Khillu and Another (in Jail) vs State

Vishnu Sahai, J.—Through this appeal, Khillu and Sain Faquir alias Bhayannu challenge the judgment and order dated 19.3.1982, passed by the I Ind Additional District and Sessions Judge, Hardoi, in Sessions Trial No. 626 of 1980, whereby they have been convicted and sentenced in the manner stated hereinafter:

(i) u/s 302 read with Section 34, I.P.C. to imprisonment for life ; and (ii) u/s 394/397, I.P.C. to seven years'' R.I.

The substantive sentences of the Appellants were directed to run concurrently.

Shortly stated, the prosecution case runs as under:

The informant Ram Prasad (P.W. 1) is the father of the deceased Teeka Ram. At the time of the incident, the informant Ram Prasad, the deceased and the Appellants were residing in village Manpur, within the limits of police station, Behta Gokul in district Hardoi.

Five months before the incident, Appellant Khillu''s goat had damaged the crop standing in the field of informant. Consequently, an altercation took place between Appellant Khillu and the deceased Teeka Ram, but on account of intervention of villagers, Teeka Ram did not lodge any F.I.R. Since then, Appellant Khillu nursed ill-will against Teeka Ram. Appellant Sain Faquir alias Bhaynnu is said to be an associate of Appellant Khillu.

On the night of 23.2.1980, informant Ram Prasad, along with his wife and daughter Summa, was sleeping beneath a shed (chhappar) inside his house and Chhotkannu and Kusumma (another daughter of the informant) were sleeping in the shed situated in southern side. In the room north to the courtyard deceased, Teeka Ram and Tikanna were sleeping. At about 1.30 a.m., the informant heard the sound of tatiya (a curtain made of bamboos) being removed. Consequently, he woke up. He saw that four persons were flashing torch. He snatched the torch from one of them and saw in the torch light and that of a steel lamp (kuppi) that Appellant Khillu was armed with a gun, Appellant Sain Faquir alias Bhaynnu with a pistol and two who were unknown had lathis. He raised crises, hearing which his son deceased Teeka Ram came. Teeka Ram shouted father I have recognised Khillu and Sain Faquir (Appellant). Seeing Teeka Ram, Appellant Khillu said be careful, now we will kill you (Ab Tum Sambhlo, Tumko Dekh Lenge, Marenge). Thereafter two persons started dragging Teeka Ram and the other two snatched the sutiya (an ornament) from the person of the daughter-in-law, the wife, and daughter of the informant. Thereafter, the Appellants and the two unknown persons took Teeka Ram, beneath a Pipal tree situated near his house and the Appellants, who were armed with fire arms, fired a shot each at Teeka Ram, who fell down as a result thereof. Apart from the informant, this incident was also seen by Chhotey Lal, Ram Prasad, Nanhe and Mangal, who had reached there on the cries of the informant. After murdering Teeka Ram and looting jewellery from the person of family members of the informant, the Appellants and other ran away. Thereafter, the informant went to the place where Teeka Ram was lying and found that he was dead.

On night on account of fear, he did not go to lodge the F.I.R. but dictated his F.I.R. to Thamman Singh, who after scribing the same, read it out to him. In the morning, the informant, along with his F.I.R. proceeded to police station, Behta Gokul, where he lodged the same.

The evidence of S.O. Zahur Ul Haq (P.W. 3) shows that on 23.2.1980 at 6.10 a.m., Ram Prasad lodged his F.I.R. at police station, Behta Gokul, on the basis of which Head Constable Shyam Narain, whom had he seen writing and with whose writing he was familiar registered a case.

The investigation was conducted in the usual manner. Since, in our view, for the decision of this appeal it is necessary to advert to the details pertaining to the investigation, we are not referring to them. On completion of investigation, the Appellants were charge-sheeted.

The autopsy on the corpse of the deceased Teeka Ram was conducted on 24.2.1980 at 2.30 p.m. by Dr. J. K. Verma (P.W. 2), who found on it the following ante-mortem injuries:

(1) Gun shot wound of entry of 0.25 cm. x 0.25 cm. x muscle deep on the upper lip just on right to mid line with inverted margins. No blackening or tattooing. Direction backward and slightly upward.

(2) Multiple gun shot wounds of entry of 0.25 cm. x 0.25 cm. to 0.25 cm. x 0.4 cm. muscle to chest cavity deep on the front of chest left side in an area of 18 cm. x 14 cm. just lateral to mid line going outward and 7 cm. below clavicle going downwards with inverted margins. No blackening or tattooing. Direction was backward and to the left (multiple abrasions of the same size were also present in this area).

(3) Abrasions 1.5 cm. x 0.5 cm. on the back of left elbow.

(4) Abrasion 2 cm. x 1.5 cm. on the right side back of chest in posterior axillary line 6 cm. below the axilla.

(5) Multiple abrasions of 1 cm. x 1 cm. to 0.5 cm. x 0.5 cm. on the left side back of chest in an area of 10 cm. x 10 cm. middle part.

On internal examination Dr. Verma found left lung to be lacerated and 26 pellets in the chest cavity. In the opinion of Dr. Verma, the deceased died on account of shock and hemorrhage as a result of the injuries suffered by him.

In his deposition in the trial court, Dr. Verma stated that injuries Nos. 1 and 2 could be caused by fire arm and the remaining injuries could be the result of friction as a consequence of fall.

The case was committed to the Court of Sessions, where the Appellants were charged for offences punishable under Sections 302/34, I.P.C. and 394/397, I.P.C. They pleaded not guilty to the charges and claimed to be tried.

During trial, in all, the prosecution examined four witnesses. Ram Prasad the solitary eye-witness was examined as P.W. 1.

The learned trial Judge believed the ocular account furnished by Ram Prasad and convicted and sentenced the Appellants in the manner stated in paragraph 1.

Hence, this appeal.

We have heard learned Counsel for the parties. We have also perused: the depositions of the prosecution ; the material exhibits tendered and proved by the prosecution ; the statements of the Appellants recorded u/s 313, Cr. P.C. ; and the impugned judgment. We are constrained to observe that we do not find any merit in this appeal.

It would become manifest from what we have mentioned above that the conviction of the Appellants is founded on the ocular account furnished by informant Ram Prasad (P.W. 1). In view of the provisions contained in Section 134 of the Indian Evidence Act, which read "No particular number of witnesses shall in any case be required for the proof of any fact", it would be perfectly permissible for us to sustain the conviction of the Appellants on his testimony, provided it inspires confidence. And in our view it does.

In paragraph 2, we have set out the prosecution story on the basis of recitals contained in his examination-in-chief and do not want to burden our judgment by reiterating all the details. In short, his evidence shows: about five months prior to the incident the goat of Appellant Khillu had damaged his crop resulting in an altercation between Khillu and his son, the deceased Teeka Ram. However, on account of intervention of villagers, no F.I.R. was lodged. Appellant Sain Faquir alias Bhaynnu was the associate of Khillu.

On the date of the incident, at about 1.30 a.m., while he (informant) and some others were sleeping beneath a chhappar inside their house ; Teeka Ram was sleeping in a room situated on the northern side of the courtyard ; and some other members sleeping in different portions of the house, Appellant Khillu armed with a gun and Appellant Sain Faquir alias Bhaynnu armed with a tamancha and two other unknown persons armed with lathis came. The Appellants and others had torches with them. He snatched the torch from one of them and recognized the Appellants and others in its light and in that of kuppi (steel lamp) which was burning inside the house. He raised cries hearing which his son Teeka Ram came. Teeka Ram shouted father I have recognised Khillu and Sai (Appellants). Thereafter, two of the persons dragged him outside to beneath a pipal tree and two snatched the sutiya from the person of his (informant''s) wife, daughter and daughter-in-law. Then the Appellants with fire arms filed a shot each on the person of Teeka Ram.

Apart from the informant and his family members, this incident was also seen by Chhotey Lal, Ram Prasad, Nanhe and Manglu.

After murdering Teeka Ram and snatching jewellery from the person of his family members the Appellants and unknown persons ran away.

On night on account of fear, he did not proceed to the police station to lodge the F.I.R. but he got the F.I.R. scribed from Thamman Singh. Next morning he proceeded to police station, Behta Gokul and lodged his F.I.R.

We have gone through the statement of the informant and find it to be implicitly reliable.

In the first place, since the incident took place inside his house he was a perfectly natural witness of it.

Secondly, the manner of assault as furnished by him is corroborated by medical evidence. He stated that two of the persons dragged Teeka Ram outside the house and thereafter the Appellants fired upon him. It is significant to point out that the autopsy surgeon (Dr. J. K. Verma) found on the person of the deceased Teeka Ram, apart from the two gun shot wounds of entry, two abrasions and one multiple abrasion. The presence of abrasions and multiple abrasion shows that informant''s statement that Teeka Ram was dragged from inside the house is correct. The presence of two fire arm wounds of entry shows that his evidence that the Appellants fired on the deceased Teeka Ram is also correct.

Apart from the above, assurance is lent to the claim of the informant of having seen the incident by the circumstance that the F.I.R. of the incident was lodged promptly by the informant Ram Prasad at police station, Behta Gokul. We have seen that the incident took place on the night of 23.2.1980 at 1.30 a.m. and the F.I.R. was lodged the same morning at 6.10 a.m. It is pertinent to mention that the distance between the place of the incident and police station is three miles. The informant has categorically stated in his deposition that on account of fear, he did not go to the police station at night to lodge the F.I.R. In our view, the reason furnished by him is convincing.

In these circumstances, it appears that early in the morning he left to lodge the F.I.R., which he lodged at 6.10 a.m.

In the said factual matrix, in our view, the F.I.R. was promptly lodged.

It is pertinent to mention that in this F.I.R., the essential features of the prosecution case, including the names of the Appellants ; the overt acts attributed to them ; the overt acts attributed to the unknown persons ; the weapons in the hands of Appellants and unknown persons ; source of light ; time of the incident ; the place of the incident ; and the names of eye-witnesses have all been mentioned.

Criminal Courts attach great importance to the lodging of a prompt F.I.R. because the same substantially eliminates the probability of concoction and embellishments creeping in the prosecution case.

In our view, this prompt F.I.R. lends great assurance to the testimony of the informant.

For the aforesaid reasons, in our view, the learned trial Judge was absolutely justified in accepting the testimony of the informant Ram Prasad (P.W. 1) and basing the conviction of the Appellants on the same.

Since the Appellants in the furtherance of common intention along with unknown accused persons inflicted fatal fire-arm injuries on the person of the deceased and relieved the victims of the ornaments on the point of the weapons, the learned trial Judge acted correctly in convicting them for both the offences, namely, 302/34, I.P.C. and 394/397, I.P.C.

We would be failing in our fairness if before proceeding to the operative part of our judgment we do not refer to the three principal submissions canvassed by Mr. S. H. Ibrahim, learned Counsel for the Appellants.

Firstly, Mr. Ibrahim contended that the prosecution case that during the course of the incident, the deceased was saying that he had recognized the Appellants cannot be accepted. He urged after sustaining the fire arm injuries, the deceased would not have been in a position to speak. We do not find any merit in this submission because firstly if the F.I.R. and the statement of the informant is to be carefully examined, it would become manifest that the deceased stated that he had recognized the Appellants prior to his being fired upon by the Appellants. Secondly, even if it is assumed that after sustaining the fire arm injuries, he stated to the said effect, there is nothing fishy because the autopsy surgeon Dr. J. K. Verma (P.W. 2) in his cross-examination did not rule out the possibility of the deceased speaking after sustaining fire arm injuries. In our view, the deceased could have spoken because a perusal of the post-mortem report shows that his trachea was not cut.

Secondly, Mr. Ibrahim urged that the prosecution case that both the Appellants fired on the deceased is unworthy of belief because Dr. J. N. Verma has stated that both the fire arm injuries could have been caused by one shot. We fail to see how the said statement falsifies the prosecution case that both the Appellants fired on the deceased. It should be borne in mind that in his examination-in-chief, Dr. Verma stated that they could be caused by two shots.

Thirdly, Mr. Ibrahim urged that the prosecution case that the deceased was taken out from inside the house to a pipal tree, where he was fired upon by the Appellants, is improbable. He contended that there was no need for the Appellants to have taken out the deceased from inside the house. Apart from the fact, as we have mentioned earlier, that the factum of the deceased being dragged is corroborated by presence of two abrasions and one multiple abrasion, matters such as these are not decided on the anvil of pure reason, for crime itself is an irrational act.

Hence, this submission also fails.

No other useful point was placed before us by the learned Counsel for the Appellants.

In the result, we confirm the conviction of the Appellants on both the counts ; namely, u/s 302/34, I.P.C. and 394/397, I.P.C. and dismiss this appeal The Appellants are on bail and shall be taken into custody forthwith to serve out their sentences.

We would close this judgment with the remark that although it was impossible to assail the impugned judgment, the learned Counsel for the Appellants left no stone unturned in order to convince us that the Appellants deserve the benefit of doubt.