Allahabad High Court
Nand Lal Mishra vs State Of U.P. on 21 March, 2018
Bench: Amreshwar Pratap Sahi, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 40 AFR Case :- CRIMINAL APPEAL No. - 2062 of 2017 Appellant :- Nand Lal Mishra Respondent :- State Of U.P. Counsel for Appellant :- Bimla Prasad Counsel for Respondent :- G.A.,Rupak Chaubey,Shashank Singh Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Rajeev Misra,J.
1. This appeal questions the correctness of the conviction and sentencing of the appellant under Section 302 read with Section 34 I.P.C. and under Section 506 (2) of the I.P.C. arising out of Session Trial No. 68 of 2006 in Case Crime No. 75 of 2005, P.S. Chakiya, District Chandauli.
2. In addition thereto, the appellant has also been sentenced to pay a fine of Rs. 25, 000/- and Rs. 2,000/- and in default thereof to undergo further imprisonment of two years and six months, respectively. The appellant has, however, been acquitted of the offence under Section 504 I.P.C.
3. The incident is of 1st of August, 2005. The written report and the first information report which were lodged on the same day at about 9:45 AM recite that at about 8:00 AM in the morning one Buddhesh Misra, the accused who was stated to have been armed with a country made pistol alongwith the appellant Nand Lal Misra, who is the uncle of the said accused and was holding a stick, assaulted the deceased Hirdaynarayan Upadhyay and caused a gun shot injury resulting in the instantaneous death of the deceased. The F.I.R. states that both the assailants came together for which an alleged motive had been attributed relating to a dispute of family property inherited by the maternal grand father of the informant. The said motive had given rise to differences on the fatal day resulting in the death of Hirdaynarayan Upadhyay. The accused abused the deceased and jumped from their side of the premises into the courtyard where the deceased was sitting on a cot. The deceased was chased and the appellant Nand Lal Misra is alleged to have first assaulted the deceased with his stick on his left knee where after he fell down and other accused Buddhesh Misra then shot him in the neck. The deceased instantly died and the accused fled away from the scene exhorting the other inmates including the witnesses who have deposed on behalf of the prosecution. The first informant Anil Kumar Upadhyay, who is the son of the deceased promptly lodged the FIR and has been examined as P.W.-1.
4. After the report was lodged the investigation came into action and prepared a inquest report witnessed by five persons including Jang Bahadur Singh. The inquest report is said to have begun at about 11:30 AM and completed at about 12.45 PM on the same day. The opinion expressed in the said inquest report is that the death was caused due to gun shot injury. While describing the injuries, the last sentence of the description of the injuries recites of an assaulted injury below the knee presumably caused by a stick.
5. The body was sent for postmortem that was conducted on the next day, i.e., 2nd August 2005. The autopsy was carried out by Dr. Nand Lal Pandey, who has been examined as P.W.-5. The postmortem report indicates a single injury of a gun shot wound that has been described to be the cause of death. There is no description of any other external injury in the postmortem report. This is to be noted inasmuch as against the inquest report, which had also noted an assault injury by a stick below the knee, is not indicated in the postmortem report.
6. The charge sheet was filed against both the accused but Buddhesh Misra remained an absconder and during trial it was disclosed that Buddhesh had been killed in a police encounter.
7. The trial proceeded against the appellant. The son of the deceased Anil Kumar Upadhyay was examined as P.W.-1. His brother's wife Smt. Anjani Upadhyay was examined as P.W.-2, who are the witnesses of fact stated to have witnessed the entire incident on the fatal day. Jang Bahadur Singh one of the witnesses to the inquest report was examined as P.W.-3. Head Constable Akbar Khan, who is the scribe of the F.I.R., has been examined as P.W.-4. The Doctor, who conducted the autopsy and prepared the postmortem report, namely, Dr. Nand Lal Pandey deposed as P.W.-5. The Investigating Officer, Sri Purnmasi Kanaujia deposed as P.W.-6. Constable Viresh Datt Tiwari appeared as P.W.-7 who verified the contents of the case diary particularly memo no.13 and memo no. 7 to 10. He was also examined as a court witness, C.W.-7 to certify the death of Buddhesh Misra one of the co-accused.
8. The statement of the appellant under Section 313 Cr.P.C. was tendered on 4th March, 2016. At this stage, it will be relevant to mention that the appellant was stated to be aged about 75 years on the said date when the said statement was tendered and would be approximately 77 years of age now.
9. The trial court after having assessed the evidence including the ocular testimony of P.W.-1 and P.W.-2 as well as medical evidence, came to the conclusion that the date, time, place and the manner of occurrence stood proved from the unimpeachable testimony of the prosecution witnesses. Consequently, it proceeded to hold the appellant to be guilty, keeping in view the involvement of the appellant, in spite of the fact that he was only armed with a stick and the gun shot injury had been caused by the deceased accused Buddhesh. The trial court also concluded that the participation of the appellant stood established inasmuch as the manner in which the appellant first assaulted the deceased with the blow of a stick, who fell down, where after the other accused shot him, was intervened by an exhortation by the appellant calling upon the other co-accused Buddhesh to finish the deceased. The trial court therefore held that the ingredients of Section 34 IPC are clearly attracted in the manner in which the incident and the altercation took place prior to the shooting by other co-accused Buddhesh. The prosecution thus made out a case against the accused and that the accused was liable to be punished for the offences for which he was charged except under Section 504 I.P.C.
10. Accordingly the trial court convicted the appellant for the offences for which he had been charged except under Section 504 I.P.C. and awarded the sentence as noted herein above.
11. Sri Bimal Prasad, learned counsel for the appellant has advanced his submissions contending that firstly, the presence of P.W.-2 is clearly doubtful as she in her testimony has stated that she was a teacher in a school the timing of which was from 7:00 AM to 12 Noon in the month of August and therefore she was not present at the time of incident, i.e., at 8:00 AM. Therefore, her testimony is absolutely unreliable. Thus, the ocular testimony of P.W.-2 being untrustworthy, any other evidence corroborating the same should also be discarded.
12. The second argument of Sri Bimal Prasad is to the effect that so far as the appellant is concerned, the allegation against him is that he had assaulted the deceased with a stick. The assault with a firearm was attributed to the other accused Buddhesh. The postmortem only entails a single injury of a gun shot wound with no indication of any seat of an external injury having been located at the time of assault. He therefore submits that the allegation against the appellant of having assaulted the deceased with a stick, no where stands corroborated and this evidence of the prosecution itself is sufficient to exonerate the appellant of any assault having been caused by him. Therefore, he contends that neither the ocular testimony nor any supporting evidence in any way is pointer towards the presence of the appellant at the scene of occurrence nor does it in any way establishes the actual act of assault by the appellant which belies the prosecution version.
13. The third argument of Sri Bimal Prasad is to the effect that motive not having been proved, there was absolutely no reason to construe that the appellant had any common intention shared with the other accused to commit the offence of murder. He submits that this aspect has been considered in several decisions and for that he relied on paragraph 5 of the judgement rendered by the Apex Court in the case of Kalachand Bhowmik and another Vs. State of Tripura reported in AIR 2000 SC 3583 to contend that even assuming for the sake of argument that the appellant had assaulted with a stick, there were no sharing of any such common intention for having caused the murder of the deceased and consequently, the appellant cannot be punished for the offence of murder under Section 302 I.P.C. readwith Section 34 thereof.
14. The fourth argument of Sri Bimal Prasad is that P.W.-1 and P.W.-2 being the son and the daughter-in-law of the deceased are interested witnesses and whose deposition is not supported by the other witnesses named in charge-sheet, who did not come forward to support the prosecution version. He has further urged that so far as the site plan as prepared is concerned, the oral testimony did not match with the description in the manner in which the assault took place so as to establish the presence of the appellant. He submits that the appellant appears to have been falsely implicated and even if the motive is attributed, that has not been established, the same is a double edged weapon, which should be read in favour of the accused to construe that he is being falsely implicated.
15. Replying to the aforesaid submissions, the learned A.G.A and Sri Ajay Kumar Pandey alongwith Sri Irshad Ahmad, learned counsel for the complainant have urged that the ocular testimony appears unimpeached and therefore, even if the postmortem does not indicate an assault injury by a stick. There is sufficient evidence to corroborate the same other than the postmortem report to establish that the appellant had assaulted the deceased with a stick causing an injury below his knee. It has been urged that this injury had been noticed by the inquest witnesses and the inquest report, which was prepared immediately after the lodging of the first information report stands corroborated by the ocular testimony of P.W.1 and P.W.-2 that the deceased had been assaulted by stick. They therefore contend that so far as the presence of the prosecution witnesses P.W.-1 and P.W.-2 is concerned, they have testified and their ocular testimony clearly establishes the assault by the appellant causing an injury to the deceased. It is urged that the statements of these witnesses are a clear pointer that it was the appellant, who had first assaulted the deceased on account of which he fell down and thereafter the other accused Buddhesh Misra shot at him through the neck.
16. Countering the other submissions raised on behalf of the appellant particularly with regard to sharing of common intention, the learned A.G.A. and learned counsel for the complainant have relied on the decision of the Apex Court in the Case of Virendra Singh Vs. State of M. P. reported in AIR 2011 Supreme Court 193. By referring to paragraphs 20, 21 and 22 of the aforesaid judgement it is contended that on the basis of the evidence that has been brought forth in the present case, it is clear that the appellant started participating in the entire incident right from inception by exhorting the other co-accused to finish the deceased. This clearly depicts the mental intention and mens rea of the appellant to participate in the incident and also to exhort the other accused to fire a shot at the deceased resulting in his death. It is urged that since the appellant had come armed with a stick, therefore he will also be presumed to be aware of the fact that the other accused was armed with a firearm and the exhortation led to the shooting of the deceased. It is therefore submitted that the ingredients of Section 34 of the I.P.C. cannot be ruled out keeping in view the additional act of actual participation of the appellant, who not only exhorted the other accused to fire at the victim but himself also assaulted the victim with a stick, who fell down where after the shot was fired at him. It is also submitted by the learned counsel for the prosecution that argument on behalf of the appellant that both the witnesses P.W.-1 and P.W.-2 are interested witnesses is incorrect inasmuch as these witnesses are not chance witnesses, neither they can be termed as interested witnesses merely because they are related to the deceased. It is therefore urged that the testimony as led by the prosecution clearly establishes the guilt of the appellant, who had been rightly convicted and awarded punishment by the trial court.
17. Having heard the rival contentions and having perused the record as well as the judgements cited at the bar, we find that the F.I.R. version of the incident has been supported by P.W.1 and P.W.2. It goes without saying that the F.I.R has been promptly lodged soon after the incident on the same day. The investigation also commenced immediately thereafter and the inquest report was prepared with one of the prosecution witnesses Jang Bahadur Singh, P.W.3 as a witness to the said inquest report. The F.I.R. script has been corroborated by the Head Constable Akbar Khan, who has appeared as P.W.4 and has proved the transcription of the said F.I.R. P.W.1 and P.W.2 have supported the said version and have proceeded to systematically describe the manner in which the incident occurred including the arrival and assault by the accused that resulted in the ultimate death of the deceased within a very short span of time at about 8:00 am in the morning.
18. The two witnesses of fact P.W.1 and P.W.2 were cross-examined by the defence and on a perusal of the cross-examination, we find that neither P.W.1 nor P.W.2 have anywhere faltered or waved while testifying the F.I.R. version. Their statements do not appear to be laced with either any embellishment or additions that may lead us to believe that the statements are not trustworthy either partially or wholly. One of the major arguments raised on behalf of the appellant by learned counsel Mr. Bimal Prasad is that the testimony of P.W.2 Smt. Anjani Upadhyay cannot be believed as she herself has stated that she was a teacher in a school and the school runs in the morning in the month of August from the 7:00 am to 12:00 noon. The argument is that the incident took place at 8:00 am when P.W.2 would have been present in School and therefore, her testimony should be discarded. We are unable to accept this argument as while cross examining P.W.2, no such suggestion was put forth nor was P.W.2 cross-examined specifically as to whether on the fatal day, she had already left the house to attend her duty at school or not. This failure on the part of the defence, therefore, does not allow the argument to be advanced that P.W.2 was not present on the fatal day. To the contrary the Statement of P.W.2 stands corroborated by P.W.1. P.W.1 is an inmate of the house and son of the deceased. No such question was put or cross-examination conducted by the defence was so as to dislodge the presence of P.W.2 at the time of occurrence. In such a situation the argument advanced by the learned counsel for the appellant that the testimony of P.W.2 is untruthful as she was not present at the scene of occurrence, has to be rejected.
19. Coming to the details of the incident, both the eye witnesses have given specific details of the arrival of the assailants, their actual participation and the culmination in the commission of the offence. Their testimony has been additionaly impeached by the learned counsel on the ground that they are partisan and interested witnesses as P.W.1 is the son of the deceased, P.W.2 is the daughter-in-law of the deceased. This argument also cannot be countenanced inasmuch as all related witnesses cannot be disbelieved on the count that they are related to the deceased and that their testimony becomes untruthful merely because they are related. These two witnesses, even though they are related to the deceased, there is no evidence that they stood to have gained or benefited by giving testimony in relation to the incident. As to what is the distinction between an interested, related and partisan witnesses, the Apex Court has explained it in the case of Gangabhavani Vs. Rayapati Venkat Reddy & Others 2013 (15) SCC 298, which reads as under:-
"11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon.
12. In State of Rajasthan v. Smt. Kalki and Anr. AIR 1981 SC 1390, this Court held:
5A. As mentioned above the High Court has declined to rely on the evidence of P.W. 1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased"......For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True it is she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W. 1 had no interest in protecting the real culprit, and falsely implicating the Respondents.
13. In Sachchey Lal Tiwari v. State of U.P. AIR 2004 SC 5039, while dealing with the case this Court held:
7....Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence.
14. In view of the above, it can safely be held that natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased."
20. Applying the ratio of the aforesaid decision of the Apex Court in the facts of the present case, we find that P.W.1 and P.W.2 are the most natural witnesses being the inmates of the house when the incident occurred in the morning hours on 1st August, 2005. Their presence is not only natural but the only probable circumstance that can be gathered from the entire evidence which is on record. We, therefore, reject the arguments on behalf of the appellant that the said witnesses are interested witnesses.
21. The description of the incident by these two witnesses is to the effect that an oral altercation emanated when Buddhesh Misra, the other co-accused started abusing P.W.2 while she was filling a bucket with water from the hand pump inside the courtyard where the incident took place. The deceased was also sitting on a cot in the same courtyard as has been described in the site plan. It is this abusive language that was resisted by P.W.2 which escalated the incident, whereafter the appellant and the other accused Buddhesh Misra stepped out of their premises. The appellant with a stick in his hand had exhorted the other co-accused Buddhesh armed with a country made pistol to assault the deceased who had by that time got up to intervene. It has also come in evidence that there were other persons who had intervened in order to avoid incident. We are mentioning this fact as it has come in the testimony of P.W.1 and P.W.2 and the same has also been made a point of argument by the learned counsel for the appellant that such witnesses have not been produced by the prosecution to establish the commission of the offence. This intervention was followed by a chase of the deceased by the assailants. The fact of chasing the deceased is clearly narrated by both P.W.1 and P.W.2. Not only this, P.W.2 was thoroughly cross-examined not once but thrice on this issue, as is evident from her cross-examination and which also finds corroborated from the cross-examination of P.W.1. In the aforesaid circumstances, the defence did attempt to dislodge the said testimony but utterly failed to do so. The trial court therefore was absolutely convinced and rightly believed the testimony of P.W.1 and P.W.2 giving the systematic description of the role of the assailants and the entire incident that has been described in detail, which version we also accept as nothing could be pointed out by the learned counsel for the appellant to disbelieve the said eye witness account. It is, therefore clear that after the appellant had exhorted the other accused Buddhesh Misra and had assaulted the deceased with a stick that Budhesh Misra fired at the deceased culminating into his death. Consequently, the participation of the appellant in the incident categorically and clearly stands established by the aforesaid ocular testimony.
22. It is here that the argument on behalf of the learned counsel for the appellant that the medical evidence does not support the same, has to be considered. It is correct that the postmortem report no where indicates the assault or external injury caused by a stick on the body of the deceased as described in the inquest report. However, the ocular testimony and the inquest report corroborate each other.
23. In this background, we may refer to the decision of the Apex Court in the case of Gangabhavani (Supra) where it has been held that whenever there is a conflicting doubt about any such injury described in the medical evidence and the ocular testimony, then in that event the ocular testimony should prevail. Paragraph 7 of the aforesaid decision of Gangabhavani (supra) reads as under:-
"7 . It is a settled legal proposition that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution case and unless it is reasonably explained may discredit the entire case of the prosecution. However, the opinion given by a medical witness need not be the last word on the subject. Such an opinion is required to be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all an opinion is what is formed in the mind of a person regarding a particular fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts, it is open to the Judge to adopt the view which is more objective or probable. Similarly, if the opinion given by one doctor is not consistent or probable, the court has no liability to go by that opinion merely because it is given by the doctor. "It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant' ". Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses' account requires a careful independent Assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility."
24. Following the ratio of the said decision and keeping in view the nature of the injury which was only one blow of the stick and have been indicated in the inquest report, we are unable to accept the arguments on behalf of the appellant that in the absence of a medical report of an external injury, the ocular testimony is unbelievable.
25. At this juncture, it will be appropriate to examine the absence of the external injury caused by a stick in the post-mortem report. The post-mortem was carried out the very next day. The Doctor who carried the autopsy, Dr. Nand Lal Pandey, was examined as P.W.5. In his testimony during cross-examination by the defence, he has stated that no external injuries were found on the body of the deceased. On a further direct question as to whether any injury by stick had been caused or not, it has been clearly stated by the Doctor that no such injury was found. This therefore, creates a doubt about the nature of the injury that is sought to be relied upon by the prosecution for implicating the appellant.
26. As already indicated above, the evidence led by the prosecution did establish the act of assault by a stick by the appellant which was at 8:00 am in the morning. The infliction of a Lathi blow was therefore established by the prosecution, but at the same time the post-mortem report did not indicate any such injury which does create a doubt about the status of the injury and the seat of the injury. This however does not absolve the appellant of his participation in the incident in the background as narrated above. The description in the inquest report is supported by ocular testimony indicating an injury below the knee. However, on this doubt having been raised on behalf of the appellant, we are persuaded to believe that the appellant who had come up with a lathi and inflicted a blow below the knee of the deceased may not have been done with an intention to cause the murder of the deceased. Thus the appellant could not be held guilty of murder. This we are construing on the peculiar of the present case and not as a matter of general prescription on the strength of the reasoning given by the Apex Court in the case of Kalachand Bhowmik and Another Vs. State of Tripura, reported in AIR 2000 SC 3583 relied upon by the learned counsel for the appellant which is to the following effect:-
"5. The question is whether the appellants shared the common intention with the real killers who at the same point of time strangulated the deceased to death. The mere fact that they were also included in the crowd which followed the deceased, is not enough to credit the appellants with the common intention sharing with the real killers. We notice the fact that the crowd which followed the deceased belonged to a political party and therefore running in the crowd need not necessarily be with the common intention to cause death. The intention can be different as well. If there was reliable evidence to show that the appellants inflicted lathi blows on the deceased perhaps we could have persuaded ourselves in believing that they too shared the intention to attack the victim. The testimony of P.W. 12 that he saw the appellants inflicted lathi blows on the deceased stands isolated and unsupported by a corresponding medical evidence. We pointed out earlier that post-mortem report does not show even a bruise, much less a contusion or abrasion on the dead body."
27. We however, find that the appellant was guilty of the charge of causing a lathi blow which stands established. Looking to the nature of the infliction of blow by a Lathi, we find it expedient keeping in view the age of the appellant, which would be approximately 77 years by now to hold that the appellant was guilty of having caused an injury for which he deserves to be punished in terms of Section 324 IPC. The offence under Section 506 (2) IPC has also been proved by the prosecution.
28. Accordingly, the appeal is partly allowed and the judgement of the trial court is modified to the extent that the appellant is guilty of having committed the offence of causing an injury for which he deserves to be punished for a term of three years under Section 324 IPC. The conviction of the appellant under Section 506 (2) IPC by the trial court is upheld. Both the sentences shall run concurrently. The appellant is on bail. His bail bonds are cancelled and the sureties discharged. The appellant shall surrender to serve out the remaining part of the sentence. The period of sentence undergone by him either during the stage of trial or during the pendency of this appeal, shall be adjusted towards the sentence. The appeal is partly allowed as above. Let a copy of the judgement be dispatched to the court below for compliance.
Order Date :- 21.3.2018 YK