Bhagaloo Lodh & ANR.
Vs. State of U.P.
J U D G M E N T
Dr. B.S. CHAUHAN, J.
criminal appeal has been preferred against the judgment and order dated
28.4.2004 passed by the High Court of Judicature at Allahabad (Lucknow Bench) in
Criminal Appeal No. 956 of 2002 dismissing the appeal against the judgment and
order dated 12.7.2002 passed by the Sessions Court, Hardoi, in Sessions Trial No.
108 of 2000 convicting the appellants and co-accused Bhagaloo Singh, under Sections
302/34 of Indian Penal Code, 1860 (hereinafter called as `IPC') and sentencing
them to undergo rigorous imprisonment for life.
and circumstances giving rise to this case are that:
A. An FIR dated
26.10.1999 was lodged by Rajesh Singh (PW.1) in Police Station-Tandiyanwan,
Fatehpur District, Hardoi, against the appellants and two other co-accused Ram
Lakhan and Bhagaloo Singh that the said four accused had killed Vinod Kumar on
25.10.1999 at 9.00 P.M. Vinod Kumar, aged 22 years was friend of Raj Kumar, the
son of Ram Lakhan, accused, and thus had visiting terms with the family. One
day, when he went to the house of Ram Lakhan, accused, he saw Bhagaloo Singh,
accused in compromising position with the daughter of Ram Lakhan, accused and reprimanded
him. Bhagaloo Singh was living with Ram Lakhan, accused and helping him in his agricultural
work. Bhagaloo Singh had told Vinod Kumar not to disclose the factum of his
intimacy with the daughter of Ram Lakhan to anyone. Thus, a quarrel took place
between the two and Bhagaloo Singh, accused threatened Vinod Kumar to face the dire
consequences. It is in that consequence that the two appellants, alongwith Ram
Lakhan caught hold of Vinod Kumar (deceased) and Bhagaloo Singh gave several blows
by a sharp edged weapon "Karauli". Vinod Kumar died immediately on
the spot after having injuries. There had been enmity in these groups of parties
and there had been criminal cases between them.
B. On the basis of the said
FIR, Case Crime No.155/1999 was registered under Sections 302/34 IPC and investigation
ensued. The dead body of Vinod Kumar was recovered and sent for post mortem examination.
Buddhi Narain Lal (PW.5), Investigating Officer completed the investigation and
submitted chargesheet under Sections 302/34 IPC. All the four accused pleaded
not guilty and claimed trial. Thus, they were put to trial under Sections 302/34
IPC in Sessions Trial No. 108/2000.
C. The prosecution in order
to prove its case examined five witnesses, namely, Rajesh Singh (PW.1), Devi
Gulam Singh (PW.2) as eye-witnesses, Dr. R.K. Porwal (PW.4), Constable Shailendra
Singh (PW.3), and Buddhi Narain Lal, I.O. (PW.5). The accused also examined Jag
Dev (DW.1) and Salim (DW.2) to prove alibi that the appellants could not be
present on the place of occurrence as they had been in their agricultural
field. After conclusion of the trial, the Sessions Court convicted and sentenced
the appellants along with Bhagaloo Singh under Sections 302/34 IPC and sentenced
them to undergo rigorous imprisonment for life vide judgment and order dated
12.7.2002. It may be pertinent to mention here that accused, Ram Lakhan had died
during the course of trial.
D. Being aggrieved, the
appellants and co-accused Bhagaloo Singh preferred Criminal Appeal No. 956 of 2002
before the Allahabad High Court (Lucknow Bench) which has been dismissed vide impugned
judgment and order dated 28.4.2004. Hence, the appellants filed this appeal.
J.P. Dhanda, learned counsel appearing for the appellants, has submitted that the
appellants had falsely been implicated in the case due to enmity as there had
earlier been criminal cases between the parties. The FIR was lodged with a delay
of 9 hours and the prosecution failed to furnish any plausible explanation for
the same. Rajesh Singh (PW.1) and Devi Gulam Singh (PW.2), the alleged eye-witnesses,
were very close relatives of the deceased, and thus, their testimonies cannot be
relied upon safely. Prosecution failed to examine any independent witness. Thus,
the appeal deserves to be allowed.
the contrary, Shri T.N. Singh, learned counsel appearing for the State has opposed
the appeal contending that the prosecution furnished satisfactory explanation
of delay of 9 hours in lodging the FIR, as nobody could go to the police
station at a distance of 18 Kms. out of fear. Both the eye-witnesses were closely
related to the deceased but their testimonies had been found trustworthy by
both the courts below, and thus cannot be discarded. More so, the law does not prohibit
to rely upon the evidence of the closely related witnesses of the deceased or victim
if it is found to be reliable. In view of the above, appeal lacks merit and is
liable to be dismissed.
autopsy on the body of the deceased Vinod Kumar was conducted Dr. R.K. Porwal (PW.4)
on 26.10.1999 and he found the following ante-mortem injuries:
wound size 1 cm x 0.5 x muscle deep present on left temporal region, 1.5 cm
lateral to left eyeball.
wound size 16 cm x 5 cm x bone deep present in front of the neck, 2 cm above
the xiphisenuim the trachea is clean cut, margins of the wounds are clean cut.
wounds size 2 cm x 1 cm x chest cavity deep present on left side of the chest at
the level of nipple at 9 O' clock position. Wound is 6 cm medial to nipple
underlying heart is clean cut.
wound size 2.5 cm x 1 cm x muscle deep present on right side of chest at 4
O'clock position from right nipple. It is 6 cm away from right nipple.
wound size 2 cm x 0.7 cm x chest cavity deep (lower chest) present on right side
of chest, 7 cm away from right nipple at 4 O' clock position underlying lower
wound size 6 cm x 1 cm x chest cavity deep. Present on right side of chest left
O'clock position, 9 cm away from nipple margins of the wounds are clean out.
wound size 6 cm x 2.5 cm x chest cavity deep on left side of chest 1.5 cm left
wound size 1.5 cm x 1 cm x muscle deep present on left side of chest 4 cm lateral
to midline at the level of xiphislesinim.
wound size 5 cm x 2.5 cm x abdominal cavity deep present on left side of upper
abdomen 1 cm lateral to medline at the level of T8 spine intestine is coming
out of the wound.
wound 1 cm x 0.5 cm x muscle deep present side of back at the level of T9 spine
8 cm lateral to midline.
wound size 1.5 cm x 0.5 cm x muscle deep present on right side of back at left
the level of T12 spine 6 cm lateral to medline.
wound size 1 cm x 0.5 x muscle deep present on left side of back at the level
of T10 spine 7 cm lateral to midline.
The cause of death
spelt out in the post-mortem report was shock and hemorrhage as a result of ante-mortem
injuries. It is pertinent to mention that in his deposition in the Trial Court,
Dr. Porwal reiterated the said cause of death and also stated therein that the
ante-mortem injuries suffered by the deceased were attributable to a sharp
edged weapon, like karauli and were sufficient in the ordinary course of nature
to cause death.
fact of homicidal death of Vinod Kumar, the place of occurrence and time of his
death are not in dispute. Shri Dhanda has raised very limited issues referred to
hereinabove and the case is restricted only to those issues.
and early reporting of the occurrence by the informant with all its vivid details
gives an assurance regarding truth of its version. In case there is some delay
in filing the FIR, the complainant must give explanation for the same. In absence
of such an explanation, the delay may give presumption that allegations/accusations
were false and had been given after thought or had given a coloured version of events.
Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable
when such delay is properly explained. However, deliberate delay in lodging the
complaint is always fatal. (Vide: Sahib Singh v. State of Haryana, AIR 1997 SC
3247; Gorige Pentaiah Pentaiah v. State of A.P. & Ors., (2008) 12 SCC 531;
and Kishan Singh (dead) thr. Lrs. v. Gurpal Singh & Ors., AIR 2010 SC
far as the delay in lodging the FIR is concerned, it has been explained by
Rajesh Singh (PW.1) as under: "I had not gone to lodge report in Police Station
Tandiyanwan due to fear. We looked the corpse at night. I and Hanif went to
Tandiyanwan Police Station by motorcycle in next morning".
incident occurred at 9.00 P.M. on 25.10.1999 and the FIR was lodged on 26.10.1999
at 6.10 A.M. at the police station at a distance of 18 K.M. from the place of
incident. Rajesh Singh (PW.1) has mentioned that on account of fear of the
accused persons, he could not go to the police station to lodge the FIR at
night. This explanation has been found by both the courts below to be perfectly
convincing, and after considering all the facts and circumstances of the case,
the courts below drawn an inference that the explanation furnished was quite
satisfactory. We do not see any cogent reason to take a view contrary to the
view taken by the courts below.
far as the issue of accepting the evidence of closely related witnesses is concerned,
both the courts below had placed a very heavy reliance on the depositions of
Rajesh Singh (PW.1) and Devi Gulam 8Singh (PW.2), in spite of the fact that
Rajesh Singh (PW.1) was the brother of the deceased Vinod Kumar and Devi Gulam
Singh was also closely related to Rajesh Singh (PW.1). The daughter of Rajesh Singh
(PW.1) got married with Sarvesh, the nephew (sister's son) of Devi Gulam Singh (PW.2).
Both of them had supported the prosecution case. Both of them have been
extensively cross-examined by the defence, but nothing could be extracted
therefrom which could impair their credibility. The courts below found that
evidence of both the eye-witnesses inspired confidence and was worth acceptance
as both of them had given full version of the incident. More so, both the courts
below have held that the witnesses had no reason to falsely implicate the
appellants and the co-accused and spare the real assailants.
the statement under Section 313 of Code of Criminal Procedure, 1973, the
appellants had not taken the defence that they could not be present at the place
of occurrence as at the time of occurrence they were working in their paddy
field. Thus, in view of the above, the deposition of the two witnesses examined
in their defence becomes meaningless.
incident had occurred outside the village and not inside the village. Therefore,
it is likely that some other persons might have come there after the accused had
run away from the place of occurrence. Rajesh Singh (PW.1) had deposed that one
Sushil Kumar, a resident of far away village of district Hardoi, who got
married in the same village was also with him. However, no question had been put
to Buddhi Narain Lal (PW.5), I.O. by the defence as to why Sushil Kumar had not
far as the evidence of defence witness, namely Jag Dev (DW.1) is concerned, he
has deposed that the present appellants had been working in their paddy field at
the time of occurrence of the crime. However, the court below did not believe
his statement for the reason that the witness had never got his statement recorded
by the Investigating Officer, nor did he disclose such fact to any other person.
He was examined first time in the court. Similarly, statement of Salim (DW.2) has
been found not worth acceptance. The said witness was present in the morning at
the place of occurrence when the Investigating Officer reached there. The appellants
had been named in the FIR. Salim (DW.2) also admitted that he knew that a murder
case had been registered against the appellants, but he did not 10disclose to the
Investigating Officer or to any other person that the appellants could not be the
assailants. Salim (DW.2) has also admitted that his father was the Pradhan and
he had defeated Saroj Singh, a very close relative of Vinod Kumar, deceased.
of a close relation can be relied upon provided it is trustworthy. Such
evidence is required to be carefully scrutinised and appreciated before resting
of conclusion to convict the accused in a given case. But where the Sessions Court
properly appreciated evidence and meticulously analysed the same and the High
Court re-appreciated the said evidence properly to reach the same conclusion, it
is difficult for the superior court to take a view contrary to the same, unless
there are reasons to disbelieve such witnesses. Thus, the evidence cannot be disbelieved
merely on the ground that the witnesses are inter-related to each other or to the
deceased. (Vide: M.C. Ali & Anr. v. State of Kerala, AIR 2010 SC 1639; Myladimmal
Surendran & Ors. v. State of Kerala, AIR 2010 SC 3281; Shyam v. State of Madhya
Pradesh, (2009) 16 SCC 531; Prithi v. State of Haryana, (2010) 8 SCC 536;
Surendra Pal & Ors. v. State of U.P. & Anr., (2010) 9 SCC 399; and Himanshu
@ Chintu v. State (NCT of Delhi), (2011) 2 SCC 36). In view of the law laid hereinabove,
no fault can be found with the evidence recorded by the courts below accepting
the evidence of closely related witnesses.
view of the above, we are of the considered opinion that the facts and
circumstances of present case do not warrant any review of the judgments and
orders of the courts below. The appeal lacks merit and is accordingly
(Dr. B.S. CHAUHAN)