Allahabad High Court
Ram Naresh vs State Of U.P. on 12 May, 2020
Equivalent citations: AIRONLINE 2020 ALL 936
Bench: Sunita Agarwal, Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on :- 17.01.2020 Delivered on :- 12.05.2020 Court No. - 47 Case :- CRIMINAL APPEAL No. - 2003 of 1996 Appellant :- Ram Naresh Respondent :- State of U.P. Counsel for Appellant :- S.K.Srivastava Counsel for Respondent :- Govt.Advocate Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Deepak Verma,J.
(Delivered by Hon'ble Deepak Verma, J.)
1. This criminal appeal has been preferred against the judgment conviction order dated 30.10.1996 passed by the learned Sessions Judge, Farrukhabad in Sessions Trial No.130 of 1993 in the State Vs. Ram Naresh and two others convicting the appellants under Sections 302 and 307 I.P.C. read with Section 34 I.P.C. to rigorous imprisonment for life and five years rigorous imprisonment under Section 307 I.P.C. further sentenced, this sentence of all the accused persons are meant to run concurrently.
2. Heard Sri R. K. Rathour and Sri Amit Daga, learned Advocates appearing on behalf of the appellant Nos.1 and 2 respectively, Sri Krishna Pahal, learned Additional Advocate General and Sri L.D. Rajbhar, learned AGA for the State-respondents.
3. Ram Ladetey, applicant No.3 had died and a report regarding death had been accepted by this Court vide order dated 17.12.2019.
4. Brief facts giving rise is that on 16.08.1992 informant Jauhari Lal, his elder brother-Mauji Ram and cousin brother-Virendra all of resident of Village Makheda, Police Station Nayagaon, District Etah were coming back on motorcycle to their village from Kaimganj, District Farrukhabad. Virendra was driving the motorcycle while Mauji Ram (deceased) and Jauhari Lal (informant) were sat as a pillion. When they reached Acchera Road, Village Jhabboopur near flour mill (Atta Chakki) of Shiraj Ahmad, rear wheel of the motorcycle got punctured. The informant and Mauji Ram got down there. Virendra took a wrench from the cycle repair shop and unbolted rear wheel of the motorcycle. Informant-Jauhari Lal and deceased-Mauji Ram remained there. Virendra took wheel and went for repair them, Jauhari Lal and his elder brother Mauji Ram (deceased) remained there near the flour mill (Atta chakki) waiting the return of Virendra and watched motorcycle. Virendra returned with repaired wheel and after fitting rear wheel in the motorcycle Virendra started motorcycle and moved to take informant and deceased. He stopped the motorcycle in front of flour mill (Atta chakki) for lifting Mauji Ram (deceased) and informant-Jauhari Lal. Motorcycle was started, Mauji Ram sat behind Virendra when informant-Jauhari Lal wanted to sit behind Mauji Ram all of sudden accused-Ram Naresh, accused-Mahendra and Ram Laratey armed with country made pistols appeared/emerged out from western side, who were hidden behind a hut, and they shouted. Ram Naresh immediately made a fire which hit right side chest of Mauji Ram. On motorcycle informant-Jauhari Lal immediately caught Mauji Ram, jumped and sat behind the Mauji Ram. Virendra moved motorcycle fastly ahead then accused-Ram Laratey and Mahendra each also made a fire but these fires did not hit. The incident of fires took place at about 03:00 p.m. When motorcycle reached near the culvert of Bamba, Mauji Ram succumbed to death due to injury received. They stopped the motorcycle there and put the dead body right side under the tree. Many persons assembled at the place of vicinity. Further it has alleged that attack was made on account of old enmity with accused Ram Naresh. Mauji Ram had given evidence against Ram Naresh in a case and in retaliation Ram Naresh had lodged a case against Mauji Ram under Section 307 I.P.C. in Police Station Kaimganj. Virendra wrote the contents of first information report as informant-Jauhari Lal narrated and on written papers Jauhari Lal had put his thumb impression. Informant-Jauhari Lal came to the Police Station Kaimganj leaving behind dead body on the spot in the supervision of Virendra and other persons collected there.
5. On the basis of written report (Exhibit Ka-1), Head Constable Chhote Lal Tewari (P.W. 6) prepared a chik F.I.R. (Exhibit Ka-5) on 16.08.1992 at 04:30 p.m. and made entry in the GD. at report No.26 registered as Case Crime No.336 of 1992 under Sections 302, 307 I.P.C. against all the accused persons.
6. Harpal Singh, Investigating Officer (P.W. 7) started investigation of the case and after completing all the formalities at the Police Station went to spot along with S.I. Sri Radhey Shyam Dwivedi, S.I. Sri Dalmor Singh, S.I. Sri Jamil Ahmad and Constables Yash Pal Singh and Vijai Kumar Sharma where dead body was kept (laid). Informant-Jauhari Lal was also accompanying with Investigating Officer. Inquest of the dead body was prepared by S.I. Jamil Ahmad. Inquest report marked as Exhibit Ka-8 prepared by S.I. Jamil Ahmad. Inquest report, photo nash and challan nash had been prepared by S.I. Jamil Ahmad which have been marked as Exhibit Ka-8, Exhibit Ka-9 and Exhibit Ka-10 respectively. Letter to C.M.O. for post mortem Exhibit Ka-11 on which Investigating Officer Harpal Singh put his signature and the dead body was sealed and sent for post mortem examination through Constable Yash Pal Singh and Vijai Kumar Sharma with all the requisite documents/papers. The Investigating Officer prepared site plan (Exhibit Ka-12). I.O. enquired about motorcycle by which Virendra, Jauhari Lal (informant) and deceased-Mauji Ram were travelling where he got the information motorcycle had been carried away by someone to give information in the village of the deceased. Medical examination of Virendra injured was done. S.I. Radhey Shyam Dwivedi completed all the formalities regarding medical of Virendra injured. P.W.-6 Head Constable Chhote Lal made entry in the GD regarding reaching of injured Virendra in Police Station. Chitthi Majrubi (Exhibit Ka-7) was written by Head Constable Lajbeer Singh (P.W.-5). Then Investigating Officer on 17.08.1992 arrested accused-Mahendra and Ram Laratey and recorded their statements and accused-Ram Naresh surrendered before the court concerned on 04.09.1992 and thereafter Investigating Officer recorded his statement and submitted charge-sheet (Exhibit Ka-14) against all the three accused on 28.09.1992. P.W. 5 Head Constable Lajbeer Singh prepared a recovery memo regarding one kurta and trouser of Jauhari Lal and one shirt tericot of injured Virendra which were blood stained as Exhibit Ka-4 and kept it in Police Station.
7. P.W. 4 Dr. A. K. Chaturvedi, Medical Officer of P.H.C. Kaimganj on 17.08.1992 at 00.45 a.m. conducted the medical examination of injured Virendra in P.H.C. and found following injuries on his person:-
"Gun powder with abrasion (Multiple) present in the area of 8 c.m. X 4 c.m. right side face. No bleeding tatooing. Advise X-ray right side face."
8. Injury kept under observation. Refer for X-ray. Injury caused by fire arm. Duration fresh. The injury report prepared by the Doctor is Exhibit Ka-3.
9. On the other hand P.W. 3 Dr. S. K. Rathore, Medical Officer on post mortem duty of District Hospital, Fatehgarh on 17.08.1992 at 02.10 p.m. conducted post mortem examination on the dead body of Mauji Ram in District Hospital, Fatehgarh and found as under:-
Internal Examination
1. Head and Neck - NAD and as noted
2. Scalp and Skull - NAD
3. Membranes - NAD
4. Brain - NAD
5. Base - NAD
6. Spinal cord - Not opened
7. Additional major particular - Neck vessels lacerated along with muscles and side neck.
8. Larynx and Tracea - Tracheal rings broken.
9. Right lung - Lacerated in upper part.
10. Left lung - NAD
11. Addl. special particular - One litre blood present on right side chest.
External Examination
1. Average built body eye and mouth are partially open.
2. Abdo distended with greenish discolouration.
3. R. Mortis partially present in upper limb, present in lower limb.
4. P.M. staining present on back and dependent part.
5. Dry clotted blood and dust present on body at paces.
6. Redish fluid coming out from mouth and nostrils.
Ante mortem injuries
1. Gun shot wound of entry 8 cm x 3.5 cm x chest cavity deep on right chest just below right collarbones med. part. Margins are lacerated, inverted with tattooing and blackening communicating with wound of exit 2 cm x 1.5 cm on left side of neck lower part 2 cm left collar bone. Margins are inverted, lacerated and echymosed with tattooing and blackening communicating with a wound of exit 2 cm x 1.5 cm on left side neck lower part 2 cm a velt collar bone.
2. Lacerated wound 3 cm x 2 cm x nail deep on medial aspect direction from right to left slight upward of big toe of right foot. Nail partially present with abrasion around 1 cm width.
3. Lacerated wound 4 cm x 2.5 cm x substance deep on medial aspect of left foot big toe. Nail is partially present surrounded with abrasion 2 cm width.
4. Abrasion 3 cm x 1.5 cm on donial aspect of left foot second toe.
5. Abrasion 2.5 cm x 1 cm donial aspect of left foot third toe.
10. In the opinion of the Doctor the death was caused due to shock and haemorrhage as a result of ante mortem injuries which were sufficient to cause death of victim in the ordinary course of nature. Since he has estimated the duration of death about one day, he opined that the death took place on 16.08.1992 at about 3 pm. He has stated that injury No.1 was caused by some fire arm like country made pistol while injuries No.2 to 5 could be caused by friction with hard substance. The post mortem report prepared by the Doctor is Exhibit Ka-2. Doctor took into his possession from the dead body at the time of post mortem one kurta, one baniyan, one dhoti and one underwear which were sealed in a bundle and sent to the Police Station Kaimganj through Constable who brought the dead body.
11. On 16.08.1992 Virendra (P.W. 2) had written the F.I.R. as stated by informant-Johari Lal, brother of the deceased, marked as Exhibit Ka-1. Blood stained cloths of Johari Lal, brother of deceased and eye witness Virendra (P.W. 2) were sealed by Ram Prakash, H.G. 2922 and Khem Karan, HG 2011. Blood stained cloths of the informant and eye witness Virendra (P.W. 2) had been marked as Exhibit Ka-4. Medical examination of injured-Virendra was done on 17.08.1992 in District Hospital, Etah. Injured was sent to hospital by HG 2902 Mr. Kalyan Singh, Police Station Kaimganj with majroobi chitthi dated 16.08.1992 (Exhibit Ka-7). Inquest marked as Exhibit Ka-8 was started at 16:30 pm on 16.08.1992 and closed at 17:30 pm on 16.08.1992. Exhibit Ka-14 charge-sheet had been submitted on 26.09.1992. The accused appellants denied all the allegations of the prosecution and denied their involvement in the crime. In statement under Section 313 Cr.P.C. stated that they all had been falsely implicated in the case due to enmity and village party bandi and connivance with the police accused-Mahendra in his statement 313 Cr.P.C. had stated that, he had been falsely implicated due to enmity of Ram Naresh. Prosecution had placed reliance on the statement of two eye-witnesses Jauhari Lal (P.W. 1) and Virendra (P.W. 2). P.W. 3 Dr. S. K. Rathour, who had conducted the post mortem (Exhibit Ka-2) and proved post motem and Dr. A. K. Chaturvedi (P.W. 4), who conducted the medical examination of the injured Virendra and proved injury report (Exhibit Ka-3), Head Constable Lajbeer Singh, P.W. 5 who proved the supurdagi memo of the Exhibit Ka-4 of the blood stained cloth of witness-Jauhari and Virendra. (P.W. 6) Head Constable Chhote Lal Tewari, who prepared and proved the chik FIR (Exhibit Ka-5) and G.D. of the registration of the case and chitthi majrubi of Virendra (Exhibit Ka-7) and P.W. 7 S.H.O. Harpal Singh, who conducted investigation of the case and proved Exhibit Ka-8 to Exhibit Ka-14 respectively.
12. P.W. 1 Jauhari is the real brother of deceased-Mauji Ram and informant of the case. He supported the prosecution case in his statement in chief. Accused and informant were well known previously and they used to visit their villages. He is eyewitness of the case. Deceased died by firing from accused. He stated in his oath that murder of his brother-Mauji Ram took place when his brother-Mauji Ram and cousin Virendra (P.W. 2) were returning to the village of their village Kaimganj on motorcycle driven by Virendra. The rear wheel of motorcycle was got punctured as when they reached to floor mill (Atta Chakki) of Shiraj Ahmad in Village Jhabboopur. Virendra (P.W. 2) removed the punctured wheel from motorcycle and carried it to Kaimganj for repairing. Informant and his deceased brother remained there for watching the motorcycle, after some time Virendra returned with repaired wheel and installed the wheel in the motorcycle, thereafter, Virendra carried the motorcycle ahead in front of chakki of Shiraj Ahmad where he and Mauji Ram were waiting Virendra (P.W. 2). Mauji Ram deceased sat behind Virendra and as soon as informant wanted to sit on the motorcycle back of deceased-Mauji Ram all of sudden accused persons came out with country made pistols from western side. Ram Naresh shouted and fired at his brother-Mauji Ram with katta (country made pistol) which hit him front side of chest. Informant quickly jumped on the pillion holding Mauji Ram and Virendra drew away motorcycle ahead. Mahendra and Ram Laratey fired with intention to kill but the same could not hit anyone. When they reached the Bamba culvert of Jahanpur his brother succumbed to his injury.
13. P.W. 2 Virendra, who is cousin of informant and deceased, he was eye witness. He was driving the motorcycle and on his shirt mark of blood was found. He stated that he knows the accused person very well from before as Ram Laratey and Mahendra are close relative who were resident of his own village and they used to visit his village. He wrote contents of first information report as was dictated by Jauhari Lal. Jauhari had put his thumb impression over the written paper. He identified thumb impression of Jauhari on the report P.W. 2 was remained on the spot watching the dead body along with village people whereas Jauhari went to Police Station Kaimganj for lodging the first information report. Virendra (P.W. 2) received injury on his face caused by fire arm. His medical examination was done and injury report as Exhibit Ka-7.
14. P.W. 3 Dr. S. K. Rathour, who conducted the post mortem. The external examination shows that the deceased was of average built body. His eyes and mouth were partially open, abdomen was distended with greenish discolouration. Rigor mortis partially present in upper limb and present in lower limb. Post mortem staining present on back and dependent part. Dry clotted blood and dust present on body at paces. Redish fluid coming out from mouth and nostrils, neck vessels lacerated, muscles out side neck. One liter blood present on right side chest. Pasty food 80 grams present in stomach. Small intestine contained pasty material and gases, large intestine contained faecal matter ad gases. Gall blader was half full and blader contained 10 m.l. urine.
15. P.W. 3 had estimated the duration of death about one day from the time of post mortem. He has clearly stated in his examination-in-chief that death could take place on 16.08.1992 at about 03:00 p.m.
16. P.W. 4 Dr. A. K. Chaturvedi conducted the medical examination at 00:45 a.m. on 17.08.1992 and stated that injury was fresh, time duration 8-9 hours which could be caused by katta (country made pistol). He further stated that no blacking was on the body. Advised X-ray. P.W. 3 had stated that injury Nos.2 to 5 could be caused if deceased sat over motorcycle and his legs were hanging and motorcycle was running. In cross examination P.W. 3 said that shooter would be stand right side of the deceased then injury No.1 could be caused. He stated that it could not be ascertained whether injury was caused by bullet or pellets since nothing had been recovered.
17. P.W.5 H.C. 55 Lajbeer Singh made deposition that he was on duty on 20.08.1992 at about 12:15 hours. He took blood stained cloths of informant-Jauhari Lal and injured Virendra.
Blood stained cloth of Jauhari Lal:
1. One terrycot kurta with blood stained in both sleeves, front and back side of the kurta.
2. One white terrycot pyjama with blood stained.
One white terrycot shirt with blood stained of injured Vierndra taken in custody. Thereafter blood stained cloths of both the persons got sealed and prepared for as Exhibit Ka-4 and made entry in GD as Rapat No.25.
18. P.W. 6 H.C. 48 Chhotelal Tiwari stated he was posted on duty on 16.08.1992 where at 04:30 p.m. informant Jauhari Lal came there with written FIR Exhibit Ka-1 on this FIR he prepared chik FIR No.207 which had been marked as Exhibit Ka-5. He made entry in GD Rapat No.26. He also stated that S.I. Radhey Shyam went along with I.O. Harpal Singh for investigation came with injured Virendra Kumar. This fact had been entered in GD Rapat No.35 on 16.08.1995 on the same day injured was sent for medical examination.
19. P.W. 7 I.O. Harpal Singh made deposition that in August/September, 1992 he was posted as S.O., Police Station Kaimganj. At about 04:30 pm on 16.08.1992 first information report was lodged and had taken charge for investigation. On 16.08.1992 he took the statements of Chhotey Lal and informant Jauhari Lal thereafter he along with force went to the spot where dead body was laid. Where inquest report of the appellant, photo nash, challan nash, chitthi to CMO was prepared in his direction and over there is my signature after that statement of injured was recorded. When enquired about motorcycle, the same was not there. Naksha nazri was prepared. P.W. 2, Virendra was injured and he was sent for medical examination by S.I. Radheyshyam Dwivedi. These all formalities were completed on 16.08.1992. On 17.08.1992 he arrested Mahendra and Ram Laratey and recorded their statements. Accused Ram Naresh surrendered before the court below on 17.09.1992. He recorded the statement of Ram Naresh in District Jail. Investigating Officer after recording statement collecting clinching evidence against the accused-appellant and filed a charge-sheet as Exhibit Ka-14.
20. On 27.03.1993 three charges were framed, firstly, that on 16.08.1992 at about 03:00 p.m. on the achara road in the vicinity of village Jhabboopur within the circle of P.S. Kaimganj, Disrcit Farrukhabad did commit murder by intentionally causing the death of Mauji Ram with Tamancha and that thereby committed an offence punishable under Section 302 I.P.C.; secondly, that on the aforesaid date, time and place in furtherances of your common intention, your associates Mahendra and Ram Ladetey did an act, to wit, fired at Jauhari Lal and Virendra with such intention or knowledge and under such circumstances that if by that act the deaths of aforesaid Jauhari Lal and Virendra have been caused you would have been guilty of murder and that you thereby committed an offence punishable under Section 307/34 I.P.C.; thirdly, that on the aforesaid date, time and place did an act, to wit, fired at Virendra with such intention or knowledge and under such circumstances that if by that act you had caused the death of Virendra, you would have been guilty of murder and that you caused hurt to said Virendra by the said act, and thereby committed an offence punishable under Section 307 I.P.C.
21. After examination of prosecution eye-witnesses statement of accused persons were recorded under Section 313 Cr.P.C. which had tried to give different colour to the prosecution version and stated that due to previous enmity they have been falsely implicated that they had not participated in the incident and stated that they would give evidence but as a matter of fact there is no evidence. Prosecution to prove its case examined Jauhari Lal as P.W. 1, who is the eye-witness in the case, Virendra (P.W. 2) injured eye-witness. Trial court convicted accused-appellant being aggrieved against the conviction order, accused-appellant preferred present appeal.
22. We have heard learned counsel for the appellant and perused the entire records.
23. Prosecution has examined seven witnesses. Accused persons were examined under Section 313 Cr.P.C. wherein they have denied the prosecution evidence and claimed false implications. After hearing and analysing the evidence on record, all the accused persons were convicted under Sections 302 and 307/34 I.P.C. vide impugned judgment and order dated 30.10.1996 and they were sentenced.
24. Learned counsel for the appellants submit that presence of P.W. 1 and P.W. 2 at the alleged spot were doubtful. While registering the FIR the name of P.W. 1 Virendra Kumar does not find place. FIR is anti-dated and delayed. All the alleged eye-witnesses P.W. 1 Mauji Ram, P.W. 2 Virendra are interested in inimical witnesses. Informant Mauji Ram is brother of deceased, Virendra (P.W. 2) is cousin of deceased. That spot of the alleged incident could not be established. Place of occurrence is not proved.
25. That there are contradiction and in consistencies in the statement of witnesses. As per prosecution version deceased was going on motorcycle but his motorcycle was not found on the spot. There is no evidence that all the accused persons were having common intention to commit murder of the deceased. Incriminating article or weapon used in committing murder had not been recovered. No blood stained cloths were sent for examination by the Investigating Officer. It has submitted that there is absolutely nothing to indicate that accused/appellants were aware that deceased would pass from the way where allegedly incident took place. As per prosecution version deceased-Mauji Ram and informant Jauhari Lal were stayed about half an hour near chakki, at this spot incident occurred/happened. There is absolutely no evidence that all the accused persons have any pre-arranged plan to commit murder of the deceased.
26. Per contra, it has been submitted by Sri Krishna Pahal, learned Additional Advocate General and Sri L. D. Rajbhar that all eye-witness have made clear cogent statements regarding the incident. The testimony of these witnesses cannot be doubted on the ground that they are related to deceased that they were earlier accused in under Section 307 I.P.C. therein Ram Naresh was injured. Due to alleged enmity may be motive to commit murder of the deceased-Mauji Ram. P.W. 1 Jauhari Lal has lodged prompt FIR naming all the accused-appellant and his version finds ample corroboration from P.W. 2 Virendra. It is submitted that substantially there was no change in the spot of the incident. Incident had taken 5 k.m. before from the spot where dead body was kept. Regarding common object it is argued that there is evidence that all accused-appellants had made exhortation/shouted to kill deceased and as a consequence of the same accused-appellant fired over deceased P.W. 1 and P.W. 2 with common intention to kill. Further the learned Additional Advocate General appearing for the State that mere non recovery of pistol or cartridge does not detract the case of the prosecution where clinching and direct evidence is acceptable. Likewise absence of evidence regarding recovery of used pellets, blood stained clothes cannot be taken or construed as no such occurrence had taken place.
27. We considered rival submissions of both the parties and perused the record.
28. In evidence P.W. 1 has deposed that P.W. 1 Jauhari Lal and P.W. 2 Virendra are close relative of the deceased. P.W. 1 Jauhari had given a very cogent explanation as to why he and Virendra were with the deceased at the time and place of occurrence. He has stated in his cross examination that on the day of occurrence he and his brother Mauji Ram went to the house of Chokhe Lal who lived in Mohalla-Dastoor Nagla of Town-Kaimganj for taking Rs.2,000/- on loan for agriculture purpose. Chokhe Lal was his old creditor with whom he and his brother had terms of taking money. He stated in his cross examination that he and his brother-Mauji Ram did not know driving of the motorcycle, therefore, he brought his cousin-Virendra for driving the motorcycle. Investigating officer had not mentioned the registration number of the motorcycle in the first information report or in his statement under Section 161 Cr.P.C. P.W. 2 Virendra in his cross-examination has stated that Chandi Lal resident of Village Chhilwada, who is brother-in-law (Sala) of the deceased-Mauji Ram, has given the information to his family members took away motorcycle in order to give information to the family members. On account of this motorcycle was not present on the spot when Investigating Officer reached the spot. On this account prosecution cannot be said that the prosecution have been failed to make proper investigation. The Hon'ble Court in various judgments has held that any irregularity or illegality during the course of investigation in collecting the materials or otherwise will not affect the trial. On the basis of material placed before the court unless injustice are prejudices thereby caused and the materials are unacceptable in evidence. Further P.W. 2 Virendra had stated in his cross examination that he disclosed the number of motorcycle as UP 0765577 to Investigating Officer but the Investigating Officer had not recorded the same.
29. P.W. 2 Virendra has stated in his cross-examination-in-chief that he fully knows all accused persons, namely, Mahendra and Ram Laratey as they were close relative of accused Ram Naresh. They all are resident of his own village. He stated that accused, informant and deceased had previous enmity and had motive. Chhotey Lal, the father of Mahendra, who was an witness in the case under Section 307 I.P.C. against deceased Mauji Ram, for making an attempt on the life Suresh, the brother of accused Ram Naresh. P.W. 1 Jauhari has stated in his cross examination that the sasural of his brother is in village Chilbara and sasural of the accused Ram Naresh and his two brothers Khushi Ram and Suresh is also in the same village. Accused-Ram Laratey is the real uncle of accused-Mahendra. The motive is clearly mentioned in the FIR (Exhibit Ka-1) in which it is clearly mentioned that Mauji Ram (deceased) gave evidence against accused-Ram Naresh in a case. Ram Naresh lodged first information report against Mauji Ram under Section 307 I.P.C. and enmity was going between Ram Naresh and deceased -Mauji Ram and rest accused-Mahendra and Ram Laratey were close relative of accused-Ram Naresh and his brother. This fact regarding enmity has been proved as well as admitted by the accused person themselves and P.W. 1-Jauhari in his statement in chief. Enmity is double edged weapon and its service can be placed on both sides. It would be the ground of attack and also the ground of false implication but since the incident took place in broad day light and the accused persons were fully known to each other. There could not be any doubt to the identity of the accused person. These two witnesses are close relative to Mauji Ram. Motive is not an essential ingredient though it may be relevant, however, in a catena of decisions, Hon'ble Apex Court has held that motive for doing a criminal act is generally a difficult area for the prosecution to prove since these cannot be normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. In AIR 1982 SC 1076, State of U.P. Vs. Suresh @ Chhavan Singh and others it has been held by Hon'ble Apex Court that statement of a family member of the deceased cannot be rejected on the ground that he is related to the victim. What is required is that the statement is to be scrutinized with case. All the two eye witnesses, even though they are interested and partisan witnesses, have made consistent and natural statements.
30. The medical evidence and ocular evidence has no corroboration as argued by the accused-appellants. P.W. 3 Dr. S. K. Rathour conducted the post mortem has stated in his cross examination that injury No. 1 is a gun shot injury and on body blackening is present, injury received on legs could be come while legs were hanging on motorcycle. P.W. 3 Dr. S. K. Rathour in his cross-examination has stated that injury No.1 is gun shot wound was caused by the assailants and its direction was right to left slightly upward. Both the witnesses Jauhari and Virendra have stated that Ram Naresh (shooter) from the front made fire which hit Mauji Ram on his right side of chest. P.W. 2 Virendra has deposed that Mauji Ram sat behind Virendra as Jauhari was sit behind Mauji Ram then fire came from the right side which hit Mauji Ram, immediately Jauhari sat behind Mauji Ram, Virendra fastly drove away the motorcycle. Deceased's legs were hanging and touching on the ground, the injury found over the leg of the deceased has been supported by the statement of P.W. 3 Dr. S. K. Rathour. There is no discrepancy between medical evidence and ocular evidence. The ocular evidence regarding time of occurrence is also fully corroborated by the medical evidence. P.W. 3 Dr. S. K. Rathour has estimated the duration of death about one day at the time of post mortem. P. W. 3 Dr. S. K. Rathour contended that the deceased must have taken food about 2-3 hours prior to his death which is very much corroborated by the statement of P.W. 2-Virendra, who stated that at 10 a.m. they started to Kaimganj after taking food, which means food was taken before 10 am.
31. The condition of abdomen was distended with greenish discolouration and partial rigorous mortis in uper limb go to show that more than one or two days had passed after death. In the instant case, rigorous mortis had passed away partially from the upper limb while it was present on the lower limb and formation of greenish discolouration of the abdomen skin goes to show that must have taken place 18-24 hours.
32. The injury No.1 of deceased is gun shot injury which was caused by fire arm, the rest of injury Nos.2 to 5 are fully explained by P.W. 2 Virendra and as well as by Doctor (P.W. 3) that these injuries could be possibly caused by friction with the floor whether the deceased was sitting on pillion with hanging legs down on both sides were rubbing with the floor/road. The ocular evidence is very much clear and clinching that death was caused by Ram Naresh, who made a fire with his country made pistol which hit Mauji Ram on his right side of chest. The injury received by Virendra (P.W. 2) has been discussed by the P.W. 4 Dr. A. K. Chaturvedi, who conducted the medical examination of P.W. 2 Virendra at 00:45 a.m. on 17.08.1992. He described Virendra's injury as fresh and said that injury was caused by the discharge of fire arm by country made pistol and could be caused on 16.08.1992 at about 3 p.m. and has explained that what fresh means duration of six hours and not beyond that. Injury received by injured-Virendra and deceased Mauji Ram and statement made by injured and informant, who are eye witnesses, are corroborating to each others as well as fully supporting medical evidence hence no doubt can be raised. We do not find any inconsistency between the ocular evidence and medical evidence. Further it is clear from the post mortem report of deceased-Mauji Ram that one litre blood present on the right side chest. Thereby it can be said large part of blood flown inside and stored on the right side of the chest.
33. Injury of Virendra is not mentioned in the FIR or in the statement of the witness-Jauhari. The witnesses have given a proper reason for not disclosing injury in FIR. The statement of P.W. 1 Jauhari in his cross examination has stated that since no blood coming out from the injury of Virendra and nothing abnormal was looking, therefore, P.W. 1 did not mention about injury of Virendra (P.W. 2). He further stated that since his brother had been killed so he was perturbed and shout and forgot to mention in the FIR as his injury was minor.
34. The Investigating Officer-Harpal Singh reached the spot at about 05:30 pm after registration of the case at Police Station at 04:30 pm. The inquest report, Exhibit Ka-8 shows that inquest proceedings were completed between 05:30 pm to 06:30 pm. Investigating Officer prepared inquest, photo nash, Exhibit Ka-9, challan nash, Exhibit Ka-10, letter to CMO Exhibit Ka-11. Death body was sealed and sent for post mortem with sample of seal of another document inspected the site plan and prepared site plan Exhibit Ka-12. Interrogated injured P.W. 2-Virendra on the spot.
35. Learned counsel for the accused argued and raised doubt about non recovery of blood stained soil and remnants of shots like pallets/tillies, bullets weds or empty cartridges from the spot. From the statement of P.W. 1 and P.W. 2 it is clear that Ram Naresh gun shot hit the deceased and two shots fired by Mahendra and Ram Laratey did not hit anyone. It is not relevant as remnants of the shots might not have been recovered from the spot as it was a public thoroughfare. Further since blood of the deceased-Mauji Ram fell on the arms of both the witnesses so whatever blood oozed out from the wounds of deceased-Mauji Ram rubbed with the clothes of the P.W. 1 and P.W. 2. Investigating Officer recovered blood stained clothes from the P.W. 1 and P.W. 2. On this point we have to say that if a case is based upon direct eye-witnesses account, the testimony of the eye witnesses is of paramount importance the report of the ballistic expert, if obtained, would in any case be in the nature of an expert opinion and not conclusive. The failure of the Investigating Officer in sending blood soil and blood stained clothes to forensic lab would not be fatal to the prosecution case when the same is fully established from the testimony of eye-witnesses whose presence on the spot cannot be doubted. Hon'ble Apex Court in State of Punjab Vs. Hakim Singh, 2005 Criminal Law General 4111 (SC) it was observed that when testimony of witness is found truthful and reliable then seizure of fire arm recovery and sending it for examination by forensic expert would have only corroborated the prosecution case but not sending them to forensic expert is not fatal.
36. It is urged that no independent witness has been examined by the prosecution whereas the shops of cycle, chakki and dispensary were opened at the time of occurrence and many people arrived at the place of occurrence and no independent person's statement had been recorded. As P.W. 2-Virendra in his cross examination had admitted that there were three shops were opened at the place of occurrence, one chakki, one cycle shop and the third was doctor's shop. At the time of occurrence some people were present at the shop but he did not know the names of those persons. P.W. 7 Inspector Harpal Singh, Investigating Officer, has stated in his cross examination that shops mentioned above were opened but he did not interrogate any other witness except Jauhari Lal and Virendra. It has come in the statement that shops were opened but it is nowhere stated that there was crowd on the road. This argument has no merit, inasmuch as, it is settled that it is the choice of the prosecution to produce only those witnesses which it thinks are relevant to prove its case. It is further known to all that members of public may be reluctant to come forward. Moreover, they could not have identified the assailants. Non-examination of a member of public would have no bearing on the prosecution case.
37. Further, on the law of appreciation of testimony of related or interested witness, it is to be noted that the Apex Court has observed in Ram Ashish Rai Vs. Jagdish Singh, 2005 (10) SCC 498 that the requirement of law is that testimony of inimical witness has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on thrashhold by branding them as inimical witnesses. By now it is well settled principles of law that enmity is double edged shot, it cannot only be a reason of false implication. It can also be a ground for assault. Therefore, a duty is cast upon the Court to examine the testimony of inimical witness with due caution.
38. Similarly in Pyara Singh and another Vs. State of Punjab, AIR 1977 SC 2274 (1977) (4) SSC 452 it has been held that it is well settled that the evidence of interested or inimical witnesses is to be scrutinized with care but cannot be rejected merely on the ground of being a partisan witness. If on a perusal of the evidence, the Court is satisfied that the evidence is creditworthy, there is no bar in the Court relying on the said evidence. Hon'ble Apex Court in Ramji Singh and others Vs. State of Uttar Pradesh, reported in 2020 SCC (2) 425 has held that clear, cogent and almost identical testimony of interested eye-witnesses (there being previous enmity) if fully corroborated by medical evidence and prompt first information report there is no reason to doubt prosecution case.
39. Further counsel for the accused-appellant submitted that accused-Mahendra has not been assigned any role in causing death to deceased-Mauji Ram and injury to injured-Virendra. P.W. 1 Jauhari deposed that when Virendra moved motorcycle, Mahendra and Ram Laratey fired. Both fire did not hit any one but from the fire of Mahendra gun powder abrasion found on the face of Virendra (P.W. 2). P.W. 2 Virendra deposed that he has received injury by the gun shot fired by Ram Naresh. Trial court has convicted accused Mahendra under Section 302 read with Section 34 and Section 307 I.P.C. P.W. 1 stated each one made fire to kill them. It is admitted from the statements of P.W. 1 and P.W. 2 that all accused fired with intention to kill. Section 34 of Indian Penal Code common intention invoke principle of joint liability in commission of criminal act. In order to invoke the principle of joint liability in the commission of a criminal offence as laid down in Section 34, the prosecution should show that the criminal act was done by one of the accused persons in the same manner as if the act was done by him alone. Here accused Ram Naresh, Mahendra and Ram Laradey came out with country made pistol before deceased-Mauji Ram, P.W. 1 informant Jauhari and P.W. 2 Virendra, who was driving motorcycle and made fire over them to kill all. Separately accused Ram Naresh's fire hit the deceased Mauji Ram. Accused Mahendra and Ram Laratey fire did not hit but gun powder abrasion found over the face of P.W. 2 Virendra. Here all the accused had common intention to kill deceased Mauji Ram, Informant Jauhari (P.W. 1) and Virendra (P.W. 2). Hon'ble Apex Court in Mohan Singh Vs. State of Punjab, AIR 1963 SC 174 has held that common intention denotes action in consort and a prior meeting of minds. The acts may be different and may vary in their character but they are all actuated by the same common intention.
40. As far as the statements of the eye-witnesses recorded in the case are concerned, they are almost identical and there are no major contradictions between them. The medical evidence fully corroborates the prosecution story. According to both eye-witnesses (P.W. 1 and P.W. 2) accused persons fired with intention to kill them. We are of the confirmed view that the materials placed by the prosecution clearly prove the guilt of the three convicts/accused, namely, Ram Naresh, Mahendra and Ram Laratey (dead), who were armed with gun and arm with common intention to fire gun shots resulting in death of Mauji Ram as well as causing injuries to Virendra (P.W. 2), In such circumstances, their conviction and sentence awarded by trial court is hereby confirmed and as we do not find any merit in this appeal and we hereby dismissed it.
41. In view of what has been discussed above, we are of the view that the impugned judgment and order dated 30.10.1996 passed by the learned Sessions Judge, Farrukhabad does not call for any interference by this Court. Accordingly, the appeal is dismissed.
42. The accused appellants Ram Naresh and Mahendra are on bail. Their bail bonds are cancelled and sureties are discharged. They shall surrender forthwith before the concerned court and be taken into custody and sent to jail to serve their sentence.
43. Office is directed to transmit a copy of this order to the trial court concerned for information and compliance. The compliance report be submitted through the Registrar General, High Court, Allahabad.
Order Date :- 12.05.2020 Nitin Verma