Chunnu Alias Om Prakash And Others vs State Of U.P. on 30 November, 2018

[Cites 21, Cited by 0]

Allahabad High Court

Chunnu Alias Om Prakash And Others vs State Of U.P. on 30 November, 2018

[Delivered by Umesh Chandra Tripathi, J.] [1]. By way of instant criminal appeals, the appellants have challenged the legality and sustainability of the judgment and order dated 04.9.2006 passed by Additional Sessions Judge/Fast Track Court No. 1, Ballia in Sessions Trial No. 295 of 1998 (State of Uttar Pradesh v. Chunnu alias Om Prakash Upadhyaya and others), arising out of Crime No. 180 of 1997, under Sections 147, 148, 149, 302 and 323 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC'), Police Station - Gadwar, District - Ballia, whereby :-

(a) Accused-appellant - Ved Prakash Upadhyaya was convicted and sentenced as follows :

(i) Rigorous imprisonment for three years, under Section 148 of IPC;

(ii) Imprisonment for life and to pay fine of Rs. 5,000/- under Section 302 of IPC; and

(iii) Imprisonment for one year, under Section 323 read with 149 of IPC.

In case of default in payment of fine, the appellant shall have undergo additional imprisonment for five months.

(b) Accused-appellants - Chunnu alias Om Prakash Upadhyaya, Vimal Kumar Upadhyaya alias Vimal Kumar, Ganesh Upadhyaya, Harendra Upadhyaya, Rikhidev, Baliram and Dhirendra Kumar were convicted and sentenced as follows :

(i) Rigorous imprisonment for two years each, under Section 147 of IPC;

(ii) Imprisonment for life and to pay fine of Rs. 5,000/- each, under Section 302 read with 149 of IPC; and

(iii) Imprisonment for one year, under Section 323 of IPC.

In case of default in payment of fine, the appellants shall have to undergo additional imprisonment for five months each.

[2]. All the sentences were directed to run concurrently.

[3]. Succinctly, facts relevant for adjudication of these appeals, as discernible from perusal of record, appear to be that on 08.06.1997, informant Kamla Upadhyaya s/o Kamal Dev Upadhyaya r/o Village Barabandh, Police Station - Gadwar, District - Ballia, along with his family members, was constructing a wall near his cattle shed ('charan'). At about 09.00 A.M., accused Ved Prakash Upadhyaya and Chunnu alias Om Prakash Upadhyaya, sons of Sacchidanand Upadhyaya, Vimal Kumar Upadhyaya s/o Naradmuni, Ganesh Upadhyaya s/o Rishimuni, Rikhidev Upadhyaya s/o Musafir, Harendra Upadhyaya s/o Jainath and Baliram Upadhyaya s/o Ram Ekbal, all residents of Village Barabandh, Police Station - Gadwar and relative of Ved Prakash Upadhyaya - Dhirendra Prakash Shukla s/o Umashankar resident of Village Karnai, Police Station - Sukhpura, District - Ballia, armed with 'lathi danda' (bamboo stick) suddenly came on the spot and attacked the informant and his family members. Accused Ved Prakash started doing indiscriminate firing on them, due to which Hari Shankar Upadhyaya and Rambha Devi w/o Jai Shankar, both son and daughter-in-law, respectively of the informant, received gunshot injuries. Jai Shankar and Narendra, both sons of the informant and Sharda Nand Upadhyaya and Shyama Upadhyaya, brothers of the informant also sustained injuries. It came to light that there was dispute for partition of land between informant Kamla Upadhyay and one Sacchidanand Upadhyay. One day prior to that of the occurrence, that is to say, on 07.06.1997, mediation between the parties had taken place in the village panchayat through their relatives. The informant took his daughter-in-law injured Rambha Devi to Government Hospital, Gadwar where he came to know that she had succumbed to her injuries. Injured Jai Shankar, Narendra and Hari Shankar were send to District Hospital, Ballia. It was requested that report be lodged and appropriate action be taken. The written report is on record and marked as Ex.Ka.1.

[4]. Contents of the written report were taken down by Head Constable Amiuddin Khan (scribe) in chik first information report at Case Crime No. 180 of 1997 under Sections 147, 148, 149, 302 and 323 of IPC at Police Station - Gadwar, District - Ballia on 08.06.1997 at 09.00 A.M. The FIR is on record and is marked as Ex.Ka.11. On the basis of entry so made in the FIR, relevant entry was made in the general diary and a case was registered against all the accused at the aforesaid case crime number under the aforesaid sections. The carbon copy of the G.D. is on record and is marked as Ex.Ka.12.

[5]. Subsequently, the investigation of the case ensued and it was entrusted to Sub-Inspector Vijay Nath Tiwari (Investigating Officer). He first of all noted copy of the chik FIR and GD in the case diary and recorded the statement of informant Kamla Upadhyay. Thereafter, he went to PHC Gadwar and prepared inquest report ('panchayatnama') of the dead body of deceased Rambha Devi. The inquest report is on record and marked as Ex.Ka.4. He also prepared relevant papers viz. letter to RI, letter to CMO, two police form 13, photo lash and sample seal, which are on record and marked as Ex.Ka.13 to Ex.Ka.18. Thereafter, he reached on the place of occurrence, where on the pointing out of the informant, he inspected the spot and prepared its site plan. The site plan is on record and marked as Ex.Ka.19. He thereafter also took sample of simple and blood-stained earth and prepared recovery memo of the same. He also took into possession five empty cartridges of 12-bore from the spot and prepared recovery memo of the same. The recovery memo of sample of simple and blood-stained earth as well as empty cartridges is on record and is marked as Ex.Ka.2.

[6]. On the same day, injured Hari Shankar Upadhyaya also succumbed to his injuries at Distrisct Hospital, Ballia. SI Shobhnath Pandey In-charge of Police Station - Sadar Ballia, Police Chowki - Satani Sarai, District - Ballia, after selecting inquest witnesses, held inquest on the body of deceased Hari Shankar Upadhyaya and prepared inquest report, which is on record and marked as Ex.Ka.21. Thereafter, the dead body of deceased was sealed and sample seal was prepared in that regard. Several relevant papers viz. sample seal, police form 13, report RI, photo lash and report CMS, were prepared, which are on record and marked as Ex.Ka.22 to Ex.Ka.26.

[7]. Accused Om Prakash alias Chunnu, Vimal Kumar, Dhirendra Kumar and Ganesh were arrested from the residence of Sacchidanand Upadhyaya and one SBBL gun bearing number 46018 and two live cartridges of accused Ved Prakash Upadhyay were recovered from the residence. The I.O. prepared recovery memo of the same, which is on record and marked as Ex.Ka.3. He also recorded the statements of the accused on the spot.

[8]. On 08.06.1997, injured Narendra Kumar Upadhyaya and Jai Shankar Upadhyaya were medically examined by Dr. C.I. Raza at District Hospital, Ballia at 12.25 P.M. and 12.40 P.M., respectively, wherein the following injuries were noted on their persons :-

(a) Injuries on the person of injured Narendra Kumar Upadhyaya :-

1. Lacerated wound 1 cm. x 0.25 cm. x ½ cm. scalp deep on the left parietal area of scalp 4 cm. above left eyebrow. Deep red clotted blood.

2. Lacerated wound 1.5 cm. x 0.25 cm. x ½ cm. scalp deep on the right parietal area of the scalp. Deep red clotted blood.

3. Lacerated wound 1 cm. x 0.25 cm. x ½ cm. scalp deep over the left occipital region.

4. Complain of pain on the left shoulder.

5. Complain of pain on the left hand.

6. Complain of pain in the root of index finger of right hand.

7. Complain of pain on the right shoulder.

8. Complain of pain on the upper part of back.

9. Complain of pain on both thighs.

(b) Injuries on the person of injured Jai Shankar Upadhyaya :-

1. Lacerated wound 0.4 cm. x 0.2 cm. on the front (middle) of the lateral nasal septum deep red clotted blood.

2. Clotted blood present in both nostrils.

3. Bruise 8 cm. x 7.5 cm. on the lateral part of the abdomen present adjacent to the illiac crest.

4. Complain of pain on the left chest.

5. Complain of pain on the left forearm.

6. Complain of pain on the left thigh. No visible injury.

[9]. The injury reports of injured Narendra Kumar Upadhyaya and Jai Shankar Upadhyaya are on record and marked as Ex.Ka.9 and Ex.Ka.10, respectively.

[10]. On the same day, injured Sharada Nand Upadhyaya and Shyama Upadhyaya were also medically examined by Dr. R.S. Ram at Primary Health Center, Gadwar, Ballia at 05.20 and 07.45 P.M., respectively, wherein the following injuries were noted on their persons :-

(a) Injuries on the person of injured Sharada Nand Upadhyaya :-

1. Lacerated wound 4 cm. x 0.5 cm. x scalp deep present over frontal head, 6 cm. above from root of nose. Bleeds on cleaning.

2. Contusion 4 cm. x 2 cm. present over right scapular region 15 cm. above from lower angle of right scapula. Colour read.

3. Contusion 15 cm. x 2 cm. present over right scapular region 0.3 cm. below from injury no. 2. Colour red.

3. Abraded contusion 5 cm. x 2.5 cm. present over anterior aspect of deltoid region of left arm 4 cm. below from left shoulder joint. Colour red.

4. Contusion 7 cm. x 3 cm. present over anterior aspect of deltoid region of left arm 0.3 cm. below from injury no. 3. Colour red.

5. Contusion 3 cm. x 2.5 cm. present over posterior aspect of left deltoid region of arm 7 cm. below from shoulder joint. Colour red.

6. Abraded contusion 2.5 cm. x 2 cm. present over posterior aspect of left elbow. Colour red.

7. Abrasion 2.5 cm. x 1 cm. present over posterior aspect of left forearm 5 cm. below from left elbow.

8. Contusion 5 cm. x 2 cm. present over posterior aspect of left forearm 4.5 cm. above from left wrist. Colour red.

9. Contusion 9 cm. x 2 cm. present over lateral aspect of left thigh 24 cm. above from left knee. Red.

10. Contusion 7 cm. x 3 cm. present over lateral aspect of left leg 12 cm. above from left lateral malleolus. Colour red.

11. Complain of pain over left side chest. But no visible injury seen.

(b) Injuries on the person of injured Shyama Upadhyaya :-

1. Contusion 9 cm. x 5 cm. present over posterior aspect of left forearm just below left elbow. Colour reddish blue.

2. Contusion 5 cm. x 3 cm. present over lateral aspect of left side thigh 10 cm. above from left knee joint. Colour reddish blue.

3. Complain of pain over left leg. But no visible injury seen.

[11]. The injury reports of injured Sharada Nand Upadhyaya and Shyama Upadhyaya are on record and marked as Ex.Ka.8 and Ex.Ka.9, respectively.

[12]. All the injuries caused to all the injured were fresh, caused by blunt object and were simple in nature. Accordingly, these injuries might have been caused to the injured Narendra Kumar Upadhyaya, Jai Shankar Upadhyaya, Sharda Nand Upadhyaya and Shyama Upadhyaya on 08.06.1997 at about 09.00 A.M. by blunt object 'lathi danda' and iron rod.

[13]. On 09.06.1997, dead body of deceased Hari Shankar Upadhyaya and Rambha Devi was brought to District Hospital, Ballia by Constables - Raj Nath Yadav and Mangu Yadav of Police Station - Kotwali, District - Ballia and that of deceased Rambha Devi by Constables - Ram Janam Saroj and Ram Milan of Police Station - Gadwar, District - Ballia for autopsy. Post-mortem examination on the cadaver of both the deceased was conducted on the same day at 03.30 and 04.30 P.M., respectively by Dr. P.K. Singh, the then Medical Officer, District Hospital, Ballia, who noted the following ante-mortem injuries on the cadaver of the deceased :

(a) Post-mortem examination on the cadaver of deceased Hari Shankar Upadhyaya :-

Multiple firearm wound of entry in area covering uppermost part, front of both side chest including both front shoulder uppermost and front of neck and right side of face below right eye, and also left side of face each measuring about 0.25 x 0.2 cm. in diameter, depth is muscle to chest cavity deep, margins are inverted, collar of abrasion present. No blackening, tattooing or singeing seen.

On internal examination, ten small metallic bullets were recovered from chest cavity of the deceased.

(b) Post-mortem examination on the cadaver of deceased Rambha Devi :-

1. Multiple firearm wound of entry extending from lower part of right side of abdomen and front of both side chest cavity whole breast of right side, medial half left breast, diameter measuring of each wound 0.25 cm. x 0.2 cm. muscle to abdomen and chest cavity deep. Margins inverted. Abraded collar present. No blackening, tattooing and singeing seen.

2. Four firearm wound of entry seen at right anterior aspect of forearm 2.5 cm. above from right wrist joint, skin to muscle deep measuring 0.25 cm. x 2 cm. in diameter. Margins inverted. Abraded collar seen. No blackening, tattooing, singeing seen.

Ten small metallic bullets were also recovered from the body of the deceased.

[14]. Duration of death of both the deceased - Hari Shankar Upadhyaya and Rambha Devi was about 1¼ day. In the opinion of the doctor, cause of death of both the deceased was shock and haemorrhage as a result of ante-mortem injuries. The doctor also opined that both the deceased might have died on 08.06.1997 in between 9-10 A.M. [15]. The post-mortem reports of deceased Hari Shankar Upadhyay and Rambha Devi are on record and are marked as Ex.Ka.5 and Ex.Ka.6, respectively.

[16]. Sample of recovered simple and blood-stained clothes of the deceased, empty cartridges and SBBL gun were send to Forensic Science Laboratory, Lucknow for chemical examination. As per chemical examination report (Ex.Ka.31) dated 23.08.1997, human blood was found on the clothes of the deceased. The origin of blood found in the sample of the blood-stained soil could not be determined as the blood was disintegrated. As per report dated 14.10.1997 (Ex.Ka.32), one empty cartridge recovered from the spot was not fired by SBBL gun no. 46018. From this report, it could not be ascertained whether other four empty cartridges were fired by SBBL gun no. 46018 or not, due to the absence of specification on the empty cartridge for comparative study.

[17]. After completion of investigation, charge-sheet against the aforesaid accused was send to Chief Judicial Magistrate, Ballia for consideration, which is on record and marked as Ex.Ka.20.[18]. Pursuant thereto, the learned Magistrate took cognizance against the accused. After complying with the provisions contained in Section 207 of the Code of Criminal Procedure, 1973 (in short 'Code') he found case against the accused to be prima facie apposite for committing it to the Sessions Court.[19]. Thereafter, committal proceedings took place and the case was committed to the Court of Sessions, where it was registered as Sessions Trial No. 295 of 1998 (State of Uttar Pradesh v. Chunnu alias Om Prakash Upadhyay and others). From there, it was made over for trial and disposal to the court of Additional Sessions Judge/Fast Track Court No. 1, Ballia. Accused were heard on point of charge and the trial court was prima facie satisfied with the case against them, therefore, it framed charges against accused Ved Prakash Upadhyay under Sections 148, 302 and 323 read with 149 IPC, and against accused - Chunnu alias Om Prakash, Vimal Kumar, Ganesh Upadhyaya, Rikhi Deo, Harendra Upadhyaya, Baliram and Dhirendra Kumar under Sections 147, 302 read with 149 and 323 of IPC. Charges were read over and explained to the accused, who pleaded not guilty and claimed to be tried.

[20]. The prosecution, in order to prove the guilt of the accused and substantiate charge against them, examined as many as thirteen prosecution witnesses, out of whom, P.W.1 Kamla Upadhyaya (informant), P.W.2 Jai Shankar Upadhyay, P.W.3 Narendra Kumar Upadhyaya and P.W.4 Sharda Nand were examined as witnesses of fact, whereas P.W.5 Sudhakar Prasad, P.W.6 Dr. P.K. Singh, P.W.7 Pharmacist R.S. Tripathi, P.W.8 Dr. C.I. Razza, P.W.9 Constable Aminuddin Khan, P.W.10 S.I. Vijay Nath Tiwari (I.O.), P.W.11 S.I. Shobhnath Pandey, P.W.12 Constable Shambhu Prasad and P.W.13 S.I. Shaukat Ali were examined as formal witnesses.

[21]. Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and the statements of the accused were recorded under Section 313 of the Code, wherein they claimed to have been falsely implicated in the present case on account of enmity. Accused Ved Prakash, Rikhi Deo, Chunnu alias Om Prakash and Ganesh Updhayaya claimed that they were neither present on the spot nor in the village at the time of the occurrence.

[22]. In turn, the defence examined D.W.1 Vachaspati Pandey as defence witness. He stated before the court that at the time of the occurrence, accused-appellant Ganesh Upadhyaya was present at Village Veer Basti, Post - Jeera Basti, Police Station - Sukhpura, District - Ballia, which is at a distance of about 25 kilometers from the place of occurrence.

[23]. The learned trial Judge after considering the case on its merit, passed the impugned judgment and order.

[24]. Feeling aggrieved by the order of learned trial Judge, the appellants have preferred these appeals.

[25]. Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Shashi Bhushan Kunwar, learned counsel for the appellants, Sri Virendra Singh, learned counsel for the complainant and Sri Rajesh Mishra, learned Additional Government Advocate for the State of Uttar Pradesh.

[26]. Learned counsel for the appellants contended that as per evidence and allegation of the prosecution, Chunnu alias Om Prakash, Vimal Kumar, Ganesh Upadhyaya, Harendra Upadhyaya, Rikhidev, Baliram and Dhirendra Kumar were not members of unlawful assembly with co-accused Ved Prakash Upadhyaya, when Ved Prakash Upadhyaya fired on deceased Rambha Devi and Hari Shankar Upadhyaya. No independent witness has been examined from the side of the prosecution. The appellants have right to defend their body and property. There are major contradictions in the statements of the witnesses. The learned trial court without considering all these facts and circumstances of the case and without properly appreciating the evidence brought on record, has passed the impugned order of conviction, which is not sustainable and liable to set aside and as such, the appeals deserve to be allowed.

[27]. Per contra, learned A.G.A. contended that P.W.2 Jai Shankar Upadhyaya, P.W.3 Narendra Kumar Upadhyaya and P.W.4 Sharada Nand are injured witnesses. Their presence on the spot at the time of the occurrence cannot be doubted. The learned trial court has passed the impugned order on the basis of their statements. There is no illegality or perversity in the well-reasoned and well-discussed order of conviction passed by the trial court and the same needs no interference, as such, the appeals are liable to be dismissed.

[28]. It is a case of broad daylight murder in which two persons died. The FIR had been lodged on the same day, just after one hour ten minutes of the occurrence, without occasioning any inordinate delay. Injured Narendra Kumar, Jai Shankar Upadhyaya, Sharda Nand and Shyama Upadhyaya were examined on the same day at 12.25 P.M., 12.40 P.M., 5.20 P.M. and 7.45 P.M., respectively at District Hospital, Ballia and PHC, Gadwar, Ballia. Narendra Kumar Upadhyaya was so seriously injured that he was admitted to the hospital and referred to the ortho surgeon for further management. Presence of informant Kamla Upadhyay and injured Jai Shankar Upadhyaya, Narendra Kumar and Sharda Nand on the spot cannot be doubted. They stated before the court that at the time of the occurrence, accused-appellants came suddenly on the spot and assaulted Jai Shankar Upadhyaya, Narendra Kumar, Sharda Nand and Shyama Upadhyaya with lathi danda and iron rod, due to which, they sustained injuries. Appellant Ved Prakash Upadhyaya fired on Rambha Devi and Hari Shankar Upadhyaya, due to which they sustained fatal injuries. There is no material contradiction in their statements on the basis of which their testimonies may be discarded.

[29]. All the witnesses of fact stated before the court that there was some dispute regarding construction of wall. Just a day before the occurrence, mediation had taken place between the parties through their relatives and the accused had constructed the wall. It was agreed that the informant and his family members shall construct their wall at a distance of one feet from the wall of the accused. Accordingly, the informant and his family members were constructing their wall. Suddenly the accused came there and assaulted them.

[30]. From the deposition of all the witnesses of fact, it is evident that they were constructing wall in their own land, which is situated in the west of 'khapdail' - residence of Sacchidanand and south of small room of Sacchidanand and east of boundary of informant Kamla Upadhyay's house. It is not case of the accused-appellants that informant and his family members were constructing wall in the land belonging to the appellants. Although in the FIR or in the statement of P.W.1 Kamla Upadhyay, the place of causing firearm injury to deceased Smt. Rambha Devi and Hari Shankar Upadhyaya was not specified.

[31]. P.W.1 informant Kamla Upadhyaya has stated in his cross-examination as follows :

".....घटना के दिन जिस मेरी जमीन पर मेरा निर्माण हो रहा था उस जमीन के लिये घटना के पहले कभी कोई मुल्जिम दावेदार नहीं हुआ। जहाँ मैं दीवाल जुड़वा रहा था वहाँ घटना के दिन मेरे अलावा नरेन्द्र, जयशंकर, श्यामा, शारदा और हरिशंकर थे। राम जी कही दूसरी जगह गये थे पता नहीं कहाँ गये थे। उस समय हम लोग सचितानन्द उपाध्याय कि छोटी कोठरी के दखिन जो चरन स्थित है उसके पश्चिम थे। उस समय चरन से सटकर दखिन दीवाल बन रही थी। सभी मुल्जिम जहाँ हमलोग थे वहीं आ गये। मुल्जिमान आने पर पहले लाठी डंडा चलाये खुद कहा कि आये लोग दीवाल उजाड़ने लगे तथा मारने लगे। मजदूर मिस्त्री को किसी ने नहीं मारा। जब मार होने लगी तो दखिन तरफ खेत होते हुए भाग गये। मजदूरों के भाग जाने के बाद बन्दूक लाकर फायर किया गया। वेद प्रकाश अपने रहायसी मकान के दरवाजे पर से फायर कर रहे थे। मैंनें वेद प्रकाश को तीन फायर करते देखा था। मैंनें रिपोर्ट में लिखा दिया था। कि वेद प्रकाश अपने दरवाजे पर से फायर कर रहे थे। सचितानन्द की छोटी कोठरी से पूरब वह दरवाजा है जहाँ खड़े होकर वेद प्रकाश ने फायर किया। वेद प्रकाश अपने दरवाजे से सटे खड़े होकर फायर कर रहे थे। वेद प्रकाश पर जब से मेरी नजर पड़ी तब से जब तक फायरिंग होती रही तब तक वेद प्रकाश ने अपने ही दरवाजे पर ही खड़ा देखा। खुद कहा कि और तरफ भी देखता रहा। जहाँ से फायर किया तथा जहाँ वे लोग गिरे थे उस तथ्य को मैंने अपने रिपोर्ट में लिखा दिया। अंधाधुंध फायर चरन के पास नहीं हुई थी। चरन के पास किसी प्रकार का कोई फायर नहीं हुआ। ....."

[32]. P.W.2 Jai Shankar Upadhyaya stated as follows :

"....घटना स्थल से कोई फायर नहीं किया गया था बल्कि वेद प्रकाश ने अपने दरवाजे से फायर किये थे।...."

[33]. P.W.3 Narendra Kumar has also stated that :

"....चरन के पास जहां निर्माण हो रहा था वहाँ कोई फायरिंग नहीं हुई।...."

[34]. P.W.4 Sharda Nand has stated in his examination-in-chief as under :

"....ये लोग एकाएक आये और हमलोगों के बीच जयशंकर से कुछ कहे और उसके बाद मारना शुरू किये। तब हरिशंकर अपने घर की ओर भागे उनका पीछा वेद प्रकाश किये। जब हरिशंकर अपने घर के कोने पर पहुंचे तो पीछे मुड़कर देखा तब तक वेद प्रकाश ने अपने घर के दरवाजे से हरिशंकर पर फायर कर दिया हरिशंकर चोट खाकर गिर पड़े। घर के अन्दर से रम्भा देवी तुरन्त ही उन्हें उठाने के लिए आयी तब तक वेद प्रकाश ने रम्भा देवी के ऊपर फायर कर दिया। तथा वही मौका पर ही वह मर गयी।....."

[35]. In his cross-examination, P.W.4 further stated that :

".....मुल्जिम वेद प्रकाश ने चरनी के पास फायर नहीं किया बल्कि अपने दरवाजे के पास से फायर किया। चरनी के पास से फायर करने की बात गलत है....."

[36]. From the deposition of all these witnesses, it is evident that all the accused armed with lathi danda and iron rod came on the spot, where informant and his family members were constructing wall and attacked on them with lathi danda and iron rod, due to which Jai Shankar Upadhyaya, Narendra Kumar, Sharda Nand and Shyama Upadhyaya sustained simple injuries. During assault, the labourer and mansion, who were working there, fled away from the spot. After their fleeing away, accused Ved Prakash took his licensee gun and fired from his door at Hari Shankar Upadhyaya, who was at road ('khadanja'). While fleeing towards his residence, Hari Shankar Upadhyaya fell on the ground after sustaining firearm injury. On his shrieking, Rambha Devi came out from her house and proceeded towards Hari Shankar. As soon as she reached near Hari Shankar Upadhyaya, Ved Prakash Upadhyaya shot at her, due to which she also fell on the ground and later on, both of them died due to the fatal injuries sustained by them. Accordingly, when appellant Ved Prakash had fired on Hari Shankar Upadhyaya and Rambha Devi, other co-accused were neither present there with accused Ved Prakash nor they were members of unlawful assembly with Ved Prakash. After causing assault by accused Chunnu alias Om Prakash, Vimal Kumar, Ganesh Upadhyaya, Harendra Upadhyaya, Rikhidev, Baliram and Dhirendra, by blunt object to injured, accused-appellant Ved Prakash went to his residence, took his licensee gun and fired on deceased. Accordingly, accused-appellants Chunnu alias Om Prakash, Vimal Kumar, Ganesh Upadhyaya, Harendra Upadhyaya, Rikhidev, Baliram and Dhirendra had no knowledge that accused Ved Prakash would commit murder of the deceased. Firing by accused-appellant Ved Prakash on Hari Shankar Upadhyaya and Rambha Devi was his individual act and he is only responsible for it. As such, accused-appellants Chunnu alias Om Prakash, Vimal Kumar, Ganesh Upadhyaya, Harendra Upadhyaya, Rikhidev, Baliram and Dhirendra cannot be convicted for the offence punishable under Section 302 read with 149 of IPC.

[37]. As far as contention of learned counsel for the appellants about non-examination of independent witnesses is concerned, Hon'ble Apex Court in Gangadhar Behera and others v. State of Orissa reported in (2002) 8 SCC 381 held as follows :

.....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.

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 (supra) 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."

Again in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) this Court observed: (p, 209-210 para 14):

"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."

(emphasis supplied) [38]. Our social system is changing at a rapid pace. In the present social scenario, people refrain from going to police stations and courts due to fear of insult and harassment. Generally, people avoid to become a witness of an incident for the simple reason that deposing against the a culprit involved in a crime would endanger their life. In the present social setup, it is least possible that a third person deposes against the culprit. Hon'ble Apex Court in Sadhu Saran Singh v. State of Uttar Pradesh and Others reported in (2016) 4 SCC 357 held as follows :

29. .....In these days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they find it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.

[39]. Accordingly, statement of injured witnesses cannot be discarded only because they are relative witnesses. Statements of witnesses of fact are corroborated by medical evidence.

[40]. The appellants have not claimed the right of defence, in their statement under Section 313 of the Code. No suggestion has been put before witnesses that the appellants have acted in exercise of right of private defence. From the facts and circumstances of this case, it also cannot be inferred that accused-appellant have acted in exercise of right of private defence.

[41]. In forensic science laboratory report (Ex.Ka.32), it is reported that one empty cartridge recovered from the spot was not fired by SBBL gun no. 46018.

[42]. I.O. Sub-Inspector Vijay Nath Tiwari stated before the court that witness Narendra Kumar and Sharda Nand had made statement under Section 161 of the Code that accused Harendra had fired with country-made pistol ('katta'). Witnesses of fact Narendra Kumar and Sharda Nand have specifically denied that they had made any such statement to the I.O. Even in the FIR, it is not mentioned that accused Harendra had 'katta' or made any fire with 'katta'. It is consistent version of all the witnesses of fact that only appellant Ved Prakash Upadhyaya fired on Rambha Devi and Hari Shankar. There was no reason for witnesses of fact to narrate before the IO that accused Harendra had also fired by 'katta'. From these facts, it appears that the IO had mentioned this fact in the statement of witnesses of fact only to create a doubt on the prosecution version. Accordingly, he may procure empty cartridge fired by 'katta'. From the perusal of forensic science laboratory (Ex.Ka.19) it cannot be said that other four recovered empty cartridges were not fired by the licensee gun no. 46018 as there was no specification on those cartridges for comparative study. Forensic science laboratory report is not corroborative to the prosecution version, but on the basis of this report, the prosecution version cannot be doubted.

[43]. P.W.1 Narendra Kumar and P.W.4 Sharda Nand stated that they had not made any statement to the IO that appellant Harendra had fired on the deceased by 'katta'. However, IO SI Vijay Nath Tiwari stated that such a statement has been made by both the witnesses. As discussed above, this is not a contradiction. As observed above that there was no reason for Narendra Kumar and Sharda Nand to make such statement.

[44]. From the perusal of record, it appears that accused-appellants Chunnu alias Om Prakash, Vimal Kumar, Ganesh Upadhyaya, Harendra Upadhyaya, Rikhidev, Baliram and Dhirendra were in custody from 09.06.1997 to 07.08.1997 and from 05.09.2006 to 25.09.2006 in this case. Accordingly, they have undergone more than 2 and half months of detention during investigation, trial and appeal. As per prosecution version, there was land dispute between the parties. Considering the facts and circumstances of the case, ends of justice would be met if the sentence of accused-appellants Chunnu alias Om Prakash, Vimal Kumar, Ganesh Upadhyay, Harendra Upadhyay, Rikhidev, Baliram and Dhirendra under Section 147 and Section 323 read with 149 of IPC is reduced to the period already undergone.

[45]. In the result,

(i) Criminal Appeal No. 5376 of 2006 (Chunnu alias Om Prakash and others) partly succeeds and the same stands allowed in part. Conviction and sentence of appellants - Chunnu alias Om Prakash Upadhyaya, Rikhidev and Dhirendra Kumar under Section 302 read with 149 IPC are hereby set aside. Their conviction under Sections 147 and 323 of IPC is upheld, but their sentences are reduced to the period already undergone. Insofar as appellant - Ved Prakash Upadhyaya is concerned, his conviction and sentence under Section 148 and 302 IPC are hereby upheld. His conviction under Section 323 read with 149 of IPC is upheld, but his sentence is reduced to two and half months' imprisonment.

(ii) Criminal Appeal Nos. 5458 of 2006 (Ganesh Upadhyaya v. State of U.P.), 5420 of 2006 (Harendra Upadhyaya v. State of U.P.), 5388 of 2006 (Vimal Kumar Upadhyaya alias Vimal Kumar v. State of U.P.) and 5469 of 2006 (Baliram v. State of U.P.) partly succeed and the same stand partly allowed. Conviction and sentence of appellants - Ganesh Upadhyaya, Harendra Upadhyaya, Vimal Kumar Upadhyaya alias Vimal Kumar and Baliram under Section 302 read with 149 IPC are hereby set aside. Their conviction under Sections 147 and 323 of IPC is upheld, but their sentences are reduced to the period already undergone.

[46]. Appellants - Chunnu alias Om Prakash, Rikhidev, Dhirendra Kumar, Ganesh Upadhyaya, Harendra Upadhyaya, Vimal Kumar Upadhyaya alias Vimal Kumar and Baliram are on bail. Their bail bonds stand cancelled.

[47]. Appellant - Ved Prakash Upadhyaya is in jail. He shall remain in custody to serve out the remaining part of his sentence.

[48]. Certify a copy of this order to the trial court for the purposes of intimation and necessary compliance. The lower court's record is directed to be remitted back to the court concerned.

Order Date :- 30.11.2018 I. Batabyal [Umesh Chandra Tripathi,J.] [Vipin Sinha,J.] *************

Unlock Advanced Research with PRISMAI

Allahabad High Court