Allahabad High Court
Ram Kishan And Others vs State Of Up on 19 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1483, 2020 (110) ACC (SOC) 12 (ALL)
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.48 Criminal Appeal No.288 of 1988 1. Ram Kishan 2. Sri Ram 3. Girraj ---- Appellants Vs State Of Uttar Pradesh ---- Respondent For Appellants : Sri Ram Milan Dwivedi, Amicus, for appellant no.1. Sri ABN Tripathi, for appellants no.2 & 3. For Respondent/State : Sri J K Upadhyay, AGA Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Pritinker Diwaker, J.
(19.9.2019) This appeal arises out of impugned judgment and order dated 29.1.1988 passed by 1st Additional Sessions Judge, Mathura in Sessions Trial No.94 of 1987, convicting the appellants under Section 302/34 of IPC and sentencing them to undergo imprisonment for life. However, they have been acquitted of the charge under Sections 147 and 148 of IPC.
2. As per prosecution case, on 6.9.1986 a written report Ex.Ka.1 was lodged by (PW-1) Dal Chand, alleging in it that there was an old enmity between the accused persons and the deceased on account of a boundary (medh) of the agricultural field and due to the said dispute, on 6.9.1986 at about 6:15 am, when his cousin brother Chokhey Lal was ploughing his field, the accused persons caused several injuries to him by Farsa, Ballam and Club. While they were talking to each other, accused Ram Kishan was shouting for ensuring the death of the deceased. After hearing the voice of accused Ram Kishan, he along with his brother Ram Singh (PW-2) and one Lakkhi reached to the place of occurrence and seeing them, the accused persons entered into the sugarcane field. He states that when he reached near the deceased, he found him dead. Based on this report, FIR Ex.Ka.14 was registered on 6.9.1986 at 9:30 am under Sections 147/148/149 and 302 of IPC against the present accused persons and two acquitted accused, namely, Tej Ram and Kalyan.
3. Inquest on the dead body of the deceased was conducted vide Ex. Ka.7 on 6.9.1986 and the body was sent for postmortem which was conducted on 7.9.1986 vide Ex. Ka.2 by (PW-3) Dr. M K Srivastava.
As per Autopsy Surgeon, following injuries were noticed on the body of the deceased:
1. Lacerated wound 3 cm x 1 cm x bone deep on the back of left side head 1 cm from left ear.
2. Incised wound 6 cm x 2 cm x bone deep on back left side forearm upper part front in direction.
3. Incised wound 5 cm x 1.5 cm x bone deep on back of left forearm upper part transverse in direction both bone cut.
4. Incised wound 8 cm x 5 cm x bone deep on back of left knee joint transverse in direction lateral anckle of femur cut top lateral blood vessels cut.
5. Abrasion 5 cm x 2 cm on outer side of left thigh middle part.
6. Abrasion 10 cm x 1 cm on outer side of left buttock.
7. Abrasion 11 cm x 0.5 cm outer side of left side abdomen.
8. Abrasion 8 cm x 0.3 cm outer side of right leg middle part.
9. Incised wound 3 cm x 1 cm x muscle deep back of left corm middle part vertical.
10. Incised wound 1 cm x 0.3 cm x muscle deep on back of right arm lower part.
11. Incised wound 4 cm x 2.5 cm x bone deep on back right shoulder transverse in direction upper and lateral part of scapula cut. Body smeared with mud front side at places.
Cause of death of the deceased was due to coma.
4. While framing charge, the trial judge has framed charge against accused Girraj under Sections 147, 302/149 of IPC, whereas against remaining four accused persons charge was framed under Sections 148, 302/149 of IPC.
5. So as to hold accused persons guilty, prosecution has examined seven witnesses, whereas one defence witness has also been examined. Statements of accused persons were recorded under Section 313 of Cr PC in which, they pleaded their innocence and false implication.
6. By the impugned judgment and order, the trial Judge has acquitted accused Tej Ram and Kalyan of all the offences, but has convicted accused-appellants Ram Kishan, Sri Ram and Girraj under Section 302/34 and sentenced them as mentioned in para 1 of this judgment. The trial Judge has, however, acquitted the accused-appellants of the charge under Sections 147 and 148 of IPC. Hence this appeal.
7. Counsel for the accused appellants submits:-
(i) that (PW-1) Dal Chand and (PW-2) Ram Singh are not the actual eye-witnesses to the incident and when, on 6.9.1986 early in the morning they saw the dead body of the deceased lying in the field, they have lodged a false report implicating the appellants. This has been done by the complainant as there was an old enmity between the two families.
(ii) that only interested witnesses, i.e. (PW-1) Dal Chand and (PW- 2) Ram Singh have been examined and the important witness Lakkhi has not been examined.
(iii) that there are material contradictions in the statements of two eye-witnesses.
(iv) that on the same set of evidence Tej Ram and Kalyan have been acquitted and, therefore, there was no occasion for the trial Court to convict the appellants.
(v) that the witnesses have reached to the place of occurrence after the incident and, therefore, question of seeing them the incident does not arise at all.
(vi) that motive part has not been proved by the prosecution as required under the law.
(vii) that the postmortem report of the deceased does not tally with the statements of eye-witnesses because it is not the case of the prosecution that before committing the murder of the deceased he was dragged, however, the injuries sustained by the deceased suggest that he was dragged.
8. On the other hand, supporting the impugned judgment and order, it has been argued by learned State Counsel:
(i) that a very prompt report was lodged by (PW-1) Dal Chand. The incident occurred at 6:15 am, on 6.9.1986 and at 9:30 am, FIR was registered against all the accused persons. The distance between the place of occurrence and the police station is of 9 kms. and thus, for all practical purposes, it can be said that a very prompt report was lodged. Learned counsel submits that there was no occasion for PW-1 to lodge a false report and he had hardly any time to think over the same and then to lodge a false report.
(ii) that minor contradictions in the statements of PW-1 and PW-2 are required to be ignored considering the fact that they are rustic villagers. While referring to the postmortem report of the deceased Ex. Ka.2, it has been argued by the State counsel that the same duly confirms the version of two eye-witnesses.
(iii) that acquittal of Tej Ram and Kalyan is though not challenged before this Court but the same appears to be contrary to the law. He, however, submits that if some of the co-accused persons have wrongly been acquitted, it will not give any benefit to the present appellants.
9. We have heard learned counsel for the parties and perused the record.
10. (PW-1) Dal Chand, is the informant and an eye-witness to the incident. He is also a real brother of (PW-2) Ram Singh and deceased Chokhey Lal was his cousin. He states that there is a common bund between his field and that of accused Ram Kishan, Sri Ram and Girraj. At the time of occurrence, he was cutting fodder along with PW-2 in the field, whereas deceased Chokhey Lal was ploughing his field. All the five accused persons reached there, carrying weapons with them; accused Ram Kishan and Sri Ram were having farsa, accused Tej Ram and Kalyan were having ballam, whereas accused Girraj was having club with him. After hearing the voice of accused Ram Kishan to kill the deceased, he and his brother immediately rushed to Chokhey Lal and tried to save him. Accused persons were beating the deceased and after seeing them, they entered in the nearby sugarcane field. By the time, he and (PW-2) Ram Singh could reach to Chokhey Lal, he was already expired and, thereafter he lodged the report.
In the cross-examination, he states that prior to four years of this incident, on the report lodged by accused Tej Ram, a case was registered under Section 325 of IPC against accused Ram Kishan, Lakkhi and one Pooran and Raja Ram. He however, has denied the fact that he took any surety for accused Pooran or Lakkhi. He has clarified that at the time of occurrence, no one else was there in their field and deceased alone was ploughing his field. He states that at the time of occurrence, he and his brother were cutting fodder. In the lengthy cross-examination, though this witness was subjected to various questions, including tricky questions, but he remained firm and has reiterated as to the manner in which the deceased was done to death by the accused persons. He has clarified that before he could reach to the place of occurrence, incident of marpeet was already going on and then, he also clarified as to which of the accused was having which weapon and how the same was used. No doubt, there are minor contradictions in the statement of this witness, but they are all of insignificant nature and are required to be ignored considering the fact that he is a rustic villager.
11. (PW-2) Ram Singh, is another eye-witness to the incident. While supporting the prosecution case, he too has stated that after hearing the voice of accused Ram Kishan to kill someone when he reached to Chokhey Lal, he saw the accused persons beating him. He has also clarified that which of the weapon was being carried out by which of the accused. When he and his brother reached to the place of occurrence and tried to help the deceased, then the accused persons entered in a nearby sugarcane field.
In the cross-examination, but for minor contradictions this witness also remained firm and reiterated as to the manner in which Chokhey Lal was done to death.
12. (PW-3) Dr M.K. Srivastava, conducted postmortem on the body of the deceased. He has clarified that injury nos. 2, 3, 4, 9, 10 and 11 could have been caused by a weapon like ballam/farsa, whereas rest of the injuries found on the body of the deceased could have been caused by a club.
13. (PW-4) Birpal, is a Head Moharrir who recorded the FIR. (PW-5) Jaganpal Singh did initial part of investigation. (PW-6) N P Singh, is the Investigating Officer, has duly supported the prosecution case. (PW-7) Charan Singh, is a Police Constable, who assisted during initial investigation.
14. (DW-1) Kamal Singh, has made an attempt to prove that (PW-1) Dal Chand and (PW-2) Ram Singh were not having any joint account of the field and likewise, there was sufficient distance between their field and the field of Ram Chand. Reading of his statement makes it clear that the same is of no help to the defence.
15. Close scrutiny of the evidence makes it clear that on 9.6.1986 at about 6:15 am, when deceased Chokhey Lal was ploughing his filed, accused persons reached there and caused number of injuries on his body by farsa, ballam and lathi, resulting his instantaneous death. After hearing the voice of accused Ram Kishan to kill someone, eye-witnesses (PW-1) Dal Chand and (PW-2) Ram Singh reached to the place of occurrence and saw the accused persons beating the deceased. PW-1 and PW-2 have made an attempt to save Chokhey Lal and seeing them, accused persons fled away from the spot and entered in the nearby sugarcane field. By the time PW-1 and PW-2 reached to the deceased, he was already dead. It can be said that there are minor contradictions in the statements of PW-1 and PW-2, but they are not of significant nature. These contradictions do not go to the root of the matter and do not affect their version otherwise. Yet another aspect of the matter is that these witnesses are the rustic villagers and they have been examined in the Court after one year of the incident and, therefore, minor contradictions in their statements are bound to be there. Law in this respect is very clear.
In Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat1, the Supreme Court, while considering the minor contradictions in the statement of the witnesses, held as under:
"5 ... ... ... We do not consider it appropriate or permissible to enter upon a reappraisal or re-appreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by the learned counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:
(1) 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 in the mental screen.
(2) 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.
(3) The powers of observation defer 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.
(4) 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.
(5) 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.
(6) Ordinarily, a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in short time span. A witness is liable to get confused or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by the counsel and out nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious 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 - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
16. If the entire statement of these eye-witnesses, i.e. (PW-1) Dal Chand and (PW-2) Ram Singh is seen, it is apparent that they are very firm and have reiterated as to the manner in which, the deceased was done to death by the accused persons. The statements of these two eye-witnesses also find support from the postmortem report of the deceased Ex. Ka.2 and number of injuries of the weapons used by the accused persons have been found on the body of the deceased.
17. We find no substance in the argument of the accused appellants that when Tej Ram and Kalyan have been acquitted, the same treatment ought to have been given to them also. Even assuming that Tej Ram and Kalyan have wrongly been acquitted, their acquittal would be of no help to the accused-appellants because the evidence clearly shows their involvement in the commission of offence.
18. We further find no substance in the argument of the defence that only interested/related witnesses have been examined, and the important witness Lakkhi has not been examined.
It is settled position of law that the evidence of an interested witness should not be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. All that the Courts require as a rule of prudence, not as a rule of law, is that the evidence of such witness should be scrutinized with a little care. It has to be realized that related and interested witness would be the last persons to screen the real culprits and falsely substitute innocent ones in their places. Indeed there may be circumstances where only interested evidence may be available and no other, e.g. when an occurrence takes place at midnight in the house then the only witnesses who could see the occurrence may be the family members. In such cases, it would not be proper to insist that the evidence of the family members should be disbelieved merely because of their interestedness. But once such witness is scrutinized with a little care and the Court is satisfied that the evidence of the interested witness have a ring of truth such evidence could be relied upon even without corroboration. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai vs. State of Bihar (2001) 7 SCC 318; State of U.P. vs. Jagdeo Singh (2003) 1 SCC 456; Bhagalool Lodh & Anr. vs. State of U.P. (2011) 13 SCC 206; Dahari & Ors. vs. State of U.P. (2012) 10 SCC 256; Raju @ Balachandran & Ors. vs. State of Tamil Nadu (2012) 12 SCC 701; Gangabhavani vs. Rayapati Venkat Reddy & Ors. (2013) 15 SCC 298; Jodhan vs. State of M.P. (2015) 11 SCC 52) The Supreme Court in Bur Singh and Anr. vs. State of Punjab2 has held that merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. Further, the Supreme Court in Sudhakar v. State3 and Ganapathi v. State of Tamil Nadu4 relying in its earlier judgments held as under:
"18. Then, next comes the question 'what is the difference between a related witness and an interested witness?. The plea of "interested witness", "related witness" has been succinctly explained by this Court that "related" is not equivalent to "interested". The witness may be called "interested" only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished. In this case at hand PW 1 and 5 were not only related witness, but also 'interested witness' as they had pecuniary interest in getting the accused petitioner punished. [refer State of U.P. v. Kishanpal and Ors., (2008) 16 SCC 73] : (2008 AIR SCW 6322). As the prosecution has relied upon the evidence of interested witnesses, it would be prudent in the facts and circumstances of this case to be cautious while analyzing such evidence. It may be noted that other than these witnesses, there are no independent witnesses available to support the case of the prosecution."
Relationship is not a factor to affect credibility of a witness. There is no proposition in law that relatives are to be treated as untruthful witnesses. To the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. A witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive. A close relative cannot be characterized as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the 'sole testimony of such witness. (See- Harbans Kaur and another vs. State of Haryana, 2005 AIR SCW 2074; Namdeo vs. State of Maharashtra, 2007 AIR SCW 1835; Sonelal vs. State of M.P., 2008 AIR SCW 7988; and Dharnidhar vs. State of Uttar Pradesh and Others & other connected appeals, (2010) 7 SCC 759).
19. Taking the cumulative effect of the evidence, we are of the considered opinion that the trial Court was fully justified in convicting the accused-appellants. The impugned judgment and order deserves to be affirmed and accordingly, the same is affirmed.
20. Appeal has no substance, the same is, accordingly, dismissed. The appellants are reported to be on bail, they be taken into custody forthwith to serve the remaining sentence.
21. We appreciate the assistance rendered by Sri Ram Milan Dwivedi, learned Amicus, who has argued on behalf of appellant no.1. The State Government is directed to pay Rs.5000/- to the Amicus towards his remuneration.
22. Let a copy of this judgment be sent to the concerned trial Court for compliance.
(Raj Beer Singh, J) (Pritinker Diwaker, J)
Dated:19.9.2019
RKK/- A. Tripathi