
case beyond reasonable doubt and the High Court was not justified in
recording order of acquittal which suffers from the vice of perversity and is
consequently liable to be interfered with by this Court in exercise of powers
under Article 136 of the Constitution.
Accordingly, the appeals against respondent No. 2 \026 Ayodhya Prasad
and respondent No. 3 Gur Bax are held to have abated in view of the fact that
they died during the pendency of appeals whereas appeals filed in relation to
other respondents are allowed, the order of acquittal rendered by the High
Court in their favour is set aside and convictions and sentences recorded by
the trial court against them are restored. Bail bonds of respondent No. 1 \026
Sheo Sanehi, respondent No. 4 \026 Santosh Kumar, son of Govind Prasad,
respondent No. 5 \026 Santosh Kumar, son of Sant Saran, respondent No. 6 \026
Deo Narain, respondent No. 7 \026 Ram Asray and respondent No. 8 \026
Bhagwati, who are on bail, are cancelled and they are directed to be taken
into custody forthwith to serve out the remaining period of sentence for which
compliance report must be submitted to this Court within a period of one
month from the date of receipt of this order by the trial court.