Allahabad High Court
Sahab Lal vs State on 15 March, 2018
Bench: Naheed Ara Moonis, Krishna Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?RESERVED. Case :- CRIMINAL APPEAL No. - 310 of 1984 Appellant :- Saheb Lal Respondent :- State Counsel for Appellant :- R.M.Rizvi,Arun Kumar Singh,Shikhar Awasthi,T.M.Rizvi Counsel for Respondent :- D.G.A. Hon'ble Naheed Ara Moonis,J.
Hon'ble Krishna Singh,J.
(Delivered by Hon'ble Naheed Ara Moonis, J.) The instant appeal has been preferred assailing the judgment and order passed by the learned District & Sessions Judge, Kanpur dated 25.1.1984 passed in S.T. No. 219 of 1982 whereby convicting the appellant No. 1 Saheb Lal under Section 302 I.P.C. and appellant nos. 2 and 3 Raghunth and Kanhai under Section 302/34 I.P.C. to undergo sentence of life imprisonment. The trial court had acquitted Mangali by giving benefit of doubt. During the pendency of appeal the appellant no. 3 Kanhai had expired hence the appeal has stood abated against him by order dated 13.11.2017.
We have heard the learned counsel Sri Shekhar Awasthi on behalf of appellant no. 1 Saheb Lal and Sri A.K. Singh, learned counsel appearing on behalf of appellant no. 2 Raghunath and the learned A.G.A. Sri Syed Ali Murtaja on behalf of the State assisted by Sri Satish Pandey brief holder and have taken through the record.
The prosecution case in a short conspectus is that the first informant Anokhey Lal (P.W.1) son of Baldev, resident of village Karhi, police station Naubasta, district Kanpur lodged the first information report on 3.3.1982 at 7.30 P.M. in respect of an incident, which taken place at 5.30 P.M. on the same day against Raghunath, Kanhai (died during the pendency of the appeal), Mangali (acquitted by the trial court) and Saheb Lal that Laxmi Narain of his village was murdered one year ago. Kanhai who belonged to the party of Laxmi Narain had lodged a report against his brother Bhajan Lal and others in which Bhajan Lal was acquitted five months ago. On this count Kanhai and others were bearing enmity against the family members of the complainant, due to this enmity Saheb Lal and others who belong to the same party had fired upon his brother Bhajan Lal in respect of which a report was lodged by Bhajan Lal at police station Juhi, district Kanpur. Since then the accused party were bearing enmity and on account of that enmity on 3.3.1982 at 5.30 P.M. when his brother Bhajan Lal was returning towards his house from the shop of Dr. Yadav after taking medicine and as he arrived in front of the house of Ram Prasad then all the accused persons, namely, Raghunath and Kanhai armed with hockey, Mangali armed with lathi and Saheb Lal son of Mangali armed with pistol came from behind and shouted abruptly that Bhajan Lal should not be spared today. On the exhortation of Raghunath, Kanhai and Mangali, Saheb Lal had fired upon his brother Bhajan Lal who sustained firearm injuries on his back and fell down on the spot and died instantaneously. This incident was witnessed by Rajpal (P.W.3), Ram Sevak (P.W. 2), Raj Kishore and others of his village. The complainant and others had challenged and chased them but could not be apprehended as all the accused persons took to their heels by extending threat. The complainant came to the police station to lodge the first information report leaving behind the dead body amongst the villagers and his family members. The first information report was scribed by Rajpal (P.W.3) who was the eye witness of the occurrence.
In respect of the aforesaid incident the case was registered at 7.30 P.M. at police station Naubasta, district Kanpur against Raghunath, Kanhai, Mangali and Saheb Lal under Section 302 I.P.C. as case Crime No. 46 of 1982. The check report Exhibit Ka. 2 was registered in the general diary No. 32. A true copy of which was exhibited as Exhibit Ka. 3. The special report was also dispatched at 8 P.M. vide exhibit Ka. 4.
After the registration of the first information report against the accused persons P.W. 9 B.L. Gautam, Station Officer, police station Naubasta swung into action who was entrusted with the investigation. The Investigating Officer reached at the place of occurrence and the witnesses were interrogated by him. The dead body was taken into custody to conduct the inquest of the deceased, prepared the inquest memo, which was exhibited as Exhibit Ka. 14. Thereafter he prepared the photo nash and challan nash letter to the Chief Medical Officer and letter to RI, which were proved by him and exhibited as Exhibit Ka. 15 to Ka. 18. After inquest the dead body was sealed and was handed over along with the necessary documents to constable Irfan Ahmad (P.W. 11) and Gur Prasad for post mortem. From the place of occurrence blood stained and plain earth was collected in separate containers of which the memo was prepared in the presence of the witnesses and their statements were also recorded, which was exhibited as Exhibit Ka. 19. He had entrusted S.I. Magan Singh and S.I. R.P. Maithal to arrest the accused persons but they could not be traceable. The Investigating Officer at the pointing out of the complainant and other witnesses prepared the site plan, which was exhibited as Exhibit Ka. 20 and on the same day on 4.3.1982 he also recorded the statements of Ram Sewak (P.W.2) and Rajpal (P.W.3) and had made hectic efforts to arrest the accused persons.
The autopsy of the deceased was conducted on 4.3.1982 at 3.25 P.M. by Dr. Gulab Chand (P.W. 5). The dead body of the deceased was an average built. Rigor mortis was present on both extremities and post mortem staining on the back of neck, whole of back, buttocks were found present. Blood was coming from the mouth. He found an entry wound in an area of 7 cm x 3 cm on the back, 18 cm. below the occprotuberance consisting of six separate entry wounds each consisting of 1/2 cm x 1/2 cm cavity deep. No blackening, scorching or tattooing was present. In the external examination pleura was lacerated and ruptured. Right lung was lacerated and congested and two pallets found in it. Heart was also ruptured and two pallets were found in the heart. One and half litres of blood was present in the chest cavity. Four oz. semi digested food was found in stomach. Small intestine was full with gas and large intestine contained faecal matter and gas. In the opinion of the Doctor death was caused due to shock and haemorrhage as a result of the injury.
The Investigating Officer arrested the accused Saheb Lal on 6.3.1982 near the gate of Hydel Colony and after his arrest on his disclosure the pistol was recovered from the field of Badri, which was hidden under the husks lying adjoining to the black berry tree and it was sealed in the presence of the witnesses Ram Sewak and Ram Shanker (P.W.6). The memo in respect of recovery of pistol was prepared in the presence of Ram Shanker (P.W. 6) who had stated about the arrest of the appellant Saheb Lal and the information with regard to the recovery of firearm weapon. The pistol which was recovered at the instance of the appellant along with cartridges was found inside the barrel was sealed and a site plan was prepared Exhibit Ka. 24 and sent through P.W. 12 Constable Jagdeo Singh for examination. The ballistic expert Dr. O.P.N. Tripathi (P.W. 8) had received the sealed bundle containing one pistol Exhibit 1 and cartridges Exhibit 2. The report was proved by him exhibited as Exhibit-13.
On completion of investigation the charge sheet was submitted which was proved by the Investigating Officer as Exhibit K. 26. The case was committed to the court of Sessions. The learned Sessions Judge proceeded to frame charges against the appellants Saheb Lal, Mangali, Kanhai and Raghunath under Section 302 read with 34 I.P.C. A separate charge for the offence punishable under Section 302 I.P.C. was framed against Saheb Lal. All the accused/appellants refrained from the charges and claimed to be tried.
In order to substantiate the case against the accused/persons the prosecution has examined Anokhey Lal the first informant P.W. 1, Ram Sewak P.W. 2 and Rajpal P.W. 3 as the eye witnesses. Rajpal was also the scribe of the first information report and P. W. 6 Ram Shanker the witness of the recovery of pistol as witnesses of fact. Shambhu Dayal Shukla P.W. 4 proved the first information report. Dr. Gulab Chand P. W. 5 conducted the autopsy of the deceased. Dr. B.N. Singh P. W. 7 at whose shop the deceased had gone to take medicine, S.O. B.L. Gautam P.W. 8 the Investigating Officer who had conducted the investigation and submitted the charge sheet. Constable Harpal Singh P.W. 10, Constable Irfan Ahmad P.W. 11 and Jagdev P.W. 12 who had filed their affidavits as formal witnesses. After the examination of the witnesses the statement of the accused persons were recorded under Section 313 Cr.P.C. who alleged that they have been falsely implicated due to enmity.
All the accused persons have denied the entire prosecution story. They did not adduce any evidence in defence.
The learned trial court after considering the evidence on record and hearing the arguments of the respective parties has found that the prosecution has fully proved its case beyond all reasonable doubt against Saheb Lal, Raghunath and Kanhai and found guilty to Saheb Lal, Raghunath and Kanhai sentencing them as mentioned in paragraph no.1 of the judgment while acquitted Mangali the father of Saheb Lal by giving him benefit of doubt.
As has been stated in the opening paragraph of the judgment that Mangali was acquitted by the trial court hence Saheb Lal, Kanhai and Raghunath preferred the instant appeal against their conviction. During the pendency of appeal Kanhai had expired, the appeal on his behalf has stood abated by order dated 13.11.2017.
Now we are proceeding to consider the case of Saheb Lal and Raghunath the accused/appellant nos. 1 and 2 respectively. On behalf of accused/appellant Saheb Lal, learned counsel Sri Shikhar Awasthi has argued the case while Sri A.K. Singh, learned counsel has argued the case on behalf of Raghunath.
The learned counsel appearing on behalf of accused/appellant Raghunath has submitted that there was no motive for the appellant no. 2 Raghunath to participate in the commission of alleged offence for killing Bhajan Lal who is the brother of the complainant. There is inconsistency in the statement of P. W. 1 Anokhey Lal who is the brother of the deceased, as much as his presence is doubtful at the time of the alleged incident. If he was an eye witness of the incident he could have certainly chased the assailants who came by exhorting to eliminate his brother Bhajan Lal. The witnesses as mentioned in the first information are absolutely unreliable and their presence at the scene of the incident as silent spectator is highly doubtful. In fact the deceased was done to death by some unknown miscreants and after due deliberation and consultation a story was cooked up against the appellant Raghunath and others on account of enmity. The appellants Raghunath and Kanhai (since deceased) who were friends of Saheb Lal have been falsely roped in.
The first information report of this case was registered at 7.30 P.M. whereas the alleged incident had taken place at 5.30 P.M. The distance from the place of incident to the police station was merely three kilometres, hence it can be said that the first information report has been lodged after great deliberation. The deceased was himself a man of criminal nature who was accused in several cases including proceeding under Sections 107/116 Cr.P.C. in which Rajpal, Ram Sewak and Bhajan Lal the deceased were on one side while the accused Mangali the father of surviving appellant Sahab Lal etc. were on the other. The deceased was also involved in the murder of Laxmi Narain in which the accused Mangali father of Saheb Lal was a prosecution witness. It is also relevant that Chhotey Lal younger brother of the complainant Anokhey Lal was an accused in the murder of Maiku Lal who was the father of accused Kanhai of the present case whose appeal has been abated during the pendency of the appeal against his conviction. In his statement under Section 313 Cr.P.C. the appellant Raghunath has specifically submitted the false implication due to enmity. Even otherwise the material question on which the prosecution had allegedly relied upon were not put to the appellant under Section 313 Cr.P.C. thereby causing great prejudice.
It is further submitted that even if the prosecution case is taken to be true no overt act has been assigned to the appellant Raghunath and it was stated that he was carrying hockey stick while Saheb Lal who was carrying country made pistol had fired upon the victim Bhajan Lal at the instigation of the other accused persons including Raghunath but no role of assault with hockey has been attributed to him. The doctor did not find any blunt injury in the post mortem examination. It is alleged that all the accused persons took to their heels extending threat that if any one will come forward they will also meet the same fate. The appellant Raghunath has been implicated as he happened to be the close friend of Saheb Lal.
The P. W. 3 Rajpal who is said to be an eye witness of the incident and also scribe of the first information report but it appears from the contents of the first information report that the first information report was written at the police station as complainant has stated that after the accused persons left the place, he had left the villagers near the dead body and came to report, thus the report has been lodged at the police station by the P. W. 3 Rajpal with consultation of police.
The complainant has specifically stated that his brother who had gone to take medicine from the Dr. B.N. Singh P.W. 7 and at that time the complainant has made improvement in his statement to ensure his presence at the spot by stating that he had gone to the house of Raj Kishore who is his tenant to collect the rent. This fact is not mentioned in the first information report and has been made an improvement deliberately. Ram Kishore the tenant has not been examined to corroborate the testimony of the complainant. There is no evidence to show that the appellant Raghunath shared common intention with Saheb Lal to kill the deceased.
In the first information report the role of exhortation has been assigned to all the accused persons firstly and thereafter Saheb Lal is said to have fired at the deceased at the instigation. Only Anokhey Lal has reiterated about the role of exhortation to all the accused persons while none of the eye witnesses who have been examined as P.W. 2 Ram Sewak, P.W. 3 Rajpal have ever stated about exhortation extended by the appellant Raghunath and others thus the presence and participation of the appellant Raghunath becomes doubtful. Mere exhortation cannot be made an inference of sharing common intention. As per prosecution story Kanhai and Mangali the father of appellant Saheb Lal, who were also assigned the role of exhortation along with the appellant Raghunath but Mangali has been acquitted by the trial court. The prosecution has absolutely failed to prove any prior motive or pre plan that the appellant Raghunath had shared common intention with other to commit the offence. There is great inconsistency in the statement of the prosecution witnesses, which makes their presence highly doubtful at the time of incident and only on account of previous the enmity the appellant. Raghunath has been falsely implicated.
The learned counsel for the appellant Raghunath to prop up his submission has placed reliance upon the decision of this court in the case of Pappu @ Avanish Vs. State of U.P., 2013 Vol. 80 ACC 797 and has submitted that in the said case two persons who had preferred the appeal against their conviction under Section 302 read with Section 34 I.P.C. their conviction was set aside while one person who had committed a double murder by firing upon two persons was convicted and his conviction and sentence was up held by the Division Bench of this court, hence the aforesaid case squarely applies. In the present case the appellant Raghunath has been convicted erroneously with the aid of Section 34 of Section 302 I.P.C. for life imprisonment as the exhortation by itself is not enough to prove common intention on the part of Raghunath, hence his conviction recorded by the trial court deserves to be set aside.
So far as the complicity of the accused/appellant Saheb Lal is concerned, the learned counsel appearing on his behalf Sri Shikhar Awasthi has strenuously argued that the appellant has been falsely implicated solely on presumption that he belongs to the group of Kanhai, which is evidently clear from the first information report itself. The prosecution has absolutely set up a false case against him that prior to the present incident three months ago the appellant Saheb Lal and others had fired upon the complainant's brother Bhajan Lal in respect of which a report was lodged by the victim Bhajan Lal at the police station Juhi but there is nothing on record about lodging of the first information report by the deceased against Saheb Lal and others. Hence it is absolutely false that on account of this reason the appellant Saheb Lal was nurturing grudge against the deceased and was done to death on 3.3.1982 at 5.30 P.M. while the deceased was returning from the shop of Dr. Yadav P.W. 7. at the instigation of Kanhai, Mangali and Raghunath who had exhorted that the deceased should not be spared and at this the appellant is said to have fired upon him, which hit him from behind over his back who fell down and died on the spot. It is further contended that the presence of the witnesses as alleged in the first information report is highly doubtful as according to the site plan the manner in which the incident had taken place there was no occasion for the eye witness Ram Sewak and Rajpal to witness the incident. Even the presence of the complainant Anokhey Lal along with Raj Kishore who is said to be the tenant of the complainant is doubtful as the complainant had not noticed that four persons were coming from behind and reprimanded the deceased who walked towards north and thereafter the appellant had fired upon him at the instigation of the other accused persons. If the complainant and Raj Kishore were present at the place of incident as shown in the site plan they could have raised alarm to apprehend them. Raj Kishore the alleged tenant of the complainant who could be the material witness was not examined to corroborate the testimony of the complainant P.W. 1. So far as the recovery of the firearm weapon at the instance of the appellant Saheb Lal is concerned no person from the alleged place of recovery was examined which has improbablized the presence of Ram Shanker who has been made a witness of recovery of pistol and was examined as P.W. 6. He can be termed as chance witness.
The most astonishing part of the recovery of weapon was that when the post mortem was conducted and pellets were recovered from the body of the deceased and was sealed, it was not sent by the Investigating Officer along with sealed pistol to tally with the weapon. The ballistic expert report is only in respect of the recovered pistol and the sealed pellets, which were only sent for ballistic examination thus it cannot be said that the appellant had used the same pistol, which was allegedly recovered by the Investigating Officer.
There is various inconsistency in the statement of the prosecution witnesses. The P.W. 3 Rajpal scribe of the first information report and P.W. 2 Ram Sewak who were said to be the eye witnesses of the occurrence have not stated anything about the role of exhortation played by other accused persons and only the complainant has stated about that at the instigation of the other accused persons the appellant Saheb Lal had made a fire, which creates doubt about the presence of other so called eye witnesses. The scribe of the first information report has specifically stated that he had not seen Anokhey Lal and Raj Kishore prior to the incident. Similar statement was also given by P. W. 2 and had stated that he had only seen the complainant and Raj Kishore after the incident near the dead body. The prosecution has also failed to corroborate the factum that first information report was registered a few months back by the deceased in respect of firing upon him against the appellant Saheb Lal and hence the motive as shown in the first information report becomes falsified. No other independent witness of the locality was examined.
The inquest of the deceased was conducted in the night on the date of the occurrence and the dead body was also handed over to the police personnel but it was received by the Doctor on the next day and the post mortem was conducted at 3.25 P.M. on 4.3.1983 of which there is no plausible explanation for not sending the dead body to the mortuary in the same night.
It is also submitted by the learned counsel for the appellant that according to the first information report version the shot was fired by the appellant Saheb Lal from behind on the back of the deceased whereas in the post mortem report no blackening and tattooing was found on the person of the deceased by the Doctor Gulab Chand P.W.5, hence it cannot be said that the incident was witnessed by the complainant and other eye witnesses. The prosecution has set up those witnesses who are partisan and interested witnesses. The learned trial court has erred in treating their statement trustworthy and reliable in convicting the appellant Saheb Lal. Hence the findings recorded by the trial court are unsustainable to sustain the conviction of Saheb Lal.
The learned A.G.A. has refuted the submissions advanced on behalf of the surviving appellant Saheb Lal and Raghunath. It is submitted by the learned A.G.A. that the first information report, which is the very foundation of the prosecution of the appellants and other accused persons itself mentions about the motive to eliminate Bhajan Lal who is the brother of the complainant. In the first information report it is specifically mentioned that prior to the incident one year ago the murder took place of Laxmi Narain who belongs to the same village. Laxmi Narain is the brother of Raghunath as such Raghunath has clear motive to take revenge from Bhajan Lal as he (Bhajan Lal) was acquitted in the murder case of his brother Laxmi Narain.
It is also pertinent to mention that Anokhey Lal brother of Chhotey Lal had committed murder of accused Kanhai's father Maiku Lal. Kanhai had lodged the present first information report against the brother of the complainant Bhajan Lal who was acquitted five months ago and this was the reason that the family members of Kanhai and Raghunath were bearing grudge against the complainant and his family members. On account of this enmity three months ago Saheb Lal who belongs to the party of Kanhai had fired upon the complainant's brother Bhajan Lal of which a report was lodged by Bhajan Lal. On the fateful day when Bhajan Lal was returning home after taking medicine from the shop of Dr. Yadav he was eliminated by firing shot upon him by the accused/appellant Saheb Lal at the instigation of Raghunath and Mangali who were armed with hockey while Mangali, who is the father of Saheb Lal was having lathi. It is quite evident from the record that Laxmi Narain whose murder is said to have taken place one year ago was the brother of accused/appellant Raghunath who has played the role of exhortation along with other accused persons in the present case. Appellant Kanhai had expired during the pendency of the appeal, the appeal has abated against him but there was direct motive of Raghunath who was bearing grudge against Bhajan Lal as the latter was acquitted in the murder case of Laxmi Narain and the complainant's younger brother Chote Lal was involved in murder of Kanhai's father Maiku Lal. The learned trial court has rightly arrived at the conclusion that Raghunath and Kanhai had shared common intention with other accused persons hence Raghunath and Kanhai (since deceased) have been rightly convicted under Section 302/34 I.P.C. for life imprisonment.
It is further contended that the motive has fully been established by examining the prosecution witnesses and even otherwise it is established law that when there is a direct evidence it is immaterial to prove motive. The testimony of the complainant cannot be doubted. Various contradictions have been pointed out in the statements of P.W. 2 and P.W. 3 with the statements of the complainant Anokhey Lal as only Anokhyey Lal is said to have stated about the role of exhortation played by Raghunath, Kanhai and Mangali. Ram Sewak and Rajpal have not mentioned about the role of exhortation it is because that they were not standing at the place of occurrence while Anokhey Lal and his tenant Raj Kishore were present near the house of Ram Prasad and therefore the complainant had opportunity to hear the accused persons that they had exhorted at the deceased and asked the co-accused Saheb Lal to fire at him. The eye witness account with respect to fire upon the deceased is consistently stated by the prosecution witnesses and as such the minor variations in the statement of the prosecution witnesses will not go to the root of the case to demolish the entire prosecution case.
It is also submitted by the learned A.G.A. that the medical evidence fully corroborates the prosecution case as according to the post mortem report the deceased had sustained firearm injury at his back as the firing was done while in a moving position and at a distance of few paces the fire was shot by Saheb Lal hence no blackening and tattooing was found. The place of incident has also been fully proved as the Investigating Officer had collected blood from the spot. The report of the chemical examiner shows that the blood was found on the clothes. Merely because there is no blunt weapon injury the participation of Raghunath the surviving appellant cannot be disbelieved. Specific role of firing has been attributed to Saheb Lal. The appellant Saheb Lal was arrested on 6.3.1982 and at his instance the firearm weapon was recovered from the field of Badri in the presence of P.W. 6 who has also been examined as a witness of recovery of firearm weapon. There is no reason that he (P.W. 6) would be bearing any enmity with the accused persons to depose against them. The presence of the witnesses at the place of occurrence cannot be doubted. The prosecution witnesses were subjected to lengthy cross examination but nothing could be elicited from them so as to discard the creditworthiness of their statements. The occular evidence is fully corroborated in material particular by the medical evidence.
It is further contended that the testimony of the witnesses, which is fully reliable cannot be thrown by branding them as inimical or interested witnesses there is no hard and fast rule to reject the testimony of the witnesses on the ground that they were highly interested witnesses. The Hon'ble Apex Court in the case of Masalti Devi Vs. State of U.P. reported in A.I.R. 1965 SC page 202 has observed that it would not be unreasonable to contend that evidence given by the witnesses should be discarded only on the ground that it is the evidence of partisan or interested witnesses. Judicial approach has to be cautious in dealing with such evidence but the plea that such evidence should be rejected in toto because it is partisan cannot be accepted as correct.
Lastly, it has been contended by the learned A.G.A. that the conduct of the accused persons is very relevant especially the accused/appellant Raghunath who was arrested on 25.3.1982 after initiating proceeding under Sections 82/83 Cr.P.C. while Saheb Lal was arrested by the police on 6.3.1982 after hectic search and at his instance the pistol was also recovered in the presence of P.W. 6 Ram Shanker. The incident is of 3.3.1982 and the accused/appellant Sahab Lal was arrested on 6.3.1982 and the accused Raghunath had surrendered/arrested on 25.3.1982, which clearly establishes that they absconded after committing the crime. There is no reason to cast any doubt in the appreciation of evidence by the learned trial court. The learned Sessions Judge has rightly relied upon the material placed on record by the prosecution and recorded conviction.
We have considered the submissions advanced by the learned counsel for both the appellants in extenso who have also taken us through the record particularly through the statement of the witnesses, post mortem of the deceased and the site plan. It has been urged that there are various infirmities in the prosecuton version and as there are number of contradictions in the statements of P.W. 1 Anokhey Lal P.W. 2 Ram Sewak P.W. 3 Rajpal and P.W. 4 Ram Sanehi hence the learned Sessions Judge has erred in recording the conviction of the appellants.
So far as the motive part is concerned it has been divulged in the first information report itself by the complainant that one Laxmi Narain was murdered and the first information report was lodged against the complainant's brother Bhajan Lal and others by Kanhai but the case against Bhajan Lal was ended in acquittal. Chhotey Lal who is the brother of the complainant Anokhey Lal was accused in the murder of Maiku Lal who is the father of accused Kanhai in which Chhotey Lal was convicted. It is also evident from the record that Raghunath is the brother of Laxmi Narain who was murdered by Bhajan Lal and as Bhajan Lal was acquitted then there is a direct motive to the appellant Raghunath to bore enmity with him besides this in the cross examination of Anokhey Lal P. W. 1 proceeding under Sections 107/116 Cr.C.P. was initiated in which 26 persons were on each side. Several other cases were pending against the deceased Bhajan Lal. Mangali the father of appellant Saheb Lal was a witness in the murder case of Laxmi Narain, thus there was old enmity between the parties prior to the present incident. It can be a motive for false implication but the direct evidence available on record leaves no room for doubt that the incident had not taken place in the manner as stated by the complainant in the first information report, which is fully corroborated by the ocular testimony of other witnesses. There is no reason to falsely implicate the accused/appellant and nothing was elicited from the cross examination of the prosecution witnesses to discredit their testimony.
From the evidence on record it is evidently clear that there was sufficient motive with the accused/appellant to commit the murder of the deceased. There was long nursed feeling of hatred between the complainant's family and accused persons hence the outburst of anger resulting in the murder of the deceased Bhajan Lal. It is settled legal position that even if the absence of motive as alleged is accepted that is of no consequence and pales into insignificance when direct evidence establishes the offence. In the present case the motive of the occurrence is proved, hence the ocular testimony of the witnesses cannot be discarded.
The site plan Exhibit Ka. 20, which was prepared by the Investigating Officer P. W. 9 fully corroborates the prosecution story that the deceased was returning from the shop of Dr. B. N. Singh after taking medicine, as he was suffering from eczema. Dr. B. N. Singh was examined as P. W. 7 who had specifically stated that at about 5.15 P.M. on 3.3.1982 when he was at his clinic, Bhajan Lal came there for an injection as he was suffering from eczema. He had given him injection and thereafter Bhajan Lal left his clinic. After about 15 minutes he heard noise of some cracker's shot then he came out of the clinic and had witnessed that number of persons were collected near the house of Ram Prasad and came to know that some one had shot down Bhajan Lal. This witness has no enmity with any of the accused to set up a false story that the deceased had visited his clinic at about 5.15 P.M. prior to the incident. Rather it clinchingly shows that the deceased was alive between 5.15 to 5.30 P.M. when he was shot dead by firing made by Saheb Lal, which was witnessed by the complainant and other prosecution witnesses.
It is also proved from the facts on record that the first information report was lodged with great promptitude and thereafter the police swung into action immediately arrived at the place of incident and taken into custody the dead body. The Investigating Officer collected the blood stained and plain earth from the spot, which was sent for examination by forensic sciences laboratory and the chemical examiner report shows that human blood was found. The incident had taken place at about 5.30 P.M. on 3.3.1982. There was sufficient light to identify the assailants. The complainant who was standing along with Raj Kishore and was talking about payment of rent had seen all the accused persons who were also following the deceased and after going 2/3 paces they exhorted and shouted that Bhajan Lal should not be spared and thereafter Saheb Lal had fired upon him.
The alternative argument of the learned counsel appearing for accused/appellant Raghunath was that he is said to have played the role of exhortation. No other role has been assigned to him, hence he deserves to be acquitted. The participation of the accused persons only to the extent of exhortation would not relieve them on the ground that they were innocent and they have not played any overt act. They have been charged for the commission of offence under Section 34 I.P.C. as they had shared common intention. We have already stated that Raghunath who is the brother of deceased Laxmi Narain was bearing axe to grind as the deceased Bhajan Lal was acquitted by the trial court in the case of murder of his brother Laxmi Narain and according to the present case the role of exhortation has been assigned to the appellant Raghunath also. It is fully established from the statements of the prosecution witnesses that all the accused persons were friendly and known to each other. The testimony of P. W. 2 and 3 cannot be discarded that they have not stated about exhortation extended by Raghunath and two others. Their evidence cannot be viewed with suspicion that they were chance witnesses.
The establishment of overt act is not a requirement of law to allow Section 34 I.P.C. to operate when the criminal act is done by several persons in furtherance of common intention of all. What is required is to establish by the prosecution that all the concerned persons had shared common intention. The ingredient of Section 34 I.P.C. is that the accused had acted in furtherance of their common intention even doing of separate similar or diverse acts by several persons so long as they are done in furtherance of common intention rendered each of such person liable for the result, as if he has done himself. It may be an overt act or covert act or merely an omission constituting an illegal omission. The common intention or the intention of individual can be proved either by the direct evidence or by the inference from the acts or the attending circumstances of the case coupled with conduct of the accused persons.
In the case of Girja Shanker Vs. State of U.P. reported in 2004 (48) ACC page 758 it was observed by the Hon'ble Apex Court that Section 34 I.P.C. has been enacted to elucidate the principle of joint liability of criminal act. "Section 34 I.P.C. has been enacted on the principle of joint liability in the doing of criminal act". The section is only rule of evidence and does not create a substantive evidence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. (emphasis added).
In our considered opinion common intention means that each member of the group is aware of the act to be committed. In the present case in a preplanned manner the accused Saheb Lal was having deadly weapon who caused fatal injury by firing while others were armed with hockey sticks and lathi who had acted together by exhortation to eliminate the deceased victim clearly demonstrate their prior meeting of mind to accomplish their motive.
The conduct of the accused persons specially the accused/appellant Raghunath who after the commission of offence had absconded for a long period and even proceeding under Sections 82/83 Cr.P.C. was initiated. The appellant Raghunath was not found nor any information about his whereabouts who surrendered before the court and after long period. This piece of conduct can be held to be incriminatory, which has no reasonable explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can only be considered as material. After the incident abscondance of the accused/appellant Raghunath for a long period is a very relevant conduct under Section 8 of the Evidence Act.
We have also considered the submissions of the learned counsel appearing on behalf of accused/appellant Saheb Lal that the prosecution has failed to prove its case beyond reasonable doubt has no legs to stand. No doubt the enimity is the double edged weapon but in the instant case the appellant Saheb Lal who was bearing enmity as a case was registered against him by Bhajan Lal in respect of an attempt to commit his murder and the first information report was also exsiting as such the present incident is the offshoot of the first information report lodged against the appellant Saheb Lal. It is also quiet evident that Saheb Lal had played an active role of firing upon the deceased in the instant case at the exhortation of other accused persons including the surviving appellant Raghunath. The incident had taken place on 3.3.1982 at 5.30 P.M. while the appellant was taken into custody on 6.3.1982 by the Investigating Officer in front of the gate of hydle colony and on his information the weapon of assault i.e. pistol was discovered from the field of Badri, which was hidden in the husks under the blackberry tree. The recovery was made in the presence of one Ram Shanker who was examined as P. W. 6. The Investigating Officer had also prepared the site plan from where the weapon of assault i.e. the pistol was recovered at the instance of the appellant Saheb Lal. The statement of the appellant Saheb Lal under Section 313 Cr.P.C. was recorded. Question No. 12 and 13 were specific to the effect of recovery of pistol at his instance to which he has denied. So the circumstances relating to recovery of pistol at the instance of the appellant has been put, hence no adverse inference or objection can be raised that the trial is vitiated unless prejudice is caused to the accused.
So far as the contention that the pellets, which were recovered while conducting post mortem of the deceased were not sent for confirming that the same pistol was used in the commission of offence. In our opinion the pistol Exhibit 11 which was recovered at the instance of the appellant was sealed at the spot and the same was sent for examination. The ballistic report Exhibit Ka. 13 shows that the cartridges, which were recovered used by the same pistol.
The role of the appellant Saheb Lal was specified for firing upon the deceased, the appellant cannot be said to have been falsely implicated merely on the ground that his father Mangali was a prosecution witness in the case of murder of Laxmi Narain in which the deceased Bhajan Lal had been acquitted. The trial court has acquitted the accused Mangali on the ground of his age but his involvement in the offence has not been disbelieved while convicting the other accused persons.
From the statement of the prosecution witnesses, which has already been discussed that the first information report was promptly lodged indicating the motive for the commission of ghastly offence in a broad day light by the appellant Saheb Lal along with other accused persons. The first information report has been lodged promptly which eliminates the chances of embellishment. There is no tangible reason that the complainant would leave the real culprit and falsely implicate the appellants. In this regard the statement of the complainant who is an eye witness of the incident with regard to the death of his own brother is consistent who was cross examined at length but nothing could be elicited to doubt his testimony. He cannot be termed as interested witness being relative of the deceased. Being relative it would be endeavour to see the real culprits are punished.
On the issue of appreciation of evidence of interested witnesses, Dalip Singh Vs. State of Punjab is the leading case reported in AIR 1953 SC 264. In the aforesaid case it was held as follows;
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
Similarly, in Piara Singh and Ors. Vs. State of Punjab, AIR 1977 SC 2274 = (1977) 4 SCC 452, this Court held:
"It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence."
From the catena of pronouncement of the Apex Court, which leads to the inescapable conclusion that the evidence of closely witness is required to be carefully scrutinized before any conclusion is made to rest upon it, 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 and is cogent, credible and trustworthy, it can certainly be relied upon.
The manner in which the accused/appellant came and Saheb Lal fired upon the victim is fully corroborated by the post mortem of the deceased who had sustained only one firearm injury on his back, which proved to be fatal as the victim died instantaneously. It was the impact of single shot causing an entry would in an area of 7 cm x 3 cm on the back consisting of six separate entry would of 1/2 cm. x 1/2 cm. cavity deep causing laceration and rupture of vital organs. The Doctor P.W. 5 who had conducted post mortem of the deceased recovered two pellets each from both the lungs and two pellets from heart. In all six pellets were recovered from the dead body and sealed there is no conflict in direct and medical evidence rather ocular testimony is corroborated by the medical evidence. There is no material discrepancy in the medical and oral evidence. It has consistently been held by the Apex Court in catena of decisions that the evidenciary value of medical evidence is only corroborative and not conclusive and hence if there is a conflict between the oral evidence and medical evidence the former is to be preferred unless the medical evidence completely rules out the oral evidence. In the present case we do not find any major contradiction either in the evidence of the witnesses or any conflict in medical or oral evidence, which would lead the balance in favour of the surviving appellant.
The law on the issue of defective investigation is well settled that the defect in the investigation by itself cannot be a ground to reverse the finding of conviction. The site plan as prepared by the Investigating Officer he found the dead body in front of the house of Ram Prasad at the place 'A'. The deceased was coming from the clinic of Dr. B.N. Singh, P.W. 7 and when he was going towards north from the clinic a fire was shot by the appellant Saheb Lal from behind and at that time Raghunath, the surviving appellant, Kanhai who died during the pendency of appeal were armed with hockey and Mangali father of appellant Saheb Lal was armed with lathi who had shouted that Bhajan Lal should not be spared and whereupon the appellant Saheb Lal had fired at him. From the place of occurrence the Investigating Officer had found blood around the body of the deceased, which firmly establishes the place of occurrence. The blood stained clothes, which were sent to be examined by serelogist also shows human blood found on the apparels, which the deceased was wearing at the time of the incident. The statement of the prosecution witnesses have also proved that the dead body was found in front of the house of Ram Prasad and all the accused persons after the commission of offence escaped extending threat to face dire consequences. Thus there is no reason to disbelieve the statement of prosecution witnesses with regard to the manner of participation of the accused persons in the ghastly murder of the complainant's brother who was unarmed. We find that the finding of guilt against the present appellants is inescapable.
The learned counsel has also challenged the prosecution case on the ground of no examining the independent witnesses. We are not impressed by this submission in the light of the observations made by this Court in Darya Singh Vs. State of Punjab AIR 1965 SC 328 = 1964(7) SCR 397, wherein it was observed:
"It is well-known that in villages where murders are committed as a result of factions existing in the village or in consequence of family feuds, independent villagers arc generally reluctant to give evidence because they are afraid that giving evidence might invite the wrath of the assailants and might expose them to very serious risks. It is quite true that it is the duty of a citizen to assist the prosecution by giving evidence and helping the administration of criminal law to bring the offender to book, but it would be wholly unrealistic to suggest that if the prosecution is not able to bring independent witnesses to the Court because they are afraid to give evidence, that itself should be treated as an infirmity in the prosecution case so as to justify the defence contention that the evidence actually adduced should be disbelieved on that ground alone without examining its merits."
Failure to examine all the witnesses who may have witnessed the occurrence will also not result in out right rejection of the prosecution case if the witnesses examined by the prosecution are found to be truthful and reliable.
The statement of the accused/appellants recorded under Section 313 Cr.P.C. is a case of denial and false implication due to previous enmity but nothing brought forth in defence, despite their attention was drawn towards specific points in the charge and in the evidence on which the prosecution claims that the case is made out.
The learned counsels for both the surviving appellants have made fervent effort to persuade the court but failed to point out any infirmity in the judgment of the trial court in convicting the accused/appellants Saheb Lal under Section 302 I.P.C. and Raghunath under Section 302/34 I.P.C. to undergo sentence of life imprisonment. Since they had motive hence it was obvious that they had killed the complainant's brother Bhajan Lal by concert. After bestowing our anxious consideration we cannot persuade ourselves to take a different view. The impugned judgment cannot be faulted with. Accordingly we dismiss the appeal confirming the conviction and sentence as recorded by the trial court.
Initially the appellants were released on bail. When the appeal came up for hearing on account of non appearance of their counsel non bailable warrant was issued against both the appellants Saheb Lal and Raghunath who are presently in jail. They shall be kept there to serve out the sentence awarded by the trial court and affirmed by us.
Before parting with this judgment, we must point out that the trial court has committed patent illegality in passing the sentence since no fine has been imposed whereas it is mandatory to impose fine in addition to the substantive sentence of imprisonment for the offence punishable under Section 302 I.P.C. as the language used in Section 302 I.P.C. is "and shall also be liable to fine" Where the expression used by the legislature in section is "and shall also be liable to fine", the court is under obligation to impose fine also in addition to the substantive sentence of imprisonment. The imposition of both imprisonment and fine is imperative in such cases as held by Hon'ble Apex Court in the case of Zunarrao Bhikaji Nagarkar Vs. Union of India and others, AIR 1999 SC 2881 in which reference has been made to the case of Rajasthan Pharmaceutical Laboratory Bangalore Vs. State of Karnataka 1981 Vol. 1 SCC 645. The Hon'ble Apex Court has recently considered this aspect in the case of State of H.P. Vs. Nirmala Devi (2017) 7 SCC 262 that after specifying particular term of imprisonment the use of words "and shall also be liable to fine" is provided under various sections of Indian Penal Code it is imperative to impose both the sentences i.e. imprisonment as well as fine. The convict is also liable to fine in addition to imprisonment. Since the State of U.P. has not preferred any appeal for enhancement of sentence, we are not inclined to enhance the sentence imposing fine.
Let a certified copy of the judgment along with the record be sent to the court below for compliance.
Appeal dismissed.
(Krishna Singh, J.) (Naheed Ara Moonis,J.) Order Date :- 15.3.2018 Shahnawaz