Dismissed

Balgovind v. State of U.P.

Allahabad HC14 Oct 2022JAPL/1579/2009

Case brief

AI extract

What is this about?

The High Court of Judicature at Allahabad dismissed the criminal appeal by Bal Govind challenging his conviction and sentence for murder under IPC sections 302, 504, 506 and owning a firearm under the Arms Act. Upholding the trial court's findings, the bench rejected the argument regarding voice identification in darkness and affirmed the admissibility of the confessional statement under Section 2

What did the court decide?

Appellant convicted and sentenced under IPC Sections 302, 504, 506 and Arms Act Section 25(1-B); sentence to run concurrently; appeal dismissed.

Balgovind Vs State of U.P. — Cheque Dishonour | Allahabad HC (2022)

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RESERVED ON 29.7.2022

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DELIVERED ON 14.10.2022

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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW BENCH, LUCKNOW.

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Court No. - 1

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Case :- JAIL APPEAL No. - 1579 of 2009

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Appellant :- Bal Govind Respondent :- State of U.P. Counsel for Appellant :- Ms. Nandita Bharti (An Advocate from Legal Services Authority)

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Counsel for Respondent :- Mrs. Smiti Sahai, Addl. Government Advocate.

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Hon'ble Ramesh Sinha,J. Hon'ble Mrs. Saroj Yadav,J.

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(Per Saroj Yadav,J for the Bench)

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This criminal appeal has been preferred against the judgement and order dated 27.2.2009 passed by Additional Sessions Judge, Court No.5, Sitapur in Sessions Trial No.1121/ 2006 State Vs. Bal Govind, arising out of Crime No.328 of 2006, under Sections 302, 504, 506 of the Indian Penal Code, 1860 (in short I.P.C.), Police Station Laharpur, District Sitapur and Sessions Trial No.1122 of 2006 : State Vs. Bal Govind, arising out of Crime No.357 of 2006, under Sections 25(1-B) of the Arms Act, Police Station Laharpur, District Sitapur whereby the appellant has been found guilty and sentenced under the aforementioned sections.

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Shorn of unnecessary details, the facts necessary for disposal of this appeal are as under:-

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A First Information Report (in short F.I.R.) was registered at Case Crime No.328 of 2006, under Sections 302, 504, 506 I.P.C. at Police Station Laharpur, District Sitapur on 30.8.2006 on the basis of a written report Exhibit Ka-1 presented by the complainant Sumitra. It was stated in the written report that in the night of 29.8.2006, after having meals, the complainant, her husband and child were sleeping outside the house on the cots. One 'Dibiya' (kerosene oil lamp) was lighting there. In the night of 29/30.8.2006 at about 2.00 a.m. her brother-in-law (Jeth) Bal Govind, son of Chotey Lal came there and woke her husband up by abusing him and shot him dead with country-made pistol. When she cried, he again loaded the country-made pistol and shot dead her four years old son, who was sleeping with her husband. Upon her cry, her brother-in-law Rajendra, Shri Kamlesh, resident of the same village, Lal Bahadur and many other people rushed to the spot who saw and identified Bal Govind in the light of torches and tried to catch him but he ran away threatening to kill all of them.

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Investigation started. The police reached at the spot and the inquest report of both deceased Exhibit Ka-18 and Exhibit Ka-24 were prepared. The accused was arrested and at the pointing out of the accused, the country-made pistol used in the crime recovered. At the time of recovery of the country-made pistol, the accused confessed the

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crime. After completion of investigation, the chargesheet was submitted against the accused under Sections 302, 504, 506 I.P.C. After taking cognizance, the learned Magistrate committed the case to the court of Sessions for trial. The Court of Sessions framed charges against the accused under Sections 302, 504, 506 I.P.C. The accused appellant denied the charges and claimed to be tried.

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In order to prove its case, the prosecution examined the following witnesses :-

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(i) P.W.1- Girja Shankar, scribe of the written report.

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(ii) P.W.2- Smt. Sumitra, wife of the deceased Kedar and mother of the deceased Ranjit.

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(iii) P.W.3- Motu, a witness of recovery of countrymade pistol and cartridges inside the barrel of the

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pistol and two live cartridges and two empty cartridges.

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(iv) P.W.4- Kamlesh who reached at the spot after hearing the hue and cry.

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(v) P.W.-5 -Sub Inspector Shyam Kumar who registered the F.I.R. i.e. Case Crime No.357 of 2006 under Section 25 (1-B) of the Arms Act.

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(vi) P.W- .6 Constable Anil Kumar who registered the F.I.R. No.328 of 2006, on the basis of the written report

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(vii) P.W.7- Dr. Pankaj Srivastava, the medical witness who conducted the autopsy on both the cadavors.

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(viii) P.W-8- Sub Inspector Vidya Sagar Verma, the investigating officer of Case Crime No.328 of 2006.

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(ix) P.W.9- Sub Inspector Pravendra Kumar Sinha, who investigated the Case Crime No.357 of 2006, under Section 25 (1-B) of the Arms Act.

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Apart from above oral evidence relevant documents were also proved as exhibits which are as under:-

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(i) Exhibit Ka-1- Written report;

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(ii) Exhibit Ka-2- Chik F.I.R. of Case Crime No. 357 of 2006, under Section 25(1-B) of the Arms Act.

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iii). Exhibit Ka-3- Carbon copy of the G.D.

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iv). Exhibit Ka-4- F.I.R. of Case Crime No.328 of 2006, under Sections 302, 504, 506 I.P.C.

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v). Exhibit Ka-5- Carbon copy of the G.D.

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vi) Exhibit Ka-6- Post mortem examination report of the deceased Ranjit.

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(vii) Exhibit Ka-7- Post mortem examination report of the deceased Kedar.

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(viii) Exhibit Ka-8 - Site plan of the place where incident occurred.

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(ix) Exhibit Ka-9 Recovery memo of the plain and blood soaked soil.

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(x) Exhibit Ka-10- Recovery of memo of piece of Cotton Mat (Kathri).

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(xi) Exhibit Ka-11-Recovery memo of three cartridges.

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xii) Exhibit Ka-12- Recovery memo of country- made pistol, one empty cartridge inside the barrel of country-made pistol, two live cartridges and two empty cartridges at the pointing out of the accused(Case Crime No.328 of 2006)

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xiii) Exhibit Ka-13- Site plan of the place of recovery of weapon of offence prepared by the investigating officer of Case Crime No.328 of 2006.

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xiv) Exhibit Ka-14- Chargesheet of Case Crime No.328 of 2006 under Section 302, 504, 506 I.P.C.

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(xv) Exhibit Ka-15- Site plan of the place of recovery of the weapon of offence prepared by the investigating officer of Case Crime No.357 of 2006, under Section 25(1-B) of the Arms Act.

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(xvi) Exhibit Ka-16- Prosecution sanction in Case Crime No.357 of 2006 under Section 25(1-B) of the Arms Act.

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xvii) Exhibit Ka-17- Chargesheet of Case Crime No.357 of 2006, under Section 25(1-B) of the Arms Act.

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(xviii) Exhibit Ka-18- Inquest report of deceased Kedar.

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(xix) Exhibit Ka-19- Photo Nash of Kedar.

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(xx) Exhibit Ka-20- Specimen seal relating to Kedar.

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(xxi) Exhibit Ka-21- Police Form No.13.

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(xxii) Exhibit Ka-22- Letter to Reserved Inspector.

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xxiii) Exhibit Ka-23- Letter to C.M.O. for conducting post mortem.

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(xxiv) Exhibit Ka-24- Inquest report of deceased Ranjit.

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(xxv) Exhibit Ka-25- Photo Nash of deceased Ranjit.

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(xxvi) Exhibit Ka-26- Specimen seal relating to Ranjit.

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(xxvii) Exhibit Ka-27- Police From No.13 relating to deceased Ranjit.

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(xxviii) Exhibit Ka-28- Letter to reserved Inspector relating to the deceased Ranjit.

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xxix) Exhibit Ka-29- Letter to C.M.O. for conducting post mortem of deceased Ranjit.

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(xxx) Exhibit Ka-30- Report of Forensic Science Laboratory, Lucknow relating to blood soaked and plain piece of cotton mat and bullets of country made pistols empty cartridges and live cartridges and the clothes recovered from the body of the deceased.

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xxxi) Exhibit Ka-31- Report of Forensic Science Lab, Lucknow relating to testing of the recovered country-made pistols and cartridges recovered.

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After completion of the prosecution evidence, the statement of the convict/ appellant was recorded under Section 313 of The Code of Criminal Procedure, 1973 (in short Cr.P.C.) wherein he denied the crime and stated that nothing was recovered at his pointing out. He also stated that witnesses have deposed under the pressure of police. He further stated that he has been implicated in the crime due to enmity. He further stated that he has turned saint (Sadhu) and eats after begging here and there. He transferred his three bighas of land in-equal shares to both his brothers i.e. Kedar (the deceased) and Rajendra. Sumitra, the wife of the deceased developed illicit relations with Rajendra. Sumitra and Rajendra got this crime committed due to their lust and they implicated him with the connivance of the police. The convict appellant did not

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adduce any evidence in defence though liberty was provided by the learned trial court. The learned trial court after hearing the arguments of both the parties and analysing the evidence on record, found the evidence of the prosecution witnesses trustworthy and concluded that the prosecution has proved the charges framed against the accused beyond reasonable doubt as eye witness account is there and nothing is there to doubt the testimony of the wife of the deceased. The recovery of the weapon of offence and cartridges were made at the pointing out of the convict appellant. Medical evidence is in support of the prosecution case.

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Considering all these facts and circumstances and the evidence available on record, learned trial court found the accused applicant guilty under Sections 302, 504, 506 (2) I.P.C. and also under Section 25(1-B) of the Arms Act and sentenced the accused appellant in the following manner :-

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A. SESSIONS TRIAL NO.1121 OF 2006.

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Sl. No.	Section (I.P.C.)	PUNISHMENT	FINE	Further sentence in default of payment of fine
1.	302	life imprisonment	Rs.10,000/-	two years.
2.	504	one year R.I.	Rs.1000/-	three months
3.	506(2)	two years R.I.	RS.1000/-	three months.

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B. SESSIONS TRIAL NO.1122 OF 2006.

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Sl.	Section	PUNISHMENT	FINE	Further
No.	(ARMS ACT)			sentence in default of payment of fine
1.	25 (1-B)	One Year R.I.	1000/-	Three months.

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Learned trial court directed to run all sentences, concurrently.

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Being aggrieved of these convictions and sentences, the convict appellant Bal Govind preferred this criminal appeal.

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Heard Ms. Nandita Bharti, learned Amicus Curiae for the appellant and Ms. Smiti Sahai, learned A.G.A. for the respondent State.

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Learned Amicus Curiae appearing on behalf of the appellant argued that the identity of the convict appellant is doubtful because the wife of the deceased has stated that she identified the convict appellant by his voice. She further argued that source of light has been shown a kerosene lamp lighting at the place but that has not been shown in the site plan and even in the evidence of P.W.-2. There is no mention of lamp. She further argued that torch allegedly used by P.W.-4 was not seized and produced before the court. The presence of P.W.-4 at the time of

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incident is highly doubtful as he reached at the spot after hearing the hue and cry. Admittedly, the convict appellant did not come to the village for the last two years as he renounced the world and turned a Saint and he also transferred his three 'bighas' of land equally in favour of his two brothers. There was no motive to kill his brother and nephew. Subsequent conduct of the P.W.-2 was unnatural. There is no evidence to connect the firearm recovered at the pointing out of the convict appellant alongwith the bullets with the crime. She further submitted that it is cardinal rule of law that if two views are possible on a given set of evidence, the one which favours the accused must be preferred. She further submitted that there is delay of 40 days in sending articles recovered to forensic lab. Hence, the learned trial court committed legal error in holding guilty and sentencing the convict appellant, so he should be acquitted and the impugned judgement and order should be set aside.

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In support of arguments, learned Amicus Curiae has relied upon the following case laws :-

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i). State of U.P. Vs. Garibuddi @ Garibuddin and others (2011) 14 SCC 145.

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ii). Surender @ Babli Vs. State (NCT of Delhi) (2011) 15 SCC 145.

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iii). Baldev Singh Vs. State of Punjab) (1990) 4 SCC 692.

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iv). Santa Singh Vs. State of Punjab AIR 1956 S 526.

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On the other hand, Ms. Smiti Sahai, learned A.G.A. has argued that there is cogent and reliable evidence against the convict appellant. The wife of the deceased is a very natural witness. Her presence at the spot cannot be doubted as the murder was committed in the Varandah of the residential house of the deceased. She further argued that the weapon of offence has been recovered alongwith the empty and live cartridges at the pointing out of the accused appellant and at the time of recovery, the convict appellant confessed that he committed the murder of his brother and nephew by the country-made pistol which was recovered and that statement is admissible under Section 27 of the Indian Evidence Act. She further argued that known person can be recognised even by his voice as the convict appellant is the real brother of the deceased Kedar. She further argued that the learned trial court has rightly analysed the evidence available on record. She further argued that in the forensic science laboratory examination, the human blood was found on the articles recovered and the bullets recovered from the body of both the deceased were found to have been shot by the same weapon which was recovered at the pointing out of the deceased, hence there is cogent evidence against the convict/appellant and the prosecution has proved its case beyond reasonable doubt. The appeal should be dismissed.

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Considered the arguments of both the sides and

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perused the original record of the trial court as well as the record of appeal and also gone through the case laws cited by learned Amicus Curiae appearing for the appellant Bal Govind.

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There is no dispute that the incident occurred in the Varandah situated outside the house of the deceased where the deceased was sleeping alongwith his child, wife and another brother Rajendra. It has been written in the F.I.R. that the convict appellant who is the elder brother of the deceased Kedar reached there, woke him up, abused him and fired upon him with country made pistol. When the wife of the deceased, the complainant cried and raised alarm, in between he again loaded the country made pistol and fired upon son of the deceased namely Ranjit who was sleeping with his father on the same cot. Another brother of the deceased was sleeping on another cot at a short distance. He also woke up and many other persons reached at the spot and the convict appellant ran away after threatening to kill them. The complainant, the wife of the deceased has been examined as P.W.-2. She has stated before the trial court that Bal Govind who was present in the court is the elder brother of her husband and Rajendra was younger. Accused Bal Govind was angry with his brother due to dispute over the land. She has further stated that, at about 2.00 O' Clock in the night of the incident, she, her husband and her son were sleeping in

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the 'Varandah' which is an open place from all the sides. Her son was sleeping with her husband. He was about 4 years old. In the night, Bal Govind came there and started abusing her husband when her husband asked him not to abuse, then Bal Govind shot at her husband by a country made pistol. When the fire hit her husband, she raised alarm. Upon her cry, many persons of the village reached at the spot. P.W.-2 the complainant has proved the incident step by step by her evidence. She is a natural witness. Her presence at the spot cannot be doubted as the incident occurred in front of the residential house of the deceased and the complainant, where they were sleeping after having meals. A lengthy cross examination has been made with her by the counsel of the defence but nothing adverse could be brought on record. Her testimony has rightly been found reliable by the learned trial court.

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Learned counsel for the convict/ appellant argued that there was no source of light at the spot, so accused convict could not be identified in the darkness of night. She further submitted that 'dibiya (kerosene oil lamp) has not been shown in the site plan by the investigating officer, hence the identification of the accused convict is not worthy of reliance. The above argument of counsel for the convict is not tenable because a close relative can be reecognised and identified even by his voice or by appearance even in the dark night. The accused appellant

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is the real brother of the deceased and brother in law (Jeth) of P.W.-2 Sumitra. Therefore, the identification of the appellant convict cannot be doubted.

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In State of Madhya Pradesh Vs. Makhan @ Madan and others : (2008) 10 SCC 615 , the Hon'ble Supreme Court of India has held that "It is true that even in darkness known persons can be identified from the manner of speech, style of walking and several other peculiar features."

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18. In Mohan Singh Vs. State of Bihar (2011) 9 SCC

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272 , the Hon'ble Apex Court accepted the identification of accused on the basis of voice, whose voice was familiar to the person identifying.

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As the appellant is the Jeth (real brother of deceased) of P.W.-2 Sumitra, she is well acquainted with voice, shape and size of the body of the appellant. In such scenario, the identification of the appellant by P.W.-2 Sumitra cannot be viewed with lens of doubt.

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The weapon used in the crime was recovered at the pointing out of the accused appellant alongwith two live cartridges and two empty cartridges. This recovery has been proved by an independent witness P.W.-3 Motu. Recovery memo is Exhibit Ka-12 wherein the accused appellant has stated that this is the weapon by which he

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committed the crime. This recovery is admissible in evidence under Section 27 of the Indian Evidence Act.

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Hon'ble Apex Court in the case of Kishore Bhadke Versus State of Maharashtra (2017) 3 Supreme Court Cases 760 has held that "Section 27 of the Evidence Act is an exception to Section 25 of the Act. Section 25 mandates that no confession to a Police Officer while in police custody shall be proved as against a person accused of any offence. Section 27, however, provides that any fact deposed to and discovered in consequence of information received from a person accused of any offence, in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

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In Mehboob Ali and another Versus State of

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Rajasthan (2016) 14 Supreme Court Cases 640, the Hon'ble Apex Court in this regard has held as under:-

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"12. Section 25 of the Evidence Act provides that no confession made to a Police Officer shall be proved as against a person accused of any offence. Section 26 provides that no confession made by any person while he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Section 27 is in the form of a proviso, it lays down how much of an information received from accused may be proved. 13. For application of section 27 of Evidence Act, admissible portion of confessional statement has to be found as to a fact which were the immediate cause of the discovery, only that would be part of legal evidence and not the rest. In a statement if something new is discovered

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or recovered from the accused which was not in the knowledge of the Police before disclosure statement of the accused is recorded, is admissible in the evidence."

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Hon'ble Apex Court further held in the above case as

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under:-

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"16. This Court in State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru [(2005) 11 SCC 600] has considered the question of discovery of a fact referred to in section 27. This Court has considered plethora of decisions and explained the decision in Pulukuri Kottaya & Ors. V. Emperor [AIR 1947 PC 67] and held thus :

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" 125. We are of the view that Kottaya case [AIR 1947 PC 67] is an authority for the proposition that "discovery of fact" cannot be equated to the object produced or found. It is more than that. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place.

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126. We now turn our attention to the precedents of this Court which followed the track of Kottaya case. The ratio of the decision in Kottaya case reflected in the underlined passage extracted supra was highlighted in several decisions of this Court.

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127. The crux of the ratio in Kottaya case was explained by this Court in State of Maharashtra v. Damu. Thomas J. observed that: (SCC p. 283, para 35)

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'35. ...The decision of the Privy Council in Pulukuri Kottaya v. Emperor (supra) is the most quoted authority for supporting the interpretation that the 'fact discovered' envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."

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In Raju Manjhi Versus State of Bihar (2019) 12 Supreme Court Cases 784, the Hon'ble Apex Court has held as under:-

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"13. The other ground urged on behalf of the appellant is that the so called confessional statement

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of the appellant has no evidentiary value under law for the reason that it was extracted from the accused under duress by the police. It is true, no confession made by any person while he was in the custody of police shall be proved against him. But, the Evidence Act provides that even when an accused being in the custody of police makes a statement that reveals some information leading to the recovery of incriminating material or discovery of any fact concerning to the alleged offence, such statement can be proved against him. It is worthwhile at this stage to have a look at Section 27 of the Evidence Act.

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27. How much of information received from accused may be proved.-Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.

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14. In the case on hand, before looking at the confessional statement made by the accusedappellant in the light of Section 27 of the Evidence Act, may be taken into fold for limited purposes. From the aforesaid statement of the appellant, it is clear that he had explained the way in which the accused committed the crime and shared the spoils. He disclosed the fact that Munna Manjhi was the Chief/Head of the team of assailants and the crime was executed as per the plan made by him. It also came into light by his confession that the accused broke the doors of the house of informant with the aid of heavy stones and assaulted the inmates with pieces of wood (sticks). He categorically stated that he and Rampati Manjhi were guarding at the outside while other accused were committing the theft. The recoveries of used polythene pouches of wine, money, clothes, chains and bangle were all made at the disclosure by the accused which corroborates his confessional statement and proves his guilt. Therefore, the confessional statement of the appellant stands and satisfies the test of Section 27 of the Evidence Act."

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In the instant case, the empty cartridges recovered

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were found to be shot by the weapon recovered at the pointing out of the accused appellant in the forensic examination report. The forensic examination report is on

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record as Exhibit Ka-30 and Exhibit Ka-31. In the post mortem examination report of the deceased Kedar (Exhibit Ka-7), the following injuries were found :-

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"firearm wound of entry 2c x cms abdominal cavity on left side abdomen, 1 cm left of umbilicus. Margins were inverted and lacerated. Blackening and tattoing in 3 cm radius around the wound. Singing of hairs around the wound.

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The cause of death has been noted as 'shock and hemorrhage as a result of ante mortem firearm injury'.

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In the post mortem examination report of the deceased Ranjit, the following injuries have been noted :-

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" Firearm wound of entry 2 cms x 2 cms into right chest cavity deep at right chest just outside right nipples. Margins are inverted and lacerated surrounding area of tattooing and blackening 6 cms around the wounds. margins was found.

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The cause of death has been noted as 'shock and hemorrhage as a result of ante mortem firearm injury'."

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The injuries noted in the post mortem examination reports are in consonance with what has been written in the F.I.R. and what has been stated by the witnesses of facts. P.W.-4 is a witness who has stated that he saw the accused convict armed with country made pistol running after committing the crime in the light of torch.

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The motive though has not been alleged in the F.I.R. but has come out in the cross examination when asked by defence counsel to P.W.-2 the wife of the deceased Kedar that there was a dispute over the land between the deceased and the convict appellant. Hence the prosecution has proved the charges framed against the accused beyond

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reasonable doubt by cogent and reliable evidence and the learned trial court has rightly convicted the accused appellant for the charges framed. The recovery of weapon has also been duly proved.

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The case laws cited by the appellant's counsel are of no help as there are differences of facts and circumstances of the case in hand and the decided case laws. Hence, the appeal deserves dismissal. Accordingly, the appeal is

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dismissed.

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The convict/appellant is stated to be in jail, accordingly he shall serve out the sentence awarded by the trial Court.

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The Court appreciates the able assistance rendered by Ms. Nandita Bharti, learned Amicus Curiae in deciding the present appeal. She shall be paid Amicus Curiae fee for arguing the present appeal on behalf of the appellant as per the Rules of the Court.

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Office is directed to send a copy of this judgment along with lower Court record forthwith to the trial Court concerned for necessary information and compliance.

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(Mrs. Saroj Yadav, J.) (Ramesh Sinha, J.)

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Order Date:- 14.10.2022 Shukla.

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Digitally signed by ASHUTOSH KUMAR SHUKLA Date: 2022.10.14 16:12:45 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Balgovind v. State of U.P.

Case brief

What is this about?

What did the court decide?

Balgovind v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

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