Dismissed

Sheo Lochan and Others. v. State

Allahabad HC7 Sept 2018CRLA/1561/1991

Case brief

AI extract

What is this about?

Single Judge Criminal Appeal affirming conviction under Sections 304 and 34 IPC for culpable homicide not amounting to murder. Court held that despite testimony inconsistencies and investigation lapses, the charge was proved beyond reasonable doubt. Bail cancelled and appellants directed to custody.

What did the court decide?

Judgment of conviction affirmed; instant appeal dismissed; bail bonds cancelled; appellants to be taken into custody.

Sheo Lochan and Others. Vs State — Murder and Culpable Homicide | Allahabad HC (2018)

¶1

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Court No. - 42

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Case :- CRIMINAL APPEAL No. - 1561 of 1991 AFR

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Appellant :- Sheo Lochan & Others.
Respondent :- State
Counsel for Appellant :- Prem Prakash
Counsel for Respondent :- A.G.A.

¶5

Hon'ble Arvind Kumar Mishra-I,J.

¶6

By way of instant appeal, challenge has been
made to the validity and sustainability of the
judgment and order of conviction dated 05.08.1991
passed by the V-Additional Sessions Judge,
Azamgarh, in Session Trial No.63 of 1988 State
Vs. Sheo Lochan and others, arising out of Case
Crime No.34 of 1987 under Sections 304 read with
Section 34 I.P.C., Police Station- Kopaganj,
District- Azamgarh, whereby the accused-
appellants have been sentenced to undergo ten
years rigorous imprisonment coupled with fine
Rs.500/- each, in default of payment of fine,
they will have to undergo additional two months
imprisonment.

¶7

 Heard Sri Sanjay Kumar Singh, learned amicus
curiae for the appellants, Sri Om Narain Tripathi
assisted by Sri Subhash Chandra Dubey, learned
A.G.As. for the State and perused the record.

¶8

The prosecution story as unfolded from the
record appears to be that the informant PW-1 Ram
Briksha Rajbhar lodged the oral report at Police
Station Kopaganj, District Azamgarh on 15.03.1987
at 9:20 p.m. with the averments that the accused-
appellants came to the door of Tufani, uncle of

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the informant around 7 p.m. on 15.03.1987 and
started abusing Tufani due to which objection was
raised whereupon the accused-appellants started
assaulting Tufani with Lathi and Danda and after
hearing noise, Sati Ram and Raghunath arrived on
the spot and intervened but th accused-appellants
kept on beating Tufani till he fell down on the
ground in unconscious state. Upon arrival of a
number of villagers and the informant, the
accused-appellants made their escape good.

¶11

The first information report was lodged at
9:20 p.m. on the day of the occurrence i.e.
15.03.1987. This case was noted in the Check FIR
at Case Crime No.34 of 1987 under Section 308
IPC, Police Station Kopaganj, District Azamgarh
and relevant entries were made in the concerned
general diary whereby the case was also
registered against the accused-appellants under
aforesaid section of IPC at aforesaid case crime
number at aforesaid police station.

¶12

However, the record reflects that during
course of the night subsequent to the lodging of
the first information report, the injured was
taken to the Primary Heath Centre, Kopaganj, the
very same day where he was examined by Dr. C.
Rai PW-6 at 10:00 p.m. wherein the following
injuries were noted on the person of Tufani:

¶13

1. Lacerated wound 4 cm x 1.5 cm x bone deep
on the back of right side scalp, 7 cm back of
right ear, clotted blood present.

¶14

2. Lacerated wound 4 cm x 1 cm x bone deep on
the mid of scalp, 10 cm above right ear, clotted

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blood present.

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3. Lacerated wound on the base of right ear 1
cm x 1/3 cm x 1/4 cm deep, clotted blood present.

¶18

4. Upper left incisor tooth broken out from
socket. Bleeding present.

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5. Contusion on right upper arms 6 cm x 3 cm,
11 cm above elbow joint.

¶20

The state of the injured Tufani was
unconscious and was not responding to any
stimuli. All injuries were kept under observation
and the injured was referred to the district
hospital, Azamgarh.

¶21

It is further gathered that during course of
the treatment of the injured Tufani and the
investigation, the injured Tufani succumbed to
his injuries around 1:00 a.m. on 16.03.1987.
Therefore, the case was altered from Section 308
I.P.C. to Section 304 I.P.C. and the
Investigating Officer along with police personnel
conducted inquest of the deceased Tifani on
16.03.1987 at P.H.C. Kopaganj. Inquest report is
Ext. Ka-4.

¶22

In the opinion of the prosecution witnesses
and the Investigating Officer, it was thought
proper to send the body for post mortem
examination in order to ascertain cause of death
of the deceased Tufani. Thereafter, relevant
papers were prepared and the body of the deceased
was sent to mortuary Azamgarh for conduction of
post mortem examination. Post mortem examination
was conducted by Dr. Abdul Haleem PW-5 on
17.03.1987 at 3.00 p.m. wherein the following

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ante mortem injuries were noted by the doctor:

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1. One stitched lacerated wound 3 cm x 0.5 cm
x bone deep on right side of head, 15 cm above
middle of right eyebrow.

¶26

2. One stitched lacerated wound 3 cm x 0.5 cm
x bone deep on the right side of back of head, 8
cm to right ear.

¶27

3. One contusion 8 cm x 6 cm on the back side
of head, 10 cm above middle of left eyebrow.

¶28

In the opinion of doctor, duration between
the time of death and post mortem examination was
noted about one day and cause of death was
described as coma due to ante mortem injuries.
Dr. Abdul Haleem PW-5 has proved post mortem
examination report as Ext. Ka-13.

¶29

During course of the investigation, the
Investigating Officer Gyanendra Nath PW-4
recorded statement of various prosecution
witnesses and prepared memo of blood stained
Kathari Ext. Ka-10, obtained copy of the post
mortem examination report Ext. Ka-13 and prepared
site plan of the place of occurrence Ext. Ka-2 on
17.03.1987. After completing the investigation,

¶30

charge sheet Ext. Ka-12 was filed by the
Investigating Officer against the accused-
appellants.

¶31

Pursuant thereto, proceedings were committed
to the court of Sessions from where it was
transferred for conduction and disposal of the
case to the trial court of IV-Additional Sessions
Judge, Azamgarh who in turn heard both the sides
on point of charge and was prima-facie satisfied

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with the case against the accused-appellants,
accordingly, framed charge under Section 304 read
with Section 34 IPC. Charge was read over and
explained to the accused-appellants who abjured
the charge and opted for trial.

¶34

In turn the prosecution was required to
adduce its testimony. The prosecution produced in
all six prosecution witnesses. A brief reference
of whom entails hereinbelow.

¶35

The informant Ram Briksha Rajbhar PW-1,
Satiram PW-2 and Raghunath PW-3 are the witnesses
of fact. Gyanendra Nath PW-4 is the Investigating
Officer who, apart from proving the part of the
investigation, has also proved the Check FIR and
the relevant general diary whereby the case was
registered against the accused-appellants. Abdul
Haleem PW-5 conducted post mortem examination on
the cadaver of the deceased Tufani, he has proved
post mortem examination report Ext. Ka-13. Dr. C.
Rai has examined injuries on the person of the
injured (then alive) Tufani on 15.03.1987 at
Primary Heath Centre, Kopaganj, Azamgarh.

¶36

Except as above, no other testimony was
adduced by the prosecution. Consequently,
evidence for the prosecution was closed and the
statement of the accused-appellants was recorded
under Section 313 Cr.P.C. wherein they gave
various reasons for their false implication on
account of enmity and stated that the incident,
in fact, took place at the tubewell of Jaghdhari
after he consumed liquor.

¶37

No evidence, whatsoever, was led by the

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defence.

¶40

The case was heard on merit by the learned
trial Judge who after appraisal of facts and
vetting merits of the case recorded finding of
conviction against accused-appellants under
Section 304 read with Section 34 IPC and
sentenced each of them to ten years rigorous
imprisonment coupled with fine Rs.500/-, in
default of payment of fine, additional two months
imprisonment.

¶41

Consequently, this appeal.

¶42

It has been contended on behalf of the
accused-appellants that in this case, testimony
of the prosecution witnesses is not consistent on
the point of the incident that it was ever seen
by them or that it occurred in their presence.
Testimony of the prosecution witnesses on this
point is vacillating and full of improvements and
highly embellished. The place of the occurrence
is not certain because testimony of the
prosecution witnesses is apparent that the
incident took place in front of the door of the
house of the injured/deceased, whereas, there is
no house shown in the site plan. But the incident
was shown to have taken place near 'Madahi' (hut)
which is not the place as testified by the
prosecution witnesses.

¶43

It appears that none saw the incident which
allegedly took place at the door of Tufani.
'Madahi' (hut) is not the place of occurrence,
therefore, the place occurrence has changed. It
has also come in the testimony of the prosecution

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witnesses that the incident took place in the
darkness and the sun had set in and each witness
of fact says that it was darkness when the
incident took place.

¶46

It has been contended next that there is
deliberation before lodging of the first
information report. The first information report
is oral and the same was lodged after
consultation with each other. There is no reason
as to why the wife of the injured/deceased who
accompanied the injured/deceased up to the police
station did not lodge the first information
report. Had the prosecution witnesses seen the
incident they would have given clear description
of the direction towards which the assailants
made their escape good after commission of the
crime.

¶47

It has been further contended that the motive
behind the incident has not been properly proved
by the prosecution witnesses. There is great
variance in injuries noted in the injury report
and the ante mortem injuries noted in the post
mortem examination report. In the injury report,
injury on the tooth has been specifically noted
by Dr. C. Rai, PW-6 whereas, Dr. Abdul Haleem PW-
5 did not notice any such injury on the tooth in
the post mortem examination report. Therefore,
initial case of injury was not substantiated by
the doctor in the post mortem examination report.

¶48

Lastly, it has been further contented that
the Investigating Officer has not properly done
the investigation and filed charge sheet against

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the accused-appellants in perfunctory manner. It
is apparent from perusal of the first information
report that each and every witness arrived on the
spot after hearing the noise, that is to say,
that after the incident had occurred and no one
saw the victim being assaulted by anyone. Fact is
that the incident was caused at the tube-well of
Jagdhari by some unknown persons about whom
nothing is known.

¶51

 Learned A.G.A. has vehemently opposed the
contentions so raised by learned amicus curiae
for the accused-appellants and has submitted that
the witnesses of fact were present on the spot
and they have categorically described the manner
and style of the incident wherein the injured/
deceased sustained injuries and the first
information report was lodged promptly. There may
occur minor contradictions in the testimonial
account of the prosecution witnesses of fact but
that alone would not be sufficient to throw away
the case of the prosecution. The charge levelled
against the accused-appellants has been proved
beyond reasonable doubt. The laches committed by
the Investigating Officer during course of the
investigation would not be fatal to the
prosecution's case. The trial court has
judiciously recorded conviction and has awarded
appropriate sentence.

¶52

I have also considered the rival submissions
and taken into consideration rival claims. In
view of above, the point for determination of
this appeal relates to fact as to whether the

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prosecution has proved charge under Section 304
read with Section 34 I.P.C. beyond reasonable
doubt?

¶55

 Bare perusal of the contents of the first
information report is indicative of fact that the
incident, in fact, took place on 15.03.1987
around 7:00 p.m. when all the accused-appellants
arrived at the door of the injured/deceased
Tufani and extended abuse on him, when asked not
to do so, they started assaulting the
injured/deceased with 'Lathi' and 'Danda'. When
alarm was raised by the injured, Sati Ram and
Raghunath intervened but the assailants continued
withtheassaultduetowhichthe
injured/deceased fell down on the spot and he was
rendered unconscious. He was taken on the cot by
Janaki, Prem, Jagnandan and the informant to the
police station.

¶56

It has been described in the first
information report that lot of blood oozed out
from the head of the injured/deceased who was
unconscious. Request was made for lodging the
report and consequent action.

¶57

Pursuant thereto, medical examination of the
injured/deceased was done at Primary Health
Centre, Kopaganj on 15.08.1987 at 10:00 p.m.
wherein as many as five injuries were noted on
the person of the injured. Injury nos.1, 2 and 3
were lacerated wounds, whereas, injury no.4 was
on the upper left incisor tooth and injury no.5
was in the shape of contusion on the right upper
arm. The patient was then in unconscious state.

¶58

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This medical examination report has been proved
by Dr. C. Rai as Ex. Ka-14.

¶60

Insofar as testimony regarding the occurrence
is concerned, there are three eyewitnesses of the
occurrence namely the informant Ram Briksha PW-1,
Sati Ram PW-2 and Raghunath PW-3.

¶61

The informant Ram Briksha PW-1 has described
about the incident which took place around 7:00
p.m. on the day (15.03.1987) of the occurrence
and he has proved the oral report Ext. Ka-1. He
has also proved that after the injured Tufani was
taken to hospital for medical examination, he was
referred to District Hospital and he succumbed to
his injuries in the hospital around 1:00 a.m.,
the same night, the same version of the
occurrence has been proved by Sati Ram PW-2.

¶62

In line with testimony of PW-1 and PW-2,
Raghunath PW-3 has also proved the incident that
it took place around 7:00 p.m. wherein it has
been claimed that the assault caused by the
accused-appellants on the deceased Tufani was
witnessed though at a later stage because PW-3
arrived on the spot “after hearing the noise”.
On his arrival on the spot, he saw Sheo Lochan,
Murari, Sareek and Ghurai assaulting the injured
Tufani with 'Lathi' and 'Danda' who had fallen on
the ground and was rendered unconscious. Besides
himself, Janaki, Jadunandan, Ram Briksha, Prem
and a number of other persons had also arrived on
the spot.

¶63

PW-3 has also testified to fact that the
injured Tufani was taken on the cot to the police

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station Kopaganj, District Azamgarh where the
report was lodged by the informant Ram Briksha
and from where the injured Tufani was taken to
the government hospital (PHC- Kopaganj) for
medical examination which was done at 10:00 p.m.
All injuries kept under observation and he was
referred to District Hospital, Azamgarh but he
expired the same night around 1:00 a.m.

¶66

Insofar as the contention raised by learned
amicus curiae for the accused-appellants qua the
incident is concerned, the same is very specific
on the point of the occurrence that the place of
the occurrence was changed. However, from
wholesome testimony of the prosecution witnesses
of fact as well as the Investigating Officer,
obviously it was the door, the place near to the
doorofthe'Madahi'(hut)ofthe
injured/deceased.

¶67

I have scrutinized the entire cross
examination of the prosecution witnesses of fact
on this specific point wherein no conspicuous
question has been put to any of the eyewitnesses
on point as to what they meant by “the door of
the injured/deceased Tufani” whether the door was
door of Madahi (hut) or house of the
injured/deceased Tufani - which was located at a
short distance from the place where the
injured/deceased Tufani fell unconscious.

¶68

In the site plan, the place marked by word
'A' is the place where the incident is stated to
have taken place. This place is stated to be on
the Abadi land which is shown to be in front of

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Madahi (hut) of the injured/deceased Tufani. In
the absence of any specific and straight question
in cross examination to the witnesses of fact,
the defence cannot score on the point that the
place of the occurrence has been changed and the
door testified by these witnesses was in fact
meant as door of the house of the deceased. No
doubt, the place of occurrence is in front of
Madahi (hut) of the injured/deceased Tufani then
the specific version given by the prosecution
witnesses regarding the place of occurrence in
front of door of the injured/deceased Tufani
cannot be disbelieved it was meant for door of
the house of the deceased and in such fact
situation this place of testimony on point of
place of occurrence cannot be viewed with
suspicion.

¶71

Next contention raised on behalf of the
accused-appellants pertains to fact that none of
the prosecution witnesses, in fact, saw the
incident which took place at the tubewell of
Jagdhari. That way, the incident of assault is
admitted to the defence though the place of
occurrence is disputed with some variation that
it was caused and committed by some unknown
persons but there is no whisper from any corner
that the incident in fact was caused at the
tubewell of Jagdhari.

¶72

While scanning and scrutinizing testimony of
PW-1 and PW-2 on point of occurrence, it is
obvious that both the prosecution witnesses
reached on the spot only after the incident had

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taken place and the assailants had left the scene
of the crime. Reason being that at the time when
PW-1 arrived on the spot that he has testified to
fact that Sati Ram PW-2 was also present over
there and in the meanwhile, he (PW-2) arrived on
the spot prior to the arrival of PW-1. That way,
Sati Ram PW-2 was present on the spot prior in
point of time to that of PW-1.

¶75

Testimony of PW-2 in regard to witnessing the
incident is concerned, it has been testified that
prior to his arrival, Ram Briksha, Bhikhari,
Hannu, Mahavir, Purshottam, Pardeshi and Jagdish
etc. had arrived on the spot and they witnessed
the incident. He has also testified in his cross
examination on page 41 of the paper-book that
these persons were present over there prior to
his arrival. He has categorically stated that at
the time when he arrived on the spot, he saw the
injured/deceased Tufani fell on the ground. He
was not in a position to state as to in which
direction,theassailantsretreatafter
commission of the offence. He continued with
description that it being darkness, he was not
able to see as to in which direction the
assailants fled after commission of the offence.
Thus, testimony of PW-1 and PW-2 generates lot of
doubt on their being witnesses to the fact of the
incident. If Ram Briksha PW-1 was present prior
to arrival of PW-2 on the spot and other persons
were also present on the spot and they witnessed
the incident then testimony of PW-2 to the ambit
that prior to his arrival, he along with other

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persons was present on the spot and witnessed the
incident becomes highly contradictory statement
which seems to be embellished one and cannot be
believed and doubt is created whether they in
fact witnessed the incident or not at the time of
occurrence. It is admitted to Sati Ram PW-2 that
Ram Briksha PW-1 was present on the spot prior to
his arrival, whereas, the testimony of PW-1
claims on page 14 in examination in chief that
Sati Ram PW-2 along with others was present on
the spot when he arrived on the spot.

¶78

Raghunath PW-3 has also testified that the
incident took place on 15.03.1987 around 7:00
p.m. and there was litigation over some piece of
Abadi land (chakout land) between the
injured/deceased Tufani and the accused due to
which the accused-appellants assaulted the
injured/deceased Tufani with 'Lathi' and 'Danda'.
After hearing the noise, this witness arrived on
the spot which was in front of door of the
injured Tufani (deceased) when he saw Sheo
Lochan, Murari, Sareek, Ghurai assaulting the
injured Tufani with 'Lathi' and 'Danda' due to
which he fell down on the ground and was rendered
unconscious. He has supported fact that besides
himself, Janaki, Jadunandan, Ram Briksha and Prem
had also arrived on the spot. He has also proved
fact that the injured Tufani was taken to the
government hospital (PCH) Kopaganj where he
expired the same night around 1:00 a.m. He has
been cross examined by the defence at length
wherein he has corroborated his evidence given in

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his examination-in-chief.

¶81

On the point of motive, PW-3 has also
explained that there was enmity existing on
account of landed property which was claimed by
rival groups - say the accused-appellants and the
injured/deceased. On page no.54 of the paper-
book, he has been put specific question in his
cross examination, about the manner of assault
after he witnessed the incident on his arrival on
the spot. He has specifically stated that on his
arrival, the injured Tufani had fallen on the
ground after sustaining injuries and at that
point of time, the accused-appellants kept on
assaulting him and caused 4-6 Lathi blows on him
in the same position.

¶82

PW-3 has also testified to the fact that
though it was darkness but visibility was quite
fair and visibility permitted recognition of the
accused. This specific piece of testimony
emergingincrossexaminationremained
unimpeachable. May be, that at the initial stage
of assault and up to the stage of assault being
given to the injured/deceased in his standing
position, PW-3 was not present on the spot, but
this witness arrived on the spot after hearing
the noise when he saw the accused-appellants
causing Lathi blow on the injured/deceased in the
fallen state. On the arrival of this witness and
villagers, the accused-appellants made their
escape good.

¶83

Insofar as motive behind the incident is
concerned, though it relegated to the background

¶84

¶85

in view of the eye-account testimony of PW-3
still testimony is overwhelming on the point of
motive for committing the offence that it was
done due to dispute on account rival claim on
landed property (Chakout land).

¶86

Not only this, contention has been raised
also to the ambit that in the medical examination
of the then injured Tufani around 10:00 p.m. on
15.03.1987, description of as many as five
injuries were noted. Injury no.4 was described to
be on the upper left incisor tooth. The broken
tooth was found missing at the time of post
mortem examination of the deceased Tufani which
was conducted by Dr. Abdul Haleem PW-5. He has
categorically stated that he did not find any
ante mortem injury described as injury no.4 in
the medical examination of the deceased Tufani.
This way, there appears contradiction in
description of injuries described in the medical
examination of the then injured Tufani and the
ante mortem injury in the post mortem examination
wherein nature and number of injuries vary and do
not tally with each other. Medical examination of
Tufani was done by Dr. C. Rai PW-6. It has been
stated by Dr. C. Rai that injury of the injured
Tufani can be caused on 15.03.1987 at 7:00 p.m.
which specific fact went unchallenged by the
accused-appellants. Thus, it is proved that
injuries were caused around 7:00 p.m. on
15.03.1987 on the deceased Tufani.

¶87

In this regard, it is worth consideration
that it is not always necessary that injury in

¶88

¶89

the shape and nature of the “broken incisor
tooth” should and must be observed by the doctor
also who conducted the post mortem examination of
the deceased Tufani subsequently to the medical
examination.

¶90

Insofar as testimony of Dr. Abdul Haleem PW-5
is concerned, it is obvious that he has proved
ante mortem injuries to be 5 in all. He has
proved fact that these injuries were enough in
the normal course to cause death of the deceased
Tufani. He has proved post mortem examination
report as Ext. Ka-13. No doubt, in his cross
examination on page no.76 of the paper-book, he
has testified to the magnitude that there were 28
teeth present in the mouth of the deceased Tufani
but 4 teeth were missing. He has categorically
stated that he did not see any sign of injury in
the mouth of the deceased Tufani. He has
confirmed fact that the death of the deceased
Tufani was caused because of the head injury. He
has also testified to the ambit that smell of
alcohol was missing.

¶91

Obviously, medical examination took place on
15.03.987 at 10:00 p.m., whereas, post mortem
examination was conducted on 17.03.1987 at 3:00
p.m. Since approximately and about two days gap
intervened in between the medical examination and
conduction of the post mortem examination,
therefore, possibility cannot be ruled that in
the meanwhile alcohol being evaporative substance
would vanish and smell of alcohol might
accordingly have vanished by that time and

¶92

¶93

cannot be felt in the manner which was felt
earlier on 15.03.1987 at 10:00 p.m. at the time
of medical examination of the deceased Tufani.
Therefore, the contention raised on behalf of the
accused-appellants that smell of alcohol was not
found in post mortem examination.

¶94

Insofar as the investigation of this case is
concerned, no doubt, the Investigating Officer
has acted with great carelessness and has not
taken note of important aspects of the
investigation but it is settled law that laches
committed by the Investigating Officer during
course of the investigation would not be
sufficient to through away the case of the
prosecution if the testimony is otherwise
clinching. The only point with which this Court
is invariably concerned, is the fact of
occurrence, which in view of the testimony of PW-
3 stands proved and established that the assault
in question was caused by the accused-appellants
on 15.03.1987 around 7:00 p.m. which caused
injuries and consequent death of the deceased
Tufani.

¶95

I have already considered the testimony of
Raghunath PW-3 on point of the occurrence which
fit in the attendant circumstances and facts of
this case and it eventually turns out that the
prosecution has been able to prove charge against
the accused-appellants under Sections 304/34
I.P.C. The learned trial court has also taken
comprehensive view of the entire occurrence and
has discussed its various aspects and has

¶96

¶97

recorded the conviction rightly against the
present accused-appellants and has awarded just
sentence against them which needs no interference
at this juncture.

¶98

Accordingly, the judgment and order of
conviction dated 05.08.1991 passed by the V-
Additional Sessions Judge, Azamgarh, in Session
Trial No.63 of 1988 State Vs. Sheo Lochan and
others, arising out of Case Crime No.34 of 1987
under Sections 304 read with Section 34 I.P.C.,
Police Station- Kopaganj, District- Azamgarh, is
hereby affirmed. Consequently, the instant appeal
lacks merit and the same is dismissed.

¶99

In this case, the appellants are on bail.
Their bail bonds are cancelled and sureties are
discharged. They shall be taken into custody
forthwith for serving out the sentence so imposed
upon them by the trial court.

¶100

Let a copy of this judgment/order be
certified to the court concerned for necessary
information and follow up action

¶101

Order Date :- 07.09.2018

¶102

rkg

Sheo Lochan and Others. v. State

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Sheo Lochan and Others. v. State

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