Allahabad High Court
Munna vs State Of U.P. on 13 January, 2020
Bench: Bachchoo Lal, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved On: 07.11.2019 Delivered On: 13.01.2020 Court No. - 68 Case :- CRIMINAL APPEAL No. - 860 of 1998 Appellant :- Munna Respondent :- State of U.P. Counsel for Appellant :- S.C.Dwivedi,I K Chaturvedi Counsel for Respondent :- A.G.A.,P.B. Umrao,Rajeev Trivedi,Swati Agrawal Connected with Case :- CRIMINAL APPEAL No. - 1123 of 1998 Appellant :- Balkishan Respondent :- State of U.P. Counsel for Appellant :- M.C.Chaturvedi,I.K. Chaturvedi,Ram Milan Dwivedi,Virendra Singh Parmar Counsel for Respondent :- Govt.Advocate,Rajeev Trivedi,Swati Agrawal Hon'ble Bachchoo Lal,J.
Hon'ble Narendra Kumar Johari,J.
(Delivered by Narendra Kumar Johari, J.)
1. The instant appeals have been preferred against the judgement and conviction order dated 27.04.1998 passed by Sessions Judge, Hamirpur in Sessions Trial No. 34 of 1989 (State Vs. Bal Kishan), and Sessions Trial No. 103 of 1989 (State Vs. Munna) under Sections 302, 323, 324 & 307 I.P.C., P.S.- Rath, District- Hamirpur.
2. Both the Sessions Trial have been decided by the common judgement as both the accused persons were involved in same occurrence and Crime No. 443 of 1988. Hence, both the appeals are being decided by the common judgement.
3. By order dated 27.04.1998 learned sessions judge has convicted appellants Bal Kishan and Munna with life imprisonment under Sections 302/34, four years rigorous imprisonment under Section 307/34, one year rigorous imprisonment under Section 324 I.P.C. and imprisonment for six months under Section 323 of I.P.C. concurrently.
4. The facts of the case in brief are that complainant Indra Bahadur Misra moved a Tahrir in Police Station- Rath, District- Hamirpur that Suresh Mishra @ Lalla, Chaini and his son Sarman Chamar all the resident of his village had gone to Shaktideen Lodhi at village- Badanpura for some of their work. Shaktideen was not available at his residence, therefore, all the three persons were returning back. The complainant and Ram Kumar Lodhi a resident of his village were going towards Rath from his Village, as they reached near culvert (puliya) of Badanpura, Bal Kishan @ Ballu Gaderiya carrying country-made pistol in his hand, Lakshmi Prashad Gaderiya carrying axe in his hand and one unknown person who was carrying Ballam, came out of the bushes Renaujha; Lakshmi Prashad exhorted to kill them. On his exhortation, one unknown person pushed Ballam in the wheel of cycle of Suresh, resultantly Suresh fell down and all the three miscreants started beating Suresh; Lakshmi attacked on the head of Suresh by his axe, Bal Kishan fired on Suresh by country-made pistol on the temple (kanpati) of Suresh, resultantly he fell down on the spot and died. When other persons tried to rescue Suresh, one of the miscreants attacked on the thigh of Chaini by his Ballam, resultantly he also fell down. Bal Kishan fired on Sarman by his country-made pistol but the fire was missed then the miscreant who was carrying Ballam in his hand beaten Sarman by his Ballam using as lathi Sarman ran away by shouting voice. The complainant and Ram Kumar exhorted and ran towards spot then that miscreant who was carrying Ballam in his hand and Lakshmi both started beating Ram Kumar Lodhi, resultantly all the persons ran away from the spot and started shouting. The miscreants ran away towards north side. The occurrence was seen by so many peoples including above persons. Informant has further stated that at the time of game of Diwali, a fighting and quarrel took place among deceased, Bal Kishan and Lakshmi Prashad. The villagers extricated the quarrel. He has further stated that the miscreant who was carrying Ballam, was a young person, if he will come again before him he will recognize him.
5. On the basis of above application (tahrir) the F.I.R. of occurrence was registered at Crime No. 443 of 1988, under Section 302 and 307 at Police Station- Rath, District- Hamirpur. The time of occurrence was shown on 11.11.1988 at 12.00 noon and the F.I.R. was lodged on the same day at 3.00 p.m. Inquiry officer Deena Nath Dubey (Pw- 7) reached on spot and prepared inquest report of deceased and sent the dead body for post mortem in sealed condition through constable Chote Lal and Hargobind. I.O. also prepared letter for medical inspections of injured persons. He prepared the recovery memo of blood-stained and plain soil from the spot. He recovered one cycle near the dead body of Suresh Chandra Misra and a wrist watch and prepared its memo. He sketched spot map also. The post-mortem of Suresh Chandra was conducted by Doctor N.K. Joshi (Pw- 6) on 12.11.1988 and injured persons Sarman, Chaini and Ram Kumar was medically examined in hospital on 12.11.1988. After completion of investigation, I.O. submitted charge-sheet against accused persons Bal Kishan, Munna and Lakshmi.
6. The charges of Section 302/34, 307, 324 and 323 were framed against accused persons namely, Bal Kishan, Lakshmi Prashad and Munna who denied the charges and chosen to be tried.
7. As documentary evidence, prosecution filed following papers which were proved by respective witnesses:-
Tahrir F.I.R. as (Ex. Ka- 1), identification memo as (Ex. Ka- 2), charge-sheet against Bal Kishan and Lakshmi Prashad as (Ex. Ka- 3), charge-sheet against Munna as (Ex. Ka- 4), injury report of Chaini as (Ex. Ka- 5), injury report of Sarman as (Ex. Ka- 6), injury report of Ram Kumar as (Ex. Ka- 7), the post-mortem report of Suresh Chandra as (Ex. Ka- 8), Chick F.I.R. (Ex. Ka- 9), inquest report as (Ex. Ka- 10), police paper form no. 13 as (Ex. Ka- 11), photo nash (Ex. Ka- 12), letter for P.M.R. (Ex. Ka- 13), spot map (Ex. Ka- 14), letter for medical examination of Chaini (Ex. Ka- 15), letter for medical examination of Sarman as (Ex. Ka- 16), letter for medical examination of Ram Kumar as (Ex. Ka- 17), recovery memo of blood-stained and plain soil (Ex. Ka- 18), recovery memo of cycle and wrist watch as (Ex. Ka- 19), attachment memo (Ex. Ka- 20), carbon copy of G.D. entry (Ex. Ka- 21).
8. As oral evidence prosecution produced Indra Bahadur as Pw- 1, Chaini Pw- 2, Ram Kumar as Pw- 3, M.P. Awasthi Pw- 4 and Ram Swaroop Singh as Pw- 5, Doctor N.K. Joshi as Pw- 6, Deena Nath Dubey as Pw- 7.
9. The statement of witness Pw- 1 Indra Bahadur was recorded on 31.08.1992 who in his examination in chief has repeated the same prosecution version regarding the occurrence as mentioned in F.I.R. The cross-examination was concluded on 03.11.1992. The statement of witness Pw- 2 was recorded on 03.11.1992 who corroborated the statement of Pw- 1 on the point of occurrence his cross-examination was concluded on 03.11.1992. Witness Pw- 3 Ram Kumar deposed on 27.11.1992 who also stated the same story as Pw- 1 and Pw- 2 in his cross-examination, was concluded on same day. Witness Pw- 4 M.P. Awasthi- the Identification Magistrate, Hamirpur has deposed that in his presence the identification pared took place. Witness Pw- 6 Doctor N.K. Joshi has proved the injury reports of Chaini, Sarman and Ram Kumar. He also proved the post-mortem of deceased Suresh Chandra Mishra. Witness Deena Nath Dubey- Pw- 7 the I.O. has proved the proceedings of investigation.
10. Regarding the facts, evidence and incriminating circumstances, questions were asked by accused appellants Bal Kishan and Munna under Section 313 of Cr.P.C. in which both the accused persons shown their ignorance in reply of the questions. The reason for prosecution they have replied "due to enmity." In reply of the questions of identification in jail, accused appellant Munna has stated that witnesses were acquainted with him prior to occurrence as he is brother-in-law of Chatrapal who is younger brother of Bal Kishan. During trial accused Lakshmi Prashad had died and the trial was abated against him on 08.08.1990. Before recording his statement under Section 313 of Cr.P.C. On behalf of the accused appellants, Jai Kunwar has been examined as Dw.- 1.
11. We have heard learned counsel for the appellants, learned counsel for the complainant as well as learned A.G.A. for the State and perused the record.
12. Learned counsel for the appellants has submitted that the appellants have falsely been implicated in the case. The place of occurrence has not shown in F.I.R. The presence of witnesses as Pw- 1, Pw- 2 and Pw- 3 are doubtful. No recovery of weapons or cartridges has been made. Witnesses are interested. Identification of appellant- Munna is doubtful. Motive of offence has not been proved. The appellants have falsely been implicated only due to enmity. Prosecution has failed to prove his case against appellants. Appellants liable to be acquitted, accordingly appeals be allowed.
13. Learned A.G.A. as well as counsel for complainant submitted that F.I.R. of occurrence is prompt. There is no discrepancy in evidence regarding place of occurrence. Injured witnesses have deposed and proved the case successfully. There is no discrepancy on the factum of occurrence. Appellant Munna has been identified in jail as well as in court by the witnesses. Motive of occurrence has been proved, which is supported by ocular evidence and by the evidence of injured witnesses who had received injuries in same occurrence. The aforesaid evidence is corroborated by medical evidence. Prosecution has succeeded to prove his case against appellants beyond reasonable doubt. They have rightly been convicted by the Sessions Judge. Appeals are liable to be rejected.
14. In F.I.R. the date and time of occurrence has been shown on 11.11.1988 at 12.00 noon. The F.I.R. has been lodged on the same date at 3.00 pm whereas the distance of police station has been shown as 14 k.m. The fact regarding lodging of F.I.R. has been supported by G.D. entry (Ex. Ka- 21). In first information report and in statement of witnesses Pw- 1 to Pw- 3 it has been shown that witness Pw- 1 Indra Bahadur Mishra was eye-witness of the occurrence and after committing the occurrence when the accused persons fled away from the spot, the informant rushed to Police Station- Rath, District- Hamirpur by keeping the dead body of deceased Suresh Chandra in supervision of injured witnesses- Chaini, Sarman and Ram Kumar. Witness Pw- 1 Indra Bahadur has stated in his evidence that he had reached at Dharamsala in approximately 01.15 hours where he wrote the application (tahrir) for F.I.R. The distance of police station is approximately 15 to 20 steps away from the said Dharamsala. In cross-examination he has denied that the application (tahrir) was written by him on the dictation of Daroga Ji. The witness has been cross-examined by defence side at length but nothing could be brought on record which could indicate the fact that the F.I.R. of the occurrence was lodged by complainant with any prior consultation or with any inordinate delay. Keeping in mind, the distance of place of occurrence from police station and in abscene of any contrary evidence, it appears that the F.I.R. of occurrence has been lodged by complainant promptly and without any inordinate delay.
15. Witness Pw- 1 has deposed in his evidence that on 11.11.1988 at about 12.00 noon Suresh Chandra Mishra and Chaini Chamar and his son Sarman who were resident of the same village, they had gone Badanpura to the house of Shaktideen Lodhi for some of his work. They went there by cycles. Suresh Chandra was riding alone at his cycle and Chaini and his son Sarman were on another cycle. Chaini was sitting at the cycle as pillion rider. As Shaktideen Lodhi was not available at his residence of Badanpura therefore, all those persons coming back from Badanpura to their village. At that time witness Pw- 1 Indra Bahadur along with Ram Kumar a resident of his village were going to Rath from their village, as they reached near the culvert (puliya) of Badanpura, they saw that all of sudden Bal Kishan Gaderia, Lakshmi Prashad and one unknown person came out from the bushes of Reunjha. Bal Kishan was carrying tamancha, Lakshmi Prashad was carrying axe and unknown person was carrying Ballam in their hands. On the exhortation of Lakshmi Prashad to kill Suresh Chandra, all the three persons ran towards him. The unknown person who was carrying Ballam in his hand pushed the Ballam in the wheel of cycle of Suresh Chandra, resultantly, Suresh Chandra fell down. At once all the three persons started beating Suresh Chandra. Lakshmi attacked with his axe on his head, Bal Kishan fired by his country-made pistol (tamancha) on his temple (kanpati). Suresh Chandra fell down and died on spot. At that time, as the Chaini and Sarman tried to save him, the person who was carrying ballam pushed his ballam in thigh of Chaini resultantly Chaini fell down due to its injury. Bal Kishan fired on Sarman which fortunately got missed. Simultaneously, the person who was carrying Ballam ran towards Sarman and beaten him by lathi part of his Ballam. Consequently, Sarman shouted and ran away. Seeing the occurrence the complainant as well as Ram Kumar also ran towards the place of occurrence to save them. Complainant was behind Ram Kumar. When Ram Kumar tried to save, Lakshmi and the unknown persons who was carrying Ballam, beaten him. Seeing the occurrence all the persons shouted loudly for help resultantly the assailants ran towards northern side. The occurrence was seen by the aforesaid persons as well as other persons who were present in their fields. The witness PW-1 has further stated in his evidence that just after the occurrence the fact was told him by Chaini that the deceased Suresh and the witnesses Chaini and Sarman had gone to Badanpura for some of their work.
16. So far as the role of accused persons are concerned, witness Pw- 1 has stated in his evidence, that as the deceased Suresh Chandra fell down from his cycle, all the three assailants started beating him. Lakshmi Prasad attacked on deceased by his axe thereafter Bal Kishan fired on Suresh by his country-made pistol. He has further stated that at the time of firing he along with Ram Kumar was 25 to 30 steps away from deceased. He has also stated that the deceased has received only one injury of fire arm. The country-made pistol (tamancha) was single barrel. Witness Pw- 1 has also said that Chaini had fell down by the injury of Ballam just 8 to 10 steps away from deceased towards East. At that time Chaini was wearing Kurta and Dhoti, with knot like langot. Ram Kumar had received the injury of axe at his palm. He further stated that the unknown assailant was attacking on Sarman from the wooden side (lathi part ) of his Ballam.
17. Witness Pw- 2 Chaini has narrated and reiterated the happening of occurrence same as it has been stated by witness Pw- 1 so far as the injury on his body as well as on the body of his son Sarman, he has stated in his evidence that they have gone to Badanpura to hire tractor of Sattidin for ploughing the field. He was not available at his residence, therefore they were coming back. He has further submitted that he had received the injury of Ballam. He has also stated that Bal Kishan has fired on his son Sarman which was missed. On firing upon him, his son Sarman turned back, at that time the unknown persons beaten him by lathi part of his Ballam then after that Sarman ran towards village, when Ram Kumar moved to save Suresh Chandra, Lakshmi attacked by his axe and unknown persons attacked on him also by lathi part of his Ballam. He has further stated that he (witness Pw- 2), Sarman, Ram Kumar and Indra Bahadur had gone to police station and thereafter they have gone for medical examination, where he, Sarman and Ram Kumar was examined by Doctor. He has further stated that he had gone to village- Badanpura for hire tractor to plough his field which he had taken on Balkat. The deceased also went to hire the tractor of Sattidin to plough his own field. He has also stated that today I have dressed kurta and dhoti which is lying upto his knee. Learned counsel for the appellant has submitted that witness Pw- 2 wear dhoti upto knee long, hence his statement that at the time of occurrence he was wearing his dhoti knot like langot is false, as normally one can wear the dhoti as langot. Since no pierced and blood-stained dhoti has been recovered by I.O., therefore, the presence of Chaini on spot is highly doubtful. In reply counsel for complainant has submitted that at the time of occurrence witness Pw- 2 Chaini was sitting at the carrier of cycle as pillion rider. In such a situation it is probable that he may knot his dhoti as langot type just to prevent sticking of his dhoti in the back wheel of cycle. If the I.O. has not recovered any such dhoti of witness Pw- 2 then in that case it may be the fault of I.O. Learned counsel for the appellants has also submitted that the witness Pw- 1 has mentioned that when Chaini tried to save Suresh, the unknown assistant stabbed his Ballam in the thigh of Chaini (Pw- 2) whereas the medical report of his injury indicates that there was a incised wound with clean cut. He has further stated that if a sharped weapons like Ballam will be stabbed on the body, the edges of wound will be with everted margin, which is not found in this case. Learned counsel for the complainant has replied that witness Pw- 2 has not stated that the assailants had stabbed Ballam in his thigh rather he has mentioned that the assailants attacked him by his Ballam. The word stab was used by the eye-witnesses Pw- 1 and Pw- 3 who have seen the occurrence from some distance. The attack was so quick that it is highly probable that the witnesses would not have been able to see the occurrence attack like slow motion. At that time the attention of witnesses was also diverted towards the attack on Suresh Chandra. Witness Pw- 6 Dr. N.K. Joshi has openid that the injury of Chaini is probable by the Ballam, therefore, the presence of witness Pw- 2 cannot be doubted on place of occurrence.
18. Witness Pw- 3 Ram Kumar has also described the manner of occurrence of attack on deceased in his evidence as it has been stated by witnesses Pw- 1 and Pw- 2 in their evidence. Witness Pw-3 has further stated that when the assailants attacked on Suresh Chandra he along with Indra Bahadur moved forward to save him. At that time Indra Bahadur was behind him. As witness Pw- 3 Ram Kumar moved forward, Lakshmi Prashad attacked on him by his axe, his aim was head of Ram Kumar but he has pushed his hand just to prevent and save the attack on his vital part resultantly he received the injury of axe at his palm. The unknown persons who was carrying Ballam also attacked on him from the lathi sides of Ballam. As they shouted voice for help assailants ran towards north. Witness Pw- 3 on the part of his evidence regarding mode of occurrence as well as role of assailants has been cross-examined thoroughly by the defence side but no contradiction comes out. Witnesses Pw- 1 and Pw- 3 has narrated the F.I.R. version properly. No otherwise fact could come on record which may indicate any fact otherwise. The injury of injured persons is supported by their medical examination reports as Ex. Ka-5, 6 & 7. The injury sustained by deceased has also been mentioned in F.I.R. which has been proved by his post-mortem report as well as by evidence of witness Pw- 6 Dr. N.K. Joshi. Injury nos. 1, 2, 9 and 10 shows the injury of sharp, edged weapon like axe. Injury nos. 3, 4, 8, 12 and 13 can be caused by lathi. Eye-witnesses Pw- 1, Pw- 2 and Pw- 3 have stated that the unknown assailant has used his Ballam like lathi also. Therefore, the aforesaid injuries are probable when the Ballam has been used like lathi. Injury nos. 14 and 15 can be caused by the sharp pointed weapon like Ballam and injury nos. 3 and 5 can be caused by fire-arm as has been narrated by witnesses that the appellant Bal Kishan fired on deceased by tamancha. It has not been disputed that a close range fire which has been caused almost in contact with the surface of body may cause through and through injury over the surface and in that case entry wound may be larger in size than exit wound, which is possible due to movement of projectile of fire-arm. It has also been found that blackening was present at the edges of wound of enjury no. 5 which was entry wound. The mode of fire-arm injury has been corroborated by the statement of Pw- 1 where he has stated Bal Kishan has fired on temple ((kanpati)) of deceased in close range. Keeping the tamancha in contact with temple (kanpati) region of deceased. The statement of witness regarding injuries of deceased and injuries on injured persons Sarman, Chaini and Ram Kumar are corroborated by medical evidence. The presence of injured eye-witness is not doubtful, therefore, their statement are liable to be believed. If there is no contradiction in the statement of witness and with medical evidence it has been held by Hon'ble Apex Court in the case Surjit Singh @ Gurnit Singh Vs. State of Punjab 1993 SCC (Cri) 161, that:-
"9. To be fair to the learned counsel for the appellant, we may mention that he ventured to argue that the evidence regarding the matching of the crime bullet shells with the pistol recovered was not convincing, more so when the .303 pistol, the alleged crime weapon, was recovered from Gurmit Singh, co-accused. It is noteworthy that Gurmit Singh, co- accused, stands convicted under the Arms Act for being in possession of that pistol. This aspect of the case cannot be a substitute to the eye-witness account or the plea taken by the appellant. Had the presence of the two witnesses, that is, Jaswinder kaur PW-5 and Taljit Singh PW-2 at the scene of the occurrence been doubted, the recovery of the weapon of offence and its connection with the empty shells recovered at the spot would have assumed some significance. When the two eye-witness are natural witnesses of the crime, one being the young wife who would normally be in the company of the husband at 10.30 p.m. on a summer night and the other the nephew of the deceased who had suffered grevious injuries in the occurrence and was thus a stamped witness, not much importance is to be attached to this aspect of the case. The venture is futile."
The evidence of injured witnesses Pw- 2 and Pw- 3 are reliable and trustworthy.
19. Learned counsel for the appellants further argued that as according to prosecution case if the assailants were having deadly weapons in their hands and they were able to give fatal injuries to witness and were able to eliminate the evidence against them why they have not caused grievous/fatal injuries to Chaini, Sarman, Ram Kumar and Indra Bahadur, on the other hand the said injuries of Chaini, Sarman and Ram Kumar is simple in nature, therefore, the evidence of aforesaid persons are not liable to be believed. Considering the facts and evidence on record it reveals that there was enmity of deceased with appellants namely, Bal Kishan and Lakshmi Prashad. It has been shown in F.I.R. as well as in evidence of witness Pw- 1 that prior to incident, during the game of Diwali, a quarrel and fighting took place in between appellants Bal Kishan, Lakshmi Prashad with deceased Suresh, which was extricated and settled by interference of village persons. In his cross-examination witness Pw- 1 has stated that he himself was witness of that altercation, both the parties were abusing each other. He was also one of the mediator. Reason of murder of deceased Suresh has been shown aforesaid quarrel and due to the enmity, the appellants and Lakshmi Prashad attacked on deceased- Suresh Chandra Mishra. They were not having any enmity with complainant or other eye-witness and just to provide scare and horrify them as well as manage to escape they have given the simple injuries to eye-witnesses. Therefore, accused persons have not caused any fatal injuries to witnesses rather they attacked only on deceased Suresh Chandra, hence it cannot be said that presence of eye-witnesses of the place of occurrence was not probable.
20. Learned counsel for the appellants has further argued that the motive as shown in F.I.R. is rather weak in nature and upon simple quarrel in village it was not probable to cause death of deceased Suresh Chandra. The argument advanced by learned counsel for the appellants is not forceful as what was the situation at the time of quarrel and fighting one day prior to occurrence, it has not been described. The enmity of trifle matter may grow up. It varies from persons to persons that how, a person tackles his emotions. Hon'ble Apex Court Hon'ble Apex Court has held in the case of Gulam Sarbar Vs. State of Bihar (Now Jharkhand) (2014) 3 SCC 401, in case law Rohtash Kumar Vs. State of Haryana, Criminal Appeal No. 896 of 2011, Bipin Kumar Mondal Vs. State of West Bengal (2010) 12 SCC 91, Balram Singh Vs. State of Punjab 2003 AIR (SC) 2213 and in Baboolal Vs. State of U.P. 2001 SCC (Cri) 1484 that where there is direct evidence, prosecution is not needed to prove motive of offence. How the mind of an assailant reacts is not to be fathomed from a detached reflection. Criminal conspiracy in general hatched in secrecy, thus direct evidence is difficult to obtain or access. However, where there is direct evidence of witnesses, who are reliable on appreciation of evidence according to legal norms, it is not necessary to establish motive of accused persons.
21. Learned counsel for the appellants further argued that witness Pw- 1 Indra Bahadur belongs to caste of deceased and he is in relation with deceased also. Therefore, his evidence is not reliable. Witness Pw- 2 Chaini has taken the lease of land by the grace of father of deceased and witness Pw- 3 Ram Kumar is in relation with witness Pw- 1, therefore, their evidence are not trustworthy. Although, the fact reveals from the evidence of Pw- 1 that he is in relation with deceased person but there is a consistency in statement of witnesses, which establishes that they were eye-witnesses of occurrence. Witness Pw- 2 has denied in his evidence that he was not allotted any land on lease by the father of deceased, when he (father of deceased) was village pradhan rather the earlier pradhan Sudhar Singh allotted him three acres of land on lease. In rebuttal of above statement, appellants failed to produce any documentary or oral evidence. Therefore, it cannot be said that witness Pw- 2 was ever obliged by Ram Swaroop the father of deceased Suresh Chandra Mishra. There is nothing on record which may indicate that witness Pw- 3 was ever friendly with deceased or complainant. Perusal of entire evidence of Pw- 3 reveals that he was just a resident of his village who was going Rath to purchase the edible items for his daily use. After careful and proper scrutiny of evidence of witnesses Pw- 1 to Pw- 3, no contradiction is found on the substantial point of prosecution case.
22. It is also to be kept in mind that date of occurrence has been shown on 11.11.1988. The evidence of Pw- 1 was recorded on 31.08.1992. The evidence Pw- 2 was recorded on 03.11.1992 and evidence of Pw- 3 was recorded on 27.11.1992. All the witnesses Pw- 1 to Pw- 3 are living in village. Out of which age of witness Pw- 2 was 65 years at the time of recording of his evidence and he was an illiterate person also. In above situation there might be some inconsistency in their evidence. It has been held by Hon'ble Apex Court in the case of Rizan and Anothers Vs. State of Chattisgarh 2003 CRI. L.J. 1226 SC in Para- 6, that:-
"6.- We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible."
23. The same verdict has been given by Hon'ble Supreme Court in the case of Dharampal and others Vs. State of U.P. 2008 Cr.L.J. 1016. The relevant part of the judgment is reproduced as under:-
"12. This takes us to the next question viz. whether the other lacunae pointed out by the learned counsel for the appellants are fatal to the prosecution case . We agree that the High Court erred in relying on the evidence of PW4, who admittedly was declared a hostile witness. Nevertheless, we fell that in the fact of the other evidence of PW2 Dannu, PW3 Om Prakash who were corroborated in all material respects by PW7 Dr. R.P. Goyal and by PW9, Dr. U. Kanchan, the evidence of PW4, even if discharged, is inconsequential. The evidentiary value of a dying declaration and the principles underlying the imprtance of a dying declaration have already been discussed herein earlier. Simply because PW2 and PW3, in their cross-examination, have been shown to be related to the deceased does not mean that their testimony has to be rejected. It is well settled that evidence of a witness is not to be rejected merely because he happens to be a relative of the deceased. In State of Himanchal Pradesh V. Mast Ram [(2004) 8 SCC 660], this Court observed as under :-
"............The law on the point is well settled that the testimony of the relative witnesses cannot be disbelieved on the ground of relationship. The only main requirement is to examine their testimony with caution. Their testimony was thrown out at the threshold on the ground of animosity and relationship. This is not a requirement of law.............."
In this view of the matter and this being the well-settled law, it is difficult for us to discard the evidence of the witnesses, as discussed hereinabove, only on the ground that they were related to the deceased, in the absence of any infirmity in the said evidence."
Considering the evidence of aforesaid eye-witnesses as a whole there seems no contradiction on the point of occurrence as well as role of appellants in occurrence. It has been held by Hon'ble Apex Court in case of State of U.P. Vs. Shane Haidar and others 2015 (1) J.Cr.C 775 in Para- 34, that:-
"34. After an overall assessment of all the witnesses, produced by prosecution, we are of thhe firm view that all the witnesses are throughout cogent and consistent while deposing in court. All the factual witnesses are rustic villagers, who are bound to get confused during their cross-examination. PW-2 is an injured witnesses, which fact is evident from his injury report, duly proved by the Doctor. Apart from some minor contradictions nothing has been elicited in their statements to cause a shadow of doubt on their credibility."
24. On the same point, another Bench of this Court in case of Tufail Ansari vs. State of U.P. 2015 (2) J.Cr.C 1086 has held that:-
"28. The contention that PW-3 Smt. Babli Jaiswal has admitted in her cross examination that the police had come to their house at about 8.00 p.m., and that she was unsure when she had left for the police station and that PW-1 Ramesh Kumar Jaiswal, informant had stated that he had reached the police station at about 7.00 p.m. or that the appellant Tufail was arrested at about 9.00 p.m. Even if there were some conflicts in the timings, it only suggests that the rural witnesses were a little confused about the timings of the incident or the time when the police had taken the appellant Tufail at about 2.00 a.m. to get the body recovered. Even if there are certain minor discrepancies in the timings and conduct of the investigation, as the basic structure of the prosecution evidence is intact in this case, on the basis of the factum of discovery of the dead body in the middle of the night on the pointing out of the appellant, which was admissible under section 27 of the Evidence Act and the last seen evidence against the appellant by PW-2 Suresh is also intact, little reason exist for not relying on these crucial circumstances which are sufficient to establish the complicity of the appellant in this offence."
25. In para 9 of the case Leela Ram vs. State of Haryana and Others, 2000 SCC (Cri) 222:- Hon'ble Supreme Court has held that:-
"9.- Be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in State of U.P. v. M.K. Anthony ; AIR 1985 SC 48. In para 10 of the Report, this Court observed: (SCC pp. 514-15) "10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."
26. In case Shivappa and Others vs. State of Karnataka, 2008 CrLJ 2992, Hon'ble Supreme Court has held in para 26 that:-
".........Minor discrepancies or some improvements also in our opinion, would not justify rejection of the statements of eyewitnesses if they are otherwise reliable. Some discrepancies are bound to occur because of the sociological background of the witnesses as also the time gap between the date of occurrence ad the date on which they give their depositions in Court."
27. Perusal of evidence as a whole, indicates that there is no such discrepancy in the evidence of prosecution witnesses which touches the core of prosecution version. There may be discrepancy minor/trifle in nature, but in our considered view, they are not able to destroy prosecution case.
28. It has also been argued by learned counsel for the appellants that the letter for medical examination of Chaini, Sarman and Ram Kumar Lodhi was prepared by investigating officer on 11.11.1988 but they have undergone medical examination on 12.11.1988 which also creates doubt, upon veracity of witnesses Pw- 1 to Pw- 3. No cogent reason has been shown for the said delay in medical examination. On the above point of argument records shows that the time of lodging of F.I.R. has been shown as 3.00 p.m. on 11.11.1988. Witness Pw- 1 has stated in his evidence that his statement was recorded on the place of occurrence at 5.00-5.30 p.m. Inquest report Ex. Ka- 10 indicates that the inquest was completed at 17.30 on 11.11.1988. Witness Pw- 7 the I.O. has narrated the proceedings of investigation and mentioned that he has completed the proceedings of investigation till 23.45. It was beginning of winter season. As a common observation the availability of all the facility in village area are not found. Accused persons had fled away and they were not under arrested by I.O. on 11.11.1988. In such a situation, if the above injured persons who were brought hospital by police persons on 12.11.1988 at about 7.00 a.m., it cannot be said that the medical of injured persons has been taken place with an inordinate delay. Witness Pw- 6 Dr. N.K. Joshi has stated that the injuries of injured persons are probable 1-1/2 day prior. The injuries shown in injury reports of Sarman, Chaini and Ram Kumar is not such a nature which can be fabricated. Although, witness Pw- 6 has further replied in cross-examination that if anybody will have courage, then some of the aforesaid injury may be created but this probability is not supported with facts and circumstances of the case as the deceased was not closely related with aforesaid injured persons. There is nothing on record which could show any indication towards aforesaid probabilities, therefore, the argument advanced by learned counsel for the appellants is not forceful.
29. Learned counsel for the appellants has further stated that the appellant Munna has been shown as unknown person who was carrying Ballam at the time of occurrence in fact, he is the brother-in-law (sala) of younger brother of appellant Bal Kishan. He used to visit at the house of his sister Jai Kunwar frequently. Jai Kunwar has deposed as Dw- 1, on the above point, therefore, he has falsely been implicated in the case only due to the reason that he is relative of appellant Bal Kishan. The identity of that unknown person has not been mentioned in F.I.R., his test identification parade took place on 24.01.1989. He further argued that his identification was managed after two months of occurrence and there were all the probabilities that the persons who identified him in T.I.P. were able to identify him earlier. They were having ample chance to recognize him. It reveals from record that witness Pw- 7 has mentioned in his cross-examination that on 24.12.1988 accused appellant Munna surrendered in court and after his surrender on 27.12.1988, investigating officer (witness Pw- 7) moved application for his identification, wherein 11.01.1989 and 16.01.1989 the dates were fixed for identification proceeding. Since on the schedule date, the witnesses could not reach in jail, therefore, the test identification parade of accused appellant Munna took place on 24.01.1989. Witness Pw- 4 has narrated about the proceeding which was conducted for test identification parade, but no substantial question has been asked in his cross-examination on above point. Witnesses Pw- 1 and Pw- 3 have identified to accused appellant Munna (who was mentioned as unknown assailant in F.I.R.) in the aforesaid test identification parade. Witness Chaini wrongly identified due to the reason that he was an old rustic man who had received the injury of Ballam on thigh and fell down on spot immediately, even he could not move anywhere unless and until accused persons fled away from the place of occurrence as it reveals from his evidence. Although, in F.I.R. it has been mentioned by informant that the unknown person was a young man and he will recognize him it he comes again before him. Learned counsel for the complainant also submitted that if it would have been intention of complainant to indulge appellant Munna in the occurrence and if he was known by complainant earlier then there was no reason for not to mention his name, parentage and address in F.I.R. Witness Pw- 1 has stated in cross-examination that this is wrong to say that accused Munna was known by him earlier. Witness Pw- 3 has also stated that he was not acquinted with Munna prior to occurrence. The witnesses Pw- 1 to Pw- 3 has identified to accused Munna in court properly. On the above point, learned counsel for the appellants has submitted that their test identification parade should be conducted soon after the occurrence. If such parade is taken place with inordinate delay of more than 15 days and his identity has not been described earlier, then in that case, the reliance could not be placed on such test identification parade. In support of his argument he has submitted the case Satrughana Alias Satrughana Parida and others Vs. State of Orissa 1995 Supp (4) SCC 448.
30. On the point of test identification parade it has been held in the case of Pramod Mandal Vs. State of Bihar (2004) 13 SCC 150 in Para- 16,17,18 & 19 is produced as under:-
"16. Learned counsel for the appellant also relied upon the decision of this Court in (1987) 3 SCC 331 : Subhash and Shiv Shankar vs. State of Uttar Pradesh, wherein this Court held that a long interval of nearly 4 months before the Test Identification Parade was held, made it doubtful whether inspite of this interval of time the witnesses were able to have a clear image of the accused in their minds and identify him correctly at the Test Identification Parade. In the instant case the Test Identification Parade was held only a month after the occurrence and not after four months as in the case of Subhash and Shiv Shankar (supra). The delay in the instant case is not such as would cast a doubt on the ability of the witnesses to identify the accused.
17. Learned counsel for the appellant also relied upon the decision of this Court in (1982) 3 SCC 368 : Soni vs. State of Uttar Pradesh. The said judgment is a brief judgment where on the facts of the case the court doubted the identification by the witnesses in view of the delay in holding of the Test Identification Parade. However, this judgment does not lay down any principle of law which may be applied to the facts of the present case. It is a decision on the facts of the case and cannot be treated as a binding precedent. In fact the said judgment was noticed by this Court in (2003) 3 SCC 569 : Anil Kumar vs. State of Uttar Pradesh and this Court after extracting the relevant part of the judgment observed :-
"It is to be seen that apart from stating that delay throws a doubt on the genuineness of the identification parade and observing that after lapse of such a long time it would be difficult for the witnesses to remember the facial expressions, no other reasoning is given why such a small delay would be fatal."
18. Learned counsel for the State submitted that in the instant case there was no inordinate delay in holding the Test Identification Parade so as to create a doubt on the genuineness of the Test Identification Parade. In any event he submitted that even if it is assumed that there was some delay in holding the Test Identification Parade, it was the duty of the accused to question the investigating officer and the Magistrate if any advantage was sought to be taken on account of the delay in holding the Test Identification Parade. Reliance was placed on the judgment of this Court in (1973) 3 SCC 896 : Bharat Singh vs. State of Uttar Pradesh. In the aforesaid judgment this Court observed thus :-
"6. In Hasib v. State of Bihar AIR 1972 SC 283; it was observed by the Court that identification parades belong to the investigation stage and therefore it is desirable to hold them at the earliest opportunity. An early opportunity to identify tends to minimize the chances of the memory of the identifying witnesses fading away due to long lapse of time.
Relying on this decision, counsel for the appellant contends that no support can be derived from what transpired at the parade as it was held long after the arrest of the appellant. Now it is true that in the instant case there was a delay of about three months in holding the identification parade but here again, no questions were asked of the investigating officer as to why and how the delay occurred. It is true that the burden of establishing the guilt is on the prosecution but that theory cannot be carried so far as to hold that the prosecution must lead evidence to rebut all possible defences. If the contention was that the identification parade was held in an irregular manner or that there was an undue delay in holding it, the Magistrate who held the parade and the Police Officer who conducted the investigation should have been cross-examined in that behalf".
In the instant case we find that the defence has not imputed any motive to the prosecution for the delay in holding the Test Identification Parade, nor has the defence alleged that there was any irregularity in the holding of the Test Identification Parade. The evidence of the Magistrates conducting the Test Identification Parade as well as the Investigating Officer have gone unchallenged. Learned counsel for the State is, therefore, justified in contending that in the facts and circumstances of this case the holding of the Test Identification Parade, about one month after the occurrence, is not fatal to the case of the prosecution as there is nothing to suggest that there was any motive for the prosecution to delay the holding of the Test Identification Parade or that any irregularity was committed in holding the Test Identification Parade.
19. Learned counsel for the State has also relied upon the decision of this Court in (2003) 3 SCC 569 : Anil Kumar vs. State of Uttar Pradesh wherein the Test Identification Parade was held 47 days after the arrest of the appellants. This Court after considering several decisions of this Court including the decisions in (1994) 1 SCC 413 : Brij Mohan vs. State of Rajasthan ; (2001) 3 SCC 468 : Daya Singh vs. State of Haryana and (2000) 1 SCC 471 : State of Maharashtra vs. Suresh concluded that since the identifying witness was attacked by the assailants including the appellant and another, he had a clear look at the assailants. When his younger brother came to save him he was killed by the assailants while the witness also received serious injuries. These were circumstances which would have imprinted in the memory of the witness the facial expressions of the assailants and this impression would not diminish or disappear within a period of 47 days. Similar was the case of the father and the mother of the identifying witness who had seen the assailants attacking their sons and one of their sons getting killed. In their memory also the facial expressions of the assailants will get embossed. A mere lapse of 47 days would not erase the facial expressions from their memory."
31. It has also been held by Hon'ble Apex Court in the case of Sheo Shankar Singh Vs. State of Jharkhand and another (2011) 3 SCC 654 in Para- 46, which is reproduced as under:-
"46. It is fairly well-settled that identification of the accused in the Court by the witness constitutes the substantive evidence in a case although any such identification for the first time at the trial may more often than not appear to be evidence of a weak character. That being so a test identification parade is conducted with a view to strengthening the trustworthiness of the evidence. Such a TIP then provides corroboration to the witness in the Court who claims to identify the accused persons otherwise unknown to him. Test Identification parades, therefore, remain in the realm of investigation."
32. Identification of accused in court is a substantial piece of evidence in present case. Accused/appellants failed to mention any motive for causing voluntarily delay in test identification parade. Apart from that the accused Munna has been identified by all the eye-witnesses in court. There is consistency in evidence on the point of occurrence and on the point of roll played by each accused/appellants in evidence of witnesses Pw- 1 to Pw- 3, which is also corroborated by medical evidence. Therefore, there is no ground to accept that accused appellant Munna was not involved in the crime. The injuries which have been found on the body of deceased Suresh Chandra and on the body of eye-witnesses indicates that weapons, as has been mentioned in F.I.R. and in evidence of witnesses, that one sharp edged weapon, one fire arm, one hard and blunt object including one sharp pointed weapon were used in occurrence. The evidence on record has proved that appellant Bal Kishan was carrying fire-arm (tamancha) in his hand, Lakshmi Prashad was carrying axe and appellant Munna was carrying ballam in his hand, which was used as causing the pointed injury on Chaini as well as pierced injury on deceased and injury of blunt object while using the ballam as lathi.
33. Learned counsel for the appellants has further submitted that the fact came into the F.I.R. and evidence of witnesses of fact that unknown assailants (appellant Munna) pushed his ballam in the wheel of cycle of deceased but there is no description of breaking of spokes (tilies) of cycle wheel. Although, I.O. has not made any description of cycle of deceased Suresh Chandra yet it may be taken as latches in investigation, which is not fatal for prosecution case. The shortcomings in investigation will not affect the credibility of eye-witnesses. It has been held by Hon'ble Apex Court in Sukhchain Singh Vs. State of Haryana & Ors 2002 SCC (Cri.) 961, Allarakha K. Mansuri Vs. State of Gujarat 2002 SCC (Cri.) 519, Kashi Nath Mandal vs The State of West Bengal & Ors 2013 (1) SCC 364 (SC), State Of Karnataka vs K. Yarappa Reddy AIR 2000 SC 185 and by the Co-ordinate Bench of this Court in Umashankar Tivari vs State Of U.P. And Another 2015 (89) SCC 421.
34. It has to be kept in mind that counsel for defence neither asked any explanation nor confronted on above point as according to provisions to Section 145 of Evidence Act in cross-examination of Pw- 7 (investigating officer), therefore appellants cannot raise such defence as grounds for their acquittal at appellate stage.
35. It has also been argued by learned counsel for the appellants that there is no recovery of weapons used in occurrence and there is no F.S.L. report of blood-stained soil, therefore, the prosecution version is not proved. If the investigating officer could not recover the weapons used in occurrence and failed to submit F.S.L. report of blood it may be the laches of investigating proceeding. It has been held by Hon'ble Apex Court has held in Ram Bali Vs. State of U.P. 2004 (2) JIC 168 (SC) that Para- 12.
"12. The investigation was also stated to be defective since the gun was not sent for forensic test. 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. (See Karnel Singh v. State of M.P. (1995 (5) SCC 518)."
State Of Punjab vs Hakam Singh Appeal (Cri.) 130 of 2000 decided on 31.08.2005 that:-
"The High Court has disbelieved her testimony on the grounds i.e. on the manner of firing and recovery of the guns, non seizure of blood stained clothes but these short-comings hardly impeach her testimony. In order to impeach her testimony technical questions were asked to her which was not the correct approach for discarding her testimony. Therefore, we are of the opinion that the High Court has committed an error in discarding the testimony of this witness on technical grounds de hors the factual statement given by her.
Learned counsel for the respondent has also tried to make out that the defence version is more probable. The defence version was that in fact Bhola Singh who was coming for bus stop was first attacked by the prosecution party and in retaliation the accused persons went there and that the prosecution could not explain the second injury to the deceased Bhola Singh. We do not think that the defence version improbablises the prosecution story. It is just an afterthought theory put up by the defence to improbablise the prosecution story. But the facts as mentioned above particularly the testimony of P.Ws. 3 & 4 sufficiently lend support to the prosecution story.
It was also pointed out by learned counsel for the respondent that no fire arms were recovered and no seizure has been made of empties. It would have been better if this was done and it would have corroborated the prosecution story. Seizure of the fire arms and recovering the empties and sending them for examination by the Ballistic expert would have only corroborated the prosecution case but by not sending them to the Ballistic expert in the present case is not fatal in view of the categorical testimony of P.W. 3 about the whole incident."
The same view has been taken by the Hon'ble Apex Court in the case of Krishna Mochi And Others vs State Of Bihar 2002 (2) J.Cr.C 123 that Para- 81.
"81. It has been then submitted on behalf of the appellants that nothing incriminating could be recovered from them which goes to show that they had no complicity with the crime. In my view, recovery of no incriminating material from the accused cannot alone be taken as a ground to exonerate them from the charges, more so when their participation in the crime is unfolded in ocular account of the occurrence given by the witnesses, whose evidence has been found by me to be unimpeachable"
In the case of Gajoo vs State Of Uttarakhand 2012 (9) SCC 532 and by Co-ordinate Bench of this Court in the case Virendra Singh @ Virendra Pratap Singh Vs. State of U.P. 2015 (2) ACR 1461, Hon'ble Apex Court has laid down the same law.
36. Learned counsel for the appellants has failed to show any cogent reason for false implication of accused appellants.
37. In view of the facts, circumstances and evidence as discussed above, we are of the confirmed view that prosecution has succeed to prove the charges of offence under Section 307 read with Section 34, 302 read with Section 34 and 324 and 323 I.P.C. and no illegality or infirmity is found in the judgement and conviction order of sessions court. Appeals have no force. The appellants who are on bail, will surrender before the C.J.M. concerned immediately, failing which C.J.M. concerned will issue NBW against accused appellants.
38. If accused appellants appears or brought before C.J.M. concerned they shall be sent to jail for execution of their sentence.
39. Accordingly, both the appeals are dismissed.
Order Date :- 13.01.2020 Israr