Allahabad High Court
Jagnnath And Others vs State Of U.P. on 13 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 246
Bench: B. Amit Sthalekar, Ali Zamin
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgement Reserved on 14.11.2019 Judgement Delivered on 13.02.2020 Court No. - 45 Case :- CRIMINAL APPEAL No. - 442 of 2001 Appellant :- Jagnnath And Others Respondent :- State of U.P. Counsel for Appellant :- R.K. Tiwari,Anshul Tiwari,Ghan Shyam Das,Sanjeev Kumar Yadav Counsel for Respondent :- Govt. Advocate Hon'ble B. Amit Sthalekar,J.
Hon'ble Ali Zamin,J.
(Per : Ali Zamin, J.)
1. Heard Sri Kamal Krishna, learned Senior Counsel assisted by Sri Ghan Shyam Das and Sri Sanjeev Kumar Yadav, learned counsel for the appellants and Sri Ajeet Ray, learned A.G.A. for the State.
2. This appeal has been preferred against the judgement and order dated 31.01.2001 passed in Session Trial No.481/90, arising out of Case Crime No.242 of 1990 by which learned Additional Sessions Judge, IVth (Room No.4), Allahabad, convicting the appellants, under Section 302 I.P.C. read with Section 34 I.P.C. has sentenced them to life imprisonment.
3. According to prosecution version Ram Harsh had dismantled the Medh of the informant Jagannath in the evening a day before the incident on 08.10.1990 and his son Santosh Kumar had stayed on the filed to mend the Medh when Ram Harsh his son Jagannath and Nanka @ Ram Swaroop had an altercation with his son. On that day his son came to his house and on 08.10.1990 at 6:00 a.m. in the morning when his son Santosh Kumar had gone towards west side of the village to respond the call of nature, Jagannath having licensee gun of his father, Nanka @ Ram Swaroop and Jagatpal son of Ram Padarath Patel having country-made pistol of 315 bore went to his son and surrounding him, fired shot at him due to the incident of the previous day on account of which he died on the spot. The incident has been witnessed by Babu Lal son of Ram Bharosh Patel, Ram Jatan son of Ram Garib Patel, Ram Newaj son of Mahajan Patel, resident of Kashimpur Juda @ Moosepur, Police Station Nawabganj, District Allahabad.
4. Informant Jagannath got scribed the report (Ext.Ka-1) of the incident from Durga Prasad and lodged report to the police station Nawabganj. On the basis of written report Ext.Ka-1. Chik F.I.R. Ext.Ka-12 under Section 302 I.P.C. was registered on 08.10.1990 at 7:45 and investigation of the case was entrusted to S.H.O., A.S. Yadav, who reached the spot and prepared inquest memo (Ext.Ka-2) as well as challan lash (Ext.Ka-3), letter to R.I. (Ext.Ka-4), letter to C.M.O. (Ext.Ka-5), specimen seal (Ext.Ka-6), photo lash (Ext.Ka-7) and dispatched the dead body for post-mortem.
5. Dr. N.P. Singh (P.W.4) conducted autopsy on the dead body and prepared report (Ext.Ka-11). According to the post-mortem following injuries were found on the dead body :-
1. Fire arm wound of entry middle of the nose 1 x 1 c.m.
2. Fire arm wound of entry left side of neck 1 x 1 c.m., 2 c.m. below the middle of mandible.
3. Fire arm wound of entry 1 x 1 c.m. left side of scapula clavicle.
4. Fire arm wound of entry 1 x 1 c.m. left arm 2 c.m. below the left acromion process size 1 c.m. x 1 c.m.
5. Fire arm wound of entry 1 x 1 c.m. on left side chest wall, 2 c.m. medial to the left nipple blackening present.
6. Fire arm injury 1 x 1 c.m. on the right side chest wall, 5 c.m. below right nipple 1 x 1 c.m.
7. Fire arm wound of exit 2 c.m. x 2 c.m. over left scapular region 1 c.m. medial to the medial both of scapula.
8. Fire arm wound of exit 2 c.m. x 2 c.m. in middle of biter scapular region of the upper part.
Four medium size pellets recovered from thoracic cavity.
Cause of death was found shock due to excess bleeding and death occurred 12 hours earlier due to the ante-mortem injuries caused.
6. Investigating Officer also prepared spot map Ext.Ka-9, taking into possession two empty cartridges 12 bore from the spot, plain earth as well as blood stained earth from the field of Pandit Budh Narayan prepared recovery memo Ext.Ka-8. After completing the investigation, he submitted charge sheet (Ext.Ka-10), under Sections 302 I.P.C. against the accused-appellants before the court of C.J.M.
7. Learned C.J.M., Allahabad committed accused to the court of session for trial where Case Crime No.342 of 1990, under Section 302 I.P.C. was registered as Session Trial No.481 of 1990, wherefrom the case was transferred to the court of Second Additional Session Judge, Allahabad, who framed charge under Section 302 I.P.C. read with Section 34 I.P.C. against the accused persons, who denied the charge and claimed trial.
8. Prosecution to prove charge against the accused persons produced five witnesses. P.W.1 Jagannath is informant, P.W.2 Babu Lal is a witness of fact, P.W.3 Anwar Singh Yadav Investigating Officer of the case, P.W.4 Dr. N.P. Singh conducted post-mortem and P.W.5 Indra Bahadur Singh scribed the F.I.R. (Ext.Ka-13) and G.D. (Ext.Ka14), are the formal witnesses. After examination of prosecution witnesses, statement of the accused persons were recorded under Section 313 Cr.P.C. in which accused Jagdish Pal has stated that due to enmity the case proceeded against him and accused Jagannath and Nanka have stated that the family of the informant had forcefully taken possession of Gram Sabha land; their father Ram Harsh was pradhan, who had filed case against him. The deceased was a man of criminal antecedent. The incident occurred at another place and they have been falsely implicated in the present case. The accused persons led no evidence in their defence.
9. After hearing the parties and perusal of the record, learned Additional Sessions Judge, IVth (Room No.4), Allahabad passed the impugned judgement and order, hence this appeal.
10. Learned counsel for the appellants submits that salient features; like, informant Jagannath has seen the incident, deceased he had gone to answer call of nature; the incident took place in the field of Budh Narayan; 5-6 shots were fired upon the deceased, who told him about the incident, are absent. Per contra learned AGA submits that FIR is not an encyclopaedia and every detail is not necessary to be mentioned in the FIR.
11. In Arumugam Solathirayar vs. Ponnalagu Pandarar and others, 1957 SCC online Madras 172, Hon'ble High Court has held that the fact that in the F.I.R, the name of one accused is not mentioned or the names of some witnesses are not mentioned is no ground for disbelieving the prosecution story and acquitting the accused whose names are mentioned in the F.I.R. and disbelieving the witnesses whose names are mentioned in the F.I.R. The F.I.R is not an encyclopedia. It is not the beginning and end of every case, it is only a complaint to set the law into motion. It is only at the investigation stage that all the details can be gathered and filled up.
12. In Ramji Singh and others vs. State of U.P. 2019 SCC online SC Hon'ble Supreme Court 1597, Hon'ble Supreme Court has held that an F.I.R is not supposed to be an encyclopedia detailing all facts in extenso.
13. On consideration of the law laid down by the Madras High Court and Hon'ble Supreme Court, we are of the view that the contention of the learned counsel for the appellants that salient features like, informant Jagannath has seen the incident, deceased had gone to answer call of nature, incident took place in the field of Budh Narayan, 5-6 shots were fired upon the deceased and the question as to who told him about the incident are absent in the F.I.R. is without force.
14. Learned counsel further submits that there is sharp contradiction in the statement of P.W.1 Jagannath informant and P.W.2 Babu Lal. P.W.1 Jagannath states that the incident has taken place in the field of Budh Narayan whereas Babu Lal states that the incident has taken place in the field of Radhey Shyam. It is not the case of prosecution that the deceased Santosh after receiving injuries in the field of Budh Narayan ran towards the field of Radhey Shyam. Evidence of P.W.1, on page 22 in the third paragraph of paper-book is that after receiving the injuries he fell down in the field of Budh Narayan. He also submits that in order to establish the place of occurrence bloodstained and plain earth is always taken into possession by the Investigating Officer and are then sent to the serologist but in the present case the Investigating Officer PW-3 Anwar Singh Yadav admitted on page 32 of the paper-book that he has not sent the bloodstained and plain earth to the serologist. A perusal of the site plan would show that it does not contain recital to the effect that any blood was found at the place of occurrence and on this ground, he submits that the place of occurrence is not proved. In support of his contention he has relied on the judgements of Syed Ibrahim vs. State of A.P., (2006) 10 SCC 601 and Gautam Chaturvedi vs. State of U.P., 2019 SCC Online All 4307.
15. Per contra learned AGA submits that from the prosecution evidence it is proved that the place of incident is the field of Budh Narayan. Investigating Officer took bloodstained and plain earth from the field of Budh Narayan which is established from its recovery memo Ext.Ka-8 proved by him. Although Investigating Officer has committed a lapse in not sending the bloodstained and plain earth to the serologist and he also did not mention in the site plan wherefrom the bloodstained and plain earth were taken but on the basis of these lapses on the part of Investigating Officer the prosecution case cannot be thrown out as held by Hob'ble Supreme Court in State of Karnatka v. Suvarnamma and another, (2015) 1 SCC 323.
16. P.W.1 Jagannath has stated that his son was going to answer the call of nature and when he reached the field of Budh Narayan, the accused Jagannath having licensee gun of his father, Jagatpal and Nanka @ Ram Swaroop having country-made pistol came and surrounding his son killed by firing 5-6 shots at him. From his cross-examination by defence nothing has been extracted, so that, any adverse inference may be drawn that the incident did not occur in the field of Budh Narayan. P.W.2 Babu Lal has also stated that Santosh Kumar son of Jagannath was murdered on 08.10.1990. It was 6:00 a.m. of the morning, he was returning after answering the call of nature, when he saw that the accused persons killed Santosh Kumar in the field of Budh Narayan. In the hand of Jagannath there was a gun and in the hand of Nanka and Jagannath country-made pistol and all the three accused fired shots from their arms. At page 28 of the paper book, in cross-examination this witness has stated that towards south west is that field of Radhey Shyam where murder took place. On the basis of this very statement learned counsel for the appellants has emphasized that the statements of P.W.1 Jagannath and P.W.2 Babu Lal are contradictory to each other but in our opinion the above statement of P.W.2 Babu Lal does not connote that the incident took place in the field of Radhey Shyam. It appears that the question was tactfully put to the witness in such a manner, so that, such inference can be drawn from the reply of the witness. The question might have been put to the witness whether there is field of Radhey Shyam in the south west of the village where murder took place and witness then replied as mentioned above. P.W.1 Anwar Singh Yadav, Investigating Officer has proved the spot map as Ext.Ka-9 in which it is mentioned that ''A' is the place where murder took place and this is shown as field of Budh Narayan. In cross-examination the Investigating Officer has firmly stated that the murder took place in the field of Budh Narayan and this field will be towards west of the village. Thus we find that there is consistency in the prosecution evidence of P.W.1 Jagnnath, P.W.2 Babu Lal and Investigating Officer P.W.3 Anwar Singh Yadav regarding the place of incident to be field of Budh Narayan.
17. It is true that in spot map Ext.Ka-9, the Investigating Officer has not mentioned the place from where he took bloodstained and plain earth but in view of the consistent prosecution evidence as discussed above regarding place of incident to be field of Budh Narayan and recovery memo Ext.Ka-2 of bloodstained and plain earth as well as two empty cartridges proved by him, in which it is clearly mentioned that the bloodstained and plain earth were taken into possession from the place of incident (field of Pandit Budh Narayan).
18. In State of Karnataka vs. Suvarnamma and another supra referred by learned AGA, Hon'ble Supreme Court has considered its own opinion in para 12.5 of the judgement held in State of UP vs. M.K. Anthony (1985) 1 SCC 505 that minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the Investigating Officer not going to the root of matter would not ordinarily permit rejection of the evidence.
19. The Investigating Officer has admitted in cross examination that he did not send bloodstained and plain earth to the expert. He also did not mention in the site plan the place from where he took the bloodstained and plain earth which are lapses on the part of the Investigating Officer. However, since in aforesaid discussion we have found that regarding place of incident (field of Budh Narayan) prosecution evidence is consistent, therefore the above lapses committed by the Investigating Officer are in the category of minor discrepancies, which do not go to the root of the matter. In view of consistency in prosecution evidence in the instant case and keeping in mind the opinion of Hon'ble Supreme Court in State of UP vs. M.K. Anthony considered in State of Karnataka vs. Suvarnamma and another supra, the above lapses committed by investigating officer will not affect the prosecution case.
20. In the case of Syed Ibrahim vs. State of A.P. (supra), referred by learned counsel for the appellants, P.W.1 had indicated four different places to be the place of occurrence. The Hon'ble Supreme Court held that when the place of occurrence itself has not been established, it would not be proper to accept the prosecution version.
21. In Gautam Chaturvedi vs. State of U.P. (supra), as per F.I.R. the incident occurred when P.W.1, his nephew P.W.4 Amit Gupta and the deceased were talking amongst themselves standing in the lane outside their house, and the deceased parted company to leave for some place where he had to go. He had reached a point in front of the house of Rajendra, bearing premises no.2/32, where the appellant arrived in an inebriated condition and after a sharp exchange of words between appellant and the deceased, the appellant stabbed him in the witnesses' presence but in his dock evidence, he stated that the appellant arrived at the entrance to the deceased's home, premises no.2/123, where after some exchange of words, the appellant stabbed the deceased. Therefore, it was held that prosecution has not been able to formally establish the place of occurrence.
22. In the instant case, prosecution evidence is consistent with regard to place of incident, the field of Budh Narayan, while in the referred cases, place of incident was not consistent. Therefore, on the basis of the referred cases, no benefit can be given to the appellants.
23. In view of the above discussion, from the evidences on record as discussed above place of incident is proved to be the field of Budh Narayan, accordingly, there is no substance in the contention of the learned counsel for the appellants that statement of P.W.1 Jagannath and P.W.2 Babu Lal are contradictory to each other that there is no mention of taking bloodstained and plain earth in the site plan and that Investigating Officer did not send the bloodstained and plain earth to serologist, therefore place of incident is not proved.
24. As per P.W.4 Dr. N.P. Singh and post-mortem report Ext.Ka-11 proved by him blackening in injury nos.1, 2 and 5 have been found and according to P.W.3 Anwar Singh Yadav as well as spot map Ext.ka-9 proved by him the deceased had received injuries on point A and the accused had fired from point B. Distance between A and B is 10 feet therefore learned counsel for the appellants submits that if the injuries were caused from a distance of 10 feet then blackening in the injuries would not occur.
25. In Ramji Singh and others vs. State of U.P. 2019 SCC Online SC 1597, Hon'ble Supreme Court has held in para 17 of the judgment that a site plan only gives a general idea and is not a true scale map. In para 17 of the judgment it has been also held that it would not be possible for any witness to exactly state who was at which place.
26. In the instant case the witnesses have not stated from which place the accused persons fired shots upon the deceased. In view of the statement of witnesses in the instant case that all the accused persons fired upon the deceased by their fire arms, as well as opinion of Hon'ble Supreme Court held in Ramji Singh and others vs. State of U.P. (supra) on the basis of distance mentioned of the deceased and accused in the site plan and blackening found in the injuries no. 1, 2 and 5 to the deceased the prosecution case cannot be doubted. Accordingly we find no substance in the contention of the learned counsel of appellants.
27. Learned counsel for the appellants also submits that according to post mortem report injuries of same dimension 1 cm x 1 cm have been found, therefore, it cannot be conceived that all the three assailants had a weapon of the same bore. Per contra learned AGA submits that according to prosecution a gun and two countrymade pistols were used in the incident and as per recovery memo Ext.Ka-8 two empty cartridges of 12 bore were taken into possession and cartridge of 12 bore can be used in country made pistol as well as gun both.
28. According to the written report Ext.Ka-1 Jagnnath having licensee gun of his father, Nanka alias Ramswaroop and Jagatpal other accused having country made pistol of 315 bore went to the deceased and shot him. P.W.1 Jagnnath as well as P.W.2 Babu Lal has stated that Jagnnath had a gun, Nanka and Jagat Pal had Tammancha in their hand and they fired bullets from their arm. In cross-examination no question has been put by defence on this point, therefore, statement of both witnesses in this regard is uncontroverted, hence we have no reason to disbelieve the prosecution version regarding use of aforesaid arms in the incident by the accused persons. As per recovery memo Ext.Ka-8 two empty cartridges of 12 bores were recovered from the place of incident. As per 24th Edition Reprint 2012 page 535 of Modi Medical Jurisprudence and Toxicology improvised or country made firearms made out of steel tubes are crude, mostly smooth, 12 bored unlicensed weapons which are often made by criminals in India. In guns as well as country made pistols, 12 bore cartridges are used. Although in the written report it has been mentioned that Jagatpal had country made pistol of 315 bore which may be a wrong identikit on the basis of assumption only which cannot affect the prosecution case, since it is the consistent prosecution case that a gun and two countrymade pistols were used in the incident, 12 bore empty cartridges were also recovered from the spot and 12 bore cartridges can be used by countrymade pistol and gun both, therefore, injury of same dimension is possible. In view of the above, contention of the learned counsel for the appellant is misconceived that injuries of same dimensions have been found therefore it cannot be conceived that all the assailants had a weapon of same bore.
29. Next submission of learned counsel for the appellants is that as per evidence adduced during trial the deceased was surrounded by assailants and shots were fired upon him. Post-mortem report shows that most of the injuries are on the left of the deceased which are not possible if the incident was caused surrounding the deceased, therefore presence of P.W.1 Jagnnath and P.W.2 Babu Lal at the place of occurrence is doubtful. Per contra learned AGA submits that surrounding doesn't mean that deceased was encircled and shots were fired from all sides.
30. In Ext.Ka-1 it is mentioned that accused persons shot the deceased surrounded the deceased and shot him. P.W.1 Jagnnath has also deposed that the accused had surrounded the deceased and shot him. As per post mortem report Ext.Ka-11 on the person of the deceased eight injuries in total were found among which injury no. 7 and 8 are exit injuries. Injury no. 1 is on the middle of nose; injuries no. 2, 3, 4, 5 are towards left side of neck, scapula, acromion process and chest wall respectively. It appears that injury no. 7 is the corresponding injury of injury no. 5 as injury no. 5 is on the left side chest wall 2 cm medial to left nipple which have been caused from the front side that is why injury no. 7 is the exit wound over left scapular region. In the spot map Ext.Ka-9 the location of accused persons at the time of incident has not been disclosed. In cross-examination also in this regard no question has been put to P.W.1 Jagnnath and P.W.2 Babu Lal by the defence. As per prosecution version the incident was caused at the time of the deceased going to answer the call of nature. In such a situation it is possible that while the deceased was going, the accused persons coming in front of the deceased fired upon him. In the circumstance and evidence available on record it cannot be gathered that the incident was caused by the accused persons encircling the deceased. In view of the above, in the present case surrounding does not connote that incident was caused by the accused persons encircling the deceased and thereafter fired shots upon him. Accordingly we find no force in the contention of the learned counsel of the appellant that presence of P.W.1 Jagnnath and P.W.2 Babu Lal at the place of occurrence is doubtful.
31. Learned counsel for the appellant on the basis of statement of P.W.1 Jagnnath at page 18 of the paper book that he is not able to remember whether the police personnel prepared the inquest memo at the mortuary or not and obtained signature of panches or not, submits that presence of the witness at the time of occurrence is doubtful. Per contra learned AGA submits that the contention of the learned counsel for the appellant is based on picking sentences made by the witness in his favour. Subsequent to the statement he has firmly stated that inquest was conducted where incident took place, therefore, presence of the witness at the time of occurrence is established.
32. P.W.1 Jagnnath at page 18 of the paper book has stated that he is not able to remember whether police personnel prepared the inquest memo at the mortuary or not, but in his further cross examination, he has stated firmly on the same page that the inquest memo was prepared at 11:00 AM on the spot by the Daroga. He has also stated that he had reached the Police Station at quarter to 8:00 AM. The Daroga arrived at 10:00 AM on the spot. He saw the dead body, took into possession the empty cartridges found on the spot. He also took blood stained shirt in his possession, thereafter prepared inquest memo and directed the police for taking the dead body to the medical college, thereafter the Investigating Officer went away. In view of aforesaid vivid statement of witness Jagnnath on the basis of his statement that he is not remembering whether police personnel prepared inquest at mostuary or not and obtained signature of panches or not which too has been recorded after a lapse of near about eight years from the date of incident, presence of witness cannot be doubled. Accordingly, we find no substance in the contentions of learned counsel for the appellant, that P.W.1 Jagnnath is unable to tell as to where the Panchayatnama of the deceased was conducted, therefore presence of the witness at the time of occurrence is doubtful.
33. P.W.1 Jagnnath has stated that 5-6 shots were fired and as per recovery memo Ext.Ka-8 two empty cartridges were taken into possession by the police, therefore submission of learned counsel for the appellants is that the presence of P.W.1 Jagnnath and P.W.2 Babulal is doubtful. Per contra learned AGA submits that P.W.1 Jagnnath and P.W.2 Babu Lal are the eye-witnesses of the incident and their credibility is could not be shaken from the cross-examination, therefore, on the basis of recovery of two empty cartridges their presence cannot be doubted.
34. In the written report Ext.Ka-1 it is not mentioned as to how many shots were fired but as discussed above FIR is not an encyclopaedia, therefore, not mentioning fire shots in the written report will not affect the prosecution case. P.W.1 Jagannath has stated that accused persons killed his son by firing 5-6 shots and defence has not put any question to his witness regarding firing of shots as such the evidence of P.W.1 Jagnnath is uncontroverted, therefore, we have no reason to disbelieve the witness. As such the presence of witness Jagnnath on the basis of his statement that 5-6 shots were fired and only two cartridges were recovered from the spot cannot be doubted, particularly when according to post-mortem report Ext.Ka-11 proved by Dr. N.P. Singh injuries were found to be caused by firearm and cause of death was found shock due to excessive bleeding on account of ante-mortem injuries. P.W.2 Babulal has also stated that while returning agter answering the call of nature he saw in the field of Budh Narayan accused Jagnnath having gun in his hand, Nanka and Jagatpal country-made pistol in their hand. All the accused persons fired from their arms. In cross-examination nothing has been extracted by the defence from this witness also so that his testimony can be doubted regarding firing of shots by accused persons at the deceased. In view of the above discussion, contention of the appellant has no force that presence of P.W.1 Jagnnath and P.W.2 Babu Lal is doubtful.
35. Learned counsel for the appellant further submits that P.W.2 Babu Lal has stated on page 26 in his deposition that P.W.1 Jagnnath was working in the city of Allahabad as a gardener and the P.W.1 Jagnnath used to leave the village at about 6:00 AM and reach Allahabad at about 8:00 AM, distance between the city of Allahabad and village of the P.W.1 Jagnnath is about 12 miles. P.W.1 Jagnnath has stated on page 18 in his deposition that he saw the body of the deceased on 08.10.1990 at about 1:00 PM in the Medical College, Allahabad. In the backdrop of evidence of P.W.2 Babu Lal, the evidence of P.W.1 Jagnnath assume simportance and makes the presence of P.W.1 Jagnnath doubtful at the time of occurrence. Per contra learned AGA submits that prompt FIR had been lodged. He has supported the prosecution case and from cross-examination his presence is not impeached.
36. P.W.2 Babu Lal at page 26 of the paper-book has stated that at the time of incident his brother Jagannath was working in Allahabad as a gardener. He used to go and come by cycle from his village. He used to go at about 6:00 a.m. from the house and reach Allahabad at about 8:00 a.m. Distance of Allahabad from his village is 12 miles. P.W.1 Jagnnath on page 18 of the paper-book has stated that he saw the dead body of Santosh in the medical college on the day of murder i.e. on 08.10.1990 at 1.00 PM in the day. He has also stated that apart from him, the incident was witnessed by Babulal, Ram Jatan and others. He has stated that scribing the report from Durga Prasad he gave it at the police station which has been proved by him as Ext.Ka-1. In cross-examination he has also stated that he reached the police station at quarter to 8 a.m. and the Daroga reached the place of incident at 10:00 a.m. and at page 20 in cross-examination he has stated that near about after two hours of the murder he reached the police station. From a lengthy cross-examination nothing has been extracted by the defence so that an adverse inference can be drawn that P.W.1 Jagannath did not get scribe the report Ext.Ka-1 from Durga Prasad and did not go to police station on 08.10.1990 along with written report at 7:45 a.m. P.W.5 Indra Bahadur Singh scribe of the F.I.R and G.D. has also stated that on 08.10.1990 he was posted as Moharrir at police station Nawabganj and on the basis of Ext.Ka-1, he had prepared chick F.I.R of Crime No.342 of 1990 in his writing and signature which has been proved by him as Ext.Ka-12 and its reference was made in the G.D. No.9 dated 08.10.1990 at about 07:45 a.m. in his writing and signature, which has been proved by him as Ext.Ka-13. In cross-examination he has also stated that by giving copy of the chick F.I.R informant was sent back, entry of which is made in the G.D.
37. In Ext.Ka-12 chick F.I.R the date and time of the report has been mentioned as 08.10.1990 at 07:45 a.m. P.W.3 Investigating Officer Anwar Singh Yadav also has stated that the case crime no.342 of 1990 under Section 302 IPC was registered in his presence and in cross-examination he has stated that he moved from the police station for the spot at 07:45 a.m.
38. Thus, evidence of P.W.1 Jagannath, P.W.5 Indra Bahadur Singh and P.W.3 Investigating Officer Anwar Singh Yadav is consistent with regard to lodging the report by informant P.W.1 Jagannath at 07:45 a.m. on 08.10.1990. If informant P.W.1 Jagannath was not present at the time of incident then prompt FIR could not have been lodged which otherwise also supports the presence of the informant Jagnnath at the time of occurrence.
39. It appears that the learned counsel for the appellant taking torn out sentences out of context has advanced the submission which has no force, as held by Hon'ble Supreme Court in State of MP vs. M.K. Anthony 1985 SCC (CRI 105), (Supra), and observed in para 18 of the judgement.
40. In view of the above discussion, on the basis of statement of P.W.2 Babu Lal that at the time of incident Jagnnath was working in Allahabad as a gardener, he used to go at about 6:00 AM and reach Allahabad at 8:00 AM, distance of Allahabad from his village is 12 miles and statement of P.W.1 Jagnnath in cross-examination that he saw the dead body of his son Santosh in the hospital of medical college at 1:00 a.m., it cannot be held that presence of P.W.1 Jagnnath at the time of occurrence is doubtful. Accordingly we find no substance in this contention also.
41. Learned Counsel for the appellants also submits that P.W.2 Babu Lal has admitted that he had filed a complaint case against Ram Harsh father of appellant no.1 Jagnnath and appellant no.2 Nanka which shows that P.W.2 Babulal is inimical towards the accused. Per contra learned AGA submits that a day before the incident the medh was dismantled and an altercation had taken place with the deceased and Ram Harsh also but Ram Harsh has not been named in the FIR which shows that only those who caused the incident have been named in the FIR and there is no false implication.
42. P.W.2 Babulal on page 26 of the paper-book has stated that the Pradhan of his village was Ram Harsh. He is village-head since last 30 years. The lekhpal had instituted 11 cases against him on behalf of the Gaon-sabha. He has further stated that village pradhan or vice-pradhan of the village never came for prosecuting the case and he had filed a complaint case against Ram Harsh. He has denied that the case was proceeding at the behest of Ram Harsh. Since Babu Lal had filed a complaint case against Ram Harsh, therefore, it may be inferred that the witness Babu Lal and Ram Harsh had inimical terms. Inimical terms is a double edge weapon which cuts both ways. On the basis of inimical terms one can be falsely implicated as well as one can author the incident, therefore, on the sole ground of inimical terms no conclusive inference can be drawn and the whole evidence is to be evaluated for the purpose.
43. P.W.1 Jagnnath on page 22 of the paper-book has stated that he was going towards south from the road west side of the village and his son was going towards north side, therefore learned counsel for appellants submits that Jagannath was not in a position to see the incident. Per contra learned AGA submits that the incident has taken place in the fields outside the village where even on going in opposite directions incident can easily be seen. Jagnnath has promptly lodged the FIR and if he was not present at the time of occurrence then prompt FIR could not have been lodged.
44. In spot map Ext.Ka-9 the location of Jagnnath has not been mentioned from where he saw the incident but from the spot-map it is clear that the incident has occurred in the vacant field of Budh Narayan. The witness on the same page has stated that when first time he heard the sound of fire his son was going taking a Lota. Since the place of incident is visible from the road on either side, i.e. North and South, in such a situation on hearing the sound of fire the deceased and accused persons can be seen easily. In view of the above we also find no substance in the contention of the learned counsel for the appellant that the deceased was going towards north side and the witness Jagnnath was going towards south side on the road west side of the village in such circumstance he was not in position to see the incident.
45. Learned counsel for the appellant also submits that it was the duty of the trial judge to bring the evidence of the witnesses in the notice of the accused persons by putting a clear question but he has not put the evidence in clear manner in these circumstances the evidence of the witnesses stand vitiated. Per contra learned AGA submits that the learned counsel of the appellant has not specifically attracted attention towards the evidence which were not put to the accused persons in clear manner.
46. On going through the statement under section 313 Cr.P.C. it appears that question number third has been put regarding inquest memo and spot map in which exhibit number of inquest memo is missing in the question and exhibit number of spot map has been disclosed as Ext.Ka-9. Since in the question the inquest memo has been mentioned clearly, therefore, mere non on the basis of mentioning exhibit number of inquest memo, no prejudice will be caused, accordingly, this contention of the learned counsel for the appellants is without substance.
47. Learned counsel for the appellant further submits that the Investigating Officer has not stated in his deposition that he inspected the field where the medh was broken, therefore motive of the incident is not established. Per contra learned AGA submits that the incident has occurred at 6:00 AM and there are witnesses of the incident. If the dismantled medh was not inspected by the Investigating Officer, it is a trivial fault on the part of the Investigating Officer which will not affect the prosecution case.
48. As per written report Ext.Ka-1 a day before the incident Ram Harsh had dismantled the medh of the informant. The deceased had asked to mend the medh then an altercation took place between deceased, Ram Harsh and his son Jagnnath and Nanka alias Ram Swaroop. This fact has been supported by P.W.1 Jagnnath. P.W.3 Anwar Singh Yadav Investigating Officer in his deposition has not stated that he had inspected the dismantled medh of the informant. The incident took place at 6:00 AM. In written report Ext.Ka-1, it is mentioned that the incident was witnessed by Babu Lal, Ram Niwas and Ramjatan. Informant Jagnnath and named witness in FIR, P.W.2 Babu Lal have supported the prosecution version. Informant Jagnnath has specifically stated that a day before the incident in the evening the accused persons had dismantled his medh regarding which an altercation took place with his son. No question regarding dismantling of informant's medh by accused persons has been put by defence as such the statement of P.W.1 Jagnnath is uncontroverted, therefore we have no reason to disbelieve his testimony regarding dismantling of his medh. If the Investigating Officer did not inspect the dismantled medh it is a fault on the part of the Investigating Officer which is trivial in nature which will not affect the prosecution case. Apart from it in a case of direct evidence motive is not at all relevant as held by Hon'ble Supreme Court in Rajesh Govind Jagesha vs. State of Maharashtra, (1999) 8 SCC 428, that "motive" in a criminal case based on ocular testimony of witnesses is not at all relevant.
In view of the above discussion we also find no substance in the contention advanced by learned counsel for the appellant.
49. Lastly learned counsel for the appellant submits that P.W.2 Babu Lal has admitted on page 26 of the paper book that Ram Harsh father of the appellant 1 and 2 was village pradhan for last 30 years and lekhpal of the village had instituated as many as 11 cases against him. The accused persons have clearly stated in their statement under section 313 Cr.P.C. that Ram Harsh had filed cases against P.W.2 Babu Lal and for this reason they have been falsely implicated. Per contra learned AGA submits that medh was dismantled by Ram Harsh and an altercation also took place between deceased and Ram Harsh and his sons but Ram Harsh has not been implicated in the case which shows that there is no false implication in the case.
50. P.W.2 Babu Lal has stated that lekhpal had filed 11 cases against him on behalf of gaon-sabha but he has further stated that Gram Pradhan or Up-Pradhan never came for prosecuting the cases. He has also stated that he had filed a complaint case against Ram Harsh. If Babu Lal had filed complaint case against Ram Harsh and on behalf of the Gram-Sabha 11 cases against P.W.2 Babu Lal were filed, in such condition if any enmity accrues, it will be against Pradhan Ram Harsh and lekhpal but even after altercation of the deceased with Ram Harsh Pradhan took place one day before the incident, Ram Harsh has not been implicated in the case which indicates that there is no false implication in the case. We therefore, find no substance in the contention of the learned counsel for the appellants that the appellants have been falsely implicated in the present case.
51. Therefore, on a conspectus of the facts and circumstances of the case and close scrutiny of evidences available on record as discussed above we find that prompt FIR naming the appellants has been lodged, informant Jagnnath and Babu Lal are witnesses of the incident and their testimony is trustworthy and reliable. Ocular version is supported by medical evidence. Learned Additional Session Judge 4th Allahabad has rightly convicted and sentenced the appellants. There is no merit in the appeal, hence appeal fails and is liable to be rejected. Accordingly appeal is rejected.
52. The appellants Jagannath, Nanka @ Ram Swarup and Jagatpal respectively are on bail. The C.J.M., Allahabad is directed to take the appellants in the above case into custody forthwith and send them to jail to serve out the sentence, as awarded by the trial court and affirmed by us.
Office is directed to send a copy of this order to the court concerned within a week for compliance.
Order Date :- 13.02.2020 Jitendra