Allahabad High Court
Mahendra Singh vs State Of U.P. on 26 September, 2018
Bench: Amreshwar Pratap Sahi, Daya Shankar Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 29.08.2018 Delivered on 26.09.2018 In Chamber Case :- CRIMINAL APPEAL No. - 858 of 2009 Appellant :- Mahendra Singh Respondent :- State Of U.P. Counsel for Appellant :- Smt. Usha Srivastava,S.C. Tiwari,S.V. Singh,Vinod Kumar Srivastava Counsel for Respondent :- Govt. Advocate Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Daya Shankar Tripathi,J.
(Delivered by Hon'ble D.S. Tripathi, J.) Heard Sri Sukh Veer Singh, learned counsel for the appellant-accused, Sri Ajit Ray, learned AGA for the State and perused the material placed on record.
Appellant has assailed the judgment and order dated 07.02.2009 passed by Special Judge, Essential Commodities Act, Farrukhabad, in S.T. No. 469 of 1998 (State of U.P. Vs. Mahendra Singh) arising out of Case Crime No. 43 of 1998, under Section 302 IPC, P.S. Kampil, District Farrukhabad, by which the appellant has been convicted under Section 302 IPC and sentenced to life imprisonment and fine of Rs. 5,000/- (in default of payment of fine, two years' additional imprisonment).
Facts giving rise to this criminal appeal, in brief, are that complainant Shivpal Singh son of Balister Singh, resident of village Bhagipur Umarha, P.S. Kampil, district Farrukhabad submitted a written Tahrir dated 15.04.1998 (Ext. Ka-1) before the police station concerned, narrating therein that there is old enmity of litigation between his father Sri Balister Singh and Mahendra Singh son of Dharmpal Singh, resident of his own village. Accused Mahendra Singh had left the village due to this enmity, for last several years and he was planning for murder of his father. Complainant and his father were coming from Katia Station to his village today in the evening at about 6:00 P.M. by road and when they reached near the tubewell of Dulhe Pradhan, resident of Katia, accused Mahendra Singh having double barrel gun in his hand and his two companions having countrymade pistols in their hand came out from side of road. Accused Mahendra Singh exhorted and all the three accused persons fired several rounds on his father, due to which his father died on the spot. Complainant ran away towards his village, raising alarm. Hearing alarm of complainant, people working in nearby fields rushed, but all the three accused persons ran away from there. Occurrence took place at about 6:30 P.M. People working near the fields and passengers passing through the road had seen the occurrence. Dead body of his father is lying on the place of occurrence. Necessary action be taken.
On the basis of aforesaid written Tahrir of the complainant, Case Crime No. 43 of 1998, under section 302 IPC was registered in the police station Kampil, District Farrukhabad on 15.04.1998 at 20:30 hrs. and entry of the case was made in the general diary of the police station. Investigation was taken up by Vijay Singh, Inspector, C.B.C.I.D. (the then Station House Officer, P.S. Kampil). Place of occurrence was inspected by the I.O. Inquest report alongwith other papers were prepared and dead body of the deceased was sealed and it was transmitted for conducting postmortem. Map of spot (Ext. Ka-7) was prepared by the I.O. Autopsy on dead body of the deceased was conducted. Postmortem report was prepared by the Medical Officer. Statement of witnesses were recorded by the I.O. and after completing investigation, charge sheet (Ext. Ka-10) under section 302 IPC and Section 27 Arms Act was submitted by him.
Charge under Section 302/34 IPC was framed by the trial court against the accused. Accused denied the charge levelled against him and claimed for trial.
As many as four prosecution witnesses were examined before the trial court.
PW-1 Shivpal Singh (complainant/son of deceased and eye witness) has been examined, who has proved motive behind the occurrence. He has deposed that his father Balister Singh was falsely implicated in murder case of brother of accused Mahendra Singh, which resulted in acquittal, due to which accused Mahendra Singh was having enmity with his father and accused Mahendra Singh had left the village and he was planning to commit murder of his father.
This witness has further deposed that on 15.04.1998 at about 6.30 p.m., he was coming from railway station Katiya to his village, along with his father and when they reached near the tubewell of Dulhe Pradhan, accused Mahendra Singh armed with bubble barrel gun and his two companions armed with countrymade pistol came from the side of the road and on exhortation being made by accused Mahendra Singh, all of them fired on his father, due to which his father died on spot. Hearing alarm, several persons came there and all the accused persons ran away from there. He has further deposed that written report (Ext. Ka-1) is in his own handwriting and signature.
PW-2 Ramniwas (independent eye witness) has been examined, who has corroborated the version of PW-1.
PW-3 Dr. Saket Mohan Singh has been examined, who has proved that he was posted on 16.04.1998 as Medical Officer in the District Hospital. Dead body of Balister Singh son of Lakhan Singh Yadav was brought before him by Constable Bheem Chandra and Home Guard 2033 Nirmal Singh on that day and autopsy on dead body of deceased was conducted by him at 2:10 P.M. Following ante-mortem injuries were found on the body of the deceased:-
1. Firearm wound of entry 3.5 cm X 3 cm X skull deep on the left portion. Its edges were inverted and lacerated with presence of blackening and gun powder particles which measured 10 cm/8 cm around the injury. On dissection of this wound, left portion of the temporal, parietal and frontal bone were found to be fractured and clotted blood was present.
2. Firearm wound of entry 1.5 cm X 1 cm through and through the chest 7 cm below the right nipple, edges of which were inverted, lacerated and ecchymosed with presence of blackening and gun powder particles which measured 10 cm X 6 cm and this wound corresponding with firearm wound of exit measuring 6 cm X 4 cm on left side of the chest about 6 cm below the left nipple edges of which were outwards and lacerated.
3. Firearm wound of entry 1.5 cm x 1cm x chest cavity deep on the left side below left axilla. Blackening, tattooing and gun powder particles were present within the area of 9 cm.
4. Firearm gutter shaped wound 4.5 cm X 0.5 cm subcutaneous deep (Illegible) on back.
He has further proved that one Tikli and a number of 10 pellets and a bullet were recovered from internal examination of deceased. He has opined that death of the deceased is possible doe to shock and hemorrhage caused by ante-mortem injuries. Ante-mortem injuries are possible to have been caused by fire arm like gun and countrymade pistol on 15.04.1998 at 6:30 P.M. He has further proved that postmortem report was prepared by him in his own handwriting and signature and its carbon copy (Ext. Ka-2) was prepared in the same process.
PW-4 Vijay Singh, Inspector, C.B.C.I.D. has been examined, who has proved that he was posted as Station Officer, P.S. Kampil on 15.04.1998 and investigation of this case was taken up by him. He has further deposed that inquest report of the deceased (Ext. Ka-3) alongwith other papers, Photo Nash (Ext. Ka-4), letter C.M.O. (Ext. Ka-5) and Challan Nash (Ext. Ka-6) were prepared by Sub Inspector Manohar Singh on his direction and in his presence. Place of occurrence was inspected by him and its map (Ext. Ka-7) was prepared. Blood stained earth and plain earth was taken up from the place of occurrence and it was sealed and its sample seal was prepared and a number of two blood stained empty cartridges were recovered from the place of occurrence and sealed and its recovery memos (Exts. Ka-8 and Ka-9) were prepared by him. He has further deposed that statement of witnesses were recorded during the course of investigation and after completing the investigation, charge-sheet (Ext. Ka-10) was prepared by him. He has further proved that blood stained earth, plain earth and cloths of the deceased (Material Exhibits 3 to 6) were received after postmortem. He has further deposed that Constable 1045 Pradeep Kumar is no more and Chik FIR (Ext. Ka-11) has been prepared in his handwriting and signature. Carbon copy of the general diary (Ext. Ka-12) has been prepared by him with original general diary.
Paper No. 65 A/2 is report of Forensic Science Laboratory, according to which blood stained earth, plain earth, blood stained clothes of the deceased, pellets, one bullet and two empty cartridges (Material Exhibits 1 to 9) were examined and human blood was found on material exhibits 1, 4 and 7.
Statement of accused under Section 313 Cr.P.C. was recorded by the trial court. Accused stated that prosecution evidence is false and he has been falsely implicated in this case, due to previous enmity.
No witness has been examined on behalf of appellant-accused in his defence.
After giving opportunity of hearing to both the parties, judgment and order dated 07.02.2009 was passed by learned trial court, by which appellant-accused Mahendra Singh was convicted under Section 302 IPC, and sentenced as stated above.
It is this impugned judgment and order of conviction and sentence passed against the appellant-accused, which is under challenge to this criminal appeal.
Learned counsel for the appellant-accused submitted that contradictions have appeared in the ocular evidence of PW-1 (complainant), due to which evidence of this witness is not trustworthy. He further submitted that PW-2 (eye witness) is a procured witness and his testimony is not reliable. His further submission is that there are laches and defects in the investigation conducted by the I.O., which raises suspicion on the prosecution story. His further submission is that the incident has been caused by unknown persons in the dark hours of night and the appellant-accused has been falsely implicated in this case, due to previous enmity. He has lastly submitted that prosecution case is not proved beyond doubt, hence the appeal deserves to be allowed and impugned judgment of conviction and sentence is liable to be set aside.
Learned AGA submitted that PW-1 (complainant) has fully supported the FIR version and his evidence is corroborated by medical evidence, hence his evidence cannot be thrown out merely on the basis of minor contradictions in his testimony. PW-2 has also fully supported the version of PW-1, PW-1 has proved presence of PW-2 on the place of occurrence and no material contradictions have appeared in the ocular testimony of PW-2. Hence, there is no reason to disbelieve the testimony of PW-2. His further submission is that certain defects have surfaced in the investigation conducted by the I.O., but evidence of PW-1 and PW-2 cannot be discarded, merely on the basis of defective investigation conducted by the I.O. His further submission is that prosecution version is corroborated by medical evidence. He lastly submitted that prosecution case is fully proved on the basis of evidence available on record, appeal lacks merit and it is liable to be dismissed.
The first and foremost argument advanced by learned counsel for the appellant-accused is that contradictions have appeared in the ocular evidence of PW-1, due to which testimony of this witness is not reliable. In support of his argument, he submitted that PW-1 has stated in his cross-examination that he had gone to lodge FIR, after inquest report being prepared, while FIR has been lodged on 15.04.1998 and inquest report has been prepared on 16.04.1998. But it is borne out from the record that PW-1 is not a witness of inquest report. This witness has been put to cross-examination, after a gap of about two years from the date of occurrence and he belongs to a rural background, having occupation of agriculture. In these circumstances, minor contractions are bound to happen. It is settled principle of law that evidence of prosecution witnesses cannot be discarded on the basis of minor contradictions appearing in their evidence and Court has to cull out the nuggets of truth from falsehood and grain from the chaff.
In the case of Balaka Singh Vs. State of Punjab reported in (1975) 4 SCC 511, it has been held by the Apex Court that the Court must make an attempt to separate grain from the chaff, the truth from the falsehood. Relevant portion of the report is reproduced below:
"8. .... the court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation, the court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply."
In the case of State of U.P. Vs. Anil Singh reported in 1989 SCC (Cri) 48, it has been held by the Apex Court that testimony of prosecution witnesses can not be discarded, unless there is reason to believe that the inconsistencies or falsehood are so glaring as to destroy confidence in the prosecution witnesses. Relevant portion of the report is reproduced below:
"Invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if there is a ring of truth in the main. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as to utterly destroy confidence in the witnesses."
The similar view has been reiterated by the Apex Court in Appa Bhai Vs. State of Gujarat reported in 1988 SCC (Cri) 559, wherein the Court has cautioned the courts below not to give undue importance to minor discrepancies which do not shake the basic version of the prosecution case. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness for the reason that witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. However, the courts should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.
In the case of Sukhdev Yadav Vs. State of Bihar reported in (2001) 8 SCC 86, the Apex Court has held as under:
"It is indeed necessary, however, to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment - sometimes there would be a deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better form the witness box detail out an exaggerated account."
In the case of Sucha Singh Vs. State of Punjab reported in (2003) 7 SCC 643, it has been held by the Apex Court that even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno, falsus in omnibus has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main.
Therefore, it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well.
In the case of Yogesh Singh Vs. Mahabeer Singh and others reported in 2017 CRLJ 291 SC, it has been held by Hon'ble the Apex Court that only the serious contradictions and omissions which materially affect the case of of the prosecution but not every contradiction or omission. Similar view has been reported by Hon'ble the Apex Court in the case of Rammi @ Rameshwar Vs. State of M.P. (1999) 8 SCC 649.
It is borne out from the record that PW-1 has proved the motive behind the occurrence, date, time and place of occurrence and mode and manner in which the incident was caused. His testimony is corroborated by medical evidence of PW-3 and place of occurrence is supported by evidence of I.O. This witness has been put to lengthy cross-examination, but no material contradiction has appeared in his cross-examination.
Considering the entire facts and circumstances of this case and principles laid down by Hon'ble Apex Court in the aforesaid cases, testimony of this witness cannot be discarded merely on the ground of minor contradictions appearing in his cross-examination. Accordingly, the aforesaid argument advanced by learned counsel for the appellant-accused has no leg to stand.
His further submission is that PW-1 had gone for lodging FIR first and left the dead body on the spot unattended by anyone, hence conduct of this witness is quite unnatural and his testimony is not reliable. But, in cases of murder, it is quite natural that a person accompanying the deceased is frightened. In such cases, mental condition of each person having company of deceased is different from one person to another and it depends upon him how to respond the things. No hard and fast criteria can be laid down for each and every person how to respond after such terrible incident. In this case, occurrence has taken place in the evening hours in an open place like road and fear might have appeared in the mind of this witness that he may be also killed. In such a condition, this witness might have thought that he should inform the police first and thereafter come to place of occurrence with police. Accordingly, conduct of this witness cannot said to be so unnatural that his testimony can be disbelieved. Hence, there is no force in the aforesaid argument advanced by learned counsel for the appellant-accused.
Next argument advanced by learned counsel for the appellant-accused is that PW-2 (eye witness) is a procured witness, hence his testimony is unreliable. In support of his argument, he submitted that name of PW-2 is not mentioned in the FIR and if he had seen the occurrence, his name must have appeared in the FIR. But, in the case of Nirpal Singh and others v. State of Haryana reported in (1977) 2 S.C.C. 131, it has been held by Hon'ble Apex Court that non-inclusion of eye witness in the FIR does not necessarily lead to the conclusion that he did not witness the case. Further, in the case of Kunwarpal Alias Surajpal and others v. State of Uttarakhand and another reported in (2014) 16 S.C.C. 560, it has been held by Hon'ble Apex Court that there is no requirement of law for mentioning the names of all the witnesses in the FIR, the object of which is only to set the criminal law in motion (Nirpal Singh v. State of Haryana, Bhagwan Singh v. State of M.P. and Raj Kishore Jha v. State of Bihar).
Learned counsel for the appellant-accused further submitted that map of spot (Ext. Ka-7) has been prepared by the I.O., in which he has not shown the place from where PW-2 had seen the occurrence. But, PW-2 cannot be held responsible for the act of I.O. who failed to mention the place from where he had seen the occurrence.
Further submission advanced by learned counsel for the appellant-accused is that statement of PW-2 under Section 161 Cr.P.C. has been recorded by the I.O. after delay of about one month, which indicates that this witness is a procured witness. But it is settled principle of law that testimony of a witness cannot be discarded, only on the basis that his statement under Section 161 Cr.P.C. has been recorded at a belated stage.
In Ganeshlal v. State of Maharashtra reported in (1992) 3 SCC 106, it has been held by Hon'ble Apex Court that delayed statement under Section 161 Cr.P.C. has to be considered on its own facts. Relevant portion of para 10 of the report is reproduced below:-
"....It is true that this Court in Balakrushna Swain v. State of Orissa held that the evidence of witness recorded at late stage must be received with a pinch of salt. Delay defeats justice. But each case has to be considered on its own facts...."
In Narinder Kumar v. State of Jammu and Kashmir reported in (2010) 9 SCC 259, it has been held by Hon'ble Supreme Court that delayed statement recorded under Section 161 Cr.P.C. has to be seen in the background of the facts and circumstances of the case. Relevant portion of the report is reproduced below:-
"It was also contended by Mr Gupta that statements of some of the eyewitnesses were recorded belatedly. This aspect too has to be seen in the background of the facts and circumstances of the case. Whether or not delay has affected the credibility of the prosecution is a matter on which no straitjacket formula can be evolved nor any thumb rule prescribed for universal application...."
It is borne out from the record that there is no evidence on record to indicate that PW-2 is inimical to appellant-accused. He has proved date, time, place of occurrence and the mode and manner in which the incident was caused and he has reiterated the same in his cross examination also. No material contradiction has appeared in cross-examination of this witness. Further PW-1 has proved the presence of this witness on the place of occurrence and version of PW-1 and PW-2 is corroborated by medical evidence of PW-3.
Considering the entire facts and circumstances of this case, and principles laid down by Hon'ble Apex Court in the aforesaid cases of Ganeshlal (supra) and Narinder Kumar (supra), this witness does not appear to be a procured witness. Hence, aforesaid argument advanced by learned counsel for the appellant-accused has no force.
Next argument advanced by learned counsel for the appellant-accused is that there are several defects in the investigation conducted by the I.O. (PW-4), which leads to strong suspicion to prosecution story. In support of his argument, he submitted that map of spot has been prepared by the I.O., in which direction of running away of the complainant has been shown, which is different than the direction stated by the complainant (PW-1). He further submitted that licensee double barrel gun of the appellant-accused was deposited, which was not taken into possession by the I.O. and the same alongwith empty cartridges and the bullet recovered from the dead body of the deceased were not sent to ballistic expert, so that it might have been established that fire was caused by the licensee gun of the appellant-accused.
It is borne out from the record that there is no evidence on record to indicate that double barrel gun of the appellant-accused was sent for report of ballistic expert, although it should have been done. Further, the direction of running away as narrated by the complainant (PW-1), is different than the direction shown by the I.O. in the map of spot. But it is settled principle of law that prosecution evidence cannot be discarded, merely on the basis of defective investigation conducted by the I.O.
In the case of Allarakha K. Mansuri Vs. State of Gujarat reported in 2002 CRI. L. J. 1489, it has been held by Hon'ble Apex Court that defective investigation by itself cannot be made a ground for acquitting the accused.
In the case of Prithvi Vs. Mam Raj reported in (2004) 13 SCC 279, it has been held by Hon'ble Apex Court that site plan is not a ground to disbelieve the otherwise credible testimony of eye-witnesses.
In the case of Dhanaj Singh alias Shera and others Vs. State of Punjab reported in (2004) 3 SCC 654, it has been held by Hon'ble Apex Court that an accused cannot be acquitted on the sole ground of defective investigation, to do so would be playing in the hands of I.O.
In the case of Sambhu Das alias Bijoy Das and another Vs. State of Assam reported in (2010) 10 SCC 374, it has been held by Hon'ble Apex Court that if direct evidence is credible, defect or negligence in investigation cannot adversely affect the prosecution case.
In the case of Suresh Chandra Jana v. State of West Bengal and others reported in (2017) 16 S.C.C. 466, it has been held by Hon'ble Apex Court that:-
"The last aspect is regarding the defective investigation and prosecution. If a negligent investigation or omissions or lapses, due to perfunctory investigation, are not effectively rectified, the faith and confidence of the people in the law-enforcing agency would be shaken. Therefore, the police have to demonstrate utmost diligence, seriousness and promptness [refer Ram Bihari Yadav v. State of Bihar]"
Considering the entire facts and circumstances of this case, evidence available on record and principles laid down by Hon'ble Apex Court in the aforesaid cases of Allarakha K. Mansuri (supra), Prithvi (supra), Dhanaj Singh alias Shera (supra), Sambhu Das alias Bijoy Das (supra) and Suresh Chandra Jana (supra), testimony of prosecution witness cannot be discarded, merely on the basis of aforesaid defective investigation, conducted by the I.O. Hence, there is no force in the aforesaid argument advanced by learned counsel for the appellant-accused.
For all the reasons mentioned hereinabove, we are of the considered opinion that findings recorded by learned trial court are based on proper appreciation of evidence on record and sound reasoning. There is no legal infirmity in the impugned judgment and order passed by learned trial court. Appeal is devoid of merit and it is liable to be dismissed.
Accordingly, the criminal appeal is dismissed. Impugned judgment and order passed by the trial court, is affirmed.
The appellant-accused is in jail. He shall remain in jail to serve out the remaining sentence imposed by the trial court.
Let a copy of this judgment and record of trial court be sent back to the court concerned forthwith, for information and necessary follow up action.
Order Date :-26.09.2018 SR