Allahabad High Court
Mithlesh And Another vs State Of U.P. on 31 May, 2018
Bench: Naheed Ara Moonis, Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
RESERVED.
Case :- CRIMINAL APPEAL No. 3347 OF 2004.
Appellant. Mithlesh and another.
Respondent :- State of U.P.
Counsel for Appellant.
Counsel for Respondent :- Govt. Advocate.
Hon'ble Naheed Ara Moonis,J.
Hon'ble Chandra Dhari Singh,J.
(Delivered by Hon'ble Naheed Ara Moonis,J.) The instant appeal has been preferred against the common judgment and order dated 11.5.2004 passed by the Additional/ Special Judge, E.C. Act, Basti in S.T. No. 148 of 2001 (State Vs. Mithlesh) and S.T. No. 149 of 2001 (State Vs. Shailesh) arising out of case Crime No. 339 of 2000, police station Parsrampur, district Basti whereby both the appellants have been convicted under Section 302 read with Section 34 I.P.C. for life imprisonment with fine of Rs. 2,000/- each and in default of payment of fine both the appellants were directed to serve additional sentence of one month.
It is pertinent to mention that a separate trial was proceeded against the accused appellant Shailesh Tiwari in respect of offence under Section 3/25 Arms Act, which is the offshoot of (case Crime No. 339 of 2000) in case crime number 59 of 2001, police station Parasrampur, district Basti as S.T. No. 288 of 2001. By the impugned judgment the appellant Shailesh Tiwari however has been acquitted of the charge under Section 3/25 Arms Act.
The prosecution case in a short conspectus is that a first information report was lodged by Sita Ram Pandey in respect of the incident occurred at 8 A.M. on 1.11.2000 alleging therein that he is a resident of village Dhuniya, police station Parasrampur, district Basti. On 1.11.2000 his brother who is an Advocate by profession had left his house for civil court along with Parma Nand Shukla at 8 A.M. when he reached in front of the house of Setu Bhuj at that juncture Mithlesh, Shailesh Tiwari and Rakesh @ Bablu all sons of Ramyagya resident of village Chhapiya, police station Paikaliya, district Basti came on a motorcycle and attacked upon him on account of old enmity of property dispute. All the three persons had whipped out country made pistol and revolver and made indiscriminate firing upon Deena Nath Pandey at this Parma Nanad Shukla had made hue and cry on account of which various persons came on the spot. The complainant Laxmi Narain and Setu Bhuj also reached at the spot. All the accused persons escaped towards Baijalpur on the motorcycle brandishing Katta and revolver. Deena Nath Pandey died on the spot. The complainant was also going to market from his house. He was accompanied with Bhav Nath Pandey son of Kashi Nath. All the persons had witnessed the incident and recognized the accused persons. The dead body of his brother was lying on the spot and had come to lodge the report to take action. A question was asked as the house of Setu Bhuj situate in which village it was answered by the complainant that it is in village Parsahwa. On this information the first information report was lodged at about 9.45 A.M. on the same day, which was registered as case crime No. 339 of 2000, under Section 302 I.P.C. at police station Parsarampur, district Basti against the accused persons, namely, Mithlesh, Shailesh and Rakesh @ Bablu, all sons of Ramyagya. The accused/appellants whose trial was separated from the accused Rakesh Tiwari, had faced the trial and convicted by the order impugned.
The trial of accused Rakesh Tiwari was proceeded as S.T. No. 142 of 2004 arising out of same case crime No. 339 of 2000 was convicted by the judgment and order dated 26.8.2010 passed by the learned Additional Sessions Judge, Fast Track Court No.1, Basti under Section 302 I.P.C. for life imprisonment with fine of Rs. 10,000/- and in default of payment of fine to undergo one year simple imprisonment. The accused Rakesh Tiwari @ Bablu has preferred separate appeal assailing the judgment and order passed by the court below dated 26.8.2010, which is numbered as Criminal Appeal No. 6384 of 2010.
After lodging of the first information report the criminal law was set in motion. The investigation was entrusted to S.H.O. Harish Chand P.W. 8. The Investigating Officer arrived at the place of incident and collected the blood stained and plain earth, prepared the site plan, taken the dead body in custody and conducted the inquest and prepared the papers for sending the dead body for post mortem and in this regard challan nash and photo nash of the papers mentioned above were exhibited as Exhibit Ka. 15, the site plan of the spot was marked as Exhibit Ka. 16, inquest report as Exhibit Ka. 7 and paper relating to for sending the dead body for post mortem as Exhibit Ka. 8, Ka.9, Ka. 10 and Ka. 11. After sending the dead body for post mortem the Investigating Officer recorded the statements of the witnesses and after collecting clinching material submitted the charge sheet against the accused/appellant Mithlesh on 21.4.2001, which is exhibited as Exhibit Ka. 19 and against accused Rakesh @ Bablu the charge sheet was submitted in abscondance on 2.2.2001. The charge sheet submitted on 2.2.2001 against Shailesh was exhibited as Exhibit Ka. 21. The trial was committed to the court of sessions, which was numbered as S.T. No. 148 of 2001 (State Vs. Mithlesh) and S.T. No. 149 of 2001 (State Vs. Shailesh) under Section 302 I.P.C. Since a country made pistol and live cartridges of 333 bore were recovered at the instance of accused Shailesh, hence the case was registered against him as case Crime No. 59 of 2001, under Section 3/25 Arms Act in which the charge sheet was submitted and was committed to the court of Sessions numbered as S.T. No. 288 of 2001. Both the session trial of the accused/appellants Mithlesh and Shailesh were consolidated and proceeded together.
The charges were framed against the appellant Mithlesh under Section 302 I.P.C. while charge under Section 302/34 I.P.C. and under Section 3/25 Arms Act were framed against the appellant Shailesh. The charges were read over to the appellants, they abjured the charges and claimed to be tried.
In order to substantiate the charges against the appellants the prosecution has examined P. W. 1 Sita Ram Pandey the complainant of the case, Parmanand Shukla who is an eye witness and Samdhi of deceased as P.W. 2. Formal witnesses were examined by the prosecution, they are Keshav Prasad Dubey, Head Constable as P.W. 3, Constable Raj Nath Yadav as P. W. 4, Sub Inspector Sudama Yadav P. W. 5 and P. W. 6 Constable Ramagya Tiwari, P. W. 7, Dr. S.S. Dwivedi, P. W. 8, Harish Chand, Sub Inspector P.W. 9 Constable Nakshed Prasad and P. W. 10 Sub Inspector Ram Suresh Rai.
The first informant Sita Ram Pandey whose statement was recorded as P.W.1 had reiterated the version given in the first information report and submitted that the incident had taken place two years ago at about 8 A.M. in the morning. At that time he was gong on his cycle from his house to Srangiwari accompanying with Laxmi Narain as he arrived 50-60 paces away from the house of Setu Bhuj he had seen that his brother Deen Nath Pandey (deceased) a practicing Advocate by profession was going along with Parma Nand Shukla (P.W.2). They had set out earlier to him to go to civil court. The accused/appellant Mithlesh, Shailesh and Rakesh @ Babbu who are brothers came on a motorcycle and stopped near his brother Deerna Nath Pandey, they all started firing with country made pistol and revolver with intent to kill him. At this Parma Nand Shukla cried out. The complainant ran to save his brother. Laxmi Narain who was also accompanying with the complainant rushed at the place where the incident had taken place in front of the house of Setu Bhuj who had also come out from his house. Thereafter all the three accused persons brandishing their weapons had threatened not to come forward otherwise they will be also met the same fate and they left the place on motorcycle towards southern road unleashing reign of terror. The brother of the complainant died at the spot. The complainant further stated that his brother was married with Ram Dulari who is daughter of Sonkali resident of village Chhapiya, police station Paikuliya. His brother had no brother-in-law or sister-in-law. The mother-in-law of Deena Nath Pandey had transferred the property in the name of her daughter and son-in-law by way of gift. All the accused persons are resident of village Chhapiya. They had not filed any objection to the gift deed. Prior to the death of Deena Nath Pandey, Deena Nath Pandey had executed will of the property, which was given by his mother-in-law in favour of his son Vijay Kumar and on account of this will the accused Mithlesh Kumar had filed objection. Whenever there was a decision made by the court against the accused persons they used to attack upon his brother Deena Nath Pandey. They had attacked earlier upon life of his brother Deena Nath Pandey. It was further contended by the complainant that on the day of the present incident his brother Deena Nath Pandey was going to attend the court in respect of the case in which the accused persons had made an attempt upon his life. As his brother had received the property of his in laws, the accused persons were bearing enmity and on the day of incident they had succeeded by killing him. It was further contended that he had written the report on the spot, which was submitted to the police station. The report was proved by the complainant in the court and submitted that it is the same document, which was written and signed by him, the same was exhibited as Exhibit Ka. 1. He further submitted that he was interrogated by the police. The police arrived at the spot and at his pointing the site plan was prepared and the dead body was sent for post mortem. P.W.1 was cross examined at length by the defence.
Parma Nand Shukla was examined as P.W. 2 who had deposed that two years prior to the incident at about 8 A.M. he along with Deena Nath Pandey had left the house at about 7.30 A.M. for civil court Basti. He had some personal work at Harraiya, hence he had moved out along with Deena Nath Pandey when they reached about one and half kilometers from his house and reached in front of the house of Setu Bhuj, the accused persons, namely, Mithlesh, Shailesh and Rakesh @ Babbu had come on a motorcycle and after parking the motorcycle they alighted and thereafter indiscriminate firing was made by them with their firearm weapons at Deena Nath Pandey. He had cried for help at this Sita Ram P.W. 1 Laxmi Narain and Setu Bhuj arrived there. They had tried to save Deena Nath Pandey but could not came forward as all the accused persons were armed with firearm weapon and firing indiscriminately, they had exerted threat that if they will come forward they will also be done to death. Thereafter all the accused persons brandishing the firearm had gone towards Baijalpur southern side of the place of occurrence on their motorcycle. P.W. 2 further divulged that there was dispute with respect to landed property on account of which the accused persons had killed Deena Nath Pandey. The report was written by Sita Ram Pandey. The police had also inquired from him with respect to the incident and thereafter his statement was recorded by the police at his village after three days of the incident. He had disclosed the entire incident to the police in the manner as it had occurred.
In his cross examination P.W. 2 had stated that the deceased was his Samdhi. At the time of incident he was accompanying with the deceased and were in front of the house of Setu Bhuj. He had started from his village Marjatpur at about 6 A.M. in the morning on a cycle. He reached at about 6.45 to 7 A.M. at Dhuniya. He along with Deena Nath Pandey proceeded at about 7.30 A.M. Deena Nath Pandey was 3-4 paces ahead. The motorcycle was not parked earlier. It came in front of him, which was parked 2/3 feet away. Rakesh Kumar @ Bablu was driving and Sailesh was sitting in the middle of the motorcycle. The firing was made after they alighted from the motorcycle. The firing was made at a distance of 4/5 paces. The firing was made about 5/6 times and thereafter they escaped from the spot. He did not receive any fire arm injury as he was 6-7 paces behind to Deena Nath Pandey. He did not find any cartridges or pallets on the road. Deena Nath Pandey who moved towards the house of Setu Bhuj from kharanja and only after 4/5 paces he fell down. No blood was fallen between the Kharanja and the place where he fell down though the blood was on his clothes. It was further stated by him that Deena Nath Pandey was not wearing sweater. He was wearing sleeper. Other witnesses, namely Laxmi Narain, Bhavnath, Setu Bhuj and Sita Ram were 10-15 paces behind him. All the accused persons were firing at Deena Nath Pandey from front. Deena Nath Pandey had sustained injuries over his face and chest. After firing all the accused persons escaped towards Baijalpur. Setu Bhuj is the resident of Amri Market, police station Harraiya. He had denied that the incident had not taken place in front of the house of Setu Bhuj and that he was in his village Amari. On being inquired about reason for accompanying with the deceased he had stated that a license of ration card was to be prepared at Harraiya Tehsil, which could only be prepared with the help of an Advocate, hence he was accompanying with Deena Nath Pandey. He had completely denied the suggestion that he had not seen the incident and had denied that being a relative he is falsely deposing against the accused persons. He has also denied that the incident had taken place at about 3-4 A.M. He had also denied suggestion that there were several enemies of the deceased.
Head Constable Keshav Prasad Dubey was examined as P.W. 3 who had stated that he was posted as Head Moharrir at police station Parsrampur, Basti on 1.11.2000. He had registered the first information report on the basis of written report of the complainant. The chick first information report was registered as Chick No. 128 of 2000 as case Crime No. 339 of 2000, under Section 302 I.P.C. On the same day the case was entered in the General Diary at about 9.45 A.M. Both the chick first information report as well as general diary was prepared by him, which were proved by him and exhibited as exhibit Ka. 3. He had also pointed out that in his presence the first information report relating to offence under Section 3/25 Arms Act was written by Head Moharrir Constable Ram Agya Tiwari as Chick No. 21 of 2001, case Crime No. 59 of 2001 against Shailesh Tiwari. The said first information report was proved by him as Exhibit Ka. 4 of which the general diary entry was prepared at about 3.45 P.M. on 2.2.2001. The general diary entry was marked as Exhibit Ka. 5. He has admitted in his cross examination that Sita Ram Pandey had got registered the case under Section 302 I.P.C. at about 9.45 A.M. He had completely denied the suggestion that the first information report was lodged in consultation of police at the police station.
Constable Raj Nath Yadav was examined as P. W. 4 who had stated that he was posted as constable at police station Parsarampur on 1.11.2000. He had also proved the signature of Sudama Yadav, Sub Inspector who prepared the inquest report, which was exhibited as Exhibit Ka. 6. He had submitted that he along with constable Mangroo Ram had taken the dead body for conducting the post mortem of the deceased. In his cross examination he had stated about that he had left for the post mortem of the deceased on tempo at about 11.30 A.M. The post mortem house is 40 Km. away and he reached at the post mortem house at about 4 P.M. The delay was explained that on account of tempo had gone out of order, he reached at the post mortem house at about 4 P.M. He had denied the suggestion that the tempo was not out of order. He has further stated that as he reached the post mortem house shortly thereafter the doctor arrived there.
Sub Inspector Sudama Yadav was examined as P.W. 5 who had stated that he was posted as Sub Inspector at police station Parsarampur, district Basti on 1.11.2000. On that day after reaching at the spot along with police force, in the presence of the witnesses, who were present near the dead body, the inquest was conducted and thereafter their signatures were taken, which was exhibited as Ka. 6. Thereafter sealed the dead body, which was sent for post mortem. He had also prepared Form No. 33 Challan nash, photo nash, the same were proved by him as Exhibit Ka. 11 and Ka. 12. Along with sealed body and the relevant papers, it was handed over to the Constable Ram Nath Yadav and Mangaroo Ram for the post mortem. In his cross examination he has stated that he was present at the time when the complainant came to lodge the report. When he arrived at the place of incident the Station House Officer was present. He did not find any sleeper or shoes or socks of the deceased. He did not recover besides the dead body any live used or empty cartridges. Blood was oozing out from the wounds, on account of blood all over the body he could not see whether burn was present around wounds. Wounds were filled with blood from which flesh was coming out. The deceased was wearing pant and shirt. Dead body was covered with lungi. He showed his ignorance about the mode of taking the dead body for post mortem. He denied that the process of inquest was fake. He had prepared the inquest and proved the same as Exhibit Ka. 6. He had also deposed that he had sent the dead body for post mortem through constable along with a letter to the Chief Medical Officer, Challan nash, police form, which were proved by him as Exhibit Ka. 7, Ka. 8, Ka. 9 , Ka. 10 and Ka. 11.
Constable Ramyagya was examined as P. W. 6 who was posted as Moharrir at police station Parsrampur, district Basti. He had proved the first information report lodged against Shailesh Tewari under Section 3/25 Arms Act as case Crime No. 59 of 2001 and the recovery memo of the weapon prepared by him as Exhibit Ka. 5, which was sent for ballistic examination.
Dr. S.S. Dwivedi who was posted as Senior Medical Officer at District Hospital, Basti was examined as P.W. 7. He had conducted the post mortem of the deceased Deena Nath Pandey at about 6.30 P.M. On 1.11.2000 which was brought by Raj Nath Yadav and Mangaroo Ram police constables of police station Parsrampur, district Basti in sealed cover. On external examination the Doctor has found an average build male, eyes open, mouth half open, injured part were bleeding, clot of blood surrounding the wounds, rigour mortis present in both the extermities. The following anti mortem injuries were found;
1. Firearm wound of entry on lat side size 1 x 0.8 x cavity deep direction upward oblique inverted colar with laceration. No blackening and tattooing present.
2. Firearm wound of exit on right side ear grove in area of 2.5 x 2 cm. X Cavity deep oblique left mostoid fracture.
3. Firearm wound of entry on left zygomatic arch below, cheek size 1 cm x 0.8 cm cavity deep gone up ward. Inverted color with laceration. No blackening and tattooing present.
4. Firearm wound of exit on frontal bone lateral aspect left side oblique, size 4 cm x 3 x bone deep base long roof small exverted margin fracture of frontal bone missing bones pieces.
5. Firearm wound of entry on left side chest. 11 cm below at 7' O clock position, size 1 cm x cavity deep, ......powder burn present, inverted color lacerated margin, no BT going oblique.
6. Firearm wound of entry inverted cross lacerated margin front of chest right side 14 cm medial to nipple at 6.30' O clock position size 1 cm x 0.8 cm. Cavity deep. No B.T.
7. Firearm wound of exit mesentry comes out 2.5 cm below, right nipple at 7' O Clock position size 3 cm x 2.5 cm x cavity deep lacerated margin with oblique directions.
8. Firearm wound of exit 12 cm post auxiliary fold right side back 2 x 1.5 x cavity deep everted margin lacerated in nature.
9. Firearm wound lacerated lateral spining process crossing parallel making arrow, same entry exit same size 1.2 cm x 0.6 cm x muscle deep. No BT roof of wound absent.
10. Firearm wound of entry on back 28 cm below C-7 prominence right side oblique size 1 cm x 0.8 cm x cavity deep. Inverted color lacerated margin. No BT oblique direction.
11. Firearm wound of exit on back C -7 prominence 18 cm away left side, size 1.8 cm x 1.2 cm x cavity deep.
12. Abraded contusion on left patella (knee), size 3 x 2 cm.
13. Contused abrasion on fore head front size 2 cm x 2 cm.
On internal examination the Doctor has found the membranes of scull was badly lacerated with brain was coming out at places. Sixth rib was broken. Both lungs and heart lacerated and heart was torn. Two litres of blood was found in cavity. Stomach was empty. Muscure tears on lesser curvature, small intestine was half empty with gases and big intestine empty with gases lacerated. The Doctor has opined that on account of firearm injury death has occurred due to shock and hemorrhage. The duration of death about half day. At the time of conducting post mortem Doctor V.P. Singh was also present. The injuries were also shown with the sketch map on the post mortem report. The post mortem report was prepared at the time of conducting post mortem, which was signed by Dr. V.P. Singh in his presence. The Doctor has also mentioned that the injuries could be possible to have caused at about 8 A.M. on 1.11.2000. The injuries were sufficient in the ordinary course to cause death. After conducting post mortem, the clothes of the deceased were sealed and sent through police constable. The post mortem report was duly proved by Dr. S.S. Dwivedi the same was prepared in the presence of Dr. V.P. Singh marked as Exhibited Ka. 13.
Harish Chand, Sub Inspector who was posted as Station House Officer at Parsarampur was examined as P.W. 8. He had stated that the case was registered in his presence under Section 302 I.P.C. as case Crime No. 339 of 2000 at police station Parsaramur. He had received information through RT Set. He had conducted investigation and proved the papers prepared by him during the course of investigation and had submitted the charge sheet, which was proved by him as Exhibit Ka. 19.
Constable Nakched Parasad was examined as P.W. 9. He had proved the dockets, which were prepared and sealed while depositing at the Malkhana. Dockets were proved by him as Exhibit Ka. 13.
Sub Inspector, Ram Suresh Rai who was examined as P.W. 10 had deposed that he was posted as Sub Inspector on 2.2.2001 at police station Parsarampur, district Basti. Accused Shailesh Tiwari was arrested at 2.2.2001. He was entrusted with the investigation in respect of case Crime No. 59 of 2001 after recovery of the weapon the first information report was registered. Statement of the accused Shailesh was recorded. The statements of the other witnesses were also recorded. At the instance of the constable Awadhesh Kumar the site plan was prepared marked as Exhibit Ka. 24. Thereafter obtained sanction for prosecution of the accused Shailesh Kumar under the Arms Act and submitted the charge sheet against Shailesh Kumar, which was proved by him as Exhibit Ka. 26.
The accused/appellants Mithlesh and Shailesh were examined under Section 313 Cr.P.C. They had denied the prosecution case and stated that Sonkala the wife of Drigpal had no issue. Smt. Ram Dulari is the daughter of Inderpal who is resident of different village and wife of deceased Deena Nath. In 1971 Dulari Devi impersonated herself as daughter of Drigpal got executed a will from the widow of Drigpal. The incident was of his village and he was the B.D.C. in the year 1992 and a candidate of Block Pramukh, hence in the interest of justice Mithlesh had moved an application against Dulari Devi and on account of this enmity he along with his two brothers had been falsely implicated in a case under Section 307 I.P.C. in 1997. Similar statement was given by the accused/appellant Shailesh. Both the appellants submitted some documentary evidence to substantiate the case. Thereafter the evidence was closed.
After taking into consideration the submission raised on behalf of the parties and appraisal of evidence the trial judge found the testimony of eye witness P.W. 1 Sita Ram Pandey and P.W. 2 Parma Nand Shukla reliable who had faced searching cross examination recorded the finding of conviction and awarded punishment for life imprisonment to both the appellants.
We have heard the learned senior counsel Sri V. P. Srivastava assisted by Sri S.P. Pandey for the appellants, learned A.G.A. Sri Syed Ali Murtaja on behalf of the State and have gone through the original record summoned for the disposal of appeal.
It is vehemently argued by the learned counsel for the appellants that the first informant Sita Ram Pandey who is brother of the deceased is highly partisan and chance witness. P. W. 2 Parma Nand Shukla who is Samdhi of the deceased as his daughter was married to the son of deceased Vinay, was a resident of village Marjatpur, district Gonda. He is also said to be present at the time of incident, which had taken place in district Basti hence his presence is also highly doubtful as such he too comes within the periphery of partisan and chance witness. The presence of both the two alleged eye witnesses and their narration with respect to the manner of incident is highly improbable and it appears that the deceased was done to death by some unknown persons at about 3-4 A.M. and no one had seen the actual assailants. It is evident from the statement of P.W. 8 as he, in his cross examination had stated that he had received information through RT Set that three miscreants have killed Deena Nath Pandey, the names of the accused persons were not disclosed. At the time of giving information regarding death of Deena Nath Pandey certain questions could have been asked as to who had caused death but the names were not disclosed as to who had killed him as such hence the name of the accused persons have been mentioned in the first information report after consultation. According to the prosecution case the deceased was going to civil court who is practicing at Tehsil Harraiya, which is at a distance of 30 km. from his village. At the time of conducting inquest no pen, diary, money, coat or tie and even sleepers were found beside the dead body. The deceased who belongs to a zamindar family and was having jeep and motorcycle but he was going bare foot for taking bus to the civil court. Nothing was found from his possession if he was going to attend any court proceeding and hence the manner in which the incident is said to have taken place creates doubt about its veracity.
The learned counsel has further submitted that P.W. 2 who is a resident of village Marjatpur, district Gonda and for the work of license there was no justification to come to get the same from district Basti. It is submitted by him that there was no occasion to come to Tehsil Harraiya, district Basti for getting license of quota all through from district Gonda. The motive which has been put forth by the prosecution that the accused persons were bearing enmity as by impersonation the wife of the deceased who was the daughter of Ramkali and not of Drigpal had got executed will in her favour and thereafter the property was transferred in the name of the son of the deceased Vinay by way of gift and hence they were bearing grudge against Deena Nath Pandey is absolutely false and has no legs to stand. The criminal case which was registered against the accused/appellant Mithlesh and other in the year 1999, was decided in 2004 in which the accused persons have been acquitted. The present incident had occurred in 2000. In the case of S.T. No. 166 of 1999, under Section 307 I.P.C. the accused persons were in jail and later on acquitted and hence the motive has been set up to implicate all the accused persons who are brothers and belongs to one family. No case was pending between the deceased and accused persons in respect of offense under Sections 107, 116 and 145 I.P.C. In the present case the appellants have been falsely roped in for the murder of Deena Nath Pandey. On the basis of weak foundation with regard to the motive the conviction could not have been recorded by the trial court. The prosecution has not been able to establish immediate motive to commit the offence. The medical evidence also creates great suspicion with regard to the manner of incident viz a viz the testimony of the witnesses who were said to be present when the alleged incident took place.
In the inquest report the P. W. 5 Sudama Yadav had mentioned that the injuries could have come with bombs of which there was no description in the prosecution case. There were many lacerated wounds, which could have come with blunt object but there is no explanation of the injuries, which were shown as lacerated wound there is no explanation with respect to those injuries. Injury nos. 1, 2 and 3 were contusion and abraded contusion. The prosecution has also not disclosed about Lungi, which was found over the dead body of the deceased. The manner in which the dead body was found clearly proves that some unknown persons after committing his murder left the dead body and no one had seen the actual incident. It is further submitted that the prosecution case is full of inherent inconsistencies with respect to the place of incident, which makes the entire prosecution case doubtful. It is alleged that the incident had taken place in Parsava on the road in front of the house of Setu Bhuj. According to the site plan the deceased was found to have fired at place "A" by the accused persons from place "B" and the "D" place was shown where the deceased fell down. "E" place was shown from where the complainant Sita Ram and other witnesses had seen the incident and according to the site plan the complainant had seen the incident from "C" place while from "E" place Setu Bhuj had seen the incident. Whereas according to the statement of the complainant he had stated that he was away from the house of Setu Bhuj at a distance of 5-6 paces.
Thus the presence of the witnesses that they had seen the incident create doubt which is inconsistent with the site plan and the statement of the prosecution witnesses. The dead body was found at the Sahan of Setu Bhuj at place "D" whereas the accused persons were said to have fired from place "B". The apparel of the deceased was also not placed to show that the deceased had sustained firearm injuries. The Doctor has opined that the duration of death could have been 12 hours before. As the rigour mortis have been passed off, therefore, the deceased could have been done to death at about 3-4 A.M. in the morning. There is inconsistency in the prosecution case with regard to the time of death with the statement of the prosecution witnesses. At the time of post mortem the stomach was found empty and if the deceased had moved from his house in the morning he would certainly have taken some food but as the stomach was found empty, which confirms that the incident had occurred around 4 O'clock in the morning. There is firearm wound on the back of the deceased but the P.W. 1 had not stated about the firing from behind by the assailants, which also creates doubt about his presence at the time of incident. Various persons have been named in the first information report but they were not examined as independent witnesses to corroborate the testimony of the two prosecution witnesses who are the partisan and related witnesses as P.W. 1 is the brother of the deceased and P. W. 2 is the Samdhi of the deceased. The trial court has committed manifest error in relying upon the testimony of highly partisan and interested witnesses. The learned Sessions Judge has not appreciated this aspect of the matter.
It is further submitted that the prosecution has failed to prove its case, which was registered against the appellant Shailesh under the Arms Act. The State has not preferred any appeal against the acquittal and as such whether the recovery of firearm weapon at the instance of the accused Shailesh was the same weapon with which the injury was caused to the deceased or any other weapon was used by any other accused persons, hence it cannot be said that all the injuries, which have been sustained by one firearm or two firearm. The acquittal of the appellant Shailesh under the Arms Act has put a seal about the recovery of firearm weapon at his instance, which was false and fabricated. There was no other fire arm recovered from other accused persons as such the entire prosecution case becomes doubtful with regard to the manner of incident as alleged in the first information report by the P.W. 1 who is a chance witness.
It is further contended by the learned counsel for the appellants that the post mortem report of the deceased does not corroborate with the inquest as P.W. 4 who had conducted inquest had found injury no. 7 which could have been received with some bomb and in the post mortem report besides firearm injury the Doctor had found injuries caused by blunt object of which there is no explanation given by the prosecution witnesses, therefore, when the ocular testimony is inconsistent with the medical evidence, the medical evidence would prevail. The prosecution has not given cogent reason with respect to the injury nos. 12 and 13 abraded contusion and contused abrasion.
The learned trial court has committed manifest error in convicting both the appellants under Section 302 I.P.C. with the aid of Section 34 I.P.C. for life imprisonment. The prosecution had failed to prove the common intention of the appellants that they in order to achieve the common object had come together along with his brother Rakesh Tiwari and fired upon the deceased to commit his murder, hence the conviction of the appellants under Section 302/34 I.P.C. is not liable to be sustained.
Per contra the learned A.G.A. has supported the findings of the learned trial court and has contended that both the appellants are brothers who along with his brother Rakesh Tiwari have committed ghastly offense by firing upon the brother of the complainant Deena Nath Pandey on account of old dispute regarding the landed property. P.W. 1 is the brother of the deceased while P.W. 2 is the Samdhi of the deceased who were present at the time of the incident when all the three accused persons had intercepted the deceased and fired upon him indiscriminately. The deceased in order to save his life went to few paces towards the house of Setu Bhuj but on account of receiving firearm injuries he fell down in front of the house of Setu Bhuj, there were as many as six entry and six exit wound besides contused abrasion over the body of the deceased. Both the eye witnesses were present when the assailants had fired indiscriminately upon the deceased. There is no reason to doubt about their testimony merely because they are related to the deceased. The first information report was promptly lodged at about 9.45 A.M. by Sita Ram Pandey who is the brother of the deceased. The first information report was lodged by Sita Ram Pandey in a very natural articulate manner in respect of the incident which had occurred at 8 A.M. The possibility of false implication cannot be sustained as the deceased would not move out in the month of November without having any woolen clothes that too when it has come in the evidence that he was a patient of blood pressure. At the time of inquest woolen clothes that too were not found. There is no reason that the brother of the deceased would falsely implicate the appellants leaving behind the actual culprit.
It is further submitted by the learned A.G.A. that Rakesh Tiwari who is the brother of the appellants had also participated in the commission of offense but his trial was separated as the charge sheet was not submitted along with the present appellants whose trial was conducted separately and was convicted by the learned trial court on 26.8.2010. In the case of Rakesh Tiwari the son of the deceased Vinay was produced as the defense witness. In the present appeal the appellants had never disclosed in their statements under Section 313 Cr.P.C. that the son of the deceased Vinay had disclosed the Investigating Officer that Rakesh Tiwari was accompanying with him on the day of incident to participate in the cricket tournament in Saket district Faizabad. The plea of alibi in defense by Rakesh Tewari the brother of the appellants, was not accepted by the learned trial court and was also convicted for life imprisonment by the judgment and order dated 26.8.2010.
All the accused persons named in the first information report had shared common intention and in furtherance of common intention they all came together and fired indiscriminately upon the victim resulting into his death instantaneously. The oral testimony of the prosecution witnesses is fully corroborated by medical evidence. There is no material discrepancy between the medical evidence and the evidence of the eye witnesses. The incident had taken place in a broad day light. The testimony of the witnesses cannot be discarded merely because they are related with the deceased. The role of the appellants in the commission of offense stands clearly established. The lodging of the first information report promptly diminishes the chance of false implication. The testimony of both the witnesses cannot be termed as unreliable by brandishing them as chance witness.
The presence of the witnesses on the spot is natural as the spot map prepared by the Investigating Officer during the investigation as proved on record goes to show the place of occurrence with the evidence of the oral testimony of the witnesses.
The motive attributed to the accused appellants has been divulged by the brother of the deceased that on account of the will executed in favour of his son Vijay Kumar by the deceased against which the accused Mithlesh had filed his objections before the court. The deceased was going to attend the said case to the civil court, which was pending against the accused appellants. They had lost the case from the two courts below, hence they were bearing grudge and eliminated him in a very brutal manner. Prior to this incident the accused appellants had made an attempt to kill the deceased by lobbing bomb. The motive is sufficiently proved by the prosecution but even if the prosecution fails to prove the motive it looses significance when there is direct evidence. Merely because the prosecution could not prove the case against the appellant Shailesh in respect of the weapon recovered at his instance, the prosecution case cannot be doubted. The learned trial court has taken into account the totality of the circumstances of the case forming the basis for conviction of the appellants. Minor variations, if any, in the statements of the witnesses will not topple the entire prosecution case, hence the conviction recorded by the trial court deserves to be maintained.
At the outset it needs to be mentioned that it is not disputed that the deceased Deena Nath Pandey who is the brother of the complainant met a homicidal death on account of the injuries sustained by him on the date of occurrence. It is also not in dispute that the deceased had succumbed to the firearm injuries on the date of occurrence on the spot. After conducting the post mortem of the deceased the Doctor has confirmed that on account of firearm injury death has occurred.
The first information report of the incident has been lodged by the P.W.1 Sita Ram Pandey who had witnessed the incident at about 8 A.M. and the first information report was lodged by him at 9.45 A.M. The first information report was lodged against the named accused persons, namely, Mithlesh, Shailesh and Rakesh @ Bablu. The distance from the place of incident to the police station was six kilometers. The lodging of the first information report with great promptitude diminishes the chance of false implication of the accused/appellants. It cannot be termed to be fatal or suspicious.
It has been argued by the learned counsel for the appellant that both the prosecution witnesses are highly interested and chance witnesses besides they are also related as the P.W. 1 is the brother and P.W. 2 is the Samdhi of the deceased. P.W. 2 Parma Nand Shukla belongs to the resident of village Marjatpur, district Gonda and as such it is highly doubtful that he was present at the time of the incident, which had occurred within the district of Basti. His presence has been made deliberate to show that they had witnessed the occurrence.
Some caution is required to be exercised in the case of chance witness. It requires a close scrutiny of the evidence of a 'chance witness' as termed by the learned counsel for the appellants.
It is well settled principle of law that the evidence of chance witnesses cannot be discarded on the ground that he is not a resident of the same village. His evidence can only be scrutinized carefully. The evidence of P. W. 2 is credible and cogent. There is nothing in his cross examination to disbelieve his testimony. He has specifically divulged that to get license of quota he required assistance of an Advocate, hence it cannot be said that without any purpose or motive he came from district Gonda to district Basti.
The evidence on record sufficiently proves the motive attributed to the accused/appellants. It has been clearly stated that the will executed in favour of the son of the deceased was not liked by accused Mithlesh who has filed his objections and has also made an attempt on the life of the deceased for which a case was pending under Section 307 I.PC. against the accused/appellants and for doing pairvi of the said case on the fateful day the deceased was going to the court. Both the appellants and accused Rakesh are brothers had attacked upon the complainant's brother with their respective firearm weapons, which they were carrying and they started firing, with the result the deceased had sustained as many as six entry wound and five exit wound on vital parts of the body besides one abraded contusion and contused abrasion on the head. It is worthwhile to mention that in a case where near and dear one is killed his relations would not spare the real culprits and falsely implicate others. P.W. 1 who is brother of the deceased and P.W. 2 is the Samdhi of the deceased were put to lengthy cross examination but nothing elicited to create doubt about their presence at the place of occurrence. Their testimonies have been well supported by the medical evidence, hence the motive looses its significance.
The motive for committing crime as alleged by the prosecution is established from the testimony of the two prosecution witnesses. In the case of Harish Chandra Bahri vs State of Bihar 1994 Criminal Law Journal 3271 Hon'ble Apex Court has held as under :-
"Sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the court that the accused was guilty of the offence charged with. But it has to be remembered that the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime."
In the case of Dharnidhar Vs. State of U.P. and others (2010) 3 Supreme Court Cases (Crl.) 491, Hon'ble Apex Court held as under:
"It is not always necessary for prosecution to establish defiite motive for commission of crime to secure conviction of accused. It would always be relatable to facts and circusmtaces of a give case. Absence of motive does not essentially result in acquittal of accused if he is otherwise found guilty by cogent and reliable evidence. However, in cases which are entirely or mainly based upon circumstantial evidence, motive can have greater relevancy or significance."
There is complete consistency and coherence in the examination-in-chief and cross examination is fully corroborated by the time, date and place of occurrence that the appellants were involved in relentless and grim crime of deciminating the victim for ever. In the case of Darshan Singh Vs. State of Haryana 1996 SCC (Cr.) 1261 the Hon'ble Apex Court has held as under:-
"Opinion of Doctor as to how the injury was caused cannot override unimpenable testimony of eye witnesses."
In the case of Anil Rai and others Vs. State of Bihar 2001 (43) ACC 614, Hon'ble Apex Court has held as under;
"Opinion of expert would loose its sigificance in view of reliable consistent and ocular testimony of prosecution witneswses moreover, if direct evidence is satisfactory and reliable, it cannot be rejected on hypothetical medical evidence."
There is no justification to disbelieve the statement of the two related prosecution witnesses. In the case of State of Rajasthan vs. Smt. Kalki and another (1981) 2 SCC 752, Hon'ble Apex Court has held as under:-
"Related is not equivaent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigatoin; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circusmtances of a case cannot be said to be 'interested' .
Merely because the eye witnesses are family members their evidence cannot per se be discarded. Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegation against an innocent person. The natural witness cannot always be lebelled as interested witnesses.
In the case of Dalip Singh vs. State of Punjab AIR 1953 SC 364, Hon'ble Apex Court has held as under:-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. "
In the case of Kartik Malhar vs. State of Bihar 1996 CRL. L.J. 889, Hon'ble Apex Court has held as under:-
"We may also observe that the ground that the witness being a close relative and consequently, being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case, AIR 1953 SC 364 in which this Court expressed its surprise over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses."
In the case of Gangabhavani vs. Rayapati Venkat Reddy & Ors AIR 2013 SC 3681, Hon'ble Apex Court has held as under:-
"The evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. 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" .
Therefore, the minor contradictions are not so material, which goes to the root of the case to materially effect the prosecuton case.
It has also been argued that though the independent witnesses have been mentioned in the first information report but they have not been examined.
In the case of Hem Raj Vs. State of Haryana, it was observed that 'Non-examination of independent witnesses by itself may not give rise to adverse inference against the prosecution. It is a settled position that there is no propositon in law that relatives are to be treated as untruthful witness, just because the witnesses are related to the deceased would be no ground to discard their testimony, if otherwise their testimony inspires confidence.
It has also been contended by the learned counsel that the eye witness account cannot be relied upon because there is conflict in direct and medical evidence.
In the instant case the post mortem of the deceased clearly reveals that the firearm injuries had been received on the vital part damaging the internal organ like membrance of the scull, which was badly lacerated and brain was coming out. Heart and lungs both were lacerated, sixth rib was broken, intestine was lacerated. The injuries were also shown with the sketch map on the post mortem report and the Doctor had opined that all the injuries were sufficient in the ordinary course to cause death. The testimony of the oral witnesses is fully corroborated by the medical evidence and hence the minor contradictions cannot be taken a ground to reject the testimony of the prosecution witnesses.
In our opinon there is no contradiction or conflict between the oral testimony and medical evidence.
In the case of Thaman Kumar Vs. State of Union Territory of Chandigarh, 2003, 47 ACC 7 SC, the Hon'ble Supreme Court has held as under;
"The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eye-witnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third category no such inference can straightway be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony".
It has also been argued that the deceased could have been done to death in some other manner in the darkness of night most probably in between 3/4 AM as stomach was found empty when the post mortem was conducted and therefore the incident would have occurred around 4 O' Clock in the morning. In this regard medical evidence relating to the state of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of occurrence, which has been settled by the Hon'ble Apex Court in the case of Ram Bali Vs. State of U.P. reported in 2004 Vol. 49 ACC page 453.
"Even otherwise, the plea that the medical evidence is contrary to the ocular evidence has also no substance. It is merely based on the purported opinion expressed by an author. Hypothetical answers given to hypothetical questions, and mere hypothetical and abstract opinions by textbook writers, on assumed facts, cannot dilute evidentiary value of ocular evidence if it is credible and cogent. The time taken normally for digesting of food would also depend upon the quality and quantity of food as well, besides others. It was required to be factually proved as to the quantum of food that was taken, atmospheric conditions and such other relevant factors to throw doubt about the correctness of time of occurrence as stated by the witnesses. Only when the ocular evidence is wholly inconsistent with the medical evidence the Court has to consider the effect thereof. This Court in Pattipati Venkaiah v. State of Andhra PradeshMANU/SC/0087/1985 : 1985CriLJ2012 observed that medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerised or mathematical fashion so as to be accurate to the last second. The state of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when exactly the deceased had his last meal and what that meal consisted of. In Nihal Singh and Ors. v. The State of PunjabMANU/SC/0078/1963 : 1965CriLJ105 , it was indicated that the time required for digestion may depend upon the nature of the food. The time also varies according to the digestive capacity. The process of digestion is not uniform and varies from individual to individual and the health of a person at a particular time and so many other varying factors. "
In the above conspectus all the accused persons with intent to kill the deceased caused him injuries with their respective weapons, which were proved to be fatal. All the accused persons did overt act in furtherance of their common intention and therefore the accused appellants are vicariously liable for their act. The existence of common intention has to be inferred from attending circumstance of the case and the conduct of the parties. No direct evidence of common intention is necessary if the accused have common intention then every one of them is liable for the act done by the other.
It was contended by the learned counsel that the appellants are languishing in jail since 2001. The sentence awarded by the trial court is too excessive and hence some leniency be shown.
Considering the facts and circumstances of the case, we do not find any subsistance to interfere with the conviction and sentence recorded by the learned trial court specially in view of the fact that Rakesh Tiwari @ Bablu whose trial was separated on account of his abscondance later on he was convicted by the learned trial court by order dated 26.8.2010 despite the son of the deceased was produced in defence on behalf of the accused Rakesh Tiwari showing that the appellant Rakesh Tiwari was not present on the day of incident as he was along with the son of the deceased to play cricket tournament, if that was so nothing was stated by the accused/appellant in the present case while recording the statement under Section 313 Cr.P.C. regarding non participation of their brother Rakesh in the commission of offence. There was even no suggestion in the cross examainaton of the prosecution witness.
The manner in which the victim was done to death has portrayed very inhuman and gruesome state of mind of the accused-appellants. The barbaric and infernal occurrence has fully supported by the testimony of eye-witnesses and the medical evidence which cannot be overclouded by any stretch of imagination or suspicion. The defence side has tried to evolve the story of false implication during the course of cross examination to overshadow the testimony of the eye-witnesses but it cannot be doubted that the eye-witnesses had not seen the accused-appellants perpetuated crime in a very relentless and devilish manner. There is no scope for mistaken identity as the accused persons were well known to the complainant. The evidence has been judged and weighed cautiously and warily with great circumspection. No adverse inference has been eliciated in the cross examiantion by the defence so as to disredict or overshadow the prosecuton version.
On the basis of verbose and prolix discussions made above and after considering the material evidence available on record, we are of the considered opinion that findings of conviction recorded by the learned trial court are well substantiated by the evidence available on record. The trial court has appreciated the evidence in the right perspective, we do not find any tangible reason to interfere with the final conclusion recorded for the offence punishable under Section 302 read with Section 34 of the Indian Panel Code, therefore, the conviction recorded by the trial Court against the accused/appellants Mithlesh and Shailesh under Section 302/34 I.P.C. is hereby maintained and affirmed.
The appeal is devoid of merit and is accordingly dismissed.
Let a copy of this judgment and order alongwith original record be transmitted to the learned trial court for information and compliance.
Judgment certified and be placed on record.
Dt.31.5.2018 (Chandra Dhari Singh,J.) (Naheed Ara Moonis,J.) Sh.