Allahabad High Court
Ram Naresh And Others vs State Of U.P. on 25 April, 2018
Bench: Naheed Ara Moonis, Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 46 Case :- CRIMINAL APPEAL No. - 2584 of 2008 Appellant :- Ram Naresh And Others Respondent :- State Of U.P. Counsel for Appellant :- Veer Singh,Arun Kumar Tripathi,Brijesh Sahai,Jai Narain,S.V.Singh,V.P.Srivastava Counsel for Respondent :- Govt.Advocate,A.G.A.,V.P.Sharma,Vijai Pal Singh connected with Case :- CRIMINAL APPEAL No. - 2177 of 2008 Appellant :- Ram Naresh Respondent :- State Of U.P. Counsel for Appellant :- Apul Misra,Brijesh Sahai,Ram Raj Pandey,S.V.Singh,V.P. Sharma,V.P.Srivastava,Vijai Pal Singh Counsel for Respondent :- Govt. Advocate,V.P.Sharma,Vijaypalsingh Hon'ble Naheed Ara Moonis,J.
Hon'ble Chandra Dhari Singh,J.
(Delivered by Hon.Chandra Dhari Singh,J.)
01. Since both the appeals arise out of the same sessions trial number, they have been heard together and are being disposed of by a common order.
02. The instant criminal appeals bearing nos.2584 of 2008 and 2177 of 2008 have been filed against the judgment and order dated 02.04.2008 passed by the Additional Sessions Judge, court no.3, Farrukhabad in Sessions Trial No.323 of 2000, whereby the Additional Sessions Judge convicted the appellants Ram Naresh s/o Khushiram, Ram Saran s/o Hardayal and Ram Naresh s/o Banwari for the offence punishable under Section 302/34 I.P.C. and sentenced them to undergo life imprisonment and to pay fine of Rs.10,000/-, in default thereof, each appellants shall further undergo one year simple imprisonment.
03. Heard Sri S.V. Singh, learned counsel for the appellants and Sri Shailendra Nath Tripathi, learned A.G.A. for the State and perused the entire record.
04. Brief facts of the case The facts which can be enumerated from the record may briefly be stated thus:-
I. The prosecution story in nutshell is that the complainant namely Shivkumari on 14.09.1999 at about 2.45 p.m. has given a written report at police station Shamshabad, District Farrukhabad stating that there was combined share of her father-in-law Keshav Ram and his cousin brother namely Ramsahai in the land. Subsequently, after the death of Ram Sahai, his 24 bigha land devolved upon his sons namely Khushiram and Kishanai, in which her husband was also having the share.
II. As sons of Kushiram and Kishanai had not given the share of the complainant-husband in 24 bigha land, therefore, there was a dispute going on between them regarding which the husband of the complainant i.e. deceased had filed a case in Tehsil Kayamganj, which was pending at the time of incident.
III. On the date of incident, the accused Ram Naresh with his brother-in-law, Ram Saran and Ram Naresh s/o Banwari Lodhi Rajpoot came to the field at about 12 noon, where the husband of the complainant namely Atmaram was cutting grass and complainant was also cutting grass in the same field at some distance from her husband. Her younger daughter was also present along with her son-in-law. The accused persons came in the field with the deadly weapon i.e. knife and asked the husband of the complainant to leave the field as his field belongs to them. Her husband told Ram Naresh that since the case pertaining to the same field is still pending before the court concern, therefore, he is also entitled to cut the grass or to do ploughing. A hot altercation started between the deceased and accused persons. The altercations were witnessed by her as she was present in the field along with her daughter and son-in-law. After sometime, accused Ram Naresh, Ram Saran and Ram Naresh son of Banwari Lodhi Rajpoot started inflicting knife blows on the deceased. On hearing the screaming, villagers who were present near about the field came on the spot of incident, on which, the accused persons ran away. The complainant, the complainant's daughter and the person namely Netrapal have witnessed the incident.
IV. Relevant entries were made in the concerned chick F.I.R. No.321 of 1999 at 2.45 P.M. on 14.09.1999 at case crime no.117 of 1999, under Section 302 I.P.C., Police Station Shamshabad, District Farrukhabad and on the basis of the same, case was registered against the deceased persons. Chick F.I.R. is Ext. Ka-10.
V. On the F.I.R. lodged by the complainant, the police started investigation and they came on the spot where the incident took place, prepared the site plan, recovered the deadbody of the deceased and collected plain earth, blood stained earth from the site. They also collected blood stained cloth of the deceased. Inquest of the deceased Atmaram was conducted by the police after reaching on the spot at 4.00 P.M. and the same was completed at 5.30 P.M.. The inquest report is Ext. Ka.4.
VI. The deadbody was sent for post mortem examination in order to ascertain cause of death. In the process, the Investigating Officer also prepared certain papers for sending deadbody of deceased Atma Ram to mortuary for conducting the post mortem examination, thereafter, the deadboy of the deceased Atma Ram was sent for post mortem examination at District Farrukhabad. Post mortem examination on the cadaver of the deceased Atma Ram was conducted by Dr. A.K.Gupta, who noted following injuries:
'kjhj ij vk;h pksVksa dk ijh{k.k 1- QVk gqvk ?kko 4 lseh x 1 lseh x scalp deep flj ds ck;h rjQ ihNs dh vksj dku ls 8 lseh ihNsA 2- stab wound pkj dh la[;k esa tks fd 12 x 8 lseh ,sfj;k es Qsys gq;s Fks Nkrh ds vkxs vkSj ckgjh rjQ chp okys fgLls esa ekStwn FksA ftudh yEckbZ 3-5 lseh x 1-5 lseh x dSfoVh Mhi ls ysdj 2 lseh x 1 lseh x dSfoVh Mhi ekftZu lkQ dVh gq;h Fkh m.M dk direction different direction esa Fkk ,d ,sfxy (angle) esa 'kkiZ FkkA bl ?kko dk foPNsnu djus ij ck;s rjQ dh Nkrh dh xqgk [kwu ls Hkjh gq;h Fkh ck;s rjQ dk QsQMk 'ko f>Yyh QVh gq;h FkhA fny Hkh dVk gqvk FkkA rhljh o pkSFkh ilyh dVh gq;h o VwVh gq;h FkhA 3- stab wound ftudh la[;k ikap Fkh vkSj Nkrh ds nkfguh vksj ckgj dh rjQ vkSj chp esa ekStwn Fkk tks fd 10 x 7 lseh ds {ks=Qy es QSys gq;s Fks ftudh uki 3 x 1 lseh x dSfoVh Mhi ls ysdj 2-5 x 1 lseh x dSfoVh Mhi FkkA bl ?kko dh phj QkM djus ij ikapos u- dh ilyh dVh gq;h o VwVh FkhA nkfgus rjQ dh chest xqgk [kwu ls Hkjh gq;h FkhA QsQsMk ,oa mldh f>Yyh dVh gq;h FkhA margin clean cut 'ks"k ?kko foijhr fn'kk esa FksA Cause of death was spelt to be shock and excess bleeding as a result of injuries. The post mortem examination report has been proved by the Doctor P.W.4 as Ext. Ka-2.
VII. The Investigating Officer after completing the investigation submitted chargesheet against the accused persons. The chargesheeet is Ext.Ka-9.
VIII. As the offence under Section 302 I.P.C. was exclusively triable by court of session, the Judicial Magistrate committed the said case to the court of session at Farrukhabad for trial as per the provision of law after committal of the said case, it was registered as S.T. No.323 of 2000. Charges were framed under Section 302/34 I.P.C. against the appellants. The said charges were read over to the appellants to which they pleaded not guilty and claimed to be tried. The prosecution in support of its case examined in all seven witnesses. The trial court after recording evidence and after hearing the parties thereto convicted the appellants vide its judgment dated 02.04.2008. Consequently, this criminal appeal.
05. Learned counsel for the appellants submitted that nobody has seen occurrence. He further submitted that after recovery of the deadbody, the F.I.R. was lodged. No independent witnesses were examined and only relative and interested witnesses were examined. Therefore, they were not reliable witnesses. He further submitted that no recovery of any weapon from or pointing out of any of the appellants was made out. There are several major contradictions between statements/depositions of the witnesses. The prosecution has failed to prove the motive of the appellants to kill the deceased. Therefore, the appellants have not committed any offence as alleged. They have been falsely implicated in the said case.
It is submitted that P.W.1, informant wife of the deceased Smt. Shiv Kumari deposed in her deposition that the assailants came in the field and asked the deceased to leave the field as the field belongs to them. The deceased Atmaram replied back to accused person, since litigation is going on, therefore, till any final order of the concerned court, they cannot force him to leave the field as he has also claimed on it. On the reply, accused persons entered in the hot altercation with the deceased and after sometime they started giving blow with knife and hammer on the chest and head but in the F.I.R. informant only stated the accused person came with knife and gave the knife blows on the deceased and due to injuries sustained by the knife, the deceased died on the spot. It is major contractions between the deposition of P.W.1 who is informant and the version which was given in the F.I.R., therefore, version of P.W.1 cannot be believed. He further submitted that P.W.1 tried to improve the prosecution story after seeing the post mortem report. Learned counsel for the appellant submitted that no weapon of the crime had been recovered from or on instance of accused persons. Non recovery of the weapon from or on instance of the accused is also effect the prosecution story. Therefore, the prosecution has failed to prove the case against the accused persons beyond reasonable doubt. He submitted that son-in-law of the deceased who was present at the time of incident was not examined by the prosecution. The P.W.2 Km.Beena is child witness. He submitted that children, in the first place, mix up what they see with what like to imagine to have seen and besides, a little tutoring is inevitable in their case in order to lend coherence and consistency to their disputed thoughts which tend to stray. Therefore, her testimony may be scrutinized with great caution. As per post mortem report conducted by Dr. A.K. Gupta, injuries sustained to the deceased by hard and blunt objects as well as sharp edged do not corroborate the version of the F.I.R.
06. In the alternative argument learned counsel for the appellant submitted that the incident took place on the spur of moment and the accused persons had no motive to kill the deceased. Therefore, motive cannot be said to be existing to kill the deceased in the mind of the accused persons. He further submitted that conviction under Section 302 I.P.C. was not warranted in the facts of the case and ought to have been converted to Section 304 part-I I.P.C., According to him, it was on account of complainant side for cutting grass in the field which was disputed property and case was pending between the parties, which resulted into altercation and heated conversation. In that continuation the incident took place.
He relied upon a judgment of this Court in Criminal Appeal No.4414 of 2008, Harish Chandra and others. In this case, one person was died and another was injured due to property dispute. This Court considering the evidence available on record converted the offence punishable under Section 302 I.P.C into Section 304 I.P.C. Part I and sentenced was reduced from life imprisonment to ten years. He submitted that facts and circumstances of the case is very much similar of the aforesaid case which was decided by another Bench of this Court.
07. Learned A.G.A. appearing on behalf of the State vehemently opposed the submissions made by the learned counsel for the appellants. He submitted that non-recovery of weapon does not effect prosecution case, when there is ample unimpeachable ocular evidence corroborated by medical evidence. In the present case wordy altercation took place between the deceased and accused persons over the dispute of the land and accused persons gave the knife and hammer blow on the vital part of the body i.e. head and chest. The deceased sustained multiple injuries on the chest and head due to that injury he died on the spot. The incident was seen by the eye witnesses i.e. P.W.1, Shiv Kumari and P.W.2, Beena. It is further submitted that depositions of the eye witnesses corroborated with the P.W.3, Shiv Ratan Singh, who is witness of the planing of murder of the deceased. He further submitted that the F.I.R. was promptly lodged by wife of the deceased and in the F.I.R. she has narrated the incident of the murder of the deceased. In the present case all the accused persons came in the field with the deadly weapon with intention to kill the deceased. The motive of the murder of the deceased is established as the accused persons and the deceased have a property dispute and the accused persons wanted to take possession of the land in which the deceased was cutting grass. He further submitted that the Hon'ble Supreme Court in number of pronouncements laid down where there is direct, ocular evidence cogent enough, irrespective of the fact that weapon of offence was not recovered or incriminating material is not found or if found it was scientifically not examined and even in the absence of Forensic Evidence attributable to the accused, still the accused is liable for conviction, if by the conduct or otherwise, it has been proved that he is guilty of the offence beyond reasonable doubt. Therefore, in the present case, P.W.1 and P.W.2 are eye witness of the incident and in the deposition, they supported the prosecution case and there is no material contradiction between the depositions of P.W.1 and P.W.2. He submitted that F.I.R. is not supposed to be encyclopedia of entire case. There are only few essentials which are needed to be mentioned in F.I.R. Some things left to mention, do not fail or frustrate the prosecution case. He relied on the case of Subhas Kumar vs State of Uttarakhand AIR 2009 SC 2490, the Hon'ble Supreme Court held that " FIR as is well known is not to be treated to be an encyclopedia." Although the effect of a statement made in the FIR at the earliest point of time should be given primacy, it would not probably be proper to accept that all particulars in regard to commission of offence in detail must be furnished. Hence, in the instant case not mentioning the 'Hammer' in the F.I.R. cannot fatal for the prosecution case. Therefore, the present criminal appeals have no merit and deserve to be dismissed.
08. For a better appreciation of the evidence, it is pertinent to throw light on the version of the prosecution witnesses. To prove the guilt of the accused, the prosecution examined seven witnesses to prove its case beyond reasonable doubt against the accused persons. Witnesses are P.W.1- Smt. Shiv Kumari, P.W.2-Km.Beena, P.W.3-Shiv Ratan Singh, P.W. 4-Dr. A.K. Gupta, P.W.5 R.S. Goel, P.W.6 Veerpal Sirohi and P.W.7 Ram Saran Singh. All the accused persons in the statement under Section 313 Cr.P.C. denied their involvement in the said crime and stated therein that they were falsely implicated in the case due to enmity.
09. P.W.1-Smt. Shiv Kumari, who had lodged the F.I.R. against all the accused persons, deposed in her deposition that some hot altercation took place between the deceased and accused-appellant Ram Naresh s/o Khushiram Lodhi Rajpoot, other co-accused his brother-in-law Ram Saran and Ram Naresh s/o Banwari Lodhi Rajpoot in the field where her husband was cutting grass. She was also cutting grass in the same field. She stated in the deposition that all the accused persons came with deadly weapon in the field with intention to kill her husband. She further stated that after some time all the accused persons started giving blows from knife and hammer to the deceased. The deceased sustained injuries on the chest and head by sharp edged weapon and hard and blunt object.
10. P.W.2- Km. Beena, who is daughter of the informant, stated in the deposition that all the accused persons came in the field with knife and hammer. Some altercation took place between her father (deceased Atmaram) and accused persons (appellants). After some time they started giving blows from knife and hammer to the deceased and due to that her father sustained multiple injuries on the chest and head. She further stated in the deposition that there is no previous enmity between her father and the accused persons. She stated that there was some case which was pending before the court below regarding property. It was stated that when villagers came on the spot, after hearing screaming, the accused persons fled away from the place of occurrence. P.W.1 Smt. Shiv Kumari and P.W.2 Km.Beena are the eye witnesses, who had seen the occurrence. There are no contradictions between the deposition of P.W.1 and P.W.2 about the occurrence.
11. P.W.3- Shiv Ratan Singh has also been examined as witness of fact. In the examination-in-chief, he stated that before two years ago on 14.09.1999 at about 12 noon, he along with Guddu was going to the house of deceased-Atmaram and when he reached at the house of the deceased, he found that the deceased-Atmaram was not there, then they proceeded towards field where he was working. On the way, the accused persons namely Ram Naresh, Ram Saran, Ram Naresh, Madan Lal and Servesh alias Karan met. They were making plan about the murder of the deceased- Atmaram. When he heard about the planning of murder of Atmaram, he tried to defuse the plan but all the accused persons threatened him. He also stated in the deposition that Ram Naresh had hammer and Ram Naresh and Ram Saran had knives. After killing of Atmaram all the accused persons fled away towards west direction along with other co-accused Madan Lal and Sarvesh alias Karan.
12. P.W.4-Dr. A. K. Gupta, who had conducted postmortem of the dead body of the deceased-Atmaram, in the deposition he stated that death was caused by sharp edged and hard blunt object. All injuries are possible by knife and hammer. The evidence given by P.W.-4 fully corroborates with the version given by P.W.1, P.W.2 and P.W.3 that the appellants herein caused death of the deceased by way of using knife and hammer. It has been specifically mentioned in the report that injuries could be possible by knife and hammer blows used in the commission of crime. Further death was caused due to shock and haemorrhage as well as very extensive lacerated wound over chest along with the multiple bone fractures on head.
13. P.W.5-S.I. R.S. Goel, who was Investigating Officer of the case. He stated in the deposition that on 14.09.1999, he was posted as S.H.O. at police station Shamshabad. After receiving information, he went to the place of occurrence and made the site plan. He also stated that S.I. Shyam Singh Sisodiya also went to the place of occurrence. He prepared the Panchayatnama as Ex.Ka-4. He also stated in the deposition that plain and blood stained earth was taken and made a Fard by S.I. Shyam Singh Sisodiya. On that Fard he signed. Fard was marked as Ex.-Ka-8. He also stated in the deposition that he has taken statement of the informant Smt. Shiv Kumari and other witnesses. He stated in the deposition that the investigation was transferred to the S.I. Veerpal Sirohi for further investigation of the case.
14. P.W.6, S.I. Veerpal Sirohi stated in the deposition that the investigation was transferred to him after transfer of S.I. R.S. Goel. He further stated that during investigation he arrested Ram Naresh and took statement of the accused. After that he also recorded statement of the eye witnesses. He also arrested Madan Lal and Sarvesh and he had taken statement of both the accused Madan Lal and Sarvesh. After completing investigation and collecting material against the accused persons, he submitted charge-sheet before the court as Ex. Ka-9.
15. P.W.7, Constable Ram Saran Singh is formal witness. He stated in the examination-in-chief that Head Moharrir had prepared Chik F.I.R. and G.D. of the case. He has known the signature of the Head Moharrir and identified the signature of Head Moharrir on the Chik F.I.R. by which case crime no.321 of 1999, under Section 302 I.P.C. was registered.
16. We have considered the rival submissions made by the learned counsel for the parties and perused the materials on record.
Before we proceed to examine the impugned judgment of the court below and the facts of the case, it may be desirable refer to settled legal proposition, which has to be applied in the present case.
Effect of non recovery of crime weapon
17. It is well established principle of criminal law that the prosecution must prove the guilt of the accused beyond all reasonable doubt. To prove the guilt of the accused, the prosecution produces oral and documentary evidence. The oral and documentary is supported by the material objects produced by the prosecution. The material objects include the crime weapon and other incriminating material. The word "weapon" is defined in Oxford dictionary as "a thing designed or used for inflicting bodily harm or physical damage". Crime weapon means the weapon used for committing the crime. There are certain types of offences in the Indian Penal Code in which one of the essential ingredients is the use of the weapon, the use of weapon increases the gravity of offence, for instances Section 324 and 326 I.P.C., wherein the use of weapon for causing hurt or grievous hurt makes the offence more grave in nature and also makes the punishment severe. There are also other offences in which the use of the weapon indicates the intention of the accused, for instance the use of a knife or sharp edged object clearly indicates the intention of the accused to kill the deceased. Sometimes the mental element which constitutes the offence is inferred from the crime weapon or other incriminating material. In such circumstances the seizure of the crime weapon goes a long way in proving the guilt of the accused and the effect of non-seizure of such crime weapon may sometimes be fatal to the case. More particularly in such type of offences which are committed in secrecy like murder the circumstantial evidence is linked by the weapons or other incriminating material seized by the prosecution agency from the scene of offence. The seizure of crime weapon also assumes importance in situations where the accused confesses the crime before the police.
18. In the case of Krishna Mochi & Ors vs State of Bihar 2002 6 SCC 81 the Hon'ble Supreme Court has held as follows:-
"It has been then submitted on behalf of the appellants that nothing incriminating could be recovered from them which goes to show that they had no complicity with the crime. In my view, recovery of no incriminating material from the accused cannot alone be taken as a ground to exonerate them from the charges, more so when their participation in the crime is unfolded in ocular account of the occurrence given by the witnesses, whose evidence has been found by me to be unimpeachable".
19. In the case of Lakshmi vs. State of U.P. 2002 7 SCC 198 the Hon'ble Supreme Court held as follows:
"Undoubtedly, the identification of the body, cause of death and recovery of weapon with which injury may have been inflicted on the deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence under Section 302 IPC. This, however, is not an inflexible rule. It cannot be held as a general and broad proposition of law that where these aspects are not established, it would be fatal to the case of the prosecution and in all cases and eventualities, it ought to result in the acquittal of those who may be charged with the offence of murder. It would depend on the facts and circumstances of each case. A charge of murder may stand established against an accused even in absence of identification of body and cause of the death. The accused persons were absconding and surrendered nearly three months after the commission of the crime. That explains the non- recovery of the weapons which is of no effect on the case."
It was also observed in the case that "it is not an inflexible rule that weapon of assault must be recovered and the Hon'ble Supreme Court did not accept as a general and broad proposition of law that in case of non-recovery of the weapon of assault, the whole prosecution case gets torpedoed."
20. In the case of Praveen Kumar vs. State , 1997 Crl. L J 577 (Bom) it was observed that simply because the knife used in the commission of offence could not be recovered, it cannot be said that the weapon was not used, especially where there is unimpeachable evidence to indicate that knife was actually used by the accused.
21. In the case of Krishna Gope vs. State of Bihar, AIR 2003, SCC 3114 the Hon'ble Supreme Court held that:-
"Learned counsel further pointed out that the country-made firearm alleged to have been used by the appellant was not recovered by the police and the same was not sent to the police station. The learned counsel submitted that the investigation was not properly done and that the appellant is entitled to the benefit of doubt. In our view, this plea is not tenable. The house of the appellant was searched immediately after the incident, but the police could not recover the weapon of offence from his house. It appears that the appellant had succeeded in concealing the weapon before the police could search his house. In our opinion, the fact of non-recovery of the weapon from the house of the appellant does not inure to his benefit."
22. In the instant case also, P.W.1 and P.W.2 have categorically deposed that the accused persons had given injuries on the different parts of the body by knife and hammer which resulted in his spot death which find corroboration from the medical evidence where injuries on the deceased was opined to be dangerous and cause of death. If we analyze the evidence of P.W.1 Shiv Kumari and P.W.2 Beena and the medical and post mortem report, it leads to conclusion that knife inflicted injuries and injuries by the hard blunt object i.e. hammer and the deceased person died due to same reason.
First Information Report
23. The basic purpose of filing FIR is to set the criminal law into motion and not to state all the minute details therein. F.I.R is not the be all and end all of every criminal case and is not substantive evidence . It can be used only for limited purposes, like corroborating the maker thereof or as one of res-gestae or for being tendered in a proper case under Section 32 (1) of Evidence Act or part of informant's conduct under Section 8 of Evidence Act.
154 Cr.P.C. reads as under:
"154. Information in cognizable cases. -(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.'' Sub-section (1) of Section 154 of Cr.P.C. contains four mandates to an officer in-charge of a police station. The first enjoins that every information relating to commission of a cognizable offence if given orally shall be reduced to writing and the second directs that it be read over to the informant; the third requires that every such information whether given in writing or reduced to writing shall be signed by the informant and the fourth is that the substance of such information shall be entered in the station house diary.
The Hon'ble Supreme Court held in the various judgments that ''Though the FIR is not supposed to an encyclopedia of the factors concerning the crime, yet there must be some definite information vis- vis the crime."
It is further held that:-
'' F.I.R can come from any quarters, even anonymous sources-- it is not encyclopedia of entire prosecution case - It need not give all details."
24. In the case of ''STATE OF HARYANA Vs. SHER SINGH & ORS. 1981 AIR 1021, the Hon'ble Supreme Court held as follows:-
''The fact that P.W. 3 did not mention in the F.I.R. that she had informed some persons of the village before the lodging of the F.I.R. and that for this reason her statement could not be relied on is not correct. The F.I.R. need not contain all details of the occurrence nor does the omission to mention the name of persons whom she informed in the village detract from the credibility of the report. The omission is a mere omission of details and not a contradiction.
It is further held that:-
''F.I.R not intended to be a very detailed document . It is meant to give only the substantive of the allegations made.''
25. In the case of PEDDA NARAYANA & ORS. Vs. STATE OF ANDHRA PRADESH 1975 AIR 1252 the Hon'ble Supreme Court held that:-
''the High Court rightly believed the evidence of the prosecution witnesses and there was no error in its approach to the case. (1) The witness who gave the first information must have been extremely perturbed having seen the attack on his companion. Even so, all the essential details which a first information should contain are there. The names of the accused and the circumstances of the murderous assault are mentioned. Shorn of minute detail the broad picture presented by the prosecution was mentioned in the first information which was lodged soon after the occurrence. It is neither customary nor necessary to mention every minute detail in the first information.'
26. In the case of State of U.P Vs Krishna Mater & Ors, 2010 (2) L.S 42 (SC), it was held that FIR need not be an encyclopedia of minute details of the incident nor it is necessary to mention therein the evidence on which prosecution proposes to rely at the trial.
In the present case P.W.1, Smt. Shiv Kumari had lodged the F.I.R. against the accused person in which it is stated that all the accused persons came with knife and gave knife blows to the deceased-Atamaram but she had not mentioned in the F.I.R. that the accused persons had also hammer and the deceased also sustained hard and blunt object. Information regarding not assigning the hammer to the accused persons in the F.I.R. cannot be said to be fatal for the prosecution in view of the law settled by the Hon'ble Supreme Court.
27. Prompt lodging of information of commission of cognizable offence at the first available opportunity is supposed to be true version without any addition, embellishment and concoction. The chances of missing links outside influence after thought and additions are removed, where the memory is fresh and information is given without any loss of time.
28. In Bathula Nagamalleswara Rao & Ors. V. State Rep. By Public Prosecutor, 2008 (2) Crimes 188 SC 189 the Hon'ble Supreme Court held that delay in lodging of FIR, if justifiably explained, will not fatal. An undue delay in lodging a First Information Report is always looked with a certain amount of suspicion and should as far as possible be avoided. First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial.The importance of the report can hardly be over estimated from the stand point of accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation.
29. In the case of Thulia Kali vs. State of Tamil Nadu, 1973 AIR 501 the Hon'ble Supreme Court held that:
"First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as names of eye witnesses present at the scene of occurrence. Delay in lodging the F.I.R. quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps is of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging of the first information report should be satisfactorily explained."
30. In the present case, the incident took place on 14.09.199 at about 12 Noon and the F.I.R. was lodged on the same day at about 2.45 P.M. The distance between the place of occurrence and police station is about 5 kilometers. Therefore, in the instant case, the F.I.R. was lodged promptly by the informant Smt. Shivkumari, wife of the deceased.
Effect of Faulty Investigation
31. Investigation being the formal procedure of discovering of the facts and figures of the crime in hand is essentially important to find out what exactly constituted the crime. "Investigation" includes search for material and facts in order to find out whether or not an offence has been committed by the accused or not. It includes all the proceedings under the Code of Criminal Procedure (Cr.P.C.) for the collection of evidence by the police officer or any person who is authorized.
Investigation in respect of offences under Indian Penal Code should be in accordance with the provisions of the Code of Criminal Procedure. Chapter XII of Cr.P.C. deals with the commencement of investigation and steps required to be taken when information is received by the police. The main and proper objective of every investigation is to collect all the relevant material by the police in respect to commission of the offences.
32. As per the Hon'ble Supreme Court, now, evidence is required to be appreciated having regard to the background of entire case and not in isolation. The ground realities are to be kept in view. Thus, it should be kept in mind that every defective investigation does not lead to acquittal. In defective investigation, the only requirement is of extra caution by the courts while evaluating evidence.
Moreover, defective investigation cannot be considered a cause disapproving the important evidences. The Hon'ble Supreme Court also stated in several cases such as murder, the defective investigation itself cannot be a ground for acquittal.
33. In the case of Zahira Habibullah Sheikh and Another vs State Of Gujarat and others AIR 2006 (SC) 1367, the Hon'ble Supreme Court held that "if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice".
34. Thus, in the case of a defective investigation, the Court has to be circumspect in evaluating the evidence and may have to adopt an active analytical role to ensure that truth is found. The aim of the investigation, in fact all the entire criminal justice system is to search for the truth. As a result in the whole criminal justice system is based on the investigation system because there is no proper investigation in criminal cases then probability of acquittal of criminal and conviction of innocent will increase which in result could not be good for the society.
It was propounded that in a criminal case, the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community and are harmful to the society in general. That the concept of fair trial entails the triangulation of the interest of the accused, the victim, society and that the community acts through the state and the prosecuting agency was authoritatively stated. The Hon'ble Supreme Court observed that the interests of the society are not to be treated completely with disdain and as persona non-grata. It was remarked as well that due administration of justice is always viewed as a continuous process, not confined to the determination of a particular case, so much, so that a court must cease to be a mute spectator and a mere recording machine but become a participant in the trial evincing intelligence and active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth and administer justice with fairness and impartiality both to the parties and to the community.
35. Referring to its earlier decision in Karnel Singh vs. State of M.P. (1995) 5 SCC 518, it was reiterated that in a case of a defective investigation, the court has to be circumspect in evaluating the evidence and may have to adopt an active and analytical role to ensure that truth is found by having recourse to Section 311 of the Code or at a later stage also resorting to Section 391 instead of throwing hands in the air in despair. It recalled as well its observations in Ram Bihari Yadav v. State of Bihar & others, (1998) 4 SCC 517 that the courts are installed for justice oriented mission and thus if a negligent investigation or omissions or lapses due to perfunctory investigation are not effectively rectified, the faith and confidence of the people would be shaken in the law enforcing agency and also in the institution devised for administration of justice.
The observations and the propositions, though made in the backdrop of a request for retrial, those pertaining to the essentially of a fair and complete investigation and trial as well as the solemn duty of the courts to ensure the discernment of truth to administer even handed justice as institutions of trust of public faith and confidence, are in our estimate, of universal application and binding effect, transcending the factual settings of a case. An adverse deduction vis-à-vis the quality of investigation and a trial trivializing the cause of justice, is however the essential pre-requisite, for such remedial intervention by way of further investigation, reinvestigation, additional evidence, retrial etc. to be made objectively but assuredly for the furtherance of the salutary objectives of the justice dispensing system as contemplated in law, it being of paramount pre-eminence.
36. The Hon'ble Supreme Court in Mohd. Hussain @ Julifikar Ali (supra) was also seized of a situation imploring for a retrial following the termination of the prosecution principally on account of delay, when juxtaposed to the demand for justice in cases involving grave crimes affecting the society at large. The offence involved was under Sections 302/307/120B IPC and Sections 3 and 4 of the Explosive Substances Act, 1908 and had perpetrated an explosion in a passenger carrying bus. This Court amongst others recalled its observations in Kartar Singh vs. State of Punjab (1994) 3 SCC 569 that while dispensing justice, the courts should keep in mind not only the liberty of the accused but also the interest of the victim and their near and dear ones and above all the collective interest of the community and the safety of the nation, so that the public, may not lose faith in the system of judicial administration and indulge in private retribution. It however also took note of its ruling in State of M.P. vs. Bhooraji and others (2001) 7 SCC 679 that a de novo trial should be the last resort and that too only when such a course becomes desperately indispensable and should be limited to the extreme exigency to avert a failure of justice. It noted with approval the observation. In P. Ramachandra Rao (supra) that it is neither advisable nor feasible nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings and that the criminal courts are not obliged to terminate the trial or criminal proceedings merely on account of lapse of time. That such time limits cannot and will not by themselves be treated by any court as a bar to further continuance of the trial or proceedings or to terminate the same and acquit or discharge the accused, was emphatically underlined.
37. The arguments advanced by the learned counsel appearing on behalf of the appellants that in the present case, investigation is highly defective. The Investigating Officer failed to produce on record weapon used in crime. F.S.L. Report etc. But as described above, the law is settled that for certain defects in investigation, the accused can not be acquitted where there has been negligence on the part of the investigating agency or commission etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence de hors such lapses, carefully to find out whether the said evidence is reliable or not and to what extent it is reliable as as to whether such lapses affected the object of finding out the truth. Therefore the investigation is not the solitary area for judicial scrutiny in a criminal trial.
TESTIMONY OF A CHILD WITNESS
38. For a testimony to be admissible, it must fulfill certain conditions, such as;
A witness should be competent enough;
Must understand the question put before;
Must comprehend and give pragmatic and rational answers to the same.
A child or a person in his years of development is often subject to certain conditions, depending upon the conditions he lives in and nurtured in, keeping in mind the socio-economic contrasts every person is brought up.
A child's testimony can vary as it can be doctored by way of torture and coercing, and is not subject to absolute self-authority and assessment. As children, the mental development is tender in nature and can vary in different situations.
The final discretion lies on the court to comprehend and determined whether the testimony shall be permissible or not, keeping the mind the account of the given facts and situation.
Hence, a court of law does prohibit anyone from testifying, as long as they are able to satisfy the above conditions to the satisfaction of the court of law.
39. In a the case, Suresh v. the State of U.P. 1981 SCR (3) 259, the Hon'ble Supreme Court held that a testimony from a 5-year-old child shall also be admissible, so long as the child is able to comprehend and understand the question of the given issue. Hence, it declared that there is no minimum required age for a person to legally testify in the court of law.
40. Section 118 of the Indian Evidence Act mentions who is considered as competent enough to testify in the court of law; "All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years......"
Hence, the above provision clearly states that one shall testify in case competent enough if considered otherwise by the court of law.
41. In the case, Rameshwar S/o Kalyan Singh v. The State of Rajasthan AIR 1952 SC 54 the Hon'ble Supreme Court held that every person is competent to be a witness in the court of law, unless incapable of understanding the question put before him/her, keeping in mind the provisions of Section 118 of the Indian Evidence Act.
Capability to understand at a young age is more likely to be dependent and to be formed at the opinion and perception of what others say and portray, due to which the testimony of a child is more likely to be modified or altered. Hence, dealing with a child witness is of key importance.
42. In the case of Nivrutti Pandurang Kokate & Ors. v. The State of Maharashtra, AIR 2008 SC 1460 where the Supreme Court held that the testimony of a child witness must be scrutinized so as to make sure that it was not given under any situation of coercion and undue influence, and must corroborate other given evidence as well.
43. In the case of State of U.P. vs. Krishna Master and others AIR 2010 SC 3071 the Hon'ble Supreme Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.
44. The appellants were convicted for the offence under Section 302 read with Section 34 I.P.C.. Learned counsel for the appellants submitted that there is no evidence that the accused persons/appellants have shared common intention to give injuries to the deceased by knife and hammer and, therefore, conviction of these accused persons under Section 302 read with Section 34 I.P.C. is not sustainable.
45. Section 34 embodies the principle of joint liability in the doing of a criminal act and the essence of that liability is the existence of the common intention. Common intention implies acting in concert and existence of a pre-arranged plan which is to be proved/inferred either from the conduct of the accused persons or from attendant circumstances. To invoke Section 34 I.P.C., it must be established that the criminal act was done by more than one person in furtherance of common intention of all. It must, therefore, be proved that (i) there was common intention on the part of several persons to commit a particular crime (ii) the crime was actually committed by them in furtherance of that common intention. Common intention implies pre-arranged plan. Under Section 34 I.P.C., a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The essence of liability under Section 34 I.P.C. is conscious mind of persons participating in criminal action to bring about a particular result. The question whether there was any common intention or not depends upon inference to be drawn from the facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence, with which they could be convicted.
46. Considering the facts and circumstances of the case in hand it is evident from the deposition of P.W.3-Shiv Ratan Singh who stated in the deposition that all the accused persons namely Ram Naresh, Ram Saran and Ram Naresh s/o Banwari Lodhi Rajpoot were making plan for killing Atmaram (deceased) and he further stated that when on their planning he tried to stop them then they threatened him with dire consequences. In the deposition he assigned the respective weapons to all the accused persons. Therefore, it is evident that there was prior concert and that the appellants have acted in furtherance of common intention. Facts and circumstances clearly establish meeting of minds and common intention of the appellants in committing murder of the deceased (Atamaram) and therefore, the appellants were rightly convicted under Section 302 read with Section 34 I.P.C.
47. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his/her evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his/her deposition.
48. In the present case, P.W.2 Beena, daughter of the deceased at the time of deposition she was 12 years old child. In her deposition she stated clearly that all the three accused persons came at the place of occurrence when her father was cutting grass in the field and her mother P.W.1 Smt. Shiv Kumari was also cutting grass in the same field near his father. She clearly heard some altercation took place between the accused and her father and after some time the accused persons have started giving blow from knife and hammer. Her statement is corroborated by the statement of P.W.1 as well as post mortem report in which injuries found on the body of the deceased were by the sharp edged and hard blunt object weapon. Therefore, deposition of P.W.2 is reliable and her statement corroborates the contents of the occurrence as described in the written report i.e. F.I.R.
49. At the very outset, we may take note of contents of the first information report (Ext.Ka-10). Bare perusal of the same reflects that the complainant Shiv Kumari on 14.09.1999 at about 2.45 p.m. has made a complaint at police station Shamshabad stating therein that Ram Naresh s/o Khushiram Lodhi Rajpoot with his brother-in-law-Ram Saran and Ram Naresh s/o Banwari came in the field where husband of the complainant Atmaram (deceased) was cutting grass and Ram Naresh tried to stop her husband for doing so, on which, her husband told Ram Naresh that as the case is still pending before the court concerned and he has also share in the field, therefore, he cannot stop for cutting grass. On that account hot altercation started between the deceased and Ram Naresh along with other co-accused Ram Saran and Ram Naresh s/o Banwari started inflicted knife blows on the deceased. On her screaming other villagers came there on the spot of the incident, on which accused persons ran away.
50. We may take into consideration the testimony of the informant P.W.1, Smt. Shiv Kumari, P.W.2 Beena and P.W.3. In her examination-in-chief P.W.1 Shiv Kumari has started the prosecution story and in her deposition she stated that hot altercation took place between the deceased and Ram Naresh s/o Khushiram Lodhi Rajpoot, his brother-in-law-Ram Saran and Ram Naresh s/o Banwari in the field where her husband was cutting grass and she was also cutting grass from some distance in the field. She has further stated that above mentioned three persons inflicted knife blows on the deceased. According to P.W.1, persons namely Madan Lal and Servesh were also involved in killing of her husband which was told to her by persons namely Guddu and Shiv Ratan Neh. P.W.2 Beena, daughter of the deceased, who was 12 years old at the time of giving deposition, has also stated that all three persons have inflicted injuries upon her father and on her screaming other villagers gathered on the spot of the incident. On seeing the villagers the accused persons ran away from the place of occurrence. Shiv Ratan Singh-P.W.3, who has deposed that Ram Naresh, Ram Saran, Ram Naresh, Madan Lal and Sarvesh alias Karan were making plan for killing Atmaram. He has even deposed that when on their planning, he tried to stop them then they threatened him with dire consequences. He has therefore deposed that one Ram Naresh was having hammer another Ram Naresh and Ram Saran have knife in hand. They were planning for murder of Atmaram.
51. Medical examination of the deceased was conducted by Dr. A.K. Gupta, P.W.4, who found following injuries on the body of the deceased:-
a. Lacerated wound of 4cm x 1cm x scalp deep on the left side head towards back side which was 8 cm. away from the ear.
b. Stabbed wound near the ear on chest spreading from 2x8 cm. The said wound was having 3.5 cm x1.5 cm.
c. 5 stabbed wounds on the chest which was spreading from 10.cm x 7 cm.
52. Now cumulative reading of P.W.1, P.W.2, P.W.3 and P.W.4 Dr. A.K.Gupta, who had conducted the post mortem of the deadbody of the deceased, it appears that P.W.1 and P.W.2, who are eye witnesses of the case have supported the prosecution case and both witnesses stated in the deposition that all the accused persons namely Ram Naresh s/o Khushiram Lodhi Rajpoot, his brother-in-law-Ram Saran and Ram Naresh s/o Banwari having knife and hammer have given several blows on the body of the deceased and due to that he sustained several injuries on the chest and head which is proved by medical report with the post mortem report, which was conducted by P.W.4, Sri A.K Gupta. Dr.A.K.Gupta stated in the deposition that all the injuries sustained by the deceased were inflicted by the hard, blunt object and sharp edged weapon and P.W.3, Shiv Ratan Singh also stated in the deposition that they were planing of the murder of Atmaram with having a knife and hammer. Therefore, all the witnesses supported prosecution story and ocular evidence fully supported the medical evidence as the injuries were sustained by the deceased by hard, blunt and sharp edged weapon.
53. For all the above reasons, we are of the view that prosecution has proved its case beyond reasonable doubt and all the accused persons had inflicted injuries to the deceased Atmaram, therefore, we are of the view that the present appeals have no merit and there are no ground to interfere in the impugned order dated 02.04.2008 passed by the Additional Sessions Judge, court no.3, Farrukhabad in Sessions Trial No.323 of 2000. Therefore, the conviction and sentence of the appellants awarded by the trial court is affirmed.
54. Accordingly, both the criminal appeals are dismissed.
55. Let a copy of this judgment/ order be certified to the court concerned for necessary information and follow up action.
Order Date:-25.04.2018
Asha
(Chandra Dhari Singh,J.) (Naheed Ara Moonis,J.)