Allahabad High Court
Krishna Pal & Another vs State Of U.P. on 7 February, 2018
Bench: Amreshwar Pratap Sahi, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 40 RESERVED Case :- CRIMINAL APPEAL No. - 950 of 2013 Appellant :- Krishna Pal & Another Respondent :- State Of U.P. Counsel for Appellant :- Dileep Kumar, Amarjit Upadhyay, Dileep Singh Yadav, Mayank Yadav, Pradeep Pandey, Rahul Mishra, Yogesh Srivastava Counsel for Respondent :- Govt. Advocate ************ Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Rajeev Misra,J.
The appellant no.1 Krishna Pal (now deceased) and his father Jagveer appellant no.2, are alleged to have got annoyed when their agricultural plot of sugar-cane crop was flooded with water on account of the negligence of the two deceased persons Ajab Singh and his son Ravi Kumar as a result whereof they are stated to have committed their murder. The matter was investigated, the appellants were charge-sheeted and have ultimately been convicted by the learned Sessions Judge, Baghpat in Sessions Trial No.444 of 2008 arising out of Case Crime No.572 of 2008, under Sections 302, 201 read with Section 34 of I.P.C. and Section 25 of the Arms Act in Sessions Trial No.462 of 2008 and 463 of 2008 respectively. They have been awarded life imprisonment coupled with Rs.10,000/- fine for having committed the offences of murder Section 302 read with Section 34 and five years Rigorous Imprisonment with Rs.5,000/- fine for having committed the offence under Section 201 I.P.C. Further both the appellants have been found to be guilty of the offence under Section 25 of the Arms Act for which they have been awarded a sentence of one year each with Rs.500/- each as fine. In default of payment of fine an additional period of imprisonment of six months, three months and one month respectively as per the sentences above have been awarded that are to run concurrently. The appellants had also been charged for the offences under Section 307 read with Section 34 and Section 504 I.P.C. that were not found to be proved and they were acquitted on that count.
It may be noted that the appellant no.1 died on 27.07.2017 and the appeal against him stands abated vide our order dated 02.02.2018.
The prosecution version as unravelled in the first information report as also on a reading of the judgment of the trial court is that on 23.06.2008 the two deceased Ajab Singh and Ravi Kumar were irrigating their paddy field at about 6.00 a.m. in the morning when the boundary of their field and the vestibule for letting water pass from one field to another, gave way, which resulted in an overflow of water towards the sugar-cane crop field of the appellants, flooding a part of it. The deceased are stated to have informed the appellants that they are trying to contain the water and repair the damage, but the appellants got annoyed and threatening them to teach a lesson, the appellant no.1 went to his house and came along with a licensed .315 bore rifle of his father the appellant no.2, and also a country-made pistol that were loaded. The appellant no.1 armed with the rifle of his father and the appellant no.2 with the country-made pistol are alleged to have exhorted and fired at the deceased Ajab Singh who received gun-shot injuries and died on the spot. They also chased his son Ravi Kumar and shot him who also fell dead thereafter. It is also alleged that with a view to obliterate evidence they threw the bodies of the two deceased in the adjacent canal in which the water was running at a rapid speed and the bodies were recovered from the said canal. The approximate time of the incident is about 7.00 a.m. The aforesaid occurrence was witnessed by many persons including PW-1 Pushpendra (son of the deceased Ajab Singh) who is also the first informant, accompanied by Puppendra PW-2, Kallu brother of the first informant and Sanjeev who were later-on during the course of trial first discharged as witnesses at the instance of the informant, but Sanjeev was later-on examined as a Court witness CW-1 at his instance. Dr. Yateesh Kumar who performed the post-mortem was examined as PW-3 and the other formal police witnesses and ballistic expert were examined as PWs-4 to 8.
The first informant and the other witnesses of fact have stated that when they saw the shots being fired, and these two persons being killed, they ran away towards the village and after the assailants had thrown the bodies in the canal and fled away, they again came back and searched for the dead bodies of the deceased. The body of Ajab Singh is said to have been found in the canal in a sunken state about 12 feet away from the place of occurrence whereas the body of Ravi Kumar had drifted about 250 yards in the canal and was discovered in the direction in which the canal was flowing tangled in a bush on the bank of the canal. The bodies were recovered, lifted and carried ashore in the presence of a large number of villagers who had assembled after having heard the shots being fired.
After laying to rest the bodies on the banks of the canal, the first informant PW-1 Pushpendra is stated to have arrived at the police station at 8.45 a.m. and lodged the first information report. The first information report discloses the time of the incident as 7.00 a.m. The inquest was thereafter stated to have been prepared at about 11.40 a.m. and the bodies were sent for post-mortem that was performed at 5.00 p.m. in the evening. The police had arrived on the spot after the first information report had been lodged and had stayed there for quite some time and the Investigating Officer had proceeded to carry out the investigation.
The post-mortem report recites the seat and dimension of the injuries. Broadly the injuries on the person of Ajab Singh were five, two gun shot wounds of entry and two of exit, the fifth injury was a lacerated wound on the thigh. One of the gun shot injuries was on the neck and the other was on the femur of the thigh which was bone deep with a fracture. These injuries were through and through and were about half day old. The lacerated wound was on the thigh the description whereof is available in the post-mortem report. The cause of death has been shown to be shock and haemorrhage due to ante mortem fire-arm injuries.
Similarly the post-mortem report of the other deceased Ravi Kumar indicates four wounds, the first and second being a gun shot injury of entry and exit on the left upper arm 4 cms. above the elbow. Injury no.3 is a gun shot wound of entry cavity deep from the left nipple at 5 o'clock position and a metallic bullet stated to have been found embedded on the right side of the chest just below the skin about 5 cms. from the right nipple. The bullet was extracted and handed-over to the police. The third injury was an abrasion on the right side of the abdomen, the duration of injuries being the same as the other deceased.
The appellants were taken into custody and the recovery of the rifle as well as the country-made pistol alleged to have been utilised by the appellants for having committed the offence was made. It is to be noted that cartridges were also recovered from the spot as also from the custody of the accused, along with the recovery of the weapons used, that were also sent for ballistic report. The recovery memos of the cartridges, weapons as well as blood stained earth and plain earth were also prepared on investigation. The ballistic report was also obtained in respect of the weapons aforesaid. The appellants were then charge-sheeted under Sections 302/201/307/504 I.P.C. read with Sections 25/27 Arms Act.
At this stage it also deserves to be noted that apart from the witnesses who have been examined, Kallu brother of the first informant who was nominated as a witness by the prosecution and Sanjeev were got discharged by the complainant on an application dated 14.07.2011 from being produced as a witness. Thus Kallu was never produced but Sanjeev moved his separate application on 12.09.2011 praying for being examined as a witness as he is an eye-witness of the incident. This application of Sanjeev was rejected against which he filed a revision which was dismissed whereafter he filed a writ petition before the High Court whereupon he was permitted to depose as a Court witness and was accordingly examined as CW-1 on 01.12.2011.
At the very outset it is necessary to record that we are proceeding to examine the evidence relating to this appeal only in relation to the appellant no.2, Jagveer as the appellant no.1 Krishna Pal has already died as noted above and his appeal has been abated.
Sri Rahul Mishra has advancing his submissions urged that in view of the evidence which has been brought on record relating to the timing of the occurrence, the alleged participation of the accused, their mode of arrival and the presence of the eye-witnesses as well as their departure from the scene and the ultimate lodging of the first information report at 8.45 a.m. is not at all trustworthy keeping in view the short duration of the time to cover the activities as narrated by the witnesses. He submits that the inquest was prepared at 11.40 a.m. and therefore the case of the prosecution that the first information report was lodged at 8.45 a.m. is unbelievable which is ante-timed.
He then submits that the Panchayatnama no where named the accused when the first information report has clearly nominated both the appellants. The investigation which was carried out and the memos that were prepared no where indicate the time of recording of any such information that may have been collected during investigation so as to make it believe to be credible for prosecuting the appellants.
He has then urged that the witnesses named in the first information report namely Pushpendra and Puppendra, who were produced as PW-1 and PW-2, turned hostile during their cross-examination on 16.04.2011 thereby dislodging the entire case of the prosecution based on these two eye-witnesses. He has then castigated the recovery of the weapons and the injuries urging that the recovery is fictitious and the fatal injury of the other deceased Ravi Kumar that is said to have been caused by a bullet embedded in his chest, was never sent for any ballistic report. He submits that the weapons recovered were sent for examination after two months and remained in the Store Room (Malkhana) of the police station concerned during this period for this he has relied on the statement of PW-5 Sub Inspector of Police to demonstrate the same.
The contention of Sri Mishra is that the five cartridges that were sent for ballistic examination have been incorrectly connected with the weapons recovered and the evidence is unreliable.
Sri Mishra then urged that the evidence of Sanjeev as Court Witness CW-1 does not inspire confidence at all keeping in view the dramatic manner in which he deposed before the Court. He was a partisan witness which was not assessed with caution and care by the trial court to support the prosecution story. He has therefore submitted that all these discrepancies and material variations in the evidence clearly do not prove the prosecution story beyond reasonable doubt and as such the conviction of the appellant no.2 deserves to be set aside.
Replying to the said submissions Sri Sagir Ahmad, learned A.G.A. submits that on the issue of the duration of the entire activity between the timing of the incident i.e. 7.00 a.m. to 8.45 a.m. when the FIR is stated to have been lodged is within a comfortable radius of distance that in no way reflects ante-timing of the first information report. He submits that the arrival of the assailants after the heated exchange had taken place earlier and their participation in the commission of the offence with the aid of fire arms has been categorically witnessed by PW-1 and PW-2, and that part of their examination-in-chief and cross-examination that was recorded on 21.05.2009 in respect of PW-1 and on 19.06.2009 of PW-2, clearly establishes the guilt of the appellants that has to be believed. He submits that framing of an additional charge on 16.04.2011 at the instance of the complainant under Section 504 I.P.C. and then the direct cross-examination of PW-1 and PW-2 without examination-in-chief on the same day where they have taken a somer sault is worth discarding as this was a complete after thought which the defence might have attempted in order to win-over the prosecution witnesses to depose otherwise. This dramatic change of stand is therefore obvious that was introduced on the strength of the framing of an additional charge under Section 504 I.P.C. that was wholly unnecessary. The defence therefore can not take advantage of such manoeuvring which is obvious in the aforesaid background to the effect that when the evidence of the prosecution had already come to an end and the witnesses had been cross-examined in 2009, there was no occasion for their cross-examination that too even directly on the strength of an additional charge framed under Section 504 I.P.C. after two years. He submits that after this change had occurred that the accused came up with their statement under Section 313 Cr.P.C.. The statement of appellant no. 1, Krishna Pal was recorded on 22.10.2011 and that of the appellant no.2 Jagveer on 02.12.2011. The contention therefore is that the appellants can not take any advantage as the prosecution had discharged its full liability of proving the case and which stood corroborated by the Court Witness Sanjeev produced as CW-1 who gave his statement before the Court on 01.12.2011 in the circumstances as noted above. He did not turn hostile and the allegation that he was partisan is not correct inasmuch as even though he had an enmity as noticed by the trial court, his evidence in the present matter clearly corroborates the stand taken by PW-1 and PW-2 when they had deposed and had been cross-examined in the year 2009. This witness has also proved that the appellants had assaulted with the fire arms referred to above and he was also present in his agricultural filed at the time of the occurrence and had witnessed the crime as stated by the informant PW-1 as well as PW-2. Sri Sagir Ahmad, learned A.G.A. therefore contends that the presence of the witnesses, the place and time of the incident, the use of the fire arms and cause of death keeping in view the post-mortem report as well as the inquest report establishes the guilt beyond doubt. He contends that any minor discrepancy in the investigation can not belie a broad day light incident where a double murder had taken place and the attempt had also been made to destroy the evidence by throwing the bodies in to the canal.
He has invited the attention of the Court to the statement of the witnesses to urge that there is no infirmity in the description of the manner of assault, the place of assault and the timing thereof and once the post-mortem report confirm the injuries as well as the timing of the injuries, the chain of events through this direct evidence leaves no room for doubt that the appellants were guilty and any attempt by the prosecution witnesses to alter their statement later-on can not obliterate the evidence led on behalf of the prosecution to prove the commission of the offences. The recovery of the weapons has been established and the multiple nature of injuries sustained clearly indicates the involvement of both the appellants and the use of two fire arms. He therefore submits that no case is made out on behalf of the appellant no.2 so as to dilute the case set-up by the prosecution and reverse the judgment of the trial court.
Having heard learned counsel for either side, the first issue is with regard to the doubt sought to be created about the presence of the eye witnesses. The main thrust of the argument in relation to PW-1 and PW-2 Pushpendra and Puppendra as advanced by the learned counsel for the appellant is that they turned hostile when they were brought to the witness box, a second time on 16.04.2011 as noted above. In this respect, the law is settled that even that part of the statement of a hostile witness can be taken into account which supports the prosecution story provided it stands further corroborated from the other material on record.
The prosecution produced PW-1 whose statement was recorded on 21.05.2009 and he was also cross-examined by the defence. Similarly, PW-2 was produced and his examination and cross-examination took place on 19th June, 2009. After completion of the cross-examination, as noted above, on these two occasions, the evidence which emerges, and which remained unimpeached till then, is that PW-1 was at the agricultural field alongwith his father the deceased Ajab Singh watering the paddy crops at 6:00 am when the spilling over of the water towards the field of the accused became a source of annoyance and a bone of contention. CW-1- Sanjeev was also at his plot quite near to the scene of occurrence where he was weeding his paddy crops who has deposed confirming the presence of PW-1. Thus, at the initial stage, when the dispute is stated to have begun in the morning, both these witnesses alongwith deceased Ajab Singh and his son Ravi Kumar are stated to be present. It is at that time that the accused are stated to have come on the spot and exhorted the deceased in a scolding voice as to why they did not stop and protect the adjacent field being flooded and became annoyed. The heated exchange was witnessed and upon intervention, the accused went away threatening the deceased that they will see to it that the water stops over flowing, whereafter the appellant no. 1 Krishna Pal came back from his house alongwith a licensed rifle of his father and a country-made pistol. The two witnesses categorically narrated these facts and during cross-examination, this part of the evidence could not be contradicted.
The next link is the actual assault made by the appellants, the appellant no. 1 with the licensed rifle of his father and the appellant no. 2 with a country-made pistol. The injuries of the bullet shots in respect of both the deceased, as is evident from the post-mortem report and the recovery of five blank cartridges from the spot have also been testified by the witnesses. The firing of the shots and the manner in which the deceased Ajab Singh received the injuries and the chasing of the other deceased Ravi Kumar being shot have been narrated by both these witnesses who do not in any way waiver in their version during cross-examination. Thus, the evidence of PW-1 and PW-2 as recorded on 21.05.2009 and 19.06.2009, leaves no room for doubt that both these witnesses were present on the spot.
It may be noted that PW-2 Puppendra had clearly stated that he was also at his field to harvest green fodder. In his statement, PW-2 clearly mentions that Pushpendra i.e. PW-1 was present on the spot and that Kallu, the brother of Pushpendra had arrived on a horse cart at the time of the occurrence of the incident. This entire evidence stood concluded in the year 2009.
The development which took place thereafter is that which the defence seeks advantage of namely, the moving of an application to frame an additional charge under Section 504 IPC and the fresh cross-examination of the aforesaid two witnesses. It is on the strength of this development that the veracity of the testimony of PW-1 and PW-2 is sought to be impeached. This has to be seen in the background that the two other nominated witnesses, Kallu brother of PW-1, and Sanjeev who later on appeared as CW-1, were got discharged from the list of the prosecution witnesses on 14.07.2011 through an application that was moved by the prosecution itself. This has been noted in paragraph no. 27 of the impugned judgment of the trial Court.
What is noteworthy is that prior to this, the trial Court entertained the application for framing an additional charge under Section 504 IPC and passed orders on 16.04.2011 framing of an additional charge against the accused under the aforesaid provision. Simultaneously on the very same day, PW-1 and PW-2 were produced and without any examination-in-chief, they were straight away cross-examined by the defence where they denied having seen the incident and they stated that they were at their village Badauli when the incident happened about which they came to know later on. This heels over head position of the two eye witnesses by partially overturning their own version denying their presence at the time of the incident through a direct cross-examination after two years of their truthful deposition confirms the view expressed by the trial Court that such a manipulation cannot go to the advantage of the accused-appellant. The unfaltering testimony of these two witnesses after cross-examination in the year 2009 was sought to be altered after more than two years under the pretext of trial on an additional charge.
In our opinion as well, such a manoeuvre reflecting an attempt to defeat justice by an after thought testimony does not inspire belief and cannot dislodge the evidence recorded earlier in the wake of the fact that the third eye witness Sanjeev, on coming to know that the prosecution had got him discharged on 14th July 2011, after the defence had succeeded in getting the statement of PW-1 and PW-2 on 16.04.2011, moved his own application on 12.09.2011 for getting himself examined as a Court witness confirming the prosecution version. This opportunity had been initially denied but after contest up to the High Court, this witness succeeded in his plea and he was examined who corroborated the entire version of the prosecution including that part of the statement of PW-1 and PW-2 that was earlier recorded and cross-examined in 2009.
The credibility of this witness namely, CW1-Sanjeev was sought to be impeached by the learned counsel on the ground of his being on inimical terms with the family of the accused. The allegation was that he had been incarcerated in the incident of the alleged murder of ILmo Devi who had died due to burn injuries while sitting in her car and who was the wife of Bhanwar Singh, the brother of appellant no. 1 Jagveer. This accusation on Sanjeev was made the basis to allege that he was an interested partisan witness whose bitter enmity was a strong factor to doubt his testimony as it was an outcome of sheer vengeance. The law on this issue is settled that even if there is an element of doubt about the testimony of such a witness who may be interested, then too even it cannot be discarded all together depending upon the facts of the case but such evidence should be read with utmost caution.
The trial Court did arrive at the conclusion that there was evidence of an enmity of Sanjeev and there might be a possibility of his having pursued his own personal cause. In the background aforesaid examining this contention on the strength of the evidence on record, what we find is that Sanjeev is one of the nominated witnesses in the FIR itself. He in his testimony has described his presence as well as the presence of the other witnesses and the accused at the scene of occurrence and has described and corroborated the fact of the accused appellant having fired the shots with their fire arms and then throwing away of the bodies in the canal. This was also the version of the other witnesses and that was corroborated by the medical evidence as well as panchayatnama and other documents on record confirming the original version contained in the FIR. We are mentioning these facts as the caution which deserves to be taken is as to whether the prosecution version was otherwise probable and the witness was not to gain or benefit out of such alleged interested deposition.
In our view, during the entire trial up to the stage of the cross-examination of PW-1 and PW-2, as well as the formal witnesses, the prosecution story remained intact without any dent, and therefore the testimony of Sanjeev cannot be discarded merely on the allegation of being an interested witness. No evidence on the allegation about Sanjeev's involvement in the criminal case, is available to construe that Sanjeev had deposed for any benefit for himself. The defence also did not lead any evidence to counter the denial of Sanjeev on this score during cross-examination. The trial Court was therefore justified in finding support from the deposition of CW-1 which discloses full probability of the involvement of the accused appellants. The graphic testimony and the eye-witness account of the CW-1 remains unimpeached. It was a broad day-light incident and a double murder took place in the same village to which the victims, the accused and the witnesses belonged. This witness of fact therefore independent of the statements of the PW-1 and PW-2 on 16.04.2011, has established by his ocular testimony that the incident had occurred involving the appellants.
As noted above, the twist in the prosecution version was introduced by the partial abandonment of the stand of PW-1 and PW-2 and denying their own statement given earlier. PW-1 and PW-2, surprisingly enough are close associates and PW-1 is the real son of the deceased Ajab Singh and brother of second deceased Ravi Kumar. Such an attitude of the prosecution witnesses so closely related does speak volumes of how things take a turn and truth is sought to be covered by a blanket so as to cloud the correct version. We may place on record that these two witnesses were not declared as hostile by the prosecution formally at any stage of the proceedings nor were these witnesses sought to be re-examined by the prosecution. This may have been deliberate on the part of the prosecution as well to some how the other aid the accused and we thoroughly deprecate if any such attempt was made. We entirely agree with the conclusion of the trial Court that this somersault after two years of the evidence having been recorded amounts to resiling back from truthful version which stands corroborated from the prosecution testimony as brought on record.
We also find it necessary to mention that in such a contingency what is evident in this case is that it was not the recall of a witness either by the Court or by any party on the charges already framed. A fresh charge was framed on 16.04.2011 itself under Section 504 I.P.C. and these two witnesses were immediately produced and were directly cross-examined by the defence on the same day.
In our considered opinion the then Presiding Officer of the trial court at this stage clearly faulted in exercising discretion and as a matter of fact for no fruitful purpose entertained the application for framing of the charge under Section 504 I.P.C. for which there was no material evidence. This indiscretion on the part of the trial court acted as a catalyst for the witnesses tempting them to change sides and transfer their loyalty as has been noted by the trial court while delivering the judgment. It needs to be indicated that the Presiding Officer at the time of recording of the evidence on 16.04.2011 was different from the Presiding Officer who delivered the judgment. It would be necessary to caution that a Court before permitting the examination of witnesses must scan and weigh the circumstances properly and not exercise its discretion in a casual or routine manner or otherwise intended to aid the accused to absolve them of their guilt. In the present case this recording of statements of PW-1 and PW-2 and permitting them to resile from their statements denying their presence clearly amounted to subverting the judicial process and defeating the cause of justice by trying to suppress the truth. We therefore find that the trial court while delivering the final judgment of conviction was fully justified in discarding this exercise undertaken by the previous Presiding Officer to allow the prosecution witnesses PW-1 and PW-2 to resile back from their statements. The moving of an application and framing of a fresh charge under Section 504 I.P.C. was an excuse without legal basis and was an inexcusable contrivance to bring about a diversion in the prosecution case.
We also find it necessary to observe that this change of heart should not be a cover for the guilty to be let off in the background that the same witnesses throughout their cross-examination, two years hence had completely confirmed the prosecution version. Their earlier statement also on record was never suggested to be tutored, prompted or a parroted version when the cross-examination took place in the year 2009. The statements of PW-1 and PW-2 so recorded does not get effaced and washed off so as to make it wholly unreliable.
The desertion later on asserting that earlier statements were influenced cannot by itself be sufficient to dislodge the prosecution version which has been otherwise proved by the evidence of CW-1, whose evidence categorically corroborates the prosecution story. His role as a partisan witness as suggested by the learned counsel for the appellant, therefore is of no consequence as discussed hereinabove. The prosecution version can otherwise also clearly survive on the sole testimony of CW-1.
Coming to the arguments raised on behalf of the appellants it is true that the Court should be circumspect and where ever diametrically opposed the statements of witnesses occur, it should be presumed that it is open to the accused to rely on any material contradictions. We are conscious of this fact that the statements of PW-1 and PW-2 as recorded on 16.04.2011 attempts to make a dent so as to create a reasonable doubt and thereby make the prosecution story look as improbable. At this stage it would be appropriate to consider the other corroborating evidence on record which would support the prosecution story along with the statement of CW-1.
Learned counsel for the appellants urged that the inquest report does not recite the name of the accused. This argument does not appeal to reason inasmuch as the inquest report is only relevant for the purpose as to whether the cause of death was homicide or otherwise.
The next argument of learned counsel for the appellants about the weapons having been sent for examination after two months to the ballistic expert also does not hold water keeping in view the recovery which was testified to be true and the five used cartridges were clearly identifiable to the licenced weapon of the appellant no.2 having been utilized for the commission of the offence by the appellant no.1. The testimony of Sanjay Kumar the Ballistic Expert who was examined as CW-2 clearly corroborates the same and hence this argument on recovery is also not tenable and rather the prosecution version is established.
The other argument of the incident having been ante-timed or the timing having not been correctly reflected in the first information report due to the distance covered by the informant between the time of the incident and the lodging of the first information report also does not create any doubt inasmuch as the distance of the place of incident from the village is 2 kms. The argument of learned counsel for the appellants is that if PW-1 had fled away from the scene of the occurrence when the shots were allegedly fired then he must have gone to the village and then come back to retrieve the dead bodies as stated by him which itself would be 4 kms. He then went to the police station and lodged the first information report at 8.45 a.m. which is also 5 kms. Thus this travel of 9 kms. according to the learned counsel for the appellants could not have been traversed by PW-1 between 7.00 a.m. and 8.45 a.m. We are the least impressed by this argument inasmuch as firstly the statement made by PW-1 that when the shots were fired then he fled away towards the village does not amount to admitting that he went back to the village. What the witness intended to say is that he fled in the direction of the village trying to keep a distance away from the assailants, and in such circumstances the argument that PW-1 went to the village and then came back so as to cover 4 kms. of distance is not the case of the prosecution at all. The argument therefore has no legs to stand and the time period between the incident as well as the lodging of the first information report does not in any way create a doubt much less a reasonable doubt so as to construe that this version of the prosecution is in any way incorrect.
The assault and the number of shots fired as well as the injuries from two weapons by two assailants is clearly probable in the given circumstances. The recovery of five used cartridges and the live cartridges at the time of the recovery of the weapons when the accused was arrested with the fire arms on 24.06.2008 was clearly proved by the testimony of the formal witnesses who carried out the recovery upon arrest and merely because the weapons remained in the Malkhana for two months does not in any way establish the planting of the recovery or a tampered ballistic version.
There is yet another aspect about the bodies being thrown into the canal which has to be noticed. The recovery of the bodies from the canal and they having been retrieved from there is also admitted to PW-1 and PW-2 in their subsequent cross-examination on 16.04.2011. Thus learned counsel for the appellants could not successfully dislodge this part of the evidence whereby the accused had attempted to destroy the evidence thereby committing the offence under Section 201 I.P.C.
One of the arguments of Sri Mishra is that no ballistic report of the bullet that was found embedded in the chest of the deceased Ravi Kumar was obtained. The post-mortem report categorically establishes the recovery of that bullet from the chest area of the deceased of the nature and dimension mentioned in the post-mortem report which clearly indicates the existence of a gun shot injury of the nature that could have been caused by the weapon and cartridge used. The absence of a ballistic report would therefore not alter the position in any way on this count.
Having said so it would still be necessary for us to hold that the trial court was right in accepting the prosecution version that was proved beyond reasonable doubt. For this, at this juncture, we may place on record the principles that have been laid down and are to be followed in order to construe as to the meaning of the aforesaid words particularly as to what is a reasonable doubt.
The issue as to the nature of the doubt which an accused can take benefit of has been settled in our criminal jurisprudence by adhering to the age old principle that the benefit can be denied if the prosecution is able to prove its version with proof beyond reasonable doubt. In our Courts, this principle has been explained in several cases and to illustrate one can refer to the decision of the Apex Court in the case of State of U.P. Vs. Pussu 1983 (3) SCC 502 where a caution has been sounded to apply the principle in the following words:-
" The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr should not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author Glanville Williams in "Proof of Guilt" has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted "persons" and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. It is true to say, with viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent." In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic."
In yet another decision of the Apex Court in the case of State of Madhya Pradesh Vs. Dharkole 2004 (13) SCC 308. The opinion expressed was as follows:-
"Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case."
Taking clue from English law, it would be apt to extract the judgment in an appeal before the High Court, Scotland (U.K.) where a three judges Bench in the case of Gordon Armstrong and William Kirkpatrick Vs. Her Majesty's Advocate 2005 HCJAC139 while dealing with the various shades as to what amounted to a reasonable doubt has observed as follows:-
"[1] The appellants were convicted after trial at the High Court in Edinburgh of contraventions of the Misuse of Drugs Act 1971. They have both appealed against conviction. One ground only is before us for our consideration, and this is to the effect that a miscarriage of justice has occurred because the trial judge allegedly misdirected the jury in relation to the question of what amounted to a reasonable doubt.
[2] In the passage in question, the trial judge directed the jury in these terms:
"The standard of proof which the Crown must satisfy is a very high standard. It is proof beyond reasonable doubt. If after considering the evidence against any accused on any charge you have a reasonable doubt about the guilt of that accused on that charge, the benefit of the doubt must be given to the accused and you must acquit him. Equally, of course, if you are satisfied beyond reasonable doubt about the guilt of an accused on any charge it is your duty to find the accused guilty of that charge. What is reasonable doubt? Well, it is not some sort of airy-fairy speculative doubt. It is a doubt which is as a result of your exercising your reasoning faculties on the evidence. I suggest you look at it in this way: supposing you had a very important decision to take in your own affairs, perhaps at home, perhaps at work, something that was going to affect your future. Obviously you would sit down and you would think very carefully what you were going to do. You would weigh the pros and the cons. If having done that you still couldn't make up your mind, you were still left in doubt about what to do, I suggest that would be an example of a reasonable doubt and if you have that sort of doubt about the guilt of any accused on any charge you must acquit him."
[3] Mr Forbes, who appeared for the appellant Gordon Armstrong, relied on what was said in two decisions of this court. In MacDonald v H. M. Advocate 1995 S.C.C.R. 663, in defining "reasonable doubt" the sheriff said inter alia:
"It is the kind of doubt that would make you hesitate and indeed stop doing something. Not just hesitate, as [counsel for the accused] said, but actually not to do something because you decided there was a reasonable doubt about the matter."
In delivering the Opinion of the Court, Lord Justice-Clerk Ross said, at p.671:
"We are satisfied that what the sheriff said in this case in relation to reasonable doubt did amount to a serious misdirection. In McKenzie v H.M. Advocate 1959 J.C. 32 at p.37 Lord Justice-Clerk Thomson stated:
'Most judges give some explanation of what is meant by a reasonable doubt generally by pointing out that a merely speculative or academic doubt is not enough. Others tell the jury that if they have a reasonable doubt on any matter of moment they must give the accused the benefit of doubt. That is a popular way of putting it which most juries are able to understand and to apply. But as we have said the amount of elaboration and emphasis is dictated by the nature of the case and predilection of the individual judge. We add that in our view it is desirable to adhere to far as possible to the traditional formula and to avoid experiments in reformulation.' In our experience, under present-day practice it is common for judges to direct juries that a reasonable doubt is a doubt which would cause them in the conduct of their own affairs to hesitate or pause before taking a decision. Such a direction is a sound direction, but it obviously need not be given in every case because each judge has a discretion as to how he is to direct the jury on the matter of reasonable doubt.
In the present case, however, what the sheriff did was to direct the jury that a doubt which might cause them to hesitate in making a decision in their own affairs would not amount to reasonable doubt. He directed the jury that the doubt would not constitute a reasonable doubt if it merely caused a person to hesitate in making a decision; to be a reasonable doubt it required to be a doubt which in the conduct of their own affairs would cause them to stop doing something.
We are quite satisfied that this was a serious misdirection. Here again, the sheriff has disregarded the well-established rules laid down by this court. Instead of adhering to the traditional formula, he has proceeded to give the jury directions which have had the effect of overstating what is required before a jury can hold that they have a reasonable doubt about the guilt of the accused."
[4] In Buchanan v H M Advocate 1997 S.C.C.R. 441, in directing the jury as to the meaning of reasonable doubt, the sheriff said inter alia:
"[I]t simply means a doubt of substance, in other words, a substantial doubt, the kind of doubt to which you would have regard if you were going to get married, for example, or buy a house, for example, and that doubt dissuaded you from either getting married or from buying a house...".
In delivering the Opinion of the Court, Lord Justice-General Rodger said at pp.442-443:
"In this case the sheriff did not go so far as to tell the jury that a doubt which would merely cause them to hesitate in a matter of importance would not be a reasonable doubt. The Advocate-depute sought to distinguish MacDonald on that ground. We have reached the view, however, that in substance the sheriff in this case gave the jury a similar direction. By telling the members of the jury that reasonable doubt was a doubt which would dissuade them from a course of action, he was by implication telling them that it had to be more than a doubt which would make them hesitate or pause when contemplating that course of action. According to the sheriff's direction it would have to be a doubt which would actually divert them from that course of action. In so directing the jury he overstated the test which they required to apply. Since the direction goes to the heart of the jury's decision-making, the sheriff's misdirection amounts to a miscarriage of justice."
[5] Mr Forbes submitted that the proper interpretation of the trial judge's directions to the jury in the present case was that he was telling them that a reasonable doubt required to be one which would have caused them not only to hesitate, but to stop, and to be dissuaded from a course of action. While he did not take issue with the remainder of the passage quoted above, in which the trial judge said to the jury that in taking an important decision in their own affairs they would sit down, think very carefully what they were going to do and weigh the pros and cons, he submitted that in directing them that if having done that they still could not make up their minds, he would be taken as having meant that they had reached the stage of being dissuaded from the course of action and had therefore stopped.
[6] Mr Brown, who appeared for the appellant William Kirkpatrick, described his submission as "happily brief". He adopted Mr Forbes's submissions. He added that the question was what impression the words used by the trial judge would have made on the jury. The jury were told that if they could not make up their minds, they should not proceed, and this was the same as stopping or being dissuaded.
[7] In our opinion the submissions of counsel for the appellants are without merit. It is the traditional formula that a reasonable doubt is a doubt which would cause the jury in the conduct of their own lives to hesitate or pause before taking a decision. While the trial judge did not use the traditional formula, on a reasonable interpretation of the words which he chose to use the same concept was intended to be conveyed to the jury and would reasonably have been understood by them as such. In giving, as an example of a reasonable doubt, one where "you still couldn't make up your mind, you were still left in doubt about what to do", the trial judge was not speaking of stopping or being dissuaded or diverted from a possible course of action. On the contrary, someone who stops or is dissuaded or diverted has made up his mind not to pursue the course of action, whereas someone who has still not been able to make up his mind remains in a state where he could properly be described as hesitating or pausing. The words chosen by the trial judge, accordingly, conveyed the same concept to the jury as would have been conveyed by use of the traditional formula and did not amount to a misdirection. These appeals are accordingly refused.
[8] We would, however, add this. In his supplementary report the trial judge states:
"[T]he form of direction on reasonable doubt now complained against is one which I have given in jury trials for over thirty years. This is the first time its correctness has been questioned."
The desirability of adherence to the traditional formula, which is not that used by the trial judge, has repeatedly been emphasised in decisions of this court. In addition to the above cases, reference may also be made to Stillie v H.M. Advocate 1990 S.C.C.R. 719 and, most recently, Dickson v H.M. Advocate 2005 S.C.C.R. 344. Substantial departures from, or unnecessary elaborations of, the traditional formula are liable to generate appeals, whether with or, as in the present case, without merit."
We have however come across one of the most simplified versions to understand what a reasonable doubt is from the summing up of a criminal trial by Hon'ble Justice Humphreys in the case of Alma Victoria Rattenbury and George Percy Stoner that has been reproduced in a book edited by F. Tennyson Jesse published by William Hodge & Company, Ltd., London. The summing up speech by the Hon'ble Judge while instructing the Jury is an illustration on this issue and the same occurring at page 250 of the said book is extracted hereinunder:-
"But it is the practice to say to juries, " Remember that the prosecution must prove the case beyond any reasonable doubt." that means, I suppose, that if in considering the whole of the matter you say now against this person "There is a case of the greatest suspicion, on the whole I think this accused person did this or that thing which he is charged with, but I do not know, I am not quite sure about it" - that means a reasonable doubt. The accent on the word reasonable does not mean to avoid what must always be a very unpleasant thing for a citizen to have to do, join in a verdict of guilty on a capital charge. It does not mean that you are entitled to conjure up fanciful doubts or say, "After all nobody saw this thing done, therefore we cannot say it was done," or anything of that sort. It only means dealing with the matter in the same way that you would deal with any important matter in your own life and your own affairs. If you say, " I know, I can see, I understand, the evidence shows me here the truth is this," act upon it. If you say, "Well, the matter is left in some doubt, I am not sure what is the real truth about the matter," then you solve the difficulty by saying "The prosecution have not proved the case beyond all reasonable doubt and we return a verdict of not guilty."
The question as to what caution should be taken while applying the aforesaid principle of the rule of benefit of doubt in order to ascertain as to whether the prosecution has proved the case beyond a reasonable doubt or not, it would be apt to extract the following paragraphs of the judgment of the Apex Court in the case of Gangadhar Behera and others Vs. State of Orissa 2002 (8) SCC 381 (paragraphs no. 17 to 19).
17. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. [See: Gurbachan Singh v. Satpal Singh and Others [AIR 1990 SC 209]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava [AIR 1992 SC 840]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State (Delhi Admn.) ( AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation.
"[A] judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution ( 1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh ( AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
18. In matters such as this, it is appropriate to recall the observations of this Court in Shivaji Sahebrao Bobade v. State of Maharashtra [1974 (1) SCR 489 (492-493)] :
"......The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt........The evil of acquitting a guilty person light- heartedly as a learned author Glanville Williams in 'Proof of Guilt' has sapiently observed, goes much beyond the simple fact that, just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltness.... 'a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent.....' "
19. The position was again illuminatingly highlighted in State of U.P. v. Krishna Gopal (AIR 1988 SC 2154).
The trial court has discussed the entire evidence in detail and we have already recorded our reasons hereinabove for not accepting the stand taken on behalf of the appellants. We clearly find that the date, the time, the place and the topography of the occurrence stood established by the ocular testimony as discussed hereinabove. It is for this reason that the accused/appellants appear to have attempted a chance of dislodging the prosecution version after two years through the distorted testimony of PW-1 and PW-2 on 16.04.2011. The recovery of the weapons, the utilization thereof and the manner of assault by the appellants all stood corroborated with each other and fortified by the post-mortem report. The inquest proceedings also do not admit of any doubt. In the wake of what has been considered and recorded by the trial court as well as by us hereinabove the defence on behalf of the appellants has not been able to create any reasonable doubt so as to extend any such benefit to the appellants applying the principles referred to hereinabove and keeping in view the facts of the present case. Consequently for all the reasons above we find no ground to reverse the judgment of the trial court which is hereby confirmed.
The appeal lacks merit and is accordingly rejected.
Order Date :-07.02.2018 R./S Chaurasia/Arif