Allahabad High Court
Sudarshan And Others vs State Of U.P. on 20 May, 2019
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.7 Criminal Appeal No.4796 of 2010 1. Sudarshan son of Vishwanath 2. Deena son of Vishwanath 3. Bhola son of Ram Chander 4. Sachita son of Ram Chander 5. Prabhu son of Mahesh 6. Parshuram son of Mahesh 7. Ambika son of Suryabali Amavas Chauhan. ......Appellants vs. State of Uttar Pradesh ......Respondent For Appellants : Shri Mewa Lal Shukla Shri R P S Chauhan Shri Ram Jatan Yadav For Respondent/State : Shri Amit Sinha, AGA --- Hon'ble Pritinker Diwaker, J Hon'ble Raj Beer Singh, J Per: Pritinker Diwaker, J.
(20.5.2019) This appeal arises out of a judgment and order dated 13.7.2010 passed by Special Judge (E C Act)/Additional Sessions Judge, Ballia in Sessions Trial No.174 of 1998 (State v. Nathuni & others), convicting accused Sudarshan under Sections 148, 323/149, 302 and 342 of IPC and sentencing him to undergo one year rigorous imprisonment; to undergo six months rigorous imprisonment; to undergo imprisonment for life, with a fine of Rs.3000/-, in default thereof, to undergo one year rigorous imprisonment and to undergo six months rigorous imprisonment respectively. Rest of the accused, namely, Deena, Parma (since deceased), Bhola, Prabhu, Parashuram, Suryabali (since deceased), Ambika and Sachita have been convicted under Sections 147, 323, 302/149 and 342 of IPC and sentenced them to undergo one year rigorous imprisonment; to undergo six months rigorous imprisonment; to undergo imprisonment for life, with a fine of Rs.3000/- each, in default thereof, one year rigorous imprisonment and to undergo six months rigorous imprisonment respectively. All sentences shall run concurrently.
2. In the present case, name of the deceased is Prabhu, son of Kamta (PW-1) and Sarali Devi (PW-2). On 24.4.1997 at 5:50 am, a written report, Ex. Ka.1 was lodged by (PW-2), alleging in it that at about 3:00 am, when she and her husband were sleeping at the doorstep of their house; light was switched on; it was a full moonlight and her son Prabhu was sleeping on the roof of his friend Chhotak. On account of an old land dispute, accused persons carrying deadly weapons, like clubs, ballam, farsa and gandasa, reached to the roof of Chhotak and caused injuries to the deceased. She has alleged that Ramji Jaiswal, who was sleeping along with deceased, and the deceased both raised their cries and upon hearing the same, she, her husband Kamta (PW-1), Uma Shanker (PW-3), Ram Bilas (not-examined), Brij Kishore (PW-4) reached to the place of occurrence and saw accused Nathuni (died during pendency of trial) causing injuries to her son and bringing him down from the roof. She states that all the accused persons took the deceased along with them near the house of accused Nathuni, tied him up with a peg and caused several injuries to him. She states that when the deceased became unconscious, leaving him as it is, all the accused persons fled away from the spot. It has also been stated by her that she and other witnesses have intervened in the matter, but she too was beaten by the accused persons. Based on her written report, FIR Ex.Ka.16 was registered against the appellants, including three deceased accused persons, namely, Nathuni, Parma and Suryabali under Sections 147/148/149/342/323/302 of IPC.
3. Inquest on dead body of the deceased was conducted, vide Ex.Ka.10 on 24.4.1997 and the dead body was sent for postmortem which was conducted on 25.4.1997, vide Ex.Ka.3 by Dr A K Rai (PW-6).
The Autopsy Surgeon has noted following eleven injuries on the body of the deceased:
"1. Ante-Mortem Incised wound of 2 cm x 0.5 cm and 0.5 cm. Deep 3 cm above the middle of the right eyebrow on right side. The margin of wound is sharp.
2. Ante-Mortem Incised wound of sharp Marginal of 2 cm. x 0.5 cm and 3 cm Deep posterior aspect of the left arm 10 cm above the left elbow joint towards Lt. shoulder joint.
3. Ante-Mortem Incised wound of 2 cm x 0.5 cm and 5 cm. Deep posterior aspect of right arm, 14 cm above the right elbow joint.
4. Ante-Mortem Incised and penetrating wound of 2 cm x 0.5 cm x 4 cm. Deep 9 cm above the elbow joint on the posterior aspect of right arm.
5. Ante-Mortem Incised wound of 2 cm x 0.5 cm x 4 cm on the posterior aspect of right elbow joint.
6. Ante-Mortem Incised wound and penetrating wound of 2 cm x 2 cm x 0.5 cm x 4 cm Deep on the anterior-lateral aspect of lower leg right side, 13 cm above the right ankle joint.
7. Ante-Mortem Incised wound of 4 cm x 0.5 cm x 4 cm on the anterior lateral aspect of right leg, 7 cm above the right ankle joint.
8. Ante-Mortem Abrasion of 2 cm x 0.5 cm on the Hip right side.
9. Ante-Mortem Abrasion of 1 cm x 0.5 cm on the right side in the lumber region.
10. Ante-Mortem Abrasion 4 cm x 2 cm below the neck on the back right side.
11. Ante-Mortem Abrasion 8 cm x 8 cm x 0.5 cm on the back of shoulder."
Cause of death was 'due to shock and haemorrhage as a result of ante mortem injuries'.
4. Injured Sarali Devi (PW-2) was medically examined, vide Ex.Ka.2 by Dr Ajeet Kumar (PW-5) and following injuries were noted:
"1. Abrasion size 2.8 cm x 1 cm over left side of face, just lateral to lateral canthos of left eye.
2. Abrasion size 0.5 cm x 0.1 cm over ant. surface of left knee.
3. C/O pain over left shoulder."
5. Blood stained clubs were seized vide Ex.Ka.9 from accused Deena and Prabhu. However, these articles have not been sent for FSL.
6. While framing charge, the trial Judge has framed charge against accused Nathuni and Sudarshan under Sections 148/ 323/149/302/342 of IPC, whereas against remaining accused persons, charge was framed under Sections 147/323/302/149/342 of IPC.
7. During pendency of trial, accused Nathuni expired and in relation to remaining nine accused persons, prosecution has examined seven witnesses, so as to hold them guilty. Statements of the accused persons were recorded under Section 313 of Cr PC in which, they pleaded their innocence and false implication.
8. By the impugned judgment, the trial Judge has convicted and sentenced the accused persons, as mentioned in para 1 of this judgment. Hence, the instant appeal.
9. During pendency of appeal, accused Parma and Suryabali have expired and the appeal confines only in respect of remaining seven accused persons.
10. Learned counsel for the appellants submits:-
(i) that FIR is anti-timed.
(ii) that two important witnesses of the prosecution, namely Chhotak and Ramji Jaiswal have not been examined.
(iii) that in the FIR, it has not been made clear as to which of the accused was carrying which weapon.
(iv) that as per FIR, accused Sudarshan was carrying 'ballam' and accused Nathuni was having 'farsa', but during trial just converse statements have been made by the witnesses. Learned counsel submits that though remaining accused persons were having clubs in their hands, but no corresponding injuries have been found on the body of the deceased.
(v) that there is inordinate delay in conducting the postmortem of the deceased.
(vi) that there is no FSL report proving the blood on the seized clubs or even proving the blood either on the soil or surface where incident had allegedly taken place.
(vii) that there was no sufficient source of light at the place of occurrence.
(viii) that the medical evidence is not conclusive.
(ix) that only interested witnesses have been examined.
11. On the other hand, supporting the impugned judgment, it has been argued by learned State Counsel:
(i) that a prompt FIR was lodged by Sarali Devi (PW-2), eyewitness to the occurrence. Incident occurred at 3:00 am on 24.4.1997, whereas the report has been lodged at 5:50 am and the distance between place of occurrence and that of police station is about seven kms.
(ii) that all the four eyewitnesses have duly supported the prosecution case and their versions have been duly supported by the medical report of the injured as well as postmortem report of the deceased.
(iii) that incident occurred on 24.4.1997, whereas Court statements of the witnesses have been recorded after about 9 years. Learned counsel submits that considering this inordinate delay in recording the Court statements of the witnesses, sequence of events may not be exact, but if the entire statement of the eyewitnesses is seen, it is apparent that they have seen the occurrence.
(iv) that witnesses are rustic villagers and considering their background and further considering the inordinate delay in recording of their Court statements, minor contradictions in their statements are bound to take place.
(v) that even if the witnesses are bit confused while narrating the weapons used in commission of offence, the fact remains that the medical report of the injured and the postmortem report of the deceased support the versions of the eyewitnesses.
(vi) that motive has been duly proved by the prosecution.
(vii) that there is no evidence on record to show that FIR is anti-dated.
12. We have heard learned counsel for the parties and perused the record.
13. Kamta (PW-1) is the father of the deceased. His Court statement was recorded on 9.3.2006, i.e. after about 9 years of the incident. He states that on the date of occurrence, he and his wife were sleeping at the doorstep of their house, light was switched on and it was a full moonlight. His son Prabhu (deceased) was sleeping on the roof of Chhotak along with Ramji Jaiswal. On account of old enmity, accused persons reached to the roof of Chhotak, carrying deadly weapons with them. Accused Nathuni (since deceased) was having 'ballam', whereas accused Sudarshan was having 'gandasa' (farsa) with him and others were having 'lathies'. They pulled out the deceased, threw him from the roof and then dragged him to the house of Nathuni, tied him up with a peg and while taking him, they also caused injuries to the deceased. He states that the incident has been witnessed by Daroga Vijay, Baijnath and his wife. He states that a land dispute was pending between his family and accused Nathuni. However, no dispute was pending with other accused persons. He further states that after hearing the cries, he and his wife woke up and had gone to the place of occurrence. He saw the accused persons, throwing his son from the roof and that he was bleeding. He further states that at 4:30 am, he and his wife had gone to lodge the report, they reached to the police station at 5:30 am and then the report was lodged. He further states that his son was residing separately and was working as a Conductor in a private Jeep. He further states that the dead body of the deceased was kept in the village till 8:45 in the morning and then it was taken to police station, where it was kept till 4:00 pm. He has further clarified that at the place of occurrence, light was switched on and that it was a full moonlight.
14. Sarali Devi (PW-2) is the mother of the deceased, first informant and the eye witness to the incident, states that at about 3:00 am, when she and her husband were sleeping at the doorstep of their house, her son was sleeping on the roof of Chhotak along with Ramji Jaiswal. Accused persons reached to the house of Chhotak and caused injuries to her son. After hearing cries of her son, she reached to the place of occurrence and saw all the accused persons. She further states that when she and other witnesses have intervened in the matter, she too was slapped by accused-Nathuni. Her son was taken near the house of Nathuni, where he was tied up with a peg and there also, her son was subjected to beating by the accused persons.
At one place, she states that deceased was not residing separately, but then again she states that since last two and half years, her son was residing separately. She also states that when she reached to the place of occurrence, 50-60 persons had already reached there and that blood was oozing from the head of her son. She states that she saw the accused persons causing spear injuries to the deceased. She has denied the fact that her son was subjected to injuries at some other place and on account of previous enmity, accused persons have been falsely implicated.
It is relevant to note here that this witness was examined in the Court on 19.4.2006, i.e. after 9 years of the incident and her cross examination was completed on 1.3.2008.
15. Uma Shanker (PW-3) is another eyewitness to the incident. He is also cousin brother of Kamta (PW-1). While supporting the prosecution case, he has stated that at the time of occurrence, i.e. at 3:00 am, he was in his house, it was a full moonlight and upon hearing the cries, when he reached to the place of occurrence, Kamta (PW-1), Sarali Devi (PW-2), Brij Kishore (PW-4), Daroga and Ram Bilas (not examined) were already there, and then he saw the accused persons, beating the deceased. He states that this beating continued even while the deceased was brought down and then he was taken to the house of Nathuni and during this period, accused persons were shouting that the deceased would be falsely implicated in a case of theft. He states that deceased was tied up with a peg and there also, he was beaten by deadly weapons like 'gadasa, farsa, ballam and lathi'. He further states that by the time he reached to the place of occurrence, the other persons had already reached there, however, in his presence, number of injuries were caused to the deceased and that blood was oozing from the body of the deceased.
16. Brij Kishore (PW-4) is another eye witness to the incident, states that upon hearing the cries of the deceased when he reached to the roof, he saw accused persons causing injuries to the deceased by deadly weapons. They brought down the deceased from the roof; dragged him to the house of Nathuni and there also, they caused several injuries to the deceased after tying him up with a peg. He states that even on the way, the deceased was being beaten. After committing the murder of the deceased, all the accused persons fled away from the house. He states that Kamta (PW-1) is his brother. He admits that there was an old enmity between two families, but he has denied the fact that on account of said enmity, he has falsely implicated the accused persons.
17. Dr Ajeet Kumar (PW-5), conducted MLC of Sarali Devi (PW-2) vide Ex.Ka.2, whereas Dr A K Rai (PW-6), conducted postmortem on the body of deceased and noticed various injuries as mentioned in paras 3 and 4 of this judgment.
18. As the Investigating Officer has expired during pendency of trial, Om Prakash Singh (PW-7) was examined to prove the documents in relation to evidence collected by Investigating Officer.
19. Close scrutiny of the evidence makes it clear that on 24.4.1997, at about 3:00 am, accused persons reached to the roof of Chhotak, carrying deadly weapons, where deceased was sleeping along with Chhotak and Ramji Jaiswal. They caused several injuries to the deceased, brought him down and took him to the house of Nathuni. After reaching there, accused persons tied him up with a peg and there also, he was subjected to various injuries. Even while taking the deceased to the house of Nathuni, on the way also, he was beaten. The incident has been witnessed by Kamta (PW-1) and Sarali Devi (PW-2), father and mother of the deceased, who were sleeping in their house, Uma Shanker (PW-3) and Brij Kishore (PW-4). All the four eyewitnesses have duly supported the prosecution case.
20. True it is, there are some contradictions in the statements of witnesses, but the fact remains that they are rustic villagers, incident occurred on 24.4.1997, whereas the Court examination of these witnesses have been done after 9 years of the incident. In the given facts and circumstances of the case, it cannot be expected from the eyewitnesses to give vivid description of the incident. Law in this respect is very clear.
21. In Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat1, the Supreme Court, while considering the minor contradictions in the statement of the witnesses, held as under:
"5. ... ... ...We do not consider it appropriate or permissible to enter upon a reappraisal or re-appreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by the learned counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed in the mental screen.
(2) Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation defer from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily, a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in short time span. A witness is liable to get confused or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by the counsel and out nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
22. There are some contradictions in the sequence of events as narrated by the witnesses, but if their overall testimony is considered, these contradictions will not affect the version of eyewitnesses. Possibility of not seeing the incident from first assault to last assault by the eyewitnesses cannot be ruled out, but their overall testimony reflects that they saw the accused persons, causing injuries to the deceased at three places, firstly, at the roof of Chhotak; secondly, bringing him down from the stair, dragging him to the house of Nathuni and on the way, causing injuries to him and thirdly, at the house of Nathuni, after tying him up with a peg, the deceased was subjected to injuries.
23. There is absolutely no evidence on the basis of which, it can be said that FIR is anti-timed. Law in this respect is also well settled.
In Jai Prakash Singh v State of Bihar2 the Supreme Court observed as under:
12. The FIR in criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question. (Vide: Thulia Kali v. State of T.N. (1972) 3 SCC 393, State of Punjab v. Surja Ram, 1995 Supp. (3) SCC 419, Girish Yadav v. State of MP, (1996) 8 SCC 186 and Takdir Samsuddin Sheikh v. State of Gujarat (2011) 10 SCC 158."
The Supreme Court in Madru Singh vs. State of Madhya Pradesh3 and Ram Sanjiwan Singh Vs. State of Bihar4, answered the similar question in 'negative'. In the said decisions, it has been held by the Supreme Court that from the cross-examination of prosecution witnesses, circumstances have to be elicited which would show that the FIR was ante-timed and then alone an inference can be drawn that the FIR was ante-timed.
It is further settled position of law that FIR can be proved ante-timed or ante-dated by adducing proper evidence. The lodger of FIR should be subjected to proper cross examination as to on what basis defence pleads the FIR to be ante-timed or ante-dated. Likewise, the police officer, who has recorded the FIR, is also required to be properly cross-examined as to on what basis defence pleads the FIR to be ante-dated or ante-timed. If no such requirement of law is completed and no such proper cross-examination of the witnesses is being done, it cannot be presumed that the FIR is ante-dated or ante-timed.
24. So far as the argument of defence that only interested witnesses have been examined is concerned, law in this respect is also very clear. It is settled position of law that the evidence of an interested witness should not be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. All that the Courts require as a rule of prudence, not as a rule of law, is that the evidence of such witness should be scrutinized with a little care. It has to be realized that related and interested witness would be the last persons to screen the real culprits and falsely substitute innocent ones in their places. Indeed there may be circumstances where only interested evidence may be available and no other, e.g. when an occurrence takes place at midnight in the house then the only witnesses who could see the occurrence may be the family members. In such cases, it would not be proper to insist that the evidence of the family members should be disbelieved merely because of their interestedness. But once such witness is scrutinized with a little care and the Court is satisfied that the evidence of the interested witness have a ring of truth such evidence could be relied upon even without corroboration. 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. (See Anil Rai vs. State of Bihar (2001) 7 SCC 318; State of U.P. vs. Jagdeo Singh (2003) 1 SCC 456; Bhagalool Lodh & Anr. vs. State of U.P. (2011) 13 SCC 206; Dahari & Ors. vs. State of U.P. (2012) 10 SCC 256; Raju @ Balachandran & Ors. vs. State of Tamil Nadu (2012) 12 SCC 701; Gangabhavani vs. Rayapati Venkat Reddy & Ors. (2013) 15 SCC 298; Jodhan vs. State of M.P. (2015) 11 SCC 52) The Supreme Court in Bur Singh and Anr. vs. State of Punjab5 has held that merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. Further, the Supreme Court in Sudhakar v. State6 and Ganapathi v. State of Tamil Nadu7 relying in its earlier judgments held as under:
"18. Then, next comes the question 'what is the difference between a related witness and an interested witness?. The plea of "interested witness", "related witness" has been succinctly explained by this Court that "related" is not equivalent to "interested". The 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. In this case at hand PW 1 and 5 were not only related witness, but also 'interested witness' as they had pecuniary interest in getting the accused petitioner punished. [refer State of U.P. v. Kishanpal and Ors., (2008) 16 SCC 73] : (2008 AIR SCW 6322). As the prosecution has relied upon the evidence of interested witnesses, it would be prudent in the facts and circumstances of this case to be cautious while analyzing such evidence. It may be noted that other than these witnesses, there are no independent witnesses available to support the case of the prosecution."
Relationship is not a factor to affect credibility of a witness. There is no proposition in law that relatives are to be treated as untruthful witnesses. To the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. A witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive. A close relative cannot be characterized as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the 'sole testimony of such witness. (See- Harbans Kaur and another vs. State of Haryana, 2005 AIR SCW 2074; Namdeo vs. State of Maharashtra, 2007 AIR SCW 1835; Sonelal vs. State of M.P., 2008 AIR SCW 7988; and Dharnidhar vs. State of Uttar Pradesh and Others & other connected appeals, (2010) 7 SCC 759).
25. So far as source of light is concerned, in the oral evidence, it has come that the light was switched on and that it was a full moonlight. Even, this Court has checked up visibility of moon on 24.4.1997 from internet and 98% visibility was found on the said date.
26. True it is that there is no FSL report on record, proving blood stained on the clubs seized, but in the case of eyewitness, even if the said fact has not been proved by the prosecution, it will not materially affect the credibility of the prosecution case.
27. At some places, witnesses are not sure as to which weapon was being carried out by which of the accused, but the fact remains that accused persons were carrying deadly weapons with them. As already stated, Court examination of the witnesses have been done after about 9 years of the incident and in the facts and circumstances of the instant case, such discrepancy is bound to occur. We have no reason to disbelieve the statements of the eyewitnesses, who despite their lengthy cross-examination, remained firm in the Court. Minor contradiction/discrepancies in the statements of the witnesses are required to be ignored considering the fact that those contradiction/discrepancies do not go to the root of the matter as well as do not affect their version otherwise and also considering the fact that the Court examination of the witnesses, in the instant case, have been done after about 9 years of the incident.
28. Considering the cumulative effect of the evidence, we are of the view that the trial Judge was fully justified in convicting the appellants. Appeal has no substance and the same is, accordingly, dismissed. As the appellants are reported to be in Jail, no further order is required in their respect.
Dated: 20.5.2019 RKK/-Mohit (Pritinker Diwaker, J) (Raj Beer Singh, J)