Allahabad High Court
Asha Ram And Others vs State Of U.P. on 23 February, 2021
Equivalent citations: AIRONLINE 2021 ALL 1337
Bench: Ramesh Sinha, Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH (Per: Rajeev Singh, J. for the Bench)
1. Heard Sri Ram Sagar, learned counsel for the appellants and Ms. Smiti Sahai, learned A.G.A. for the State of U.P.
2. The present appeal has been filed against the judgment of conviction and order of sentence dated 13.01.1984, passed by learned Special Judge (Additional District & Session Judge), Barabanki in Session Trial No.464 of 1982, whereby learned trial court had convicted the appellant-Asha Ram under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life for committing the offence. Appellant-Jagdeo, Dularey and Ram Saran had been convicted under Section 302 read with Section 34 of Indian Penal Code and were also sentenced to undergo imprisonment for life for committing the offence.
3. During the pendency of appeal, appellants no. 2, 3 and 4 namely Ram Saran, Jagdeo and Dularey, had died, hence, their appeal are abated on 21.04.2018.
4. The case of prosecution, in short, is that deceased-Badlu lodged a criminal case at the Police Station, Kotwali in January, 1982 against accused-appellants, namely, Jadgeo & others and the proceeding under Section 107/116 Cr.P.C., was initiated and they were challaned, as a result, accused-appellants were inimical with Badlu. On 04.07.1982 at about 9:30 a.m. the deceased-Badlu along with his son Hari Nath was returning from the market after getting shave, when they reached in front of the house of Mahadin Pasi, the accused-appellants, namely, Dularey, Asha Ram, Ram Saran and Jagdeo suddenly emerged from the adjoining lane of the house of one Ghasitey and they caught hold of Badlu. The accused-appellant namely, Jagdeo exhorted his companions that Badlu should be finished, as he litigates a lot. Thereupon the accused-appellant, namely, Dularey hit Badlu on his head with a 'Banka', Badlu fell down and thereupon accused-appellant, namely, Asha Ram fired with a 'Katta' at his temple (kanpati). Hari Nath, son of Badlu raised alarm, hearing which Banarsi, Putti Lal, Ram Sagar, Jagarnath and others reached there, then the accused-appellants ran away in the East. At the time of assault, the accused-appellants Jagdeo and Ram Saran were armed with 'Lathi', accused-appellant-Dularey had a 'Banka' and accused-appellant Asha Ram had a 'Katta'. A written complaint was lodged by Hari Nath, son of Badlu which was entered into G.D. at Serial No.7 at 10:00 A.M. on 04.07.1982 in Police Station Kotwali, District Barabanki. The chick FIR was prepared as Case Crime No.5/1982 under Section 307 I.P.C. against appellants and thereafter, on the death of the injured, offence was altered under Sections 302 I.P.C which was entered into G.D. at Serial No.7 on 04.07.1982. The inquest of the body of the deceased was conducted by the Investigating Officer on the same day and the report was prepared and the body was sent for postmortem.
5. The postmortem of the body of the deceased was conducted by Dr. Y.K. Jalotta, Medical Officer, Barabanki (PW-5) who performed the autopsy on the body of the deceased-Badlu. The ante mortem injury mentioned in the postmortem report are as follows:-
"(i) Lacerated injury over front of skull 3 cm x .5 cm x bone deep 10 cm above left eye-brow. Surrounding hairs were crushed.
(ii) Lacerated injury 2 cm x .5 cm X bone deep over skull 2 cm behind injury No.1.
(iii) Firearm injury 2 cm x 2 cm x bone deep over left side of face 2 cm outside to lateral angle of left eye. Margins inverted, blackened and scorched."
6. The Investigating Officer recorded the statement of witnesses and also prepared the site plan, recovery memo of blood stained mud. The X-Ray of the body of the deceased was also conducted, and thereafter, after considering the aforesaid material, the Investigating Officer came to the conclusion that the deceased was killed by the accused persons and the charge-sheet dated 15.07.1982 was filed.
7. The cognizance was taken by the court below on 29.07.1982 and the case was committed before the court of Sessions which was registered as S.T. No.464 of 1982. Thereafter, the charge was framed against the appellants and they pleaded not guilty and requested for trial.
8. The prosecution relied on the 14 documentary evidences as Exhibit: Ka-1 written complaint of Hari Nath s/o of Badlu dated 04.07.1982, Exhibit Ka-2 is the First Information Report registered on 04.07.1982 at 10:00 a.m., Exhibits Ka-3 and 4 are the copy of G.D. regarding registration of FIR and alteration of offence, Exhibit Ka-5 is the inquest report, Exhibit Ka-6 is the site plan, Exhibit Ka-7 is the recovery memo of blood stained mud, Exhibit Ka-9 is the X-Ray Report of the body of deceased, Exhibit Ka-10 postmortem report of the deceased and Exhibit Ka-14 is the true copy of FIR of Case Crime No.20, under Sections 147, 148, 149, 336, 307 I.P.C., Police Station Kotwali, District Barabanki. All the documentary evidences were duly proved.
9. In support of prosecution case, five witnesses appeared before the trial court, namely, Hari Nath (PW-1), Putti Lal (PW-2), Investigating Officer-Wasiulla Siddqui (PW-3), Constable Mohd. Juber Khan (PW-4), Dr. Y.K. Jalotta (PW-5), and two witnesses were called by the court, namely, Dr. R.K. Gupta (CW-1) and Dr. K.K. Singhal (CW-2).
10. After closure of the evidence of prosecution, trial court took the statement of the appellants under Section 313 Cr.P.C., in which their defence is of total denial.
11. After hearing, trial court had passed the judgment of conviction and order of sentence dated 13.01.1984 which is under challenge.
12. The main thrust of the argument by the learned counsel for the appellant is that the FIR is anti-timed and also submitted that the incident took place on 04.07.1982 at about 9:30 a.m. and the injured was sent to the hospital where he died and later on information was given by the Constable to the Police Station about the death of the deceased. Thereafter, the Police Officer went to the hospital and prepared the inquest report, but the case crime number does not find place on the inquest report. The FIR was lodged after thought as it was not in the existence till preparation of inquest, PW-1 and PW-2 are related witnesses, therefore, their testimony is not reliable and antemortem firearm injury is not corroborating with prosecution case.
13. Learned counsel for the appellant submitted that as per the prosecution case, Hari Nath (PW-1) was accompanying his father (Badlu), when they were coming back after getting shave, the accused-appellants caught hold the deceased-Badlu and one Dularey assaulted with 'Banka' on his head and when the injured fell down, then Asha Ram opened fire on the temple of the injured and the son of the deceased raised alarm, hearing which Putti Lal (PW-2), Banarsi, Ram Sagar and Jagar Nath reached on the spot, then the accused persons ran away along with their weapon. He further submitted that the conduct of PW-1 Hari Nath, who is the son of deceased is highly improbable as when his father was being caused injury, he did not react to save him, therefore, the presence of the PW-1 was doubtful and the prosecution cooked a story by placing PW-2-Putti Lal. He further submitted that PW-2 (Putti Lal) is an interested witness as his son Radhey Shyam was the eye witness in the criminal case i.e case crime No.462 of 1982, under Sections 147, 148. 149, 336, 307 I.P.C, Police Station Kotwali, District Barabanki which was earlier lodged by deceased-Badlu and in the proceeding under Section 107/116 Cr.P.C. his son was also accused against the Jagdev. The PW-1 and PW-2 are the interested witnesses and their testimony cannot be relied. He further submitted that as per the prosecution case, appellant No.1 namely, Asha Ram fired on the temple of the deceased and only entry wound is found, but neither any foreign particle was found inside the head of the deceased nor any wad of the cartridge was found on the spot. He further submitted that the rigor mortis was present on the body of the deceased and the probable time of death is about one day from the time of autopsy, which is highly improbable and he also submitted that in the month of rain, rigor mortis starts after three hours from the death, therefore, the time of death as opined by the doctor in the postmortem report does not corroborate with the prosecution case. He further submitted that the applicants have been falsely implicated in the present case due to enmity with the Jagdev and others, as the applicants are associated with him.
14. Learned counsel for the appellant has relied on the decision of Hon'ble Supreme Court in the case of Baliraj Singh Vs. State of Madhya Pradesh reported in AIR 2017 SC 2114, Ganesh Datt Vs. State of Uttarakhand reported in AIR 2014 SC 2521 and State of Punjab Vs. Sucha Singh & Ors. reported in 2003 (3) SCC 153.
15. Learned counsel for the appellant submitted that the trial court trial court has not made point for determination as provided under Section 354 Cr.P.C., therefore impugned judgment is liable to be set aside.
16. On the other hand, Ms. Smiti Sahai, learned counsel for the State supported the view taken by the court below and submitted that having regard to the facts and circumstances the trial court assessed in proper perspective and delivered a reasoned judgment. The conviction and sentence passed against the accused persons is liable to be affirmed and the finding of the trial court does not require interference of this Court. She also submitted that the object of the proceedings under Section 174 Cr.P.C. is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and, if so, what was its apparent cause. Learned counsel for the State has also submitted that the basic purpose of holding an inquest is to report regarding the apparent cause of death, as in, whether it is suicidal, homicidal, accidental or by some machinery, etc. If the author of the inquest omitted to mention the crime number in the inquest, even then, the clinching evidence adduced by the eye witnesses should not be discarded by the court.
17. Learned counsel for the State has relied on the decision of Hon'ble Supreme Court in the case of Brahm Swaroop and Another Vs. State of Uttar Padesh reported in (2011) 6 SCC 288., the credibility of witnesses being relative cannot be discarded. Learned counsel for the State has further submitted that minor discrepancies in the evidence shall not affect core of the prosecution case. She also relied on the decision of Hon'ble Supreme Court in the case of Thoti Manohar Vs. State of Andhra Pradesh reported in 2012 AIR SCW 3752. She further submitted that even the informant is the son of the deceased and PW-2 (Putti Lal) is the father of Radhey Lal, who is the eye witness in the earlier incident of firing lodged by the deceased against the family members of the appellants, but their testimony cannot be discarded, as their ocular evidence is strengthening the prosecution story with the corroboration of the antemortem injuries found on the body of the deceased. She also submitted that the Constable Mohd. Zuber Khan (PW-4) has categorically deposed before the trial court that on 04.07.1982 at about 9:30 a.m. under the order of Station House Officer, he went to the District Hospital, Barabanki along with the injured with the horse cart and in the hospital, deceased was declared dead, then he came back to the Police Station concern and information of death of the injured was given and Chithi Mazrubi was also proved by him. She further submitted that Dr. K.K. Singhal (C.W.-2) had categorically explained that in case, firearm injury was caused by the blank cartridge, then no foreign particle would have been found. She further submitted that the arguments of counsel for the appellants has no force that no point for determination was framed by the trial court as provided in Section 354 (1) (b) Cr.P.C. as in para-4 of the impugned judgment, point of determination i.e. prosecution case is mentioned and in para-5 also mentioned that the charge was framed but the appellant along with others pleaded not guilty and requested for trial and learned trial court dealt all evidences of prosecution, court witnesses and statement of appellants under Section 313 Cr.P.C., thereafter, by dealing all the points of defence it was held that due to antemortem injuries caused by the appellants, the deceased died. She further submitted that there is no illegality in the order passed by the trial court, therefore, the appeal is liable to be dismissed.
18. Considering the arguments of learned counsel for the parties and going through the lower court records, it is evident that the alleged incident had taken place on 04.07.1982 at 9:30 a.m. and the police station is about a furlong away from the place of occurrence and the FIR was lodged at 10:00 a.m. by Hari Nath son of the deceased (PW-1), thus there was no delay in lodging the FIR and the complaint Exhibit-Ka-1 and FIR Exhibit-Ka-2 proved by the PW-1 and PW-3 respectively. As per the prosecution case, one Dularey caused injury on the head of the deceased-Badlu by 'Banka', and when the deceased fell down, then the appellant no.1 Asha Ram, opened fire upon him with a 'Katta' at his temporal region of the head. Hari Nath PW-1 and Putti Lal PW-2 deposed before the trial court and they supported the prosecution story, as the version of the appellants that the Hari Nath (PW-1) and Putti Lal (PW-2) are the interested witnesses, as Hari Nath is the son of the deceased and Putti Lal belongs to the party of the complainant, as his son is arrayed as an accused. As the argument of the learned counsel for the appellants is not reliable, as it is well settled by the Hon'ble Supreme Court that the testimony of witness, who is close relative of deceased cannot be discarded and in this regard the dictum given by Hon'ble Apex Court in the case of State of Rajasthan Vs. Hanuman, reported in AIR 2001 SC 282, has held as under:-
" The position is well settled that evidence of eye-witnesses cannot be discarded merely on the ground that they are relatives of the deceased. Normally close relatives of the deceased are not likely to falsely implicate a person in the incident leading to the death of the relative unless there are very strong and cogent reasons to accept such criticism."
In the case of Banti @ Guddu v. State of Madhya Pradesh reported in (2004) 1 SCC 414: AIR 2004 SC 261, Hon'ble Apex Court has held as under:--
"...Coming to the plea that the presence of PWs 1 and 2 at the spot of occurrence is doubtful, it is to be noticed that both PWs 1 and 2 were cross-examined at length. Nothing Infirm has been elicited to cast doubt on their veracity. If the lack of motive as pleaded by the accused appellants is a factor, at the same time it cannot be lost sight of that, there is no reason as to why PW-1 would falsely implicate the accused persons. There was no suggestion of any motive for such alleged false implication. Merely because PW-1 is a relation of the deceased, and PW-2 was known to him, that per se cannot be a ground to discard their evidence. Careful scrutiny has been done of their evidence and it has been found acceptable by both the trial Court and the High Court. We find no reason to take a different view.
A Division Bench of Hon'ble Supreme Court in the case of Shiv Ram v. State of U.P. reported in (1998) 1 SCC 149, in para 16 has observed as under:--
"16. ...... The witnesses further admitted that many persons had gathered at the place of occurrence, if this be so it was very much necessary for the prosecution to examine some independent witnesses to lend assurance to the credibility of the evidence of these two eyewitnesses. These submissions do not impress us at all. nowadays it is a common tendency that no outsider would like to get involved in a criminal case much less in the crime of present magnitude and, therefore, it was quite natural that no independent witness would come forward to assist the prosecution. it is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons. All that is required in such a situation is that the court must scrutinize the evidence of such witnesses with utmost care and caution. The magnitude of the present crime and nature of prosecution evidence has put us on guard to appreciate the evidence of these two eye witnesses with utmost care and caution. We have done this exercise and we are unable to be persuaded to discard the evidence of these two witnesses on the grounds urged before us. The evidence of both these witnesses in our considered view is absolutely straightforward, unblemished and without any infirmity. The first information report which was lodged within four hours, naming all the accused also lends asurance to our conviction that the evidence of these two witnesses is trustworthy and cannot be discarded. The contentions of the learned counsel for the accused, therefore, stand rejected."
In the case of Yogesh Singh v. Mahabeer Singh : (2017) 11 SCC 195, Hon'ble Apex Court has observed as under:
Testimony of interested/inimical witnesses On the issue of appreciation of evidence of interested witnesses, Dalip Singh v. State of Punjab [Dalip Singh v. State of Punjab, AIR 1953 SC 364 : 1954 SCR 145 : 1953 Cri LJ 1465] is one of the earliest cases on the point. In that case, it was held as follows: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative 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 a 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."
Similarly, in Piara Singh v. State of Punjab [Piara Singh v.State of Punjab, (1977) 4 SCC 452 : 1977 SCC (Cri) 614], this Court held: (SCC p. 455, para 4) "4. ... It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence."
In Hari Obula Reddy v. State of A.P. [Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675: 1981 SCC (Cri) 795], a three-Judge Bench of this Court has observed: (SCC pp. 683-84, para 13) "13. ... it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
Again, in Ramashish Rai v. Jagdish Singh [Ramashish Rai v. Jagdish Singh, (2005) 10 SCC 498 : 2005 SCC (Cri) 1611], the following observations were made by this Court: (SCC p. 501, para 7) "7. ... The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double-edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence."
19. It is also relevant to point out that the submissions of the learned counsel for the appellants in relation to the reaction of the informant (PW-1) at the time of incident that he had not tried to save his father when injury was caused by the accused persons and that no any injury was caused to him by the accused persons, therefore, his presence was doubtful. As the Hon'ble Supreme Court in the case of Rammi Vs. State of Madhya Pradesh reported in AIR 1999 SC 3544, held that every person has different temperament and at the place of incident every persons reacts in a different manner, therefore, his presence cannot be doubted. Para-8 of the judgment reads as under:-
"8.Such a remark on the conduct of a person who witnessed the murderous attack is least justified in the realm of appreciation of evidence. This Court has said time and again that the post-event conduct of a witness varies from person to person. It cannot be a cast-iron reaction to be followed as a model by everyone witnessing such event. Different persons would react differently on seeing any violence and their behaviour and conduct would, therefore, be different. We have not noticed anything which can be regarded as an abnormal conduct of PW 9 Ram Dulare."
Hence, the judgments relied by the counsel for the appellants in the case of Baliraj Singh Vs. State of Madhya Pradesh, Ganesh Datt Vs. State of Uttarakhand and State of Punjab Vs. Sucha Singh & Ors. (supra) is not applicable in the present case because the statement of prosecution witness in the aforesaid case was contradictory and also to the medical evidence.
20. The Counsel for the appellant had also given emphasis that the ocular testimony in the prosecution case is not corroborating with the medical evidence, so their testimony cannot be relied upon. As the PW-1 and PW-2 deposed before the trial court that the accused-appellant No.1 Asha Ram opened a fire on the left temporal region and entry wound is found in postmortem report, but no such bullet or pellet found inside the injury no.3 which was caused by the appellant-Asha Ram and it is found that the testimony of PW-1 and PW2 are corroborating with the statement of Dr. Y.K. Jalotta (PW-5), R.K. Gupta (C.W-1) and Dr. K.K. Singhal (CW-2). According to Dr. Y.K. Jalotta, the injury no.3 which was a firearm injury, 2 cm x 2cm, having its margin inverted, blackened and scorched. Dr. R.K. Gupta (C.W.-1), Radiologist stated that no metallic density shadow was found in the body of the deceased. In order to have an expert opinion, the case was referred to the Chief Medico-Legal Expert to the State of U.P. by the trial court, CW-2 Dr. K.K. Singhal, Additional Medico Legal Expert, U.P., Lucknow, examined the case and opined that injury nos.1 and 2 in the postmortem report could be of 'Kanta' and injury no.3 could be caused by an blank cartridge. Dr. K.K. Singhal also agreed with the postmortem findings of injury no.3 which is caused by a firearm, which in his opinion is caused by one fire of the country-made-pistol from scorching range. In his report, he has stated that the cartridge probably used in this case was a 'blank cartridge, often used in functions, marriages, in which the projectiles (shots) are not loaded. In such cases, no shots are found in the wound, on firing with the pistol, a muzzle pressure of 1.5 tons/sq. inch is created which will cause fracture of 1-2 mm. thick skull bones, and he also stated that if blank cartridge be fired in contact with the skull, or from a distant of about one inch, the wading will enter into the wound. If the fire be made beyond the distance 1 to 2 inches, but within the range of one foot, the wad may not enter the wound and also opined that if only gun-powder without wad is fired from a cartridge loaded with gun-powder only, the blast effect will cause tearing of wounds. Such a cartridge will cause sufficient tears, if fired from a pistol with its muzzle either in contact with skull or from a distance of one inch away from it. In such a condition the gun-powder will also enter into the track making the track black. It is not so that the fatal injury may only be caused when the muzzle of the barrel is in contact with the skull at the time of fire, but it may also come if fired from a distance of one foot. He admitted that the wound was caused by fire when the muzzle was in contact of the skin. The injury no.3 is a firearm wound. As the trial court has rightly considered the opinion of CW-2 which is based on the Modi's Medical Jurisprudence, therefore, the argument of the learned counsel for the appellants is not sustainable.
21. The last point of the learned counsel for the appellants in relation to the rigor mortis over the body of the deceased is that rigor mortis sets in one to two hours after death does not help the appellants. As in Northern India, usual duration of rigor mortis is 24 hours to 48 hours in winter and 18 to 36 hours in summer. As the trial court has rightly considered the medical jurisprudence of Modi's Edition that rigor mortis commences slowly but lasts for a long time in dry cold air, on the other hand, its commencement is rapid and duration short in warm moist air. He has accepted hot months in India from April to October, July falls in between April and October. The range is hot months in which the rigor mortis may entirely pass is between 24 to 36 hours. So, in July it may be about 30 hours. Dr. Jalotta who conducted the autopsy was therefore, right to mention the time since death as about one day. Thus, the postmortem report and the opinion of Dr. Jalotta and the circumstances, are suggestive of the fact that deceased-Badlu was killed at 9:30 a.m. on 04.07.1982. The postmortem report reveals that the food was present in the stomach. As it is deposed by the PW-1 that in the morning, the deceased had taken Rice and Dal, therefore, finding in the postmortem report fully corroborate the version given by the witnesses.
22. As the trial court has rightly considered the deposition of eye witnesses as PW-1 and PW-2, medical evidence, testimony of PW-5 Dr. Y.K. Jalotta, C.W-1 Dr. R.K. Guptta and C.W.-2 Dr. K.K. Singhal, therefore, the argument of learned counsel for the appellant has no force.
23. The argument of learned counsel for the appellant regarding not framing the point of determination is having no force, as it is evident from the judgment of trial court that in para-4 prosecution case is discussed, thereafter charge was framed and on the point of charge, appellants pleaded not guilty and requested for trial and the learned trial court discussed every evidence of prosecution and witness called by the court as well as statement of appellants under Section 313 Cr.P.C. and held that deceased was died due to antemortem injuries caused by the appellant-Asha Ram and others, therefore, the argument of learned counsel for the appellants is not sustainable and is accordingly rejected.
24. Thus, we find no reason to interfere with the findings of the learned trial court. Hence, the judgment of conviction and order of sentence dated 13.01.1984, passed by learned Special Judge (Additional District & Session Judge), Barabanki in Session Trial No.464 of 1982, is hereby affirmed.
25. In the result, this appeal fails and is accordingly, dismissed.
26. The appellant no.1 Asha Ram is in jail and he shall serve out the sentence awarded by the trial court.
27. Office is directed to transmit the lower court record along with the certified copy of this order forthwith to the court concerned for necessary information/compliance.
(Rajeev Singh,J.) (Ramesh Sinha,J.)