Allahabad High Court
Rameshwar And Others vs State Of U.P. on 16 January, 2013
Author: Rakesh Tiwari
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
RESERVED
Court No. - 35
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. 2028 of 1999
1. Rameshwar s/o Bante Lal
2. Radhey Shyam s/o Bante Lal all residents of village Narain Pur, P.S.
3. Ram Vir s/o Rameshwar Subhash Nagar, Bareilly.
4. Babu Ram s/o Ram Bharose
...............Appellants
versus
State of U.P. .......... Respondent
Counsel for appellants: Dr. Arun Srivastava
Counsel for respondent: Sri Syed Ali Murtaza, Brief Holder and Sri R. Y. Pandey, AGA
Hon'ble Rakesh Tiwari, J.
Hon'ble Anil Kumar Sharma, J.
(By Justice Anil Kumar Sharma) Challenge in this appeal is to the judgment and order dated 12.08.1999 passed by 10th Additional Sessions Judge, Bareilly in S.T. No. 571/1998, under section 302/34 IPC (Crime No. 118 of 1997), P.S. Subhash Nagar, District Bareilly whereby each appellant had been convicted u/s 302/34 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 10,000/- with default stipulation.
2. Facts germane to the appeal are that on 08.03.1997 at about 7.00 P.M. complainant Nand Ram s/o Parmeshwari, resident of village Narain Pur, P.S. Subhash Nagar, District Bareilly submitted a written report in P.S. Subhash Nagar, wherein he stated that in the year 1995 election of village Pradhan took place between his father Parmeshwari and Rameshwar in which the later was defeated. On 08.03.1997 Parmeshwari along with co-villagers Sita Ram, Shyam Charan, Ram Chandra and complainant was returning from Kargaina after getting his clothes stitched and when they reached on the culvert near the village at about 5.30 P.M., accused Rameshwar armed with pharsa and Babu Ram, Ramvir and Radhey Shyam taking country made pistol in their hands intercepted him and said that they would teach him lesson of being Pradhan of the village. The report further stated that sharing common intention accused Rameshwar assaulted Parmeshwari with farsa saying that he should not be spared and the other accused fired shots from country made pistols causing injuries to him. He instantaneously died at the spot. The complainant further stated that the incident was witnessed by him and aforesaid witnesses. On the basis of this report case crime no. 118/97, under section 302 IPC was registered at P.S. Subhash Nagar, investigation whereof was entrusted to SI D. P. S. Tomar. The sub-inspector reached at the spot and conducted inquest proceedings from 8.00 P.M. onwards and sent the dead body in sealed cover along with usual papers for autopsy.
3. Dr. M. L. Sharma conducted post mortem examination of the deceased on 09.03.1997 at 2.00 P.M. He found that the 45-years old deceased was having average built body with muscularity. Rigor mortis was passing off from upper extremities but was present in lower extremities. Abdomen was slightly distended. He found the following ante mortem injuries on his person:
1. A fire arm wound of entry 5 cm x 4 cm x chest cavity deep on front (R) side root of neck in supra-clavicular region 13 cm above (R) nipple at 1 O' clock position, clavicle is fractured scorching, tattooing is present, margins irregular and inverted. Apical lobe of lung with major vessels of Neck are lacerated.
2. A fire arm wound of exit at (R) posterior axillary fold at its top communicating to injury no. 1. It is 1.5 cm x 1 cm x communicating to injury no.1 deep in size margins are everted.
3. Incised wound at middle of forehead upper part 2.5 cm x 1 cm x bone deep bone cut margins are clean cut frontal bone cut.
4. Incised wound 2 cm x 1 cm x bone deep on middle of nose. Nasal bone cut transversely.
5. Abrasion 1 cm x 0.5 cm on (L) side forehead just above eyebrow.
6. Incised wound 1 cm x 0.5 cm x muscle deep on (R) side abdomen just outer to umbilicus.
7. Incised wound 2 cm x 0.5 cm x muscle deep on (L) side back of head 11 cm behind (L) ear.
8. Abrasion at back of shoulder (R) 2 cm x 0.5 cm at its top.
9. Incised would 1 cm x 0.5 cm x muscle deep on the side of (R) wrist joint.
In internal examination the doctor found that right clavicle, right pleura, right lung, right side neck blood vessels were lacerated. Both chambers of the heart were empty. 150 grams semi-digested food was found in the stomach. The intestines contained faecal matter and gases. In the opinion of the doctor the deceased suffered death due to comma, shock and haemorrhage on account of ante mortem injuries. After inquest the investigation was taken over by S.O. Shri Prakash Arvind who interrogated the witnesses on 09.03.1997, and after inspecting the spot prepared site plan. The investigation culminated in charge sheet against the accused persons.
4. After committal of the case to the Court of Session the prosecution examined Nand Ram as PW-1, eyewitness Ram Chandra PW-2, Shyama Charan PW-3, Sita Ram PW-4, Panch-witness Vikram Singh PW-5, Dr. M. L. Sharma PW-6, Constable Dinesh Pal Singh PW-7 and S.I. D.P.S. Tomar PW-8.
5. In their separate statements under section 313 Cr. P. C. the accused persons have again denied the entire prosecution story. Accused Rameshwar has stated that about a year ago Daya Ram son of accused Radhey Shyam was killed in which deceased Parmashwari and his other family members Raja Ram, Sulkhan, Babu Ram and Janaki are facing trial in the Court. It has been further stated by him that in the village his opposite party was supported by Block Pramukh Chaudhari Lakhpat Singh and due to his pressure police has falsely implicated them in the case. The accused persons, however, did not adduce any evidence in their defence.
6. We have heard Dr. Arun Srivastava, learned counsel for the appellants, Syed Ali Murtaza, Brief Holder and Sri R. Y. Pandey, learned AGA appearing for the State and perused the original record of the case carefully.
7. Learned counsel for the appellants has argued following points before us:
i) that the FIR is ante-timed and has come in existence with active help of the police;
ii) that there was no motive for the accused to eliminate the deceased;
iii) that the presence of alleged eye witnesses is highly doubtful and they are interested and partisan witnesses;
iv) that manner of assault is not proved;
v) that the place of occurrence is not proved and the evidence led by the prosecution on this point is contradictory;
vi) that the medical evidence belies the alleged eye witness account of the incident.
Per contra learned AGA supporting the impugned judgement has contended that the FIR has been lodged without any inordinate delay; that there was election rivalry between the accused and deceased Parmeshwari; that it is a day light incident in which the deceased has sustained fire arm and sharp edged weapon injury; that there is no contradiction in ocular evidence and medical evidence and witnesses examined are quite natural and their presence at the spot is well proved.
8. The alleged incident took place on 8.3.1997 at 5.30 p. m. near the culvert of village Biria Narainpur, which is about 4 miles from police station Subhash Nagar and the report of the incident has been lodged at 7.00 p. m. The complainant has stated that after the incident he dictated the report to Lala Ram and thereafter went to the police station and handed it over there. The inquest upon the cadaver of the deceased was conducted on the day of incident from 8.00 p. m. onwards. In the inquest report the crime no. and section of the crime have been mentioned by PW-8. In all the enclosures sent along with the inquest report crime no. and section of offence had been noted. The copy of check report and copy of G. D. were also sent along with corpse of the deceased for post-mortem examination. No doubt the investigating officer has not recorded the statement of the complainant or prepared site plan in the night of the incident, but it is insignificant as the investigation had begun soon after the registration of the case. The police was set in motion after complainant handed over his written report at the police station. The case diary shows that its 1st parcha was prepared by SI D. P. S. Tomer PW-8 and he has seized the plain and blood stained earth from the spot. On 9.3.1997, the investigation of the case was taken over by SO S. P. Arvind, who has recorded the statement of complainant and prepared site plan at his instance. Thereafter he searched for the accused. The statements of other eye witnesses namely Sita Ram, Shyama Charan, and Ram Chander were recorded on 10.3.1997. The complainant has stated in cross-examination that he got the report scribed from Lala Ram and read it over to darogaji. Later in cross-examination he has reiterated that he got the report written from Lala Ram at the spot. The paper was brought by the family members from the village and the same day it was shown to darogaji. From this statement it cannot be inferred that the report was prepared with the help of the police. Moreover, the external checks available on record clearly show that the report came into existence before the inquest on the cadaver of the deceased was conducted, therefore, it cannot be said that the report of the complainant is in any manner ante-timed.
9. As regards motive, in the written report the complainant has noted that in the year 1995 election of Pradhan took place between accused Rameshwar and his father, in which the former was defeated. It has been further mentioned by the complainant that before the incident also when the accused persons armed with weapons met them near the culvert, they exhorted that they would teach him a lesson for being Pradhan of the village. To quote the exact words used by the complainant in the report - " ---- esjs firk dks jksdk vkSj dgk xkWo dk iz/kku gks x;k rks D;k gksrk gS] iz/kkuh dk etk p[kk,xsa------" Thus, the motive attributed to the accused is election rivalry. No doubt the complainant has stated in his cross-examination that since election in 1995 no scuffle or litigation took place with the accused persons, but it does not make any difference. PW-2 and PW-4 have also supported the motive part of the prosecution story through their testimony. Further, the instant case is based on direct evidence of eye witnesses.
10. Motive is not a sine qua non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence the element of motive does not play such an important role as to cast any doubt on the credibility of the prosecution witnesses even if there be any doubts raised in this regard. If the eye-witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused. Nowadays murders are being committed on very trivial matters. So far as the motive and its sufficiency for a crime of this diabolical nature such as the instant case, is concerned, the Apex Court in the case of Ranganayaki v. State (2004) 12 SCC (Crl.) has held as under:
"The motive for doing a criminal act is generally a difficult area for the prosecution. One cannot normally see into the mind of another. The motive is the mind which impels a man to do a particular act. Such impulsion is .....need not necessarily be proportionally grave to do grave crimes. Many murder has been committed without any known or prominent motive. It is quite possible that the aforesaid imputing factor would remain undiscovered"
In this connection, following observations of the Hon'ble Supreme Court given in the case of Thaman Kumar v. State of Union Territory of Chandigarh 2003 (47) ACC 7 (SC) are also relevant:
"There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence a find of guilt can safely be recorded even if the motive for the commission of the crime has not been proved."
Further, it is trite law that where the prosecution relies upon ocular evidence of the incident, then the motive takes a back seat. Ultimately the success of the prosecution would depend upon the reliability of eye witness account of the incident given by its witnesses and the medical evidence adduced in the case. Motive is not an ingredient of the crime. Another motive for the crime has come through the statement of accused Rameshwar. He has stated that a year prior to this incident son of Radhey Shyam was killed wherein the family members of Parveshwari (deceased) namely Raja Ram, Sukh Lal, Babu Ram and Janaki are accused. PW-1 has admitted this fact in cross-examination. He has also not denied that Raja Ram belongs to his family. As such it can safely be said that in order to take revenge or retaliation, the accused have joined hands to eliminate the deceased. It is quite possible that since deceased or any of his son was not an accused in the murder case of Daya Ram, so the complainant did not think it to be a necessary motive for the accused to kill his father. Thus, whatever motive has been alleged by the prosecution against the accused persons, that is amply proved.
11. Learned counsel for the defence has vehemently argued that the presence of PW-2 to PW-4 is highly doubtful at the spot and they are all interested and partisan witnesses. He has further submitted that it was quite unnatural that the deceased would go to take stitched clothes from the tailor of Kargaina village along with four persons (all the witnesses of fact examined in the case). He has raised doubt about this story of the prosecution on this ground also that none of the witnesses of fact had been able to tell the name of the tailor. PWs 1 to 4 have stated that they left the village at about 11-12 O'clock. Firstly they went at the residence of bua of PW-1, stayed there for about two hours and from there came to tailor shop in Kargaina and then left for the village. There is no material contradiction in the testimony of these witnesses about it. According to these witnesses the tailor was a muslim and people call him 'Khan Sabhab'. They have further stated that each had given his cloths for stitching and were to take delivery of the stitched clothes on the day of incident. The deceased was Pradhan of the village. In country side it is generally seen that the elected people's representatives or local netaji are generally surrounded by their supporters or the persons who had some work/business with him/them. It is treated as a status symbol. Thus, if the deceased went to Bareilly at his sister's house and then to Kargaina along with the 4-PWs, it is not unnatural. PW-1 has stated that they had stayed at his father's sister's house for about two hours. In these circumstances, it cannot be said that the presence of eye witnesses on the spot at the time of incident is highly improbable.
12. Now as regards examination of only interested or partisan witnesses is concerned, in the case of Brahm Swaroop & Anr. Vs State of U.P. (2011) 6 SCC 288, the Apex Court has observed as under:
"Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, more so, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence. (Vide: Dalip Singh & Ors. v. State of Punjab, AIR 1953 SC 364; Masalti v. State of U.P., AIR 1965 SC 202; Lehna v. State of Haryana, (2002) 3 SCC 76; and Rizan & Anr. v. State of Chhattisgarh Through The Chief Secretary, Government of Chhatisgarh, Raipur, Chhatisgarh, (2003) 2 SCC 661)."
Admittedly there was partibandi in the village. One was led by the deceased and the other by accused Rameshwar. The incident had taken place in day time outside the village, so only those persons would witness the incident who were with the deceased. PW-1 has fairly admitted that witness Ram Chander is his khandani tau and Shyam Charan is his collateral. About Sita Ram he has simply stated that he is neighbour and khandani of Radhey Shyam accused. In party fiction villages there are very few who are neutral. Most of the person are connected with one or the other party. Further it is not the law that the testimony of a related or interested witness is liable to be rejected on this ground alone. The only requirement is that testimony of such witness would require closure scrutiny with care and caution.
13. In the written report itself the complainant has stated that sharing common intention first of all Rameshwar wielded farsa on his father and thereafter shots were discharged from fire-arms. It was contended that accused Rameshwar was armed with farsa while the other accused carried country made pistols and all of them have used their respective weapons. In cross-examination PW-1 has stated that 5-6 assaults from farsa were made on his father, the accused fired shots on him from a distance of about two steps and at that time he was about 20 steps away from his father. He has further stated that after firing shots farsa was not wielded, but he is categorical in saying that his father was given about 5-6 farsa blows. Ram Chandra PW-2 has also corroborated the statement of PW-1 about manner of assault. He has stated after assaulting Parmeshwari with farsa the accused persons fired shots on them and Parmeshwari. However, this witness has stated that after firing shots, Parmeshwari was again assaulted with farsa and at that time the accused persons were very near to him. This discrepancy is very trivial. Shyama Charan PW-3 has stated that accused Rameshwar had caught hold of Parmeshwari and assaulted him with farsa and thereafter shots were fired. At that time the distance between the accused and the deceased was about 5-6 steps. Sita Ram PW-4 has stated that firstly Parmeshwari was given 3-4 farsa blows by Rameshwar and there after shots were fired. They stayed back. The witnesses could rightly not state as to whose shot had caused injuries on the deceased. When three persons were using fire arms, so it would be impossible for any witness how-so-ever truthful he may be to state as to whose fire had caused injury to injured or the deceased. All the four eye witnesses had been consistent about the manner of assault on the deceased and there is no material discrepancy in their statements. Their testimony is cogent, clear and reliable.
14. All the eye witnesses have stated that Parmeshwari was on the road when the accused persons assaulted him with their respective arms. PW-1 has stated in cross-examination that the blood oozed from the injuries of his father had fallen on the road. According to PW-2, the deceased was on the road when shots were fired on him He has categorically stated in cross-examination that the dead body of the deceased was on the road and it is incorrect to state that it was kept on the road by taking out from the pond. Similar is the statement of PW-3. He has admitted that there is a pond near the place of incident in an area of about 1½ bigha and has denied that the dead body of the deceased had been found in the pond. It appears that the investigating officer has deliberately created a controversy in this regard. Although in the site plan he has shown the place of assault on the road by point 'A', but has further noted a point by letter 'B' just six steps on its eastern side in the pond stating that the body of the deceased was kept by the villagers by taking out from the pond. We have also perused the statements of eye witnesses recorded by the investigating officer under section 161 Cr. P.C. Neither the complainant nor any other eye witness has stated that the dead body of the deceased was taken out from the pond and kept at point 'A'. The investigating officer has not been examined by the prosecution, but it would not make any difference, because of consistent statements of eye witnesses with regard the place of incident and manner of assault. It is always desirable for prosecution to examine I.O. However, non-examination of I.O. does not in any way create any dent in the prosecution case much-less affect the credibility of otherwise trustworthy testimony of eye-witnesses. If the presence of the eye-witnesses on the spot is proved and the guilt of the accused is also proved by their trustworthy testimony, non-examination of I.O. would not be fatal to the case of prosecution - [vide - Raj Kishore Jha vs. State of Bihar, 2003(47) ACC 1068 (SC). Thus, we find that the prosecution has successfully proved the place of the incident as also the manner of assault.
15. Learned counsel for the appellants has vehemently argued that the medical evidence does not corroborate the eye witness account of the incident. His argument is that the incised wounds found on the person of the deceased, as per statement of Dr. Sharma could not be caused by farsa and the contents of the stomach belie the time of incident. The doctor has noted as many as nine ante-mortem injuries on the person of the deceased. Injury no. 1 and 2 are respectively the entry and exit wounds caused by fire arm. Injuries no. 3, 4, 6, 7 and 9 are incised wounds, while injuries no. 5 and 8 are abrasions. In examination-in-chief Dr. Sharma Pw-6 has stated that the deceased could have suffered death at about 5.30 p.m. on 8.3.1997 and injuries could be caused by fire-arms and farsa. As regards fire-arm injury his statement is consistent with the deposition of eye witnesses that it could be caused from distance 1-3 feet as blackening and tattooing was found around the entry gun shot wound. As regards aforesaid incised wounds his contention is that the width of injury is upto 1 cm, so it cannot be caused by heavy cutting weapon like farsa or gandasa. In next breath he has stated that it would depend upon the blade of the weapon. According to PW-1 the blade of the farsa had a curve with small wooden handle. PW-3 has stated that the blade of the farsa was not straight and it was about one balisht. The description of the farsa had not been asked from PW-2 or PW-4. The statements of these witnesses show that the farsa was not big one or heavy, but it was small. Thus, there is no discrepancy in this regard.
16. Now as regards the stomach contents of the deceased, the doctor had found 150 gms semi-digested food in stomach and semi-digested food in small intestines. PW-1 had stated that on the day of incident they had taken meals at about 11-12 O'clock and thereafter neither he nor his father had taken food during the day. However, the facts of the case clearly show that on the day of incident before going to village Kargaina the deceased had gone to the house of his sister situated at City Dharamshala, Bareilly and had stayed there for about two hours along with PWs 1 to 4. Since deceased and has companions were guests of his sister, so she must also have served some thing to eat along with tea etc. When PW-1 states that after day meals, they had not taken food during the day, he means regular meals that contains roti, sabzi, dal and rice etc. In common parlance taking tea, snacks etc. do not come within the purview of 'food' or 'meals'. Further, it is very difficult to ascertain the time of death of any deceased from the contents of the stomach alone, because digestion of food depends upon many factors, e. g. the nature of food (whether vegetarian or non-vegetarian) as also the age, built and digestive system of the concerned individual. In order to belie the consistent, clear and cogent eye witness account of the incident, the medical evidence should be of such character that it totally rules out the deposition of ocular witnesses. If there is slight variation in the testimony of eye witnesses and medical evidence, the former would prevail. If the direct testimony of eye witnesses is reliable, the same cannot be rejected on hypothetical medical evidence. Opinion given by a medical witness (doctor) need not be the last word on the subject. It is of only advisory character. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. If one doctor forms one opinion and another doctor forms a different opinion on the same fact, it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with the probability, the court has no liability to go by the opinion merely because it is said by the doctor. Of course, due weight must be given to the opinions given by persons who are experts in the particular subject. Reference to the decision in Mahmood vs. State of U.P., AIR 2008 SC 515 may be made in this regard. In this view of the matter, we find that medical evidence adduced in the case is not in conflict with the eye witness account of the incident, rather they corroborate each other.
17. No other point has been argued before us.
18. In view of the afore-stated findings, we find that the prosecution has successfully proved its case against each appellant beyond all reasonable doubt and the learned trial Court has not erred in returning guilty verdict. The deceased was done to death in broad day light by the accused-appellants sharing common intention on account of election rivalry. The appeal sans merits and is accordingly dismissed. All the appellants are on bail. Steps should immediately be taken to take them into custody and sent to jail to serve out the sentence imposed upon each of them by the learned trial Court.
19. Let certified copy of the judgement be transmitted to Chief Judicial Magistrate, Bareilly and the Court concerned for compliance which should be reported within 4-weeks from today.
(Anil Kumar Sharma, J) (Rakesh Tiwari, J) January 16, 2013 Imroz/-