Allahabad High Court
Sheo Kumar Alias Batooni Singh vs State Of U.P. on 7 March, 2018
Bench: Naheed Ara Moonis, Krishna Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Court No. - 46 Case :- CRIMINAL APPEAL No. - 1894 of 1986 Appellant :- Sheo Kumar alias Batooni Singh Respondent :- State Of U.P. Counsel for Appellant :- I.M.Khan, Devendra Kumar Singh Counsel for Respondent :- D.G.A. Hon'ble Naheed Ara Moonis,J.
Hon'ble Krishna Singh,J.
(Delivered by Krishna Singh.J.) The instant criminal appeal has been preferred on behalf of the accused-appellant Sheo Kumar @ Batooni Singh s/o Mauji Singh, against the impugned judgment and order dated 28.6.1986 passed by the Additional Sessions Judge, Fatehpur in Sessions Trial No. 200 of 1985 (State Vs. Sheo Kumar @ Batooni Singh) arising out of Case Crime No. 40 of 1985 under Sections-302 and 394 of the Indian Penal Code , Police Station Malwan District Fatehpur whereby he has been convicted and sentenced to undergo life imprisonment for commission of offence punishable under Section-302 IPC and further to undergo seven years rigorous imprisonment for the offence punishable under section 394 IPC. Both the sentences were directed to run concurrently.
The emanation of the facts from the prosecution in a short conspectus is that the deceased Laxmi Narayan was the real uncle of informant Buddi Lal and the husband of Smt. Somwati. The Buddi Lal , the informant lodged an FIR on 17.3.1985 at 8.15 a.m. in respect to the incident alleged to have taken place in the intervening night of 16/17 March 1985 at about 12 to 12.30 A.M. Vide Case Crime No.40 of 1985 under sections 302 and 394 of the IPC Police Station-Malwan District- Fatehpur with the accusations that the complainant along with his uncle Laxmi Narain who was equipped with licenced gun aunt Smt. Somwati Devi and their son Veenu were present at the Tubewell. The son of Nankoo Dhobi, Munni Lal was also present there. At about 11.30 p.m. in the night Sheo Kumar alias Batooni son of Mauji Singh came and enquired about Laxmi Narain , the uncle of the complainant and climbed over the roof. The accused appellant ensued confabulation with regard to exchange of money to the tune of Rs. 2000/- which was given by Laxmi Narain to him. The said money was demanded several times by the victim but the accused appellant went on adopting the stalling and dilatory tactics. The accused appellant took furious shape murmuring that he will repay the entire amount to the victim to settle the score. On this issue some heated and exasperated words were exchanged aggravating the situation. The accused appellant could not inhibit his ire and irate and snatched the single barrel gun from the victim Laxmi Narain and loaded the same taking out the cartridge from the belt and fired at him. When the complainant and other persons tried to apprehend the accused appellant, he again fired unleashing a reign of terror for eliminating the entire progeny. The complainant and the other persons present at the roof were highly horrified and frightened and the accused appellant fled from the scene of occurrence armed with the gun of Laxmi Narain (victim). The said incident had taken place at about 12 to 12.30 a.m. tn the night. The complainant and the other members present at the Tubewell made hue and cry loudly which thundered in the locality and a number of persons gathered on the spot and ascended on the roof of the tubewell. They found that the victim Laxmi Narain was hit with pellet at the left side of face on the nose. No-body could muster courage to pursue the accused appellant on account of trepidation, horror and panic let loose by the accused appellant. They were present to look after the cultivation after severance of grains of peas at the tubewell. The identification of the gun was shown to be single barrel bearing no. 2570. The dead body of the victim was lying on the spot. The complainant in association with other persons went at the police station to lodge the first information report for taking appropriate action.
Complainant got the written report Ext. Ka-1 scribed by one Krishna Kant and went to P.S. Malwan on 17.3.1985 at about 8:15 A.M. and submitted there.
On the basis of written report Ext. Ka-1 submitted by the complainant, Chik FIR Ext. Ka-3 was prepared and the case was registered at 8:15 on 17.3.2015 against the accused appellant vide Case Crime No. 40 of 1985 under Sections-302 and 394 of the Indian Penal Code at P.S. Malwan, District-Fatehpur. The endorsement of which was made in G.D. Ext. Ka-4.
After registration of the FIR, S.I. Mahabir Prasad Mishra was entrusted to conduct the investigation. The investigating officer swung into action and recorded the statement of the complainant and head Moharrir Brindaban Sharma, thereafter proceeded towards the place of occurrence at about 10.10 a.m. on 17.3.1985 . The corpse of Laxmi Narain (deceased) was lying on the roof at the tubewell. There was no stair to climb at the roof. Anyhow the investigating officer climbed at the roof with the help of the pipe where the wife and child of the deceased Laxmi Narain were present. The investigating officer took into custody the corpse of Laxmi Narain and prepared the inquest report, photo Lash, Challan Lash, letter to CMO, letter to R.I. and sealed the dead body. The corpse of Laxmi Narain was sent to the mortuary through Constable Anil Kumar and V.C.Rafiq. The investigating officer found the blood lying near the corpse. He collected blood stained and plain earth in two separate containers and were sealed of which the memo was prepared. The investigating officer prepared the memo of the wad and two empty cartridges found from the water tank. The search light belonging to the accused appellant was also found and prepared its memo. The investigating officer also prepared the site plan and also recovered the gun and belt of cartridges belonging to the deceased Laxmi Narain from his field which were exhibited as Ext. Ka 1 and Ext. Ka 2. He sealed all the incriminating articles and deposited in the Malkhana.
The post mortem of the deceased was performed by Dr. Swatantra Singh (P.W.3), Medical Officer, District Hospital Fatehpur on 18.3.1985 at about 4.30 p.m. The deceased was found to be a young man of average built. Following ante-mortem injuries were found on the person of the deceased Laxmi Narain.
1. Fire arm wound of entry left side cheek, nose and upper lip 1'1/2 '' x 1'1/2'' x brain cavity deep Margins were inverted. Blackening and tatooing present with fracturing left upper jaw and occipital bone. Direction from ant. to post.
2. Membrances were lacerated. Brain was also lacerated. Heart was empty. Stomach was also empty. Large and small intestines were also empty. Gall bladder was full. Bladder was normal empty and five big size pellets were recovered from the cavity of brain which were sealed and sent to the police for necessary action. Duration of death was 1'1/2 day old.
Cause of death : Death occurred due to shock and hemorrhage as a result of injury mentioned.
Mahabir Prasad Mishra, S.I. who was entrusted to investigate the matter further proceeded with the investigation and recorded the statement of the complainant and the witnesses under section 161 Cr.P.C. and also completed necessary formalities. The investigating officer (P.W.5) submitted the charge-sheet against the accused appellant under Section-302 IPC after collecting credible and clinching materials showing his complicity in the commission of the said offence and the same was exhibited as Ext. Ka-17 The case was committed by the Chief Judicial Magistrate, Fatehpur to the court of Sessions/Trial Court for trial.
The Trial Court after hearing the prosecution as well as defence and perusing the material available on record framed charges against the accused-appellant under Section-302 as well as under Section-394 of the IPC. The charges framed were read over and explained to the accused-appellant. He abjured the guilt and claimed to be tried, hence, the prosecution was called upon to lead the evidence.
In order to prove guilt of the appellant,, prosecution had examined Informant Buddi Lal (P.W.1), Smt. Somwati w/o Laxmi Narain (deceased) (P.W.2) ,Dr. Swatantra Singh (P.W.3), Constable Clerk Brindaban Sharma (P.W.4), Investigating Officer S.I. Mahabir Prasad Mishra P.W.5) who investigated the case and submitted the charge sheet against the accused-appellant.
After conclusion of the prosecution evidence, the accused-appellant was examined under Section 313 Cr.P.C. and in his statement he denied all the charges levelled against him and pleaded for innocence. He stated that he has falsely been implicated in the case due to enmity. It has also been averred that on account of property dispute between the deceased Laxmi Narain and his wife, there was battered terms between them. The brother-in-law of the deceased was a man of bad character and was in search of eliminating the victim. The victim wanted to burn his wife in a Kothari. The victim was done to death in a mysterious circumstances in the darkness of night and the appellant has been entrapped in the present case out of personal vendatta and evil design.
The appellant-accused in his defence had examined Pradeep Kumar Tripathi, (D.W.1) hand-writing and finger print expert, who had proved the report Ext. Kha-1. He averred in his statement on oath that he had compared the disputed signature of Buddi Lal on Ext. Ka-1 with admitted signatures of Buddi Lal (PW-1) on his statement inscribed in the court on 20.3.1986. He further stated that in his opinion the disputed signature had not been executed by the writer of the admitted signature. The disputed signature is the result of forgery by impersonation.
The learned trial judge upon appreciation and appraisal of evidence on record convicted and sentenced the accused appellant to undergo life imprisonment under section 302 IPC and seven years rigorous imprisonment under section 394 IPC.
We have heard Sri Devendra Kumar Singh, learned counsel for the appellant, Sri P.K.Singh, learned counsel for the complainant as well as learned AGA appearing on behalf of State and perused the entire material on record.
Learned counsel for the accused-appellant contended that the judgment and order passed by the learned trial judge is per se illegal and erroneous whereby the appellant has been awarded life imprisonment merely on suspicion while there are serious irregularities and lapses on the part of the prosecution. All the witnesses produced by the prosecution are highly interested and inimical who succeeded in accomplishing their evil design. All the witnesses had claimed themselves to be present at the crucial juncture of incident but none of them sustained even minor injuries. There are material inconsistency in the prosecution version and the statement of the witnesses which itself creates suspicion about the incriminating circumstances framed against him. The first information report had been lodged with due deliberation and consultation and the explanation given by the prosecution does not unravel about its verity and truthfulness about the prosecution version. The presence of the witnesses is highly doubtful. No strong motive has been attributed for committing the said incident. The motive assigned to the appellant for committing the gruesome and barbarous murder of uncle of the complainant namely Laxmi Narain does not inspire any confidence corroborating its truthfulness and probity. The accused-appellant is absolutely innocent and had been made scape goat on account of conspiracy of the complainant and other witnesses. The complainant Buddi Lal (P.W.1) is the nephew of the deceased and Smt. Somwati (P.W.2) is the wife of the deceased. Both are highly interested and biased witnesses. As per prosecution story at the time of incident Binu son of the deceased and labourer Manni Lal were alleged to be present adjacent to the place of occurrence, but they have not been examined by the prosecution to corroborate the evidence of the complainant Buddi Lal (P.W.1) and Smt. Somwati (P.W.2). In such situation, the testimony of Buddi Lal (PW-1) and Smt. Somwati ( PW-2) cannot be taken into account for the purpose of reliability and credibility of the prosecution version.
As per prosecution version, the alleged incident occurred in the intervening night of 16/17.3.1985 but no source of light was indicated in the FIR hence it was impossible for the prosecution witnesses to identify the accused in the intervening dark night. It is also proved from the defence evidence that the FIR Ext. Ka-1 does not bear the signature of the complainant Buddi Lal (P.W.1). The scribe of the FIR Krishna Kant Mishra was not examined by the prosecution to dispel aggravating situation hence the entire prosecution story being the outcome of concoction and fabrication cannot be trusted. The inordinate delay of eight hours in lodging the FIR is highly fatal to the prosecution version casting shadow on its correctness and faultlessness. The blood stained and plain earth collected from the place of occurrence as well as gun and empty cartridges recovered contiguous to the place of occurrence were not sent by the investigating officer for chemical examination to the Forensic Science Laboratory and Ballistic Expert respectively which creates serious doubt about veracity of the prosecution story. It was not established from the prosecution evidence on record that at the time of alleged incident accused-appellant had committed the offence of robbery or in attempting to commit robbery voluntarily caused hurt to the victim Laxmi Narain thus the conviction and sentence awarded under Section-394 IPC is highly cryptic and cannot sustain. The prosecution has failed to prove its case beyond reasonable doubt against the accused-appellant, therefore, the appeal against the impugned judgment and order stands on justifiable grounds and may be allowed.
It is alternatively contended that in case the prosecution version taken to be true in entirety, it is evident from the prosecution evidence on record that death of the deceased was caused by the accused-appellant on account of sudden quarrel and altercation and it was the case of single fire without premeditation. In these surrounding facts and circumstances of the case, the accused appellant may hardly be held guilty of culpable homicide not amounting to murder under section 304 IPC and not under Section 302 IPC.
Per contra Sri P.K. Singh, learned counsel for the complainant and Sri Ali Murtuza learned AGA appearing on behalf of the State contended that from the prosecution evidence, available on record, the case of prosecution is proved beyond reasonable doubt against the appellant-accused. The impugned judgment and order passed by the trial court is based upon proper appreciation of evidence available on record. The finding recorded by the trial court does not suffer from any legal, procedural or factual infirmity or vulnerability. Learned AGA further contended that impugned judgment and order passed by the Trial Court is based upon proper appreciation of evidence, available on record, and finding recorded by the trial court did not suffer from any infirmity.
There is no embellishment in the testimony of Buddi Lal Gupta (P.W.1) and Smt. Somwati (P.W.2). Buddi Lal Gupta (complainant-PW.1) in his statement on oath everred that deceased Lakshmi Narayan was his real uncle. Smt Somwati is the widow of the deceased Laxmi Narain. Binnu is the son of deceased. Laxmi Narain (deceased) was engaged in the profession of cultivating and irrigating his field by tube-well situated two furlongs away towards east from the abadi of Village Asta. The complainant had sown the pea sharing with the victim (his uncle). There were two rooms towards north and south of the tubewell and one varandah. The tube-well was being operated with diesel. There is a water tank adjoining to the southern room. It is four feet high from the land. The roof does not have concrete coverage. Anybody can ascend upon the roof by scaling the water tank with the help of pipe. It is established that prior to occurrence accused-appellant borrowed a sum of Rs.2,000/- from the deceased in connection with the marriage of his sister which he did not intend to repay. Accused-appellant Sheo Kumar alias Batuni had cordial relation and the presence of the accused appellant is fully established as the accused-appellant picked up the gun and after taking out cartridge from the cartridge belt, loaded the gun with an intent to eliminate the victim Laxmi Narain and as a consequence whereof fired at him which hit him at the vital part of left side cheek ,nose and upper lip thus the victim succumbed to injuries. The accused appellant had formed guilty intention to eliminate the victim Laxmi Narain. The victim had succumbed to unnatural and ghastly death. The complainant and other persons present there ran abruptly raising alarm but the accused-appellant unleashed a reign of terror by firing gunshot and threatening that they will face the same consequences in case any body dare to come forward. The accused-appellant creating panic jumped down from the roof holding gun and cartridge belt and ran away towards the west. It is fully corroborated that the deceased had succumbed to injuries as a result of gun shot. Blood was scattered around the corpus. Accused-appellant is the resident of same village and the complainant was well aware about him since childhood . The lantern which was glittering in the intervening night belonged to the deceased. He used to lighten the lantern at evening. He did not mention the lantern to have hanged at Shisham tree. He had forgotten to mention the lantern to remain there. At the time of arrival of accused-appellant, the complainant was sitting where lantern was lightened. He could not recall whether he had shown to Sub Inspector the place of sitting at threshing floor. The place where he was sitting was four to six paces away from the tube-well room's roof where the uncle of the complainant was done to death by firing. When the victim demanded the payment of loan to the tune of Rs. 2,000/- from the accused-appellant, the accused appellant burst into anger and took furious turn. The victim did not use any foul words hurting the sentiments of the accused appellant. The victim displayed his wrath to bring a case against him. The accused appellant had developed mens rea to eliminate him hence he took drastic step of firing snatching the gun from the victim. The accused-appellant fled away from the scene of occurrence unleashing reign of terror and horror. The complainant P.W.1 remained present at tube-well where the corpus was lying on the cot in a pool of blood. A number of persons of the locality gathered at the place of occurrence even in the night. The scribe of the first information report was Krishna Kant Mishra who has written the FIR on the information of Buddhi Lal Gupta (P.W.1) .
Smt Somwati (P.W.2) in her statement on oath averred that her husband Lakshmi Narayan was done to death about one year and a month ago. The murder was committed at night. At that juncture, she was present at the threshing floor (Khalihan). She was looking after the crops of pea. Her nephew namely Buddhi Lal, her son Binnu and labourer Munni were also present there. Her husband was on the rooftop of the tube-well. Threshing floor was in contiguous to the tube-well. The lantern was lightened hanging on the branch of a tree standing in the threshing floor (Khalihan). To climb upon the roof of the tube-well, one had to take help of pipe connected with the tank. It was around midnight. The accused-appellant enquired from me and on hearing his voice, her husband called him and the accused appellant climbed on the rooftop with the help of pipe connected with the tank. At that juncture, her husband was alone on the rooftop. Her husband and accused-appellant started to settle the score over Rs. 2,000/- which was taken by the accused-appellant at the occasion of settlement of marriage of his sister. Initially the husband of Somwati (P.W.2) demanded the money from the accused appellant showing his need for money. When the accused appellant adopted stalling and dilatory tactics, heated words were exchanged between them. Her husband had neither threatened nor used any abusive words lowering the position of the accused appellant. The accused appellant could not squeeze his anger and indignation and snatched the gun lying on the cot and fired pointing towards the victim which fatally hit him . Upon hearing the noise of gun shot, Somwati (P.W.2) shrilled and screamed bewailing, the accused-appellant let loose reign of terror by opening one more fire in the air extending threats to the same consequences. The accused-appellant fled towards west jumping from the roof with the gun and the belt of cartridges of her husband. The accused appellant left his torch which was exhibited as Ext-17. On hearing her alarm, a number of persons from the locality gathered at the place of occurrence. Next day the Sub-Inspector visited the spot then she narrated about the incident to him. Her husband did not use to sleep on the tube-well daily. He used to come there whenever he was in need of doing some work. Her husband used to sleep on the tube-well since the time of threshing. The crops were lying in the threshing floor prior to three or four days . On the fateful day of incident, crushing of the pea had started. She went there on her own will. She and her son took meals prior to some moment of the sunset. The victim did not take his meal on account of some indisposed condition. The accused-appellant had taken money from the husband of Somwati (P.W.2) prior to two years of the incident.
Dr. Swatantra Singh (P.W.3) in his statement on oath proved the post mortem report (Ext.Ka.2) which unravelled that on 18.3.1985 at 4:30 P.M. he had conducted the autopsy of the deceased Lakshmi Narain aged about 40 years s/o Jagannath r/o Village-Asta, Police Station-Malwan, District-Fatehpur. The ante-mortem injuries of the deceased Laxmi Narain was sufficient to cause dearth which has been discussed in the preceding para. Dr. Swatantra Singh (P.W.3) had also identified the five pellets which were recovered from the corpus and were sealed in an envelop and was opened in the court. The rigor mortis had passed over from both his hands and was present in both the legs.
Brindaban Nath Sharma Head Moharrir (P.W.4) in his statement on oath stated that on 17.3.1985, he was posted at Police Station-Malwan as Head Moharrir. On 17.3.1985 at about 8.15 a.m., on the basis of written information given by the complainant Buddi Lal Gupta, he registered chik FIR which was exhibited as Ext. Ka-3 and the same was entered in the GD exhibiting as Ext. Ka-4.
Mahabir Prasad Mishra, Sub-inspector ( PW-5) is the Investigating Officer of the present incident. In his statement he averred on oath that on 17.3.1985 he was posted at Police Station-Malwan. District Fatehpur and on that date, the information with respect to this incident was received at the police station in his presence and the investigation of this case was entrusted to him. He proceeded to investigate the matter and recorded the statements of complainant (P.W.1) and Constable Clerk Brindaban Sharma (P.W.4). Subsequent thereto , he reached at the place of occurrence at about 10.00 A.M. The place of occurrence was situated at a distance of eight kilometers towards south from the police station. The place of occurrence is the orchard wherein tube-well of the Lakshmi Narayan (deceased) was situated. The body of the deceased was lying on the rooftop of the tube-well room. There was no stairs or ladders to ascend on the rooftop. The pipe of the water tank was being used for climbing on the rooftop . The wife and children of the Laxmi Narain (deceased) were present around his corpus. The corpus of Laxmi Narain (deceased) was taken into custody and the panchayatnama was prepared in the presence of the witnesses which was exhibited as Ext. Ka-6 . Thereafter, the corpus of Laxmi Narain was sealed properly and relevant papers i.e. photo lash, Ext. Ka-7, challan lash, Ext. Ka-8, letter to C.M.O., Ext. Ka-9, letter to R.I., Ext. Ka-10 were also prepared. The sealed corpus was sent to mortuary for autopsy in the supervision and surveillance of constable Anil Kumar and V.C. Rafique. The investigating officer found blood on the spot where the dead body Laxmi Narain was lying. Samples of blood stained and plain earth were taken into separate containers which were exhibited as Exhibit Ka.22 and Ka.23 respectively. The body of the deceased Laxmi Narain was lying on the cot. Tikli (cardboard discs) was lying beside the corpus of the deceased Laxmi Narain and two empty cartridges were found from the water tank . These articles were taken into custody and was placed in a sealed cover and was marked as Ext. Ka-13. A search light was also found on the spot which was marked as Ext. Ka-17 . He investigated the place of occurrence and prepared site plan Ext. Ka-15. Thereafter, he recorded the statements of witnesses for recovery memoes/ panchayatnama and also recorded the statements of witnesses Munni Lal and scribe of the FIR Krishna Kant Mishra. Subsequent thereto he proceeded in search of the accused and the gun of the deceased Laxmi Narain. He raided the house of the accused-appellant and the tube-well in search of the accused-appellant and the gun. The gun, eight live cartridges and two empty cartridges were recovered in the field of the deceased Laxmi Narain of which memo was prepared and and were marked as Exhibit Ka.1 & Ka-2. The place of recovery of these articles was the field of the deceased and a site plan was prepared in the presence of the complainant and the witnesses. These articles were taken into custody under a Fard exhibited as Ka-16. Thereafter, the investigating officer with a team of police was making endeavour to nab the accused appellant . The sealed articles were placed in the Malkhana of police station. On 18.3.1985, the investigating officer with a police team reached at Village-Asta where statement of Somwati, the wife of the deceased was recorded. The accused-appellant was neither arrested nor his whereabouts could be located. On 22.3.1985 it came in the notice of the investigating officer that the accused-appellant had surrendered before the court below. On 23.3.1985 after getting permission of the court concerned, the statement of the accused-appellant was recorded. The investigating officer after completing the investigation and collecting the material evidence submitted the charge sheet on 7.4.1985 against the accused Sheo Kumar @ Batooni Singh which was exhibited as Ext. Ka-17 On the analysis of the aforesaid facts and circumstances of the case, it emerges out that the appellant-accused had formed motive to commit the alleged offence as the accused appellant had taken Rs. 2000/- on credit from the victm Laxmi Narian in connection with settlement of marriage of his sister. The accused appellant instead of returning the money had been dilating the issue on either pretext. Ultimately he took drastic steps of eliminating the victim Laxmi Narain Narain which is corroborated from the prosecution evidence. The direct and trustworthy evidence of PW-1 Buddi Lal and PW-2 Smt Somwati supported by the medical evidence pointing guilt against the accused-appellant are consistent with the prosecution version hence the plea of the accused appellant with regard to presence of mens rea stands fully proved.
In the case of Shamsher Singh @ Shera vs. State of Haryana (2002) 7 SCC 536, Hon'ble Apex Court has held as under:-
"Even if there is absence of motive, it would not benefit the accused when there is reliable and acceptable version of the eye witnesses, which is supported by the medical evidence, pointing against him."
In the case of State of Haryana vs. Sher Singh & others AIR (1981) SC 1021, Hon'ble Apex Court has held as under:-
"The prosecution is not bound to prove motive of any offence in a criminal case, inasmuch as motive is known only to the perpetrator of the crime and may not be known to others if the motive is proved by the prosecution, the court has to consider it and see whether it is adequate."
It is also authenticated from the record that prosecution had examined the Informant Buddi Lal as PW-1 who in his statement on oath proved the FIR exhibited as Ka-1. He also averred that he witnessed the occurrence and got the written report/FIR scribed by one Krishna Kant Mishra which was exhibited as Ka-1. It has been pointed out that prosecution did not examine the scribe of the FIR Krishna Kant Mishra. It appears from the prosecution story that scribe of the FIR was not an eye-witness to the alleged incident. In these facts and circumstances of the case, it is clear that non-examination of the scribe of the FIR will not overshadow the entire prosecution version as it will not be fatal to the prosecution case.
The defence has challenged the disputed signature of the informant Buddi Lal (P.W.1) on the FIR and adduced expert evidence. The defence has filed Expert's report prepared by Expert Pradeep Kumar Tripathi DW-1 which has been exhibited as Ext. Kha-1. The Expert compared the disputed signature on the FIR (Ext. Ka-1) with the admitted signature of informant Buddi Lal (P.W.1) on his statement on oath recorded in the Court on 20.3.1986. Expert opined that disputed signature has not been executed by the writer of the admitted signature. The disputed signature is the result of forgery by impersonation. It appears that the expert evidence is the out-come of certain misconception on the part of defence. In fact there is signature of the informant Buddi Lal (P.W.1) on the right corner of bottom of the FIR which has been exhibited as Ext. Ka-1. The confusion appears to have crept into mind of defence due to the fact that at the end of the FIR in the middle portion words 'Buddi Lal Gupta' has been written from different pen and ink. The defence has got the said writing of 'Buddi Lal Gupta' compared by the expert. He did not get the signature of Buddi Lal Gupta in the right hand side bottom of Ext. Ka-1 compared by the expert. It is important to mention here that defence has not put the disputed signature to the informant Buddi Lal (P.W.1) at the time of his cross-examination. He asked a vague question whether the signature belongs to him which was replied in affirmative. In view of the above facts and circumstances of the case, it is established that the signature of informant Buddi Lal Gupta (P.W.1) on the right corner of bottom of the FIR (Ext. Ka-1) completely matches with his signature on his statement on oath. It has not been probed who has written the words 'Buddi Lal Gupta' in the middle bottom of the Ext. Ka-1. Thus the arguments of learned counsel for the appellant that FIR (Ext. Ka-1) does not bear the signature of the informant Buddi Lal Gupta does not hold any water and the learned trial court has rightly held the argument to be baseless.
As per the prosecution story the occurrence is alleged to have been taken place in the intervening night of 16/17.3.1985 at about 12:30 A.M. The chik FIR (Ext. Ka-3) was lodged with an inordinate delay at 8.15 A.M. on 17.3.1985 at Police Station-Malwan. No doubt the chik FIR was lodged with inordinate delay. It is relevant to mention here that the informant Buddi Lal (P.W.1) is a villager and agriculturist by profession. He stated in his statement on oath that after committing the crime the accused-appellant fled away from the place of occurrence. He remained present at tube-well near dead body of the deceased and early in the morning he proceeded for the police station. It is not in dispute that distance of Police Station-Malwan is about eight kilometers from the place of occurrence. The occurrence took place in the midnight and the informant Buddi Lal (P.W.1) did not choose to go to police station in the night on account of fear and trepidation of the accused appellant hence the delay occurred in lodging the FIR is natural. Considering the facts and circumstances of the case, it cannot be said that the delay has not been explained rather the explanation given by the informant Buddi Lal (P.W.1) regarding delay in lodging the FIR of the incident is quite satisfactory and the delay occurred in lodging the FIR will not wipe out the entire prosecution case.
In the case of Ravinder Kumar and another vs. State of Punjab (2001) 7 SCC 690, Hon'ble Apex Court has held as under:-
"The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.
When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident. This is not an exhaustive catalogue of instances which could cause delay in lodging the FIR."
In the case of Tara Singh vs. State of Punjab (1991 Suppl.(1) SCC 536), Hon'ble Apex Court held as under:-
"It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report."
It is true that Informant Buddi Lal (PW.1) is the nephew of the deceased and PW-2 Smt Somwati is the wife of the deceased. It is not in dispute that place of occurrence is the tube-well of the deceased. In our opinion the aforesaid prosecution witnesses are natural witnesses and they have no motive to make false statements against the appellant-accused. We are of the opinion that in a case where near and dear one is killed, his relations and friends would not spare the real culprits and falsely implicate others. In view of the above facts and circumstances of the case, we are of the considered view that relationship is not a factor to affect the credibility of the aforesaid prosecution eye witnesses. Therefore, testimony of the aforesaid prosecution eye witnesses cannot be discarded merely on the ground of being closely related to the deceased.
In the case of Dalip Singh vs. State of Punjab AIR 1953 SC 364, Hon'ble Apex Court has held as under:-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause' for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
In the case of Kartik Malhar vs. State of Bihar 1996 CRL. L.J. 889, Hon'ble Apex Court has held as under:-
"We may also observe that the ground that the witness being a close relative and consequently, being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case, AIR 1953 SC 364 in which this Court expressed its surprise over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses."
In the case of Shyam Babu vs. State of U.P. AIR 2012 SC 3311, Hon'ble Apex Court has held as under:-
"Where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence, it will not be permissible for the Court to discard the statement of such related or friendly witnesses. There is no bar in law on examining family members or any other person as witnesses. In fact, in cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. If the statement of witnesses, who are relatives or known to the parties affected is credible, reliable, trustworthy and corroborated by other witnesses, there would hardly be any reason for the court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party or friend etc".
It is pertinent to mention here that PW-1 Buddi Lal Gupta and PW-2 Smt. Somwati were put to lengthy cross-examination, but nothing could be elicited by way of cross-examination so as to create doubt about their presence at the place of occurrence. Their testimonies have been well supported by the medical evidence. Appellant-accused is named in the FIR, there is complete consistency and coherence in the examination-in-chief and cross-examination of the aforesaid prosecution witnesses, the name, time, date and place on which the offence was committed and by whom the offence was committed, has been revealed in the FIR, lodged by PW-1 Informant Buddi Lal Gupta, which is also in coherence with the story set-up in the FIR. There is nothing on record to show if the prosecution witnesses had any animus against the appellant-accused so as to implicate falsely in the present case. Considering the entire facts and circumstances of the case, we are of the considered view that the testimony of aforesaid prosecution witnesses are cogent, credible and trustworthy and have a ring of truth and deserves acceptance. In view of the above facts and circumstances of the case, their appears no justification to disbelieve the statements of the aforesaid prosecution witnesses.
It is true that there are some minor contradictions in the depositions of the prosecution witnesses of facts. Considering the entire facts and circumstances of the case, we are of the considered opinion that contradictions are not so material which goes to the root of the case and materially affect the core of the prosecution case. Therefore, minor contradictions cannot be taken to be a ground to reject the testimony of the prosecutions witnesses of facts.
In the case of State of Rajasthan vs. Smt. Kalki and another (1981) 2 SCC 752, Hon'ble Apex Court has held as under:-
"In the deposition of witnesses there are always normal discrepancies due to normal errors of observation, loss of memory, mental disposition of the witnesses and the like. Unless, therefore, the discrepancies are "material discrepancies" so as to create a reasonable doubt about the credibility of the witnesses, the Court will not discard the evidence of the witnesses".
In the case of Mritunjoy Biswas vs. Pranab alias Kuti Biswas and another 2013 CRI. L.J. 4212, Hon'ble Apex Court has held as under:-
"It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect prosecution case but not every contradiction or omission."
In order to appreciate the evidence, the Court is required to bear in mind the set-up and the environment in the which the crime is committed, the level of understanding of the witnesses, over zealousness of some of the near relations to ensure that everyone ever remotely concerned with the crime be also convicted and everyone gives different way of narration of the same facts. Bearing in mind these broad principles the evidence is required to be appreciated to find out what part out of the evidence represents the true and correct states of affairs. It is for the Court to separate the grain from the chaff. The Court cannot draw adverse inference only because all the witnesses have not been examined, if the evidence of the witnesses produced are trustworthy, the Court can rely on the said evidence to convict the accused. This is because it is quality and not the quantity of evidence that is material.
FIR Ext-1 indicates that at the time of alleged incident Binnu son of deceased and a labourer Munni Lal were also present. Both these eye-witnesses have not been examined by the prosecution. It is evident from the record that PW-1 Informant Buddi Lal and PW-2 Smt Somwati are the eye-witnesses of the incident and their evidence fully supports the prosecution case and they have no motive to make false statement against the appellant-accused. Medical evidence (postmortem report) and the testimony of other prosecution witnesses fully corroborates the prosecution version as well as the testimony of the aforesaid prosecution witnesses. In our opinion both these eye-witnesses are trustworthy and their testimony inspires confidence.
In the case of Veer Singh and others vs. State of U.P., (2014) 2 SCC 455, Hon'ble Apex Court has held as under:-
"Legal system has laid emphasis on value, weight and quality of evidence rather than on quantity multiplicity or plurality of witnesses. It is not the number of witnesses but -quality of their evidence which is important as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. Evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided under Section-134 of the Evidence Act. As a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable."
In the case of Shamsher Singh alias Shera vs. State of Haryana, (2002) 7 SCC 536, Hon'ble Apex Court has held as under:-
"It is not necessary that in all cases all the witnesses present at the time of occurrence should be examined, that too on the same point. Mere non-examination of one of the eye- witnesses to speak on the same point does not impair the prosecution case when the eye-witnesses examined fully support the prosecution case."
In view of the above facts and circumstances, we are of the considered opinion that non-examination of other eye-witnesses is not fatal to the prosecution case.
Mahabir Prasad Mishra S.I. (P.W.5) is the investigating officer of this case. He had stated in his statement on oath that blood stained and simple earth, gun and empty cartridges were not sent by him for chemical examination by Forensic Science Laboratory and Ballistic expert respectively.
In the case of Dhanaj Singh @ Shera and others Vs. State of Punjab (2004) 3 SCC 654, Hon'ble Apex Court has held as under:-
"Even if the investigation is defective, that pales into insignificance when ocular testimony is found credible and cogent. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective."
In the case of State of Punjab Vs. Hakam Singh (2005) 7 SCC 408, Hon'ble Apex Court has held as under:-
"Failure to effect seizure of the firearms and the empties and to send them to ballistic expert would not affect the categoric and truthful testimony of the eyewitness. "
In view of the truthful testimony of the eye-witnesses Buddi Lal Gupta (P.W.1) and Smt Somwati (P.W.2) accusing the appellant-accused, we are of the considered view that non-sending of blood stained and simple earth for chemical examination by Forensic Science Laboratory and weapon of assault and empty cartridges for examination by Ballistic Expert by the Investigating Officer is not fatal to the prosecution case.
Considering the prosecution evidence available on record, we are of the considered view that it is not established that at the time of the alleged incident, the appellant-accused had committed the offence of robbery and in committing or in attempting to commit robbery voluntarily caused hurt to the deceased.
As per statement under Section-313 Cr.P.C. the plea of the appellant-accused was that there was property dispute in the family of the deceased in between deceased and his wife. The brother-in-law of the deceased is of bad character. Deceased wanted to burn his wife in kothri . He was killed by someone in the darkness of night and he has been falsely implicated. There is nothing on record to substantiate the plea of the appellant-accused on account of which it could be inferred under any circumstance that he had been implicated falsely in the present case. It is also worth mentioning that no evidence has been adduced on behalf of the appellant-accused in defence to substantiate his plea. After considering the entire facts and circumstances of the case, we are of the considered view that the testimony of all the prosecution witnesses supports the prosecution case. There is nothing on record to show that the prosecution witnesses had any animus against the appellant-accused so as to implicate him falsely in the present case hence there appears no justification to disbelieve the testimony of the prosecution witnesses.
It is established from the testimony of Buddi Lal P.W.1 and Smt Somwati P.W.2 that in the night of 16/17.3.1985, there was a heap of 'matar' in the khalihan situated near the tube-well. Some of the peas were separated from the chaff and some were lying for being separated . In order to watch and guard the khalihan Buddi Lal (P.W.1) and Smt Somwati (P.W.2) were present near the tube-well and deceased was present on the roof of the tube-well along with his licensed gun. A lit lantern was hanging on a branch of tree standing in the khalihan. At about 12-12:30 A.M. accused came in the aforesaid khilahan with a search light Ext-17 and enquired about the victim Laxmi Narain who replied that he was on the roof and called him then the accused-appellant went to the roof along with his search light. The victim Laxmi Narain demanded the payment of loan of Rs. 2,000/- from the accused-appellant which caused ire and wrath to the accused appellant and heated words were exchanged in between them. The accused appellant could not press his anger and irate and snatched the gun (Ext.1) from the victim Laxmi Narain and took out cartridge from the belt (Ext-2) . After loading the gun, the accused appellant pointed towards the victim with an intention to eliminate him. The shot hit the victim Laxmi Narain who succumbed to injuries on the spot. It is true that source of light was also not indicated in the FIR and the lantern was also not seized by the Investigating Officer. In our opinion, mere non-mentioning of source of light in the FIR or no seizure of lantern by the Investigating Officer in any way affect the prosecution case, it could legitimately be inferred that there would have been some source of light in the khalihan to enable the deceased and aforesaid prosecution witnesses to perform their work.
It is not in dispute that place of occurrence is the roof of tube-well of the deceased. It is also not in dispute that the appellant-accused and prosecution eye-witnesses are the resident of same village. They were well known to each other prior to the alleged incident. It is also worth mentioning that a person who is accustomed to live in darkness, poor light or no light can identify the known accused in the star light. The alleged incident had occurred in the intervening night of 16/17.3.1985. It could legitimately be inferred that at the time of alleged incident star light was also available. In view of the above facts and circumstances of the case, we are of the opinion that if the lantern and star light available at the time of occurrence was sufficient for the appellant-accused to commit the murder of the victim Laxmi Narain, it cannot be denied that the light was not sufficient for the prosecution eye-witnesses to identify the appellant-accused. In view of the discussion made above we are of the considered opinion that on the basis of non mentioning of source of light in the FIR testimony of the aforesaid prosecution witnesses cannot be discarded.
The appellant-accused was examined under Section-313 Cr.P.C., he has not made even a whisper in his examination that at the time of alleged incident he was beaten or provoked by the deceased Laxmi Narain . It is evident from the testimony of Buddi Lal (P.W.1) and Smt Somwati (P.W.2) that at the time of incident deceased Laxmi Nain had demanded the payment of loan of Rs. 2,000/- from the accused-appellant. The deceased Laxmi Narain neither used any foul words nor made any derogatory comments. At the crucial moment, heated words were exchanged between them and the accused-appellant snatched the licensed gun from the victim Laxmi Narain with cartridges loaded the same pointing towards the victim Laxmi Narain with an intention to eliminate him. The shot hit the victim Laxmi Narain who succumbed to injuries on the spot. When Smt Somwati and others ran there to save the victim, the accused-appellant opened another fire in the air in order to create terror . The accused appellant jumped down from the roof along with gun and belt of cartridges and fled away towards west.
From the above facts and circumstances of the case, it is fully established that the victim succumbed to unnatural death with gun shot injury. The presence of the eye witnesses cannot be doubted or suspected merely they are related to the deceased or on account of minor variation or aberration from the prosecution version. The utterances have consistently and umpteen times been repeated by the witnesses who had narrated and unfolded the incident in a very natural and articulatory manner. The overt act of the accused appellant at the relevant moment is fully established and is unimpeachable beyond a shadow of doubt consistent with the hypothesis of the guilt of the accused appellant within all human probability the act has been done by the accused appellant. The manner in which the victim was done to death with gun shot injury has portrayed very inhuman and gruesome state of mind of the accused appellant. The occurrence is fully supported by the testimony of eye witnesses and the medical evidence which cannot be overclouded by any stretch of imagination or suspicion. In the course of cross examination, the defence side has tried to evolve a story of false implication in order to overshadow the testimony of the eye witnesses. It cannot be doubted that the eye witnesses had not seen the accused appellant who had perpetuated the crime in a very relentless and devilish manner. The delay if any, in lodging the first information report will not falsify the entire prosecution version .
The conduct of the accused appellant can very well be inferred from his absconding. In this regard , the statement of Mahabir Prasad Misra investigating Officer (P.W.5) is very relevant who has stated that after seizure of incriminating articles, he made hectic efforts to trace out the accused appellant on 22.3.1985 ,then it came to his notice that the accused appellant had surrendered before the court .Thereafter he took permission and recorded the statement of the accused appellant on 23.3.1985. Thus after the incident dated 16/17.3.1985, the accused appellant absconded which delineates his actus reus and complicity. A criminal trial is not an enquiry into the conduct of an accused for any purpose other than to determine whether he is guilty of the offence charged. In this connection, that piece of conduct can be held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material under section 8 of the Evidence Act.
On the basis of verbose and prolix discussions made above and also considering the material evidence on record, we are of the considered opinion that findings of conviction for the offence punishable under Section-302 of the Indian Penal Code recorded by the Trial Court are well substantiated by the evidence on record. The Trial Court has appreciated the evidence in the right perspective. We don't find any justification to interfere with the findings of conviction recorded for the offence punishable under Section-302 of the Indian Penal Code. Therefore, the conviction recorded against the appellant-accused under section 302 IPC is hereby maintained and affirmed .
Further from the evidence on record, it is not proved that appellant-accused had committed the offence of robbery punishable under Section-394 of the Indian Penal Code. It is not the case of prosecution that appellant-accused in committing or in an attempt to commit robbery voluntarily caused hurt to the victim Laxmi Narain. It is rather established from the prosecution evidence on record that the appellant-accused after committing murder of the victim Laxmi Narain fled away from the place of occurrence along with licensed gun and belt of cartridges of the deceased which were recovered on 17.3.1985 at about 4:15 P.M. by the Investigating Officer from the field of the deceased Laxmi Narain. Therefore, the conviction and sentence of the accused appellant under section 394 IPC is converted for the offence punishable under Section-404 IPC for dishonest misappropriation of property possessed by the deceased Laxmi Narain. Hence the accused appellant is convicted and sentenced for the offence punishable under section 404 IPC to undergo two years rigorous imprisonment with fine of Rs. 1000/- in default of payment of fine, undergo imprisonment of six months.
The appeal is accordingly dismissed with above observations.
Let a copy of judgment and order along with original record be transmitted to the Trial Court for information and necessary compliance.
(Krishna Singh,J.) (Naheed Ara Moonis,J.)
Order Date :-7.3.2018
S Rawat