Reserved on 23.09.2021 Delivered on 29.10.2021 Case :- CRIMINAL APPEAL No. - 1309 of 2010 Appellant :- Ram Kishor And Others Respondent :- State of U.P.
Counsel for Appellant :- Vikas Tiwari,Ambrish Kumar,Gaurav Singh Tomar,Pankaj Kumar Shukla Counsel for Respondent :- Govt. Advocate, Salman Ahmad
Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Mrs. Sadhna Rani (Thakur),J.
(By Justice Sadhna Rani (Thakur)) The present appeal under Section 374 (2) Cr.P.C. has been preferred by the appellants Ram Kishore, Ram Veer, Bhagwan Das, sons of Ram Sewak and Ram Karan S/o Sita Ram, assailing the judgment and order dated 09.03.2010 in Sessions Trial No. 59 of 2020 – State Vs. Ram Kishor & others arising out of Case Crime No. 195 of 2000, P.S. Rampura, District Jalaun whereby the appellants had been convicted of the offences under Sections 302 and 307 read with Section 34 I.P.C. and sentenced as follows:-
(i) to undergo life imprisonment with fine of Rs. 5,000/- each under Section 302 I.P.C. and in default in payment of fine to undergo additional six months imprisonment;
(ii) rigorous imprisonment of ten years with fine of Rs. 1,000/- each under Section 307 I.P.C. and in default in payment of fine to undergo additional one month simple imprisonment;
(iii) All the punishments are to run concurrently.
The trial had proceeded under Sections 147, 148 IPC and 3 (2) (5) S.C.S.T. Act in addition to Section 302 but all the above four accused persons were acquitted of charges under the aforesaid sections.
One of the accused Ram Lakhan s/o Ram Sewak had been acquitted of all the charges levelled against him. The acquittal orders had not been subjected to challenge.
As per the prosecution case, Sri Krishna, the real brother of the deceased Sukhdhyan lodged the first information report on 29.11.2000 at 12.10 p.m. stating therein that he was resident of Village Angdela Ki Madaiya, Police Station Rampura, District Jalaun at Orai. In the last election for the member Gram Panchayat, his nephew Veer Singh son of the deceased Sukhdhyan Singh Kori and the accused Bhagwan Das were the candidates from Ward no. 10. His nephew Veer Singh had won the election. On account of the election, Bhagwan Das and others had developed enmity with the complainant side. On 28.11.2000 at about 8.00 p.m., Vijay Bahadur s/o Nathu Ram Sharma, his brother in law Ram Veer s/o Ram Sewak along with Ram Kishore and Bhagwan Das both sons of Ram Sewak came to the khalihan of the complainant. All other accused persons were equipped with illegal guns and Country made pistols whereas Ram Lakhan @ Munne s/o Ram Sewak and Ram Karan s/o Sita Ram were carrying 'Lathi' and 'Katta'. The brother of the complainant Sukhdhyan was present there. With the intention of causing death of Sukhdhyan, accused persons had opened fire on him. Hearing the noise and sounds of firing, the complainant along with Ram Lakhan s/o Kamta, Bare Lal s/o Sukku and Shakur Khan s/o Jullu and Islam Khan s/o Muharrum Khan reached the spot armed with 'Lathi' and 'Danda' and lighting the torch and witnessed the incident. When they challenged the accused persons, they fired on them with the intention of causing their death. In the altercation, one fire hit Shakur Khan and injured him badly. Due to the fear the witnesses kept on shouting and lighting the torch. The accused persons, however, had ran away towards south after committing murder of Sukhdhyan. The victim Sukhdhyan aged about 50 years had died on the spot. His dead body was lying in the Khalihan when the complainant went to the police station to lodge the report. It was explained that because of the fear of the accused persons, the complainant could not go to the police station earlier. The injured Shakur Khan also accompanying the complainant to the police station while first information report was lodged.
After lodging the first information report, the police came into action. The injured Shakur Khan was sent to the hospital with majrubi chitthi. After preparing inquest report the dead body was sent for the post mortem along with the necessary document. Blood stained and plain earth were collected from the spot. The soil along with the clothes of the deceased were sent to the Forensic Science Laboratory for examination. The Circle Officer Ravi Shanker Mishra (P.W. 7) investigated the case up to the paper no. 10 of the Case Diary and after that Circle Officer Nepal Singh took over the investigation. After completing all the formalities with arrest of the five accused persons except Vijay Bahadur, charge sheet under Sections 147, 148, 302, 307 I.P.C. and 3 (2) (5) S.C. S.T. Act was submitted by the Investigating Officer.
Before framing the charges, the accused Vijay Bahadur was said to have murdered in the village. So the case against him stood abated. The trial Court framed charges under Sections 147, 148, 302/149, 307/149 I.P.C. and 3 (2) (5) S.C. S.T. Act on 30.05.2002 against all the remaining accused. All the accused persons denied the charges and demanded trial.
In support of its version, the prosecution had produced as many as 08 witnesses. As for the documentary evidences, written complaint of the complainant (Ext. Ka-1), inquest report (Ext. Ka-2), injury report of injured Shakur Khan (Ext. Ka-3), post mortem report of deceased Sukhdhyan (Ext. Ka-4), Chik FIR (Ext. Ka-5), copy of G.D. (Ext. Ka-6), letter to R.I. (Ext. Ka-7), letter to C.M.O. (Ext. Ka-8), photo of the dead body (Ext. Ka-9), challan of the dead body (Ext. Ka-10), memo of recovery of blood stained and plain soil (Ext. Ka-11), site plan (Ext. Ka-12), charge sheet (Ext. Ka-13) and FSL report (Ext. Ka-14) were produced. The clothes of the deceased as material Ext. 1 to 4, blood stained and plain earth as material Ext. 5 and 6 were also produced.
After recording the statement under Section 313 Cr.P.C. of all the five accused persons, defence evidence of Smt. Kali wife of the injured Shakur Khan as D.W. 1 and that of Ram Das as D.W. 2 were recorded.
On conviction of the four accused persons the appeal has been preferred on the following grounds:-
(a) The impugned judgment and conviction order dated 09.03.2010 is absolutely illegal having been given on wrong interpretation of the evidence on record. Medical evidence do not corroborate the prosecution case. No independent witness had been produced. There are several contradictions in the oral evidence. The incident had occurred outside the village in the dark night where there was no source of light. The presence of the alleged witnesses was improbable and also doubtful. Admittedly, there was enmity between the parties and as such false implication of the accused persons cannot be ruled out. The trial court had ignored the version of the defence witnesses. The entire area of District Jalaun especifically the place of occurrence was a declared dacoity effected area there was every possibility of the incident having been committed by some unknown dacoits during the night hours. The accused persons had no motive to commit the murder. On the basis of same evidence, the learned trial court had acquitted the co- accused Ram Lakhan who was assigned the identical role and convicted the appellants. This fact itself vitiates the entire prosecution case. The appellants had no previous criminal history. They are all members of one family and had been implicated to eliminate the whole family. The appeal, thus, deserves to be allowed and the impugned judgment/conviction order dated 09.03.2010 be set aside.
We have heard Sri Ambrish Kumar, learned counsel for the appellants and learned AGA for the State-respondents.
This is an admitted fact that in the incident in question the death of Sukhdhyan was caused as a result of the fire arm injuries. One Shakur Khan was also stated to be injured who had died of the natural death during trial. One of the accused Vijay Bahadur is also reported to have been murdered in the village during the trial. All the parties were residents of the same village. As the death of Sukhdhyan had been admitted and there is no dispute regarding the place of the incident, there is no objection to the reports of Forensic Science Laboratory.
The contention of the counsel for the appellants is that the first information report is ante time which is evident from the fact that the Chitthi majroobi and inquest report do not bear the case crime number.
Further, the incident had occurred at 8.00 p.m. on 28.11.2010 but the first information report was lodged the next day, i.e. on 29.11.2010 that too at 12.10 noon. This inordinate delay is without any explanation. The post mortem report does not bear the description of the police papers.
The timing noted for lodging the first information report and the preparation of the inquest report is at about 12.10 p.m. which is not possible. Shakur Khan was said to have been injured in the incident at 8.00 p.m. on 28.11.2010 but his medical examination was done at about 11.00 p.m. on 29.11.2010. The injuries sustained by the injured Shakur Khan were fire arm injuries and were serious in nature and could be fatal. It cannot be accepted that he would wait till the afternoon to go to the police to get himself examined. The fact that the injured was not taken to the hospital immediately shows the falsing of the prosecution case and makes it evident that the injured was planted only to add weight to the prosecution story. In fact there was no eye witness and the injured being on the spot or challenging the accused was not proved. The wife of the injured had deposed in favour of the accused. From the spot, no empty cartridges/bullets had been recovered, neither the alleged weapon used in the incident had been recovered by the police. As per the case of the prosecution, bajra was lying on the spot but no blood stained bajara had been seized from the spot. There was no source of light and the alleged torch had not been seized by the police so as to prove the prosecution version of the presence of the witnesses on the spot. In the evidence of the witnesses there is material contradiction. In a feeble argument, it is stated that the site plan does not tally with the actual place of the occurrence. The distances have not been mentioned in the site plan. The places from where the witnesses had witnessed the occurrence and the places where the accused and the deceased were standing at the time of occurrence have not been shown in the site plan.
Learned AGA , on the other hand, argued that the prosecution had produced eye witnesses of the incident, who had fully supported the prosecution case. All the formal witnesses had proved the documents prepared by them. There is no material discrepancy in the statement of the eye witnesses. The minor discrepancies in the statements of the witnesses are natural to occur due to lapse of time. Hence, the judgment of the trial Court deserves to be confirmed and the appeal is liable to be dismissed.
Out of the total 8 witnesses, three are the witnesses of fact. PW-1 Islam Khan had not supported the prosecution case and had been declared hostile but nothing helpful to the prosecution had come in his cross examination.
Rest of the two witnesses, i.e. PW 2 Sri Krishna, the first informant and PW 3 Bare Lal S/o Sukhu, both the eye witnesses of the incident, whose names exist in the first information report itself had supported the prosecution story.
PW 4 is the doctor, who had proved the injury report of Shakur Khan and the post mortem report of the deceased Sukhdhyan.
Dr. Chandel, who had conducted the post mortem on the body of Sukhdhyan had died and hence PW 4 Dr. D.K. Yadav who was posted with Dr. Chandel had proved the post mortem report being in the hand writing of Dr. Chandel.
PW 5 is the scribe of the chick FIR and G.D. PW 6 had prepared the inquest report and its supporting documents. PW 7 and 8 are the Investigating Officers. All the formal witnesses had proved the documents and materials produced by them. The injuries found on the person of Shakur Khan (the injured) are:-
“(I) Fire arm wound of entry. Lacerated wound on anterior side of rt. Hip joint size 1.5 cm x 1 cm Blackening all around wound present. Bleeding present (clotted blood) margin inverted.
(II) Fire arm wound of Exit. lacerated wound on medial side of rt. Gluteal region size 2.5 cm x 1.5 cm Clotted blood around the wound is present. Margins everted.”
In the post mortem report of Sukhdhyan the following injuries are reported:-
1- Lacerated wound 2.5 cm x 1 cm x scalp deep on back on Mid of occipital area.
2- Abrasion 13 cm long & 1 cm. wide on front left side of Abdomen at the level of umblicus and medial end and reaching upto …...
3- Abrasion obliquly situated on Rt side of inner border is reading upto mid of injury no. 2.
4 Firearm wound of Exit 0.5 cm x 0.5 cm x deep on front of chest on mid- line at the level of nipple, margins everted.
5- Multiple fire-arm wounds of Exit on front domimon on Rt side, one is below umblicus & one above umblicus. Rest on Rt side size 0.5 cm x 05 cm x Cavity deep margine everted.
6- Multiple firearm wounds of entry on (whole & back) starting from the neck to the level of post …., margins are inverted. Abrasion around the wound but no blackening and no tattoing
7- Abraded contusion 5 cm x 2 c behind the ear on left side.
The cause of death is shock and haemorrhage as a result of ante- mortem fire arm injuries.
It is denied in defence that the death was not caused nor the injuries were inflicted by the accused persons. It is stated that the entire area was a dacoity affected area. There was strong possibility that some dacoits had committed the murder in the night and the accused had been implicated falsely due to enmity.
In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject the evidence which is ex-facie trustworthy on grounds which are fanciful or in the nature of conjectures.
The appellants' counsel has vehemently argued that the first information report is an Ante-time report. It is contended that as the doctor despite of mandatory provision did not mention any police paper in the post mortem report, this indicates that the first information report was not lodged till the preparation of the post mortem report. On perusal of the post mortem report appended at page-'7' of the paper book, we find that though the separate description of papers received by the doctor from the police station has not been made therein but in the array of the report/dispatch of sealed cloth bundle along with 8 police papers signed by the doctor is very well mentioned. This endorsement on the post mortem report nullifies the objection raised by the appellants' counsel and fulfills the mandatory provisions of the law.
It is also argued by the counsel for the appellants that mazroobi chitthi does not contain case crime number which again indicates that till time of the post mortem the first information report had not been lodged. A perusal of the mazroobi chitthi appended at page – '8' of the paper book indicates that no case crime number has been mentioned in it. Testing the same we may note that it is the general practice that as soon as the incident is reported the injured person is immediately send for the medical help. It is the rule of prudence also that to save the life of an injured is more important than to invest time in lodging the first information report first. Thus, the above argument of appellant counsel has no force.
Appellants' counsel further submitted that the first information report was lodged with inordinate unexplained delay. The prosecution took time to lodge the first information report as it was not sure as to who was the real assailant or the complainant wanted to conceal the identity of the real assailants for the reasons best known to him. The prosecution cooked up the story in order to implicate the accused persons out of the enmity. The first information report was a result of deliberation and concealment of the true facts by the family members of the deceased.
A perusal of the first information report appended at page – '2' of the paper book reveals that the incident took place at about 8.00 p.m. on 28.11.2000, while the first information report was registered at 12.10 p.m. on 29.11.2000 i.e. after about 16 hours of the incident. In the chik FIR itself the distance between the spot of the occurrence and the police station is shown to be about 14 kms. In the first information report, it is mentioned that because of the fear of the accused persons the complainant could not go to the police station during night hours. P.W. 2 the first informant and brother of deceased Sukhdhyan had stated in his examination in chief that the incident occurred in the night and he went to the police station in the morning after arranging a tractor for carrying the injured. In the cross examination again he had stated that he could not go to lodge the first information report in the night as his brother was murdered and he had fear of his life and the way to the police station was through the forest and the village is in the dacoity affected area. In his cross examination it has come that to lodge first information report he had started from his village at about 6 O'clock in the morning and reached at the police station at about 12 noon. He purchased the paper from the market far away from the police station and then got the report scribed to register. He then stated that from his house he started on foot.
There is no dispute that the distance between the place of occurrence and the police station is about 14 kms; the incident occurred in the winter night of 28.11.2000 at 8.00 p.m. in the open fields of the village, which is the declared dacoity affected area. One person was murdered in the incident and another got injured. So the fear in the mind of the complainant was natural. Again the complainant stated that he started from his village at 6.00 in the morning on foot. He had to arrange two vehicles one for carrying the dead body and the other to carry the injured from the village to the police station, which was quite time consuming. The complainant had to cross the river (without bridge) to reach the police station. It is argued from the appellant side that there was a temporary bridge on the river but nothing could be produced to prove the said assertion. Thus we may record that it might be risky and dangerous to cross the river in the absence of any bridge on it during night. Further the complainant had to arrange paper for writing the first information report from the market which was far from the police station. Six hours taken by the complainant to reach the police station from the village to lodge the first information report has been explained to the satisfaction of the Court. The alleged delay in lodging the first information report, thus, has been well explained.
It is then argued that the witnesses produced by the prosecution were all interested witnesses. No independent witness had been produced. The only independent witness PW-1 Islam had not supported the prosecution version, who had been declared hostile by the Court. We may record that nothing discriminatory has come in the cross examination of PW-1. PW-2 is admittedly the brother of the deceased Sukhdhyan but no relationship of the complainant/deceased with PW 3 had been proved. It is also contended that the family members of the injured had not lodged any first information report. In our opinion, when one first information report had been lodged regarding the incident there was absolutely no reason/occasion to file a second first information report relating to the same incident by the wife or the relatives of the injured.
The first information report states that hearing the alarm and sounds of firing, the complainant along with Ram Lakhan, Bare Lal, Shakur Khan and Islam had reached at the spot. Shakur Khan is said to have been injured during the occurrence, which proves his presence on the spot. Though, Islam Khan PW 1 had not supported the prosecution case but at the same time Bare Lal mentioned as witness in the first information report had been produced by the prosecution as PW 3. It is the case of the prosecution from the stage of the first information report itself that the complainant/PW 2 and Bare Lal/PW-3 had witnessed the incident. Only because of the fact that PW 2 is the brother of the deceased Sukhdhyan his evidence cannot be discarded.
Hon'ble Apex Court in the case reported in (2013) 3 SCC (Crl.) 498 – Kanhaiya Lal and others Vs. State of Rajasthan and (2015) 2 SCC (Crl.) 624 – Gurjit Singh @ Gora and another Vs. State of Haryana has held that even if a witness is termed as the interested witness but if he is found to be intact and reliable, his evidence cannot be discarded solely on the ground that the witness is related to the appellant. Only requirement is that the Court shall appreciate his evidence with adequate caution. Moreover, in the villages it is not easily possible to get the independent witness of a murder especially when the accused were reported to be of criminal bend. PW 3 in his examination in chief had deposed that the accused persons are dacoit type persons. Only because PW 2, the first informer, is the real brother of the deceased, this cannot be a ground to discard his testimony.
Admittedly, the injured Shakur Khan had died long after the incident in a natural death, but he could not be produced in the Court. In his statement under Section 161 Cr.P.C. he had supported the prosecution version. From the first information report, it is stated that the complainant and witness Shakur Khan along with other villagers had reached the spot after hearing the alarm of the deceased and sounds of firing. PW 2 and PW 3 had supported the prosecution version in their statement. PW 2 has stated that from the place of occurrence from his village is only 50 meters away. Again in his cross examination on 08.08.2007 he has stated that the khalihan (field) is 50 meters away from the village abadi. The counsel for the appellants by mentioning that PW 3 has stated this distance to be 200 meters contends that there is material contradiction in the version of the prosecution witnesses. If we go through the evidence of PW 3 at page-'4' in his cross examination, he has stated that the 'house of the accused persons' is 200 meters away from the spot of occurrence. This distance of 200 meters, thus, cannot be said to be distance of village from the place of occurrence. It is also mentioned in the statement of PW 3 that after khalihan (field) first house is of Sukhdhyan. PW 2 has also stated that his house is towards the east of the village before Aabadi starts. It makes clear that the house of the witness PW 2 and that of deceased Suhdhyan are on the outer of the village towards the place of occurrence and the distance in between village Abadi and khalihan is only 50 meters. It is the statement of both the witnesses that at the time of the incident they were at their house and after hearing the alarm and sounds of firing they ran towards the spot carrying lathi, danda and torch. The distance between the place of occurrence and the house of PW 2 makes the presence of the complainant and witnesses highly probable on the spot. Further the deceased Sukhdhyan did not die by the single shot of firing, lacerated wound and abrasions on his person also makes it clear that he had enough time to raise alarm before his death. Hearing his alarm and the sounds of firing his real brother and other witnesses from the village reached at the spot.
Though, it has come in the evidence of PW 2 and 3 that on the day of the incident the accused persons equipped with weapons mentioned in the first information report were passing through the village and they heard them talking about the murder of Sukhdhyan and this version of the witnesses can be said to be an improvement as there was no such mention in their statement under Section 161 Cr.P.C. but in our view it is the human nature to exaggerate the fact and it is the duty of the court to clear the grain from the chaff and reach at a just possible conclusion. Walking of the accused persons through the village talking about the murder of Sukhdhyan does not sound to be natural also. But at the same time, PW 2 in his cross examination has admitted that he lodged the first information report with the version that at the time of incident he was at his house. PW 3 has also admitted in his cross examination that he did not state to the police that he was sitting before the bonfire at the time of incident. The injury on the person of Shakur Khan proves his presence on the spot.
In our opinion mere exaggeration on one or two facts would not make the whole statement of the witnesses untrustworthy.
The next argument from the appellant side is that there was no motive for the accused persons to commit the incident. As per the prosecution the appellants had committed this incident because the appellant Bhagwan Das was defeated by the nephew of the PW 2 Veer Singh in the election for the member of Gram Panchayat. As per the appellants counsel this was not so big issue to commit murder because the appellant Ram Kishore was elected as Gram Pradhan.
Here the accused counsel had tried to mislead the Court. The enmity alleged is regarding the election of membership of Gram Panchayat held in June, 2000, just five months before the incident and in that election admittedly, the nephew of the complainant PW 2, son of deceased Sukhdhyan had won. The appellant Ram Kishore was not the elected Gram Pradhan at the time of the murder. His subsequent election in the year 2007 as Gram Pradhan as is clear from the record, has no relevance.
So far as the evidence of DW 2 is concerned, he has only stated that the accused persons were not amongst the persons, who committed the offence. He has made a hypothetical statement that 'अंदाज से कह सकते है िक मारने वाले बाहरी वयिक थे वह अलाव ताप रहा था उसी की रोशनी मे देखा था।' By this statement it can be said that he could not recognise the assailants. At the same time his statement was not recorded by the Investigating Officer during investigation. For the first time he had deposed before the Court so it can be accepted that DW 2 had proved that the incident was committed by the dacoits.
The motive to commit the crime is stated to be enmity which started with the election of son of deceased. It is settled that enmity is a double aged weapon which may cause one party can commit the offence the other party to implicate them falsely too. If enmity is alleged and proved, the Court has to assess the evidence very carefully. The weight of the evidence, the trustworthiness of the witnesses is a relevant factor for reaching at the just conclusion.
The defence had also alleged that the daughter of Banwari and son of the deceased were having affairs and they had eloped together which had resulted into enmity of Banwari with the deceased and that was the reason of the murder. PW 2 in his statement had denied that the daughter of Banwari was lured and enticed away by his nephew. He denied having no knowledge of the daughter of Banwari having been eloped from her house. Again this witness has denied the suggestion of the defence counsel that the murder of his brother relates with the elopement of Banwari's daughter. In this respect PW 3 has stated that son of Brij Lal ran away along with daughter of Banwari, but he had denied the enmity of Banwari and Brij Lal because of the incident.
It is admitted fact that the deceased Sukhdhyan and Brij Lal above were the real brothers and if the son of Brij Lal was behind the elopement of daughter of Banwari then the enmity would be with that of Brij Lal or his son but not with Sukhdhyan (deceased). So the defence story that Banwari could have murdered Sukhdhyan is ruled out and if it was so, then there was no reason before the prosecution to spare Banwari Lal the real culprit.
It is also argued from the appellant side that the daughter of injured Shakur Khan was molested by the accused Vijay Bahadur regarding which brother of Shakur Khan had lodged the first information report. Because of this enmity, the complainant implicated the accused persons. In this regard, PW 3, though, has admitted in his examination in chief that accused Vijay Bahadur had molested the daughter of Shakur Khan (injured) but neither Shakur Khan nor his family members had lodged the present first information report. At the same time, it is also not the case of the appellants that the complainant was having any enmity with accused Vijay Bahadur. Thus, the implication of Vijay Bahadur on the ground of enmity with Shakur Khan is ruled out.
It is further argued from the appellants' side that the deceased was an informer of the police and this fact might have resulted in his murder. The accused persons have not produced any evidence in this regard and PW 2 in his evidence has refused any such suggestion.
It is vehemently argued by the counsel for the appellants that the area is a dacoity affected area so some dacoits might have killed Sukhdhyan and injured Shakur Khan and the complainant implicated the appellants on account of enmity. Though, PW 2 has accepted that the area was a declared dacoity affected area but has clearly refused the suggestion of the accused counsel that his brother was murdered by some dacoits or notorious persons and because of their fear he did not lodge the first information report and implicated the accused persons due to enmity.
PW 3 has also accepted the village to be dacoity affected area but has denied the suggestion of the accused counsel that some unknown person or any notorious person murdered the deceased. PW 7, the first investigating officer has also stated in his evidence that the place of occurrence is a dacoity affected area, but no evidence from the accused side had been produced to prove their story that the murder was caused and injuries were inflicted by some dacoits or notorious persons. Both the eye witnesses had refused the suggestion regarding the same and clearly stated that the accused persons committed the crime in their presence. The accused persons neither in their statement under Section 313 Cr.P.C. have stated the fact that this incident was caused by some dacoits or unknown person nor any such suggestion has been given to PW 3.
Moreover, if the incident was committed by the dacoits then why they did not rob the deceased. At the same time, for the dacoits it was convenient to commit robbery in the houses of the villagers rather to go to khalihan/field of the deceased to rob him. DW 1 though in her chief examination has stated that the dacoits had committed murder of Sukhdhyan and injured her husband when they had confronted them but in the cross examination this witness, who happens to be the wife of injured Shakur Khan has clearly denied her presence on the spot at the time of incident. Further, she has admitted that she remained inside her house and performed house-hold work during incident and did not go anywhere. Admittedly, this witness had been produced for the first time before the Court. She did not report the incident of Dacoity nor had come forward during investigation to disclose the genesis of the incident during the lifetime of her husband. Her version in the Court is in clear contradiction to the version of her husband before the police recorded during investigation. In the above circumstances her testimony is not trustworthy.
It is further contended by the appellant counsel that there was no source of light on the spot and it was the winter night and as such at 8.00 p.m. there was no possibility of the assailants being recognised by the witnesses. It is true that the torches had not been seized by the Investigating Officer and it has come in the evidence of the complainant, PW 2 that he did not show the torch to the Investigating Officer but from the very beginning i.e. before the investigation started, in the first information report itself it has come that hearing the alarm (of the deceased) and sounds of firing the complainant and the witnesses ran towards the spot, armed with lathi, danda and lighting the torches. PW 3 in his examination in chief has stated that at the time of occurrence the accused persons and witnesses both were lighting the torches. Though, PW 2 the complainant has stated in his cross examination that there was no light where his brother, Sukhdhyan was lying. But according to the complainant the place where deceased Sukhdhyan was lying was without light but not where the incident took place. Incident took place away from the place where the deceased was lying. In the first information report and the statement of PW 3 clear mentioning of torch has come. When this fact of witnessing the incident in the torch light is mentioned in the first information report and had come in the evidence of PW 3, the mere fact that the Investigating Officer did not seize the torches cannot make the testimony of the eyewitnesses unworthy. It can be flaw on the part of the Investigating Officer but this fact by itself is not fatal to the prosecution story. Moreover, the coordinate bench of this Court in the case reported in 2015 (90) ACC 435 (Ram Manohar Vs. State of U.P.) has held that where both the parties belong to the same village and familiar to each other, they can easily recognise each other even during night, in the dark. Thus, even the absence of torch/source of light cannot spare the accused persons, because admittedly both the parties were the residents of same village at the time of the incident and familiar with each other. They could very well recognise each other in the night on the basis of their movements and voices. This objection of the accused counsel is, thus, liable to be turned down.
Placing the deposition of the PW 2 and 3 it is further contended by the learned counsel for the appellants that there are material contradictions in the statement of these witnesses. As the whole prosecution case rest on the evidence of these two witnesses only, the contradictions in their evidence makes their evidence unworthy. The contradiction is about the distance of village to the place of occurrence from the village as noted above.
Learned AGA has placed judgment (1981) 2 SCC 752 (State of Rajasthan Vs. Smt. Kalki & another) wherein it has been held by the Apex Court that “natural witness cannot be said to be interested witness.
Moreover in the deposition of the witnesses there are always normal discrepancies, however, honest and truthful they may be. These discrepancies are due to normal errors of observation, errors of memory due to lapse of time, due to mental deposition such as shock and horror at the time of occurrence and the like. Material discrepancies are those which are not normal and not expected of a normal person.”
If we go through the cross examination of PW 2 appended at page – '17' of the paper book, he has stated that the distance of place of occurrence from the village is 50 meters whereas the PW 3 in his evidence has stated that the distance of the house of accused persons from the place of occurrence is 200 meters. This cannot be said to be a contradiction at all because PW 2 has mentioned the distance of 50 meters from the village to the place of occurrence whereas PW 3 has mentioned 200 meters distance between the house of the accused persons and the place of occurrence. So, the two figures are the distances of different places, which cannot be confused with. Thus, the argument of the appellant counsel in this regard is found misconceived and hence turned down.
Learned counsel for the appellants lastly pointed out another contradiction that PW 3 admitted that his village was dacoity affected area where the dacoits usually passed while the PW 2 had not admitted this fact.
If we go through the evidence of both the witnesses in this regard, it is true that PW 3 had admitted the fact of the village being dacoity affected area. PW 2 has also accepted the same in his statement by saying that his village was dacoity affected area but he had refused to see the dacoits roaming in that area. The argument of the appellant counsel that there is contradiction in the evidence of PW 2 and 3, thus, becomes wrong.
The appellant counsel has further pointed out the contradiction in the statement of PW 2 that he stated that they were going to the police station on foot whereas the PW 3 has stated that they reached the police station by Massi tractor. If we go through the statement of PW 2, he has stated that from the village he started at 6.00 a.m. for lodging of the first information report. In the same paragraph he has stated that he started from his house on foot not by tractor but made it clear that in the morning after arranging the tractor he went to the police station for lodging of the first information report along with injured Shakur Khan and villagers Islam Khan and Mumtaj etc. This shows that from his house, PW 2 started on foot but from the village he managed a tractor and went to the police station along with the injured and other persons by this tractor. PW 3 in his statement, though has not mentioned anything regarding any conveyance but PW 5 the Constable who registered the Chik FIR has mentioned in his statement that the complainant had come to the police station by tractor along with his companions. Thus, again the statements of PW 2 and PW 3 cannot be said to be contradictory.
The last contradiction placed before this Court by the appellant counsel is that PW 2 has denied the fact of the love affairs between the daughter of Banwari and nephew of PW 2 namely Suresh whereas PW 3 has admitted that the daughter of Banwari and nephew of PW 2 had performed love marriage against the will of Banwari and lived in the village and this fact was dangerous for the Banwari. If we go through the evidence of both the witnesses, PW 2 in his statement has denied that the 'daughter of Banwari had been enticed away by his nephew and eloped with him.' He has shown ignorance regarding the fact of elopement of the daughter of Banwari. PW 3 in his statement has admitted that 'the daughter of Banwari was enticed away by Suresh s/o Brij Lal.' The statement of ignorance or denial cannot be said to be a contradiction as a witness cannot be compelled to admit any fact.
Learned counsel for the appellants has also challenged the accuracy of the site plan by arguing that neither the distances are mentioned in this site plan nor the place of presence of the witnesses, injured or the deceased had been fixed. If we go through the site plan, it is true that the distance from place A to B, B to C, C to D or D to E have not been mentioned in it, but the Investigating Officer has marked the places of the presence of the deceased/injured accused persons /witnesses. By alphabet 'A' the place where Sukhdhyan was shot dead and his dead body was found lying has been shown. By alphabet 'B' the place has been shown from where the accused persons shot at the deceased and the injured Shakur Khan. By the alphabet 'C', the place is shown from where the complainant and the witnesses had witnessed the incident. By the alphabet 'D', the place is shown where the injured Shakur Khan fell down after receiving gun shot injury. Thus, though the distances are not shown by the Investigating Officer but the place of every activity of the parties has been well shown in the site plan. So the argument that the site plan suffers from infirmity fails.
It has also been argued that the firing had been shown at the alleged spot but no empty cartridges had been collected from the place. Neither the torch had been seized by the police nor the murder weapons had been recovered by the Investigating Officer. It is also contended that as the deceased was said to have been lying on the Bajara at the time of the incident, no blood stained Bajra had been collected by the Investigating Officer, This makes the place of the incident suspicious. It is true that the empty cartridges and weapons used in the incident had not been recovered and torches or blood stained bajara had not been seized by the Investigating Officer but the death of the deceased and injury of the injured could not be denied by the appellants counsel. Only this much is contended that the offence was not committed by the accused persons. By raising above objections, it is claimed that the place of occurrence is not same which has been shown in the site plan. The post mortem report of the deceased and the injury report of the injured have been proved by the concerned doctor. The injuries of Shakur Khan are found to be caused by the fire arm. At the same time, the death of the deceased Sukhdhyan is also found to be result of ante- mortem fire arm injuries. If the empty cartridges had not been recovered from the spot or the police did not recover the fire arms used in the incident, this flaw on the part of police cannot mitigate the guilt of the accused persons especially when there is clear cut unshaken evidence of the eye witnesses against them.
Hon'ble Apex Court has held in (2015) 2 SCC 734 (Inder Singh and others Vs. State of Rajasthan) that there is no reason to doubt the prosecution case if the Investigating Officer fails to recover the pellets from the open fields, which was the place of occurrence or if he could not obtain a ballistic report.
It is the case of prosecution that when the accused persons had reached on the spot, deceased Sukhdhyan was lying on the bajara crop but as per the witnesses and site plan also he was shot dead a little away from the place where bajra was lying. As the deceased had sustained both lacerated and fire arm injuries it shows that at the time of the assault as a natural reaction of saving his life the deceased had run from the place where he was lying and he was shot dead at a little distance. Thus, there was no occasion for the police to spot blood on the bajara crop, where the deceased was said to have been lying.
Lastly, in a feeble argument the appellants counsel has submitted that the accused persons were five in number but the injured Shakur Khan had sustained only one injury. Single injury does not justify the presence of five persons on the spot.
It is clear from the evidence that Sukhdhyan was the only prey of the accused persons. The injuries sustained by the deceased are on the vital parts. The weapons assigned to the accused persons prove that the common intention of the accused persons was to commit murder of the deceased when they reached at the spot armed with deadly weapons and shot at the deceased Sukhdhyan. The complainant and the witnesses reached there and challenged them. The accused persons just to resist them and escape had fired towards them which had resulted in causing injuries to Shakur Khan. So the above argument to dispute the presence of the injured cannot be sustained.
It is also contended by the appellant counsel that the first information report has been registered at 12.10 p.m. but the medical report of the injured Shakur Khan had been prepared at 7.30 p.m.. There is no explanation of this inordinate delay. If we go through the Majroobi Chitthi present on the record, it contains the endorsement by R.S. Chandel, Pharmacist, PHC, Rampura that the Medical Officer in-charge was out of station, so the injured was referred to the District Hospital, Orai for the treatment. This endorsement had been made at 7.50 p.m. and at the District Hospital, Orai the injured was examined at 11.00 p.m. In the injury report the injuries are shown to be about one day old. The post mortem report prepared at about 2.00 p.m. on 30.11.2000 shows the death was caused about 1-3/4 day back. Thus the time of both the death and injury tally with the time of the incident disclosed by the prosecution i.e. 8.00 p.m. on 28.11.2000. As the first information report was lodged at about 12.10 p.m. on 29.11.2000 and at the same time the injured was sent to the hospital with the concerned Constable for medical, who took him to PHC Rampura whatever time from 12.10 p.m. to 7.50 p.m. or 7.50 p.m. to 11.00 p.m. was taken during the medical examination, the injured was with the police personnel. This time can be said to have been spent as the journey period or also in waiting for the doctor. Anyway, the alleged delay after 12.10 p.m. cannot be said to be delay on the part of the complainant and as such the accused persons cannot take benefit of the wrong, if any, of the police.
Though the appellants' counsel has also challenged the conduct of the prosecution by saying that as the deceased was not provided immediate medical help so he died due to excessive bleeding but from the first information report and the statement of both the eye witnesses, it is evident that Sukhdhyan had died instantly after receiving fire arm injuries.
It is also argued that sons and wife of the deceased or the injured did not try to lodge the first information report because they knew that it was a blind murder. In our opinion this argument of the appellants counsel is not sustainable as once the witnesses had lodged the first information report of the incident.
Learned counsel for the appellants has lastly placed reliance on the judgments:-
1. Criminal Appeal No. 4122 of 2015 (Gulshan alias Mekedam Singh Jatav Vs. State of U.P.)
2. Criminal Appeal No. 6583 of 2004 (Karan Singh and another Vs. State of U.P.)
3. Criminal Appeal No. 1875 of 2007 (Shesh Narain Vs. State of U.P.)
4. Criminal Appeal No. 3102 of 1983 (Bachchu and others vs. State) In our opinion all the above judgments are distinguishable in the facts of the case. As each criminal case has to be decided on its own facts and on the basis of the particular facts in those cases the Courts had reached at the conclusion therein, no benefit can be derived by the appellants.
In the present appeal, as the guilt of the appellants has been established by the prosecution beyond reasonable doubt and the judgment of the lower court is a well discussed decision, we do not find any cogent reason to interfere in it.
Accordingly, we uphold the conviction and sentence awarded to the appellants by the trial court. The appeal is hereby dismissed.
The office is directed to send back the lower court record along with a certified copy of this judgment for information and necessary compliance.
The compliance report be furnished to this Court through the Registrar General, High Court, Allahabad.
Order Date :- 29th October, 2021 gp