Court No. - 4
Case :- CRIMINAL APPEAL No. - 1057 of 1987 Appellant :- Munnu And Another Respondent :- State Counsel for Appellant :- A.K. Rathore,L.P. Singh Counsel for Respondent :- A.G.A.
Hon'ble Bala Krishna Narayana,J. Hon'ble Ghandikota Sri Devi,J.
Heard Sri L.P. Singh, learned counsel for the appellants and Smt. Manju Thakur learned A.G.A. appearing for the State.
This Criminal appeal has been preferred by appellants Munnu @ Bhonu Harijan and Nesh alias Naresh alias Ram Naresh against judgment and order dated 8.4.1987 passed by VIth Additional Sessions Judge, Varanasi in S.T. No.191 of 1986 (State vs. Munnu @ Bhonu Harijan, Nesh alias Naresh alias Ram Naresh) arising out of Case Crime No.147 of 1985, under section 302 IPC P.S. Jansa District Varanasi by which appellant Munnu @ Bhonu Harijan was convicted and sentenced to imprisonment for life and a fine of Rs.1000 and in default of payment of fine additional six months rigorous imprisonment under section 302/34 IPC while Nesh @ Naresh @ Ram Naresh was convicted and sentenced to imprisonment for life together with fine of Rs.1000/- and in default of payment of fine additional six months rigorous imprisonment under section 302 IPC.
Prosecution case, in brief, is that on 17.11.1985 at about 6.45.p.m, the complainant Satya Kumar Singh along with Adhya Singh, Iqbal Narain Singh and Chhedi Gaur was sitting in the verandah of the Maternity Centre situated at village Bhitkuri within the territorial jurisdiction of P.S. Jansa, District Varanasi and were talking with each other in the light of lantern. The field of the complainant lies near the said Maternity Centre. At the same time accused Munnu alias Bhonu, Nesh Gaur alias Naresh alias Ram Naresh, residents of village Balua, P.S. Baragaon, District Varanasi came there. Accused Bhonu pointed out towards Adhya Singh and instigated co-accused Nesh Gaur to kill him because he was the same person, who had abused his father for providing medicines to the hospital. In the meantime accused Nesh Gaur took out a country made pistol and fired at Adhya Singh causing gun shot injury on his chest which resulted in his death. The complainant and the others raised an alarm and chased the accused, but the accused could not be apprehended and they fled towards east. On hearing the noise, other persons of the village also came to the spot and saw the accused fleeing from the place of occurrence. The report of the incident was lodged at P.S. Jansa on 17.11.1985 at 8.30 p.m. The place of occurrence lay at a distance of about 13 kilometers from the police station Jansa.
On the basis of the report, the case was registered against both the accused under section 302 of the IPC. The case was investigated by the then S.O. Sri Prem Chandra Pandey.
After registration of the F.I.R, the Investigating Officer proceeded towards the destination and reached at the place of occurrence on 17.11.1985 at about 10.30.p.m. He then held inquest of the deceased's body and prepared the inquest report and other connected documents in the intervening night of 17/18.11.1985. After completing the legal formalities, the dead body of Adhya Singh alias Adhya Prasad Singh was sent to B.H.U. for post-mortem examination. The Investigating Officer recovered the earth tainted with blood and the simple earth from the place of occurrence and also inspected the lantern and prepared its recovery memo Ext-Ka-4. The Investigating Officer recorded the statements of the witnesses and prepared the site-plan of the crime scene. The post-mortem of the dead body of Sri Adhya Prasad Singh was conducted by Dr.
G.K. Tripathi on 16.11.1985 at 2.45.pm at B.H.U. In his opinion the death was caused due to shock and haemorrhage as a result of ante mortem gun shot injury. After completion of the Investigation charge sheet was filed against both the accused under section 302, IPC.
Since the offence mentioned in the charge sheet was triable exclusively by the Court of Sessions, CJM, Varanasi committed the case for the trial of the accused to the Court of Sessions Judge, where the case was registered as Sessions Trial No.191 of 1986 and made over from there for trial to the Court of VIth Additional Sessions Judge, Varanasi who on the basis of material on record and after affording opportunity of hearing to the prosecution as well as the accused framed charge under section 302/34 IPC against the appellants. The accused abjured the charge and claimed trial. The prosecution in order to prove its case against the accused appellants examined as many as seven witnesses. P.W.2, Ram Ugrah Singh proved the inquest report Exhibit Ka-2 recovery memo of blood stained and plain earth Exhibit Ka-3 and superdhiginama of lantern, Exhibit Ka-4. P.W.4 Sri Vikrama Yadav proved the FIR Exhibit Ka-5 and copy of G.D. Exhibit Ka-6, P.W. 6, Doctor G.K. Tripathi, proved the post-mortem report of the deceased, Exhibit Ka-7. P.W.7, Prem Chand proved the inquest report Exhibit Ka-2 recovery memos Exhibit Ka-3 and Exhibit Ka-4, the site plan of the place of occurrence Ka-8 and the charge sheet Exhibit-Ka-9. P.W-1, Satya Kumar Singh, P.W-3, Shanti Mishra and P.W-5, Iqbal Narain Singh were examined as witnesses of various facts.
The accused in their statements under section 313 Cr.P.C. alleged false implication due to previous enmity and denied the prosecution case as false. Munna (Appellant No.1) further stated that he was arrested from his house and the witnesses are the relatives of the deceased. Nesh @ Naresh @ Ram Naresh, (Appellant no.2) also stated that he had been falsely implicated due to enmity with police. He had no enmity with the witnesses but still they had given evidence against him under the pressure of the police he was arrested from his house on 18.11.1985 at about 8.00 a.m. and when he inquired about the reason for his arrest, the police did not disclose anything to him. The accused produced Sri Rajlakhan Tiwari as D.W-1. The appellants also adduced documentary evidence comprising of copy of judgment dated 8.8.1986 Exhibit Kha 8, copy of the statement of Satya Kumar Singh, Exhibit Kha 10. P.W.7 Sri Prem Chandra Pandey had proved the extract of the statements under section 161 Cr.P.C. of Satya Kumar Singh (PW 1) Ext.Kha-1 to Ext.Kha-4, Shanti Mishra (P.W.3) Ext.Kha-5 and Ext.Kha-6 and Iqbal Narain Singh (P.W.5) Ext.Kha-7.
Learned 6th Additional Sessions Judge after considering the submissions advanced before him by learned counsel for the parties and scrutinizing the evidence on record, both oral as well as documentary convicted the appellants under the aforesaid sections and awarded aforesaid sentence to them.
Learned counsel for the appellants submitted that the incident had taken place in darkness and there being no reliable evidence of any source of light illuminating the place of occurrence, it was impossible for the so called eye witnesses to identify the miscreants. Since the culprits could not be recognized by any of the witnesses, appellants were falsely implicated in this case by P.W.1 informant Satya Kumar Singh due to his previous enmity with Munnu (A-1).
He next submitted that the learned trial Judge committed a patent error of law in convicting the appellants on the basis of the testimony of (PW-1) Satya Kumar Singh, cousin of the deceased and P.W.-5, Iqbal Narain, real brother of the deceased who were highly interested in securing the conviction of the appellants, without seeking corroboration from any other evidence. He also submitted that prosecution further failed to lead any evidence to prove that the incident had taken place at the place mentioned in the FIR. The medical evidence does not corroborate the manner of incident as set forth in the FIR and later testified by P.W.1, Satya Kumar Singh and P.W-5, Iqbal Narain Singh.
Lastly, he submitted such being the state of evidence neither the recorded conviction of the appellant nor the sentence awarded to them can be sustained and are liable to be set aside.
Per contra, Smt Manju Thakur, learned A.G.A. appearing on behalf of State submitted that there is no rule of law which mandates that the conviction can not be based on the testimony of a witness who happens to be a relative of the deceased without seeking corroboration from any other piece of evidence. Advancing her argument in this regard further she submitted that law is settled that the conviction can be recorded by placing reliance on the evidence of witnesses who are relatives of the deceased, if after a careful perusal of their evidence the court finds that such witnesses have given a cogent and correct description of the incident and are wholly reliable, then in such a case no corroboration is required. In the present case although P.W-1, Satya Kumar Singh and P.W-5, Iqbal Narain Singh were subjected to gruelling cross examination by the defence counsel but they stuck to the version of the occurrence narrated by them in their examination-in-chief and there is nothing on record which may indicate that they are not a wholly reliable witnesses. She next submitted that the place of incident as described in the FIR stands fully proved from the evidence of P.W-1, P.W-2 and P.W-3. She also submitted that the medical evidence on record fully corroborates the manner of assault as described in the FIR. There is no material discrepancy in the medical evidence vis-a-vis the ocular version. This appeal lacks merit and is liable to be dismissed.
Heard learned counsel for the parties and very carefully perused the lower court record. The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove its case against the appellants beyond all reasonable doubts or not. The prosecution, apart from the formal witnesses had examined P.W-1, informant, Satya Kumar Singh, P.W-3, Shanti Mishra and P.W-5, Iqbal Narain Singh as witnesses of facts. P.W.1 informant Satya Kumar Singh in his evidence recorded before the trial court stated that Adhya Prasad Singh was his cousin. Iqbal Narain Singh is the real brother of Adhya Singh. Adhya Singh was the Up- Pradhan of Gram Sabha, Bhitkuri. Adhya Singh was about 55 years of age at the time of incident. The Maternity Centre is situated at a distance of about 150 meters from the Abadi towards south-east at village Bhitkuri, Kachcha road lies towards east of the Abadi which runs from north to south. The maternity centre lies towards west of this road, which opens towards east. The said 'kachcha' road is adjacent to the Maternity Centre and goes to Sewapuri. Kachcha road also lies in the south of the Maternity Centre. This road runs from east to west and goes to Kalika Bazar towards west and Hathi Bazar towards east. The house of Chhedi Gaur lies at a distance of about 25- 30 yards on the southern Patari of the road and his door opens towards north. Shanti Mishra, Midwife used to reside at Maternity Centre at the time of incident. There are two rooms, one verandah, Kitchen, bathroom and a court-yard behind the Maternity Centre. A bench of cement has been constructed in the verandah of Maternity Centre for sitting. The field of Adhya Prasad Singh lies towards east of the road. The field of Adhya Prasaed Singh was being irrigated on the day of incident. At about 6.30. p.m, he himself, Adhya Singh, Iqbal Narain Singh and Chhedi Gaur were sitting on the bench in the verandah of Materninty Center and were engaged in a conversation. The lantern was burning in the said verandah. It was moon night. There was sufficient light of the lantern in the verandah and the persons could be seen and identified in the said light. On 17.11.1985 at about 6.45 P.M. when they were sitting on the bench and were talking, accused Bhonu alias Munnu and Nesh alias Naresh @ Ram Naresh, residents of Balua came there. Bhonu exhorted and pointed out towards Adhya Prasad Singh and told that he is Adhya Singh, who had abused his father in connection with the medicines at this Maternity Centre and he should be finished. Then Nesh alias Naresh took out a country made pistol and fired at Adhya Prasad Singh. The shot hit Adhya Singh on the chest towards right side. Nesh alias Naresh had fired at Adhya Singh from a distance of about 6-7 feet. On being hit by shot, Adhya Singh was shocked and stood-up and fell down in the verandah of Maternity Centre. They raised an alarm and chased the accused, but the accused could not be apprehended and they fled towards east. The other persons of the village also came on hearing the noises when the accused were running. He had seen and identified the accused in the light of lantern and in the moon light. Both the accused were known to him previously. The village of the accused lies adjacent to his village. The residents of village Balua used to pass through his village. Adhya Prasad Singh had died immediately due to gun shot wound. Thereafter, Adhya Singh was brought at his door. Blood was spilled all over at the place where Adhya Singh had fallen down. Shanti Mishra, Midwife was present in her room at the Maternity Centre at the time of incident. After hearing the sound of the gun shot and after the accused had run away from the spot she came out of her room. He had written the report of the incident and had filed the same at about 8.30 P.M., at the police station, the copy of the F.I.R. was delivered to him.
Sri Iqbal Narain Singh P.W.5 has stated that the deceased Adhya Prasad Singh was his real brother. On 17.11.1985 at about 6.45 P.M., he himself, Adhya Prasad Singh and Satya Kumar Singh were sitting on the cemented bench in the verandah of the Maternity Centre and Chedi Gaur was sitting on the floor near them. They were talking amongst themselves. The field of Adhya Prasad was being irrigated at that time. They had gone to see the water in the field and ease themselves. Thereafter they sat in the verandah of the Maternity Centre and were talking there. The lantern was lit in the verandah at that time. It was moon night. The Midwife of the Maternity Centre Smt. Shanti Mishra was present in the southern room at that time. At about 6.45. P.M., when they were talking, Bhonu Harijan and Nesh Gaur, present in the court, came there all of a sudden. Bhonu came in the verandah and pointed out towards Adhya Prasad Singh and told that he had abused and misbehaved with his father and exhorted that he should be murdered. On hearing this, Nesh Gaur fired at Adhya Prasad Singh from his country made pistol. The shot hit him on the chest towards right side. On being hit by shot, Adhya Prasad Singh was shocked and moved forward and fell down at a distance of about 2-3 steps from the verandah. They had chased the accused, but they fled towards east and could not be apprehended. They raised an alarm just after the incident. Other persons of the village also came to the spot. When they returned after chasing the accused, they found that Adhya Prasad Singh was dead. Thereafter, Adhya Prasad Singh was brought to his door on a cot. P.W-1,Satya Kumar Singh then wrote the report of the incident and proceeded to the police station Jansa at about 7.30. P.M. The police personnel came at the spot at about 10.30. P.M.
These witnesses have been cross-examined at great length but nothing material has been elicited in their cross- examination on the basis of which their testimony may be discarded. Minor contradictions in the statements of the witnesses are most natural, unless the witnesses are fully tutored . Minor contradictions which do not go to the root of the matter and do not affect the merits of the case are of no consequence and oral testimony of the witnesses cannot be disbelieved merely on the ground of minor contradictions in their statements. We have gone through the statements of both these witnesses thoroughly and are of the view that their testimony is worthy of credence and the prosecution case stands proved to the hilt from their evidence.
P.W.3, Shanti Mishra stated that on the date of the incident, she was working as a basic health worker at the Maternity Centre Bhitkuri. On 17.11.1985 she was present at the Maternity Centre. At about 6.30 P.M., Adhya Prasad Singh, Iqbal Narain Singh and Satya Kumar Singh were sitting on the bench of cement in the verandah and were engaged in conversation. Chhedi Gaur was also sitting near them on the floor. She was inside her room an the aforesaid persons were talking out-side. The lantern was burning in the verandah. The light of the lantern was available in the verandah and outside the verandah and to some extent in the room. It was moon night on that day. At about 6.45.P.M, she was taking her tea. She heard voices from outside to the effect that he is Adhya Singh and he had mis-behaved with his father in connection with the medicines and he should be murdered. Thereafter she heard the sound of a gun shot. After hearing the sound of shot she came out-side and saw that the dead body of Adhya Singh was lying at a distance of about 3-4 steps from the verandah. Iqbal Narain Singh, Satya Kumar Singh and Chhedi Gaur were raising alarm and were chasing two culprits. She could not identify both the culprits and had seen them from behind.
From her statement also, it is clear that the incident had taken place in the verandah of the Maternity Centre at 6.30 P.M., on 17.11.1985 in which one person i.e Adhya Prasad Singh had shot dead on the exhortation of Munnu (Appellant no.1) and that there was sufficient light at the place of incident at the time when the crime has committed to enable the witnesses to identify the accused.
P.W.2, Ram Ugrah Singh deposed before the trial court that the investigating officer had recovered the blood stained earth and plain earth from the place of occurrence in the morning and had kept the same in two containers which were seized on the spot and recovery memo was written by the Investigating Officer of the case on which his signatures were obtained.
Sri Prem Chandra Pandey, P.W.7 has stated that at about 6.30.A.M., he reached at the place of occurrence and recovered blood stained and plain earth from the place of occurrence and prepared the Fard Ext.Ka-3. He had read-over the Fard to the witnesses and has obtained their signatures. He had kept the blood stained earth and the plain earth in separate containers and had sealed the same. The blood stained earth and the plain earth were produced during the trial and marked as material Ext-11 and Ext-12.
It is true that the blood stained earth recovered from the place of occurrence was not send for chemical examination and hence it has been urged by the learned counsel for the appellants that a reasonable doubt is created about the place of occurrence and place of occurrence has not been established by the prosecution beyond reasonable doubt. In our opinion the aforesaid omission on the part of the Investigating Officer by no stretch of imagination can be construed to suggest that the incident had not taken place at the place mentioned in the F.I.R. The place of occurrence as recited in the F.I.R in our opinion stands fully proved from the evidence of P.W-1, Staya Kumar Singh, P.W-5, Iqbal Narain Singh and P.W- 3, Shanti Mishra.
Dr.G.K.Tripathi, P.W.6 had conducted the postmortem examination of the body of deceased Adhya Prasad Singh on 18.11.1985 at 2.45.P.M., at B.H.U., Varanasi. He found full sweater Ext-1, Baniyaan Ext-2, Dhoti Ext-3, under wear (Janghiya) Ext-4 and Janeu Ext-5 on the dead body. All the articles were sealed and were handed over to the concerned Constables. Rigor mortis was present all over the body and no sign of decomposition was seen. He noted following ante-mortem injury on the body of deceased:
“1) Gun shot wound of entry, circular, 6 cm in diameter x muscle deepplaced over upper part of right side of front of chest with upper most portion over middle or right clavicle, 3 cm below top of right shoulder and inner most edge is 8 cm, to the right of midline. Margins ragged and everted (blast effect). No searching, no blackening, no tattooing seen. No singeing of hairs seen. On deeper dissection the muscles of the lower part of the neck on right side and those below the injury are ruptured. Right external gugular vein, right subclavian vein and artery and right infrascapular artery are ruptured. Compound fracture of right clavicle in its middle third and body of right scapula (simple) are also fractured.”
15 pellets (Ext.6) were recovered from the depth of wound along with two cloth pieces (Ext.7 and Ext-8)and two sets of wads (Ext.9 and Ext.10) The aforesaid articles were sealed and were sent to S.S.P., Varanasi in a sealed envelop. In the opinion of the Doctor, the death was caused due to shock and hemorrhage as a result of ante-
mortem gun shot injury.
From the perusal of the post-mortem report, it is clear that the ante-mortem gun shot wound of entry was circular and 6 cm in diameter. From the statement of Dr.G.K. Tripathi P.W.6, it is established that the pellets were recovered from several places in the depth of the wound, if the shot was fired in close contact with the body, there was no possibility of dispersion of pellets in an area of 6 cm. Since no blackening, tattooing and singeing were found, it is clear that the shot had been fired from a distance of more than 4 feet. From the medical evidence also it has not been established that the fire arm wound found on the body of the deceased was a contact wound as suggested on behalf of defence. No exit wound was found on the body of the deceased. From the statement of Dr.G.K.Tripathi, P.W.-6, it is clear that the aforesaid ante- mortem injury could have been inflicted on the deceased from a distance of about 6-7 feet by one shot fired from a country made pistol. It has also been established from the medical evidence that the death had occurred at about 6.45 P.M., on 17.11.1985.
We now proceed to deal with the contention of the learned counsel for the appellants that the Trial Judge erred in law in relying upon the evidence of P.W.1 and P.W.5 who are the son and the real brother of the deceased and who fall in the category of highly interested witnesses, for the purpose of convicting the appellants.
We do not find any merit in the aforesaid contention of the learned counsel for the appellants. The issue as to whether the evidence of interested witnesses is liable to be discarded only on the ground of their being relatives of the deceased is no longer res-integra and stands settled by a catena of decisions of the Hon'ble Apex Court.
On the point of interested witnesses, the Hon'ble Supreme Court in State of U.P. v. Jagdeo reported in 2003 Cri LJ 844 (SC) observed that only on the ground of interested or related witnesses, their evidence cannot be discarded. Most of the times eye-witnesses happen to be family members or close associates because unless a crime is committed near a public place, strangers are not likely to be present at the time of occurrence.
In Mst. Dalbir Kaur v. State of Punjab reported in 1976 Cr LJ 418 (SC), following observations were made :
Interested witness:- Relatives who are natural witnesses are not interested witnesses and their testimony can be relied upon. The term 'interested' postulates that the person concerned must have some direct interest in seeing that the accused is somehow or the other is convicted either because he had some animus with the accused or for some other reason. In the reported case the incident took place at mid night inside the house, the only natural witnesses who could be present to see the assault were the persons present in the house at that time. No outsider can be expected to have come at that time because the attack was sudden. Moreover a close relative who is a very natural witness cannot be regarded as an interested witness.
Regarding evidentiary value of testimony of the interested or relatives witnesses, Hon'ble Supreme Court in Mano Dutt and another Vs. State of U.P. reported in 2012 (77) ACC 209, has observed in paragraph no. 19 referring to the case of Namdeo Vs. State of Maharashtra reported in 2007 (58) ACC 414 (52) = 2007 (54) AIC 162, that this Court drew a clear distinction between a chance witness and a natural witness. Both these witnesses have to be relied upon subject to their evidence being trustworthy and admissible in accordance with law.
Hon'ble Supreme Court in Waman and others Vs. State of Maharashtra reported in 2011 Crl. L.J. 4827 has observed in paragraph no. 9 which reads as follows:
"In Balraje @ Trimbak Vs. State of Maharashtra, reported in 2010 (70) ACC 12 (SC) = 2010 (90) AIC 32, this Court held that mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eye-witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed toward the accused. After saying so, this Court held that if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same."
It has been further observed in Waman (supra) that relationship cannot be a factor to affect the credibility of a witness. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse evidence of related witnesses carefully to find out whether it is cogent and credible. The same view has been reiterated in State of U.P. Vs. Naresh and others reported in 2011 (75) ACC 215 (SC) = 2011 (106) AIC 76 (SC).
Since we have already found after a cautious scrutiny that P.W.1, informant Satya Singh P.W.5, Iqbal Singh that they have given a cogent and correct description of the incident, their evidence is not liable to be discarded and excluded from consideration merely on the ground of their being the relatives of the deceased.
We have also examined the plea of false implication of appellant no.2 at the behest of the first informant due to previous enmity between them canvassed before us by the learned counsel for the appellant no.2 and perused the statement of D.W-1, Rajlakhan Tiwari. In our opinion, nothing turns on the evidence of D.W-1, Rajlakhan Tiwari who was the Pradhan of Gram Panchayat, Balua where appellant no.2 resided as he merely deposed that no one in his village called Ram Naresh as Nesh as Ram Naresh was not Urfiyat of Ram Nesh and that the police had arrested appellant no.2 from his house on the next day of the incident in the morning. Enmity is a double edged sword, if it can inspire false implication, it can also be a very cogent ground for a person to commit the crime against the person who is inimical towards him.
Thus, upon wholesome consideration of the facts of the case, attending circumstances and the evidence on record we have no hesitation in holding that the prosecution has succeeded in proving its case against the appellants from all reasonable doubts. Neither their recorded conviction nor the sentences awarded to them warrant any interference.
This appeal lacks merit and is accordingly dismissed.
The appellants Munnu alias Bhonu Harijan, and
Nesh alias Naresh alias Ram Naresh are on bail, their bail bonds are cancelled and their sureties are discharged. CJM, Varanasi shall arrest the appellants and sent them to jail for serving out the remaining part of their sentence.
Order Date :- 28.2.2019 Harshita