Allahabad High Court
Raghuraj Singh vs State Of U.P. on 4 March, 2014
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 25 Case :- CRIMINAL APPEAL No. - 399 of 1994 Appellant :- Raghuraj Singh Respondent :- State Of U.P. Counsel for Appellant :- H.B. Singh,Shyam Krishna Srivastava,Vikrant Raghuvanshi Counsel for Respondent :- Govt. Advocate Hon'ble Aditya Nath Mittal,J.
1. Heard learned counsel for the appellant, learned AGA for the State and perused the record.
2. This criminal appeal has been filed against the judgment and order dated 25.08.1994, passed by Additional District and Session Judge-II, Raebareli, by which the appellants have been convicted for the offences punishable under Sections 147 and 325/149 IPC.
3. As per prosecution version, the complainant Sunil Kumar Srivastava lodged an First Information Report alleging that there was enmity with the accused-persons due to which on 01.02.1989, at about 8.00 AM, the accused-persons had caused injuries to the uncle of the complainant and after causing injury run away towards the village. The uncle of the complainant was admitted to District Hospital, Raebareli. It has also been mentioned in the First Information Report that even on the alarm, no person had came to rescue the injured. Upon this information, the case at Crime No.58/1989 was registered for the offences punishable under Sections 147, 149, 323, 504 and 506 IPC against nine persons. During the trial, two persons had died.
4. The prosecution had examined Sunil Kumar Srivastava (Complainant) as PW-1, Anand Kumar Srivastava (injured) as PW-2, Dr. A.K. Shukla as PW-3, Dr. Ragani Singh as PW-4, S.I. Rahimudeen as PW-5 and Head Constable Ram Gopal Verma as PW-6. After recording the evidence of the prosecution, the statements of the appellants were recorded under Section 313 CrPC in which they have denied the evidence. Some documentary evidence regarding the previous litigation was filed by the appellants. After appreciating the evidence on record, learned Additional Session Judge, Raebareli came to the conclusion that the appellants are guilty for the offences punishable under Sections 147 and 325/149 IPC and accordingly convicted them with an imprisonment of one year for the offence punishable under Section 147 IPC along with fine of Rs.500/- and they were also convicted for the offence punishable under Section 325/149 IPC with an imprisonment of three years rigorous imprisonment alongwith fine of Rs.1,000/-.
5. Learned counsel for the appellants has submitted that all the appellants belongs to the same family and the injured had filed a case under Section 379 IPC against three persons, who were acquitted on merits by judgment and order dated 03.05.1989. It has also been submitted that the place of incident is not definite and the alleged allegation of pressurizing for compromise stands nowhere because the complainant was already acquitted by the aforesaid judgment. It has also been submitted that the appellant Raghuraj Singh is 82 years old and the appellants no. 2, 3, 4 and 7 are in jail since 24.12.2013 and 04.01.2014 respectively. It has also been submitted that the appellants have remained in jail for about four months, therefore, a lenient view may be taken.
6. Learned AGA has defended the impugned order.
7. Sunil Kumar Srivastava (PW-1) has supported the First Information Report lodged by him and has stated that accused persons had caused injuries by sticks to Anand Kumar Srivastava. He has also stated that he and his aunty had rescued Anand Kumar Srivastava and due to said "Marpeet", Anand Kumar Srivastava had received injuries and he was admitted to District Hospital, Raebareli.
8. Anand Kumar Srivastava (PW-2) has also stated in his statement that the appellants were compelling for compromise due to which they had enmity with him. He has also stated that he was going for duty to I.T.I., and he was accompanied by wife Smt. Reeta Srivastava and cousin Sunil Kumar Srivastava. He has further stated that when he reached near the field of Heera Lal Pasi, then the appellants came along with sticks and started beating by the sticks due to which he received fracture in his left leg and hand. He has also stated that he was brought to District Hospital by tractor where he was medically examined and his X-ray was also conducted.
9. Dr. A.K. Shukla (PW-3) has proved the medical examination of Anand Kumar Srivastava and has stated that following injuries were found on the persons of the injured :-
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10. This witness has proved the injury report as Exhibit-Ka-2.
11. Dr. Ragani Singh (PW-4) has proved the X-ray report of the injured and has stated that there was fracture in the right arm and right wrist. Apart from, fracture on the chest and left leg and forearm. This witness has proved the X-ray report as Exhibit-Ka-3 and X-ray plats as material Exhibits 1 to 14.
12. S.I. Rahimudeen (PW-5) has proved the investigation of the case and the cite plan as Exhibit-Ka-4, charge-sheet as Exhibit-Ka-5, Chick First Information Report as Exhibit-Ka-6. Head Constable Ram Gopal Verma (PW-6) has proved the copy of GD as Exhibit-Ka-7 and Exhibit-Ka-8.
13. So far as the place of incident is concerned, as per First Information Report, the incident took place near the field of Heera Lal Pasi. Both the witnesses of fact, namely, Sunil Kumar Srivastava and Anand Kumar Srivastava have stated in their statements that the incident took place near the field of Heera Lal Pasi. Nothing adverse has come in the statement so as disbelieve the place of incident. Therefore, I do not find any substance in the submission of the learned counsel for the appellants that the place of incident is not definite.
14. So far as the case under Section 379 IPC is concerned, admittedly, the accused-persons have been acquitted by the judgment and order dated 03.05.1989 and the documentary evidence filed by the appellants further goes to show that there was some litigation between parties. The enmity is a double edged weapon and it cannot be said that due to previous litigation, the appellants have been falsely implicated. Moreover, the incident took place on 01.02.1989, while the judgment of acquittal in the case under Section 379 IPC is of 19.05.1989. It is also relevant to mention that the said case under Section 379 IPC was against Vidhiraj Singh, Raghuraj Singh and Shatrohan Singh only.
15. Both these witnesses of fact have corroborated the version of First Information Report version and the involvement of the appellants in the said incident. The submission of the learned counsel for the appellants that the report was lodged against nine persons, but there were only six injuries, therefore, it was not proved that which of the injury was caused by which of the appellant. The appellants have also been charged for the offence punishable under Section 147 IPC. In the evidence it has come that the appellants were waiting on the place of occurrence because the injured used to go to duty by Bus. Both the witnesses have proved the presence of all the accused persons on the spot, therefore, this fact cannot be denied that the said attack was made in furtherance of common object. No doubt, the injured had got six injuries but as per the statement of Dr. Ragani Singh (PW-4), there were following fractures :-
"X-Ray Rt. Hand - AP-Lat. With Rt.Forearm-AP-Lat.: - Fracture rt.styoid process with dislocation at rt.wrist joint.
Fracture comminuted lower end of shaft of rt. Radius.
X-Ray Lt.Forearm-AP-Lat.: Fracture shaft lt.ulna ith fracture lt.styoid process with fracture shaft ld. Radius.
X-Ray Lt.Shoulder and arm-AP-Lat.: No fracture line seen radiologically.
X-Ray Rt.Arm-AP-Lat.: Comminuted fracture shaft rt.humerus.
X-Ray Pelvis (AP): No fracture line seen radiologically.
X-Ray Chest (PA): Fracture 1st costochondral junction noted.
X-Ray Lt.Leg-AP-Lat.: Fracture medial malleolus noted."
16. In these circumstances, it cannot be said that because injuries were only six, therefore, the involvement of three other persons is doubtful.
17. So far as witnesses of fact are concerned, the statement of Sunil Kumar Srivastava and Anand Kumar Srivastava is corroborated by each other and they have supported the First Information Report version. In the First Information Report itself, it has been mentioned that no other persons had came for rescue. The incident had taken place near the field of Heera Lal Pasi at 8.00 AM. It is not unnatural that in the morning no other person was present. Both the witnesses of fact have been cross-examined at length but no material contradiction has come in their statements. Learned counsel for the appellants, despite of his best efforts, has also failed to point out any material contradiction in the statements of both the witnesses. The statement of injured witness Anand Kumar Srivastava is supported by the statement of Sunil Kumar Srivastava and merely because Sunil Kumar Srivastava is cousin, his statement cannot be disbelieved.
18. The question relating to partisan witnesses has been examined by Hon'ble the Apex Court in the following case law:-
In the matter of Rizan and another Vs. State of Chhatisgarh, through the Chief Secretary, Govt. of Chhatisgarh, Raipur, AIR 2003 SC 976, and Mano Vs. State of Tamil Nadu, (2207) 13 SCC 795, Hon'ble Supreme Court has held that:-
"We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon has no substance. This theory was repelled by this Court as early as in Dalip Singh's case in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed:
"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. State of Rajasthan' (AIR 1952 SC 54 at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."
In Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) Hon'ble supreme court observed:
"BUT it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses........ The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence: but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
In the case of Tukaram and others Vs. State of Karnataka, 2008 AIR (SCW) 2319 and Gali Venkataiah Vs. State of Andhra Pradesh, 2009 3 SCC (Cri) 200, Hon'ble Supreme Court has held that:-
"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."
In Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been laid down as under:-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation 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."
The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614) was also relied upon.
In the matter of Kapildeo Mandal and others Vs. State of Bihar, AIR 2008 SC 533, Hon'ble Supreme Court has again reiterated the same principles and has held that:-
"The credibility of a witness cannot be judged merely on the basis of his close relation with the deceased and as such cannot be a ground to discard his testimony, if it otherwise inspires confidence and, particularly so, when it is corroborated by the evidence of independent and injured witnesses.
In Nallabothu Venkaiah v. State of A.P., (2002) 7 SCC 117 (in para 13), Hon'ble Supreme Court held :
"The test, in such circumstances, as correctly adopted by the trial court, is that if the witnesses are interested, the same must be scrutinized with due care and caution in the light of the medical evidence and other surrounding circumstances. Animosity is double- edged sword and it can cut both sides. It can be a ground for false implication. It can also be a ground for assault."
In Ramanand Yadav v. Prabhunath Jha and Ors., (2003) 12 SCC 606 (in para 15), Hon'ble Supreme Court held :-
"But at the same time if the relatives or interested witnesses are examined, the court has a duty to analyse the evidence with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the evidence is biased. Whenever a plea is taken that the witness is partisan or had any hostility towards the accused, foundation for the same has to be laid.".
In State of Himachal Pradesh v. Mast Ram, AIR 2004 SC 5056 (in para 11), Hon'ble Supreme Court said :-
"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 the requirement of Law."
In the light of the above judgments of Hon'ble the Supreme Court, it is clear that the evidence cannot be discarded only on the ground that the witness is a related witness. Certainly the testimony of such witnesses must be examined carefully and should not be rejected mechanically.
19. In view of the above, the submission of learned counsel for the appellants, no independent witness has been examined has no substance.
20. The injured Anand Kumar Srivastava has received six injuries and Dr. A.K. Shukla (PW-3) has stated in his statement that these injuries are possible by "Lathi" and "Danda" on 01.02.1989 at 8.00 AM. No such suggestion has been given that these injuries are self-inflicted. This suggestion has been given that these injuries may come due to accident, but no such accident on the date of the incident has been proved by the appellants.
21. Learned Additional Session Judge has considered all the aspects of the matter in detail and has appreciated the evidence on record. The findings are based on the evidence on record supported by cogent reasons. There is no delay in lodging the First Information Report as well as in taking the medical examination. There is no reason to disbelieve the statement of both the witnesses of fact, who have proved beyond reasonable doubt that the said injuries were caused by the appellants.
22. Dr. A.K. Shukla and Dr. Ragani Singh have also been cross-examined at length and nothing has come in their cross-examination so as disbelieve their statements. S.I. Rahimudeen (PW-5) has proved the investigation of the case as well as formal papers of the prosecution, who has also been cross-examined at length. There is no omission or improvement with the statements under Section 161 CrPC and nothing adverse has come in his statement so as to believe that the charge-sheet has been filed under some pressure or that the investigation was not done fairly. Although, the appellants were charged for the offences punishable under Sections 308, 504 and 506 IPC, but the learned court below after appreciating the evidence on record has found guilty for the offences punishable under Sections 147 and 325/149 IPC. I fully agree with the findings of learned Additional Session Judge and from the evidence on record, it is proved that on 01.02.1989, at about 8.00 AM, the appellants had beaten Anand Kumar Srivastava by "Lathi" and "Danda", due to which, he received six injuries and various fractures. The prosecution has succeeded in proving the guilt of the appellants beyond reasonable doubts. The conviction of the appellants for the offences punishable under Sections 147 and 325/149 IPC is upheld.
23. So far as the sentence is concerned, learned court below has awarded one year rigorous imprisonment for the offence punishable under Section 147 IPC along with a fine of Rs.500/- each and has also awarded a sentence of three years for the offence punishable under Section 325/149 IPC along with fine of Rs.1,000/-.
24. Appellant No. 5 Rambaran and appellant No. 6 Shyam Lal have died during the pendency of the appeal and the appeal filed by them has been abated. The appellants Bidhraj Singh, Satrughan Singh, Ramu Singh, Ramdeen are in jail in compliance of the order passed by this Court. Appellant Raghuraj had also appeared personally before this Court, who is aged about 82 years. It has also been submitted that the appellants have been in jail for about four months.
25. Considering the submissions of the learned counsel for the appellants and considering their respective ages and also considering that the incident took place in the year 1989 for which about twenty four years have already passed, it is directed that rest of the sentence of the appellants is converted into a fine of Rs.10,000/- each, which shall be deposited by them within one month from today. Out of the said amount, a sum of Rs.25,000/- shall be paid to injured Anand Kumar Srivastava and rest of the amount shall go to the State. In default of payment of fine, as directed above, the appellants shall serve out the sentence as ordered by the trial court.
26. In view of above, the appeal is dismissed but the sentence is modified as aforesaid.
Office is directed to send a certified copy of this order to the concerned trial court along with lower court record.
Let a certified copy of this order be also sent to the concerned Superintendent of Jail.
Order Date :- 4.3.2014 Rakesh/-