Harish Kumar @ Bablu vs State of U.P.

Shiv Charan, J.—The instant appeal has been filed against the judgment and order dated 19122000 delivered by Sessions Judge, Firozabad in Special Session Trial No. 80 of 1997, State of U.P. v. Harish Kumar alias Bablu, under Sections 302/394 I.P.C., P.S. Tundla, District Firozabad. By the impugned judgment and order the learned Sessions Judge convicted the appellant Harish Kumar alias Bablu for the offences under Section 302/394 I.P.C. and sentenced him to undergo life imprisonment for the offences under Section 302 I.P.C. and further sentenced him to undergo R.I. for 10 years and fine of Rs. 5,000/, failing which to undergo imprisonment for a period of 10 months for the offences under Section 394 I.P.C. The sentences awarded are to run concurrently. The prosecution story as stated in the F.I.R. is as follows :

Ram Kishan son of Chunni Lal resident of Tundla lodged the F.I.R. on 211997 at about 7.30 p.m. It has been alleged that he is carrying on the business of gold smith at his house. On 21 1997 at about 6.00/6.30 p.m. he alongwith his sister''s son Vinod Kumar were returning from the market after purchasing domestic articles and they were going up stairs in the house then the accused Harish Kumar alias Bablu was descending from the stairs and he escaped after pushing both of them. When both of them went in side the house then he saw his wife Raj Kumari lying dead in a pool of blood on the floor. She had several injuries of knife on the body. It was Harish Kumar alias Bablu who committed the murder of his wife by causing repeated injuries of knife. The gold chain from the neck and gold earing, which she was wearing and 3 gents golden rings and four ladies gold rings lying in a Kanister were taken away. On the day of occurrence the accused came at the house of the complainant at about 1.00 p.m. to dispose of one silver chain, but he refused to purchase the silver chain and then he went from there. On earlier occasion also he happened to visit to his house to sell certain jewelery but he never purchased the jewelery from him, because he is a criminal type of man. After registration of the case investigation was entrusted to the S.I., Shish Ram. During investigation he visited at the spot. Earlier to his visit on the spot the then S.H.O. P.S. Tundla Shukh Lal also reached at the spot. On the instruction of S.H.O. S.I. Ghanshyam Sachan prepared the inquest report and fard of articles of Raj Kumari alongwith other documents for sending the deadbody for postmortem. Investigating Officer conducted search at the house of the accused and from his house clothes which the accused was wearing at the time of the incident were recovered. Shirt and muffler were washed by the accusedappellant which had stains of blood. One sweater having blood stains was also recovered from behind an almirah, for which recovery memo was prepared on the spot. He also prepared the site plan of the place of occurrence and recorded the statement of the complainant and other witnesses. After recording the statement of the witnesses and completing all the formalities he submitted chargesheet report. Before the Trial Court the prosecution produced Ram Kishan (P.W. 1) and Vinod (P.W2) as the witnesses of facts and incident. Dr. U.S. Tiwari (P.W.3) conducted the autopsy of the deadbody of the deceased. Ram Kishan also proved written F.I.R. Ext. Ka1. Dr. U.S. Tiwari proved the documents sent by the I.O. alongwith dead body Ext. Ka2 to Ka6. He also proved the postmortem report Ext. Ka7, clothes and articles taken from the deadbody of the deceased Raj Kumari Ext. Ka1 to 14. The Head Constable Manohar Lal (P.W.4) is a formal witness. He proved the chick F.I.R. and also copy of the G.D. Ex. Ka5, Ext. Ka8. Shish Ram (P.W.5) is the Investigating Officer, he proved the fard recovery Ext. Ka9, and clothes of the accused, Ext. 15 to 17 and rite plan Ext. Ka 10. Ghanshyam Sachan (P.W.6) is also the formal witness. He prepared the inquest report and also prepared the furd of some Jewelery taken from the body of the deceased Ext. Ka11. Ext. Ka 12 is the inquest report. He also proved other documents prepared, Ext. Ka2 to Ka5, blood stained and simple earth which were taken into custody and proved Ext. Ka to 15.

The accused appellant in his statement under Section 313 Cr.P.C. denied from all the allegations and evidence of the prosecution. He further stated that Ashok, the brother of Vinod kidnapped his younger brother, Manish, about 15 years earlier. His father lodged an F.I.R. at Police Station Tundla but the matter was compromised due to which the relations with the complainant the maternal uncle of Vinod were strained. Due to enmity he has been falsely implicated in the case, that he is a innocent person. Vinod after commencement of the trial in order to change his statement demanded Rs. 30,000/ from him. But he could not pay this amount, but no defence evidence was produced by him.

We have heard learned Counsel for the appellant Sri Sudhir Kumar and learned A.G.A. for the State. We have also perused the entire material on record.

It has been argued by learned Counsel for the appellant that there is no direct evidence against the appellant of the factum of murder. Only evidence which is produced against the appellant is that when the complainant and the witness were returning from the market after purchasing and going up stairs in the house then the accused was descending from the same stairs and escaped from there. It was only, when these persons reached in side the house up stairs, they saw Raj Kumari lying dead. From this evidence no inference can be drawn about the complicity of the accused in the murder. That the place of incident situated in a thickly populated area and it is not probable that in such a thickly populated area a person going up stairs would not be noticed by any one of the vicinity. He also stated that no other circumstantial evidence was collected by the I.O. The son of the deceased and the complainant, who vas present at the spot was not interrogated by the I.O. He was present at the house when the complainant and witness went to the market. He was also not produced for evidence. On the ground floor, there were shops in the house of the complainant but the shopkeeper were also not interrogated by the I.O., who were a material witnesses of the incident. He also argued that prior to the arrival of the I.O. on the spot the S.H.O. reached on the spot and they started preparing inquest report of the deadbody. It shows that even without registering of the case, process of preparing inquest report was started. The name of the accused has also not been mentioned in the inquest report. That Ram Kishan and Vinod, witnesses are close relations to each other and the deceased was the wife of Ram Kishan. The statements of these witnesses are rot reliable. False recovery of the clothes of the deceased having blood stains had been shown. Even the clothes of the deceased were not sent for chemical examination in order to ascertain that there was human blood on the clothes. The learned Counsel for the appellant further argued that there is a considerable gap in the age of complainant Ram Kishan and his wifedeceased. The complainant was aged about 67 years at the time of incident, whereas the age of the deceased was 45 years according to the postmortem report and this considerable gap of age shows that it was a case of illicit relations. Some unknown person committed the murder of Raj Kumari due to this reason.

Learned A.G.A. disputed the argument of the learned Counsel for the appellant and further argued that the circumstance which has been established by the prosecution evidence shows that it was the accused, who committed the murder of Smt. Raj Kumari and he also committed theft of golden jewelery from the house. When the complainant and the witnesses were going up stairs then the accused was descending from the stairs and he by pushing the complainant and witness Vinod escaped from the spot. After words blood stains clothes of the deceased were also recovered from the house of the accused. The F.I.R. was lodged promptly and appellant was named in the F.I.R. This fact ruled out any possibility of false implication of the appellant in the commission of the offence.

From perusal of the evidence produced by the prosecution it is obvious that present case is based on circumstantial evidence. There is no direct evidence of the factum of murder and theft of the jewelery. Evidence have been produced by the prosecution of this fact that when the complainant Ram Kishan and witness Vinod were going up stairs at the house of the complainant after purchasing vegetable etc. from the market then the accused Harish Kumar alias Bablu was descending from the stairs and he pushed both of them and escaped from the spot. Because the complainant and witness were not aware that the accused had come at the house of the complainant for committing an offence hence they could not obstruct the accused from escaping from the spot. The accused appears on the spot all of sudden and in these circumstances it was not possible for complainant and witness to caught the accused on the spot. The complainant and witness came to know about the offence committed by the accused when they went up stairs inside the house they saw that Raj Kumari wife of complainant was lying dead in a pool of blood on the floor and jewelery which was on her body was missing as well as the jewelery which was kept in kanister was also found missing and the articles were found heather and thither. This is most natural conduct of the complainant and witness, as the complainant was not aware about the act of the accused hence no alarm could be raised to attract the public to apprehend the accused on the spot. In our opinion there is nothing abnormal. The learned Counsel for the accusedappellant argued that when the complainant and witness Vinod saw the accused coming from the stairs down wards they could have obstructed him and could have raised an alarm to apprehend him on the spot. This fact make the prosecution story highly doubtful. But in the manner the incident taken place as alleged by the prosecution it was not possible for the witnesses to raise alarm and apprehend him on the spot. Because when the witnesses were going up stairs they were not aware about the act of the appellant. There appears no possibility that some unknown persons have committed the murder of Raj Kumari and accused had been falsely implicated in the case due to previous enmity. But accused in his statement under Section 313 Cr.P.C. had admitted that his brother Manish was kidnapped by Ashok brother of Vinod witness about 15 years earlier and F.I.R. of this fact was lodged at Police Station Tundla but the matter was compromised due to interference of the prominent and eminent figures of the locality. Hence when the matter was hushed up and then it cannot be expected that Ram Kishan and Vinod continued to have a grudge in order to falsely implicate the accused in the commission of offence of murder of Raj Kumari. Witness denied from the suggestion of Counsel for the appellant in this connection. Moreover the F.I.R. has also not been filed in this case to show this fact. Moreover, we are also of the opinion that when the matter was compromised about 15 years earlier then there could have not been any justification to falsely implicate the accused in this case. During these 15 years there is nothing to show that relation in between Vinod, his family and the accused were strained. By no stretch of reasoning it can be presumed that the accused has been falsely implicated in this case due to that reason.

Besides this circumstance that the complainant and Vinod saw the accused descending from the stairs and escaping from the spot and witnesses saw Raj Kumari lying dead. There is also one important circumstance, the Investigating Officer conducted a raid at the house of the accused and clothes of the accused were recovered from his house having blood stains. It is also material circumstance that the accused after committing the murder of Raj Kumari went at his house and washed his blood stains clothes. But in spite of washing of the clothes there remains blood stains on clothes. One sweater hidden behind the Almirah was also recovered and there were blood stains on sweater also. This is also very important circumstance against the appellant. The Investigating Officer has proved the recovery of the clothes. There is nothing such in the statement of the witness Shish Ram to falsify the factum of recovery of clothes. It also cannot be interpreted that the fard recovery is a forged document. Although it is a fact that these blood stained clothes were not sent for examination to laboratory but this is slackness on the part of I.O. and from this fact no adverse inference can be drawn against the prosecution witness. In this circumstance we are of the opinion that these two are very important circumstance to establish the complicity of the accused in commission of offence of murder. When immediately after commission of offence of murder the witness went in side the house and saw Raj Kumari lying dead and prior to that they also saw the accused escaping from the spot by pushing them. Afterward recovery of blood stains clothes of the accused was made. From all these facts only inference may drawn that it was the accused who has committed the murder of Raj Kumari. There is no other possibility that some unknown person committed the murder of Raj Kumari. Much emphasis has been laid by the Counsel for the complainant that the son of the complainant was present at the house when the complainant and Vinod went in the market to purchase vegetables etc. but when the complainant and witness returned back from the market the son was playing on the ground. He could have been a material witness of the fact that what happened afterwards. But the prosecution knowingly withheld the son to produce as the witness. It is fact that Ram Kishan has stated in his statement that his son Neeraj aged about 10 years studying in Class IV was with the wife when they went to the market but he further stated that when they returned from the market they saw the son playing at a distance of 10 meters from the house. In our opinion Neeraj was not a material witness of the incident. Because he was not present on the spot at the time of incident rather he was playing at a distance of 12 meters of the house. The accused went up stairs when there was none inside the house except the deceased and the appellant after committing the murder of Raj Kumari escaped from the spot and when the complainant and witness were going up stairs then accused escaped from the spot. And at that time complainant has stated that his son Neeraj was playing at a distance of 12 meters hence there was no possibility that Neeraj was present at the time of incident. Moreover, he was a child at the time of incident aged about 10 years. In our opinion Neeraj was not material witness. It has also been stated by the witnesses that when the offence was committed by the accused the Television was on at the full volume. And due to this reason it is not possible for the shopkeeper to notice anything abnormal on the first floor of the shops. The postmortem shows that the deceased Raj Kumari was trying to defend herself and she sustained numerous injuries on both the arms. These injuries were possible only when the deceased resisted the accused. The accused caused repeated blows on the deceased. There are as many as 8 incised wounds and if number of injuries is to be counted that the injuries are much more. Because injuries No. 1 has got 5 incised wounds and similar is the case regarding other injuries. The number of injuries shows that the accused committed murder of Raj Kumari in a vary brutal manner. Following injuries were found on the deadbody of Raj Kumari :

(i) 5 incised wounds of average size 2 cm x .75 cm x muscle deep on upper part of breast left side in area 16 cm x 9 cm 5 cm above nipple.

(ii) 2 two incised wounds on left side front of chest on middle of sternum and 3 cm left to injury No. 1 measuring 4 cm x 2 cm cavity deep and 3 cm x 2 cm x cavity deep respectively.

(iii) Three 3 incised wounds in area 8 cm x 5 cm on lower part of left breast measuring 2 cm x .5 cm x muscle deep.

(iv) Incised wound 3.5 cm x 2 cm x abdominal cavity deep on left side upper part of abdomen 10 cm below left nipple.

(v) Incised would 2 cm x .5 cm x muscle deep on left side lower part of abdomen in 4 cm above middle of ingunial canal.

(vi) (3) Incised wounds in area 11 cm x 6 cm on outer and front of left upper arm measuring 4 cm x 2 cm x muscle deep.

(vii) (4) Incised wounds in area 14 cm x 5 cm on outer part of left forearm average size 3 cm x 1 cm muscle deep.

(viii) (3) Incised wounds of average size 1 cm x .5 cm x bone deep on inner aspect of Rt. Ring, Index and middle fingers.

Sternum and 8th rib in front fractured.

The learned Counsel for the appellant vehementally argued that there was a considerable age gap in between the deceased Raj Kumari wife and the complainant. The complaint was aged about 67 years. Whereas the deceased was aged about 45 years only. The gap was more than 20 years. Due to this age gap there is every possibility that the deceased had illicit relations with some other persons. He also argued that murder has been committed of Raj Kumari due to illicit relations. But neither the accused in his statement under Section 313 Cr.P.C. stated that he has any illicit relations with the deceased nor with any other persons and that the murder of Raj Kumari was committed due to illicit relations. Merely on the ground of age gap it will not proper to draw inference that Raj Kumari was murdered due to illicit relations. No suggestion has been given to the witnesses that Raj Kumari had illicit relation with accused or to any other persons. Hence there is no substance in the argument of the learned Counsel for the accusedappellant. It is fact that Ram Kishan is also carrying on business of goldsmith but he does not belong to the caste of goldsmith (Sonar). Ram Kishan stated that he is carrying on the business of goldsmith but is not goldsmith by caste, he is kshatri whereas the accused is sonar by caste. Every body is free to carry on any business irrespective of the caste. And the same is in the present case. Due to this reason no adverse inference may be drawn against the prosecution.

It has also been argued by learned Counsel for the accused appellant that both the witnesses produced by the prosecution are highly interested as they are the closed relations. No independent witness has been produced. If efforts might have been made then independent witnesses could have been available. The shopkeepers were not interrogated. They could have been produced in the evidence. Although if the independent witnesses are available then prosecution must examine them. But the Hon''ble Apex Court in the several cases held that on solitary and the relative witness conviction may be based but there must be caution in placing reliance on the solitary and relative witness. The Hon''ble Apex Court in 1991 SCC (Cri) 546, Brij Basilal v. State of M.P., 1998(2) JIC 1257 (SC) : 1996 (5) SCC 569, Alil Mollah and Anr. v. State of W.B., hold that �solitary witness can also be relied. In Alil Mollah and Anr. v. State of W.B., held that� Criminal trial witnessessolitary witnessconviction can be based on the testimony of single eyewitness if he is wholly reliable corroboration is required when he is only partly reliable.� In the present case the statement of Kam Kishan and Vinod appears wholly reliable although they are close relative and also related to the deceased but these witnesses had nothing against the accused to falsely implicate him.

It has also been argued by the learned Counsel for the appellant that the case is based on circumstantial evidence. The witness of other circumstance would have also been available but the prosecution has failed to produce the reliable and independent witness of other circumstance.

We have considered the prosecution evidence and we are also of the opinion that in the circumstances of the case no other witnesses had the opportunity to see the deceased while committing the offence of murder. Circumstantial evidence is also reliable. The prosecution must produce the evidence in case of circumstantial evidence so as to complete the chain of events and from such evidence only inference could be drawn about the guilt of the accused. In the present case the accused was seen escaping from the spot and immediately after escaping of the accused from the spot the witnesses went inside the house and they saw that Raj Kumari was lying dead in pool of blood. But there was no other person present on the spot at the time of incident. Hence the only inference will be drawn that before the accused escaped from the spot he committing the murder of Raj Kumari. Moreover, from the house of the accused immediately after lodging the F.I.R. blood stained clothes of accused were recovered. We have stated above that the accused committed the murder of Raj Kumari in a very brutal manner causing repeated blows on the body, hence it was natural that there were blood stains on the clothes of the accused. And it is also important circumstance that after committing the offence the accused escaped from his house. He surrendered in the Court afterwards. There was no reason for the accused to escape from the house for considerable time. Hon''ble Apex Court in the case of Chhanno (Smt.) and Ors. v. State of Haryana reported in 1996 SCC (Cri.) 1017, held �Penal Code, 1860, Sections 302, 360 and 302/109murderappellant seen running away from the house with a knife in his hand that the appellant''s wife also implicating the accused that no reasons given as to why the wife would falsely depose against her husbandHer evidence indicating that the appellant had illicit relationship with the coaccused and to pleased her the appellant committed the murderRecovery of bloodstained knife in pursuance of statement made by the appellant to the policeClothes of the appellant containing numerous bloodstains though it could not be established that it was human bloodFingerprint of the appellant found on the mirror and lock of the deceased''s houseplea of alibi falsified by the evidence of his wifeHeld, in the circumstances, charge against the appellant proved beyond reasonable doubt.� In the present case the accused was seen by the witnesses escaping from the spot although it has not been stated that accused was holding a knife at the time of escaping from the spot. But immediately the witness went in side the house and saw that Raj Kumari was lying dead. Afterwards on the same day blood stained clothes of the accused were recovered from his house and the accused washed the clothes to clean the stains. These are very important circumstance in the present case. The Hon''ble Apex Court also held in the case of Molal and Anr. v. State of M.P., 2000(1) JIC 232 (SC) : 1999 (9) SCC 581, that circumstantial evidence is also reliable. In the present case the prosecution has produced sufficient evidence which established the guilt of the accused beyond reasonable doubt. There appears no such circumstance from which inference can be drawn for false implication.

For the reasons mentioned above we are of the opinion that prosecution has produced sufficient evidence to show the complicity of accused in the murder of Raj Kumari. There is no reason for false implication of the appellant in the offence. Ram Kishan and Vinod went in the market for purchasing vegetable etc. and in their absence the accused visited the house of the complainant and committed the murder of Raj Kumari and he also committed theft of the jewelery and when Ram Kishan and Vinod were going up stairs the accused was descending from the stairs and by pushing both of them escaped from the spot. When a person was coming out from the house and immediately the witnesses went in side the house they found Raj Kumari was lying dead, then inference will be that it was the accused who came out from the room after committing the murder. And evidence has also been produced that blood stained clothes of the accused were also recovered from his house.

We are of the opinion that the prosecution proved the guilt of the appellant beyond any reasonable doubt. There is no merit in the appeal. The appeal is liable to be dismissed.

The appeal is dismissed. The judgment and order of the Sessions Judge is uphold. The accused is in Jail. He will be confined in the imprisonment to serve the term of sentences awarded by the Sessions Judge.

A copy of this judgment be sent to the Sessions Judge concerned Firozabad for necessary action.