Allahabad High Court
Jhinkan vs State on 24 January, 2018
Bench: Pradeep Kumar Singh Baghel, Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 43 Case :- CRIMINAL APPEAL No. - 1385 of 1991 Appellant :- Jhinkan Respondent :- State Counsel for Appellant :- R.P. Singh Counsel for Respondent :- A.G.A. Hon'ble Pradeep Kumar Singh Baghel,J.
Hon'ble Harsh Kumar,J.
This appeal assails the judgement and order of the Court of Sessions dated 17.5.1991 passed in Sessions Trial Nos. 7 of 1988 and 9 of 1988, whereby the sole appellant has been convicted for the offence punishable under Section 302 of the Indian Penal code, 1860 (for short, "IPC") for life imprisonment and under Section 25 of the Arms Act for which he is sentenced to undergo one year's rigorous imprisonment and one year R.I. under Section 27 of the Arms Act.
The brief facts of the case are; the P.W.-2 Indrasan was sitting with his brother Angad and his father P.W.-1 Banshoo in front of their house. At about 09:00 a.m. in the morning the appellant came to their house and invited Angad to have tea with him at Chamanganj crossing. At his request Angad victim accompanied him. They had hardly moved about one bigha distance when the P.W.-2 heard noise of discharge of a countrymade pistol. Upon hearing P.W.-2 saw that the appellant had gunned down Angad by shooting him by his countrymade pistol from a close range. The P.W.-1, P.W.-2, Prakash son of Vanshu, Ramdhani son of Fagu, Ramlakhan son of Nageshwar, Hawaldar son of Chhedi, Dayaram son of Harkhoo and others rushed towards the spot. Prakash after chasing the appellant to some distance nabbed the culprit, the appellant with pistol the weapon of crime.
In the scuffle the appellant hit Prakash by the butt of his pistol and caused injuries in Prakash's hand. All the persons, who assembled at the spot, brought Angad to the police station along with his pistol and the injured was sent to Basti for medical aid, where he succummed to his injuries on 21.10.1987 at 1.20 P.M..
The investigation was initially entrusted to S.I. Diwakar Kannaujia on 21.10.1987. Later, the investigation was transferred to Station Officer Baleshwar Singh Yadav-P.W.-8. The inquest report was prepared and it was signed by independent witnesses Ram Shankar and Zalim etc.. The body was sent for autopsy.
The postmortem was conducted by Dr. Gopal Krishna Singh P.W.-6. The postmortem report is extracted below:
"(i) Lacerated wound 3 cm x 3 cm on the right side iliac region alongwith multiple gun shot wound around it. Blackening and tattooing present. Part of intestine outside."
The doctor was of the opinion that the death was caused by the shock and haemorrhage, as a result of gun-shot injury.
On 20.2.1988 after the investigation was completed, the police submitted a charge-sheet against the appellant for the offence punishable under Section 302 I.P.C. and Sections 25/27 of the Arms Act and also against Hari Ram and Badri under Section 120-B I.P.C. for conspiring with the appellant.
The case was committed to the Sessions Court. The Sessions Court framed the following charges against the appellant:
"That you, on 21.10.87 at about 9.00 a.m. in the field of Haridwar, in village Agai Bhagar, within the circle of P.S. Nagar committed murder by intentionally or knowingly causing the death of Angad by firing gun shot with Katta and thereby committed an offence punishable u/s 302 I.P.C. And within the cognizance of this court of session."
In addition to above, charges under Sections 25/27 of the Arms Act were also framed against the appellant and charge under Section 120-B I.P.C. was framed against co-accused Hari Ram and Badri.
The prosecution has examined 12 witnesses; P.W.-1 Banshoo, the father of deceased, P.W.-2 Indrasan (brother), P.W.-3 Prakash (brother), P.W.-4 Ram Lakhan (independent witness) who are the eye-witnesses, P.W.-5 Diwakar Kanaujiya initially conducted investigation, P.W.-6 Dr. Gopal Krishna Singh had examined Angad (deceased), P.W.-7 Dr. R.S. Singh has examined the accused/ appellant, P.W.-8 Baleswar Singh Yadav is the Constable, a formal witness, P.W.-9 Dr. M.P. Singh conducted autopsy of Angad (deceased), P.W.-10 Raghunath Yadav, P.W.-11 Dr. B.K.S. Chauhan who examined injured Prakash and P.W.-12 Aparbal Singh went to hospital and conducted inquest proeedings.
The trial court after analysing the evidence on record found that two of the accused Hariram and Badri who were charged under Section 120-B IPC are not guilty as the prosecution failed to prove the charge hence they have been acquitted. The appellant Jhinkan was found guilty for commission of offence under Section 302 I.P.C. and Sections 25 read with Section 27 of the Arms Act.
We have heard learned amicus curiae and the learned A.G.A..
The learned amicus curiae Sri Vijay Shankar Chaurasia submits that the trial court has misdirected itself as it has ignored the material contradictions in the testimonies of the witnesses, hence evidence therein is unworthy of credence. He further submits that the appellant was brought from his house and was falsely implicated due to village politics. Learned amicus curiae has taken us to the deposition of all the prosecution witnesses in support of his submission. Lastly, he urged that there is no independent witness and the trial court has wrongly relied on deposition of the P.W.-1, P.W.-2 & P.W.-3 as they are partisan and closely related to the deceased. The P.W.-1 is father of the deceased and the P.W.-2 and P.W.-3 are his brothers.
Sri A.N. Mulla, learned A.G.A. has submitted that the findings of the trial court are based on ocular evidence. The eye-witnesses have proved the prosecution's case and the contradiction referred to by the learned amicus curiae is only minor inconsistency which does not adversely affect prosecution case.
The P.W.-1 Banshoo is father of the deceased. He has deposed that on the fateful day he was sitting in front of his house along with his wife and sons Prakash and Angad (deceased). The appellant came to his house at about 9.00 a.m. to call Angad. He offered him to have tea with him at chamanganj crossing. Angad accompanied him on his invitation. They had gone together about a bigha (approximately), when suddenly the appellant took out Katta (countrymade pistol) and shot Angad, who after receiving the gun-shot injury sounded alarm for his help. Upon hearing his alarm the P.W.-1, his wife, daughter-in-law, Prakash, Lakhan, Hawaldar and Jalim rushed to the spot of occurrence. After the shooting the appellant tried to run away towards east but Prakash chased him and overpowered him. In the scuffle the appellant hit Prakash by barrel of his Katta which caused him injury on his forearm. After catching hold him, they took him to Pradhan's home. The P.W.-1 took injured Angad to a hospital in Basti, where he succummed to his injuries on the same day. The appellant had made a confessioin that he committed the murder at the behest of Badri and Hari Ram.
The P.W.-2 Indrasan is brother of the deceased. In his deposition he stated that a day before Diwali festival the incident occurred. It was morning time when deceased and the appellant moved from his home at about 9.00 a.m. The witness also left home for cutting fodder. He was moving ahead of them. When both reached near the field of Harihar, the appellant opened fire by Katta and hit Angad. After hearing the scream of Angad the witness chased the appellant but before he could reach near him, Prakash had caught hold of the appellant. He proved the FIR (Ext.-1) and identified the Katta.
The P.W.-3 stated that he witnessed the incident from his house which is hardly at the distance of a bigha from the place of occurrence. He chased the appellant along with others and after covering a distance of 95 Gatthas towards north he caught hold of the appellant with his countrymade pistol. The appellant had twisted his right hand and hit at his left hand with barrel of Katta. The P.W.-3 had received injury on his left hand. He has further deposed that hearing the noise of firing and alarm raised by Angad, some villagers namely, Ramdhan, Hawaldar, Ram Lakhan, Jalim and his brother Indrasen (P.W.-2) also reached on the spot.
The P.W.-4 Ram Lakhan in his statement had deposed that after hearing the fire, he saw from his house that Prakash (P.W.-3) and Indrasan (P.W.-2), were chasing the appellant and they caught the appellant near the field of Billa Singh. According to him the place of occurrence was at chak-road. He had seen injured Angad and also a witness of Fard and bloodstained earth was collected by the I.O. during investigation.
Regarding the submission of learned amicus curiae that the statement of the aforesaid witnesses can be discarded on the ground as they are family members thus interested and partisan witnesses, as discussed above, the evidence of P.W.-1, P.W.-2 and P.W.-3 are natural and fully corroborate prosecution's case. The incident had taken place in broad day-light near the house of the deceased hence the presence of the P.W.-1, 2 & 3 cannot be doubted and a careful reading of their evidence inspires confidence.
The submission that family members are interested and partisan hence their statement affect the credibility of their deposition, has been considered by the Supreme Court in Dalip Singh and others v. State of Punjab1, the Supreme Court speaking through Vivin Bose, J had observed as under:
"26. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration.If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this court endeavoured to dispel in Rameshwar v. The State of Rajasthan, 1952 SCR 377. We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel."
The said judgement has been consistently followed by the Supreme Court in the case of S. Sudershan Reddy and others v. State of A.P.2. The Supreme Court was considering the same issue and made the following observations:
"12. We shall first deal with the contention regarding interestedness of the witnesses for furthering the 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 the 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."
In the aforesaid judgment the Supreme Court has followed the judgment in Dalip Singh (supra) and has quoted with approval the following passage of the said judgment:
"13....
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 generalization. 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 Kuriya another v. State of Rajasthan3 the Supreme Court held that if Court finds that testimony of an eyewitness is worth credence it cannot be discarded mainly because the witness was a relative of the deceased.
In the light of the aforesaid principles, we can safely record that the evidence of P.W.-1, P.W.-2 and P.W.-3 are reliable and free from any blemish. Hence their testamony cannot be discarded only on the ground that they are father and brothers of the deceased.
The learned amicus curiae has laid much emphasis on the inconsistencies and discrepencies in the statement of witnesses regarding place where the victim was nabbed and the statement of P.W.-3 Prakash who had said that he had overheard the conversation between the appellant and victim, it is trite that every inconsistency is not a material contradiction.
The Supreme Court in the case of Yogesh Singh v. Mahabeer Singh and others, (2017) 11 SCC 195 after considering large number of earlier judgments came to hold in following terms:
"29. 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 the case of the prosecution but not every contradiction or omission."
From the evaluation of the prosecution material discussed above, it is crystal clear that all the three eye-witnesses (P.W.-1, P.W.-2 and P.W.-3) were present at the place of occurrence. From the site-plan also it is evident that there was no crop standing between the place 'A', which is home of the deceased and place 'B' where the deceased was shoht. There was no obstrucion of any crop. P.W.-1 has deposed that there was crop of Arhar and Bajra, which was hardly two feet (Ek Haath). In site-plan this field is shown as (Khet Harihar). The discrepencies pointed out by learned amicus curiae regarding place of catching hold of the appellant is of no significance. The learned amicus curiae has invited our attention to testimony of P.W.-4 Ram Bahadur wherein he has stated that the distance between the place of occurrence and Angad's house is 10-12 bighas. At one place he has stated regarding the said distance only 1-1/2 bigha. The other discrepency in his statement is regarding place where the appellant was apprehended. According to him the appellant was caught in the field of Billa Singh. According to the witness the distance from Chak Road to the field of Billa is 95 Gattha. This witness further stated that he was nabbed at Chak Road and not in the field.
We have considered the above submissions carefully. We are of the view that these insignficant discrepencies do not materially affect the case of prosecution. These discrepencies do occur in normal course of human conduct. A rustic witness from a rural background is not expected to recall all the facts of remote past with precision. An illeterate witness, who comes from marginal section of the society, does not pay much attention regarding time and distance, when he had seen the incident. Moreover, these minor discrepencies cannot be taken or construed as no such occurrence had taken place. Pertinently, the P.W.-3 is injured witness, which he sufferred while he was trying to nail the accused/ appellant, the latter hit him by the barrel of countrymade pistol. The P.W.-11 Dr. B.K.S. Chauhan, Medical Officer in his deposition has proved his injury report report. He had examined him on 21.10.1987, on the date of occurrence of incident. He opined that injuries were caused by barrel of pistol and were simple injuries.
It is trite that the evidence of injured witness is to be given due credence. His statement is an in-built guarantee of his presence at the scene of crime. The Supreme Court in the unbroken line of decisions has held that the deposition of injured witness should be relied upon unless there are strong grounds for rejection of his evidence in case it is found that there are major contradiction and discrepencies therein.
In the case of Baleshwar Mahto and another v. State of Bihar and another4 the Supreme Court had occasion to cosider the law in respect of evidence of the injured witness. After referring a large number of cases the Supreme Court has quoted with approval its earlier decision in Abdul Sayeed v. State of Madhya Pradesh5. In the said case the Court held thus:
"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". (Vide Ramlagan Singh v. State of Bihar, AIR 1972 SC 2593; Malkhan Singh v. State of U.P., AIR 1975 SC 12; Machhi Singh v. State of Punjab, (1983) SC 470; Appabhai v. State of Gujarat, AIR 1988 SC 696; Bonkya v. State of Maharashtra, (1995) 6 SCC 447; Bhag Singh, (1997) 7 SCC 712; Mohar v. State of U.P., (2002) 7 SCC 606; Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270; Vishnu v. State of Rajasthan, (2009) 10 SCC 477; Annareddy Sambasiva Reddy v. State of A.P., (2009) 12 SCC 546; Balraje v. State of Maharashtra, (2010) 6 SCC 673)."
In addition to above the reference may be made to the judgments of Mohar Singh and another v. State of U.P.6; Bhag Singh and others v. State of Punjab7; and Ramlagan Singh and others v. State of Bihar8.
It was sought to be argued by the learned amicus curiae that this case falls under the exception under Section 304(2) IPC. It was submitted that from the testimony of the P.W.-1 that while both of them were going to have tea, suddenly they stopped on the road and thereafter the appellant pulled out Katta and shot him. It was feabily argued that the said fact indicates that there was sudden provocation and there was no preconceived plan to kill him.
The submission of the learned counsel, in our opinion, is not well founded. From the evidence on record there is no material to indicate that it was a case of sudden provocation. On the other hand the accused appellant had stated that he had murdered the deceased at the behest of Hari Ram and Badri. On the basis of his statement the accused nos. 2 and 3 Hari Ram and Badri also faced the trial under Section 302 read with Section 120-B I.P.C. They stand chargesheeted under Section 120-B I.P.C. for being in conspiracy with Jhinkan to commit murder of Angad on the date, time and place.
The trial court has acquitted the accused Badri and Hari under Section 120-B I.P.C. Moreover, no plea of grave and sudden provocation was raised at the time of argument before the trial court.
We have perused the findings of the trial court on this aspect and we found that its findings do not suffer from any error.
For the reasons mentioned above, we do not find any perversity or illegality in the judgment of the trial court. We are satisfied on the basis of the discussion mentioned above and after perusal of the evidence that the prosecution has successfully established its case that the accused appellant is guilty and has been rightly found guilty for the commission of offence under Section 302 I.P.C. and his conviction is accordingly upheld, hence the appeal is dismissed.
The appellant is on bail. His bail bonds are cancelled. He shall surrender before the trial court forthwith. The Chief Judicial Magistrate, Banda shall cause the appellant to be arrested and lodged in jail to serve out the sentence.
We appreciate the valuable assistance rendered by learned amicus curiae Sri Vijay Shankar Chaurasiya.
Let a copy of this judgment and order along with Lower Court record be sent to the Lower Court for its intimation and necessary compliance.
Material exhibits be disposed off in accordance with rules.
Judgment be certified and placed on record.
Order Date :- 24.1.2018 Digamber