Ram Pratap & Others vs State Of U.P. on 15 September, 2014

[Cites 20, Cited by 0]

Allahabad High Court

Ram Pratap & Others vs State Of U.P. on 15 September, 2014

(Delivered by Hon. Akhtar Husain Khan,J) Present appeal has been filed by accused appellants Ram Pratap, Bhoorey, Ram Bhajan and Kanhai under section 374(2) Cr.P.C. against judgement and order dated 27.1.1995 passed by learned Vth Additional Sessions Judge, Fatehpur in S.T. No.711 of 1990 (State Vs. Ram Pratap and others) Crime No.92 of 1990, under sections 302/34 I.P.C., Police Malwa, District Fatehpur, whereby learned Vth Additional Sessions Judge, Fatehpur has convicted accused appellants for offence punishable under section 302 read with section 34 I.P.C. and has sentenced each of them thereunder to imprisonment for life and fine of Rs.5000/-.

Accused appellant Ram Pratap is reported dead. Appeal abated in respect of accused appellant Ram Pratap.

Shri G.P. Dikshit and Shri Sarvesh Kumar, learned counsel appeared for the accused appellants and Shri Narendra Kumar Singh Yadav, learned A.G.A. appeared for State respondent.

We have heard the parties and perused the record.

According to the first information report Exhibit Ka.1 in short prosecution version is that on 29.6.1990 Dhunnu Prasad the husband of complainant Gayatri Devi and Ramesh Chandra brother of complainant Gayatri Devi were coming to village Maluni from Fatehpur. At that time complainant Gayatri Devi and her daughter Geeta had gone to field to ease themselves. At about 7.00 P.M. when Dhunnu Prasad husband of complainant and Ramesh Chandra brother of complainant came on the kharanja way near mango tree of Mathura, accused Ram Pratap, Bhoorey, Ram Bhajan and Kanhai, who are residents of complainant's came from the side of mango tree. All of them were armed with tamanchas. They exhorted to each other and fired at the husband of complainant. The husband of complainant sustained injuries and died on the spot. Complainant, her daughter Geeta and brother Ramesh Chandra raised alarm whereupon all four accused ranway. They could not catch them due to fear. According to the F.I.R. Exhibit Ka.1 in a case in which Ramkesh brother of accused Ram Bhajan was accused complainant's husband Dhunnu Prasad was making pairvi of one Shamim Musalman, due to which accused had enmity with the husband of complainant.

According to F.I.R. Exhibit Ka.1 in night complainant did not go to the police station due to fear. Thereafter in the morning leaving her daughter Geeta and brother Ramesh Chandra near the dead body of husband, complainant Gayatri Devi went to police station Malwa, District Fatehpour and presented report Exhibit Ka.1 on 30.6.1990 at 7.30 A.M. in Police Station Malwa, District Fatehpur, whereupon Crime No.192 of 1990, under section 302 I.P.C. was registered in Police Station Malwa, District Fatehpur against accused Ram Pratap, Bhoorey, Ram Bhajan and Kanhai and investigation was started by police. Inquest report of deceased Dhunnu Prasad was prepared by police and dead body was sent for post mortem in sealed cover after having completed other necessary formalities. Thereafter investigation was completed in accordance with law and after having completed investigation police submitted charge sheet Exhibit Ka.13 under section 302 I.P.C. against all accused whereupon learned Magistrate took cognizance and after compliance of section 207 Cr.P.C. committed the case to the court of session for trial of all accused. Thereafter S.T. No.711 of 1990 (State Vs. Ram Pratap and others) under section 302 I.P.C., Police Station Malwa, District Fatehpur was registered in session court of district Fatehpur. Later on said session trial was transferred to the court of IIIrd Additional Sessions Judge, Fatehpur, who framed charge against all accused for offence punishable under section 302/34 I.P.C.

All accused pleaded not guilty and claimed to be tried.

Prosecution examined P.W.1 compalinant Gyatri Devi, P.W.2 Km. Geeta Devi, P.W.3 Dr. Harish Chandra Sachan, P.W.4 Head Constable Ram Autar Singh and P.W.5 Investigating Officer S.I. Dhanpal Singh and closed his evidence.

After prosecution evidence, statements of all accused were recorded under section 313 Cr.P.C. All the accused stated that they have been falsely implicated due to animosity.

In defence documentary evidence was filed on behalf of accused appellants.

Learned Vth Additional Sessions Judge, Fatehpur heard arguments of both parties and passed impugned judgement and order whereby he has convicted and sentenced all accused appellants as mentioned above.

Learned counsel for accused appellants contended that impugned judgement and order passed by trial court is against law as well as evidence on record.

Learned counsel for accused appellants contended that the F.I.R. is ante time and is delayed.

Learned counsel for accused appellants contended that presence of P.W.1 complainant Gyatri Devi and her daughter P.W.2 Km. Geeta Devi at the time of occurrence is highly doubtful.

Learned counsel for accused appellants contended that there are material contradictions in the statements of P.W.1 complainant Gyatri Devi and P.W.2 Km. Geeta Devi and no independent witness has been produced by prosecution. He further contended that witness named in the F.I.R. Ramesh Chandra brother of complainant has also not been examined. Therefore, the statements of P.W.1 complainant Gyatri Devi and P.W.2 Km. Geeta Devi may not be relied upon.

Learned counsel for accused appellants contended that in F.I.R. Exhibit Ka.1 it has not been mentioned that Dhannu Prasad was coming from Fatehpur alongwith Ramesh Chand brother of complainant Gyatri Devi with cycle at the time of occurrence and both P.W.1 complainant Gyatri Devi and P.W.2 Km. Geeta Devi have not stated in their statements recorded under section 161 Cr.P.C. that Dhannu Prasad was coming with cycle at the time of occurrence. Investigating Officer has also not found cycle of deceased on place of occurrence. For the first time before trial court P.W.1 complainant Gyatri Devi and P.W.2 km. Geeta Devi have stated that Dhannu Prasad was coming alongwith Ramesh Chand with cycle. Thus the statements of these two witnesses are quite unreliable and it is apparent that they have not seen occurrence.

Learned counsel for accused appellants contended that time of occurrence is alleged 7.00 P.M. At 7.00 P.M. the darkness shall prevail but no source of light has been alleged by prosecution. Therefore, in darkness it is difficult to identify the assailants.

Learned counsel for the accused appellants prayed that appeal should be allowed and all accused appellants should be acquitted.

Learned A.G.A. contended that reason for not lodging F.I.R. at once in night has been mentioned in F.I.R. itself. Therefore no adverse presumption may be drawn due to lodging of F.I.R. in the morning.

Learned A.G.A. contended that P.W.1 complainant Gyatri Devi is the wife of deceased Dhunnu Prasad and P.W.2 Geeta Devi is daughter of deceased. Both have gone to ease themselves in the filed at the time of occurrence. Their statements appear very natural and there is no material contradictions in their statements. Therefore, there is no sufficient ground to disbelieve them.

Learned A.G.A. contended that evidence on record is sufficient to convict accused appellants for offence publishable under section 302 read with section 34 I.P.C. and trial court has rightly held them guilty for offence punishable under section 302 read with section 34 I.P.C.

Learned A.G.A. contended that punishment awarded by the trial court is not excessive.

Learned A.G.A. prayed that appeal filed by the accused appellants should be dismissed.

We have considered the submissions made by the parties.

Out of above five witnesses examined by prosecution before trial court P.W.1 complainant Gyatri Devi and P.W.2 Geeta Devi are the witnesses of fact and occurrence. They have supported version of F.I.R. in their statements on oath.

P.W.1 complainant Gyatri Devi has proved F.I.R. Exhibit Ka.1 also in her statement.

P.W.3 Dr. Harish Chandra Sachan has stated in his statement that on 1.7.1990 he was posted as Medical Officer in District Hospital, Fatehpur. He has stated in his statement that on that day at 4.30 P.M. he has conducted post mortem of deceased Dhunnu Prasad aged about 42 years son of Munna Prasad resident of Malauni. The dead-body was brought by Constable 318 Mahanand Mishra, Police Station Malwan. He has proved post mortem report of deceased Dhunnu Prasad Exhibit Ka.2 in his statement in accordance with law.

P.W.3 Dr. Harish Chandra Sachan has stated in his statement that cause of death of deceased Dhunnu Prasad was shock and haemorrhage as a result of ante mortem injuries. He has further stated in his statement that death of deceased Dhunnu Prasad may occur at 7.00 P.M. on 29.6.1990.

P.W.4 Head Constable Ram Autar Singh has stated in his statement that on 30.6.1990 he was posted as Constable in Police Station Malwan. He has stated that he has written chick F.I.R. on the basis of written report presented by complainant P.W.1 Gyatri Devi and made entry of registration of crime at 7.30 A.M. in G.D. dated 30.6.1990 at rapat no.14. He has proved chick F.I.R. Exhibit Ka.3 and copy of G.D. relating to registration of crime Exhibit Ka.4 in his statement.

P.W.5 S.I. Dhanpal Singh is Investigating Officer. He has stated in his statement on oath that on 30.6.1990 crime relating to the present offence was registered in Police Station Malwan in his presence. He took investigation and went on spot. He has stated in his statement that he inspected the place of occurrence and prepared site plan. He has proved site plan Exhibit Ka.5. He has stated that he prepared inquest report of deceased Dhunnu Prasad after having appointed panchas. He has proved inquest report of deceased Dhunnu Prasad Exhibit Ka.6.

P.W.5 S.I. Dhanpal Singh has proved letter to R.I. Exhibit Ka.7, letter to C.M.O. Exhibit Ka.8, Photo Nash Exhibit Ka.9, Chalan Nash Exhibit Ka.10 and specimen of seal Exhibit Ka.11 in his statement. He has stated in his statement that he took blood stained earth and plain earth from place of occurrence. He has proved memo of blood stained earth and plain earth Exhibit Ka.12. He has further stated in his statement on oath that after having completed investigation, he submitted charge sheet Exhibit Ka.13.

We have examined evidence adduced by prosecution in the light of submissions made by the parties.

According to the F.I.R. Exhibit Ka.1 time of occurrence is 7.00 P.M. and date of occurrence is 29.6.1990.

Perusal of chick F.I.R. Exhibit Ka.3 and G.D. relating to registration of crime as well as statement of P.W.4 Head Constable Ram Autar Singh shows that F.I.R. Exhibit Ka.1 has been presented by P.W.1 complainant Gyatri Devi at the Police Station Malwan, District Fatehpur at 7.30 A.M. in the morning of 30.6.1990 and Crime No.192 of 1990, under section 302 I.P.C. was registered in Police Station Malwan at the same time against accused Ram Pratap, Bhoorey, Ram Bhajan and Kanhai.

It has been mentioned by P.W.1 complainant Gyatri Devi in F.I.R. Exhibit Ka.1 that she could not come to Police Station to lodge report in the night due to fear. P.W.1 complainant Gyatri Devi has stated in her statement on oath before trial court that she was watching dead body of her husband Dhunnu Prasad. In the morning she got written F.I.R. by Ramesh and after making her signature she presented report in Police Station Malwan. P.W.1 complainant Gyatri Devi has not stated in her statement that she did not go to police station due to fear but it is admitted fact that P.W.1 complainant Gyatri Devi is the wife of deceased Dhunnu Prasad and time of occurrence is alleged at 7.00 P.M. Therefore after murder of her husband at 7.00 P.M. it appears unnatural for her to go to police station in night for lodging F.I.R. Therefore, lodging of F.I.R. by P.W.1 complainant Gyatri Devi in the morning is not an abnormal thing and lodging of F.I.R. in the morning may not lead to adverse inference against prosecution.

As mentioned above F.I.R. has been lodged in Police Station on 30.6.1990 at 7.30 A.M. Distance of Police Station from the place of occurrence is 12 Kilometres. Place of occurrence is a village. Therefore, considering whole facts and situation of place of occurrence, we are of the view that F.I.R. lodged on 30.6.1990 at 7.30 A.M. may not be said to be delayed and in view of discussion made above, there appears sufficient ground for not lodging F.I.R. in night immediately after occurrence.

Perusal of chick F.I.R. Exhibit Ka.3 and G.D. relating to registration of crime Exhibit Ka.4 as well as statement of P.W.4 Head Constable Ram Autar Singh shows that chick F.I.R. Exhibit Ka.3 has been prepared by him on 30.6.1990 at 7.30 A.M. On the basis of F.I.R. Exhibit Ka.1 presented by P.W.1 complainant Gyatri Devi, P.W.5 S.I. Dhanpal Singh has stated in his statement that present crime was registered in Police Station Malwan in his presence and he took investigation into his hands. Thereafter he copied chick F.I.R. and G.D. relating to registration of crime and took statement of complainant Gyatri Devi at police station. Thereafter he went to place of occurrence alongwith complainant Gyatri Devi. He has stated that after having appointed panchas he prepared inquest report Exhibit Ka.6 on spot. Perusal of inquest report Exhibit Ka.6 shows that preparation of this inquest report has been started on 30.6.1990 at 9.00 A.M. and inquest report was completed at 10.30 A.M. Inquest report Exhibit Ka.6 contains number and section of crime that is Crime No.192 of 1990, under section 302 I.P.C. In inquest report Exhibit Ka.6 Annexure no.2 copy of chick has been annexed.

Perusal of Chalan Nash Exhibit Ka.10 shows that dead body of deceased Dhunnu Prasad reached Police Line, Fatehpur on 30.6.1990 at 20.30 P.M. Entry has been made at rapat no.56 of G.D. of Police Line, Fatehpur dated 30.6.1990 at 20.30 P.M. Thus it is apparent that dead body has been sent for post mortem on 30.6.1990 alongwith inquest report in which annexure no.2 copy of chick F.I.R. has been annexed.

Learned counsel for accused appellants has drawn our attention to the fact that in Chalan Nash Exhibit Ka.10 time of death has been mentioned 8.00 P.M., while according to F.I.R. Exhibit Ka.1 and chick F.I.R. Exhibit Ka.3 time of occurrence is 7.00 P.M. Therefore, time of death 8.00 P.M. mentioned in Chalan Nash Exhibit Ka.10 shows that F.I.R. Exhibit Ka.1 was not in existence at the time of preparation of Chalan Nash Exhibit Ka.10 as well as inquest report Exhibit Ka.6.

P.W.5 S.I. Dhanpal Singh Investigating Officer has stated in cross examination at page 3 (page 33 of paper book) that he has written in Chalan Nash Exhibit Ka.10 time of death 8.00 P.M. This time of death has been written by him on the information given by people. In F.I.R. Exhibit Ka.1 it has been mentioned that Dhunnu Prasad husband of complainant Gyatri Devi succumbed to in juries on spot but actual time of death of Dhunnu Prasad has not been mentioned in F.I.R. Exhibit Ka.1 or chick F.I.R. Exhibit Ka.3. It is just possible that after having received injuries deceased Dhunnu Prasad survived for some time and thereafter succumbed to in injuries on spot. Defence has not dared to clarify this point by making cross examination with P.W.1 complainant Gayatri Devi and P.W.2 Km. Geeta Devi. Therefore, time of death 8.00 P.M. mentioned in Chalan Nash Exhibit Ka.10 is not sufficient to make adverse inference against prosecution and to hold that F.I.R. Exhibit Ka.1 was not in existence at the time of preparation of Chalan Nash (form 13) Exhibit Ka.10. It is apparent from the statement of P.W.1 complainant Gyatri Devi also that she had presented F.I.R. Exhibit Ka.1 in police station in the morning. Therefore, considering the statements of P.W.1 complainant Gyatri Devi, P.W.4 Head Constable Ram Autar Singh and P.W.5 S.I. Dhanpal Singh as well as chick F.I.R. Exhibit Ka.3 copy of G.D. relating to registration of crime Exhibit Ka.4 and inquest report Exhibit Ka.6, it is apparent that there is no ground to infer that F.I.R. Exhibit Ka.1 and chick F.I.R. Exhibit Ka.3 are ante time.

Learned counsel for accused appellants drew our attention to the fact that there is no mention of weapon in the inquest report and non-mentioning of weapon in inquest report also shows that F.I.R. was not in existence at the time of preparation of inquest report. We have considered submission of learned counsel for accused appellants.

In our opinion this submission of learned counsel for accused appellants is misconceived in view of pronouncement of Honourable Apex Court in the case of Aftab Ahmad Ansari Vs. State of Uttaranchal, A.I.R. 2010 S.C. 773. Mention of weapon in inquest report is not required.

P.W.2 Km. Geeta Devi has stated in cross examination at page 5 ( page 22 of the paper book) that abadi of village Malauni is at a distance of 35 or 40 lathies from place of occurrence. Defence has not tried to ascertain distance of place of occurrence from village abadi by making cross examination with P.W.1 complainant Gyatri Devi on this point. Defence has given suggestion to P.W.1 complainant Gyatri Devi that due to enmity with Gauri Shanker who is father of accused Ram Pratap she used not to go in his field. But P.W.1 complainant Gyatri Devi has negatived the suggestion. Thus it is apparent that the field where P.W.1 complainant Gyatri Devi and P.W.2 Km. Geeta Devi had gone to ease themselves is not for away from village abadi. It is common practice in villages that ladies used to go to ease themselves in fields out of village abadi in early morning as well as in evening after sun set. Time of occurrence is alleged at 7.00 A.M. Therefore, in view of discussion made above, the statements of P.W.1 complainant Gyatri Devi and P.W.2 Km. Geeta Devi that they had gone to field near place of occurrence to ease themselves are highly reliable.

Admittedly, field in which P.W.1 complainant Gyatri Devi and P.W.2 Km. Geeta Devi had gone to ease themselves belongs to Gauri Shanker father of accused Ram Pratap. But site plan Exhibit Ka.5 shows that there are fields of Pitambar and Ramji Lal also near place of occurrence. Therefore if prosecution would have concocted story that P.W.1 complainant Gyatri Devi and P.W.2 Km. Geeta Devi had gone to ease themselves near the place of occurrence, place would have been shown field of Pitambar or Ramji Lal. Therefore, we are of the view that version of F.I.R. Exhibit Ka.1 and statements of P.W.1 complainant Gyatri Devi and P.W.2 Km. Geeta Devi regarding their presence near place of occurrence at the time of occurrence may not be disbelieved.

In the case of State of Dharma Veer and others Vs. State of U.P. A.I.R. 2010 S.C. 1378, Hon'ble Apex Court has held that merely the fact that witnesses did not suffer injury will not make their evidence untrust worthy.

In view of aforesaid judgement of Hon'ble Apex Court we are of the view that witnesses P.W.1 complainant Gyatri Devi and P.W.2 Km. Geeta Devi were caused no injury by accused is no ground to disbelieve their presence at the place of occurrence.

P.W. 1 complainant Gyatri Devi and P.W. Km. Geeta Devi are widow and daughter of deceased Dhunnu Prasad respectively.

In the case of Brahm Swaroop and another Vs. State of U.P. A.I.R. 2011 S.C. 280, Hon'ble Apex Court held that "merely because the witnesses were closed relatives to the deceased that cannot be ground to discard their evidence".

In the case of Vithal vs. State of Maharastra (2008) 1 SCC (Crl.) 91, Hon'ble Apex Court held that "testimony of mother of deceased should not be be discarded on the ground that she is an interested witness."

In the case of Ranjit Singh and others Vs. State of Madhya Pradesh A.I.R. 2011 S.C. 255, Hon'ble Apex Court held that "undoubtedly, all the eye witnesses including injured witnesses are closely related to the deceased. Thus, in such a fact situation, the law requires the court to examine their evidence with care and caution. Such close relatives and injured witnesses would definitely not shield the real culprits of the crime and name somebody else because of enmity."

In view of above pronouncements of Hon'ble Apex Court, it is apparent that testimonies of witnesses may not be discarded only on the ground of relationship.

Perusal of F.I.R. Exhibit Ka.1 shows that specific mention has been made in it that Dhannu Prasad and Ramesh Chand brother of complainant were coming from Fatehpur. Both P.W.1 complainant Gyatri Devi and P.W.2 km. Geeta Devi have stated same thing in their statements recorded under section 161 Cr.P.C. Now before court said two witnesses have stated that Dhannu Prasad and Ramesh Chand were coming from Fatehpur with cycle. We are of the view that there is no martial contradiction between version of F.I.R. as well as statements of P.W.1 complainant Gyatri Devi and P.W.2 km. Geeta Devi recorded under section 161 Cr.P.C. and their statements recorded in court.

In F.I.R. Exhibit Ka.1 it has not been mentioned as to how or by what conveyance Dhannu Prasad and Ramesh Chand were coming from Fatehpur. Complainant Gyatri Devi is a house wife residing in village. She has stated in cross examination that she has read only upto Class IInd or IIIrd. Therefore, non mentioning of means of conveyance in F.I.R. by her is not fatal for prosecution and may not lead to adverse inference against prosecution and its witnesses.

In the case of State of Uttar Pradesh Vs. Munesh (2012) 9 SCC 742, Hon'ble Apex Court held that "though it is stated that all the details as spoken to by P.Ws. 1, 2 and 3 were not mentioned in the F.I.R., as rightly observed by the trial court, F.I.R. is not an encyclopaedia. It is just an intimation of the occurrence of an incident and it need not contain all the facts related to the said incident."

P.W.5 Investigating Officer S.I. Dhanpal Singh has recorded the statements of P.W.1 complainant Gyatri Devi and P.W.2 Km. Geeta Devi under section 161 Cr.P.C. in the light of F.I.R. Exhibit Ka.1. He has not clarified with said two witnesses as to how or by what conveyance Dhannu Prasad and Ramesh Chand were coming. Therefore, non mentioning of conveyance of cycle in statements of P.W.1 complainant Gyatri Devi and P.W.2 Km. Geeta Devi recorded under section 161 Cr.P.C. may not cause adverse affect on reliability of these witnesses.

P.W.5 Investigating Officer S.I. Dhanpal Singh has not recovered cycle with which deceased Dhunnu Prasad and Ramesh Chand are alleged to have come on spot at the time of occurrence. He has stated in cross examination that he did not found cycle and bag near dead body while P.W.1 complainant Gyatri Devi has stated in cross examination that cycle was lying on the northern side of dead body of her husband and cycle was lying there till police came. As mentioned above in F.I.R. Exhibit Ka.1 as well as in the statements of witnesses recorded under section 161 Cr.P.C. it has not been mentioned that deceased Dhunnu Prasad and Ramesh Chand came on spot with cycle. Therefore, P.W.5 I.O. Dhanpal Singh has not attempted to take into possession the cycle with which deceased Dhunnu Prasad and Ramesh Chand are alleged to have come. In such circumstances he would not have taken notice of cycle on spot. We are of the view that statements of the witnesses may not be discarded on the ground of non taking of cycle into possession by Investigating Officer.

As mentioned above there is no mention of cycle either in F.I.R. Exhibit Ka.1 or statements of witnesses recorded under section 161 Cr.P.C. and cycle has not been recovered by Investigating Officer. In such circumstances disclosure of means of conveyance cycle by P.W.1 complainant Gyatri Devi and P.W.2 Km. Geeta Devi shows that they have stated truth and they have not given this statement on legal advice for the sake of strengthening prosecution case.

In F.I.R. Exhibit Ka.1 motive or reason behind murder of Dhunnu Prasad by accused appellants has been mentioned and it has been stated that in a case in which Ramkesh brother of accused Ram Bhajan was accused, complainant's husband Dhunnu Prasad was making pairvi of one Shamim Musalman, due to which accused had enmity with the husband of complainant.

P.W.1 complainant Gyatri Devi has stated in her statement on oath before trial court that Ramkesh brother of accused Kanhai was accused in a criminal case in which firing had been made on Shamim. Her husband was making pairvi on behalf of Shamim.

Admittedly accused Kanhai and Ram Bhajan are brothers. Thus it is apparent that motive or cause of occurrence alleged in F.I.R. Exhibit Ka.1 has been supported by P.W.1 complainant Gyatri Devi in her statement on oath. Accused have also stated in their statements under section 313 Cr.P.C. that they have been implicated due to animosity.

Animosity between accused persons and deceased Dhunnu Prasad is supported by Exhibit Kha.2 certified copy of charge sheet filed in Crime No.132 of 1988, under sections 147, 148, 149, 307, 323, 504, 506 I.P.C. In this charge sheet deceased Dhunnu Prasad was accused and accused appellant Kanhai Prasad was witness. Thus enmity between deceased and accused persons is an admitted fact.

Enmity is double edged weapon. Where it may be a cause of false implication. It shall be cause of occurrence also.

In the case of Brahm Swaroop and another Vs. State of U.P. A.I.R. 2011 S.C.280, Hon'ble Apex Court held that "if the evidence of eye witness is trusty worthy and believed by the Court the question of motive becomes totally irrelevant".

Description of evidence mentioned above shows that P.W.1 complainant Gyatri Devi and P.W.2 Km. Geeta Devi are eye witnesses of occurrence. Therefore, if they are trust worthy witnesses the question of motive is irrelevant in view of above pronouncement of Hon'ble Apex Court. However, conclusion drawn above shows that prosecution has proved motive alleged in F.I.R. Exhibit Ka.1.

Time of occurrence alleged by prosecution is 700 P.M. The date of occurrence is 29.6.1990. On 29.6.1990 the sun set was at 6.55 P.M. Therefore at the alleged time of occurrence there shall be sufficient light and darkness shall not prevail. Therefore, we are of the view that argument put forward by learned counsel for accused appellants regarding light is misconceived.

We have perused whole statements of P.W.1 complainant Gyatri Devi and P.W.2 Km. Geeta Devi we are unable to find any material contradictions in their statements to disbelieve them. There is no material contradiction between their statements recorded by court and those of recorded by Investigating Officer under section 161 Cr.P.C. witnesses have made detailed statements in cross examination in reply of question made by defence. Therefore, these statements of witnesses are neither contradiction nor improvement.

In the case of Sampath Kumar Vs. Inspector of Police, Krishnagiri 2012 (IV) SCC 124, Hon'ble Apex Court held that "minor contradictions are bound to appear in the statement of truthful witnesses as memory sometimes plays false, sense of observation differs from person to person."

In the case of State of U.P. Vs. M.K. Anthony A.I.R. 1985 S.C. 48, Hon'ble Apex Court held that " every honest and truthful witnesses may differ in some details unrelated to main incident because power of observation, retention and reproduction differ with individuals".

In the case of Faquira Vs. State of U.P. A.I.R. 1976 S.C. 915, Hon'ble Apex Court held that "minor discrepancy guarantees that witnesses are not tutored."

In the case of State of U.P. Vs. Krishna Master and others; 2010 Cri. L.J. 3889 (SC) Hon'ble Apex Court held that "prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof."

In the case of In the case of State of U.P. Vs. Krishna Master and others (supra), Hon'ble Apex Court further held that "the basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole."

In view of above pronouncements of Hon'ble Apex Court we are of the view that testimonies of witnesses may not be discarded on the ground of minor contradiction or discrepancy.

In view of discussions made above, we are of the view that P.W.1 complainant Gyatri Devi and P.W.2 Km. Geeta Devi are trust worthy witnesses of occurrence and there is no reasonable ground to disbelieve them.

In F.I.R. Exhibit Ka.1 P.W.1 complainant Gyatri Devi has mentioned that all accused were armed with tamanchas. They exhorted to each other and fired at the husband of complainant. The husband of complainant sustained injuries and died on spot. In her statement before trial court on oath that P.W.1 complainant Gyatri Devi has given detailed version of occurrence. She has stated that all accused fired at her husband but fire made by three accused caused him injury. In reply to question made by trial court she has stated that first fire passed by side of her husband and her husband fell down from cycle. Thereafter having caught hold of her husband three fires were made on him. In cross examination at page 7 (page 14 of paper book) she has stated that accused Kanhai and Ram Pratap caught her husband and accused Ram Bhajan, Bhoore and Kanhai fired at him. Again on this page she has stated that they caught her husband and caused him to fell down. When they fired at him at that time they were not catching hold of him. She has stated that Dhunnu Prasad had fallen by side of face when fire was made on him. Above statements of P.W.1 complainant Gyatri Devi does not show contradiction. It is only due to her ability of expression.

P.W.2 complainant Km. Geeta Devi has also stated in her statement that first of all accused Ram Pratap fired at her father. Fire made by him passed by side of her father and her father was disbalanced. In the meantime accused Bhoorey, Ram Bhajan and Kanhai fired at him. P.W.2 Km. Geeta Devi has also stated in cross examination at page 5 (Page 22 of paper book) that her father fell down by side of face and three accused caused him fire injuries in the fallen position.

Statement of P.W.2 Km. Geeta Devi appears natural and if there is any inconsistency that is because of manner of expression.

After having gone whole statements of P.W.1 complainant Gyatri Devi and P.W.2 Km. Geeta Devi it is apparent that when deceased Dhunnu Prasad suffered injuries he was in fallen position.

Statement of P.W.3 Dr. Harish Chandra Sachan as well as post mortem report of deceased Dhunnu Prasad Exhibit Ka.2 shows that four ante mortem injuries were found on his body, out of which injuries no. 1, 2 and 3 were fire arm injuries and injury no.4 was lacerated wound. Injuries no.1, 2 and 3 are entry wound of fire arm. Injury no.1 is on back side of chest. Injuries no. 2 and 3 are on back side of abdomen. Injury no.4 is on back side of Head. Thus it is apparent that all three fire arm injuries have been caused to Dhunnu Prasad when he was fallen by side of face. Exactly same position has been stated by P.W.1 complainant Gyatri Devi in her above statement made in cross examination by defence at page 7 (page 14 of paper book) as well as by P.W.2 Geeta Devi in her statement made in cross examination by defence at page 5 (page 22 of paper book). Thus it is apparent that statements of witnesses are fully corroborated by post mortem report of deceased Dhunnu Prasad Exhibit Ka.2 as well as statement of P.W.3 Dr. Harish Chandra Sachan.

Lacerated wound found on the body of deceased Dhunnu Prasad may be sustained due to falling down on earth or on cycle.

The statement of P.W.5 Investigating Officer S.I. Dhanpal Singh as well as recovery memo of blood stained earth and plain earth Exhibit Ka.12 and site plan Exhibit Ka.5 corroborate place of occurrence alleged by prosecution.

After having considered whole facts and circumstances of the case as well as entire evidence on record, we are of the view that witnesses examined by prosecution are trust worthy witnesses and evidence adduced by prosecution is sufficient to hold appellants guilty of offence punishable under section 302 read with section 34 I.P.C.

In view of pronouncement of Hon'ble Apex Court rendered in the case of Harpat Singh Vs. State of Haryana, 1977 W.L.J 642 S.C. no adverse inference may be drawn against prosecution for non-examination of other witnesses.

Perusal of impugned judgement of trial court shows that trial court has gone through entire facts and circumstances of the case as well as evidence adduced by parties. Trial court has discussed all relevant points raised by parties and conclusions drawn by trial court are based on judicious analysis of facts and evidence.

In view of conclusion drawn above we are of the view that learned trial court has rightly placed reliance upon evidence adduced by prosecution and has rightly convicted accused appellants for offence punishable under section 302 read with section 34 I.P.C.

Sentence awarded by trial court is not excessive and State has not filed appeal for enhancement of sentence.

In view of conclusion drawn above we find no justification for interference in impugned judgement and order of trial court. Appeal has no merit and is liable to be dismissed.

Appeal is dismissed accordingly.

Surviving accused appellants Bhoorey, Ram Bhajan and Kanhai are on bail. They shall surrender before the trial court for serving sentence within 30 days from the date of judgement of this Court, failing which trial court shall ensure their arrest and shall send them to jail for serving sentence in accordance with law.

Office is directed to send copy of judgement to trial court for securing compliance.

Lower court record shall be returned to the concerned court immediately.

 
Order Date :- 15.9.2014
 
RU
 
       (Hon. Akhtar Husain Khan,J)               (Hon. Arun Tandon,J)
 

 

 

 

 

 

 

 

 
Case :- CRIMINAL APPEAL No. - 141 of 1995
 
Appellant :- Ram Pratap & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- G.P. Dikshit,Padmakar Pandey,S.K.Srivastava
 
Counsel for Respondent :- .../Govt. Advocate
 

 
Hon'ble Arun Tandon,J.
 
Hon'ble Akhtar Husain Khan,J.
 
 	Dismissed. 
 
	For orders see our order of date passed on the separate sheets. 
 
Order Date :- 15.9.2014
 
RU
 
       (Hon. Akhtar Husain Khan,J)               (Hon. Arun Tandon,J)

Unlock Advanced Research with PRISMAI

Allahabad High Court