Allahabad High Court
Mahadev Prasad @ Shiv Ram Goojar And ... vs State Of U.P. on 29 May, 2020
Equivalent citations: AIRONLINE 2020 ALL 1380
Author: B. Amit Sthalekar
Bench: B. Amit Sthalekar, Ali Zamin
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 03.03.2020 Delivered on 29.05.2020 AFR In Chamber Case :- CRIMINAL APPEAL No. - 60 of 2001 Appellant :- Mahadev Prasad @ Shiv Ram Goojar And Another Respondent :- State of U.P. Counsel for Appellant :- B.D.Maurya,Shashi Dhar Pandey Counsel for Respondent :- Govt. Advocate Hon'ble B. Amit Sthalekar, J.
Hon'ble Ali Zamin, J.
(Per : Ali Zamin, J.)
1. Heard Sri Shashi Dhar Pandey, learned counsel for the appellant, learned A.G.A for the State and perused record carefully.
2. This is an appeal challenging the judgment and order dated 20.12.2000 passed in S.T. No.131 of 1996 (State vs. Mahadev and others) by which the learned IIIrd Additional Sessions Judge, Firozabad has convicted the appellants under Section 302/34 I.P.C. and sentenced each of the appellants to undergo imprisonment for life and fine Rs.5,000/-.to appellant Mahadev Prasad @ Shiv Ram Goojar, Rs 1000/ to appellant Indra Pal @ Guddu and in default of payment of fine they have been directed to undergo additional rigorous imprisonment for a period of three months and one month respectively.
3. At the outset it is noted that during pendency of the trial Gulab Singh @ Golia died, his case was abated vide order dated 06.7.2000 and during pendency of the appeal, appellant no.1 Mahadev Prasad @ Shivram Goojar also died and appeal against him has been dismissed as abated vide order dated 07.01.2019. Hence this appeal is confined to appellant no.2 Indra Pal Singh @ Guddu only.
4. Briefly stated, the facts of the case, as culled out from the case of prosecution, are that the candidate of informant Dinesh Upadhyay had won the election of Gram Pradhan. Accused Mahadev Prasad @ Shivram Goojar s/o Maharaj Singh Goojar also contested the election and he was defeated. Manish, the deceased had worked for winning candidate of Pradhan. On account of which Mahadev Prasad @ Shivram Goojar, Indra Pal @ Guddu, son of Maharaj Singh and Gulab Singh @ Golia son of Rajbir Jatav of his village were bearing enmity with him. On account of this enmity, to avenge from him Mahadev Prasad @ Shivram Goojar kept his wife and children along with all belongings at his house to somewhere else. Mahadev and his brother Indra Pal used to visit the house. On 13.08.1995 at about 6:00 p.m. Manish Upadhyay was sitting on a cot in front of his house. Informant Dinesh Upadhyay, Chandrabhan son of Srichandra, Raghvendra son of Om Prakash and Virendra Dubey son of Sri Ram Gopal Dubey resident of Rashidpur Kanetha, P.S. Matsaina were also sitting at a some distance, when the accused Mahadev Prasad @ Shivram Goojar, Indra Pal @ Guddu and Gulab Singh @ Golia came having country-made pistol in their hand. Indra Pal @ Guddu and Gulab Singh @ Golia exhorted Mahadev to kill stating that because of him they have been defeated, upon this Mahadev Prasad @ Shivram Goojar fired a shot on the chest of Manish from a country-made pistol. On which he fell down and died. After firing the shot all the three accused fled, they were chased but pointing country-made pistol and threatening of dire consequences, accused fled away towards north side.
5. On the basis of written report Ext.Ka-1 of informant Dinesh Upadhyay, Case Crime No.72/1995, under Sections 302/34 against accused was registered under chik F.I.R. Ext. Ka-8 on 13.08.1995 at 19:15 p.m. and investigation of the case was handed over to S.H.O. Virendra Singh. Virendra Singh, Investigating Officer reached the place of incident and prepared inquest memo Ext.Ka-3. He also prepared relevant papers i.e. letter to R.I. (Ext.Ka-4), challan lash (Ext.Ka-5) photo lash (Ext.Ka-6), letter to C.M.O. (Ext.Ka-7) and dispatched the dead body for postmortem along with constable Jagvir Singh.
6. P.W.6 Dr. S.L. Saraswat conducted postmortem of the dead body on 14.08.1995 at 01:00 p.m. and prepared its report (Ext.Ka-10), according to which following injuries were found on the dead body:
(i). Gun shot wound of 1.2 c.m. x 1 c.m. on the right side of the middle part of chest. Margin inverted, blackening and tattooing were present. Track is directing medial downward, on cutting underneath tissue is tattooed.
(ii). Multiple pin point sized abrasions all over in front both sides of chest were present and right side lung was lacerated.
In opinion of the doctor injuries were possible by fire arm and due to the injuries death was possible. The injuries were possible to have occurred on 13.08.1995 at 6:00 p.m.
7. On 15.08.1995, investigation of the case was handed over to S.I. D.N. Pandey. On 16.08.1995, Investigating Officer took into his possession, the cot on which deceased Manish was sitting at the time of incident and prepared its memo Ext.Ka-2. He also prepared spot map Ext. Ka-11. After completing the investigation he submitted charge sheet (Ext.Ka-10) against accused Mahadev Pradad @ Shivram Goojar, Indra Pal @ Guddu and Gulab Singh @ Golia under Section 302/34 I.P.C..
8. Since the offence under Section 302/34 I.P.C. is exclusively triable by Court of Sessions, therefore, C.J.M., Firozabad committed the accused to the court of Sessions for trial where Case Crime No.72 of 1995, under Section 302/34 I.P.C. was registered as S.T. No.131 of 1996, where from the trial was made over to the court of IInd Additional Sessions Judge, who framed charge under Section 302/34 I.P.C. against the accused persons. In due course of trial, the case was again transferred from the court of IInd additional sessions judge Firozabad to the court of IIIrd Additional Sessions Judge Firozabad.
9. To prove the charge against the accused, prosecution produced seven witnesses. P.W.1 Dinesh Upadhyay informant, P.W.2 Raghvendra and P.W.3 Chhotey Lal are the witnesses of fact. P.W.4 S.I. Virendra Singh, first Investigating Officer. P.W.5 Suresh Babu Sharma scribe of chik FIR and G.D. and also deposed as a witness for secondary evidence on account of death of IInd I.O. D.N. Pandey. P.W.6 Dr. S.L. Saraswat conducted postmortem and P.W.7 Jagvir Singh carrier of the dead body for postmortem, are the formal witnesses.
10. After examination of prosecution witnesses statement of accused persons were recorded under Section 313 Cr.P.C., in which they pleaded, case falsely proceeded against them. In defence, no witness has been produced by them.
11. After hearing to the parties and perusal of the record, learned IIIrd Additional Sessions Judge Firozabad passed the impugned judgment and order as disclosed in para 2 of the judgment. Hence this appeal.
12. Sri Shashi Dhar Pandey, learned counsel for the appellant submits that role of exhortation has been assigned to the appellant. Evidence of exhortation is a very weak type of evidence. Apart from the role of exhortation, there is no evidence against the appellant. He also submits that as per FIR as well as ocular evidence single fire was made but in postmortem report two injuries have been found. PW-2 Raghvendra is relative and resident of other village, no independent or neighborhood witness has been produced. Learned trial court without proper evaluation of the evidence has convicted and sentenced the appellant which is not sustainable in the eye of the law and it is liable to set aside.
13. Per contra learned AGA submits that there was pradhan election enmity. Accused Mahadev had contested the Gram pradhan election. In the election he was defeated and one Chunni Lal had won the election. Deceased Manish had worked for Chunni Lal, the winning candidate of Pradhan. On account of which accused Mahadev was bearing enmity against the Manish that because of him he has lost the election. Accused Indra Pal is brother of accused Mahadev and accused Gulab Singh @ Golia is his friend. On account of the election enmity all accused armed with country-made pistol came to the place of incident and on exhortation of accused Indra Pal and Gulab Singh accused Mahadev fired at the deceased from his country-made pistol which hit his chest and due to the injury caused by him he died on the spot. Incident had occurred at 6.00 p.m. on 13.8.95 and its prompt FIR on the same day at 19.15 p.m. has been lodged giving details. It is a day light incident. From the prosecution evidence charge is fully proved against the accused appellant. Learned trial court evaluating properly the evidence on record has rightly convicted and sentenced them and no interference is required by this court.
14. The incident had occurred at 6.00 p.m. on 13.08.95 and its information to the police station as per FIR Ext Ka-8 was given at 19.15 p.m. PW-1 Dinesh Upadhyay has stated that he had written the report at his house. He has also stated that in scribing the report and seeing the son, it took half an hour. As per chik FIR distance of police station from the place of incident is 3 km and according to informant he went to the police station by cycle, in such circumstance it appears that FIR has been lodged promptly without deliberation and consultation.
15. It is not disputed that it is a case of day light occurrence. It is also not disputed that deceased Manish died of homicidal violence. It is evident from the medical evidence adduced in the case. PW-6 Dr S.L. Saraswat has conducted postmortem and prepared report Ext Ka-10, according to which there was a gun shot wound of 1.2 c.m. x 1 c.m. on the right side of the middle part of chest. Margin inverted, blackening and tattooing were present. Track is directing medial downward on cutting underneath tissue is tattooed and multiple pin point sized abrasions all over in front on both sides of chest were present and right side lung was lacerated. In opinion of the doctor injuries were possible by fire arm and due to the injuries death was possible on 13.08.1995 at 06:00 p.m.. From the above, it is clear that Manish died due to the injuries sustained by him.
16. As per Ext. Ka-8 chik FIR deceased Manish Upadhyay on 13.8.95 at 6.00 p.m. was sitting on a cot in front of his house at that time Mahadev prasad, Indra Pal and Gulab Singh came having country-made pistol in their hand, Indra Pal and Gulab Singh Exhorted to kill saying that because of him we have lost the election, upon which Mahadev fired a shot from country-made pistol on the chest of Manish, upon which he fell down there and died. After firing the shot all the accused fled away towards north. PW-1 Dinesh Upadhyay and PW-2 Raghvendra have supported the FIR version through their testimony and from their cross examination nothing has been extracted by defence so that their testimony with regard to coming of accused persons having country-made pistol in their hand and exhortation to the accused Mahadev by Indra Pal and Gulab Singh to kill, can be doubted. From the prosecution evidence it is explicit that role of the appellant is one of exhortation.
17. Now the question before us is that whether the act of exhortation of the appellant Indra Pal is leading to the doing of a criminal act in furtherance of common intention. To appreciate the issue, it will be apt to refer the law laid down by Hon'ble Supreme Court in this regard.
18. In case of Jainul Haque vs State Of Bihar, AIR 1974 SC1651, Hon'ble Supreme Court in para 8 of its judgment has held as under:
"The evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant."
19. In general, principle of criminal law is that the person who commits the offence can be held guilty. Section 34 of Indian Penal Code lays down principle of joint liability in doing criminal act. The essence of liability is to be found in existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. If criminal act is done in furtherance of common intention then every person who did the criminal act with the common intention will be liable for the act. Common intention essentially being a state of mind, therefore, it is very difficult to procure direct evidence to prove such intention. Hence, in majority of cases it has to be inferred from the overt or covert act, other relevant circumstances of the case and conduct of accused in totality of circumstances of the case. In this regard gainfully, para 12 of the judgment of apex court in the case of Ramesh Singh @ Photti VS State Of A. P. AIR2004 (SC) 4545, is quoted as under:
"12. To appreciate the arguments advanced on behalf of the appellants it is necessary to understand the object of incorporating Section 34 in the Indian Penal Code. As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held to guilty. By introducing Section 34 in the penal code the Legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Section 34 IPC embodies the principles of joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered by the manner in which the accused arrived at the scene, mounted the attack, determination and concert with which the attack was made, from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted."
20. In Suresh and another vs State Of U.P. 2001 3 SCC 673, Hon'ble Supreme Court in para 24 of its judgment has held as under:
"24. Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34, IPC should have done some act which has nexus with the offence. Such act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. This is the purport of Section 32, IPC. So the act mentioned in Section 34, IPC need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act, e. g. a co-accused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused, who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can also be termed as an act in a given situation. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34, IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34, IPC. "
21. In Surendra Chauhan VS State Of M. P. , 2000 4 SCC 110, Hon'ble Supreme Court in para 11 of its judgment has held as under:
"11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. Ramaswami Ayhangar & Ors. v. State of Tamil Nadu2. The existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. Rajesh Govind Jagesha v. State of Maharashtra3. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established : (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case."
22. In Pandurang VS State Of Hyderabad, 1955 1 SCR 1083, Hon'ble Supreme Court in para 34 and 35 of its judgment has held as under:
"34. In the present case, there is no evidence of any prior meeting. We know nothing of what they said or did before the attack-not even immediately before. Pandurang is not even of the same caste as the others. Bhilia. Tukia and Nilia are Lambadas, Pandurang is a Hatkar and Tukaram a Maratha. It is true prior concert and arrangement can, and indeed often must be determined from subsequent conduct as; for example, by a systematic plan of campaign unfolding itself during the course of the action which could only be referable to prior concert and pre-arrangement, or a running away together in a body or a meeting together subsequently. But, to quote the Privy Council again, "the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case".
But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time-honoured way, "the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis". (Sarkar s Evidence, 8th edition, page 30).
35. The learned counsel for the state relied on - Mamand v. Emperor , AIR 1946 PC 45 (C), because in that case the accused all ran away and their Lordships took that into consideration to establish a common intention. But there was much more than that. There was evidence of enmity on the part of the accused who only joined in the attack but had no hand in the killing; and none on the part of the two who did the actual murder. There was evidence that all three lived together and that one was a younger brother and the other a tenant of the appellant in question. There was evidence that they all ran away together: not simply that they ran away at the same moment of time when discovered, but that they ran away together .
As we have said, each case must rest on its own facts and the mere similarity of the facts in one case cannot be used to determine a conclusion of fact in another. In the present case, we are of opinion that the facts disclosed do not warrant an inference of common intention in Pandurang s case. Therefore, even if that had been charged, no conviction could have followed on that basis. Pandurang is accordingly only liable for what he actually did."
23. From the law laid down in the above referred cases it can be deduced that evidence of exhortation is a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant by ascribing to that person role of an exhortation to the assailant to assault the victim. Unless the evidence in this respect is clear, cogent and reliable, no conviction can be recorded against the person alleged to have exhorted the actual assailant.
24. The essence of joint liability in doing a criminal act is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. If the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove it. Hence, in most cases it has to be inferred from the conduct of the accused or other relevant circumstances of the case. The inference can be gathered by the manner in which the accused arrived at the scene, mounted the attack, determination and concert with which the attack was made, from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. Even an illegal omission on the part of such accused can indicate the sharing of common intention. The act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. Presence of the accused, who in one way or other facilitate the execution of common design is tantamount to actual participation in the criminal act. The act need not necessarily be overt, even a covert act is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. To invoke Section 34 IPC two factors must be established : (i) common intention and (ii) participation of the accused in the commission of an offence. To fasten the liability u/s 34 IPC an act, whether overt or covert, is indispensable to be done by a co-accused. If no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34, IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34, IPC. To ascertain common intention, totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the such intention to commit an offence of which he could be convicted.
25. Now, keeping in view the above proposition, we proceed to analyze the evidence in the instant case. As per chik FIR Ext Ka-8 in Gram Panchayat Pradhan election informant candidate had won the election and Mahadev had lost the election of Pradhan. On account of loosing the election Mahadev, Indra Pal and Gulab Singh were bearing enmity with the informant. PW-1 Dinesh Upadhyay has deposed that before the incident, BDC and Gram Panchayat Pradhan election was held. In view of the party organization his son Manish had worked for the winning party. Mahadev had also contested election of Pradhan,who lost the election. On account of this Mahadev was bearing enmity. Defence has not put any question to this witness with regard to Manish had worked for winning party and accused were bearing enmity on account of election of Pradhan, thus, the evidence of the witness with regard to bearing enmity by accused Mahadev on account of defeat in Pradhan election is not controverted. Hence we have no reason to doubt it. Thus, evidence of PW-1 Dinesh Upadhyay with regard to bearing enmity on account of Pradhan election is corroborated with the FIR. In view of the above, enmity of accused Mahadev on account Pradhan election is established.
26. As per FIR Ext. Ka-8, accused Mahadev with intention to avenge due to enmity, had shifted his wife along with his children and household to somewhere else. PW-1 Dinesh Upadhyay has supported the FIR version as he has stated that before the incident Mahadev under a planning had shifted all the goods of his house along with family to somewhere else, only Mahadev and Indra Pal used to visit. On asking in cross examination again he has stated that one-two week before the incident accused Mahadev and Indra Pal had shifted the family and goods from the village and accused used to visit. He has also stated that the incidence of shifting the family and goods was within his knowledge. Although he has stated that he did not tell to the investigating officer in his statement about shifting of family and children one-two week before the incident, but it will not have any adverse effect on the prosecution case because it is already disclosed in the FIR and supported by his dock evidence. Thus evidence of PW-1 Dinesh, regarding shifting of family and goods to somewhere else before the incident is also corroborated with the FIR. As such from the evidence it is also established that before the incident accused Mahadev had shifted his family and goods to somewhere else and accused Mahadev and Indra Pal used to visit the house.
27. According to the FIR after firing the shot all the three accused fled towards north, when they were chased, then pointing country-made pistol they fled away. PW-1 Dinesh Upadhyay has supported this fact also by stating that the accused fled towards north, Chandra Bhan, Virendra and Raghvendra chased them,while fleeing Mahadev fell down stumbling with brick and accused threatened that, if proceeded ahead will be killed. In cross examination he has stated that he did not disclose this fact in the report Ext Ka-1. He has stated that he does not remember as to whether he had told this fact to the investigating officer or not. If statement of Dinesh is ignored whether accused fell down or not while fleeing, from his testimony it is clear that when after the incident accused fled they were chased by Chandra Bhan, Virendra and Raghvendra. Prosecution has produced PW-2 Raghvendra, who has stated that he and Virendra chased the accused, Chandra Bhan was also with them, accused Mahadev, Indra Pal and Gulab Singh pointing country-made pistol had threatened that return back otherwise you will be killed, then they returned. On asking in cross examination he has stated that he, his friend Virendra had tried to catch the accused but accused had pointed country-made pistol and all the three accused pointing country-made pistol threatened that you will be also killed. He has further stated that he had chased the accused 10-12 steps, he does not remember as to whether he had told to the investigating officer about chasing the accused and threatening by accused pointing country-made pistol to return back otherwise will be killed. Since in the FIR it is mentioned that pointing country-made pistol accused fled away, so his above statement will not have any adverse bearing on the prosecution case. He has also stated that he knows the accused before the incident. Thus, with regard to accused fled after the incident and they were chased then by pointing country made pistol towards PW-2 Raghvendra and others and threatening of dire consequences, they fled away, evidence of PW-1 and PW-2 is consistent and corroborated with the FIR. Accordingly from the evidence it is also established that all the accused fled together after the incident and they were chased by PW-2 Raghvendra and others, then by pointing country-made pistol and threatening of dire consequences, all the accused fled away.
28. As per postmortem report proved by PW-6 Dr S.L. Sarswat two injuries:
1. Gun shot wound of 1.2 c.m. x 1 c.m. on the right side of the middle part of chest. Margin inverted, blackening and tattooing were present. Track is directing medial downward on cutting under neath tissue is tattooed.
2. Multiple pin point sized abrasions all over in front of chest both sides at front were present and right side lung was lacerated, have been recorded.
Dr S.L. Sarswat in his cross examination has stated that both injuries are possible by single fire. Thus, recording two injuries by the Doctor, does not demonstrate that two shots were fired. In view of the statement of the doctor as well as prosecution case of single shot was fired, submission of learned counsel for the appellant is devoid of substance that as per FIR as well as ocular evidence single fire was made but in postmortem report two injuries have been found.
29. As per FIR Ext. Ka-8, apart from informant Dinesh Upadhayay, incident was witnessed by Sri Chandrabhan, Raghvendra and Virendra Dubey. According to P.W.1 Dinesh Upadhayay, Chandrabhan belong to his pedigree and witness Raghvendra is his brother-in-law (Sala) and witness Virendra is friend of Raghvendra. Raghvendra and Virendra both are resident of village Rashidpur, Kanetha. Since as per prosecution case no independent or other neighborhood, witness except Chandrabhan belonging to his pedigree, thereby related to the informant, has witnessed the incident, therefore, submission of the learned counsel for the appellant is without substance that no independent witness or neighborhood witness has been produced.
30. Regarding related witness in case of Gangabhavani vs. Rayapati Venkat Reddy and others, (2013) 15 SCC 298, Hon'ble Supreme Court in para 15 of its judgment has held as under:
"15. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinized and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. 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, relied upon. (Vide Bhagaloo Lodh v. State of U.P., (2011) 12 SCC 206 and Dahari v. State of U.P. (2012) 10 SCC 256)"
31. Thus, keeping in view the law laid down by the Hon'ble Supreme Court in the above referred case, testimony of the witness P.W.2 Raghvendra is to be scrutinized.
32. P.W.2 Raghvendra has stated that his sister Lata is married with Dinesh Uadhayay. On the occasion of Rakshabandhan he had come to his sister on 10.08.1995 for tying Rakhi, his friend Virendra son of Ram Gopal was also with him. On the request of his sister and brother-in-law he stayed there and he has narrated the story about the incident in his deposition. In his cross-examination he has stated that one and half to quarter to two hours of the incident S.O. Matsaina came to the place of incident and he remained there about one and half to quarter to two hours. His statement that, on coming to the place of incident S.O. Matsaina stayed one and half to quarter to two hours, finds support from the statement of informant P.W.1 Dinesh Upadhyay as he has stated on page 18 of the paper book that, when, S.O. Matsaina came on the day of incident then he stayed one and half to two hours. He has also stated about conducting the inquest memo. He has stated that his statement was recorded by the police after 22-23 days of the incident which was recorded at the house of the informant Dinesh Upadhayay. A police constable had gone to his village to call him. In the period of 22-23 days of the incident no police personnel had gone to him to call for recording his statement. He has also stated that he himself did not tell about the incident to the S.O. Matsaina, which he had witnessed because he did not ask him. P.W.4 Virendra Singh is the first investigating officer, who has stated that he had prepared the inquest memo and other relevant papers like letter to R.I., challan lash, letter to C.M.O. In cross-examination he has clearly stated that after registration of FIR he did not record the statement of scribe of FIR and informant. He did not record statement of Panch. He also did not think it necessary to inquire from informant and other witnesses and preparing the spot map. Since the Ist investigating officer did not even record the statement of the informant and prepared spot map in such a situation recording of statement of this witness after 22-23 days of the incident who is resident of other village, will not adversely affect his veracity. From the cross-examination nothing has been elicited so that his presence on the spot and witnessing the incident can be doubted. Prompt FIR disclosing him as eye-witness of incident has been lodged which also fortify his presence at the time of incident. Considering whole statement of P.W.-2 Raghvendra, it appears that his presence is natural and he is a witness of the incident. He is giving cogent and credible evidence about the incident and his evidence is worthy of trust.
33. In view of the above discussions, we find that evidence of the witness has a ring of truth to it, is cogent, credible and trustworthy.
34. On the basis of the above discussions, it is established that the deceased Manish had worked in election for the winning candidate of Pradhan and accused Mahadev had also contested the election but he lost the election. On account of defeat in the election he was bearing enmity with the deceased. Appellant Indra Pal is brother of the accused Mahadev (died during pendency of appeal). Before the incident Mahadev had shifted his family and goods to somewhere else but Mahadev and appellant Indra Pal used to visit his house. At the time of incident appellant Indra Pal, Gulab Singh and Mahadev came having country-made pistol in their hand. On exhortation of appellant Indra Pal and Gulab Singh accused Mahadev fired a shot on the chest of the deceased Manish and receiving the firearm injury Manish died then and there. After firing the shot all the three accused fled towards north, Raghvendra, Virendra and Chandra Bhan chased them, then pointing country-made pistol accused threatened for dire consequences and fled away.
35. In view of the facts, attending circumstances of the case and evidence on record as discussed above keeping in view the law laid down by the Hon'ble Supreme Court, on considering cumulatively, i.e. deceased Manish had worked for winning candidate of Pradhan election, accused Mahadev had also contested but lost the election on account of which he was bearing enmity with the deceased, shifting of family and goods by Mahadev to somewhere else before the incident and Mahadev and appellant Indra Pal used to visit their house even after shifting the family and goods, appellant came armed with country-made pistol along with the co-accused Mahadev and Gulab Singh also armed with country made pistol, on arriving to the deceased appellant Indra Pal and Gulab Singh exhorted accused Mahadev to kill, on which Mahadev fired a shot on the chest of the deceased and receiving the shot he died then and there, after firing shot all accused fled together, and on being chased they threatened of dire consequences for the purpose to guard themselves and fled away, all these circumstances clearly demonstrate that all the accused had common intention to kill the deceased Manish and act of exhortation of the appellant is leading to the killing of deceased Manish in furtherance of common intention. There is clear, cogent and reliable evidence against the appellant Indra Pal in perpetration of the crime. Learned trial court properly evaluating the evidence has recorded the finding of conviction and sentence. We find that learned trial court has not committed any illegality or infirmity in passing the impugned judgment and order.
36. Appeal lacks merit. Accordingly it is dismissed.
37. Appellant No.2 Indra Pal Singh @ Guddu is on bail, his bail is canceled. He shall be taken into custody forthwith to serve out the sentence as awarded by the trial court and affirmed by us.
Office is directed to communicate the order to the court concerned forthwith and remit original record to the court concerned.
Dated: 29.05.2020 MAA/-