Allahabad High Court
Hargovind And Another vs State Of U.P. on 3 March, 2020
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 29.01.2020. Delivered on 03.03.2020 Case :- CRIMINAL APPEAL No. - 153 of 1991 Appellant :- Hargovind And Another Respondent :- State of U.P. Counsel for Appellant :- G P Dixit,Ashok Kumar Singh Counsel for Respondent :- A.G.A. Hon'ble Suresh Kumar Gupta,J.
1. Heard learned counsel for the appellant and learned A.G.A and perused the record.
2. This criminal appeal has been preferred by appellants-Hargovind and Sri Kishan against the judgment and order dated 30.01.1991, passed by Special Judge (DAA)/ 6th Additional District Judge, Etawah, in S.T. No. 45-46 of 1990 (State Vs. Hargovind and another), whereby convicting the appellant under Section 393 IPC, sentence them to 4 years rigorous imprisonment each and fine of Rs. 500/- each and in default of payment of fine period of 3 months further rigorous imprisonment.
3. Brief facts of this case are as follows:-
4. An FIR Ext. Ka-1 was lodged by Megh Singh and scribed by constable Rajendra Singh S/o Megh Singh (complainant) that in the intervening night on 3/4 .08.1988 at about 11.30 p.m. first informant Megh Singh was sleeping inside the house below the thatch and his son Ram Ratan Singh was sleeping in the gallery of the house and wife of Ram Ratan, Smt. Mahadevi was sleeping in the courtyard and the lantern was lightning in the house and a lamp was lightning near the door and that time Ram Ratan kept torch. On fateful night, three miscreants entered into the house and reached the courtyard and that time accused tried to snatch anklets (Toria), then his brother's wife shouted loudly then one miscreant fired two rounds. Meanwhile, Ram Ratan opened the main door and flashed the torch on miscreants and exhorted them and after hearing the noise and sound of fire complainant also woke up then miscreants fled away from the place of occurrence, immediately and that time villagers namely; Badshah, Suraj Pal and Bhoop Singh etc. armed with lathi and torch reached on the spot and identified the miscreants Hargovind and Shri Kishan, who armed with country made pistol and one miscreants could not be identified. On this allegation, the FIR was lodged by first informant Megh Singh at P.S. Chauvia, District Etawah, under sections 393/397 IPC.
5. After lodging the FIR investigation of the case was entrusted to inspector K.L. Chaudhary, who conducted investigation of this case, during investigation, Investigating Officer on pointing out of complainant prepared site plan Ext. Ka-7. Investigating Officer also recorded the statement of witnesses after completing the formalities of investigation Investigating Officer submitted charge-sheet Ext. Ka 5 against the appellants Hargovind and Sri Kishan under section 393/397 IPC.
6. After filing of the charge-sheet, the charge against appellants Harigovind and Sri Kishan was framed under sections 393/397 IPC by Shri Raj Singh, Spl. Judge (D.A.A.)/ Additional Sessions Judge, Etawah on 02.03.1989.
7. After framing of charge, charge was read over to accused. Accused denied the charge and claimed to be tried.
8. In order to substantiate the charge levelled against the appellants, prosecution examined P.W. 1 complainant Megh Singh, P.W. 2 Badshah, eyewitness, P.W. 3 Smt. Maha Devi eyewitness and victim, P.W. 4 Jai Prakash, who proved FIR Exh. Ka-1, the GD rapat No. 15 Ext. Ka 2, recovery mimo of empty cartridges Ext. Ka-3, and also proved the G.D. No. 25 05/05/88 time 20.5 arrest of the accused Hargovind and empty cartridges as material Ext. 2 and 3. P.W. 5 Sub-Inspector K.L. Chaudhary, investigating officer, who has submitted charge-sheet dated 31.08.1988 and 07.12.1988, who proved the same as Ext. Ka 5 and 6, Site plan as Ext. Ka-7, recovery and Supardigi Memo of torch and Latern as Ext. Ka-8.
9. After conclusion of evidence of prosecution witnesses, trial court has recorded the statements of appellants under section 313 IPC, in which the appellants-accused denied the charge levelled against them and stated that they have been falsely implicated in this case due to enmity. The witness further stated in his testimony that the marriage of his elder brother was solemnized by Jai Devi, elder sister of witness Maha Devi. He further stated that when the marriage proposal of Maha Devi was given to the first informant Megh Singh, then elder brother of accused objected this marriage and due to this reason false case was lodged by the first informant.
10. Learned trial court after hearing the parties convicted the appellants under section 393 IPC as aforesaid.
11. Learned counsel for the appellants has submitted that they have been falsely implicated in this case on the basis of surmise and conjuncture. The evidence adduced by prosecution is deficient. Learned trial court has wrongly convicted the appellants . He further submitted the following points:-
(1) Learned counsel for the appellants submitted that the appellants Hargovind and Sri Kishan are real brother. He further submitted that Jai Veer and appellants Hargovind and Shri Kishan are real brother and Jai Devi is the wife of Jai Veer Singh. P.W. 3 Mahadevi is the sister of Jai Devi, wife of Jai Veer Singh. Jai Veer Singh is the elder brother of appellants. He further submitted that when the marriage proposal of Maha Devi was given to the first informant Megh Singh, then elder brother of appellants objected this marriage and due to this enmity false case was lodged by the first informant against the appellants Hargovind and Sri Kishan due to enmity.
(2) Time of incident is 03.08.1988 at 11.30 mid night and the FIR was lodged against the appellants on 04.08.1988 at 3.30 p.m. FIR was lodged after 16 hours of the incident, while the distance from the police station to the place of occurrence is about 8 kms. Due to delay of lodging the FIR, FIR looses spontaneity. FIR was lodged with due deliberation and consultation hence, no reliance can be placed in the FIR.
3. Learned counsel for the appellants has also submitted that only 3 witnesses of the fact were examined by the prosecution. All the 3 witnesses are relative and interested witnesses and no independent witnesses of the locality on the spot was produced by the prosecution, so the non production of the independent witnesses are totally belie the prosecution case. So no reliance placed on the testimony of the witnesses of fact.
(4) Prosecution is failed to assigned any motive against the appellants.
(5) Both the appellants and the first informant of the same village and this also not believable, but in spite of that the accused persons had not tried to conceal their identity which is very unnatural and if, at all they have planted to robbery at least they would have hided their face, so nobody was recognized the same. Learned counsel for the appellant has also submitted that no offence under section 393 IPC is made out.
(6) There are several material contradictions in the statement of examined witness. This aspect is also corrodes the credibility of witness. So no reliance placed on the testimony of the witnesses of fact. In support of this contention, learned counsel for the appellants has relied upon the following judgment:-
1. Lal Man vs. State of U.P. 1990 0 Supreme Court (All) 1871 and
2. Jaggi and others vs. State of U.P. 2014 (2) Law Suit (All) 4219.
12. Learned AGA has vehemently opposed the prayer and submitted that the learned trial court after appreciating the evidence rightly convicted the appellants. Next submission is that the accused were known person and they are clearly identified by the witnesses who present on the spot and although the incident took place in the night but the appellants are the resident of same village. There was sufficient light to identify the known persons of the villagers. It is also submitted that two empty cartridge were recovered from the place of occurrence, which is delivered by the first informant to the police station regarding which the recovery memo was prepared by the police at the time of lodging of the FIR and recovery memo Ext. Ka-2 is duly proved by prosecution.
13. Section 393 IPC reads as under:-
"Section 393 in The Indian Penal Code. 393. Attempt to commit robbery. --Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."
In this Session trial appellants were convicted under section 393 IPC for attempt to commit robbery.
14. Section 390 Indian Panel Code reads as under:-
"390. Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
15. Whether the offence under section 393 is made out against the appellants or not will be discussed after considering the other argument raised by the appellants.
16. So far as regard one of the argument of the appellants is that the FIR is 16 hours delayed, but there is no plausible explanation regarding delay of the FIR on behalf of prosecution.
17. In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case.
18. In Thulia Kali v. The State of Tamil Nadu (AIR 1973 SC 501), it was held that the delay in lodging the first information report quite often results in embellishment as a result of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation.
19. In this case although the prosecution tried to explain the delay that P.W. 1 is rustic and his son Rajendra Kumar who was posted at the time of incident as police constable in the police line, Etah. P.W. 1 lodged the FIR with the consultation of his son Rajendra Kumar. Although the prosecution has tried to explain the delay but on perusal of entire circumstances the delay is not satisfactorily explained so adverse inference is to be drawn in this case. This possibility cannot be ruled out that FIR was lodged by the complainant with due deliberation and consultation.
20. Another argument of learned counsel for the appellants is that three relatives and interested witnesses were examined by the prosecution and no independent witness of the locality was produced by the prosecution and due to this, whole prosecution of the case create suspicion. So far as regards the evidentiary value of related and interested witnesses are concerned, in the case of Dalip Singh and others vs. State of Punjab, (AIR 1953 SC 364), it has been laid down as under by the Hon'ble Apex Court:-
No doubt, the evidence of related and interested witnesses has to be scrutinized with caution.
"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 Masalti and others vs. State of U.P., 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 Israr vs. State of U.P., [2005(51) ACC 113] in para-12 of the judgement are also important:-
".... 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."
21. The position has been highlighted by Apex Court 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..."
22. The relative witness is not necessarily an interested witness. 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. So on the basis of the interested witnesses of prosecution case is not thrown out that no independent witness examined by the court.
23. One of the argument of learned counsel for the appellants is that prosecution failed to assign any motive of alleged incident. So, the conviction could not upheld due to observe of motive.
24. The Hon'ble Apex Court in the case of Ranganayaki vs. State, (2004) 12 SCC 521 has held as under:
"The motive for committing a criminal act is generally a difficult area for the prosecution. One cannot normally see into the mind of anther. Motive is in the mind which impels a man to do a particular act. Such impulsion need not necessarily be proportionally grave to do grave crimes. Many murders have been committed without any known or prominent motive. It is quite possible that the aforesaid imputing factor would remain undiscovered."
2. The Hon'ble Apex Court in Mangaru and others vs. State of U.P., 2008 (62) ACC 40 has laid down that motive may be of importance in the cases of circumstantial evidence and it is well settled principle of law that in the case of direct evidence, motive looses its value.
3. In the present case in hand prosecution could not establish some motive of this incident hence this case is fully based on direct evidence so motive looses its value, hence the motive in this case is not much consequence.
25. One of the argument of learned counsel for the appellants is that there are several material contradictions in the statement of the witnesses examined by the prosecution. Due to material contradiction prosecution is utterly failed to prove the case.
26. Learned counsel for the appellant pointed out several contradictions. One of the contradiction is pointed out by the appellants is that as per first information report the main door was opened by Ram Ratan. P.W. 3 Mahadevi stated in her statement that both the miscreants opened the door and fled away from the spot. Another contradiction is also pointed out that there are 3 miscreants, one miscreant was unknown and P.W. 2 has clearly stated that only two miscreants in this incident.
27. It is also pointed out by learned counsel for the appellants is that P.W. 2 in his statement has stated that he create the pressure then the miscreants made fire while they were running. P.W. 1 and P.W. 3 clearly stated that named appellants fired inside the house. It is also submitted that no fire mark was present in the wall, then the story is concocted and fabricated.
28. There are material contradictions which is pointed out by appellants. These material contradictions are also corrodes in the statements of witnesses examined by the prosecution.
29. Learned counsel for the appellants is also submitted that this point is also ruled out with the false implication of the accused persons. It is argued by learned counsel for the appellants that the appellants were known to the complainant and other witnesses, but in spite of that two accused persons had not tried to conceal their identity, which is very unnatural and if at all they had a plan to commit robbery at least they would have masked their face so that nobody could recognize them in the present case. All the examined witnesses of the fact had deposed that all the miscreants were having open face and did not try to conceal their identity, so this creates doubt upon prosecution story.
30. Now the question raised whether the offence under section 393 IPC is made out against the appellants or not. As mentioned in the FIR that the accused persons had intended to take away anklet (toria) from the feet of Smt. Mahadevi. On perusal of the statement of Smt. Mahadevi, P.W.3, its reveals in her statement that the accused persons have touched anklet (toria), but in their statements it is clearly stated that they have touched her feet. In the present case, if any alleged gun shot fired by the appellants do not intend to carry away any property as no property was taken away by the appellants so prima facie it transpires that this is not a case under the preview of Section 393 IPC. It is surprising that due to such fire no injury cause to any person. It is also surprising that several persons gathered on the spot, but nobody tried to apprehend the appellants on the spot, surprisingly both the appellants escape away from spot safely, so the possibility of false implication is not ruled out in this case.
31. Therefore, looking into the entire facts and circumstances of the case, this Court is of the view that the prosecution has failed to prove its case beyond shadow of doubt. The present appeal is liable to be allowed and the judgment and order of the learned trial court for convicting and sentencing the appellants is liable to be set aside.
32. Accordingly, the appeal is allowed. The judgment and order dated 30.01.1991 passed by Special Judge (DAA)/ 6th Additional District Judge, Etawah, for convicting and sentencing the appellants is set aside. The appellants are acquitted under section 393 IPC.
33. Appeal against the appellants is hereby allowed.
34. The appellants are on bail. There is no need for their surrender. Their bail bonds are canceled and sureties are hereby discharged.
35. Office is directed to transmit the certified copy of this order to the court below along with the lower court record, for necessary compliance.
Order Date:- 03.03.2020.
v.k. updh.