Chhotey Sahu, Shobhit Chaturvedi, Dr. Sharad Chaturvedi and Billar Sahu vs State of U.P.

Vineet Saran, J.—By judgment and Order dated 16.1.2009 passed by Sessions Judge, Banda in Sessions Trial No. 254 of 2003 State v. Shobhit Chaturvedi and Ors. the accused Shobhit Chaturvedi, Billar and Chhotey have been found guilty and convicted u/s 302/34 I.P.C.; whereas accused Dr. Sharad Chaturvedi has been found guilty and convicted u/s 302/149 I.P.C. Accused Chhotey has also been found guilty and convicted u/s 25 Arms Act by the judgment and Order passed in Sessions Trial No. 255 of 2003 State v. Chhotey. Thereafter by order dated 23.1.2009 passed by Sessions Judge, Banda in the aforesaid Sessions Trials, accused Dr. Sharad Chaturvedi has been sentenced for life imprisonment u/s 302/149 I.P.C.; accused Shobhit Chaturvedi and Billar have been sentenced for life imprisonment u/s 302/34 I.P.C. whereas accused Chhotey has been sentenced with death penalty u/s 302/34 I.P.C. and has been directed to be hanged till death. The said accused Chhotey has also been sentenced to undergo imprisonment for 3 years u/s 25 Arms Act. Both the sentences of accused Chhotey have been directed to run concurrently.

Challenging the said judgment and Order, accused Chhotey has filed an appeal which has been registered as Capital Case No. 1357 of 2009; accused Shobhit Chaturvedi has filed Criminal Appeal No. 423 of 2009; accused Dr. Sharad Chaturvedi has filed Criminal Appeal No. 424 of 2009 and accused Billar has filed Criminal Appeal No. 474 of 2009. Since death penalty has been awarded to accused Chhotey, the Sessions Judge, Banda has also made a Reference u/s 366 Cr.P.C. which has been registered as Reference No. 2 of 2009.

Since all the aforesaid cases (Capital Case, Criminal Appeals and Reference) relate to the same incident, they have been heard together and are being decided by a common judgment.

In brief the facts are that the complainant Ram Sanehi s/o late Laxman Prasad Raikwar lodged a report at Police Station Kotwali Nagar, Banda on 5.8.2003 at 8.40 p.m. As per the said first information report, Awadhesh alias Pota s/o Ram Sanehi Raikwar was returning to his house from Mahabiran Temple and at about 7.30 p.m., when he reached the street (Gali) in front of the house of Bhawani Shashtri, he was surrounded by accused Shobhit Chaturvedi s/o Dr. Sharad Chaturvedi; Billar s/o Badri Sahu, Chhotey s/o Badri Sahu and Dr. Sharad Chaturvedi who were armed with knives and country made pistol. At some distance, the witnesses Chhotey s/o late Laxman Prasad Raikwar and Sanjai s/o Santosh were coming from behind and on seeing Awadhesh having been surrounded by the aforesaid accused persons and on hearing the shouts of Awadhesh, the said witnesses intervened and raised alarm, hearing which the complainant Ram Sanehi as well as Suraj s/o Maiyadeen and Om Prakash alias Bablu s/o Babu Ram rushed to the place of incident where they all saw accused Shobhit Chaturvedi and Billar giving repeated knife blows to Awadhesh with an intention to kill him because of which Awadhesh fell down. Accused Dr. Sharad Chaturvedi was exhorting the other accused persons to kill Awadhesh. On seeing the complainant and other persons, accused Chhotey s/o Badri Sahu fired two shots from his country made pistol on Awadhesh as well as gave him blows with his knife. The complainant and other witnesses threatened the accused persons, because of which they ran away from the scene of occurrence. Thereafter the complainant took his injured son Awadhesh to the Government Hospital where he was declared dead. In the end, it was stated in the first information report that the dead body of Awadhesh was lying in the Hospital and that report be registered and necessary action be taken.

On the basis of the written report, a Chick Report (Ext. Ka-3) was prepared by Constable Moharrir Ram Asrey on 5.8.2003 at 8.40 p.m. which was registered in the G.D. at No. 60/20.40 Crime No. 332/2003 u/s 302 I.P.C. against all the four accused persons. Initially from 5.8.2003 to 23.8.2003 the investigation was conducted by Sri Siraj Ahmad, Sub Inspector, Police Station Kotwali Nagar, Banda and on his transfer the investigation was handed over to Inspector Sharad Pratap Singh on 28.8.2003 who, after investigation, submitted charge sheet u/s 302/34 I.P.C. against three accused namely, Shobhit Chaturvedi, Billar and Chhotey. Accused Dr. Sharad Chaturvedi was not charge-sheeted by the police. A charge sheet u/s 25 Arms Act was also submitted against accused Chhotey after obtaining the sanction from the District Magistrate.

On 20.2.2004 charges u/s 302/34 I.P.C. were framed against accused Shobhit Chaturvedi, Billar and Chhotey. On the same day accused Chhotey was also charged u/s 25 Arms Act. Since the accused persons pleaded not guilty, the case was put to trial. Sessions Trial No. 354 of 2003 proceeded against accused Shobhit Chaturvedi, Billar and Chhotey u/s 302/34 I.P.C. whereas Sessions Trial No. 255 of 2003 proceeded against accused Chhotey u/s 25 Arms Act. Both the Sessions Trials were tried simultaneously and decided by a common judgment which is under challenge.

The prosecution examined the complainant Ram Sanehi s/o late Laxman Prasad Raikwar (father of the deceased Awadhesh) as P.W.1; Suraj son of Maiyadeen, who was also named as a witnesses in the F.I.R., as P.W. 2; Dr. Shrikant Bajpai, who conducted the post mortem, as P.W.3; Constable Ram Asrey Kushwaha who prepared the chick report, as P.W.4; Sub Inspector Sharad Pratap Singh, who was the second Investigating Officer from 28.8.2003, as P.W.5; Sub Inspector Siraj Ahmad who was the first Investigating Officer who conducted investigation from 5.8.2003 to 23.8.2003, as P.W.6; Sub Inspector Har Prasad Verma who prepared the inquest report and other relevant documents, as P.W.7; Constable Budh Singh who recovered the country made pistol and empty cartridges, as P.W. 8 and Sub Inspector Chandramani Pandey who confirmed the chick F.I.R. u/s 25 Arms Act against accused Chhotey, as P.W.9.

As per the post mortem report prepared by Dr. Shrikant Vajpai the following 16 ante mortem injuries were found over the dead body of Awadhesh:

Incised wound 4 x 1 cm bone deep situated 0.5 cm Below from left lower eye lid.

Incised wound 6 cm x 2 cm bone deep over left cheek situated 0.5 cm away laterally towards left cheek.

Incised wound 4 cm x 2 cm muscle deep situated 2 cm below left mandible.

Incised wound 3 cm x 1 cm muscle deep situated 5 cm below left ear.

Incised wound 1 cm x 0.5 cm situated 7 cm below left clavicle.

Incised wound 2 cm x 1 cm muscle deep situated 7 cm below laterally to left nipple.

Incised wound 2 cm x 1 cm muscle deep situated 6 Committee of Management. Below left abdomen.

Stab wound 3 cm x 1 cm situated 13 cm below left nipple. It is bone deep.

Abrasion on left deltoid area of left top of should 6 cm below. This abrasion was in an area of 10 x 9 cm.

Incised wound 3 cm x 1 cm bone deep in the scalp of oxipital area.

Incised wound 3 cm x 1 cm dorsal aspect of left wrist.

Incised wound 2 cm x 0.5 cm situated at left wrist joint lateral aspect.

Incised wound 1 cm x 0.5 cm muscle deep situated on the base of thumb.

Multiple abrasions on right cheek in an area of 6 x 4 cm.

Gun shot entry would over left side of neck 2 cm. x 2 cm. margins were inverted situated at 5 cm. Below left cheek. On section the wound was left to right direction. On section the subcutaneous tissues were lacerated on the skin. Trachea was lacerated. Upper part of right lung was lacerated and right scapula was fractured.

Gun shot exit wound 3 cm. X 2 cm. The margins were everted. On section the wound was communicated to injury No. 15.

It may be note worthy to mention that the complainant Ram Sanehi P.W.1 was examined on 1.7.2004. An application u/s 319 Cr.P.C. was filed by the prosecution. After hearing the parties on such application, the Sessions Judge, Banda vide his order dated 5.7.2004, allowed the said application and summoned Dr. Sharad Chaturvedi u/s 319 Cr.P.C. through the process of non-bailable warrant for abetting the murder of Awadhesh alias Pota and thus Dr. Sharad Chaturvedi also faced the trial of the case.

Statements of the accused persons u/s 313 Cr.P.C. were recorded on 18.9.2004 in which all the accused stated that the whole prosecution story was false and that the complainant Ram Sanehi and the witness Suraj had falsely implicated them in the case because of enmity and gave false statements. Accused Dr. Sharad Chaturvedi had also stated that he was busy in his clinic where he was treating his patients and gave details of the patients, their diseases and time of treatment by producing the patient treatment register. He also stated that he owned a good reputation in the district as a Medical Practitioner for the last 34 years as well as in social field and that the Investigating Officer had rightly found him innocent and that he was not involved in the crime.

After the statements u/s 313 Cr.P.C. were recorded, the Court summoned Sri Raudash, Assistant Director, Forensic Lab, Agra as C.W.1 who proved his report dated 10.5.2004 (Ext. Ka-23) as well as Paper No. 101-Ka which contained the descriptions of items sent under sealed cover to the court below. The Court also examined Constable Shiv Nandan as C.W.2 who proved the G.D. No. 8/8.00 dated 6.8.2003 (Ext. Ka-25) through which a memo from District Hospital was received at P.S. Kotwali Nagar.

The defence filed 13 papers as per list 139-Kha dated 6.11.2004 which are as follows:

Certified copy of charge sheet in case crime No. 181/03, under Sections 308, 323, 504, 506 IPC, P.S. Kotwali Nagar, State v. Santosh and Ors. as Ex.Kha-2.

Certified copy of F.I.R. in case crime Nos. 507, 508 of 2003 u/s 13 G. Act and 25(1-B) Arms Act, P.S. Kotwali City as Ex. Kha-3.

Certified copy of chargesheet in case crime No. 20/03 u/s 279, 304A I.P.C., P.S. Baberu, District Banda against Ram Sanehi as Ex. Kha-4.

Certified copy of F.I.R. case crime No. 571/85 under Sections 399, 402 IPC, Crime No. 572/85 u/s 5 Explosive Act, Crime Nos. 573 to 576 of 1985 under Sections 25/27 Arms Act and Crime No. 577/85 u/s 4/25 Arms Act, P.S. Kotwali City, Banda against Alok and others as Ex. Kha-5.

Certified copy of statement u/s 313 Cr.P.C. State v. Alok and Ors. as Ex. Kha-6.

Certified copy of voter list of Vidhan Sabha as Ex. Kha 7.

Voter list of Constituency No. 304, Naraini Village Tarkhari, Paper No. 146 Kha/1 to 146 Ka/12.

Voter list of Constituency No. 303 Mohalla Khutla of 2003 Paper No. 147 Ka/1 to 147Ka/11.

Voter list of Constituency No. 303 Banda Mohalla Khutla of 2003 Paper No. 148 Ka/1 and 148 Ka/2.

Voter List of Constituency No. 303 Banda Mohalla Khutla Madhiyan Naka of 2003 paper No. 149 Ka/1 to 149 Ka/12.

Voter List of Constituency No. 303 Banda Mohalla Khutla Madhiyan Naka of 2003 paper No. 150 Ka/1 to 150 Ka/12.

Voter List of Constituency No. 303 Banda Mohalla Khutla Madhiyan Naka of 2003 paper No. 151 Ka/1 to 151 Ka/13.

Voter List of Nagar Panchayat Election Ward No. 13 of Banda 2000 paper No. 152 Ka/1 to 152 Ka/14 and 153 Ka/1 to 153 Ka/14.

The defence again filed 2 papers as per list 155 Kha dated 9.11.2004 which are as follows:

Certified copy of the plaint filed in the court of Settlement Officer Consolidation, Banda as Ex. Kha-8.

Certified copy of Vakalatnama as Ex. Kha-9.

Besides filing of the above papers, the defence examined Constable Vakil Singh Chauhan as D.W.1 to prove that Constable Ram Prasad was not on duty on the said date till 10.30 A.M.

Statement u/s 313 Cr.P.C. of all the accused persons were again recorded on 6.6.2006 and all the accused answered that the evidence against them was wrong and due to enmity. Thereafter the defence filed further 5 papers as per list 225 Kha dated 21.9.2006 which are as follows:

Receipt of Electricity Board, Banda.

Photo copy of letter of Ex. Engineer, Electricity Power Corporation, Banda dated 1.8.2006

Photo copy of the report of J.E. 33/11 K.V., Bhuragarh, Banda dated 31.7.2006

Photo copy of log sheet of Corporation dated 5.8.2006

Photo copy of log sheet of Corporation dated 6.8.2006.

After close of evidence, the Sessions Judge, Banda heard the parties and passed the impugned judgment and order.

On behalf of the appellants we have heard Sri Gopal Swaroop Chaturvedi, Learned Senior Counsel and Sri V.P. Srivastava, Learned Senior Counsel assisted by Sri Samit Gopal. Sri D.R. Chaudhary, learned Government Advocate was heard on behalf of the State.

In brief the submissions of Sri Chaturvedi, learned Counsel for the appellants, is that the prosecution has not been able to prove its case by producing independent witnesses. It has been submitted that the presence of P.W.1 Ram Sanehi as well as P.W.2 Suraj is doubtful and their testimony is not acceptable as they were chance witnesses. The other witnesses named in the F.I.R., namely, Om Prakash alias Bablu son of Babu Ram, Chhotey son of late Laxman Prasad Raikwar and Sanjai son of Santosh have not been produced. It has further been submitted that the incident is said to have taken place at a crowded place and yet there were no independent witness produced and that the appellants have been implicated because of enmity as a case u/s 308 I.P.C. had been registered against the complainant Ram Sanehi on the complaint filed by accused Chhotey s/o Badri Sahu. It has also been submitted that there was no source of light at the place of incident and thus the complainant could not have identified the witnesses named in the F.I.R. Sri Chaturvedi further argued that even if it is presumed that knife blows were given by accused Shobhit Chaturvedi and Billar, the injuries sustained by Awadhesh were simple in nature and cannot be termed as grievous injuries defined u/s 320 I.P.C. In the end it was submitted that at best it could be a case of common intention for causing simple injuries u/s 324 I.P.C. and by firing the country made pistol, which caused the death of deceased Awadhesh, accused Chhotey exceeded the common intention. It was submitted that in any case the involvement of accused Dr. Sharad Chaturvedi was not there inasmuch as his presence at the scene of occurrence is highly doubtful and none of the witnesses have assigned any role to him or even stated that he (Dr. Sharad Chaturvedi) was carrying any weapon by which he could have caused any injury to the deceased Awadhesh and that his role of exhortation also cannot be believed as once his presence on the scene of occurrence becomes doubtful, the question of exhortation also does not arise. It has thus been submitted that the final report submitted by the police in favour of accused Dr. Sharad Chaturvedi ought to have been accepted.

While adopting the arguments of Sri G.S. Chaturvedi, Sri V.P. Srivastava, Learned Senior Counsel also appearing on behalf of the appellants, further submitted that as per the site plan the witnesses were about 120 paces away from the place of incident and in a crowded market place the cries and shouts of deceased Awadhesh could not have been heard from such a distance and as such the presence of the witnesses itself is very doubtful and the accused have been implicated in the case merely because of old enmity.

Sri D.R. Chaudhary, learned Government Advocate appearing for the State, however, submitted that there was no suggestion of enmity of the complainant with the accused Dr. Sharad Chaturvedi and Shobhit Chaturvedi and there was thus no reason for falsely implicating the accused persons. It has been submitted that the plea of alibi of Dr. Sharad Chatrurvedi was not proved and it would not be believable that if a murder had taken place in the vicinity of the clinic of Dr. Sharad Chaturvedi at 7.30 p.m. he would continue to attend his patients till 10.00 p.m. specially when his own son was named as an accused in the F.I.R. Sri Chaudhary submitted that it was a clear case of murder in which the accused persons were involved and had been identified in the light of the bulb outside the house where the incident had taken place and that it was for the prosecution to produce the witnesses whom they thought fit and proper and it was not necessary to produce all the witnesses named in the F.I.R. In his submission, the appeals lack merit and the judgment and order of the Sessions Judge be confirmed.

It is true that all the witnesses named in the F.I.R. have not been produced as witnesses of fact. The prosecution has only examined the complainant Ram Sanehi P.W.1 and Suraj s/o Maiyadeen P.W.2. However, the incident had taken place in a crowded market where the said two witnesses cannot be said to be merely chance witnesses as their presence near the place of incident has been properly explained. It is not the case where the incident had taken place at an isolated place where the said two witnesses would be required to explain their presence. The place of incident being a market place, the said two witnesses could have been there in normal course and could have witnessed the incident from a distance. The source of light for identifying the accused is fully explained as there was a bulb lit up outside the house where the incident had taken place. The shouts and cries of the deceased Awadhesh could have been heard by the witnesses because of which they approached the place of incident and on the exhortation of the said witnesses as well as others, the accused persons ran away after giving knife injuries and gun shot injuries to the deceased Awadhesh. It is not necessary for the prosecution to examine all the witnesses named in the F.I.R. Judicial notice can be taken of the fact that when a murder takes place, even though in a crowded place, independent witnesses fear to come forward to give evidence. However, in case if the occurrence is proved by even one witness, even though he may be an interested witness, then too, it would not falsify the entire case merely because independent witnesses were not produced. Both the witnesses of fact i.e. P.W.1 Ram Sanehi and P.W.2 Suraj have clearly proved the fact of the murder of Awadhesh Kumar.

However, as regards the involvement of the accused Dr. Sharad Chaturvedi is concerned, we are of the view that his presence on the scene of occurrence is not fully proved. No specific role has even been assigned to him. None of the witnesses have stated that accused Dr. Sharad Chaturvedi was carrying any knife or country made pistol or any other weapon with him. It appears that there could have been an incident of the other three accused persons having been embroiled in a fight with the deceased Awadhesh in which repeated knife blows may have been given by them and on the P.W.I and P.W.2 as well as other persons rushing towards them and on their exhortation the accused Chhotey, who was carrying a country made pistol with him, fired at the deceased and thereafter all of them ran away.

From a perusal of the ante mortem injuries it is clear that the first 14 injuries are by knife blows. They cannot be termed as grievous or serious in nature as they are all muscle deep or bone deep and in case if the same had been given with a intention to kill, then they would have been more grievous because if three persons give repeated knife blows to one single person with the intention to kill, then the knife blows would be sufficient to ensure that the person dies of such injuries, but the nature of injuries which have been mentioned in the post mortem report are not such which could have caused death. The injuries which caused the death are injuries Nos. 15 and 16 which are gun shot entry and exit wound over left side of the neck below the left cheek. The firing of the gun shot is specifically assigned to accused Chhotey, with whom there could be said to be an enmity. The intention to kill could thus be assigned to accused Chhotey and not to other accused. Though the injuries caused by knife blows, which are all simple in nature, are assigned to accused Shobhit Chaturvedi and Billar but from the facts of this case it cannot be said that accused Shobhit Chaturvedi and Billar had the common intention to kill the deceased Awadhesh. As already held above, if the intention of these two accused persons was also to kill, then they would not have inflicted such knife blows which were only skin deep or bone deep, specially when there was one person being attacked by three accused persons. Thus, we are of the opinion that it is not a case which would attract the provisions of Section 34 I.P.C. where a criminal act is done by several persons in furtherance of a common intention of all. Thus, in our view, each of the accused persons cannot be said to be liable for the murder of the deceased Awadhesh.

In view of the above, we are of the opinion that accused Shobhit Chaturvedi and Billar could, at best, be guilty of causing injuries which cannot be termed as grievous injuries. These two accused would thus be guilty of offence u/s 324 I.P.C.

Accused Dr. Sharad Chaturvedi, whose presence has not been proved beyond doubt by the evidence adduced by the prosecution, would thus not be guilty of the offence. His only role of exhortation has also not been proved. We hold him not guilty of the offence for which he has been charged.

As regards accused Chhotey, we are of the opinion that it was he who had fired country made pistol which caused such injuries due to which deceased Awadhesh had died. He alone would be guilty of the offence u/s 302 I.P.C.

After having heard learned Counsel for the parties on the question of sentence, we are of the opinion that the accused-appellants Shobhit Chaturvedi and Billar, who have been found guilty u/s 324 I.P.C., should be punished with imprisonment of three years.

Accused-appellant Chhotey has been awarded death sentence. Awarding of capital sentence is an exception and it is obligatory on the Courts to record special reasons, if ultimately death sentence is to be awarded. While upholding the constitutional validity of the death sentence, a Constitution Bench of the Supreme Court in the case of Bachan Singh Vs. State of Punjab, has held that as a legal principle death sentence can be awarded but only in rarest of rare cases when the alternative option of lesser sentence is unquestionably foreclosed. The guidelines laid down in Bechan Singh''s case (supra) culled down as under:

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty, the circumstances of the offender also require to be taken into consideration along with the circumstances of the crime. Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iii) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating circumstances have to be recorded full weightage and just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

In our view, the crime committed by the accused-appellant Chhotey, though proved and he having been found guilty u/s 302 I.P.C., is not of such a nature to be placed in the category of rarest of rare case in which capital sentence should be awarded. The present does not fall in the category of rarest of rare case as per the guidelines laid down by the Apex Court in the case of Bechan Singh (supra) as well as the subsequent decisions, namely, (1) Machhi Singh and Others Vs. State of Punjab, (2) Devender Pal Singh Vs. State National Capital Territory of Delhi and Another, (3) Des Raj v. State of Punjab (2007) 12 SCC 494 and (4) Ram Pal v. State of U.P. XLVII 2004 A.C.C. 567. The accused-appellant Chhotey is thus awarded punishment of life imprisonment under sentence 302 I.P.C. His conviction and sentence u/s 25 Arms Act is, however, maintained.

In the result, Criminal Appeal No. 424 of 2009 Dr. Sharad Chaturvedi v. State is allowed and the accused-appellant Dr. Sharad Chaturvedi is acquitted of the charge levelled against him. He is on bail. His bail bonds are cancelled and sureties discharged.

Criminal Appeal No. 423 of 2009 Shobhit Chaturvedi v. State and Criminal Appeal No. 474 of 2009 Billar Sahu v. State are partly allowed to the extent that the conviction and sentence of the accused-appellants Shobhit Chaturvedi and Billar Sahu u/s 302/34 I.P.C. are set aside and instead they are held guilty and convicted u/s 324 I.P.C. and sentenced to undergo three years (3 years) rigorous imprisonment.

Capital Case No. 1357 of 2009 Chhotey Sahu v. State is also partly allowed only to the extent the death sentence awarded to the said accused-appellant Chhotey Sahu u/s 302/34 I.P.C. is set aside and instead he is held guilty and convicted u/s 302 I.P.C. simplicitor and sentenced to undergo imprisonment for life. However, the conviction and sentence of the accused-appellant Chhotey Sahu u/s 25 Arms Act is maintained.

Reference made u/s 366 Cr.P.C. is not accepted.

34.The office is directed to certify the judgment/send record immediately to the court concerned for immediate compliance and necessary action.