Allahabad High Court
Harnam Singh vs State Of U.P. on 10 July, 2020
Equivalent citations: AIRONLINE 2020 ALL 1543
Bench: Manoj Misra, Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Court No. - 50 Case :- CRIMINAL APPEAL No. - 1748 of 1991 Appellant :- Harnam Singh Respondent :- State of U.P. Counsel for Appellant :- K D Tripathi, Rakesh Pati Tiwari Counsel for Respondent :- G.A. Hon'ble Manoj Misra,J.
Hon'ble Pankaj Bhatia,J.
(Delivered by Hon'ble Pankaj Bhatia, J.) The present appeal has been filed by as many as five appellants against the judgement and order dated 10.9.1991 passed by the Sessions Judge, Pilibhit in Sessions Trial No. 210 of 1983, whereby the appellants were convicted under: Sections 302/149 ; 307/149; and 148 I.P.C. and punished as under: life imprisonment under Sections 302/149 I.P.C.; 5 years R.I. under Sections 307/149 I.P.C.; and 3 years R.I. under Section 148 I.P.C. with direction that all the sentences shall run concurrently.
During the pendency of the appeal, Appellant No.1 (Harnam Singh); Appellant No.2 (Babu Singh); Appellant No.3 (Nathu Singh); and Appellant No.4 (Surajpal Singh) died. Hence, their appeal was abated vide order dated 29.01.2019. The appeal of Appellant No.5 (Jogendra Singh) survives.
The prosecution case in the first information report (F.I.R.) was that around four years ago, Puttu Singh and Rakshpal Singh (also known as Mula Thakur), relatives of the appellants, were murdered, in which nine persons were made accused. The informant (Ram Bhajan - PW2) and his brother Nand Lal (PW1) were also accused in that case. However, the informant and three other persons were acquitted whereas Nand Lal (PW1) and five others were convicted in that case. Since then there had been strong enmity between the family of the accused-appellants and the informant. After narrating the above background, it is stated that on 28.5.1983, the informant (PW2); his uncle Kallu (the deceased); and Nand Lal (PW-1) had gone to jungle to collect thatch material for the ''Chhappar'. While they were on their way back, at about sun-set, near Barhepura canal, the accused Harnam Singh (Appellant No.1) armed with rifle; and Surajpal Singh (Appellant No.4), both sons of Puttu Singh, armed with S.B.B.L. gun emerged from the bushes on the north side of the canal, near the culvert of the Barhepura canal, whereas, from the southern side bushes, Nathu Singh and Babu Singh, both sons of Umrai Singh, armed with S.B.B.L. Guns, and surviving appellant - Jogender Singh, son of Puttu Singh, armed with Tamancha, came out and challenged the informant (PW2), Kallu (deceased) and Nand Lal (PW1) saying that today they would take revenge for the death of Puttu and Mula. It was alleged that all the five persons with an intent to kill fired, in which, Kallu (the deceased) sustained 3 to 4 gun-shots and Nand Lal (PW1) sustained two gun-shot injuries. It was alleged that Kallu fell down and slipped into the canal whereas Nand Lal (PW1) and the informant (PW2) managed to jump into the canal and they ran in opposite directions to save their lives. It was stated that Nand Lal (PW-1) waded across the canal and ran away towards the sugar-cane field and was chased by the accused and a shot also hit him on the back but by running into the sugar-cane field he could save his life. On the other hand, the informant (PW-2) saved his life by running towards the village Orajhar where he came to the house of Nathu Lal Gangwar and requested him to accompany him to the police station to lodge the F.I.R., however, as it had turn dark, on account of fear, they could not muster courage to immediately lodge the report. It is stated in the FIR that in the morning when it was revealed by the villagers of Orajhar that the brother of the informant, namely, Nand Lal (PW1) is alive and hiding in the sugar-cane fields in an injured condition, Nand Lal was brought from the sugar-cane field to the village and there they were told that the body of Kallu was lying tagged on a ''Khunta' towards south of the culvert. Where after, the body was taken out and kept on the western Patri of the canal. The FIR (Ex. Ka-1) was lodged on 29.5.1983 at about 9:15 A.M. at P.S. Bilsanda, District Pilibhit.
On the basis of the report (Ex. Ka-1), Chik F.I.R. (Ex. Ka-4) was taken down at the police station and a case was registered vide G.D. entry (Ex. Ka-5). The Investigating Officer V.P.S. Rawat (PW-4), who was allegedly busy in the election duty of the Block Pramukhs, deputed Sub-Inspector Mathan Singh to proceed to the spot for preparing the inquest report.
Mathan Singh prepared inquest report (Ex. Ka-6) and the connected papers (Ex. Ka-7 to Ka-11) which were proved by PW4. The Investigating Officer (PW4) thereafter prepared the site plan denoting the place of occurrence (Ex. Ka-12) and the site plan from where body was recovered (Ex. Ka-15) including memos of recovery of blood stained earth etc: from the place of occurrence (Ex. Ka-13) and from where the body was recovered (Ex. Ka-16) as also with regard to recovery of ''Tiklies' (Wad) of the cartridges found at the place of occurrence. After completing the investigation, the Investigating Officer (PW4) submitted a charge-sheet (Ex. Ka-17).
The injured Nand Lal was medically examined by Dr. G.M. Mohanti (PW-6) on 29.5.1983 at about 3:00 P.M. The injury report is on record as Ext. Ka-19. The post-mortem on the dead body of Kallu was conducted by Dr. H.K. Agarwal (PW-3) on 30th May, 1983.
On the charges framed the accused pleaded not guilty and prayed for trial. To prove the case, the prosecution examined as many as six witnesses. PW-1 Nand Lal and PW-2 Ram Bhajan were examined to establish the factum of the occurrence whereas Dr. H.K. Agarwal (PW-3) deposed with regard to the post-mortem conducted by him and Dr. G.M. Mohanti (PW-6) deposed in respect of injury sustained by Nand Lal. The I.O. (PW-4) and the Constable Rakesh Singh (PW-5) were also examined. PW-5 deposed to the effect that he had taken the dead body for post-mortem.
No evidence was led in defence.
Dr. H.K. Agarwal (PW3) who conducted the post mortem on the body of Kallu on 30th May, 1983 at about 2:45 P.M., found following ante-mortem injuries on the body of the deceased:-
"1. Fire arm wound of entry (seven) each size of 0.5 cm x 0.5 cm. over front and outer side of right upper arm in an area of 12 cm. X 5 cm. Blackening, tattooing and scorching absent. On exploration underneath tissue lacerated, fracture of lower 3rd of right humorous and communicating with wounds of exit.
2. Fire arm wounds of exit (seven) each size of 1 cm. X 1 cm. on inner aspect and back of right upper arm communicating with wound of entry. Margins everted.
3. Fire arm wound of entry (eight in number) each size of .5 cm x 5 cm. on front side and right side chest lower part and upper part of abdomen. No blackening, tattooing seen in an area of 18 cm. X 9 cm. On exploration underneath tissue badly lacerated (R)lung pleura, heart, left lung, pleura, pericardium lacerated. 3 medium size pellets removed- from right lung and one from heart.
4. Two fire arm wound of exit 1 cm. X 1 cm. on inner side of left side chest on anterior axillary fold line 7 cm. below fold line 7 cm. below fold. Two in number 1 cm. apart.
5. Fire arm wound of entry 1 cm. x 1 cm. on inner side of left side chest 5 cm. from nipple at 9 O' clock position.
6. Fire arm wound of entry 0.6 cm. x 0.5 cm. left upper arm upper 3rd. inner side. No blackening. No tattooing. Communicating with wound of exit 1 cm. x 1 cm. on outer upper 3rd. of left upper arm with fracture shaft humorous left.
7. Fire arm wound of exit 1 cm. x 1 cm. on left line and outer above iliac crest left.
8. Contusion 5 cm. x 2 cm. over upper 3rd. outer side left upper arm.
9. Fire arm wound of entry (five) over right scapular region each size of 0.5 cm. x 0.5 cm. No blackening. No tattooing. No scorching. Underneath tissue lacerated. On exploration communicating with wound of exit fracture scapula.
10. Five fire arm wound of exit each size of 1 cm. x 1 cm. on right supra clavical region and inferior clavical region in an area of 10 cm. x 6 cm.
Both lungs and heart were lacerated. 1 /2 litre of blood in chest cavity was present. Stomach was empty. Faecal matter was present in intestines.
On internal examination, membranes were found lacerated. The cause of death was due to shock and haemorrhage as a result of ante-mortem injuries noted in the post mortem report."
The injuries on Nand Lal (PW1) found in a medical examination conducted by Dr. G.M. Mohanti (PW6) on 29.05.1983, at 3 p.m., were as under:-
"1. Gun shot like wound of entry size . 3 cm. x .2 cm. x deep, probing not done on right scapular region, oval in shape. Shot is palpable, blackening present on the wound, tattooing around the wound present.
2. Gun shot like wound of entry size .3 cm. x .2 cm. x deep, probing not done on left side of back about 1 cm. from the mid-line. Shot is not palpable. Wound is oval in shape. There is blackening and tattooing present.
3. Multiple gun shot like wounds of entry of size ranging .3 cm. x .2 cm. x deep. Probing not done to .5 cm. x .3 cm. x deep, probing not done in an area size 42 cm. x 22 cm. on front and back of left thigh extending to leg. Two shots are palpable. Shots oval in shape, blackening and tattooing is present around the wound.
4. Multiple gun shot like wounds of entry in area size 23 cm. x 22 cm. on the front and outer part of right thigh ranging in size from .3 cm. x .4 cm. x deep, probing not done to .5 cm. x .4 cm. x deep probing not done, shots are not palpable. Wounds oval in shape, blackening and tattooing found.
5. Gun shot like wound of entry size .4 cm. x .3 cm. x deep, probing not done on the right iliac crest region. Wound is oval shape. Shot is not palpable, blackening, tattooing present.
X-ray of the injuries of Nand Lal (PW1) was done but X-ray plates were not brought on record and secondary evidence was led in respect of X-ray report (Ex. Ka-18), which is as under:
"X-Ray left side Scapula & left side back of Chest One rounded radio opaque foreign body shadows of metallic density on lower part left side chest near 10th thoracic vertebrae. No bony lesion seen. Lungs fields clear.
X- Ray Right Thigh Multiple rounded radio opaque foreign body of metallic density on right thigh. No bony lesion seen.
X- Ray left Thigh Multiple rounded radio opaque foreign body sahadows of metallic density on left thigh & around knee. No bony lesion seen.
X- Ray Rt Illiac crest.
Three rounded radio opaque foreign body shadows of metallic density on right pelvic bone. No bony lesion seen."
The testimony of the prosecution witnesses is being noticed and discussed in brief as under:-
PW-1 Nand Lal in his deposition on 12.7.1989 stated that Kallu (the deceased) was his uncle; on the day of the incident, on their way back from the jungle, going towards the south, they reached the Barhepura culvert of the canal, PW-1 was in the front, his uncle Kallu (the deceased) was following behind him and trailing Kallu was Ram Bhajan; that it was around sun-set; that on both sides of the culvert there were bushes; that from the north bush Surajpal Singh carrying a single barrel gun and Harnam Singh carrying a rifle emerged, whereas from the southern bushes Nathu Singh and Babu Singh, carrying single barrel guns, and Joginder Singh, carrying a Tamancha, came out and exhorted each other to take revenge for the murder of Mula and Puttu Singh and started firing. (In his testimony, he identified the accused-appellants present in the Court). He deposed that his uncle Kallu on being hit by gun shots immediately fell on the side and slipped into the canal. Whereas PW-1 on being hit by gun shot jumped into the canal to save himself. On the other hand, Ram Bhajan (PW-2) ran towards the other side. It was deposed by him that he waded the canal and taking shelter behind the trees escaped towards the south and while he was escaping the accused chased him and fired at him which hit him but he entered the sugar-cane fields and hid himself and stayed there over night. In the morning, through one Chhadammi, resident of Urjahar, who had come to water his fields, a message was sent, consequently, help arrived and he was taken to the village. He specifically stated that he was hit by two shots. One hit him on the front and other on the back. He deposed that on account of the murder of Mula @ Rakshpal Singh and Puttu Singh, there was enmity. In that murder PW-1 was sentenced for life, whereas his brother, Ram Bhajan, was acquitted.
In the cross-examination, he stood by the statement given by him in the examination-in-chief. As regards the distance from which shots were fired he disclosed that as soon as the accused exhorted each other to take revenge, shots were fired and at that time the accused must have been at a distance of 16-17 feet. He also stated that when he jumped into the canal no shot was fired at him though accused also jumped into the canal. He also stated that when he climbed on to the eastern patri of the canal no gun shot was fired. He stated that he received one gun shot at his back near the mango tree but he could not say as to from where the gun shot was fired. He denied the suggestion that the accused had challenged him from behind the bushes. He denied the suggestion that at the time of the incident, it was dark and that he could not see the assailants and has named them on ground of enmity.
The other eye witness examined by the prosecution was Ram Bhajan (PW-2) who deposed more or less what was deposed by Nand Lal (PW1) his brother with regard to past enmity, the place and time of the occurrence, the assailants and the weapons they carried. He also identified the assailant, that is the accused present in court. He deposed that four shots hit his uncle Kallu and one hit his brother Nand Lal, who jumped into the canal and after wading it came out of the canal on the eastern side whereas PW-2 ran towards north side and jumped into the canal. He further deposed that his brother Nand Lal suffered one more gun shot injury on his back near the tree after he had emerged from the canal. PW2 stated that after escaping from the spot he reached house of Nathu Lal Gangwar and requested him to accompany him for lodging the report, who refused by saying that it had become dark and the ''Thakurs' of the village had surrounded it from all sides and therefore he would go in the morning. PW2 deposed that in the morning when Chhadami went to water his field, his brother Nand Lal (PW1) was spotted who told him to inform at his house. Immediately, on receiving the news, PW2 reached the place and brought PW1 to the village. There they came to know that his uncle Kallu's body was lying tagged to a Khunta in the canal. On reaching the place, it was found that a lot of villagers were already there. Whereafter, the dead body was taken out of the canal and kept on its western Patri and, thereafter, the deponent went for lodging the report. He proved the FIR.
In his cross-examination, PW-2 categorically denied the suggestion that at the time of the incident it was dark. He stood by his statement that on account of darkness and fear nobody was ready to accompany him for lodging the F.I.R immediately therefore it was lodged in the morning. He however admitted that when he reached the village he did not collect villagers by informing them about the incident because he had gone to Nathu Lal. Though he stated that 10-20 people had come but nobody could muster courage to lodge the report. He also stated that at the time of the firing, the accused were standing at a distance of 12 to 13 feet. He also deposed that he had shown the Investigation Officer the place from where the brother of PW-2 had come out of the canal and the place from where the firing took place.
PW-3 Dr. H.K. Agarwal who had conducted the post-mortem of Kallu proved the post mortem report and the ante mortem injuries found on the body of Kallu. He deposed that death was due to loss of blood and shock as a result of the ante mortem firearm injuries. And that the death could have occurred immediately on spot on 28.5.1983, on or about sun-set time though there could be a variance of about six hours in the estimated time of death.
PW-4, S.I. V.P.S. Rawat, who had conducted the investigation, proved the various steps, such as the G.D. entry of the FIR, inquest report, recovery memos, site plans, charge sheet, etc. He stated that on account of election of Block Pramukh, he was busy in maintaining law and order in the morning thus he could not visit the spot immediately and sent Sub Inspector (S.I.) Mathan Singh and fellow constables to do the needful. He proved the inquest report, etc by recognising their signatures. He stated that after discharging election duty, he reached the spot at around 4.30 pm and recorded the statement of informant-Ram Bhajan and inspected the place where the firing took place and prepared site plans, which were proved by him. He also proved the recovery memos of the blood stained earth as well as the Tiklis (wads) of the cartridges. He also deposed about preparation of site plan from where Kallu's body was found and the memo with regard to the recovery of the blood stained earth. He stated that the injured Nand Lal (PW1) was sent for medical examination by S.I. Mathan Singh with constable Kishan Pal. He stated that S.I. Mathan Singh has retired from service. He also stated that after recording of statement of Ram Bhajan, he enquired about the accused and they were found absconding. He stated that he recorded the statement of injured Nand Lal on 23.06.1983 in the Hospital and on 25.06.1983 the investigation was complete.
In the cross-examination, he stood by his deposition and denied the suggestion that case diary was filled at one go. He stated that by the time he had reached the spot, the body had been removed and sent. He stated that up to that time investigation was done by S.I. Mathan Singh. He stated that in the evening he had recorded the statement of Mathan Singh. A suggestion was given that there had been overwriting in the inquest report to add sections 147/ 148 IPC.
He denied the suggestion that he did not meet Nand Lal in the hospital. He stated that prior to 23.06.1983 he had knowledge about Nand Lal being admitted in the hospital but he has no knowledge as to when he was discharged. He, however, added that on 06.06.1983 he made an attempt to record the statement of Nand Lal but then he came to know that he is in Pilibhit Hospital. He stated that on 10.06.1983 he tried to record the statement of Nand Lal in the hospital but came to know that he had left. He stated that he did not record the statement of the doctor who had discharged him.
In his cross examination he stated that there was no mango tree seen from where cartridge wads (tiklis) were recovered. He also stated that sugar cane field was at some distance. He stated that he did not visit the spot where the injured Nand Lal hid himself in the night. He admitted that in the site plan he disclosed only that spot where the injured Nand Lal received the gun shot injury. He also added that Nand Lal had not informed him that he had jumped into the canal and that he had informed Chhadami Lastly, he denied the suggestion that he did not properly investigate the matter and filled up the case diary at one go.
PW-5, Constable Rakesh Singh stated that he was the Constable and had gone with Sub Inspector Mathan Singh along with other Constables to the spot for inquest and sealing of the dead body. He proved the inquest proceedings and also deposed about carrying of the body on the tractor, keeping the same at the Headquarter in a sealed condition and thereafter taking it for post mortem examination.
PW-6 Dr. G.M. Mohanti deposed in respect of the injury sustained by Nand Lal. In his opinion, they were fire arm injuries caused from a distance of around 4 to 5 feet and from different directions i.e. from the front as well as the back. The shots might be 2 to 3 in number. He ruled out the possibility of shots being from a distance of 15 feet or above. He also stated that on coming in contact with water there may be less or no blackening around the wound.
The incriminating circumstances borne out from the prosecution evidence were put to the accused persons before recording their statement under section 313 CrPC. Except for admitting the relationship between the deceased (Kallu) and the informant (PW2) as well as the injured (PW1) as also the enmity between the two sides, that is with regard to the previous murder of Rakshpal Singh and Puttu Singh, relatives of the present accused appellants, in which the victims of the present case were amongst the persons accused, and that some of them were convicted, the rest of the incriminating circumstances were denied by the persons accused including the surviving-appellant. However, existence of injuries sustained by the deceased and Nand Lal (PW1) were not stated to be false or to have sustained in some other manner. Although it was stated by the accused that they have no knowledge about it.
No evidence was led in defence.
On the basis of evidence adduced by the prosecution, after discussing the evidence at length, the court below held the accused guilty under Sections 302/149 (i.e. for murder of Kallu); 307/149 (i.e. for attempt on the life of Nand Lal (PW1) and Ram Bhajan (PW1); and 148 (for rioting with deadly weapon) and punished them accordingly as already noticed above.
We have heard Sri Rakesh Pati Tiwari, learned counsel for the surviving appellant no.5 (Jogendra Singh); Sri Deepak Mishra, learned A.G.A. for the State; and have perused the record.
The learned counsel for the appellants has assailed the judgement and order of the court below by claiming that the prosecution had failed to discharge its burden to prove the guilt beyond the pale of doubt. In support of the contention following points were raised and pressed:
(a) The FIR is highly delayed. The incident occurred in the darkness of night. No person could be identified. By guess work, on the basis of past enmity, accused were named.
(b) The conduct of PW2 (informant) not going to find out his brother (PW1) in the morning, and waiting till he is found by some other person, who has not been examined, to lodge the report, clearly reflects that he was not an eye witness. The prosecution story is a figment of his imagination after learning that some incident had occurred involving his brother and uncle. Hence, he is a completely unreliable witness. Moreover, he has not sustained any injury even though as per prosecution story the accused, multiple in number, fully armed, had surrounded the victims and had fired indiscriminately to finish them off. Absence of any injury on his body rules out his presence on the spot.
(c) The investigation could not collect any evidence to show that PW1 hid himself in the sugar cane field in the night. No site plan was prepared to show as to where the injured (PW1) hid himself in the night to save himself from the assailants.
(d) The injured witness (PW1) is not a reliable witness for the following reasons: (i) his statement under section 161 CrPC was recorded very late, that is after more than 20 days; (ii) that the story set up by him that he had jumped into the canal, after being shot, to save himself and, thereafter, he was chased by the accused and shot at from some distance and was hit near a tree is not substantiated by site plan as also by medical evidence because there appears blackening and tattooing around the wounds which would not be there if shots were fired from some distance, as is the case taken in his testimony, and blackening could not be there if the wounds were in contact with water; (iii) his presence with the deceased at the time of the incident is highly doubtful and is belied by the fact that the injuries sustained by him are from a distance of 4-5 feet whereas those sustained by the deceased were from a far greater distance as the wounds found on the body of the deceased had no blackening or tattooing around them, which throws possibility of the two injured persons receiving injuries at different places and may be in separate incidents.
(e) The prosecution has failed to examine material witnesses such as Nand Lal Gangwar, who was requested by the informant to accompany him to the police station to lodge the report in the evening/ night of the incident; and Chhadami, who found PW1 alive and hiding in the fields next day of the incident in the morning. It has been urged that by non-examination of these two witnesses, the delay in lodging the FIR has not been satisfactorily explained. Hence, an adverse inference ought to have been drawn against the prosecution.
(f) There is no recovery of any of the weapons of assault.
(g) That the incident allegedly took place in the jungle near the village, after sun-set, where there was no source of light, therefore there was no occasion to recognise the assailants and even if few of them could be recognized, possibility of over implication on account of past enmity cannot be ruled out.
(h) The two eye witnesses of the incident are interested witnesses therefore, in absence of corroboration of their testimony by an independent witness, no reliance ought to be placed on their testimony.
Per Contra, the learned A.G.A. submitted that the motive for the crime was admittedly there. The delay in the FIR has been sufficiently explained inasmuch as it is a case where five persons, armed with firearms, indiscriminately pumped multiple shots at the deceased, uncle of the informant, and informant's brother, in front of the eye of the informant, and had given a chase to the escaping victims therefore, considering that the incident was around sun set time, followed by darkness, it is quite natural that the informant, to save his life, waited till dawn to muster courage to lodge the FIR. Under the circumstances, there was no fatal delay in lodging the FIR.
The learned AGA contended that as there is an injured witness to support the prosecution case, whose injuries have not been challenged either as being superficial or self inflicted and there is no suggestion that he suffered injuries in some other incident or at some other place, his testimony alone is sufficient to record conviction, particularly when nothing has come out from his cross examination to cast a doubt on his testimony and his testimony is duly corroborated by medical evidence as well as by recovery of blood stained earth, wads of cartridges etc from the spot. He further contended that even if there are lapses in investigation, the oral testimony of an injured eye witness even though he might be interested cannot be discarded. He also contended that the question of over implication does not arise as there are sufficient number of injuries found and were caused from different directions suggesting participation by multiple accused persons. He thus contended that conviction recorded by trial court be upheld.
We have given thoughtful consideration to the rival submissions and have perused the record carefully.
The first issue that arises for our consideration is whether the delay in lodging the FIR is fatal to the prosecution case.
Ordinarily, the delay in lodging an FIR by a person who is an eye witness of the incident throws possibility of him being not present at the scene of occurrence and of doing guess work to name those with whom he has enmity. But there is no hard and fast rule that in all cases the delay in lodging the FIR would become fatal and throw doubt on the prosecution case, particularly where there is explanation for the delay. Such explanation at times may be found embedded in the facts of the case. In a case of gruesome murder by use of firearms, with multiple assailants who are all geared up to finish off the victims, the survivor of the attack may look towards his own safety and await safer times to lodge the report than to immediately rush and report the incident.
In the instant case, the incident occurred at about sunset. There were five assailants, armed with firearm. They had surrounded the deceased, the injured (PW1) and the informant (PW2) and fired at them indiscriminately thereby causing multiple gun shot injuries to the deceased and gun shot injuries to PW1 in front of the eyes of PW2. The assailants also gave chase to the escaping victims. As a gruesome incident took place at about sunset time, in the fading light, with the assailants being on the look out for the surviving victims, it is quite natural that the informant (PW2) would have been terrified and therefore could not muster courage to report the incident in the night. In the circumstances, if PW2 (the informant) waited for the next day morning to lodge report, the delay would not be fatal to the case. More so, because the prosecution case is not just supported by the informant but also by a person who is injured in the incident.
The issue that now arises for consideration is whether on ground of lapses in the investigation, such as: (a) delay in recording the statement of the injured; (b) not preparing site plan of the place where the injured hid himself in the night following the incident; (c) not effecting any recovery from the spot from where the injured hid himself; and (d) not effecting recovery of the weapons of assault, the prosecution case has been rendered unreliable and unworthy of acceptance. In this regard it be observed that investigation plays a vital role, particularly, when the prosecution case is dependent on circumstantial evidence. In a case which is based on ocular evidence of an injured witness, lapses in the investigation are not fatal to the prosecution evidence if the ocular evidence is cogent and reliable. As, in the instant case, the prosecution case places reliance on the ocular evidence and one of the eye witnesses to the incident is a person injured, lapses on the part of investigation in pursuing the investigation diligently, in our view, would not be fatal to the prosecution.
The next argument made on behalf of the appellant that by non examination of independent witness, namely, Chhadami and Nand Lal Gangwar, an adverse inference ought to be drawn against the truthfulness of the prosecution case is liable to be rejected for the following reasons. Firstly, it is a case where prior to the incident in question there existed strong enmity between the families of the assailants and the victims on account of a previous murder in connection with which the victims of the present case were prosecuted. In such circumstances, it is quite possible that independent fellow villagers may not have that degree of moral conviction to take sides and appear as witness for a person who had been previously a wrongdoer. Secondly, in a case of gruesome murder, by use of firearms, ordinarily, a neutral person does not wish to appear as a witness fearing wrath of the other side. Thirdly, it is not obligatory for the prosecution to multiply its witnesses. Thus, in a case, when the prosecution has an injured witness to support its case, it may choose not to multiply the witnesses.
In the case of Hari Obula Reddy and others v. The State of Andhra Pradesh : (1981) 3 SCC 675, a three-judges bench of the apex court, in paragraph 13 of its judgement, as reported, has held as follows:-
"................ it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. Although in the matter of appreciation of evidence, no hard and fast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of the crime at the material time was probable. If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source."
Similarly, in Jalpat Rai and others v. State of Haryana : 2011 (14) SCC 208, the apex court in paragraph 42 of its judgement, as reported, had observed as follows:-
"42. There cannot be a rule of universal application that if the eye- witnesses to the incident are interested in prosecution case and /or are disposed inimically towards the accused persons, there should be corroboration to their evidence. The evidence of eye-witnesses, irrespective of their interestedness, kinship, standing or enmity with the accused, if found credible and of such a caliber as to be regarded as wholly reliable could be sufficient and enough to bring home the guilt of the accused. But it is reality of life, albeit unfortunate and sad, that human failing tends to exaggerate, over-implicate and distort the true version against the person(s) with whom there is rivalry, hostility and enmity. Cases are not unknown where entire family is roped in due to enmity and simmering feelings although one or only few members of that family may be involved in the crime."
In Raju alias Balachandran and Others v. State of Tamil Nadu, (2012) 12 SCC 701, the Apex Court in paragraph 29 has summed up as under:-
"29. The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh [AIR 1953 SC 364 : 1953 Cri LJ 1465 : 1954 SCR 145] and pithily reiterated in Sarwan Singh [(1976) 4 SCC 369 : 1976 SCC (Cri) 646] in the following words: (Sarwan Singh case [(1976) 4 SCC 369 : 1976 SCC (Cri) 646] , SCC p. 376, para 10) "10. ... The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration."
On the basis of the law noticed above, what is clear is that it is not the requirement of law that to record a conviction there ought to be production of an independent witness to corroborate the testimony of an interested witness. If the testimony of an interested witness is reliable, that is the substratum of the story narrated by the witness is consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, it may be accepted, without seeking corroboration from any other source.
Therefore, now the question that arises for our consideration is whether the testimony of the witnesses, especially PW-1, is wholly reliable. PW1 is an injured witness. His injuries are proved by Dr. G.M. Mohanti (PW6). PW6 in his testimony stated that the injuries sustained by PW1 could be from 2-3 gun shots fired from different directions (front & back). The doctor examined PW1 at about 3 p.m. on 29.05.1983. The duration of the injuries were stated to be about 18 hours old which means that the injuries could have been sustained at about sunset time on the previous day, that is 28.05.1983, which is also the prosecution case. No suggestion has been given to the doctor as regards the injuries being self inflicted or fake.
In so far as the testimony of PW1 is concerned, it is straight forward and clear with no confusion. He has clearly disclosed the participation of all five accused by stating that the accused were hiding with firearms in the bushes and as soon as the victims arrived, they emerged and opened fire from a distance of about 16 - 17 paces. He stated that two gun shots hit him. One on the front and the other on the back. His uncle Kallu (deceased) fell on the spot and slipped into the canal whereas he ran and jumped into the canal. Five gun shot entry wounds were found on the body of the deceased. The testimony of PW1 indicates that he was walking ahead of the deceased, that is the deceased was trailing PW1, whereas, his brother, PW2, was trailing the deceased. This explains the presence of blackening and tattooing in and around the wounds received by PW1, as he was closer to the assailants. It also explains the absence of blackening and tattooing around the wounds received by the deceased, as he was at a greater distance from the assailants. Further, receiving of gunshot injuries by PW1 at the front as well as back lends credence to his story that initially after being hit he tried to escape and was chased and shot at by the assailants. Interestingly, in his cross examination no suggestion has been given to PW1 of he being not with the deceased or having not suffered gun shot injuries in the incident. The only suggestion given to PW1 is that the incident occurred in the darkness of night and the assailants could not be recognised and the accused-appellants were implicated on ground of past enmity. The said suggestion has been vehemently refuted by the witness.
It may be noted that in his statement in chief, PW1 described the time of the incident as sunset. This has been clarified in paragraph 22, during cross examination, as not complete darkness but a time when one may have difficulty in recognising face. Much emphasis was laid by the learned counsel for the appellant on this part of the statement to highlight that because of darkness it was not possible to recognise the assailants. However, when we go through the entire statement of PW1 we find that there is not much cross examination of PW1 with regard to him being not in a position to recognise the assailants either on account of darkness or on account of the assailants not being known to him. The only suggestion that has been put is that in the darkness some other person must have fired but the accused persons have been named because of enmity. The said suggestion has been denied. Interestingly, in the cross examination, no suggestion has been put with regard to the victims having enmity with others. Further, it is a case where parties had been known to each other inasmuch as the victim side had faced prosecution at the instance of the accused side therefore it can safely be assumed that the victims were in a position to recognise the assailants without much difficulty. Otherwise also, as per the testimony, the accused party, before resorting to firing, had exhorted each other to take revenge of the previous murder of their family member, under the circumstances, keeping in mind that PW1 was given a chase and was hit by gun shots, in the front as well as the back, fired from a reasonably close distance, of about 4 to 5 feet, as stated by the doctor, PW1 had ample opportunity to recognise the assailants and name them, which he did and identified them too, in the court.
The next submission of the learned counsel for the appellant that according to the doctor if the wounds had come in contact with water blackening around the wound would not have been there and therefore, as blackening was found around the wounds received by PW1, the story set up by PW1 that he jumped into the water filled canal to save his life is belied, does not appeal to us for two reasons. Firstly, the doctor in his testimony had expressed absence of blackening around the wound as a possibility, if the wound had come in contact with water, and not as a rule. Secondly, whether the wounds suffered by PW1 came in contact with water flowing in the canal can be any body's guess. Because it is quite possible that even if the victim had jumped into the canal and waded through it, the depth of the water in the canal might not have been sufficient to reach the wound area inasmuch as the wounds / gun shot injuries were found at the region of thigh and above. Moreover, the duration of exposure to water may be a factor in lessening or obliterating the blackening around the wound. As it has come in the testimony of PW1 that he had ran across the canal to go across into the sugar fields, PW1's presence in the water might have been for a short period only thereby reducing the possibility of obliteration of blackening.
From the discussion made above, the testimony of PW1, who is an injured witness, is consistent and finds corroboration with medical evidence. Being an injured witness, his presence on the spot is certified by his injuries and as no suggestion has been put to him that he was not with the deceased at the time of the incident, in our view, his testimony is wholly reliable.
Now we may come to the testimony of PW2. His testimony is in line with the testimony of PW1 and corroborates the same. Even if we view the testimony of PW-2 with a prism of suspicion, as his conduct in not coming out in the morning to find out his brother and in not immediately reporting the incident may not inspire confidence, though, it is well settled, each individual reacts differently to a given situation, the testimony of PW1 being wholly reliable, and he being an injured witness, is sufficient, in our view, to record and uphold conviction recorded by the court below on all the charges.
We may observe that no argument was advanced to dispute the place of occurrence which has been established by the prosecution by production of the I.O. who had disclosed about recovery of blood stained earth as well cartridge wads from the scene of occurrence. The number of injuries caused from firearms, used from different directions, corroborate the prosecution testimony as regards participation of five assailants with firearms. Even the time of the occurrence, that is on or about the time of sunset, could not be discredited in the cross-examination of either PW-1 or PW-2. Rather, the duration of the injuries found by the doctor corroborates the prosecution case.
Non examination of any independent witness does not dent the prosecution case because the incident took place on the outskirts of the village, near the jungle. At such a place, absence of an independent witness is quite natural. Moreover, since one of the survivors of the incident is a person who received gunshot injuries and he has consistently supported the prosecution case and his testimony is corroborated by medical evidence, the prosecution case is established beyond the pale of doubt. Further, no evidence was led by the defence. There was no effort made by the defence to discredit the prosecution case, by seeking production of, or by producing, Chhadammi or any other villager, to throw doubt with regard to the place of occurrence or the place of hiding of PW-1 so as to discredit PW1.
We have also examined the matter to rule out the possibility of over implication. In that regard we have noticed that there were in all five gun shot entry wounds on the body of deceased and a minimum of two gun shot wounds on the body of PW1 and they appeared to be from different direction and distance. Further, PW1 deposed specifically with regard to the participation of all the five assailants. No evidence has been led in defence to demonstrate that any one or more of the accused was at some other place at the time of occurrence. Under the circumstances, keeping in mind the testimony of PW1 attributing specific role to all the five appellants, it was duly established that the accused constituted an unlawful assembly whose object was to finish off the victims and with that avowed object they open indiscriminate fire at the deceased (Kallu), PW1 and PW2 and in the process succeeded in killing the deceased (Kallu) and causing injuries to PW1.
As regards the delay on the part of the Investigating Officer in reaching the spot, the same is explained by the Investigating Officer by deposing that he was busy in maintenance of law and order on account of elections on 29.5.1983 and therefore he had sent his subordinates. With regard to delay in recording the statement of PW1, under section 161 CrPC, suffice it to say that it would not be fatal to the prosecution case because it has been duly proved that PW1 had suffered injuries in the incident and was examined by the doctor on the next day itself. Further, no suggestion has been put to PW1 that the injury was sustained by him in some other incident. As regards preparation of site plan, no question has been put to the Investigating Officer to discredit either the site plan prepared by him or the recovery of the wads of cartridges made by him from the spot. In addition to that no question has been put to the Investigating Officer with regard to non-recovery of weapons of assault. Otherwise also, it is well settled, when the prosecution case is established by reliable ocular evidence, it cannot be discarded on the ground of faulty or inefficient investigation.
In view of the detailed discussion made above, we are of the considered view that the prosecution has been successful in establishing the charges against the accused-appellants beyond the pale of doubt and there is nothing on record to provide them the benefit of doubt.
Consequently, the appeal is dismissed. The judgement and order dated 10.9.1991 passed by the Sessions Judge, Pilibhit in Sessions Trial No. 210 of 1983 is affirmed. The bail bonds of the sole surviving appellant (Jogendra Singh), if on bail, is hereby cancelled. He shall be taken into custody and made to serve out the sentence awarded by the court below.
Let a copy of this order be sent to the trial court for compliance.
(Pankaj Bhatia, J) (Manoj Misra, J)
Order Date :- 10.07.2020
SR