RESERVED
Court No. - 41
Case :- CRIMINAL APPEAL No. - 323 of 1986
Appellant :- Naresh And Another
Respondent :- State Of U.P.
Counsel for Appellant :- Brijesh.Sahai
Counsel for Respondent :- D.G.A.,A.G.A.
Hon'ble Rajesh Dayal Khare,J. Hon'ble Rajiv Joshi,J.
(Delivered by Hon'ble Rajesh Dayal Khare, J.)
Heard learned counsel for the appellants, the learned A.G.A. for the State and perused the paperbook as well as the judgment and order impugned.
Present appeal has been filed against the judgment and order of conviction dated 10.1.1986 passed by Special Judge (E.C. Act), Etah in Sessions Trial No. 80 of 1985 whereby the appellants have been convicted and sentenced to undergo imprisonment for life and fine of Rs. 5000/- for the offence under Section 302 IPC read with Section 34 IPC and in case of default in payment of fine to further undergo imprisonment of one year.
Learned counsel for the appellants contends that during the pendency of present appeal, the appellant No.1 had expired, therefore, his appeal has been abated vide order of this Court dated 25.1.2017 and the present appeal is being argued only on behalf of the appellant No.2- Jabar Singh.
In the present case F.I.R. was lodged by the brother of the deceased Ratiram(P.W.1) on 17.10.1984 at 07.45 a.m. for the incident which allegedly took place on 07.10.1984 at 1.00 a.m. at night and the place of incident was shown to be at village Tajpur district Etah. Pursuant to lodging of the F.I.R. by Ratiram (P.W.-1), investigation was conducted which resulted in filing of charge sheet and as the appellants pleaded not guilty, they were put to trial.
Another first information report was lodged on the same day at 2.30 a.m. by the appellant No.1, copy of which F.I.R. has been filed as Ex. Ka-2.
Learned counsel for the appellants has drawn the attention of this Court to Ex. Ka-2 which is the F.I.R. lodged by the appellant No.1 who has since expired, who nominated Raghunath, Ramdas, Chhote and Paatiram as the persons who had committed the alleged offence of murdering his wife-the deceased when she had gone out of the house to urinate. It is contended that the said F.I.R. clearly shows that when the informant-appellant No.1 heard the screaming of his wife, he ran outside and saw the aforenamed persons dragging his wife and when they saw the appellant No.1 coming they shot the deceased by the fire arm which they were carrying near the hut of Mansingh. It is contended that after lodging of the F.I.R. Raghunath was taken into custody by the police. It is contended that after ten days of the alleged incident another F.I.R. was lodged by P.W.-1-brother of the deceased against the appellants stating that the incident took place on 07.10.1984 at about 11.00 p.m. Learned counsel for the appellants contends that it is alleged that appellant No.1 who is a person having criminal background had forcibly kept the deceased at his house as he wanted to usurp her property and the said F.I.R. also mentions that the informant had heard the sound of firing near the hut of Mansingh whereafter the informant, P.W.-2 and P.W.-3 who were sitting in the house of Asharam ran outside and saw that the deceased was being shot by the accused persons and after threatening the said witnesses, the appellants went away.
Learned counsel for the appellant contends that Ram Singh who was named in the second F.I.R. by P.W.-1 was not examined and no explanation has been given as to what was the deceased doing near the hut of Mansingh. It is argued that the case is of direct evidence and therefore, Section 106 of Evidence Act would not apply in the present case. Learned counsel for the appellants contends that as civil dispute was pending between the appellants and Raghunath and others therefore the appellants have been falsely implicated. It is further contended that the appellants have been falsely implicated for the reason also that P.W.-1 brother of the deceased wanted to usurp the property of the deceased and this could only be done if the appellant No.1 was implicated and thereafter her property would be put in the name of P.W.-1 and the third motive of false implication of the appellants is of saving Raghunath who is main person who had committed the alleged offence.
Learned counsel for the appellants has drawn the attention of this Court to the statement of P.W.-1 and has contended that P.W.-1 has himself admitted that there was land dispute pending between the appellants and Raghunath and it was basically the land of the deceased which was the bone of contention between the appellants and the P.W.-1. It is contended that P.W.-1 is said to have come to the village after ten days of the alleged incident whereafter he came to know of the alleged offence being committed by the appellants but no reason has been given as to what was he doing in the village of the deceased on that date on which the second F.I.R. was lodged. It is argued that P.W.-1 is an interested witness whose testimony cannot be relied upon as he had very strong motive of falsely implicating the appellants for the sake of land which was in the name of the deceased, his sister. Learned counsel for the appellants has also drawn the attention of this Court to the statement of the P.W.-2 and has argued that P.W.-2 is resident of a village which is situated two furlong away from the village where the occurrence took place and perusal of the said statement would go to show that P.W.- 2 was present at the house of Asharam (who is real brother of Raghunath who is an accused in the F.I.R. lodged by the appellant No.1) at 10.00 p.m. in October night for discussing sowing of tobacco in the fields. It is argued that it is highly improbable that any person of a different village would come to the house of any person at an unearthly hours only to discuss about the tobacco plantation. It is argued that the said witness who is a chance witness is said to have seen the alleged incident wherein he has stated that after hearing the gunshot, he went outside and saw the incident with the help of his torch according to which the appellants were the persons who had shot the deceased while she was sleeping near the hut of Mansingh but it is very intriguing to note that P.W.-2 who was very close friend of Asharam, whose brother was implicated by the appellants for the same incident ten day back but he did not inform even Asharam about the said fact and the fact that his brother Raghunath was being falsely implicated and goes back to his village without informing anybody on the ground that he was in fear of the appellants who had criminal antecedents and were of criminal nature. It is argued that there was no record to show that the appellants were having criminal history, therefore, the testimony of P.W.-2 cannot be relied upon and that he is not an eye witness. Learned counsel has further contended that as per statement of P.W.-2 the manner of assault was firing upon the deceased while she was asleep on a cot and there is no explanation with regard to injuries of abrasions on the body of the deceased. Learned counsel for the appellants had drawn the attention of this Court to the F.I.R. lodged by the appellant No.1 wherein he had specifically stated that Raghunath and others were dragging his wife and when they saw the appellant No.1 coming they shot her and thus caused injuries of abrasions on the body of the deceased this fact also falsifies the contents of the second F.I.R. as well as the testimony given by the P.W.-2.
Learned counsel for the appellants has next drawn the attention of this Court to the contents of the F.I.R., according to which the deceased had gone out of the house to urinate from where she was dragged and shot and which fact was told by the appellant No.1 to the I.O. who had prepared the site plan on the same day and found urine on the spot and also the dragging marks which is apparent from the site plan, copy of which has been filed as page-117 of the paperbook. Learned counsel for the appellants further contends that the aforesaid fact is also corroborated by the statement of P.W.-7 the doctor who found that the bladder of the deceased was empty and reference in this regard has been drawn to the statement of P.W.-7 at page-53 special reference has been made to paragraph-11 thereof in order to further corroborate the aforesaid fact. Learned counsel for the appellants had drawn the attention of this Court to the site plan which also corroborates the contents of the F.I.R. that the deceased had gone out to urinate. It is thus, argued that the prosecution version as has been spelled out against the appellants is not proved by the site plan or by the statement of the Doctor or the medical evidence on record, therefore, same cannot be relied upon. It is next contended that according to the statement of P.W.-2 source of light of seeing the alleged incident by the said witness was torch but no Fard was prepared for the same and reference in this regard has been made to page-24 paragraph-10 wherein the P.W.-2 had stated that he had shown the torch to the I.O. Concerned who returned the same to him and there is no mention of any Fard being prepared for the same, although, the statement of the I.O. Shows that Fard was prepared. It is thus, argued that no investigation was made and investigation was done in sham manner and even the Fard which is said to have been prepared for the Torch is a forge document. Learned counsel for the appellants further contends that perusal of the statement of P.W.-3 would also go to show that he also stated the same things as had been said by the P.W.-2 and for ten days he kept mum as they were fearing the appellants but on the eleventh day, they intimated the first informant (P.W.-1) who was a complete stranger to them, about the incident although, they did not inform Asharam about the said incident, whose real brother was implicated by the appellants, which also falsifies their testimony, therefore, the testimony of P.W.-2 and P.W.-3 cannot be relied upon being most unreliably and improbable. It is lastly contended that the contents of the F.I.R. lodged by the appellant No.1 fully corroborates with the medical evidence, site plan and the statement of the Doctor with regard to manner in which the incident took place and it does not in any way corroborates the second F.I.R. lodged by P.W.-
1. It is thus, contended that the chain of evidence is not complete and the prosecution miserably failed to prove beyond reasonable doubt the implication of the appellants in the commission of the alleged offence, therefore, the order impugned is liable to be set aside.
On the contrary learned A.G.A. has contended that in the present case, two F.I.R. was lodged one by the appellant No.1 and second by the brother of the deceased (P.W.-1). It is contended that in the first information report, the story, as set up, is highly improbable inasmuch as that the two brother of the appellant No.1 were also sleeping at the time of alleged incident but they did not come out though, the screams of the deceased was heard which conduct was most improbable, that no information was given by the appellant No.1 about the incident to the brother of the deceased. It is argued that the motive to commit the alleged offence was to grab the land of the deceased and that the medical evidence on record does not support the first F.I.R. but supports second F.I.R.. It is thus, contended that the order of conviction which has been returned suffers from no infirmity in law.
In the present case, two F.I.R. was lodged, one by the appellant No.1 which was lodged on 07.10.1984 at 2.30 a.m. for the alleged incident which is said to have taken place on the same day at 01.00 a.m. at night in which Raghunath, Ram Das, Chhote and Ratiram were the persons nominated for committing the offence of murdering the wife of the informant, who had gone out of her house to urinate. Second F.I.R. was lodged by the brother of the deceased Ratiram (P.W.-1)after ten days of the alleged incident i.e. on 17.10.1984 at 07.45 a.m. for the same incident which is said to have taken place on 07.10.1984 at 01.00 a.m. at night in which the place of incident was shown to be village Tajpur district Etah.
Pursuant to second F.I.R., in which the appellants were named, investigation was conducted which resulted into filing of charge sheet and as the appellants pleaded not guilty they were put to trial.
Contents of the first F.I.R. would go to show that the appellant No.1 had clearly stated that when he heard the scream of his wife, he ran out and saw the nominated persons dragging his wife and when they saw the appellant No.1 coming, they shot the deceased with the fire arm which they were carrying near the hut of Maan Singh, pursuant to which Raghunath was also taken into custody by the police. Persual of second F.I.R. would indicate that P.W.-1, brother of the deceased, had nominated the appellants after ten days of the alleged incident and had also alleged that the appellant No.1 had criminal history and motive shown was that he had forcibly kept the deceased in his house as he wanted to usurp her property. Further when he heard the sound of firing near the hut of Maan Singh whereafter P.W.-1. P.W.-2 and P.W.-3, who were sitting in the house of Asha Ram, ran out and saw that the deceased was being shot by the accused persons. Statement of P.W.-1 indicates that he had admitted that there was land dispute between the appellants and Raghunath but it was basically the land of the deceased which was the bone of contention between the appellant and P.W.-1. Further statement would go to show that he came to the village of the deceased after ten days and when he was informed of the incident allegedly committed by the appellants, he lodged the F.I.R. but gave no reason what was he doing in the village of the deceased after ten days of the alleged incident. P.W.-1, brother of the deceased who is alleged to be interested witness, who was also intending to somehow usurp the land of his sister. Statement of P.W.-2 also reveals that he is resident of a village which is situated two furlong away from the village of occurrence and on the date and time of alleged incident, P.W.-2 who stated to have been present at the house of Asha Ram at 10 p.m. in October night for discussing sowing of tobacco in the field. It is also noteworthy that Asha Ram is real brother of Raghunath, who was nominated as an accused by the appellant No.1 in his F.I.R. and who was also taken into custody by the police. It is intriguing as to why any person of a different village would come to the house of any person at unearthly hours only to discuss about tobacco plantation and therefore, it is also vehemently contended that P.W.-2 is a chance witness, whose testimony cannot be relied upon. Further statement of P.W.-2 would go to show that the source of light, as indicated by the said witness, was torch and the said witness is said to have witnessed the alleged incident while the deceased was sleeping near the hut of Maan Singh. It is also very intriguing to note that as to why P.W.-2, who is shown to be a close friend of Asha Ram, would not inform Asha Ram about the appellants' involvement in the alleged offence although, the appellant No.1 had nominated Asha Ram's real brother Raghunath as the person who had committed the alleged offence in the F.I.R. lodged by the appellant No.1 and he kept mum for ten long days on the ground that he feared the appellants who had criminal antecedents and he revealed about the said incident on the eleventh day to the P.W.-1 who was a complete stranger to him and did not inform Asha Ram about the said incident although he was his friend. It is also apparent that abrasions which have been found on the body of the deceased has not been explained by P.W.-1 in his statement or cross examination although statement of Doctor and the injury found on the body of the deceased would go to show that there were abrasions on the body of the deceased which indicated that she was dragged before she was shot. No fard of the torch of P.W.-3 was prepared by the prosecution, which itself cast a shadow of doubt on the statement given by the P.W.-2 with regard to source of light.
Perusal of the site plan, as prepared by the I.O., would go to show that same is indicative of the fact that the I.O. found urine at the place where the appellant No.1 had alleged that his wife had gone to urinate and there were also marks of dragging, which corroborated the averments as contained in the F.I.R. lodged by the appellant No.1 and there was no explanation about the same either in the statement or cross examination of P.W.-1, P.W.-2 and P.W.-3. P.W.-3 also reiterated the same set of facts as has been stated by P.W.-2 in his statement before the Court.
The prosecution version, as set out by the prosecution in the present case, do not corroborate with the medical evidence on record besides there being contradictions in the statement of witnesses of fact which does not explain certain important factors which needed explanation to conclusively prove that the appellants are the persons who had committed the alleged offence.
Learned counsel for the appellants has then submitted that in the present case only related, interested and partisan witness has been produced, though the incident is said to have taken place, where number of inhabitants are living and their houses are situated nearby but they have not been produced.
So far as the arguments regarding related and interested witness is concerned, in the case of Dalip Singh and others Vs. State of Punjab reported in AIR 1953 SC 364, it has been held that :-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts."
Observations of the Hon'ble Apex Court in the case of Masalti and others vs. State of U.P., reported in A.I.R. 1965 SC 202, are worth mentioning :-
"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how such evidence should be appreciated. Judicial approach has to be cautions in dealing with such evidence, but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
The above decision has been followed in Guli Chand and others vs. State of Rajasthan 1974 (3) SCC 698, in which, Vadivelu Thevar vs. State of Madras AIR 1975 SC 614 was also relied upon. The following observations were made by the Hon'ble Apex Court in the case of Israr vs. State of U.P. [2005 (51) ACC 113]. Para-12 of the judgment is also important, which is quoted herein below :-
".... Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible."
The above position has been highlighted again in the case of Galivenkataiah vs. State of A.P. 2008 (60) ACC 370, in which, reference has been made to some other cases also.
The Hon'ble Supreme Court in the case of State of Andhra Pradesh vs. S. Rayappa and others 2006 (1) AAR 259 (SC) dealing the evidence of related/interested witnesses, has observed as under :-
" By now it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons."
In para 8, their Lordships have further observed:
" The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased, they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously "
The concept of interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused. It is only when these elements are present, and statement of the witness is unworthy of credence that the Court would examine the possibility of discarding such statements. But where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence and the occurrence itself, it is not permissible for the Court to discard the statements of such related or friendly witnesses.
Apex Court in the case of Dharnidhar v. State of Uttar Pradesh [(2010) 7 SCC 759] took the following view :
"12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the court. It will always depend upon the facts and circumstances of a given case. In Jayabalan v. UT of Pondicherry (2010) 1 SCC 199, this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim.
In the present case while analysing the evidence of P.W.-1, P.W.-2 and P.W.-3 on the anvil of truthfulness, it is noteworthy that they are either interested witnesses or chance witnesses, whose testimony do not corroborate with the evidence on record or the medical evidence, therefore, their testimony is put under cloud of doubt.
After hearing learned counsel for the appellants, learned A.G.A. and after perusing the material on record as well as the judgment and order impugned, this court is of the opinion that the chain of circumstances is not complete which may conclusively point to the guilt of the appellants and the prosecution has failed to show that the chain of circumstances was complete, therefore, benefit of doubt is to be given to the appellants in the present case.
Accordingly, We are of the considered opinion that the prosecution has failed to prove the guilt of the appellants beyond reasonable doubt and the judgment and order of conviction impugned cannot be sustained and is liable to be set aside.
Accordingly the the judgment and order impugned is hereby set aside and the appeal stands allowed.
No order as to costs. Order Date :- 28.5.2018 faraz