Padam Singh & Ors. vs State on 7 January, 2015

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Allahabad High Court

Padam Singh & Ors. vs State on 7 January, 2015

Heard Sri Dileep Kumar, learned Senior Advocate assisted by Sri Ramesh Prajapati and Ms. Rajshi Gupta, Advocates on behalf of the appellant Padam Singh and Sri M.S. Yadav, learned Additional Government Advocate on behalf of State.

The present criminal appeal had been filed by Padam Singh and Khacheru Singh against the judgement and order of the VI Additional Sessions Judge, Bulandshahr dated 7th September, 1993 passed in Sessions Trial No. 265 of 1991 arising out Case Crime No. 107 of 1990 under Section 302 of the Indian Penal Code, Police Station Ahmadgarh, District Bulandshahr.

Under the impugned judgement of the Trial Court, the appellant Padam Singh has been convicted of an offence under Section 302 of the Indian Penal Code and has been sentenced to undergo life imprisonment, while the second appellant Khacheru Singh had been convicted of an offence under Section 302 read with Section 34 of the Indian Panel Code and had been sentenced to undergo life imprisonment.

It may be recorded that during the pendency of this appeal, Khacheru expired and therefore, under order of the Court dated 19th August, 2014, his appeal had been abated.

Now the present appeal is confined to the case of Padam Singh only.

The prosecution story, as reflected from the records, is as follows:

A first Information Report was registered at Police Station Ahmadgarh on 9th December, 1990 at 1:00 p.m. on the information of one Manvir Singh. In the first information report, it was disclosed that during morning hours, on 9th December, 1990, some altercation took place between Kamal Singh (deceased) and one Raju over tap water in village Muradnagar Police Station Ahmadgarh. At 11:30 A.M. Padam Singh and Khacheru Singh arrived at the 'Gher", Khacheru handed over his licensed gun to Padam Singh and asked him to kill Kamal Singh. Padam Singh loaded the gun and opened fire which hit the deceased Kamal Singh, as a result whereof he fell down and died on the spot. Both accused ran-away from the spot. The incident was stated to have been witnessed by Ranvir, Lila Singh, Shiv Lal, Jai Ram, Buddha Singh etc. The informant Manvir Singh is the uncle of the deceased Kamal Singh. Offence under Section 302 of the Indian Penal Code was registered against both the accused Padam Singh and Khacheru Singh.

Investigation of the offence was done by the Sub-Inspector, Sunhari Lal Yadav, who recorded the statements of Veerpal Singh and the informant Manvir Singh and visited the place of incident. Inquest was prepared by Sub-Inspector Keshav Deo. The Investigating Officer recovered the licensed gun of accused Khacheru from his house and sealed it and prepared recovery memo. He also prepared site plan. He collected the pellets, blood stained earth and simple earth from the place of occurrence and prepared a memo in that regard also. After the panchnama of the dead body of the deceased was done and it was sent for post mortem through Constable Lal Singh and Kalyan Das along with attending documents. Post mortem of the dead body of the deceased was performed by Dr. S.K. Sharma on 10th December, 1990 at 3:45 p.m. Dr. Sharma found following ante mortem injuries on the body of the Kamal Singh (deceased):

"(i) Gun shot wound entry 8 in number in an area of 12 Cm x 10 Cm over left side chest upper half, margine inverted, no tatooing and bleeding seen, size of each 1 Cm x 1 Cm.

(ii) Gun short wound exit 5 in number over left side back upper third postero lateral aspect, margines everted, size 1.5 Cm x 1.5 Cm. each, distribution over an area of 12 Cm. x 12 Cm."

According to the medical report, deceased Kamal Singh expired due to shock and haemorrhage as a result of ante-mortem injuries. The duration of the death was about one and a quarter day and the deceased was reported to be aged about 16 years.

Investigation of the offence was done by Sub-Inspector, Sunhari Lal Yadav, who after completing the same, submitted charge-sheet against both the accused.

Prosecution, in support of its case, examined Manvir Singh, Jai Ram and Shiv Lal, who were eye witnesses, as P.W.1, P.W.2 and P.W.3 respectively. Constable Lal Singh, who had brought the dead body of the deceased for the purposes of post mortem along with Constable Kalyan Das was examined as P.W.4. Sub-Inspector Keshav Deo, who had prepared the inquest, was examined as P.W.5. Sub-Inspector Sunhari Lal Yadav, who was the investigating officer, was examined as P.W.6.

It may be recorded that since the post mortem report was accepted by the accused, the doctor performing the post mortem was not produced as a witness. The formal proof of the post mortem report relating to the deceased Kamal Singh was dispensed with by the learned counsel for the accused.

First informant Manvir Singh, P.W.-1, in his examination-in-chief, claimed to have witnessed the entire incident. According to him, first information report was got written through one Hira Singh. During cross-examination, he stated that he saw both the accused running from the place of incident and none of them was carrying any gun. He further stated that he did not see any one firing the gun shot.

The prosecution witnesses, P.W. 2 and P.W.3 Jai Ram and Shiv Lal did not support the prosecution case at the trial stage and there were declared hostile witness by the prosecution. However, P.W.2 Jai Ram stated to have witnessed the quarrel between the children of Padam Singh and Binnami @ Vijaipal in the morning of the fateful day.

Constable Lal Singh as P.W.4 stated to have taken the dead body with attending documents for post-mortem.

Sub-Inspector Keshav Deo (P.W.5) in his evidence proved the inquest report, challan-lash, photo-lash, letter to Chief Medical Officer and letter to R.I. Sub-Inspector Sunhari Lal Yadav (P.W.6), the then Station House Officer at Police Station Ahmadgarh, who had undertaken the investigation, in his evidence proved the chik report and concerned G.D. Entry. He also proved the recovery made of the licensed gun of the accused Khacheru from his house and the recovery memo prepared in that regard. He also disclosed the preparation of the site plan, collection of the pellets, blood stained earth and simple earth from the place of incident. He identified the recovered licensed gun belonging to the accused Khacheru in the Court as well as the pellets and containers of blood stained earth and simple earth collected from the place of occurrence.

Lila Singh, who was named in the first information report to have witnessed the incident, was examined as Court Witness No.1 (C.W.1). He deposed to have seen the accused Khacheru carrying licensed gun on the fateful day. Khacheru handed over the licensed gun to Padam Singh and exhorted Padam Singh to fire upon Kamal Singh. Accused Padam Singh loaded the gun and fired a shot which hit Kamal Singh as a result whereof Kamal Singh fell to ground and expired. He also deposed that the incident was seen by other persons, namely, Buddha Singh, Manvir, Raghuvir, Jai Ram, Shiv Lal and others. He deposed that at about 10:00 a.m., some altercation/quarrel had taken place between son of accused Padam Singh and Kamal Singh (deceased) over tap water.

Buddha Singh, who was also named in the first information report to have witnessed the incident, was examined as Court Witness No.2 (C.W.-2). He also deposed that about 16 months ago at about 09:10 a.m., Raju and Kamal had quarrelled. Thereafter on the same day at about 11:30 a.m., when he was sitting infront of his hut (thatched house) and Kamal Singh was standing near the wall of his hut, he had seen the accused Khacheru and Padam Singh arrive there. Khacheru was carrying his licensed gun which he handed over to accused Padam Singh and exhorted him to kill Kamal Singh. Accused Padam Singh loaded the gun and fired a shot which hit Kamal Singh on his chest causing instantaneous death. He also deposed that incident was seen by Lila Singh, Raghuvir, Shiv Lal, Manvir Singh etc. on the fateful day.

Accused Padam Singh was charged under Section 302 of the Indian Penal Code, while accused Khacheru was charged under Section 302 read with Section 34 of the Indian Penal Code. Both the accused pleaded not guilty of the charges and claimed to be tried. Both in their statement recorded under Section 313 of the Code of Criminal Procedure, completely denied the incident.

In order to keep the record straight, it may be recorded that Lila Singh and Budha Singh were shown as prosecution witnesses but subsequently an application was submitted by the first informant Manvir Singh through A.D.G.C. (Criminal) for discharging eye-witnesses, namely, Raghuvir, Lila Singh and Buddha. This application was allowed by the trial court.

On 29th October, 1991, Manvir Singh submitted another application stating therein that the accused had threatened him with dire consequences on the previous date, in case he does not help them during cross-examination. Because of this during cross-examination he answered the question in favour of the accused. He requested that Lila Singh and Buddha Singh be summoned for giving evidence.

Detail order was passed by the trial court on 6th January, 1992 summoning other eye witnesses under Section 311 of the Code of Criminal Procedure.

Before the trial court, it was submitted on behalf of the accused appellants that Buddha Singh, Court Witness No.2 was closely related to the deceased Kamal Singh and the Investigating Officer recorded his statement under Section 161 of the Code of Criminal Procedure on 22nd December, 1990 i.e. after a gap of 12 days, which affects his veracity.

So far as Lila Singh, Court Witness no. 1 is concerned, similar allegations were made.

Before the trial court, it was contended on behalf of the accused appellants that eye witness P.W.1 Manvir Singh in his cross-examination had stated that he had not seen anybody carrying any gun and firing upon the deceased. P.W.2 and P.W.3 had turned hostile. Therefore, except for the Court Witnesses, there was no eye witness account of the incident and therefore, the prosecution has not been able to establish the offence with certainty.

The trial court, after considering the case of the prosecution and that of the defence in detail came to a conclusion that the prosecution has been able to establish the charge against the accused with certainty and accordingly convicted Padam Sing for the offence under Section 302 of the Indian Penal Code and punished him with life imprisonment, while Khacheru was convicted of an offence under Section 302 read with Section 34 of the Indian Penal Code and has been similarly sentenced with life imprisonment.

Challenging the judgement and order of the Trial Court, Sri Dileep Kumar, learned Senior Advocate on behalf of the appellant Padam Singh submitted before us that prosecution witness no.1 Manvir Singh in his cross examination had stated that he has not seen anybody carrying any gun and firing from the same upon the deceased Kamal Singh. Similarly, P.W.2 and P.W. 3 having been turned hostile, there was hardly any evidence on record to link the accused with alleged offence. He submitted before us that Court Witness no.1 Lila Singh and Court Witness no.2 Buddha Singh were closely related to the deceased. Buddha Singh being the father's elder brother (Tau) of the deceased and therefore, his evidence has to be considered with circumspect being related witness. It is his case that enmity between Lila Singh and the accused was established from the records.

Sri Dileep Kumar further submitted before us that an application was made by the informant Manvir Singh (P.W.1) for withdrawing the name of Lila Singh and Buddha Singh from the list of prosecution witnesses. Subsequently, it was only at the insistence of the Investigating Officer that these two persons, namely, Lila Singh and Buddha Singh had been summoned and examined as Court Witnesses. He submits that they were tutored, only for purposes of bringing home the charge against the accused, their evidence could not have been relied upon for holding the appellants guilty.

It is, therefore, contended before this Court that the offence as alleged against the appellants has not been brought home with certainty. The appellants were entitled to benefit of doubt and the judgement and order of the Trial Court is liable to be set aside.

Learned Additional Government Advocate on behalf of the State disputed the correctness of the contentions raised on behalf of the appellant. He submitted that in the facts of the case the first information report was lodged within reasonable time. The prosecution story, as narrated in the first information report, was well supported by eye witnesses account as well as by the medical evidence.

The prosecution in the facts of the case has been able to bring home the charge with certainty against the accused appellant. The discrepancies as pointed out by the learned counsel for the appellant are trivial in nature and do not vitiate the prosecution story. He further submits that in the facts of the case, offence under Section 302 had been established beyond doubt.

We have considered the submissions made by the learned counsel for the parties and have examined the records of the present appeal.

At the very outset we may take notice the law in the matter of examination of witnesses as Court witnesses, which has been laid down by the Apex Court in the case of Zahira Habibulla H. Sheikh and another v. State of Gujarat and others reported in AIR 2004 SC 3114. The Apex Court in paragraph nos. 46 and 56 has held as follows:

"46. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.

........

56. In the ultimate analysis whether it is a case covered by Section 386 or Section 391 of the Code the underlying object which the Court must keep in view is the very reasons for which the Courts exist i.e. to find out the truth and dispense justice impartially and ensure also that the very process of Courts are not employed or utilized in a manner which give room to unfairness or lend themselves to be used as instruments of oppression and injustice. "

The testimony of Court witnesses is liable to be tested on same parameters as evidence of any other witness the only change being that Court witnesses can be cross-examined both by the accused as well as by the prosecution.

We are of the considered opinion that merely because, Lila Singh and Buddha Singh were named as prosecution witnesses and subsequently first informant Manvir Singh made an application for withdrawal of their name from the list of prosecution witnesses and they were finally produced as Court Witnesses will not in any way create doubt with regard to the evidentory value of their statements.

We may record that the trial court has rightly considered the testimony of court witnesses, namely, Lila Singh and Buddha Singh, who had narrated the incident, as was disclosed in the first information report and had supported the prosecution story. Nothing much could be pleaded before us to infer that what had been stated by Court witnesses was untrue or they had tried to falsely implicate the accused.

From the records of the present criminal appeal, we find that the first information had been registered just after one and half hours of the incident at the police station. The incident, as disclosed in the first information report is fully supported by the ocular evidence of court witnesses, namely, Lila Singh and Buddha Singh and is also corroborated by the statement of the informant Manvir Singh to some extent. The ocular testimony is supported by the medical evidence. The nature of the ante mortem injuries are in tune with the incident as disclosed in the first information report, which is prompt. Specific role had been assigned to both the accused in the first information report.

The Apex Court in the case of Lokesh Shivakumar vs. State of Karnataka reported in (2012) 3 SCC 196, has laid down that if the first information report is prompt and the incident, as stated therein, is supported by the ocular evidence and the medical evidence, then the prosecution can be said to have brought home the charge with certainty.

In the case of Sampath Kumar Vs. Inspector of Police, Krishnagiri, reported in 2012 (IV) SCC 124, the Apex Court held, that minor contradiction are bound to appear in the statement of truthful witnesses as memory sometimes plays false, sense of observation differs from person to person. Discrepancies in testimony of a witness caused by memory lapses are acceptable.

The he Apex Court in the judgement reported in (2013) 12 SCC 796; Mritunjoy Biswas vs. Pranab alias Kuti Biswas and another (paras 28 to 31) has held 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 the matter, would not ordinarily permit rejection of the evidence, as a whole.

What is material omission and material discrepancy, which may be relevant for discrediting the evidence of a prosecution witness, has also been explained in the said judgement of the Apex Court.

Judged in the aforesaid legal background, We find that whatever the discrepancies have been pointed out by the learned counsel for the appellant are trivial in nature.

In view of what has been recorded herein above and as also in view of the law laid down by the Apex Court in the case of Lokesh Shiv Kumar, Sampath Kumar and Mritunjoy Biswas (supras), we are satisfied that the finding of conviction returned by the Trial Court under the impugned judgement is strictly in accordance with law.

The conviction of the appellant, namely, Padam Singh for an offence under Section 302 read with Section 34 of the Indian Penal Code for having committed murder of deceased Kamal Singh is affirmed.

The appeal lacks merit and is accordingly dismissed.

The appellant, namely, Padam Singh is on bail, his bail bond is cancelled. Sureties are discharged. He shall be taken into custody forthwith to serve out the sentence, awarded to him by the trial court.

The Chief Judicial Magistrate, Kannauj may ensure compliance of the judgement delivered by this Court today.

(Akhtar Husain Khan, J.)                      (Arun Tandon, J.)
 
Order Date :-07.01.2015
 
Sushil/-
 

 

 

 
Hon'ble Arun Tandon,J.
 
Hon'ble Akhtar Husain Khan,J.
 
Dismissed.
 
For orders, see order of date passed on the separate sheets.
 
Order Date :-07.01.2015
 
Sushil/-

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