Gurcharan Singh vs State of U.P.

U.K. Varma, J. (for himself)

Sri Anand Prakash Agarwal Sessions Judge Nainital on 11-4-80 in the Sessions Trial No. 73 of 1979 had convicted Guru Charan u/s 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life. Aggrieved by his judgment and order, Gum Charan has filed this appeal from jail.

The prosecution case is the sad tale of a farm labourer Om Prakash who lost his life for declining to work in lieu of unpaid debt or not agreeing to his wife being ravished by Guru Charan, the sex maniac beastly disposed labour supervisor. Om Prakash and his brother Sohan Pal were allegedly serving on the ''Gernail Farm''. The Appellant Guru Charan was a ''Munshi'' employed to take the attendance of the workers on the farm. The wife of the deceased Smt. Shanti Devi was a domestic servant in the house of the farm owner Gernail Singh. About three months before the incident, Om Prakash deceased and his wife Smt. Shanti Devi and also his brother Sohan Pal left the farm of Gernail Singh and came to serve on the farm of Chaudhari Ram Swaroop in village Badripur where upon Buddhi, the sister''s husband of Smt. Shanti Devi, was a labourer. Guru Charan visited Om Prakash, a number of times and demanded that he should either return the loan of Rs. 250/- or serve on the ''Gernail Farm in lieu of it. A day before the incident, he managed to take Sohan Pal, to that farm. On the date of the occurrencs i.e. 21-11-78, he had first come in the afternoon at 2.30 P.M. alongwith another farm labourer Hari Prasad and enquired about Om Prakash and when he was informed that he had gone to Bazpur, he insisted that Smt. Shanti Devi should accompany him. Smt. Shanti did not agree to it. She, although not so mentioned in the FIR had in her cross-examination pointed that in fact no amount was really due to Guru Charan from Om Prakash. He wanted to take her for sexual intercourse. He had made amorous advances while she was serving at the house of Gernail Singh and in fact for this reason they had left the service of Gernail Singh. The wife of Chaudhary Ram Swaroop Smt Chandro had also told the Appellant that Smt. Shanti Devi would not go with him without her husband Om Prakash too accompanying her. Guru Charan got infuriated at this and had threatened that it would have dire consequences. He at that time, went away with Hari Prasad on a cycle. Around dusk, Smt. Shanti, Smt. Chandro and Buddi heard the cries of Om Prakash from the nearby sugarcane field of Ram Swaroop. They all rushed to his rescue Smt. Shanti and Buddhi saw Guru Charan Appellant inflicting injuries with the darati where as another person, whose name was not disclosed in the FIR but during investigation and trial was shown to be Hari Prasad, Dressing him Smt. Chandro noticed Guru Charan alongwith his associate making good their escape from near the dying Om Prakash. The blood stained ''darati'' had been left behind. The Appellant and his associate had been fully identified in the light of the setting sun. The dead body of Om Prakash was lifted from the sugarcane field and kept on the path infront of the verandah of Ram Swaroop.

3 The FIR had been lodged by Buddhi at 7.55 P.M. at the P.S. Bazpur which is shown to be at a distance of 4 Km. from the place of the incident. The inquest report was prepared between 9 P.M. and 10 P.M. on the same day. The autopsy on the dead body of Om Prakash had been conducted by Dr. M. Husain PW 9 on 22-11-78 at 4.30 P.M. He found the following ante mortem injuries on his person which he recorded in his postmortem report Ext. Ka 4.

Incised wound 13 cm. on front of neck upper half starting from left lateral side of the neck just under mendiable angle, passing just over upper edge of thyroid cartilage, cutting larynx on right upper edge, on the left the cornu of hyoid bone was cut, pharynx was cut, on right side upper edge of oesophagus cut. On the left both carotid arteries and vein cut, on right side both the catotid arteries at bifurcation and vein cut. The wound was deep up to vertebrae, on the left it was a bit higher on the right it was lower with 5 cm. gaping.

Abraded contusion 4 cm. above the left nipple front of chest, 2 cm. x 2 cm.

Abraded contusion 1 cm. x 1 cm., 3 cm. above the left anterior superior iliac spine.

Punctured wound with incised margins, 3.5 cm. x 1 cm x 4 cm. on the left side waist just left to mid line passing forward outer side.

Multiple abrasions on the back, left side back of waist in an area of 6 cm. x 5 cm. varying from 3 cm. x 2 cm. to 1 cm. x 1/10 cm.

The doctor opined that the death of Om Prakash had resulted due to shock and haemorrhage on account of the injury No. 1. Dr. M. Husain while in the witness box had been shown the ''darati'' material Ext 1. He deposed that the injury No. 1 which was sufficient in the ordinary course of nature to cause the death Om Prakash could have been inflicted by this weapon. So far as the injuries No. 2 and 3 were concerned, he pointed that they could have been caused by its reverse side. He however, expressed inability to say whether the injury No. 4 had been inflicted by that very weapon or not. The injury No. 5, he stated had been caused when the body of the deceased rubbed against the ground.

The I.O. J.S. Tyagi PW 13 pointed that he reached the scene of occurrence with the Sub-Inspector B.B.L. Sharma immediately after the registration of the case against the Appellant Guru Charan and another person shown to be unknown. He instructed B.B.L. Sharma to prepare the inquest report narrative of which shows that a large number of persons had been found around the dead body which was lying near the field of Chaudhary Ram Swaroop in front of his verandah by the road side. It was sent for post-mortem examinations, report where of has been quoted above in part.

The Appellant Guru Charan and Hari Prasad were arrested in connection with the crime in question on 22-11-78 at the pantel Farm. They were instructed to keep themselves in veiled condition as they had to be put up for identification. They remained as such while in the custody of the Bazpur police and were put up for identification on 8-1-79. The Appellant Guru Charan had been correctly identified by Smt. Chandro PW 2 and Buddhi PW 3 but Hari Prasad could not be identified by Buddhi. He made a mistake in his parade. Smt. Shanti did not participate in their identification proceedings as she admittedly knew these persons and on the information provided by her, their names had found mention in the first information report.

The trial Judge gave benefit of doubt to Hari Prasad and acquitted him mainly on the grounds that he was not shown in the FIR to be accompanying the Appellant Guru Charan when he made the murderous assault, and further because he had not been identified by Buddhi PW 5.

So far as the Appellant is concerned, he found the evidence against him to be reliable and convincing and I am proceeding to judge the same. There is on record the avowed statements of Smt. Shanti Devi PW 1, Smt. Chandro PW 2 and Buddhi PW 3 against him alongwith the corroborative documentary evidence. There is absolutely no reason to doubt the testimony of Shanti Devi that Om Prakash had served as a labourer on the farm of Gernail Singh and she was a domestic servant in his house and that the Appellant had been taking the attendance of the labourers on the Gernail Farm. In her cross-examination, it had not been suggested that she and Om Prakash or Sohan, the brother of Om Prakash had not been so employed. Nothing also has been elicited from her which could indicate that she or her deceased husband Om Prakash or her husband''s younger brother Sohan had nothing to do with Gernail Farm. The Appellant however, in his statement denied to have served, as a ''Munshi'' over the labourers on the farm of Jernail Singh. He also refuted that he had demanded Rs. 250/- from Om Prakash and on his failure to pay this amount insisted that he should serve on the ''Jernail'' farm. There is at the same time no indication at all in his entire statement as to how Smt. Shanti (PW 1) was aggrieved with him or that her husband Om Prakash deceased or his younger brother had any grievance with him or some one who could have influence over Smt. Shanti or Buddhi bore ill will against him. Smt. Shanti Devi in contrast divulged in her cross-examination that the real intent of the Appellant Gur Charan was to take her to the Jernail farm with a view to have sexual intercourse with her as could be inferred from his earlier seductive advances and his catching her by hand and trying to outrage her modesty and that no money really was payable by Om Prakash. Smt. Shanti further pointed that she had told Gernail Saheb about the illegal demand of money by the Appellant Gur Charan and he had assured her that he would rebuke him for it. She clearly stated that it was on account of the out-rageous behaviour of Gur Charan Appellant in having started ''Chherchhar'' with her that she alongwith her husband and her brother in law Sohan left the farm of Gernail Singh. The statemeat of Smt. Shanti Devi in this regard could not be presumed to be an embellishment for it had very naturally come in reply to the questions put to her in the cross-examination. The circumstance that she had not lodged a report against the Appellant Gur Charan about his trying to outrage her modesty or having not mentioned about his conduct to persons other than her husband is nothing unnatural for her disclosure would have led to gossips by which she would have lost face in the society and would have exposed herself and her husband to much greater physical risk from the Appellant as on the Gernail farm he must have been more powerful and it would not have been possible for her to save her honour. Smt. Chandro PW 2 corroborated the statement of Smt Shanti that the Appellant Gur Charan had asked Smt. Shanti to accompany him to the Gernail farm and that she had intervened and told the Appellant that she would not go unaccompanied by her husband. The conduct of the Appellant in insisting on Smt. Shanti accompanying him shamelessly shows how sexually mad he had become. The fact that a day earlier the Appellant had taken away Sohan does not show that his intent was to take service in lieu of the advanced loan. Smt. Shanti Devi was very young. It does not appear that the Appellant had no evil eye on her youth. The fact that the Appellant was fifty seven years of age as given out by him could not show that there could be no sexual pervesion in him to ravish Smt. Shanti. Besides Om Prakash and Smt. Shanti Devi had no reason other than the one given by Smt. Shanti to leave the farm of Gernail Singh. There is a ring of truth in the statement of Smt. Shanti that the cause of the murder of Om Prakash was his refusal to agree to such conditions where in he could manage to have sexual relations with Smt. Shanti. There is thus no improbability as argued by the Counsel for the Appellant about his committing the murder of Om Prakash because of his refusal to go with Smt. Shanti to serve on the Gernail farm.

It next is to be examined whether Smt. Shanti Devi PW 1, Smt. Chandro PW 2 and Buddhi PW 5 were witnesses of the murder of Om Prakash. The dead body of Om Prakash as mentioned in the inquest report Ext. Ka 4 had been found near the sugarcane held of Ram Swaroop on the road intront of his verandah. When the police party arrived, they found it surrounded by a large number of persons with a lantern burning by us side. The preparation of the inquest report started at 9 P.M. and continued till 10 P.M. The document Ext. Ka 8 shows that J.C. Tyagi I.O. about the same time took blood stained and plain earth and also the blood stained ''darati'' from the field of Ram Swaroop. These along with the torn clothes of Om Prakash comprising of his shirt and ''paijama'' found on his person stained with blood had been sent to the Chemical examiner for report. His report Ext. Ka 13 discloses that they did contain blood. The Sessions Judge as such was justified in drawing the inference that the incident did take place in the field of Ram Swaroop of had been given out by the three PWs Smt. Shanti PW 1, Smt. Chandro PW 2 and Buddhi PW 5.

The site plan shows that in between the house of Ram Swaroop Chaudhari and his sugar cane field, there is no house or structure. At the time of the incident he had merely found wheat sown between the two. The house from the sugar cane field is at a distance of two hundred steps where as the verandah of Ram Swaroop is shown to be ten to twelve steps away. The fact that the clothes of Om Prakash were found torn shows that there was a minor scuffle before Om Prakash had been subdued completely by Guru Charan Appellant and his associate. The multiple abrasions also are suggestive of that fact. There is thus every probability of Om Prakash having cried aloud before having been permanently silenced. Smt. Shanti PW 1, Smt. Chandro PW 2 and Buddhi PW 5 very naturally would have run to the help of Om Prakash or atleast out of sympathy for him. Since there was nothing to obstruct their view, there was no improbability in their seeing the murderous assault and the assailants. Smt. Shanti give out that the Appellant was assaulting with darati and Hari Prasad was catching hold of him and they both ran away when she along with Smt. Chandro and Buddhi reached near them. In the cross-examination she had given the distance between the place where she was residing and the place where the incident took place to be 20 to 25 steps. Om Prakash was said to have been assaulted within 2 to 4 steps of the sugarcane field which is indicative of the fact that either Om Prakash before the murderous assault had tried to run away or had been pushed up to the sugarcane field where after he was given fatal blows. The prosecution witness Smt. Chandro pointed that when she reached near Om Prakash on hearing his cries, she saw the Appellant Guru Charan and Hari Prasad escaping from near Om Prakash who was almost breathing his last. In her cross-examination, she pointed that she had been three steps behind Smt. Shanti but had not seen who amongst the two accused had assaulted and who had pressed him. She, however, did state that the Appellant had come in the after-noon and that at the time of the incident she had seen him running away from near the dead body which was litted from the sugar cane field and kept by the side of the road. Baddhi PW 5 pointed that when Smt. Shanti Devi, Smt. Chandro and he had reached near the field of Ram Swaroop, they saw Guru Charan assaulting with ''darati'' and Hari Prasad catching hold of him. He denied that he knew the accused persons from before. He gave out that half an hour after the incident he had gone to Avatar Singh and told him of what be had seen and what had been mentioned to him by Smt. Shanti where upon Avatar Singh scribed the FIR and provided him his motor cycle and a driver to lodge report in the police station. Smt. Shanti, he gave out, was ahead of him and Smt. Chandro while running to the rescue of Om Prakash. He stated to have been even behind Smt. Chandro because of some trouble in his leg. The distance between his house and the place of incident according to him was ten to twelve steps. The investigating Officer in the site plan has shown the house of Ram Swaroop to be at a distance of 200 steps from the place of incident but his verandah has been shown very near to it. Even if it was presumed that Smt. Shanti and Buddhi had not been residing in this verandah but had come from the house of Ram Swaroop Chaudhary where in they also lived, it could not be said that Smt. Shanti was not likely to have seen the Appellant assaulting Om Prakash for she knew him very well and there was nothing to obstruct her view. The circumstance that in the FIR there is no mention of the name of Hari Prasad as the person who was holding Om Prakash could not indicate that the assailant had not been seen. It could well be that Avtar Singh did not name him in the FIR for he had not assaulted actually and Buddhi did not know him or was not inclined to involve him. If the incident took place where blood had been found by the Investigating Officer and the deceased Om Prakasn could before the assault on neck cry tor help, it would have been as much a surprise if none had seen the incident which has been shown to have happened about dusk. It, at any rate will not be proper to reject the testimony of Smt. Shanti because Buddhi failed to identify Hari Prasad and because Smt. Chandro did not state that she had also seen the Appellant making the fatal assault. Smt. Chandro was behind Smt. Shanti. She may not have run as fast as Smt. Shanti because her concern for Om Prakash was less. The statement of Smt. Shanti cannot be rejected because of want of full mutual corroboration. It then cannot be lost sight of that the distance of the place of incident given by Smt. Shanti from her place of residence had not been challenged and it could well be that she was living in the verandah shown very near the place of incident. Smt. Chandro even if she did not state that she had seen the Appellant actually assaulting, stated about this strong circumstance against him that he had been noticed running away a few steps from the place where Om Prakash had been given fresh assaults and on account of which he died. She did not state that there were persons other than the Appellant or his associate near him. A presumption I am of the view, could safely be drawn from her statement that it corroborates the testimony of Smt. Shanti. She did not have any motive to falsely implicate the Appellant. She came from a different class of society being a farm holder. Similarly Ram Avtar Singh who too was a farm owner was not likely to unjustly help Smt. Shanti Devi against the Appellant who happened to be a Sardar. It is also relevant in this connection that the Appellant has not been successful in showing that the investigating agency had been persuaded to falsely implicate the Appellant. The conduct of the I.O. in arranging the identification parades for Guru Charan and the co-accused shows that he had proceeded with caution on right lines and had not made up his mind about the complicity of the Appellant Guru Charan in the crime in question on just the statement of Smt. Shanti Devi PW 1. The prosecution witness, Smt. Chandro had stated that she had a talk with the Appellant when he had come with the co-accused on a cycle and that she had told him that Smt. Shanti would not accompany him without her husband going along with her. Smt. Chandro had full opportunity of seeing the Appellant and as such was not likely to mistake his identity at the time of the incident when she saw him running away. The fact that Smt. Chandro did not state about her having seen the Appellant assaulting shows that she was prepared to vouch only to such facts as she had actually seen with her eyes and she is an independent witness. The circumstance that in the inquest report and in the challan of the dead body, the time of lodging of the FIR is shown to be 7.45 P.M. instead of 7.55 P.M. is not at all such a factor on which presumption should be drawn about the investigation being unfair. The Medical Officer had not stated that the punctured wound No. 4 of the deceased could not have been caused by the ''darati'' Ext. 1. He, with regard to the other injuries Nos. 1 to 3 gave out that they could have been caused by it. The medical evidence thus is consistent with the oral evidence. The Appellant could safely have been convicted even on the solitary testimony of Smt. Shanti Devi. Her statement, even if taken to be interested, does not suffer from any infirmity. It had only to be made sure that it was truthful. It then has to be noted that it is not a case where available evidence had been withheld. The place and time of the incident as discussed above have been established by corroborative evidence dealt with above. The judgment and order of the Sessions Judge do not call for interference.

ORDER

The appeal has no force and consequently it is dismissed. The conviction of the Appellant u/s 302 of the Indian Penal Code and sentence of imprisonment for life awarded to him are maintained. The Appellant is in jail. He shall serve out the sentence awarded to him. The amicus curiae who took pains and argued the case fairly well for the Appellant, shall get Rs. 250/- as his lees.

Palok Basu, J.

It would prefer to agree with the above judgment of my learned brother.