Allahabad High Court
Lal Bahadur vs State on 18 September, 2019
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No.48 Criminal Appeal No. 870 of 1987 1. Lal Bahadur 2. Jai Dutt 3. Sher Singh 4. Shashtri ---- Appellants Vs. State of U.P. ---- Respondent For Appellants : Shri Gulab Chand, Advocate for appellant Jai Dutt. Shri Surendra Singh, Advocate for appellant Shashtri. For Respondent/State : Shri Amit Sinha, Addl. Govt. Advocate Shri Ravindra Kumar for Objector, Raman Babu. Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Pritinker Diwaker, J (18.09.2019)
1. This appeal arises out of impugned judgement and order dated 24.3.1987 passed by Sessions Judge, Etawah in Sessions Trial No. 4 of 1985 convicting the accused persons, namely, Lal Bahadur, Sher Singh and Shashtri under Section 302 read with Section 34 of IPC and accused Jai Dutt under Section 302 of IPC and sentencing them to undergo life imprisonment.
2. As per prosecution case, complainant Bhojraj hired a tractor of one Sharma for ploughing his agricultural field. There was some dispute regarding payment to the owner of said tractor and a complaint was made by the owner of the tractor to Pulandar Singh who allegedly abused the deceased. After about 4-5 days of the above incident when the deceased was working in his agricultural field, all the four accused reached there and started abusing him. It is further alleged that Ram Autar (decease) was beaten by the accused persons. Accused Jai Dutt was having 'Moosal' (pestle) with him, accused Lal Bahadur was having spear, whereas the remaining two accused Sher Singh and Shashtri were having clubs with them. The incident of 'marpeet' was witnessed by PW-1, Bhoj Raj and PW-2 Sone Lal. The incident occurred on 20.12.1983 at 7:00 A.M. and the matter was reported to the police at 10:15 A.M. by PW-1, Bhoj Raj against all the accused persons. Based on this report, offence under Sections 323, 504, 506 of IPC was registered against all the accused persons. Injured Ram Autar was immediately shifted to a hospital at Lucknow where, he succumbed to his injuries on 26.12.1983 at about 9:45 p.m.
3. Inquest on the dead body of the deceased was conducted on 27.12.1983 vide Ex. Ka.1 and body was sent for postmortem which was conducted on the same day vide Ex. Ka. 12 by PW-8, Dr. P.R Mishra.
4. As per postmortem report, following injuries were found on the body of the deceased:
(I) Scabbed abraded contusion 8 cm x 6 cm on the left side of head 5 cm above in left eye brow.
(II) Scabbed abraded contusion 9 cm x 5 cm on the left scapula region.
(III) Scabbed abraded contusion 6 cm x 5 cm on the left side of buttock.
(IV) Abraded contusion 4 cm x 9 cm on the 5th lumber spine.
(V) Infected wound 1.5 cm x 0.5 cm muscle deep on the frond & mid of left leg.
(VI) Multiple scabbed abraded contusion in an area 18 cm x 2 cm on the upper half of left leg.
(VII) Scabbed abrasion on an area of 22 cm x 2 cm on the front of right leg.
The cause of death of the deceased was due to comma as a result of head injury.
5. Initially charge was framed against all the accused persons under Section 302/34 of IPC but later amended charge was framed against accused Jai Dutt, under Section 302 of IPC and against the remaining accused persons, it was framed under Section 302/34 of IPC.
6. So as to hold accused persons guilty, prosecution has examined nine witnesses. Statements of the accused-appellants were also recorded under Section 313 of Cr.P.C. in which, they pleaded their innocence and false implication.
7. By the impugned judgment, the trial Judge has convicted all the four accused persons under Section 302/34 and 302 of IPC and sentenced them as mentioned in paragraph no. 1 of this judgment. Hence this appeal.
8. During pendency of present appeal, accused-appellant Lal Bahadur has expired and, therefore, appeal in his respect is abated. Appeal in respect of accused-appellant Sher Singh has already been abated on account of his death. The present appeal now confines only in respect of accused Jai Dutt and Shashtri.
9. Learned counsel for the appellants submits:
(I) that PW-1, Bhoj Raj and PW-2, Sone Lal have not seen the actual occurrence, they are not eye-witnesses to the incident and are planted witnesses.
(II) that both PW-1 and PW-2 are interested witnesses and, therefore, they have falsely implicated the appellants.
(III) that prosecution is not sure about the place of occurrence and three different places have been shown as place of occurrence.
(IV) that the deceased died because of injury no.1 sustained by him on his head but no fracture on the head was noticed by the autopsy surgeon.
(V) that only fracture of fibula bone has been found by the radiologist PW-7, Dr. R.K. Chaudhary vide Ex. Ka-11.
(VI) that deceased died after six days of the incident and, therefore, considering the injuries sustained by him, even if the entire prosecution case is taken as it is, at best, offence under Section 326 of IPC is made out against the accused persons.
10. On the other hand, supporting the impugned judgment, it has been argued by the State Counsel that the conviction of the appellants is in accordance with law and there is no infirmity in the same. It has been further argued that when the incident occurred in the presence of family members alone, question of examining any independent witness does not arise and no fault can be attributed to the prosecution.
11. We have heard learned counsel for the parties and perused the record.
12. PW-1, Bhoj Raj is the informant and father of the deceased. While supporting the prosecution case, he has stated that he had taken the services of one Sharma for ploughing his agricultural field with his tractor and there was some dispute in payment. He states that brother of accused-appellant Sher Singh, namely, Pulandar intervened in the matter and had threatened his son Ram Autar and on the date of incident, all the accused persons carrying weapons in their hands reached to the place of occurrence and caused injuries to Ram Autar. He has clarified that accused Lal Bahadur was having spear, Jai Dutt was having Moosal (pestle), whereas Sher Singh and Shashtri were carrying clubs in their hands. In the cross-examination, this witness remained firm and nothing could be elicited from him to doubt his credibility.
13. PW-2, Sone Lal is the other eye-witness to the incident and his statement is almost identical to that of PW-1, Bhoj Raj. He too has categorically stated that all the accused persons caused injuries to Ram Autar and Ram Autar was taken to a hospital at Lucknow where after about six days, he succumbed to his injuries.
14. PW-3, Kshetra Pal Singh (Head Constable), recorded the FIR.
15. PW-4, Dr. P.C. Dubey, has proved the admission of injured ram Autar in a hospital at Lucknow.
16. PW-5, S.I., Kashi Ram Gupta, conducted inquest.
17. PW-6, Dr. B.L. Katiyar, did MLC of injured Ram Autar vide Ex. Ka.10 at PHC Bidhuna and has noticed following nine injuries:
(I) Lacerated wound 1.5 cm x 0.2 cm x 0.2 cm on the left side of head 7 cm above the left ear, margins irregular, direction oblique & downwards.
(II) Red contusion 8 cm x 6 cm on the back of upper arm, 10 cm above the elbow joint.
(III) Red contusion 4 cm x 2 cm on the back of left forearm, 8 cm below the elbow joint.
(IV) Red contusion 6 cm x 6 cm on the dorsal aspect of left hand 4 cm below the wrist joint.
(V) Abrasion 3 cm x 1.5 cm on the back of right elbow joint.
(VI) An incised wound 1 cm x 0.2 cm x 0.3 cm on the front of left leg, 23 cm below the knee joint, margins clean cut, direction oblique & downwards, blood clotted.
(VII) An incised wound 2 cm x 0.5 cm x 0.2 cm on the left leg front side, 5 cm below the injury no. 6, margins clean cut, direction oblique & downwards, blood clotted.
(VIII) A traumatic swelling 16 cm x 10 cm on the left ankle joint, deformity & tenderness present, movement restricted, advised X-ray A P & L view.
(IX) An incised wound 1 cm x 0.2 cm x 0.2 cm on the front of right leg 4 cm below the knee joint, margins clean cut, direction oblique & downwards, blood clotted.
18. PW-7, Dr. R.K. Chaudhary, is a radiologist who proved the report Ex. Ka. 11 and a fracture of fibula bone was found by him.
19. PW-8, Dr. P.R. Mishra, conducted postmortem on the body of the deceased. According to him except injury no.1, none of the injury was found on the vital part of the body of deceased. He further states that he has not found any fracture on the head of the deceased.
20. PW-9, S.I. Govind Singh, is an Investigating Officer, has duly supported the prosecution case.
21. Close scrutiny of the evidence makes it clear that on 20.12.1983 in the evening, four accused persons have entered the field of the complainant and started abusing deceased Ram Autar. All the accused persons were having different weapons with them, as mentioned above in their evidence. All of them started beating the deceased resulting number of injuries on his body. Ram Autar was immediately taken to a hospital and later considering his serious condition, he was taken to hospital at Lucknow where, after about six days, he succumbed to his injuries on 26.12.1983. In the postmortem, only one head injury has been found by the autopsy surgeon but there was no fracture on his head. The incident has been witnessed by PW-1, Bhoj Raj and PW-2, Sone Lal and both these witnesses have duly supported the prosecution case.
22. We find no force in the argument of the defence that only interested witnesses have been examined. Law in this respect is very clear.
It is well settled principle of law that the evidence of an interested witness should not be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. All that the Courts required as a rule of prudence, not as a rule of law, was that the evidence of such witness should be scrutinized with a little care. It has to be realized that related and interested witness would be the last persons to screen the real culprits and falsely substitute innocent ones in their places. Indeed there may be circumstances where only interested evidence may be available and no other, e.g. when an occurrence takes place at midnight in the house when the only witnesses who could see the occurrence may be the family members. In such cases, it would not be proper to insist that the evidence of the family members should be disbelieved merely because of their interestedness. But once such witness was scrutinized with a little care and the Court was satisfied that the evidence of the interested witness have a ring of truth such evidence could be relied upon even without corroboration. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai vs. State of Bihar (2001) 7 SCC 318; State of U.P. vs. Jagdeo Singh (2003) 1 SCC 456; Bhagalool Lodh & Anr. vs. State of U.P. (2011) 13 SCC 206; Dahari & Ors. vs. State of U.P. (2012) 10 SCC 256; Raju @ Balachandran & Ors. vs. State of Tamil Nadu (2012) 12 SCC 701; Gangabhavani vs. Rayapati Venkat Reddy & Ors. (2013) 15 SCC 298; Jodhan vs. State of M.P. (2015) 11 SCC 52).
23. The Supreme Court in the matter of Bur Singh and Anr. vs. State of Punjab, (2008) 16 SCC 65 has held that merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. Further, the Supreme Court in the matter of Sudhakar vs. State, AIR 2018 SC 1372 and Ganapathi vs. State of Tamil Nadu, AIR 2018 SC 1635 relying in its earlier judgments held as under:
"18. Then, next comes the question 'what is the difference between a related witness and an interested witness?. The plea of "interested witness", "related witness" has been succinctly explained by this Court that "related" is not equivalent to "interested". The witness may be called "interested" only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished. In this case at hand PW 1 and 5 were not only related witness, but also 'interested witness' as they had pecuniary interest in getting the accused petitioner punished. [refer State of U.P. v. Kishanpal and Ors., (2008) 16 SCC 73] : (2008 AIR SCW 6322). As the prosecution has relied upon the evidence of interested witnesses, it would be prudent in the facts and circumstances of this case to be cautious while analyzing such evidence. It may be noted that other than these witnesses, there are no independent witnesses available to support the case of the prosecution."
Relationship is not a factor to affect credibility of a witness. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. A witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive. A close relative cannot be characterized as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the 'sole testimony of such witness. (See- Harbans Kaur and another vs. State of Haryana, 2005 AIR SCW 2074; Namdeo vs. State of Maharashtra, 2007 AIR SCW 1835; Sonelal vs. State of M.P., 2008 AIR SCW 7988; and Dharnidhar vs. State of Uttar Pradesh and Others & other connected appeals, (2010) 7 SCC 759).
24. PW-1, Bhoj Raj and PW-2, Sone Lal appear to be wholly trustworthy and we have no reason to disbelieve their statements. Considering their statements, which has been duly supported by the medical and postmortem report of the deceased, complicity of the appellants in commission of offence has been duly proved by the prosecution.
25. The next question which arises for the consideration of this Court is as to what offence has been committed by the accused persons. Both the accused-appellants Jai Dutt and Shashtri have actively participated in the 'marpeet' and caused injuries to the deceased.
26. Considering all the aspects of the case, in particular, the fact that the deceased died after six days of the incident, no fracture of head was found, we are of the considered view that the act of the appellants would fall under Section 326 of IPC and not under Section 302/34 of IPC or 302 of IPC. Accordingly, we hold that appellants Jai Dutt and Shahstri are liable to be convicted under Section 326 of IPC.
27. The next question which arises for consideration of this Court is as to what would be appropriate sentence to be imposed upon the accused-appellants. The incident occurred about 36 years back and therefore, we are of the view that jail sentence of two years would be sufficient to meet the ends of justice and we order accordingly. In addition accused-appellants Jai Dutt and Shashtri are directed to pay monetary compensation of Rs. 1 lakh each to the objector Raman Babu.
28. Taking cumulative effect of the evidence and the facts, and further considering the judgment of the Apex Court in Ankush Shivaji Gaikwad vs. State of Maharashtra, (2013) 6 SCC 770, we are of the view that accused-appellants Jai Dutt and Shashtri are liable to compensate to objector, Raman Babu by paying a compensation of Rs. 2,00,000/- under Section 357 of Cr.P.C. Accordingly, during this period of two years, accused-appellants Jai Dutt and Shashtri are directed to deposit Rs. 2,00,000/- before the trial court and, in turn, the trial court shall disburse the said amount to the objector, Raman Babu. In case, accused-appellants fail to deposit the compensation within stipulated time, they shall undergo the additional jail sentence of one year and the court below shall proceed against them in the light of judgment of the Apex Court reported in Kumaran Vs State of Kerala and another (2017) 7 SCC 471.
29. Accused-appellants Jai Dutt and Shashtri are reported to be on bail. Their bail bonds stand cancelled and they be taken into custody immediately for serving the remaining sentence.
30. The appeal is partly allowed.
Dated: 18.09.2019
AKK/A. Tripathi
(Raj Beer Singh, J) (Pritinker Diwaker, J)