Allahabad High Court
Shyam Behari Mishra And Another vs State Of U.P. on 24 March, 2023
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on :17.03.2023 Delivered on: 24.03.2023 Court No. - 46 Case :- CRIMINAL APPEAL No. - 1092 of 2005 Appellant :- Shyam Behari Mishra And Another Respondent :- State of U.P. Counsel for Appellant :- Jagdish Singh Sengar,Anuj Srivastava,Mohd Raghib Ali Ac,Saghir Ahmad(Senior Adv.) Counsel for Respondent :- Govt. Advocate,V.K. Baranwal,Vivek Kumar Shukla With Case :- CRIMINAL APPEAL No. - 1884 of 2005 Appellant :- Kamal Mishra Respondent :- State of U.P. Counsel for Appellant :- Saghir Ahmad(Senior Adv.),Anuj Srivastava,Mohd Raghib Ali Counsel for Respondent :- Govt. Advocate,Gyanendra Prasad Mahant Hon'ble Anjani Kumar Mishra,J.
Hon'ble Umesh Chandra Sharma,J.
(Per : Hon'ble Umesh Chandra Sharma,J.)
1. These two appeals have been preferred against the judgment and order dated 2.3.2005 passed by Additional Sessions Judge Court No.5, Allahabad, in S.T. No. 807 of 2000 State Vs. Shyam Bihari Mishra and Others, under Section 302 read with Section 34 IPC and Section 307 read with Section 34 IPC. Police Station Sarai Inayat, District- Allahabad, convicting and sentencing the appellants under Section 302 read with Section 34 IPC for life imprisonment and under Section 307 read with Section 34 IPC for 3 years rigorous imprisonment. Both sentences were directed to run concurrently.
2. In brief, the facts of the case are that informant Shiv Prakash Tiwari r/o Kotwa, police station- Sarai Inayat, Allahabad presented a tehrir Ex. Ka-1 on 10.4.2000 at 9:30 a.m. stating therein that today at about 8:30 am, his brother Jai Prakash Tiwari was returning after worshiping at Goddess Maa Endree Devi Temple with nephew (Bhanja) Kuldeep Mishra on a scooter when he reached near his house, he slowed down his scooter due to drain, Shyam Bihari Mishra exhorted to kill him, his son Bimal Kumar Mishra stopped his scooter from the front and Kamal Mishra, placed a country made fire-arm on the chest of his brother Jai Prakash and fired. Hearing the sound of the fire he, Pawan Tiwari and Jai Hind reached the spot and saw the occurrence and chased the accused persons. In the meantime, Vimal Kumar Mishra with the intention to kill him also fired at him (confront). He ducked behind a pile of new bricks. Therefore, the bullet did not hit him. According to the informant there was old land enmity between the parties. His brother Jai Prakash is in a serious condition, he requested to lodge the F.I.R.
3. On the basis of Tehrir Ex. Ka-1, Chick F.I.R. Ex. Ka-8 was prepared. P.W.6 S.O. Kripa Shankar Dixit started investigation. He reached on the spot and took sample of blood stained and plain soil and prepared recovery memo Ex. Ka-4 and spot map Ex. Ka-4. He searched the house of accused persons and prepared recovery memo Ex. Ka-5. The injured Jai Prakash Tiwari was first of all taken to the police station wherefrom he was sent to Swaroop Rani Nehru Hospital, Allahabad, where he was declared brought dead. There, Chauki Incharge Kotwali, Sant Kumar Chaturvedi prepared inquest report and body was sent for post-mortem to Mortuary on 11.4.2000 at 2:00 p.m. where Dr. K.N. Joshi conducted the autopsy. On 20.4.2000 after getting information about the basement in the house of the accused persons the I.O. visited and searched the house of the accused persons but nothing incriminating was recovered.
4. On 28.4.2000, alleged weapon used in commission of crime was recovered upon the pointing of accused persons from their house containing one country made fire arm of 303 bore, two live cartridges of 303 bore and 12 bombs of which recovery memo Ex. Ka 5 was prepared.
5. After investigation, charge-sheet was submitted under Section 302, 307 and 504 /34 of IPC. The case was committed to the Court of Sessions and thereafter it was transferred to the Court of Additional Sessions Judge, Court No.6, Allahabad, who framed the charges under Section 302/34 and 307/34 IPC. Accused persons denied the charges and sought trial.
6. Prosecution examined following witnesses to prove the charges P.W.1 Shiv Prakash Tiwari, informant P.W.2 Satya Prakash Tiwari, scribe, independent witness P.W.3 Jai Hind Singh, Independent witness P.W.4 Pawan Tiwari, son of the deceased.
P.W.5 Dr. K.N.Joshi, who did autopsy.
P.W.6 Kripa Shankar Dixit, the then S.O and I.O. of the case, P.W.7 Badri Prasad Mishra, constable moharrir, P.W.8 Sant Kumar Chaturvedi, who prepared inquest Documentary evidence:
Ex. Ka-1 Tehrir Ex. Ka-2 Post-mortem report Ex. Ka-3 & Ex. Ka-6 Site plans Ex. Ka-4 Blood stained soil Ex. Ka-5 Search memo Ex. Ka-7 Charge-sheet Ex. Ka-8 Chick F.I.R.
Ex. Ka-9 & Ex. Ka-10 G.D. and return G.D. Ex. Ka-11 Inquest Ex. Ka-12 to Ex. Ka 18 Letter to R.I., letter to C.M.O., challan nash, photo nash
7. Paper no. 10, F.S.L. Report which is not exhibited but is admissible in evidence under Section 293 Cr.P.C.
8. Defence witness:
D.W.1 Surendra Prasad Mishra D.W.2 Radhey Shyam Sharma D.W.3 Mahesh Chandra Mishra D.W.4 Shitla Prasad
9. Documentary evidence :
Ex. Kha-1 Order tax officer Ex. Kha-2 Report dated 10.4.2000 Ex. Kha-3 Receipt of Rs. 570 dated 10.4.2000 Ex. Kha-4 Photo copy of the attendance register.
10. In criminal appeal no. 1092 of 2005, accused Shyam Bihari Mishra and Vimal Kumar Mishra and in criminal appeal no. 1884 of 2005, accused Kamal Mishra, have taken the ground that the conviction of the appellants is against the weight of evidence on record and bad in the eyes of law, the sentences are too severe, therefore, the appeal be allowed and judgment and order dated 2.3.2005 be set-aside.
11. P.W.1, Shiv Prakash Tiwari, deposed that on 10.4.2000 at 8:30 am, his elder brother Jai Prakash Tiwari accompanied by nephew (Bhanja), Kuldeep Mishra, was returning after worshiping at the Goddess Maa Endree Devi Temple. When he reached near the shop of Meenu Malviya and slowed down his scooter due to drain, Shyam Bihari Mishra who along with his two sons namely Kamal Mishra and Bimal Mishra, was standing in the nearby street, exhorted his sons Bimal Mishra and Kamal Mishra, to kill Jai Prakash Tiwari. At this point, Bimal Mishra caught the scooter from the front and Kamal Mishra, shot him with a country made fire arm which hit Jai Prakash Mishra on the chest. Thereafter, P.W.1 along with Jai Hind Singh and Pawan Tiwari ran towards the place of the incident; he was at the fore so Bimal Mishra also tried to kill him and fired at him but he hid himself behind the pile of new bricks. The accused persons ran towards their home in a Marshal Jeep No. UP 70 K 9145 driven by Kamal Mishra and escaped. Thereafter, they brought Jai Prakash Singh home and P.W.1, got a tehrir (Ex. Ka-1) scribed by Satya Prakash Tiwari. This witness recognized the tehrir, its contents, his signature thereon and proved it. He along with the report and the injured went to police station Sarai Inayat, presented it to the constable-clerk and lodged the F.I.R. Thereafter constable 1740 Jeet Bahadur Singh was sent along with the injured to Swaroop Rani Hospital but on the way his brother succumbed to fire arm injury. There was old enmity on account of purchase of land Arazi No. 1005 from Sudarshan s/o Sundar for which accused persons killed his brother by shooting him. I.O. had recorded his statement at his house.
12. This witness further deposed that he is driver in R.T.O. Allahabad. There was no duty scheduled, he used to go to duty on call. He lives in a rented house in Allahabad. At the time of the incident he was posted in Pratapgarh and on the date of incident he was present at his house. On 9.4.2009 he had come from Pratapgarh after taking two days casual leave for Darshan of Goddess Vindhyachal as Navratri was going on. He had informed his office for extension of leave due to the murder of his brother. He admits that there was government hospital in his village. P.W.1 further deposed that between the hospital and the government road, 18 biswa land of Sudarshan is situated which was purchased through registered agreement by three persons including Senior Vajpayi son of Kalika Vajpayi. He got sale deed executed from Sudarshan, rest two persons had also purchased 3 biswa land each through sale deed. He denied that he got the remaining 5 biswa land in the name of his sister but he and Vinay Vajpayee had executed sale deed from their share. He expressed ignorance that Sudarshan had also executed sale deed for about 4 biswa of land in favour of Purushottam Dubey and name of vendee had been mutated. He also expressed ignorance that on 31.1.2000 Purushottam Dubey had executed power of attorney in favour of accused Kamal Mishra. He admits that Kuldeep Mishra (not examined) son of his sister has purchased 5 biswa land of the aforesaid plot. He denied that he alongwith Kuldeep Mishra wanted to grab the land illegally which was prevented by Purshottam Dubey.
13. Shyam Bihari Mishra, does service in Nagar Mahapalika, Allahabad, he does not know whether he was working there as an Inspector. This witness further deposed that at the time of occurrence he was present on the spot. Maa Indree Devi Temple is 2-1/2 km away towards south. His brother Jai Prakash Tiwari had gone for worshiping at about 7:45 am. Jai Prakash used to go there regularly with Dolchi and other worship materials which were hanging on the scooter and had not fallen down.
14. In cross-examination this witness deposed that after death of his brother at about 11:30 a.m., he directly returned to his house and had not gone to the police station. He had not informed the police station Sarai Inayat about the death of his brother. The constable who accompanied him to the hospital had not come with him. He does not know as to when the constable reached the police station. He spent a day and night at his house. I. O. was also there who had recorded his statement the next day. He had come to the post-mortem house next day. He admits that he had mentioned in his Tehrir that accused were standing in the street adjacent to Meenu Malviya's shop. He did not remember as to whether this fact was stated by him to the I.O. as he was perturbed due to the murder of his brother. He deposed that he had mentioned the fact that Bimal had caught the scooter, if this fact is not written in Tehrir, he cannot assign any reason. He further deposed that Bimal had stopped the scooter but had not stated about the catching of the scooter. On being asked as to whether Bimal had caught the scooter or not, he replied that Bimal had stopped the scooter by standing in front of it. He admitted that he had mentioned the fact that at the time of incident, he was standing at his door and had seen the occurrence, if it was not written in tehrir or in his statement, he cannot assign the reason. He has admitted that Kamal Mishra had run away by plying vehicle, if this fact was not recorded by the I.O, he cannot assign the reason. He deposed that the house of the accused persons is 150 meter away towards north-east from the place of occurrence. He further deposed that from the place of occurrence the house of the accused persons is towards which direction and how many yards away can be told by Lekhpal. He further deposed that it would have taken 15-20 minutes in writing the Tehrir. Jai Prakash Tiwari was laying at the door on a cot. There was no blood on the door. There must have been blood on the cot which was seen by the I.O. After writing Tehrir, the injured was carried in a Commander Jeep of Chandra Dev Tripathi. There was no blood on his clothes because the body was kept above. They reached police station at 9:00 am and from there at about 9:30 they were sent to the hospital in the same Commander Jeep. At the same time his brother's condition had also become critical. He thought information at the police station is more important than taking brother to the hospital. He repeatedly stated that his brother's condition was serious but was allowed to go to the hospital only after writing the FIR, it would have taken about one hour in reaching the hospital. They reached hospital at about 10:30 am, and they had come after crossing the crowded Shastri Bridge. They remained in the hospital for a mere five minutes and returned home from Sumo Car of his friend Agan Singh. He deposed that he had not taken his brother to the health center situated at his village as no staff was there. When deceased was shot, he was standing at his house about 40-45 steps away from the shop of Meenu Malviya. The pile of brick belonged to Pancham Kant and was kept 4-5 months before the date of incident on a 7 feet wide lane.
This witness further deposed that when he reached, the I.O. met him at about 11;30 am. He dug the earth. Thereafter, the I.O. recorded his statement. On the place of occurrence there was brick and soil both. The scooter was left on the spot. When he reached home, the I.O. brought the scooter to the house. The I.O. remained in the village up to 2-2:30 pm. Senior officials had also visited the spot. He denied that he had not seen the incident. He also denied that report has been lodged after consultation and was ante-timed.
15. P.W.2, Satya Prakash Tiwari, deposed that on 10.4.2022, on the dictation of Shiv Prakash Tiwari, he had written the tehrir (Ex. Ka-1). After writing it was read out to him. He denied that he had written the tehrir at the police station on the dictation of S.I.
16. P.W.3, Jai Hind Singh, is the independent eye witness who has deposed that he knows the accused persons and the informant. The incident occurred on 10.4.2000 at 8:30 a.m., he had talked to the informant, Shiv Prakash Tiwari, in the evening for going to Vindhyachal together. On the date of incident this witness had come at about 8:30 a.m. to the house of the informant. The informant told him that his brother would also go with them and at the moment he had gone for worshiping at Ma Endree Devi Temple. At around 8:30 a.m. Jai Prakash Tiwari, returned and reached in front of Meenu Malviya's shop, there was a drain so Jai Prakash Tiwari slowed down. At that moment, Shyam Bihari exhorted to kill Jai Prakash Tiwari, Bimal caught the handle of the scooter from the front and then Kamal Mishra putting country-made fire arm on the chest of Jai Prakash fired. When people ran, Shiv Prakash Tiwari was ahead of them. He was also shot by Katta by Bimal but it did'nt hit him due to wall of the added bricks. Apart from him, Pawan Kumar Tiwari, Shiv Prakash Tiwari and others had reached the place of occurrence and witnessed the incident.
In cross-examination this witness deposed that after one month of the incident, I.O. had recorded his statement. During this period he remained at his house. After the incident, first of all he came to the police station with the injured and thereafter had gone to the hospital. He had reached police station at about 9:00 a.m. and stayed there for 2-3 minutes and thereafter went to the hospital. When at about 9:15 a.m., he reached the hospital where the doctor informed that the injured has died. Thereafter, Shiv Prakash Tiwari went to the police station for giving information. The dead body remained in the hospital. Then I.O. and Shiv Prakash Tiwari reached at the hospital at about 10:30 a.m., the I.O. had sealed the dead body at about 11-12 a.m. He cannot say the exact time. After that the I.O. returned to the police station, he and other persons remained in the hospital the whole night because of friendship. Nobody got any money. Dead body was handed over at 3:00-3:30 hours. About firing, first of all he had informed the I.O. and in the Court, none else. The discussion continued in the village. He had told the I.O. that in the evening he had spoken to the informant for going to Vindhyachal together. Therefore, he had come to the house of the informant at 8:00 a.m. Deceased had gone to worship in Maa Endree Devi Temple. The informant told him that his brother/deceased would also accompany them to Vindhyachal. This witness further deposed that if the above fact has not been written in his statement, he can not tell the reason. The I.O. had recorded his statement at his house. He did not remember the time. Later he deposed that I.O. had recorded his statement at about 12:00 to 1:00 p.m. He is not literate, he had signed the statement given to the I.O. The I.O. had said that same statement would be given in the Court. He further deposed that where the bullet was fired, is the house of Chandra Kant Shukla. There is khadanja/brick road in front of the house of Chandra Kant Shukla. On the east of the road, Meenu Malviya's grocery shop is situated, which was open at the time of incident. He had seen the occurrence from the north corner of the house of Chandra Kant Shukla, standing two steps west Kamal had fired at Jai Prakash Tiwari. When bullet hit Jai Prakash, Jai Prakash had fallen down. There was only one fire on Jai Prakash. The place of occurrence is not visible from his house. He denied that he had not witnessed the incident and out of friendship he was falsely testifying.
17. P.W.-4, Pawan Tiwari, is the son of the deceased who deposed that his father was murdered about two years ago. He was present on the spot at the time of his murder which took place at around 8:30 in the morning. His father was returning from Maa Endree Devi temple. His father slowed down his scooter due to the drain in front of Malviya's shop. There is a street next to the same shop in which accused Shyam Bihari Mishra, Kamal Mishra and Bimal Mishra were standing. Shyam Bihari Mishra exhorted to kill his father on which Bimal Mishra stopped the scooter forcefully and Kamal Mishra, taking out the fire arm shot at the chest of his father. He along with others was standing at the door of his house. His uncle, Shiv Prakash Tiwari was ahead of them. Bimal Mishra, opened fire at Shiv Prakash Tiwari. There was a brick wall where his uncle hid himself and did not get hurt by the bullet. Thereafter, they ran through the street in which accused were standing. They lifted his father and took him to the house where his uncle got written Tehrir. Thereafter, they carried the injured in a commander jeep to the police station where after 15-20 minutes a constable was provided with whom they went to Swaroop Rani Hospital where doctor informed that the injured has died.
This witness further deposed that there was some enmity regarding land between them and the accused persons due to which they had killed his father. The I.O. had recorded his statement at his house. Kuldeep Mishra was also sitting on the scooter of his father.
In cross-examination this witness deposed that after one and a half month the I.O. had recorded his statement, during this period he remained in his village. Before recording the statement he had not met with the I.O. He had informed the I.O. that nearby the street of Meenu Malviya's shop accused were standing. If this fact is not written by the I.O., he cannot say the reason. He had informed in his statement to the I.O. that they were standing at the door and when they ran towards the place of incident, they were led by uncle Shiv Prakash Tiwari. If this fact is not written in his statement, he cannot say the reason. He had also stated to the I.O. that his uncle saved himself behind the brick pile. If this fact is not written by the I.O., he cannot say the reason. He had stated to the I.O. that the street in which accused had hidden, they ran through the same street to their house. If this fact is not written by the I.O., he cannot say the reason. He had stated to the I.O. that his uncle had dictated the tehrir sitting at the house. If this fact is not written by the I.O., he cannot say the reason. He had also stated to the I.O. that at the police station they were provided constable after 15-20 minutes for going to hospital, if this fact is not written by the I.O. in his statement, he can not say the reason. According to this Court such questions are not closely related to the facts in issue. If such minute description are neither asked by the I.O. nor stated by this witness under Section 161 Cr.P.C. will not impeach the credit of the witness.
Further, this witness deposed that at some distance there is the house of Chandra Kant Shukla. At the time of shooting, shooter was 10 steps towards north west corner of the house of Chandra Kant Shukla, who hit his father. There is a Khadanja road towards west in front of the house and a shop towards west. On the west of this road there is the house of Chandra Kant Shukla. When bullet hit his father, his father was to the north of the house of Chandra Kant Shukla at Khadanja road. This place is to the east of the house of Umakant, Pancham Kant and Chandra Kant Shukla. When first firing took place, he, Shiv Prakash Tiwari and Jai Hind were together. When bullet hit his father, his father was on the scooter and fell down on Khadanja road with the scooter. Thereafter, he was taken to the door, blood was oozing out of his body. He was taken to the house from the place of occurrence on a cot. He remained on the door for 15 to 20 minutes in injured state. The Jeep then came at the door, he along with his uncle had kept his father in jeep with the help of several other persons of the village. He was taken to the police station. Whether blood fall on the jeep or not, he cannot say. His father was lying straight. During placing and carrying the injured on the jeep, there was no blood on his clothes and whether there was any blood on the clothes of his uncle, he can not say. On being asked, this witness deposed that the primary health center was on the way but they did not stop there because there was no doctor and they directly reached the police station as the condition of his father was deteriorating. At around 10:00-10:30 a.m. they reached hospital and remained at the hospital for the entire. He did not remember as to whether his uncle Shiv Prakash or the I.O. were in the hospital or not. On the second day, after performing last rites, they reached their village in the night, he did not remember whether the scooter was lying on the spot or in the house. After 2-4 days from the incident, the scooter was seen standing at the home. He did not care as to whether there was blood on the scooter and on the cot. He also did not pay attention as to whether blood had fallen on the door or not. There was a crowd on the place of occurrence at the time of incident. He denied that his father had been injured at some other place and he had not seen the occurrence.
18. P.W.5, Dr. K.N.Joshi, T.B. department, Sapru Hospital, Allahabad, deposed that he had conducted post-mortem of the body of the deceased on 11.4.2000. He found the following injuries:
External injuries:
a. Fire-arm wound of entry present on the right side of the chest, 4 cm below right nipple, size 3 cm x 1 cm, margin inverted, charring, blackening and tattooing present.
Internal injuries:
a. Pleura lacerated b. Both lungs lacerated.
c. Heart lacerated.
d. Blood vessels lacerated e. Thorax cavity filled with blood f. Abdominal cavity filled with fluid.
g. Liver lacerated.
Cause of death- shock and hemorrhage as a result of Ante-mortem injury.
In the opinion of this witness, injury could have been occurred at 8:00 am on 10.4.2000. This witness has proved the post mortem report (Ex. Ka-2).
In cross-examination this witness has deposed that it is not possible to tell as to when the injuries were caused. It might have occurred 8-9 hours before the recorded time of death.
19. P.W.6, Kripa Shankar Dixit, I.O., deposed that on 10.4.2000, he was posted as S.O. Sarai Inayat; when informant Shiv Prakash Tiwari, moved a written complaint, an F.I.R. bearing no. 158 of 2000 under Section 307/ 504 I.P.C. was registered. The injured, Jai Prakash Tiwari, was sent to government hospital, Allahabad. After receiving copy of chick and report, he started investigation, recorded statements of F.I.R. scribe and copied it in CD, reached on the place of the occurrence with Chauki In-charge, Hanumanganj, Shri Ram Murti Pandey, where he came to know that after committing the crime the accused have gone towards Jamunipur by their Marshal Jeep No. UP 70 R 9145. Leaving the Chauki Incharge on the spot, he went in search of the accused persons but they could not be traced. Thereafter, he returned to the place of occurrence at about 11:00 a.m. Prem Narain Awasthi, H.C.P., informed about the death of the injured which he copied in CD and recrorded statement of the informant Shiv Prakash Tiwari and witness Kuldeep Mishra. He inspected the place of occurrence at the instance of the informant and prepared site map (Ex. Ka-3) in his handwriting and signature which he also proved.
Thereafter, he took blood stained and plain soil from the place of occurrence and got the recovery memo (Ex. Ka-4) prepared in the handwriting of S.I. Ram Murti Pandey and signed it. He also recorded statements of the witnesses present on the spot. Thereafter, he visited the house of the accused persons and searched it and recovered a country-made fire arm/gun of 303 bore and 7 cartridges. Besides, 5 live cartridges of 32 bore and 5 empty cartridges of 303 bore, 12 bombs were also recovered. Recovery memo (Ex. Ka5) was prepared. The proceeding was also entered in CD paper no.1. On 15.4.2000, knowing that the accused persons are disposing of their articles, moved an application for issuance of process under Section 82/83 of Cr.P.C. which was issued on 18.4.2000, pasted copy of process under Section 82 Cr.P.C. at the door of the accused persons. On 20.4.2000, he received information regarding fire arms inside the jeep of the accused persons on telephone. Thereafter, Marshal Jeep was taken to the premises of the police station where it was searched and 7 AK-47 cartridges were recovered under the rubber of driving seat about which recovery memo was prepared and an FIR under Section 25 Arms Act was lodged. On 21.4.2000, when accused persons surrendered, it was recorded in Parcha No. 8. He attached inquest and post mortem report with the CD and after taking permission of CJM Allahabad, visited Naini Jail and recorded the statement of accused persons. They denied the commission of crime but accused Kamal Mishra and Bimal Mishra agreed to get the crime weapon recovered. After that their house was searched but no weapon, used in the crime, was recovered. On 27.4.2000, CJM, Allahabad, permitted police custody remand on 28.4.2000 up to 3:00 pm. On the pointing out of the accused Kamal Mishra a country-made fire arm of 12 bore and on the pointing out of the accused Bimal Mishra a country-made fire arm of 315 bore with empty cartridges of 315 bore were recovered from an alluvial area near Government Tubewell Chhavaiya Road. Recovery memo was prepared and site map (Ex. Ka-6) was prepared. After coming to the police station the case property was deposited in Malkhana and a case under Section 25 Arms Act was also lodged. After that the accused were sent to Naini Jail. On different dates this witness has recorded the statements of several witnesses. On 25.5.2000, he prepared parcha no. 16 wherein criminal history of accused Shyam Bihari Mishra of two cases, accused Kamal Mishra of five cases and accused Bimal Mishra of 3 cases have been mentioned. Being satisfied that accused persons had committed the crime he submitted charge-sheet (Ex. Ka-7) under Section 302, 307, 504, and 34 I.P.C.
In cross-examination this witness deposed that, on 12.4.2000 he recovered Marshal Jeep from a village under the territorial limits of police station Kheeri and had admitted it in accordance with law at the police station. No article was recovered from the jeep. It was at police station till 20.4.2000. He does not know as to what happened when he remained within the premises of police station. He could not say when chick report Ex. Ka-8 was prepared by the police. He further deposed that no ticuli of empty cartridge was recovered from the spot. He admitted that the house of accused persons is at a distance of 150 meter from the place of the incident. He deposed that the informant Shiv Prakash Tiwari was working in RTO. He did not try to find out the time on 10.4.2000, when the informant Shiv Prakash Tiwari departed from the office. He replied that neither blood stained soil was found on the spot nor blood stained cot was there. He admits that on 10.4.2000 and 15.5.2000, it is not recorded in G.D. that statements of which witnesses were recorded by him. He did not remember that before 15.5.2000 Pawan Tiwari and Jai Hind Singh met him or not. He denied that on 10.4.2000 after lodging FIR, he had visited S.R.N. Hospital. This witness further deposed that Shiv Prakash Tiwari had not stated in his statement that the accused were standing in the street next to the shop of Meenu Malviya rather it was told that they were standing next to the shop. The same witness in his statement had not told about standing at the door but had told to watch the incident while being present on the spot. He had not even told about the moving ahead at the time of the incident. This witness has told that accused Kamal Mishra drove the Marshall Jeep.
Witness Jai Hind Singh, did not say in his statement that he had spoken to the informant about going to Vindhyachal together but has said that when he came to the house of informant Shiv Prakash Tiwari at around 8:00 am, the informant told him that his elder brother will also go with them, he has gone to worship Endree Devi.
Witness Pawan Tiwari did not depose that the accused were standing in the street next to the shop but had told that the accused were standing there. It was not even deposed that they were standing at their door. The witness has replied that he sat behind the wall. It was not deposed by him that he had hid behind the brick pile. He had deposed about running and escaping towards his house and had not replied that he had run towards the house through the same street in which he was hiding himself.
This witness further deposed that the FIR was lodged in his presence. He could tell whether Pawan Tiwari had come with the informant. There is no GD entry about the presence of Pawan Tiwari. On the date of the occurrence he had not met Pawan Tiwari and had not seen blood on him. This witness had not recorded the statement of Meenu Malviya. There is the house of Chandra Kant Shukla near the place of occurrence to the north of his house there is the house of Padam. If a person is standing 10 steps towards north-west corner or west of the houses of Chandra Kant Shukla and Padam Kant Shukla, he would not be able to see the place of occurrence. Houses of both the persons are pakka. During the investigation he knew that Shyam Bihari Mishra does service in Nagar Mahapalika. He did not know as to which post Shyam Bihari Mishra was posted nor he go there to inquire about his presence. According to this witness the information regarding the incident was given to the higher officials through R.T. Set. This witness denied suggestions given by the defence counsel. This witness could not recognize the signature on several papers of CD. He deposed that he did not remember as to who was the circle officer.
20. P.W.-7, Head Constable, Badri Prasad Mishra, deposed that on 10.4.2000, he was posed as constable moharrir in police station Sarai Inayat where informant Shiv Prakash Tiwari along with injured Jai Prakash Tiwari, Kuldeep Mishra, Jai Hind and Samod Singh came in a commander jeep no. UP 70 M 1317 driven by Chandra Dev Tiwari and submitted a written complaint on the basis of which chick FIR No. 127/2000 case crime no. 158 /2000 under Section 307 and 504 IPC against accused persons Shyam Bihari Mishra, Bimal Mishra, and Kamal Mishra was registered. He observed the injuries on the person of Jai Prakash Tiwari and prepared Chitti Majrubi/ injury letter and provided it to the constable Jeet Bahadur Singh and sent him with injured to Swaroop Rani Hospital for treatment. This witness has proved the chick FIR (Ex. Ka-8) to be in his handwriting and signature. He also proved the carbon copy of GD (Ex. Ka-9). copy of chick FIR and written complaint were given to the I.O. Kripa Shankar Dixit who departed for investigation. Constable Jeet Bahadur returned from the hospital and informed that injured Jai Prakash Tiwari has died and his dead body was in mortuary. This information was recorded and at about 11:00 a.m. Section 302 IPC was added and copy of it was sent to the I.O. Information was also sent to the senior officer through DCR (Ex.Ka-10). This witness has also proved G.D. regarding addition of Section 302 IPC.
In cross-examination this witness has deposed that there was order and signature of C.O. to send the chick to the Court on 13.4.2000. Injury letter is not on record because it was not returned by the constable Jeet Bahadur Singh. This witness denied the suggestions that as per rules GD should be sent to the C.O. Office by next date. He deposed that signature dated 13.4.2000 of P.O. has been made on G.D. dated 10.4.2000.
21. P.W.-8, Sant Kumar Chaturvedi, H.C.P., deposed that on 10.4.2000, he was posted at police station Kotwali, Allahabad. That day he received copy of memo of tehrir and memo of S.R.N. Hospital after death of Jai Prakash Tiwari for preparation of inquest report. He prepared inquest report, challan nash and photo nash, letter to C.M.O., R.I. and specimen seal and proved it as Ex. Ka 12 to Ex. Ka-18.
In cross-examination he has admitted that at the time of inquest he did not know about the lodging of the F.I.R.
22. After completion of oral evidence, the statement of the accused persons have been recorded under Section 313 Cr.P.C.
(i). Accused Shyam Bihari Mishra denied all the questions and stated that witnesses have deposed on account of enmity and the case has been lodged due to enmity. He works in Nagar Mahapalika and on the date of occurrence, he was on duty in Naini, Allahabad with officials, 28 km away from the village.
(ii). Accused Kamal Mishra, also denied all the questions and in addition to it, has stated that the deceased was a criminal, there were several other enemies of him, he has been killed at a different place and time.
(iii). Accused Bimal Mishra also denied the questions and charges and has stated that the deceased was a criminal, having several other enemies. He was killed at some other place and time. Forged papers were prepared much later. After death of Jai Prakash false report was lodged after consultation.
23. In defence four witnesses have been examined. The evidence of these witnesses shall be described and discussed later on at the appropriate place.
24. The appeal is being decided as under.
25. Learned counsel for the appellants has submitted the argument that the prosecution has failed to establish any motive against the accused persons.
26. Motive: In F.I.R. it is mentioned that there was old enmity regarding land between the parties before the commission of crime which was the reason behind the murder of the deceased.
P.W.-1, Shiv Prakash Tiwari, in his examination in chief has deposed that there was old enmity from the accused due to purchase of the land of Khasra no. 1005 from Sudarshan son of Sundar. In cross-examination, he replied that there was 18 biswa land between the Government hospital and the road. Three partners got executed registered agreement in 1998. He, Senior Vajpayee and another had purchased three biswa land each. He and Vinay Vajpayee sold the land from their share to his sister. He expressed ignorance about the fact of selling of 4 biswa land of Sudarshan Dubey to Purshottam Dubey whether the mutation has been done in the name of Purshottam Dubey. He also expressed ignorance that Purushottam Dubey has executed any power of attorney in favour of the accused Kamal Mishra on 31.1.2000 or not. This witness admits that Kuldeep Mishra is the son of his sister who has purchased 5 biswa land from the aforesaid plot. This witness denied that he and Kuldeep Mishra wanted to occupy the land illegally and in the past they were stopped by Purshottam Dubey. Asking such question also establishes previous land enmity between the parties.
Thus, from the above cross-examination also it is established that there was existing land enmity between the parties which formed motive to commit the offence.
P.W.4, Pawan Tiwari, son of the deceased has also deposed in examination-in-chief that due to land enmity accused persons have killed his father. No cross-examination has been made in this regard from this witness. Hence, evidence regarding previous land enmity and cause of killing the deceased remains intact and unrebutted.
It is a case of direct evidence wherein motive has no significance and moreover, motive put by the prosecution has been proved by the prosecution witnesses and by the way of cross-examination defence has also admitted that there was previous enmity between the parties and Sudarshan Dubey had executed sale-deed regarding his land in favour of Kuldeep Mishra and some part of his land was purchased by the victim's family and their relative. Therefore, there was a boon of contention between the parties due to which this offence had been committed.
In Lekhraj @ Hari Singh Vs. State of Gujrat 1998 SCC(Cri) 704, Supreme Court has held that-
"an accused can be convicted even in absence of proof of motive."
In Harphool and Ramjeevan Vs. State of Rajasthan, 2002 SCC Online, Raj 988, Division Bench of High Court of Rajasthan has held that-
"in a case of direct evidence, absence of motive is not fatal."
In the case of Saddik @ Lalo Gulam Hussein Shaikh and others vs. State of Gujrat, (2016) 10 SCC 663, the Apex Court in paragraph 21 has observed as under:
"21. It is settled legal position that even if the absence of motive, as alleged, is accepted, that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part losses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence cannot be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance."
Yet the Hon'ble Apex Court in the case of Raj Gopal Vs. Muthupandi @ Thavakkalai and others, (2017) 11 SCC 120, in paragraph 14 has observed as under:
"14. Equally, it is well established that motive does not have to be established where there is direct evidence. Given the brutal assault made on P.W.1 by criminals, the fact that witnesses have turned hostile can also cut both ways, as is well known in criminal jurisprudence."
On the basis of above discussion appellants argument regarding motive is dismissed.
27. F.I.R.- About F.I.R. it has been argued that it was lodged anti-timed and it had been written on the dictation of the Police.
In this case as per prosecution, the occurrence took place at about 8:30 a.m. on 10.4.2000. The distance of the police station from the place of occurrence is 12 km and the F.I.R. has been lodged on same day at 9:30 a.m., It is also noteworthy that the name of the accused persons, manner of assault and name of witnesses, motive, pre and post conduct and behaviour of the accused persons have also been mentioned in the F.I.R. which was sufficient to proceed with the Tehrir. It is also established law that F.I.R. is not a substantive piece of evidence, it is an instrument to accelerate the police machinery to investigate the case. However, sufficient facts have been mentioned in the F.I.R.
In this case the F.I.R. was lodged one hour and five minutes after the incident and after some time the deceased was sent for treatment to S.R.N. hospital. The I.O. has visited the spot same day and prepared the map, inquest has been prepared same day and the dead body was also transported to mortuary same day. After the death of the deceased the case was converted from Section 307 to 302 IPC same day on 10.4.2000 vide report no. 19 on 11:00 am and G.D., Ex. Ka-10, was also prepared. All the papers regarding inquest and post-mortem were prepared by P.W.8 S.K. Chaturvedi same day except form no. 13. Tehrir and Chick F.I.R. was transcripted in case-diary same day. Statements of the informant Shiv Prakash Tiwari was also recorded same day and same day blood stained and simple clay was also taken from the place of occurrence. On 10.4.2000 the house of the accused persons was also raided and a country-made pistol of 303 bore, 7 cartridges and 12 bombs were recovered and its recovery memo was prepared.
In Girish Yadav and others Vs. State of M.P. (1996) 8 SCC 186, Supreme Court held that -
"except Maharaj Singh Vs. State of U.P. 1994 SCC (Cri) 139 there are some other external checks also to check as to whether F.I.R. was ante-timed or ante-dated. The list is exhaustive as in the cited case site plan was prepared in the presence of first informant giving case crime number and sanha entry maintained at the police station giving all the relevant contents of the the F.I.R. are also external checks."
In Prem Nath Yadav Vs. State of U.P. 2022 (2) ACR 1065 (L.B.) it has been held that "when incident took place at 7:00 'O' clock in the morning, F.I.R. was lodged at 8:10 a.m. Inquest report was in support of the prosecution version. The Division Bench of this Court held that in these circumstances it can not be said that F.I.R. was ante-timed."
In this regard paragraph 12 of Maharaj Singh Vs. State of U.P. (1994) 5 SCC 188, Ram Sajeevan Singh and others Vs. State of Bihar (1996) 8 SCC 552 are relevant in which the Hon'ble Apex Court held that "in order to prove the F.I.R. to be ante-timed, it is to be proved beyond doubt and merely on asking, the same cannot be held to be ante-timed, particularly when the chain/sequence of the events itself link so as to suggest that there is no possibility of the F.I.R. to be ante-timed. "
Thus it can not be said that the F.I.R. is ante-dated or ante-timed or it was reduced in writing at the behest of police personnel.
28. Learned counsel for the appellants argued that the copy of the chick F.I.R. not sent just after lodging the F.I.R. to the concerned Magistrate, under Section 157 Cr.P.C. is fatal for the prosecution. On this basis it is argued that since the F.I.R. was not lodged at the time mentioned in chick F.I.R. therefore, chick, F.I.R. was not sent to the concerned Magistrate immediately. In this regard facts evidence and relevant law are being discussed below.
Chick F.I.R. Ex. Ka-8 is on record in which it is written that it has been sent through post but there is no signature of the concerned Magistrate. As per Section 157 Cr.P.C., it should be sent immediately but generally this is never sent forthwith to the concerned Magistrate. There is provision to send it to the concerned Magistrate to take cognizance of such offence upon the police report. Though it is proved that just after lodging the F.I.R., the I.O. started investigation and visited the place of occurrence. The object of this provision is obvious and it involves mere technical compliance with law.
In State of U.P. Vs. Gokaran and Others, AIR 1985 SC 131 and in Pala Singh Vs. State of Punjab, AIR 1972 SC 2679, it has been held that-
" it is not as if every delay in sending such special report to the District Magistrate under Section 157 Cr.P.C. necessarily leads to the inference that the F.I.R. has not been lodged at the time stated or has been ante-timed or ante-dated or that the investigation is not fair and forthright."
In Anil Rai Vs. State of Bihar, 2001 7 SCC 318 and State of Punjab Vs. Hakam Singh (2005) 7 SCC 408, it has been held that-
"delay in sending copy of F.I.R. to the Area Magistrate is not material where the F.I.R. is shown to have been lodged promptly and investigation had started on that basis. Delay is not material when the prosecution has given reasonable explanation."
In State of Karnataka Vs. Moin Patel, (1996) 8 SCC 167 and in Betal Singh Vs. State of M.P., AIR 1996 SC 2770, it is held that -
"when the F.I.R. Was recorded without delay and investigation was started on the basis thereof, mere delay in dispatch of the F.I.R. To the Magistrate would not make the prosecution case suspicious."
In this case defence could not create any doubt about the F.I.R. being lodged ante-dated and ante-timed. The investigation started just after the F.I.R. was lodged. After few hours the deceased had been declared brought dead and the proceeding of inquest and post-mortem had been started. The I.O. had visited the spot and prepared map and had also recorded statement of informant, therefore, only delay in sending the report/copy of the F.I.R. to the Magistrate under Section 157 Cr.P.C. is not fatal for the prosecution and in no way affects the merit of the case.
29. Inquest- Learned counsel for the appellant argued that neither crime number, Section nor copy of chick F.I.R. was indexed with the inquest. In this regard, it is clarified by the prosecution that the matter relates to the police station Sarai Inayat and after lodging the F.I.R. the injured was sent to SRN Hospital for treatment and before reaching the hospital the deceased died on the way. Hence, doctors in the hospital found him 'brought dead'. Therefore, they did not pay attention to the injury letter (Majroobi Chitti) and it was returned to the concerned constable. It was not even taken and considered by the I.O. The inquest was conducted after information from SRN hospital by HCP S.K. Chaturvedi of Kotwali Allahabad, who was not posted in police station Sarai Inayat, therefore, absence of copy of chick F.I.R. and non mentioning of crime number and sections are not material. Moreover, inquest is not substantive piece of evidence. It is a process only to ascertain prima facie cause of death as to whether death was a natural or unnatural. During inquest, it was found that there was gun shot injury on the right chest of the deceased.
In Radha Mohan Singh alias Lal Saheb Vs. State of U.P., 2006 (54) ACC 862, it has been held that-
"Argument advanced regarding omissions, discrepancies, overwriting, contradiction in inquest report should not be entertained unless attention of author thereof is drawn to the aid fact and opportunity is given to him to explain when he is examined as a witness. Necessary contents of an inquest report prepared u/s 174 CrPC and the investigation for that purpose is limited in scope and is confined to ascertained of apparent cause of death. It is concerned with discovering whether in a given case the death was accidental, suicidal or homicidal or caused by animal, and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. Details of overt acts need not be recorded in inquest report. Question regarding details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted or who were the witnesses of the assault is foreign to the ambit and scope of proceedings u/s 174 CrPC. There is no requirement in law to mention details of FIR, names of accused or the names of eyewitnesses or the gist of their statements in inquest report, nor is the said report required to be signed by any eye witness."
In Podda Narain Vs. State of A.P., AIR 1975 SC 1252, it is held that-
"the object of the inquest report 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. According to the Apex Court, the question regarding the details how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foregin to the ambit and scope of such proceedings."
This Court is of the opinion that for inquest there is no need of previously lodged F.I.R. Suppose an unidentified dead body is found and no FIR is being lodged, in that case, the police shall visit the place and shall take the dead body in its possession and shall conduct inquest and post-mortem and shall publish news in media and newspaper, if after few days any person comes and claims the dead body and moves written complaint to lodge the F.I.R., it cannot be said that there was no occasion to conduct the inquest proceeding. In this case F.I.R. had already been lodged though copy of the chick F.I.R. was not with the Kotwali police while conducting the inquest. Hence, according to this court there is no scope of argument at this point.
It is also argued that form 13 was not prepared. The preparation of papers such as photo nash, challan nash, letter to R.I. and C.M.O. and preparation of form 13 are formal in nature. Omission of any of them does not adversely affect the merit of the case. Hence, the argument in respect of non preparation of form 13 being of no value, is rejected.
Thus, there is no irregularity or illegality in conducting and preparing the inquest report.
30. Autopsy: - It is also argued that the autopsy report is not in support of the prosecution version and it has been conducted after inordinate and unexplained delay.
In this case the offence took place in the morning of 10.4.2000 and in afternoon the injured was declared dead. The inquest proceeding was finished at 4:25 p.m. and after that the dead body was sent to the mortuary through R.I., it was almost night by then, therefore, without the order of District Magistrate, post mortem of the dead body was not possible. There might have been some other reason such as non availability of doctor etc. This court is of the view that it does not appear that any inordinate delay has been caused in autopsy but if it is so, it is in no way relevant and fatal for the prosecution.
On 11.4.2000 at 2:00 pm autopsy was conducted by P.W.5 Dr. K.N. Joshi wherein he found fire arm wound of entry on the right side of chest 4 cm below right nipple size 3 cm X 1 cm, margins inverted, charring, blackening and tattooing present, 63 small pellets with one wad recovered from the thorax cavity. According to the doctor, the cause of death was shock and hammerahage as a result of anti morterm injury. Thus the contents of F.I.R., inquest and oral evidence and post-mortm report and evidence of the doctor are in conformity with each other. It is also established that deceased was shot at a very close range.
In Budh Singh Vs. State of MP, AIR 2007 SC (Suppl) 267 and Swaran Singh Vs. State of Punjab, AIR 2000 SC 2017, it has been held that-
"where the wound was caused from a gun fire, blackening could be found only when the shot was fired from a distance of about 3 to 4 feet and not beyond the same."
In Bharat Singh Vs. State of UP, AIR 1999 SC 717, it has been held that-
"the absence of scorching, blackening and tattooing injuries will not discredit eye witness account in the absence of positive opinions from doctor and testimony on distance of firing."
In this case it is deposed by the witnesses that the accused Kamal Mishra shot the deceased from a close range. If a person observes an incident from behind or from afar, then it appears to be shot from a close range while in reality it is not so. In this case blackening and tattooing were present in and above the gun shot injury and pellets and wad had also entered into the body of the deceased. Hence, there is no contradiction between the ocular and the medical evidence.
In Sarvesh Narain Shukla Vs. Daroga Singh, AIR 2008 SC 320, it has been held that-
" Where the witnesses had testified the use of assortment of modern fire arms from a distance of 1 to 2 feet and the defence had argued that only shot guns were used and the medical evidence was to the effect that all the entry wounds showed signs of charring and tattooing and had different dimensions, it has been held that the medical evidence was not inconsistent with the ocular evidence as to the use of different fire arms."
In Ram Swaroop Vs. State of U.P. 2000, (40) ACC 432 (SC), it has been held that -
" it is well settled that doctor can never be absolutely certain on point of time of duration of injuries."
In Ramjee Rai Vs. State of Bihar, 2007, (57) ACC 385 (SC), it has been held that-
" Medical science has not achieved such perfection so as to enable a medical practitioner to categorically state in regard to the exact time of death"
Supreme Court clarified that the doctor can never be absolutely certain about the time of death.
Thus, it is concluded that the autopsy report is in complete support of the prosecution version.
31. About Witnesses:-
(i). It is argued by the learned counsel for the appellants that the witnesses are the family members and they are not deposing the truth.
It is true that all the witnesses are family members or from the vicinity. P.W.-1 is the real brother and P.W.4 is the son of the deceased. P.W.-2, scribe, is the neighbor and P.W.3 Jai Hind Singh, is also the resident of the same village. All the witnesses are natural witnesses. They are not chance witness. P.W.3 Jai Hindh Singh, was scheduled to go to Vindhyachal for darshan with the deceased. It is often seen that some people of the neighborhood and relatives go together for darshan/poojan, if space is available in the vehicle. There is no enmity between the independent witness P.W.3 Jai Hind Singh and the accused persons. There is no suggestion or evidence from the side of the defence that they were not there. There is no law which suggests that related and family members can not be relied upon. Only proper scrutiny and cautious appreciation of their evidence is necessary.
In Bhagwan Jagannath Markad Vs. State of Maharashtra, (2016) 10 SCC 537, Shyam Babu Vs. State of U.P., AIR 2012 SC 3311, Sonelal Vs. State of M.P., AIR 2009 SC 760, Sucha Singh Vs. State of Punjab, (2003) 7 SCC 270, the Apex Court has held that-
"The testimony of a witness in a criminal trial cannot be discarded merely because the witness is a relative or family member of the victim of the offence. In such a case, court has to adopt a careful approach in analyzing the evidence of such witness and if the testimony of the related witness is otherwise found credible accused can be convicted on the basis of testimony of such related witness."
In Dharamveer Vs. State of U.P., AIR, 2010, SC 1378, Dilawar Singh Vs. State of Haryana, (2015) 1 SCC 737, Ramesh Harijan Vs. State of U.P., (2012) 5 SCC 777, it has been held that -
"Enmity of the witnesses with the accused is not a ground to reject their testimony and if on proper scrutiny, the testimony of such witnesses is found reliable, the accused can be convicted. However, the possibility of falsely involving some persons in the crime or exaggerating the role of the accused by such witnesses should be kept in mind and ascertained on the facts of each case."
Thus, it cannot be said that since the witnesses P.W.1 and P.W.4 are the family members of the deceased, therefore, they are falsely testifying themselves in support of the prosecution.
Prosecution has relied on Shahaja @ Shahajan Ismail Mohd. Shaikh Vs. State of Maharashtra, 2022 0 Supreme (SC ) 569, in para 22 & 23, it is held that -
"22. In Nain Singh v. State of U.P., (1991) 2 SCC 432 : (1991) SCC (Cri) 421, in which all the aforesaid decisions as referred to hereinabove were considered and after considering the aforesaid decisions on the question of exercise of power under Article 136 of the Constitution and after agreeing with the views ex- pressed in the aforesaid decisions, the Court finally laid down the principle that the evidence adduced by the prosecution in that decision fell short of the test of reliability and acceptability and, therefore, was highly unsafe to act upon it. In State of U.P. v. Babul Nath, (1994) 6 SCC 29 : 1994 SCC (Cri) 1585, this Court, while considering the scope of Article 136 as to when this Court is entitled to upset the findings of fact, observed as follows: (SCC p. 33, para 5) "5. At the very outset we may mention that in an appeal under Article 136 of the Constitution this Court does not normally reappraise the evidence by itself and go into the question of credibility of the witnesses and the assessment of the evidence by the High Court is accepted by the Supreme Court as final unless, of course, the appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and mis- reading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record."
23. From the aforesaid decisions of this Court on the exercise of power of the Supreme Court under Article 136 of the Constitution, the following principles emerge:
(i) The powers of this Court under Article 136 of the Constitution are very wide but in criminal appeals this Court does not interfere with the concur- rent findings of fact save in exceptional circumstances.
(ii) It is open to this Court to interfere with the findings of fact recorded by the High Court if the High Court has acted perversely or otherwise improperly.
(iii) It is open to this Court to invoke the power under Article 136 only in very exceptional circumstances as and when a question of law of general public importance arises or a decision shocks the conscience of the Court.
(iv) When the evidence adduced by the prosecution falls short of the test of re-
liability and acceptability and as such it is highly unsafe to act upon it.
(v) Where the appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, er- rors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evi- dence on record. "
Para 27 & 28 are as follows:
"27. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
[See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 Cri LJ 1096 : AIR 1983 SC 753, Leela Ram v. State of Haryana, AIR 1999 SC 3717, and Tahsildar Singh v. State of UP, AIR 1959 SC 1012]
28. To put it simply, in assessing the value of the evidence of the eye- witnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence. "
It is also held that few contradictions in form of omissions here or there are not sufficient to discard the entire evidence of an eyewitness. Medical evidence on record further corroborates ocular version of eyewitnesses. Hence, it was held that Courts below rightly believed both the eyewitnesses. The circumstances are similar here and the principles laid down in the above precedents are relevant for the present case.
(ii). Non examination of the following witnesses :-
Learned counsel for the appellants argued that non examination of constable 1740 Jeet Bahadur Singh, Raghudutt Mishra, death informer and constable 1670 Bharat Lal is fatal for the prosecution.
According to this Court it has never been held that in every case constable who carried and accompanied an injured to hospital or a deceased to the mortuary would have been examined. Constable Jeet Bahadur had already informed the police station about death of the injured. It is not a case of circumstantial evidence where the examination of all the concerned is necessary to prove all the links. Hence, this argument has no force and is accordingly rejected.
32. Non submission of F.S.L. Report in respect of blood stained and plain soil or blood stained clothes:
(I) It is argued by the learned counsel for the appellants that the F.S.L. report has not been produced in support of the prosecution story therefore the case of the prosecution can not be said to be proved beyond reasonable doubt.
(II) In this case though the plain and blood stained clay were taken but the report of the same has not been produced. The I.O. has also not taken blood stained clothes of the deceased or the witnesses and has not sent the same for F.S.L. report. From the evidence of witnesses it is clearly established that the place of occurrence is the same place as alleged by the informant and the prosecution since beginning of the case. Contrary to it, though suggestions have been given that the deceased was killed at different place but no doubt could be created about the place of occurrence. From the oral and the documentary evidence the place of occurrence alleged in the written complaint is fully established.
(III) In Maqbool Vs. State of A.P., AIR 2011 SC 184, Sheo Shankar Singh Vs. State of Jharkhand, 2011, CrLJ 2139 (SC) and Dhanaj Singh Vs. State of Punjab, (2004) 3 SCC 654, it has been held that -
"non sending of blood stained earth and clothes of the deceased or injured to chemical examiner for chemical examination is not fatal to the case of the prosecution if the ocular testimony is found credible and cogent.
(IV) In Keshav Lal Vs. State of M.P., (2002) 3 SCC 254, it is held that-
"if the evidence of eyewitnesses is otherwise trustworthy, non availability or non ascertainment of blood group/blood marks/blood stains report can not be made a basis to discard the witnesses who otherwise inspire confidence of the Court and are believed by it."
(V) Thus, the lack of report regarding blood stained soil and clothes and plain soil is not fatal for prosecution and the defence argument in this regard is not tenable.
33. It is argued that the F.S.L. Report regarding the fire-arm and the cartridges is not in support of the prosecution story.
F.S.L. report dated 9.11.2000, is on record. The laboratory received two bundles ' A & B' and envelop 'C'.
In bundle A, a country-made pistol of 12 bore and an executed cartridge of same bore were found. The country made pistol was marked as 1/2000 and cartridge was marked as E.C.-1 whose cap was torn.
In bundle B, case property of crime number 202 of 2000 were keptin which a country-made pistol of .315 bore marked as 2/2000 and a cartridge marked as E.C.-2 was kept.
After testing it was found that three cartridges of 12 bore marked as T.C.-1 to T.C.3 were executed from the country-made pistol marked as 1/2000. It is already said that the cap of disputed cartridge marked E.C.-1 (12 bore) was torn, centre mark was present and feeble mark of extractor was also present. It is already said that for examination cartridges T.C.1 to T.C.-3 were executed from country-made pistol of 12 bore marked as 1/2000 and it was noticed that the caps from T.C. -1 to T.C.-3 were torn in a similar way. Though there is a lack of individual characteristic to compare the center mark present on it with the marks present on the test cartridges marked as T.C.-1 to T.C.-3 and concluded that sufficient marks were not found when the controversial cartridge marked E.C.-1 was compared with the country-made pistol marked 1/2000.
Country-made pistol of .315 bore was marked as 2/2000 and used cartridge was marked as E.C.-2 for comparison. Two cartridges marked as T.C.-4 and T.C.-5 were executed during the examination. The E.C.-2 (.315 bore) had two firing pin marks on the cap and a chamber cap on the middle shell. On T.C.-4 and T.C.-5 firing pin marks were present and they had centre mark and also feeble mark. It was opined that out of the two firing mark of the pin present on the disputed cartridges marked E.C.-2, one mark and the middle mark present on it were similar in individual characteristic to the firing pin and the middle mark present on the test cartridges T.C.-4 and T.C.-5 though the second dent lacks individual characteristic.
The laboratory concluded that- (i) sufficient marks were not found to compare the disputed cartridge marked E.C.-1 with the country-made pistol marked 1/2000; (ii) the disputed cartridge marked E.C.2 was fired by country-made pistol marked 2/2000; (iii) received 63 pieces of pellets and wad may have been fired from country-made pistols marked 1/2000 but it is not possible to give a definite opinion in this matter.
In M.K. Upadhyaya Vs. State of A.P., (2012) 3 SCC (Cri.) 42, it has been held that-
"A bullet was recovered from the scene of crime. Later on a pistol was recovered at the instance of accused. Ballistic expert opinion disclosed that bullet recovered from the scene of crime was fired from the pistol recovered at the instance of accused. Ballistic expert opinion/evidence is a strong incriminating circumstance against the accused."
In Leela Ram Vs. State, (1999) 9 SCC 525, it has been held that-
"whether the ballistic expert had given opinion that if the empty cartridges recovered from the spot of occurrence matched with the injury. It has been held that it was a piece of evidence and could not be brushed aside."
In Anand Mohan Vs. State of Bihar, (2012) 3 SCC (Cri.) 328, submission of defence was that witnesses had deposed that deceased was shot by B when he was laying injured on ground but medical evidence established that bullets were fired when deceased was in a standing position and then evidence of witnesses should be discarded. Dr. as P.W.-16 had stated that fire arm injuries could have been caused to the deceased even in standing or sleeping position. Therefore, it cannot be said that there was any contradiction between oral and medical evidence. So the submission of defence was rejected.
In Mohd. Mian Vs. State of U.P., (2011) 2 SCC (Cri.) 694, Apex Court referring page 724-725, 23rd Edition of Modi Medical Jurisprudence and Toxicology, held that-
"if country-made pistol had been used, the performance of these weapons being unpredictable and uncertain the trajectory of the bullet alone would not be a safe guide for assessing the entire evidence more particularly as the projectiles could have been deflected from their true path by the bones or tissues that came along the way."
In this case country-made firearms have been used in commission of crime, therefore, the defence can not expect that the F.S.L. report should be in accordance of the standard prescribed for the factory made firearms.
In Modi's Medical Jurisprudence and Toxicology, 23rd Edition page 716, it is mentioned "that when there is a close shot that is in the range of powder blast and the flame is within 1-3 inches, for small arms there is a collar of soot and grease (if present on the bullet) around the circular wound of entry. Singed hairs may be seen if the body is not covered with clothing. Partially burnt and unburnt grains of powder are blasted into the skin causing a tattooing which can not be easily wiped off. Wadding, pieces of clothing or other debris may be found lodged in the wound. The entry wound of a revolver fired very near or in contact with the skin is generally stellate or cruciform in shape instead of being circular. When it is fired beyond a distance of 12 inches, there are no powder marks of soot or heat effects around the wound. If the revolver is fired close to the skin but held at an angle, the smudging and tattooing is limited only to one side of the bullet hole."
Further at page 721 in the above noted book Modi has mentioned that "If a fire arm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches around the wound of entrance or lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt grains of gun powder or smokeless propellant powder. The adjacent hairs are singed and the clothes covering the part are burnt by the flame. If the powder is smokeless, there may be a grayish or white deposit on the skin around the wound.----- blackening is found, if a firearm like a shotgun is discharged from a distance of not more than three feet and a revolver or a pistol discharged within about two feet. In the absence of powder residue, no distinction can be made between one distant shot and another, as far as distance is concerned. Scorching in the case of the latter firearm is observed within a few inches, while some evidence of scorching in the case of shotguns may be found even at one to three feet. Moreover, these signs may be absent when the weapon is pressed tightly against the skin of the body as the gases of the explosion and the flame smoke and particles of the gun powder will all follow the track of the bullet in the body. Wetting of the skin or clothes by rain reduces the scorching range. Blackening is not affected by wet surface although it can easily be removed by a wet cloth. Blackening with a high power rifle can occur up to about one feet. Usually, if there are unburnt powder grains, the indication is that the shot was fired from a revolver or a pistol and shorter the barrel of the weapon used the greater will be the tendency to the presence of the unburnt of slightly burnt powder grains."
Thus, it is proved that it was a very close range shot by the accused and not the contact range shot and in the fact and circumstances it can not be said that the witnesses have not seen the occurrence and their evidence is not trustworthy.
In Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, 7th edition page 246, it is mentioned that a close discharge i.e. between actual contact and about 6 inches, is likely to show the following features;
a- where clothing is present, it will trap most of the soot and powder grains, and may reduce the flame effect.
b- Scorching of skin, singeing of hair, and blackening and tattooing (far less with smokeless powder) of skin are generally seen.
c- depending on the angle of firing, the wound is circular or elliptical, and the age may be smooth or crenated depending on the size of the pellets. There are no separate pellets holes.
In this case it has been concluded that witnesses observed the commission of crime from behind and due a little distance between the accused and the deceased they thought that the deceased had been shot from a contact range but virtually it was a close range shot by the accused. Therefore, the charring, blackening and tattooing were found on the wound of entry.
In this case empty cartridges of 12 bore and the country-made pistol of 12 bore and .315 bore were not recovered from the place of occurrence but were recovered on the pointing out of accused persons. Used pellets of 12 bore, 63 in number were also recovered from the body of the deceased during the autopsy thus, the F.S.L. report supports the prosecution version and admissible in evidence in favour of the prosecution. In this case, there is no variation or discrepancy between the ocular evidence, post mortem report or the F.S.L. Report.
34. No question has been put under Section 313 Cr.P.C. at this point. In this regard argument of the prosecution is accepted that report of F.S.L. is admissible in evidence under Section 293 Cr.P.C. and no application has been moved by the accused persons to summon the scientist who prepared the report. Hence, non putting of questions under Section 313 Cr.P.C. to the accused persons is not fatal for the prosecution and even in absence of that F.S.L. Report shall be read and would be admissible in evidence.
35. Place of occurrence: Learned counsel for the appellants argued that the prosecution has not been able to prove the place of occurrence.
36. As per F.I.R., site plan and evidence of the witnesses, the place of occurrence is the place 'C' shown in map (Ex. Ka-3) which is in front of the house of Padamkant Malviya and Mithai Prajapati. It is established from the evidence that before the commission of crime deceased had gone for the worship with his nephew Kuldeep and in the return journey, when he slowed down scooter due to drain, accused Shyam Bihari Mishra exhorted from the place 'B' which is a lane between the house of Krishna Kant Malviya and shop of Meenu Malviya. Being induced by the exhortation his two sons namely Kamal Mishra and Vimal Mishra went ahead and when the deceased proceeded further, he was stopped from the front side by the accused Vimal Mishra at place 'J' and third accused Kamal Mishra, shot him from a close range from 12 bore country-made pistol at place 'C', just before the place 'J'. The I.O. had found blood there, where from blood stained and plain clay were taken. As per the evidence and the map, witnesses were at place 'E' where from they saw the incident and started chasing the accused. Way of the witnesses has been shown by the mark of two arrows in the map and when witnesses started chasing, accused Vimal Mishra, fired at the informant with the intention to kill him. In order to save himself, the informant, hid behind the bricks plates at place 'H' in front of the house of Jagdeo Prajapati, therefore, he was escaped. Witness Kuldeep Mishra hid at place 'G' at the south east corner of the house of Padam Kant Malviya. Way to escape of the accused persons has been shown by single arrow which is just towards their house. The I.O. has also mentioned distance in steps between the relevant places in the index of the map.
37. Learned counsel for the appellants argued that the manner of the assault and stopping of the scooter is not proved but a close scrutiny shows and establishes that there is no material difference in the evidence of the witnesses. If some facts relating to commission of crime are not narrated in the written complaint, it is not fatal for the prosecution. Every second's act done by the accused persons and the witnesses cannot be narrated in the FIR.
38. The defense counsel has cross-examined the witnesses from different angles as to whether the place of occurrence could be seen from this place or that place or angle is not material because their presence at the place of occurrence is fully established and they were in position to watch the entire incident which happened on the open pathway. Whether the scooter was stopped from the front side or from the left or right side is not material and if some contradictions occur in this regard, the same can not be a ground to discard the testimony of the eye witnesses. In this regard if some statements have not been recorded by the I.O., is not material. Hence, argument regarding place of occurrence is rejected.
39. Learned counsel further argued that the injury letter (Chitti Majrubi), is not on record. Since the injured had died before reaching the S.R.N. Hospital and no occasion arose to his treatment. Hence, it was not taken by the doctor and it was also not returned to the I.O. ( Non submission of injury letter is neither material nor fatal for the prosecution). P.W.7, Badree Prasad Mishra, has proved that after preparing injury letter, it was given to the constable Jeet Bahadur Singh with whom the injured was sent for the treatment at S.R.N. Hospital.
40. Learned counsel for the appellant argued that non examination of Kuldeep Mishra alleged pillion rider is fatal for the prosecution. From the perusal of record, it is revealed that the statement of Kuldeep Mishra was recorded by the I.O. same day i.e. 10.4.2000 but he could not be examined in Court due to his mental illness. During the course of trial an application 59 B was produced with the averment that the mental condition of Kuldeep Mishra was not good and he was not in position to be testified. The trial Court accepted the prayer and discharged him. Thus, the argument has no force and is rejected accordingly.
41. Further, it is argued that if the alleged occurrence had happened and the life of the deceased was in danger, why the deceased was not firstly taken to the hospital and why the time was wasted in writing the complaint at the house. The informant, P.W.-1, in his cross-examination has deposed that he dictated the written complaint to P.W.3 and after being satisfied, he signed it. It would have taken only 15-20 minutes ( In between the jeep was also arranged). Thereafter, he loaded his brother in commander jeep and reached the police station at around 9:00 A.M. wherefrom the injured was sent to the hospital through constable at 9:30 A.M. It must have taken about half an hour at the police station. When he was at the police station, his brother's condition had become critical. He thought information at the police station was necessary than taking his brother to the hospital immediately. At the police station he kept telling that his brother's condition was critical and let him take to the hospital but they let him go only after writing the tehrir. It would have taken about an hour in reaching the hospital from the police station. He reached the hospital at around 10:30 A.M. through Shashtri Bridge, it would have taken around 10-15 minutes.
P.W.4, Pawan Tiwari, son of the deceased has also deposed that after the incident they brought his father home, their uncle got the tehrir written and brought him to the police station from another jeep where after 15-20 minutes they alongwith constable went to S.R.N. Hospital where doctor told that the deceased had died.
P.W.2, Satya Prakash Tiwari, scribe has deposed that on 10.4.2000 he had written the tehrir and has proved it as Ex. Ka-1. According to this Court, it depends upon the outlook or advice of people as to whether they think it is proper to write the complaint first or to attempt to provide medical help to the injured. It has come in evidence that the village government hospital was not properly working and there was no proper facility to treat such injured. The suitable hospital were far away and the police station was on the way to S.R.N. Hospital. It might be possible that the informant and his family members would have thought that there was little hope of survival so first of all F.I.R. should be lodged. Thus, this Court believes that after the incident if written complaint was prepared on the spot and the F.I.R. was lodged first, the same would not affect the merit of the case otherwise.
42. Learned counsel for the appellants also argued that in this case the I.O. has not recorded the statement of the witnesses in time but has recorded the statement after unreasonable delay which is fatal for the prosecution and it creates doubt about their presence.
43. P.W.6 , S.H.O., Kripa Shankar Mishra, I.O. started the investigation the same day on 10.4.2000, he copied the chick F.I.R., G.D., recorded the statement of the informant, reached on the spot, search the accused persons and after receiving the information of the death of the injured, entered it into the case diary and changed the section, recorded the statement of informant Shiv Prakash Tiwari and witness Kuldeep Mishra, inspected the place of occurrence and prepared the map, took blood stained and plaint soil and recorded the statement of two witnesses, searched the house of the accused persons and recovered bombs, the country made pistol and cartridges and took it into possession and prepared recovery memo same day.
44. Thus, there is no delay in recording the statement of the informant and three witnesses. On 13.4.2000, the I.O. recorded the statement of Virendra Bahadur Singh and Babbu Singh and took the marshal jeep of the accused persons into custody. After knowing that the accused persons have surrendered in the Court and they were sent to Naini Jail, after obtaining permission recorded their statement and moved application for police custody remand. It is true that the statements of witnesses Pawan Tiwari and Jai Hind Singh, were not recorded forthwith just after receiving the investigation by the I.O. But it is pertinent to mention that they were named in the F.I.R. as eye witnesses and the I.O. was also S.H.O. of the concerned police station, having several other burden and work. It is also proved that these two witnesses had visited the police station and S.R.N. Hospital and had also participated in last rites of the deceased, hence, only non-recording of their statement immediately does not created doubt that they were not present on the spot and they had not seen the commission of crime. It is fault of the I.O. not of these witnesses. Such omission or irregularity is covered under the category of faulty investigation which cannot be basis to discard their testimony.
In Krishna Pal Vs. State of U.P. AIR 1996 SC 733 and Ramdev and Another Vs. State of Rajasthan 2003 CrLJ (1680) it is held that-
" mere delay in recording the statement of eyewitnesses under Section 161 Cr.P.C. is not always fatal in a murder case."
In Suradhani Darbar Vs. State of West Bengal 2004 (3) Crimes 196 Culcutta High Court DB, it is held that -
"where the delay in recording the statement of witnesses under Section 161 Cr.P.C. is due to casual approach of the I.O., it would not affect the value of the statement of the witnesses."
Thus this Court is of the opinion that in these facts and circumstances, the delay in recording the statement of the witnesses Pawan Tiwari and Jai Hind Singh is not fatal for the prosecution.
45. Further it is argued by the learned counsel for the appellants that if the deceased was killed at the place of occurrence, why no empty cartridges, wad or bullets or pellets were found on the spot.
In this regard, it is argued by the counsel for the respondent that there was no occasion about finding of empty cartridges, bullets, pellets or wad on the spot because both the accused persons had used firearms only once, they had not made indiscriminate firing. It is noteworthy that firing was made by the accused from a very close range and 63 pellets along with the wad were found inside the body of the deceased. Therefore, non finding of the alleged articles on the spot is quite natural.
46. It is also argued by the learned counsel for the appellants that the scooter was not taken into possession by the police.
In this context, it is noteworthy that there was neither any damage or erosion to the scooter nor it was broken by the accused persons. Hence, there was no need to take scooter into possession for its technical examination. According to P.W.1, they left the scooter on the spot. When he returned back, it was parked at the door by the I.O. P.W.3 has deposed that when the deceased was shot, he had got off the scooter. P.W.-4, has deposed that when his father was shot, he (deceased) was sitting on the scooter along with Kuldeep Mishra, scooter had fallen on the brick road. This witness has deposed in cross-examination that he did not pay attention to the scooter, after 2-4 day from the incident the scooter was seen standing at home. Thus, this Court is of the conclusion that any argument about the scooter, is neither material nor relevant for the decision of the trial or the appeal.
47. So far as the recovery of the weapon and its trial under Section 25 Arms Act is concerned, it has been tried separately, therefore, it would not be proper to give a finding about the recovery of the Arms Act, in this appeal.
48. It is argued that charges framed on 8.8.2001 are not in accordance with the prosecution version and chapter XVII of the Cr.P.C.
49. Learned counsel for the appellants compared the charge from the map (Ex. Ka-3) and argued that the charges are not correctly framed. It is the case of the prosecution that in return journey from the temple of Maa Endree Devi when the deceased reached in front of Meenu Malviya's shop and due to drain, slowed down his scooter accused Shyam Bihari exhorted the rest of the accused persons upon which when scooter reached point 'C' the deceased was stopped by the accused Vimal Mishra and after that accused Kamal Mishra shot at his chest.
The charge framed under Section 302 read with Section 34 I.P.C. reads as follows:
"on 10.4. 2000 at around 8:30 a.m. in the morning you accused persons killed Jai Prakash Tiwari, real brother of the informant, in front of Meenu Malviya's shop situated in village Kotwa Sarai Inayat, pursuant to common object, from a country-made pistol. Thus, in this way you have committed an offence punishable under Section 302 read with Section 34 I.P.C. which is under my cognizance.
The second charge is as under:
" that on the aforementioned date, time and place you people in fullfillment of your common intention opened fire with the intention to kill the informant, thus in this way you have committed an offence punishable under Section 307 read with Section 34 I.P.C. which is under my cognizance. "
The charges were read over and understood by the accused persons who denied the charges and sought trial.
Certainly, the actual place of occurrence is not exactly in front of Meenu Malviya's shop but it is not far away from there and the incident started from there. It is just 20 steps away from the shop. It is no where stated that any objection was raised from the side of the accused persons that they were not made to understand the charges. They had not moved any objection that they could not understand the charge. The Court has the power to alter charge any time before the pronouncement of the judgment under Section 216 of the Code. All the papers relating to the case were provided to the accused persons, therefore, they were knowing that according to the prosecution's version, the exact place is not exactly in front of the shop but is somehow to the north of the shop. Thus the manner in which the alleged offence was committed has been mentioned and is sufficient to understand the charge and proper words have been used in the sense attached to them. As per requirement of Section 212 Cr.P.C. Regarding time, place and persons connected with the offence have also been mentioned and almost contents of charge are enough to understand the case.
The relevant part of Chapter XVII of Cr.P.C. is quoted herein below:
211. Contents of charge.
(1) Every charge under this Code shall state the offence with which the accused is charged.
(2) If the law which creates the offence gives it any specific- name, the offence may be described in the charge by that name only.
(3) If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.
(4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge.
(5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.
(6) The charge shall be written in the language of the Court.
(7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge; and if such statement has been omitted, the Court may add it at any time before sentence is passed. Illustrations
(a) A is charged with the murder of B. This is equivalent to a statement that A' s act fell within the definition of murder given in sections 299 and 300 of the Indian Penal Code (45 of 1860 ); that it did not fall within any of the general exceptions of the said Code; and that it did not fall within any of the five exceptions to section 300, or that, if it did fall within Exception 1, one or other of the three provisos to that exception applied to it.
(b) A is charged under section 326 of the Indian Penal Code (45 of 1860 ), with voluntarily causing grievous hurt to B by means of an instrument for shooting. This is equivalent to a statement that the case was not provided for by section 335 of the said Code-, and that the general exceptions did not apply to it.
(c) A is accused of murder, cheating, theft, extortion, adultery or criminal intimidation, or using a false property- mark. The charge may state that A committed murder, or cheating, or theft, or extortion, or adultery, or criminal intimidation, or that he used a false property- mark, without reference to the definitions of those crimes contained in the Indian Penal Code (45 of 1860 ); but the sections under which the offence is punishable must, in each instance, be referred to in the charge.
(d) A is charged under section 184 of the Indian Penal Code (45 of 1860 ) with intentionally obstructing a sale of property offered for sale by the lawful authority of a public servant. The charge should be in those words.
212. Particulars as to time, place and person.
(1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.
(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, It shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219; Provided that the time included between the first and last of such dates shall not exceed one year.
Section 213 in The Code Of Criminal Procedure, 1973
213. When manner of committing offence must be stated. When the nature of the case is such that the particulars mentioned in sections 211 and 212 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose. Illustrations
(a) A is accused of the theft of a certain article at a certain time and place. The charge need not set out the manner in which the theft was effected.
(b) A is accused of cheating B at a given time and place. The charge must set out the manner in which A cheated B.
(c) A is accused of giving false evidence at a given time and place. The charge must set out that portion of the evidence given by A which is alleged to be false.
(d) A is accused of obstructing B, a public servant, in the discharge of his public functions at a given time and place. The charge must set out the manner in which A obstructed B in the discharge of his functions.
(e) A is accused of the murder of B at a given time and place. The charge need not state the manner in which A murdered B.
(f) A is accused of disobeying a direction of the law with intent to save B from punishment. The charge must set out the disobedience charged and the law infringed.
Section 214 in The Code Of Criminal Procedure, 1973
214. Words in charge taken in sense of law under which offence is punishable. In every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is punishable.
Section 216 in The Code Of Criminal Procedure, 1973
216. Court may alter charge.
(1) Any Court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded."
In this case Section 215 Cr.P.C. is important and quoted herein below:
Section 215 in The Code Of Criminal Procedure, 1973
215. Effect of errors. No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. Illustrations
(a) A is charged under section 242 of the Indian Penal Code (45 of 1860 ), with" having been in possession of counterfeit coin, having known at the time when he became possessed thereof that such coin was counterfeit," the word" fraudulently" being omitted in the charge. Unless it appears that A was in fact misled by this omission, the error shall not be regarded as material.
(b) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge, or is set out incorrectly. A defends himself, calls witnesses and gives his own account of the transaction. The Court may infer from this that the omission to set out the manner of the cheating is not material.
(c) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge. There were many transactions between A and B, and A had no means of knowing to which of them the charge referred, and offered no defence. The Court may inter from such facts that the omission to set out the manner of the cheating was, in the case, a material error.
(d) A is charged with the murder of Khoda Baksh on the 21st January, 1882 . In fact, the murdered person' s name was Haidar Baksh and the date of the murder was the 20th January, 1882 . A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haidar Baksh: The Court may infer from these facts that A was not misled, and that the error in the charge was immaterial.
(e) A was charged with murdering Haidar Baksh on the 20th January, 1882 , and Khoda Baksh (who tried to arrest him for that murder) on the 21st January 1882 . When charged for the murder of Haider Baksh, he was tried for the murder of Khoda Baksh. The witnesses present in his defence were witnesses in the case of Haidar Baksh. The Court may infer from this that A was misled, and that the error was material.
According to Section 215 Cr.P.C., defective framing of charge would be of no consequence unless it has resulted in failure of justice as held in State (NCT of Delhi) Vs. Navjot Sandhu, AIR 2005 SC 3820-
"It is not uncommon that the offence alleged might seemingly fall under more than one provision and sometimes it may not be easy to form a definite opinion as to the Section in which the offence appropriately falls. Hence, charges are often framed by way of abundant caution. Assuming that an inapplicable provision has been mentioned, it is no ground to set aside the charges and invalidate the trial."
50. In this case commission of the crime was started when the deceased reached in front of Meenu Malviya's shop and just after reaching about 20 steps ahead, he was killed. The place of murder of the deceased is not far away from the shop of Meenu Malviya so it cannot be said that the accused persons could not understand the place of occurrence.
51. In view of the aforesaid Section 215 and on the basis of judicial precedent, it is concluded that there is no failure of justice. Hence, neither charges framed are liable to be quashed nor trial would be said to be vitiated.
52. In alternative accused Shyam Bihari has taken the plea of alibi that at the time of the alleged occurrence he was not present on the spot and he has not exhorted the rest of the accused persons to commit the alleged crime. According to him at the date and time of the alleged occurrence, he was on duty at Naini, Allahabad, about 28 km away from the village. To prove the plea of alibi, this accused has cross-examined four defence witnesses, whose testimony is discussed herein below.
53. D.W.-1, Surendra Prasad Mishra, was not present with the accused person at the time of inspection in Naini Zone, Allahabad, but he had deposed that he had directed Shyam Bihari Mishra and Assistant Tax Office Revenue Grade II to inspect house No. 92E/8 Chak Lal Mohammad. A report, prepared by the accused and other inspectors Shitla Prasad Saroj and Radhey Shaym, was produced before him and Rs. 500/- house tax was also deposited by the accused on that day. In cross-examinations this witness has admitted that when employees come, they sign on the attendance register. He could not tell as to what time accused Shyam Bihari Mishra went to his area and at what time he came back. He could not tell the distance of his house from Chakdodi. He admits that when Shyam Bihari used to come to the office, he did not put time while signing the attendance register; there was no tradition to mention time of coming and leaving. He further admits that report Ex. Ka-2 had not been given in front of him by the above three employees by keeping it in any register but had presented it directly in front of him. They had not even given time for presentation of the report. There is no register to enter the report. This witness further admits that in Ex. Kha-3, no time is entered while submitting the challan with revenue inspector as there is no register for it.
Thus from the evidence of this defence witness, it is not proved that the accused had actually made inspection of Chak Lal Mohammd at the time of occurrence and was not present on the place of occurrence.
55. D.W.-2, Radhey Shyam Sharma, Assistant Tax Superintendent, has deposed that on 10.4.2000, he along with S.P. Saroj and accused Shyam Bihari had gone to Chak Lal Mohammad and Chak Dodi for legal inspection. According to him they had conducted local inspection from 8 A.M. to 10 A.M. and he had also directed Shyam Bihari to recover the house tax thereafter he returned to Office, Allahabad. According to this witness, accused Shyam Bihari was with him from 8 A.M. to 10 A.M. and he had also deposited the recovered tax amount in the office. This witness admits that there was no attendance register for the inspectors while according to D.W.1 there is attendance register upon which accused Shyam Bihari used to sign to prove his attendance. This witness admits that no such attendance register for the purpose is maintained in his office to know that at what time any employee came to the office and at what time left the office. Contrary to the above deposition there is an attendance register for the inspectors. This witness has further deposed that presence of Shyam Bihari is in the office register. In cross-examination, this witness has admitted that no such attendance register is before him seeing him he could tell at what time accused Shyam Bihari came to the office on 10.4.2000 and at what time he left the office. This witness was deposing seeing the photocopies, which are not admissible in evidence. This witness admits that there is no specified time for depositing the recovered tax amount.
56. Thus, it is concluded that from the evidence of this witness, presence of accused Shyam Bihari Mishra, in Naini Zone, at 8:00 A.M. is not established beyond reasonable doubt. Just after the incident the accused persons left the village, ample opportunity was available to the accused to join the colleagues and to show that he was not present on the spot but was busy in his duty at the time and date of the occurrence. It is also a matter of surprise that first of all when an employee comes to the office, he signs the attendance register thereafter proceeds for the field work/inspection. Generally no Municipal Corporation official would start official work from 8:00 A.M. No other example could be shown by this accused (except on the date of occurrence) that he also did the official duty in the same manner before or after the incident.
57. D.W.-3, Mahesh Chandra Mishra, clerk at Municipal Corporation Allahabad, came to the Court with original records and presented the attendance register and deposed that on 10.4.2000 accused Shyam Bihari had made signature about his presence. This witness has admitted that in file no. 42 papers are neither sequentially arranged nor serially numbered. The file cover was also changed. According to this witness second changed file cover has been put. This witness has admitted that there was no signature or mention of Shyam Bihari Mishra in file no. 77 at page no. 1 on 10.4.2000. Signature of Shyam Bihari Mishra is on page 2 but the date has not been mentioned. This witness further admits that from seeing receipt book number 81, 83, 17 and 18, it is not known as to when Shyam Bihari deposited the amount. The time is not mentioned in the receipt book. Thus only on the ground that tax amount was deposited in the name of accused Shyam Bihari, it can not be said that it was deposited by him on the alleged time and date. There are also some cutting in the year on the main page of the attendance register. Seeing the attendance register this witness deposed that from 11.4.2000, accused Shyam Bihari was absent and before his name cross 'X' has been made. Considering the evidence of this witness, this Court concludes that this witness was not present with the accused Shyam Bihari at the time of occurrence, he has deposed before the Court only on the basis of documents available in the office. It can not be concluded that at the time of occurrence accused Shyam Bihari was not present on the spot as he was on duty.
58. D.W.-4, Shitla Prasad, has deposed that on 10.4.2000, he had inspected the house in Chak Lal Mohammad; that day he had inspected the house of Jeet Lal Vist and two other houses in Chak Raghunath and Chak Dodi. According to him he started inspection at 8:00 A.M. along with Radhey Shyam Sharma and Shyam Bihari Mishra; they remained with him till 10 :00 a.m. In the cross-examination this witness answered that Shyam Bihari had come by cycle. According to him prior to this inspection he also used to go for inspection with accused Shyam Bihari Mishra. This witness admits that though there is attendance register but since they were field staff, hence their attendance was taken till 4 :00 P.M. without mentioning the time of coming and leaving the office.
This witness is also a colleague of the accused. Generally, no inspection are made before 10:00 a.m. No such previous or past example could be shown by the accused that except on the fateful day any other day also he had done such inspection and had collected the house tax. Thus, this Court is of the opinion that all the four witness from the side of defence have not been able to prove that the accused was in Chak Lal Mohammad or Chak Dodi from 8:00 a.m. onwards on 10.4.2000.
59. In this regard section 11 of the Evidence Act is relevant which is as follows:
Section 11. When facts not otherwise relevant become relevant- facts not otherwise relevant are relevant.
1. if they are inconsistent with any fact in issue or relevant fact;
2. if by themselves or in connection with other facts they make the existence or not-existence of any fact in issue or relevant fact highly probable or improbable.
Illustrations
(a) The question is, whether A committed a crime at Calcutta on a certain day. The fact that, on that day, A was at Lahore is relevant. The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.
(b) The question is, whether A committed a crime. The circumstances are such that the crime must have been committed either by A, B, C or D, every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D, is relevant.
A. In Commissioner of I.T. Vs. Kamla Town Trust, (1196) 7 SCC 349, it has been held that "Section 11 deals with facts which ordinarily have nothing to do with the facts of a case and are not in themselves relevant, but they become relevant only by virtue of the fact that they are either inconsistent with any fact in issue or relevant fact or they make the existence of a fact in issue or a relevant fact either highly probable or improbable."
Evidence can be given of facts which have no other connection with the main facts of a case except this that they are inconsistent with a fact in issue or a relevant fact. Their inconsistency with the main facts of the case is sufficient to warrant their relevancy. This section enables a person charged with a crime to take what is commonly called the plea of alibi which means his presence elsewhere at the time of the crime. His presence elsewhere is inconsistent with the fact that he should be present at the place of the crime.
B. In Binay Kumar Singh Vs. State of Bihar, AIR 1997 SC 322, in para 22 and 23 has observed as under:
"22. We must bear in mind that alibi not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (A) given under the provision is worth reproducing in this context:
" The question is whether A committed a crime at Calcutta on a certain date : the fact that on that date, A was at Lahore is relevant."
23. The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and had participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.
C. It is well-settled that the burden of substantiating the plea of alibi and making it reasonably probable lies on the person who sets it up (State of U.P. Vs. Sughar Singh AIR 1978 Sc 191). The Supreme Court has stated : "The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of the offence by reason of his presence at another place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed." Applying this to the facts of the case the court held that the plea of alibi was not established as the gap between the factory where the accused worked and where he was present at 8.30 a.m. and the place of murder which took place at 9 a.m. was so short that the accused could have easily reached there (Dudh Nath Pandey Vs. State of U.P., (1981) 2 SCC 166).
D. In Sandeep Vs. State of U.P, (2012) 6 SCC 107. Burden of proving the plea of alibi lies upon the accused. If the accused has not adequately discharged that burden, the prosecution version which was otherwise plausible has, therefore, to be believed.
E. In Shaik Sattar Vs. State of Maharashtra, (2010) 8 SCC 430, it has been held that Plea of alibi has to be established by accused by leading positive evidence. Failure of said plea would not necessarily lead to success of prosecution case which has to be independently proved by prosecution beyond reasonable doubts. Plea of alibi has to be proved with absolute certainty so as to completely exclude possibility presence of accused at place of occurrence at the relevant time.
F. In Om Prakash Vs. State of Rajasthan & Another, (2012) 5 SCC 201 it has been held that plea of alibi has to be raised at first instance and subjected to strict proof of evidence and cannot be allowed lightly, in spite of lack of evidence merely with the aid of salutary principal that an innocent man may not suffer injustice by recording conviction in spite of his plea of alibi.
G. In Adalat Pandit Vs. State of Bihar, (2010) 6 SCC 469 it has been held that where in a murder trial, the place of alibi not being far, witnesses being colleagues & there being no proper documentary evidence regarding alleged levy work during time of commission of crime, it has been held that the plea of alibi was rightly rejected.
60. In this case all the defence witnesses are the colleagues of the accused. If actually the accused Shyam Bihari Mishra had inspected the house at Chak Dodi and Chak Mohammad, some of the house owners could have been examined to prove the presence of the accused from 8:00 a.m. onwards on 10.4.2000, it would have become a ground to consider that the accused was not present on the spot and was in Naini Zone for the purpose of his inspection. Thus, the plea of alibi is rejected.
61. Learned counsel for the appellants also argued that informant, P.W.1, Shiv Prakash Tiwari, brother of the deceased, returned home from the hospital after death of Jai Prakash Tiwari and did not participate in the inquest proceeding and did not reach at the time of post-mortem which is very uncommon and unnatural behaviour and the truth has not been put by the prosecution in this regard.
According to this Court even if this fact is true, even then it does not affect the merit of the case. It is proved from the evidence that after death of Jai Prakash Tiwari, his son - P.W.4- Pawan Tiwari, P.W.3- Jai Hind Sigh and other persons remained present with the dead body till the post-mortem was over. No person was present in the house and the I.O. had visited the spot and had started the investigation and had also recorded the statements of informant and other witnesses. Therefore, if the informant, P.W.-1, did not return to the hospital or the mortuary, it cannot be said that his behavior was uncommon or unnatural and contrary to the prosecution version or in any way it affects the merit of the prosecution case otherwise.
62. Learned counsel for the appellants has also argued that in this case for the sake of arguments, the version of prosecution is accepted, even then the role of accused Shyam Bihari Mishra is distinguishable from the role of other co-accused persons. According to him as per the prosecution version Shyam Bihari had only exhorted the rest of the accused persons. Hence, it can not be said that he was involved in the crime and he cannot be held guilty for murder with the help of Section 34 I.P.C.
Here the charges are under Section 302 and 307 I.P.C with the help of Section 34 I.P.C., only an incorrect word i.e. ''Samanya Uddehsya' has been used, which does not affect the merit of the case or the conclusion. The main offence has been committed by the rest of the two accused persons only on the exhortation of the accused Shyam Bihari. All three accused persons had left the village together by Marshall Jeep. Shyam Bihari was knowing that the rest accused persons are armed with a firearms. Hence, a prior meeting of mind and common intention to kill the deceased of all the accused persons is established.
There are two subsidiary sections to enable the Court to cover all the accused persons. In case the offence has been committed by more than one person but not more than four persons then Section 34 I.P.C. comes into play. In this case there are three accused persons hence charge under Section 302 read with Section 34 I.P.C. and Section 307 read with 34 I.P.C. has been framed. If charges are framed under Section 34 I.P.C. then 'common intention' or 'Samanya Aashay' word is used. If there are five accused persons then an unlawful assembly is automatically formed under Section 141 I.P.C. and if any member of such assembly commits an offense then it is said that such member has committed the offence in pursuance to common object or 'Samanya Uddeshya', then charges with the help of Section 149 I.P.C. are framed. In this case, at the time of framing charge instead of using word 'Samanya Aashay' word 'Samanya Uddeshya' has been used. But it does not affect merit of the case, it is mere a typographical error. Prosecution and accused both sides were understanding that it was a case of common intention in which only three persons were charged for the commission of said offence.
It has been dealt with in framing of charge that all the accused persons being three in number, the charges under Section 302 read with Section 34 I.P.C. and Section 307 read with Section 34 I.P.C. have been framed against them. Section 34 I.P.C. deals with common intention. It is as under:
"Section 34: Acts done by several persons in furtherance of common intention. --When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
The main ingredients of Section 34 i.e., 'common intention' are :-
1. A criminal act must be involving several persons,
2. The criminal act must be in furtherance of common intention of all; and
3. There must be participation of all persons in furthering the common intention.
The expression 'common intention' as used in Section 34, I.P.C. has been given various meanings as follows:-
(i) It implies a pre-aranged plan, prior meeting of minds, prior consultation among all the persons constituting a group.
(ii) Common intention means a desire to commit a criminal offence without any contemplation of consequences.
(iii) It implies mens rea necessary to constitute an offence that has been committed.
(iv) It also means evil intention to comity some criminal act, but not necessarily the same offence which is committed. "
In Saidu Khan Vs. State, AIR 1951 All. 21 (FB), and Pyare Lal Vs. State of U.P., 1987 SC 852, it has been held that-
"Even in regard to offence involving physical violence it is not necessary that every accused must have taken active part in the attack on the victim."
63. In this case the occurrence started on the exhortation of the accused Shyam Bihari Mishra, a government employee, after that rest of the two accused persons committed the crime. It is established that the accused persons were together and were waiting for the deceased to return and when he reached the shop of Meenu Malviya and slowed down his scooter due to drainage, accused Shyam Bihari Mishra, exhorted his sons that 'he should not be escaped' thereafter accused Vimal Mishra stopped the scooter by standing ahead and accused Kamal Mishra shot in the chest of the deceased and when witnesses ran towards the place of occurrence, then Vimal Mishra also fired at the informant. Thus, this incident occurred only on the exhortation of the accused Shyam Bihari. The such an incident was not possible without a prior meeting and consult between the accused persons. Hence, this Court is of the considered view that the act of the accused Shyam Bihari Mishra is covered under Section 34 of the I.P.C. and his role cannot be said to be lesser than those of rest accused. Therefore, the trial Court has rightly convicted and sentenced the accused Shyam Bihari with the help of Section 34 I.P.C.
Supreme Court in Nand Kishore Vs. State of Madhya Pradesh (2011) 4 Cri LJ 4243 (SC), held that "Section 34 deals with constructive criminal liability. Where a criminal act is done by several persons in furtherance of common intention of all, each of such persons would be liable for that act in the same manner as if it was done by him alone. If the common intention leads to Commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them."
The essence of common intention under Section 34, IPC is simultaneous meeting of the minds of persons participating in the criminal act to bring about a particular desired result. Lallan Rai Vs. State of Bihar, (2003) 1 SCC 268. It is not necessary that the act of participating persons should be identical or same. For instance, if in furtherance of a common intention to kill Z, A stands outside the door as a watchman, B overpowers Z and C inflicts dagger blows on Z, all the three (i.e., A, B and C) will be held liable for acting in furtherance of a common intention of murdering Z though their acts were different. Here, 'A' cannot escape joint criminal liability on the plea that he was merely standing at the door and did not participate in the actual act of killing Z. This has been referred to by Lord Summer who in Barendra Kumar Ghosh Vs. King Emperor, AIR 1925 PC 1, quoting words of Milton said, "they also serve who only stand and wait."
Elaborating on the scope of Section 34, the Privy Council in this case observed that a person standing only as a guard outside the room would be also jointly liable with the culprits committing the crime and it will be no defence for him to say that he did not have any intention to kill the person murdered and that he was compelled by the other accused to stand outside as a guard and alter them of any possible danger. The Privy Council in this case observed, "Criminal act means that unity of criminal behaviour which results in something for which an individual would be liable, if it were all done by himself alone, that is, in a criminal offence."
Even in regard to an offence involving physical violence it is not necessary that every accused must have taken an active part in the attack on the victim. Pyarelal Vs. State of U.P, AIR 1987 SC 852.
64. About manner of assault, several questions have been put by the defence counsel but there is no substance in it. It is immaterial that whether the scooter was stopped from the side or the front or whether the deceased was shot by putting the barrel on his chest or from some distance. It has already been discussed that if any person sees the occurrence from behind or from some distance, he would think that deceased is being shot from very close range.
65. Learned counsel for the appellants have relied on following rulings:
(a) Jagdish Murav Vs. State of U.P. 2006 Law Suit (SC) 686. It was a case under Section 307 I.P.C. In which site plan was not brought on record. Original G.D. was not produced, evidence of the prosecution witnesses was found full of contradiction. Due to variation in facts, principles laid down in this case does not apply to the case in hand.
(b) Maruti Rama Naik Vs. State of Maharashtra, 2003 0 Supreme (SC) 863. In this case P.W.-3, injured, had not named the appellants as assailants in his statement to the police despite opportunity to record his evidence after one day's delay his statement was recorded. It was held that without corroboration the evidence of this witness was not liable to be relied on. P.W.-4 was the close friend of the deceased but he did not inform the police or anybody else and he went to his workplace. There was unexplained delay in recording his statement.
In this case P.W.-1 is the informant and was shot by the accused Kamal Mishra. His statement along with some other persons statements were recorded same day. The mater was immediately reported to the concerned police station, eye-witnesses had been mentioned in the written complaint and accused persons had absconded. Hence this judicial precedent does not apply in favour of the appellants.
(c) Sampath Kumar Vs. Inspector of Police Krishnagiri, AIR 2011 SC 1249. It is a case based on circumstantial evidence. In this judgment principles regarding cases relating to circumstantial evidence has been propounded. There are major difference between the facts of both the cases. Hence, it does not apply.
(d) State of U.P. Vs. Parshuram Yadav, 2005 0 Supreme (All.) 1309 DB. It was a case of lathi blow under Section 307 I.P.C. There was also a cross case of the said incident. No blood was found at the scene of the occurrence. It was also observed that in the first half of May, crop of mango is of no use even not ready for preparing pickle. Therefore, the prosecution version was not found worthy of credence. Facts of both the cases are quite different, therefore, this citation cannot be applied in favor of the appellants.
(e) Daud Khan Vs. State of Rajasthan, 2015 0 Supreme (SC) 1041. The principles laid down in this case are in favor of the prosecution, not in favor of the appellants. In this case the Apex Court did not accept that by overwriting on the F.I.R. it was made ante-timed. The offence had been caused at 9:30 p.m. and the F.I.R. was lodged at about 10:30 p.m. The Apex Court held that there is hardly any delay in lodging of the F.I.R. Similarly in this case the occurrence took place at 8:30 A.M. and the F.I.R. was lodged at 9:35 a.m. in P.S. Sarai Inayat, Allahabad which is 12 km away from the place of occurrence. About Section 157 CrPC the Apex Court held that when there is no delay in lodging an F.I.R. then any delay in communicating the special report to the Magistrate would really be of little consequence, since manipulation of the F.I.R. would then get ruled out. The Apex Court also held that the interpretation of Section 157 Cr.P.C. is no longer res integra and has also referred the citation Brahm Swaroop Vs. State of U.P., (2011) 6 SCC 288 ; Shiv Shankar Singh Vs. State of U.P., (2013) 12 SCC 539, wherein it was held that before such a contention is a countenanced, the accused must show prejudice having been caused by delayed dispatch of the F.I.R. to the Magistrate.
In para 34 of this the citation it is also held that there is no doubt both from the medical and the ocular evidence that Doud Khan had shot with a gun. The forensic evidence shows that the bullet extracted from the body of Nand Singh was capable was being fired from the recovered gun. Whether Nand Singh was shot by use of the recovered gun or some other gun was not questioned and none of the witnesses was asked any substantive question about the gun recovered from Javed at the instance of Daud Khan or whether it was the same gun (or a different one) used by Daud Khan.
Similarly in this it has been established from the F.S.L. Report that the cartridge of 12 bore could be executed from the country-made pistol recovered on the pointing of the accused Kamal Mishra.
(f) Samsul Haque Vs. State of Assam AIR 2019 SC 4163. In this case owner of the hotel or except P.W.1 no other independent witness present at the place of occurrence was examined. Like statement in F.I.R. of the cited case there is no vague statement in F.I.R. of the case in hand. Regarding interested and inimical witnesses, a detailed discussion has been made earlier. When the occurrence took place near the house of the deceased and informant, the family members and the persons of neighborhood would be natural witness. In this case argument for accused no. 9 has also been discussed and answered. In the present case except the omission regarding asking about the F.S.L. report in Section 313 Cr.P.C. nothing has been left. In this context it has been concluded that under Section 293 Cr.P.C. such reports are automatically admissible in evidence and the accused persons had no objections thereon, therefore, they did not seek examination of the concerned scientist. In the present case all the three accused persons had been convicted and sentenced. Hence, any discussion and principle laid down about the acquittal of accused no. 9 of the cited case has no relevancy. In the cited case Section 34 and 107 I.P.C. have also been discussed. In this regard a detailed finding has been given earlier. In this case no plea of Section 109 I.P.C. has been taken and from the discussion it has been concluded that the role of all the accused persons including the accused Shyam Bihari Mishra is covered under the Chapter of Common Intention. Thus, the principles laid down in this case does not apply in favour of the appellants.
Ganesh Bhavan Patel and Another Vs. State of Maharashtra, 1978 0 Supreme (SC) 323. In the above noted case there were several infirmities in the statements of the alleged eyewitnesses and the statements of alleged eyewitnesses were recorded with an undue delay by the I.O. The F.I.R. was not lodged within the appropriate time. In the case in hand the F.I.R. has been lodged without delay and the statement of informant P.W.-1 had been recorded same day with some other persons. In the cited case, the trial Judge found the conduct of Pramila a girl of tender age unnatural and inconsistent with her being an eyewitness. The Apex Court accepted the conclusion of trial Court that Pramila was highly interested witness and the amenability to tutoring of a girl of such tender age, cannot be ruled out. In this case the fact and evidence are not so. Hence, the principles laid down in the cited the case cannot be applied in the present case.
66. In the present case the trial Court has not imposed fine either under Section 307 I.P.C. or 302 I.P.C.
Section 307 is as under:
307. Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts.--2[When any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death.] Section 302. Punishment for murder. Whoever commits murder shall be punished with death or 1 [imprisonment for life], and shall also be liable to fine.
This aspect has been discussed by the Full Bench of this Court in Sukh Dev Vs. Sate of U.P., 2017 SCC Online All 2992, wherein discussing judgments of this Court, other High Courts and also of the Apex Court, the Full Bench held in para 27 as under:
"27. Courts are armed with the power to impose sentence of fine also in addition to imprisonment, but it does not mean that the Court should impose fine every case as a rule, though it may be desirable, having regard to the facts and circumstances of the case, to impose fine and to consider issuing directions to pay compensation to the victim as contemplated by section 357 of Cr.P.C. Section 302 or other similar sections do not fix any upper limit in respect of fine for a particular offence and the Court has the freedom to fix any amount. Section 63 of I.P.C. says that where no sum is expressed, the amount of fine, to which the offender is liable to pay, would be unlimited but not excessive or ridiculously low. Financial capacity of the accused, enormity of the offence, extent of damage caused to the victim of the offence are also relevant considerations-in fixing the amount. Having regard to these and overall facts and circumstances of each case, it needs to be taken into consideration whether to impose a fine or not, and it should not be a mechanical process of either imposing fine or not to impose fine. It is for the Court to decide whether any person involved in a criminal offence (victim) deserves payment of compensation. In all such cases, sentence of fine in conjunction with the sentence of imprisonment would be necessary and appropriate. Thus, we answer the question framed by us in the negative. In other words, we hold that it is not mandatory to impose a fine in addition to a substantive sentence of imprisonment for an offence punishable under section 302, I.P.C., though it is desirable to impose a fine having regard to the facts and circumstances of the case and the power conferred under section 357 of Cr.P.C. 291. The Registry is directed to place the instant criminal appeal along with this judgment before the appropriate Bench."
Therefore, imposition of fine in addition to a substantive sentence of imprisonment for an offence punishable under Section 302, I.P.C., though it is desirable to impose fine but is not mandatory in nature. The trial Court has neither imposed fine nor ordered to pay any amount as compensation to the aggrieved persons.
67. On the basis of the overall discussion this Court is of the considered view that there is no infirmity in the judgment and order of conviction passed by the learned trial Court. The prosecution has proved its case beyond all reasonable doubts. The order of sentencing is also proper. It is neither harsh nor punitive and has been awarded the minimum sentence which meets the ends of justice. The appeals lack merit and are liable to be dismissed.
Order Both appeals are accordingly dismissed. The Registry to return the lower court record along with the copy of this judgment. Let a copy be sent to C.J.M. Allahabad, to ensure its compliance. If the convicts are not in custody, they shall be taken into custody forthwith and shall be sent to jail for serving out their remaining sentences.
As regards Kamal Mishra, appellant in Criminal Appeal No. 1884 of 2005 is concerned, the Court has been informed that he has been granted remission by the State Government and has been released. The order granting remission is under challenge in Writ Petition No. 17743 of 2022 (Satya Prakash Tewari Vs. State of U.P. & 7 Others) which has been heard by a co-ordinate Bench and judgment is reserved. Therefore, compliance of this judgment by the C.J.M., Allahabad as directed above, shall be in accordance with the judgment and outcome of Writ Petition No. 17743 of 2022.
Order Date :- 24.03.2023
S.Verma
(Umesh Chandra Sharma,J.) ( Anjani Kumar Mishra,J.)