Ramachal & Another vs State Of U.P. on 8 November, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

RESERVED

A.F.R.

Case :- CRIMINAL APPEAL No. – 165 of 1996

Appellant :- Ramachal Another

Respondent :- State Of U.P.

Counsel for Appellant :- A.Srivastava,J.P. Yadav,S P Tewari,Sangam Lal Pandey

Counsel for Respondent :- Govt. Advocate

Hon’ble Virendra Kumar-II,J.

1. Heard Shri J. P. Yadav, learned counsel for appellant and Shri A. A. Siddiqui, learned AGA for the State.

2. This appeal has been preferred against the judgment and order dated 12.03.1996 delivered by learned Additional Sessions Judge-II, Bahriach in Session Trial No. 48 of 1992, State of U.P. Vs. Ramachal and another, whereby the appellants Ramachal and Hussaini (since dead) have been convicted and sentenced to undergo RI for seven years under Section 304 read with Section 34 IPC and RI for six months under Section 323 read with Section 34 IPC. Fine of Rs.3,000/- has also been imposed on each of the two appellants along with default stipulation to serve additional sentence for six months.

3. Appellant No.2-Hussaini has expired during pendency of this appeal and this appeal has been abated against this appellant vide order dated 12.02.2014.

4. Learned counsel for the appellant-Ramachal has argued this appeal, only.

5. It is pleaded in the grounds of appeal that learned Trial Court has ignored this fact that witnesses were highly interested and partisan witnesses. They were having enmity with the appellant. It is also contended that evidence of injured witnesses was doubtful, as his presence on the spot was suspicious. Learned Trial Court has ignored and overlooked the defence case, which was corroborated by the statement of P.W.2. P.W.3 witness was having defective eyesight. Presence of source of light was extremely doubtful at the place of occurrence, and at the time of incident, which was occurred in the night. P.W.2 did not sustain any injury, whereas his father and brother were allegedly assaulted and thrashed by the appellants. The Trial Court has recorded incorrect findings regarding common intention of appellants to commit the incident. The findings recorded regarding intention of the accused/ appellant for commission of this act, was not proved. The Trial Court has recorded perverse findings. The impugned judgment and findings are based on surmises and conjectures. No case could be made out against the appellants on the basis of evidence available on record. The impugned judgment is not sustainable on the facts or law. On the abovementioned facts and circumstances, it is also pleaded that sentence awarded to the appellants is too severe. The conviction, sentence and fine awarded to the appellants be set aside.

6. I have perused the record of Session Trial No. 48 of 1992, State Vs. Ramachal and another, under Sections 304, 323, 504 IPC of Police Station Gilola, District Bahraich.

7. As per prosecution version, P.W.1-Ram Tej, complainant, submitted written report on 10.01.1991 at Police Station Kotwali Gilola, District Bahraich. On the basis of this written report, Crime No. 3 of 1991, under Sections 304, 323, 504 IPC was registered on 10.01.1991 at 21:15 at Police Station Gilola, District Bahraich.

8. It has been mentioned in the written report by the complainant that on 10.01.1991 at about 9-10 p.m. at night, appellant Ramachal and Hussaini (since dead) abused his father, who raised objections then both the accused persons assaulted him with stick and cane (lathi-danda). The complainant and his brother Kunwarey reached at the place of occurrence. Both the accused persons assaulted his father Shri Nankau and brother Kunwarey and fled away. Witnesses, Hemraj, Rampheran and other villagers saw the incident. His father and brother were brought by vehicle at Bahraich Hospital. At about 1:00 a.m. at night on 09/10.01.1991 Shri Nankau expired, his dead body was kept at hospital and the complainant lodged this written report at police station.

9. The Investigating Officer prepared inquest report and dead body of Shri Nankau was sent for postmortem alongwith other papers required for postmortem.

10. The Investigating Officer collected simple/ plain and blood stained sand from place of occurrence and prepared recovery memo (Ex.Ka.-8) on 11.01.1991. He collected source of light, Dibri, and prepared recovery memo (E.Ka.-9). He visited on 11.01.1991 itself place of occurrence and prepared site plan (Ex.Ka.-7).

11. The deceased Nankau and injured Kunwarey were medically examined on 09.01.1991 by E.M.O. of District Hospital, Bahraich and autopsy was conducted of the corpse of Nankau and postmortem (Ex.Ka.-2) was prepared by the concerned doctor. He had also recorded statements of witnesses. After conclusion of investigation, the Investigating Officer submitted charge sheet (Ex.Ka.-12) in the court concerned.

12. After committal from the Magistrate Court of this case to the Sessions Judge, Bahraich, the Trial Court framed charges against the appellants Ramachal and Hussaini (since dead) on 12.04.1993 for the offences punishable under Sections 304 read with Section 34 IPC, 323 read with Section 34 IPC and Section 504 IPC. The appellant and co-accused pleaded not guilty and claimed to be tried.

13. The prosecution examined P.W.1-Ramtej (complainant), P.W.2-Ram Kunwarey (injured), independent witness P.W.3-Hemraj, P.W.4-Dr. R. S. Dixit, who conducted autopsy on 10.01.1991 of the corpse of the deceased, P.W.5-Constable Gograj Pandey, who prepared Chik FIR and GD of registration of this crime, P.W.6-Dr. J. N. Misra, P.W.7-Shri Awadhram Mishra, pharmacist and P.W.8-Shivratan Singh, Inspector, CBCID/Investigating Officer. These witnesses have proved the above mentioned documents.

14. The statement of appellant Ramachal and co-accused Hussaini were recorded on 13.11.1995 under Section 313 Cr.P.C. They stated that due to enmity with Shri Ramlal, who is brother-in-law (Sadhu) of the complainant-Ramtej, they have falsely been implicated in this crime. Co-accused Hussaini had stated that he is real brother of Ramachal, therefore, he has been implicated in this crime. He further stated that the deceased had fallen down in the state of intoxication and sustained injuries.

15. The appellant and accused Hussaini (since dead) have not adduced any defence evidence. Learned Trial Court, after hearing both the parties has convicted the appellant along with the co-accused and passed the above mentioned sentence.

16. Learned counsel for the appellant has argued that for invocation of provisions of Section 34 IPC it is essential that there should two or more accused. Two factors must be established; (i) common intention and (ii) participation of accused in the crime of an offence. If a common intention is proved, but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability. But if participation of accused in the crime is proved and a common intention is absent, Section 34 cannot invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case. Learned counsel has relied upon Jai Bhagwan and other Vs. State of Haryana : (1999) 3 SCC 102.

17. Hon’ble Supreme Court in para-10 has observed as mentioned above.

18. It is argued by the learned counsel for the appellant that prosecution was unable to prove this fact that appellant was having common intention with the co-accused Hussaini (since dead). It is further argued that prosecution has not proved this fact that appellant and co-accused, in which circumstances abused the deceased Nankau, what was the reasons/ motive for committing this crime. Learned counsel has submitted that there are contradictions in the statements of witnesses, P.W.1, P.W.2 and P.W.3, who were the relatives to each other and they are highly interested witnesses. The appellant has falsely been implicated on the basis of enmity of Ramlal, brother-in-law (Sadhu) of the complainant-P.W.1. P.W.1 has lodged the FIR against the appellant and co-accused with consultation and deliberations of Ramlal.

19. As far as it is argued that Section 34 IPC could not be invoked by the Trial Court, the following case laws are also relevant in the facts and circumstances of this case.

Hon’ble Supreme Court in State of U.P. Vs. Ganga Ram and others : 2006 (1) ALJ 298 SC has observed as under:

“16. Learned Counsel for the respondents submitted that in any event the two accused namely Raghubir and Lal Singh, who have been described as actual assailants, have expired and no active part has been attributed to the appellants namely Ganga Ram and Rajendra Singh, they are entitled to be acquitted. In this connection, learned counsel has relied upon the decision of this Court rendered in Mithu Singh Vs. State of Punjab, (2001) 4 SCC 193, where this Court has held that to substantiate a charge under Section 302 with the aid of Section 34 it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of both. An inference as to the intention shall have to be drawn from the acts or conduct of the accused or other relevant circumstances, as available. No quarrel over the proposition of Law.

17. Reliance has also been placed on the decision of this Court rendered in State of Rajasthan vs. Kishan Singh Ors., (2002) 10 SCC 160, where this Court has held that two of the accused were also tried for substantive offence under Section 302 and the Trial Court acquitted the two accused who were tried for substantive offence under Section 302 and convicted the remaining three under Section 302 with the aid of Section 34. It was held that since the charge on substantive offence under Section 302 has not been established, the conviction of the other accused under Section 302 read with 34 was not maintainable. In our view, the aforesaid decisions cited by the learned counsel are of no help to the accused. This submission, in our view, is totally misconceived. In the present case, the conviction recorded by the Trial Court was under Section 302 with the aid of Section 34. The two accused armed with country made pistols accompanied the other accused armed with SBBL gun and DBBL gun respectively went to the place of occurrence, way laid the deceased and party and attacked the deceased. It cannot be said that they accompanied the other accused as an idle curiosity. The aforesaid circumstances, would clearly infer the intention of the present two accused for committing an offence in furtherance of common intention. Their conviction under Section 302 with the aid of Section 34 cannot be said to be unjustified.”

Hon’ble Supreme Court in the case of Harbans Kaur Vs. State of Haryana : 2005 SCC (Crl.) 1213 has observed as under:

Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

As it originally stood the Section 34 was in the following terms:

“When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone.”

In 1870, it was amended by the insertion of the words “in furtherance of the common intention of all” after the word “persons” and before the word “each”, so as to make the object of Section 34 clear. This position was noted in Mahbub Shah v. Emperor (AIR 1945 Privy Council 118).

The Section does not say “the common intention of all”, nor does it say “and intention common to all”. Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.

The above position was highlighted recently Anil Sharma and Others v. State of Jharkhand [2004 (5) SCC 679].

If the factual scenario as noted above is considered in the background of legal principles set out above, the inevitable conclusion is that Section 34 has been rightly applied.”

Hon’ble Supreme Court in the case of Israr Vs. State of UP, : 2005 SCC (Crl.) 1260 has observed as follows:

Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab, AIR 1977 SC 109, the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

As it originally stood the Section 34 was in the following terms:

“When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone.”

In 1870, it was amended by the insertion of the words “in furterance of the common intention of all” after the word “persons” and before the word “each”, so as to make the object of Section 34 clear. This position was noted in Mahbub Shah v. Emperor, AIR (1945) Privy Council 118.

The Section does not say “the common intention of all”, nor does it say “and intention common to all”. Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh, AIR (1993) SC 1899, Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused. The above position was highlighted recently in Anil Sharma and Ors. v. Stale of Jharkahand, [2004] 5 SCC 679.

in Abrahim Sheikh Ors. v. State of West Bengal, AIR (1964) SC 1263 this Court stated that no doubt a person is only responsible ordinarily for what he does and Section 38 IPC ensures that. But Section 34 as well and Section 35 provided that if the criminal act is the result of the common intention, then every person who did the criminal act with such intention would be responsible for the total offence irrespective of the share which he had in its perpetration. The logic, highlighted illuminatingty by the Judicial Committee in the illustrious case of Barendra Kumar Ghosh v. Emperor, AIR (1925) PC1, is that in crimes as in other things “they also serve who only stand and wait”.

Section 34 has, therefore, been rightly applied.

In view of the legal and factual position noted above, the irresistible conclusion is that the accused appellant ha been rightly held guilty and convicted. There is no merit in this appeal which is accordingly dismissed.”

Hon’ble Supreme Court in State of Madhya Pradesh Vs. Deshraj, AIR : 2004 (3) SC 2764 has observed as under:

Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

The Section does not say “the common intention of all”, nor does it say “and intention common to all”. Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.”

In case of Ramcharanreddy Chennareddy Vs. State of A.P. :AIR 1999 SC 994, it is held by Hon’ble Supreme Court that if all accused took part in occurrence armed with sickle, battle, excess daggors and sticks and they mercilessly assaulted victim, all accused persons shall be liable for offence committed by them.

In case of Charan Singh Vs. State of Punjab, AIR 1998 SC 323, Hon’ble Supreme Court has held that if all accused persons were waiting for complainant and have taken active part in occurrence all persons shall be liable.

Hon’ble Supreme Court in Amrik Singh Vs. State of Punjab : 1999 Crl.L.J. 463 has observed as under:

“2. However, it was contended by the learned Counsel for the appellant that the three eye witnesses had not specifically stated before the police when their statements were recorded under Section 161 Cr.P.C. that Amrik Singh had given the fatal blow to the deceased. Merely because the witnesses haver not specifically stated which blow was given by which accused their evidence cannot be discarded if it is found to be otherwise reliable. The eye-witnesses had received injuries during this very incident; and therefore, their presence at the time of the incident has to be believed. They have specifically stated that after reaching the spot on hearing cries, they had prevented the accused from giving further blows to Manna Singh. With respect to this part of their evidence, they were not contradicted by their police statements. Therefore, there can be no doubt regarding their having seen the blows given by the appellant merely because they had not specifically referred to them in their police statements. The Courts below have thought it fit to believe the evidence against Amrik Singh and we see no reason to differ from the finding recorded in that behalf.

3. As we find no substance in this appeal, it is dismissed.”

Hon’ble Supreme Court in the case of Hari Ram Vs. State of U.P. : (2004) 8 SCC 146 has observed as under:

“10. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

11. As it originally stood the Section 34 was in the following terms:

“34. When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone.”

In 1870, it was amended by the insertion of the words “in furtherance of the common intention of all” after the word “persons” and before the word “each”, so as to make the object of Section 34 clear. This position was noted in Mahbub Shah v. Emperor (AIR 1945 Privy Council 118).

The Section does not say “the common intention of all”, nor does it say “and intention common to all”. Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.

The above position was highlighted recently Anil Sharma and Others v. State of Jharkhand [2004 (5) SCC 679].

Section 34 IPC has clear application to the facts of the case and has been rightly applied.

Hon’ble Supreme Court in Surendra Chauhan Vs. State of Madhya Pradesh : 2000 Cri.L.J. 1789 has observed as follows:

“10. It is contended that Chauhan could not be convicted with the aid of Section 34 IPC. Section 34 IPC is as under: –

“34. Acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”

11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. {Ramaswami Ayhangar Ors. vs. State of Tamil Nadu [(1976) 3 SCC 779]}. The existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. {Rajesh Govind Jagesha vs. State of Maharashtra [(1999) 8 SCC 428]}. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (I) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.

12.There is concurrent finding that Sharma with intent to cause the miscarriage of Alpana with child by his act caused her death and the act was done in furtherance of the common intention of Chauhan. He has thus been rightly convicted under Section 314/34 IPC.”

20. For appreciating the evidence of prosecution regarding common intention evidence of P.W.1, P.W.2 and P.W.3 witness of facts would be analyze and assessed for cross checking the findings recorded by the Trial Court.

21. I have perused the statements of P.W.1, P.W.2 and P.W.3. It is stated by P.W.1 in his examination in chief that appellant Ramachal along with co-accused Hussaini, his real brother, abused their father Nankau, their father raised objections for not to abuse him, then the accused persons assaulted their father with lathi/stick. P.W.1 and P.W.2 reached at the place of occurrence along with the witness P.W.3, Hemraj and Rampheran and other villagers. When they tried to save Nankau, accused persons also assaulted P.W.2-Ram Kunwarey with sticks (lathi-danda). The deceased Nankau and P.W.2-Ram Kunwarey sustained injuries and they fell unconscious.

22. P.W.1 and P.W.2 have also proved this fact that deceased Nankau and P.W.2-injured were shifted by a Jeep which was owned by Sugar Mill and admitted at Civil Hospital, Bahraich. During treatment Shri Nankau expired at about 1:00 a.m. in the intervening night of 9/10.01.1991. They have also proved this fact that on 09.01.1991 at about 9:00 to 10:00 p.m. this incident was committed by the appellant and the co-accused Hussaini (since dead).

23. P.W.1-complainant has proved written report (Ex.Ka.-1) by stating that Ramlal wrote this FIR on his dictation and he had put his thumb impression on it. He has stated in his examination in chief and cross examination that there was source of light of Dibri at the time of incident.

24. Learned counsel for the appellant has submitted that availability of source of light has not been mentioned in the written report submitted by P.W.1. It is relevant to mention here that each and every minute details of facts and circumstances of the incident are not required to be mentioned in the FIR. The following case law is relevant on the point.

In the case of State of Punjab vs. Gurmit Singh others reported in 1996 SCC (2) 384 the Hon’ble Supreme Court has held as under:-

“………Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how car that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. Trial Court fell in error for discrediting the testimony of the prosecutrix on that account………..

……….In our opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but in the facts and circumstances of the case was also natural. The courts cannot over-look the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged……..

……….The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl of a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused………”

On perusal of this exposition of law, it reveal that Hon’ble Supreme Court has dealt with these important facts (1) Delay in lodging F.I.R. (2) Faults and deficiencies committed by the Investigating Officer (3) Sole victim/ injured witness and requirement of corroboration and effect of these facts on prosecution version/ case. It is held that prosecution case cannot be discarded if evidence of witnesses produced by prosecution is reliable, credible and inspires confidence. Therefore, evidence of PW-1, PW-2 and P.W.3 would be assessed accordingly. Although this case law relates to offence of rape, but it enunciate the above mentioned three law points.

The Hon’ble Supreme Court in case of Ponu Samy Vs. State of Tamilnadu reported at (2008) 5 SCC 587 (c), has held that police Apathey and village women’s endeavour, social condition of complainant can be taken into account while considering delay in lodging F.I.R.

In case of Vishwanathan Vs. State reported at (2008) 5 SCC 354, Hon’ble Supreme Court held that prosecution case should not be thrown out on ground of delay other factors like trauma suffered by victim, sociological factors alongwith other evidence should be taken into consideration.

In case of Animireddy Venkatramana Vs. Public Prosecutor High Court A.P. reported (2008) 5 SCC 368 (f d), the Hon’ble Supreme Court held that discrepancies in F.I.R. merely because case against some accused named in it could not be established or some inquiries were made to ascertain truth of incident prosecution case cannot be discarded. F.I.R. need not be encyclopedic, each and every detail need not to be stated in it. Court has to ascertain about possibility of false implication of accused. It is also observed that probable, physical and mental condition of informant is relevant.

In case of Darshan Singh and others Vs. State of Punjab reported at AIR 1983 SC 554, the Hon’ble Supreme Court held that the fact that the names of some accused are not mentioned in the FIR is a circumstance which the prosecution has to explain, though, no rule of law stipulates that an accused whose name is not mentioned in the FIR is entitled to acquittal.

Eqbal Baig Vs. State of A.P. reported at AIR 1987 SC 923, the Supreme Court held that non-mention of name of accused in FIR and inquest report by witness not a ground for rejecting his evidence.

In case of Betal Singh Vs. State of M.P. reported at 1996 Crl.J. page 4006 (SC), Babu Singh Vs. State of Punjab 1996 (33) ACC 474 SC Baldev Singh Vs. State of Punjab 1995 ACC 752 (SC) Bijay Singh Vs. State of Bihar 2003 SCC (Crl.) 1093, Hon’ble Supreme Court in these cases has held that mention of few facts or vague facts or if detailed particulars of occurrence are not mentioned in the FIR, then minute details of occurrence is not required as FIR is not encyclopedia of occurrence. In case of Bijay Singh (supra), it is also held that FIR is not substantive piece of evidence of occurrence.

In case of Raghbir Singh Vs. State of Haryana reported at 2000 CRLJ 2463 (SC), the Hon’ble Supreme court has held that if injured was sent to hospital for treatment first, then FIR was lodged then delay is very well explained and it will not affect prosecution adversely.

In case of Bhaskaran Vs. State of Kerala reported at 1998 (9) SCC 12/AIR 1998 SC 476, the Hon’ble Supreme court has held that distance of police station from place of occurrence was 15 km in this case. No conveyance was available. FIR was lodged after 24 hrs. In these circumstances, it was held that evidence of eye witness cannot be disbelieved on the ground that they made no attempt to save the deceased from attack. Investigating Officer had not seized the torch source of light. The evidence of eye witness was not discarded.

Hon’ble Supreme Court in case of Ravinder Kumar and Anr. vs. State of Punjab reported at AIR 2001 SC 3570 observed as under :-

……The attack on the prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. OF course a prompt and immediate lodging of the FIR is the ideal as that would given the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.

….. When there in criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of uncoversantness is not too uncommon among urban people also. They might not immediately think of going as the police station. Another possibility is due to lack to adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or seductiveness of temper of moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident.

…… We are not providing an exhausting catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point cut that the stale demand made in the criminal courts the treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the cause for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the merely delay in lodging the FIR. [Vide Zahoor vs. State of UP (1991 Suppl. (1) SCC 372; Tara Singh vs . State of Punjab MANU/SC/0016/1991 : AIR1991SC63 ; Jamna vs. State of UP MANU/SC/0022/1994 : 1994 (1) SCC 185. In Tara Singh (Supra) the Court made the following observations: “It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report.”

….. We are not providing an exhausting catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point cut that the stale demand made in the criminal courts the treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the cause for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the merely delay in lodging the FIR. [Vide Zahoor vs. State of UP (1991 Suppl. (1) SCC 372; Tara Singh vs . State of Punjab MANU/SC/0016/1991 : AIR1991SC63 ; Jamna vs. State of UP MANU/SC/0022/1994 : 1994 (1) SCC 185. In Tara Singh (Supra) the Court made the following observations: “It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report.”

It is further observed that :-

…… The third contention is that the motive alleged by the prosecution was not established and hence the area remains gray as to what would have impelled them to liquidate the broker. No doubt it is the allegation of the prosecution that appellants owed a sum of Rs. one lakh to the deceased and it might not have been possible for the prosecution to prove that aspect to the hilt. Nonetheless some materials were produced for showing that three were transactions between the appellants and the deceased and that they had some account to be settled. Only thus far could be established but not further. It is generally an impossible task for the prosecution to prove what precisely would have impelled the murderers to kill a particular person. All that prosecution in many cases could point to is the possible mental element which could have ben the cause for the murder. In this connection we deem it useful to refer to the observation of this Court in State of Himachal Pradesh vs. Jeet Singh MANU/SC/0165/1999 : 1999CriLJ2025 : “No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such as degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended.”

Hon’ble the Supreme Court in the case of Mukesh and others Vs. State of NCT of Delhi and others reported in (2017) 6 SCC 1 has observed as under:

According to Hon’ble Mr. Justice Dipak Mishra for himself (presently Hon’ble C.J.I.) and Hon’ble Mr. Justice Ashok Bhushan held in paragraph nos. 49, 53, 55, 56 and 57 regarding delay in lodging F.I.R. in cases of offence committed against women and other victims as follows :-

49. Delay in setting the law into motion by lodging of complaint in court or FIR at police station is normally viewed by courts with suspicion because there is possibility of concoction of evidence against an accused. Therefore, it becomes necessary for the prosecution to satisfactorily explain the delay. Whether the delay is so long as to throw a cloud of suspicion on the case of the prosecution would depend upon a variety of factors. Even a long delay can be condoned if the informant has no motive for implicating the accused.

53. In State of Himachal Pradesh v. Rakesh Kumar (2009) 6 SCC 308, the Court repelled the submission pertaining to delay in lodging of the FIR on the ground that the first endeavour is always to take the person to the hospital immediately so as to provide him medical treatment and only thereafter report the incident to the police. The Court in the said case further held that every minute was precious and, therefore, it is natural that the witnesses accompanying the deceased first tried to take him to the hospital so as to enable him to get immediate medical treatment. Such action was definitely in accordance with normal human conduct and psychology. When their efforts failed and the deceased died they immediately reported the incident to the police. The Court, under the said circumstances ruled that in fact, it was a case of quick reporting to the police.

Judged on the anvil of the aforesaid decisions, we have no hesitation in arriving at the conclusion that there was no delay in lodging of the FIR.

55. As far as the argument that the FIR does not contain the names of all the accused persons is concerned, it has to be kept in mind that it is settled law that FIR is not an encyclopedia of facts and it is not expected from a victim to give details of the incident either in the FIR or in the brief history given to the doctors. FIR is not an encyclopedia which is expected to contain all the details of the prosecution case; it may be sufficient if the broad facts of the prosecution case alone appear. If any overt act is attributed to a particular accused among the assailants, it must be given greater assurance. In this context, reference to certain authorities would be fruitful.

56. In Rattan Singh v. State of H.P. (1997) 4 SCC 161, the Court, while repelling the submission for accepting the view of the trial court took note of the fact that there had been omission of the details and observed that the criminal courts should not be fastidious with mere omissions in the first information statement since such statements can neither be expected to be a chronicle of every detail of what happened nor expected to contain an exhaustive catalogue of the events which took place. The person who furnishes the first information to the authorities might be fresh with the facts but he need not necessarily have the skill or ability to reproduce details of the entire story without anything missing therefrom. Some may miss even important details in a narration. Quite often, the police officer, who takes down the first information, would record what the informant conveys to him without resorting to any elicitatory exercise. It is voluntary narrative of the informant without interrogation which usually goes into such statement and hence, any omission therein has to be considered along with the other evidence to determine whether the fact so omitted never happened at all. The Court also referred to the principles stated in Pedda Narayana v. State of A.P. (1975) 4 SCC 153; Sone Lal v. State of U.P. (1978) 4 SCC 302; Gurnam Kaur v. Bakshish Singh 1980 Supp SCC 567.

57. In State of Uttar Pradesh v. Naresh and Ors (2011) 4 SCC 324, reiterating the principle, the Court opined that it is settled legal proposition that FIR is not an encyclopedia of the entire case. It may not and need not contain all the details. Naming of the accused therein may be important but not naming of the accused in FIR may not be a ground to doubt the contents thereof in case the statement of the witness is found to be trustworthy. The court has to determine after examining the entire factual scenario whether a person has participated in the crime or has been falsely implicated. The informant fully acquainted with the facts may lack necessary skill or ability to reproduce details of the entire incident without anything missing from the same. Some people may miss even the most important details in narration. Therefore, in case the informant fails to name a particular accused in the FIR, this ground alone cannot tilt the balance of the case in favour of the accused. For the aforesaid purpose reliance was placed upon Rotash v. State of Rajasthan (2006) 12 SCC 64 and Ranjit Singh v. State of M.P. (2011) 4 SCC 336.”

25. On the basis of exposition of law, propounded by Hon’ble Surpeme Court, the contention putforth on behalf of appellant regarding delay in lodging F.I.R. is immaterial and not fatal for the prosecution.

26. P.W.1 has stated in his cross examination that he had put his thumb impression on written report on the top as instructed by Ramlal. On perusal of written report (Ex.Ka.-1) it reveals that thumb impression of P.W.1 is available on the top of Tahrir. It may be possible that as on the bottom of the written report, there is no space available for putting thumb impression, therefore, P.W.1 had put his thumb impression on the top as stated by him. There is no substance in the argument of the learned counsel that this thumb impression was put afterwards with consultation and deliberations. This argument is also not acceptable that written report (Ex.Ka.-1) was not lodged by P.W.1.

27. During his cross examination, P.W.1 has disclosed this fact that the appellant and his brother were his next door neighbour, their Kaccha house situated next to his Pakka house. He has stated that P.W.2-Kunwarey and Prakash are his real brother, and Rampheran, Hemraj, Badelal, Budhai and Gurra are his cousins. During his cross examination he has stated that Kunwarey, Rampheran, Hemraj and he are the witnesses of this incident. He has refuted the suggestion that accused persons were having dispute with Nankau-deceased about smokes emanated from stove (Chulha), in which woods were used. Deceased often having altercation with accused persons. On the other hand, it is relevant to mention here that no such defence evidence has been adduced on behalf of appellant that there was such altercation occurred previously between father of P.W.1 and P.W.2 and the accused persons. Therefore, this suggestion is of no avail for the appellant that accused persons were falsely implicated in this crime on the basis of this dispute.

28. Learned counsel for the appellant has argued that P.W.1 and P.W.2 could not prove the reason or motive why appellant/ accused persons were abusing Nankau on the date of incident, whereas there was no old enmity between the parties.

Hon’ble Supreme Court regarding motive has propounded following case laws:-

Hon’ble Supreme Court (Division Bench) in the case of State of U.P. vs. Babu Ram reported in 2000 Cri. L. J. 2457 in para-11 has observed as follows:-

“11. We are unable to occur with the legal proposition adumbrated in the impugned judgment that motive may not be very much material cases depending on direct evidence whereas motive is material only when the case depends upon circumstantial evidence. There is no legal warrant for making such a hiatus in criminal cases as for the motive for committing the crime. Motive is a relevant factor in all criminal cases whether based on the testimony of eye witnesses or circumstantial evidence. The question in this regard is whether a prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No doubt, if the prosecution proves the existence of a motive it would be well and good for it, particularly in a case depending on circumstantial evidence, for, such motive could then be counted as one of the circumstances. However, if cannot be forgotten that it is generally a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the Investigating Officer would have succeeded in knowing it through interrogations that cannot be put in evidence by them due to the ban imposed by law.”

Hon’ble Supreme Court in the case of State of M.P. through C.B.I and others vs. Paltan Mallah and others reported in (2005) 3 SCC 169 in para-9 has held as under:-

“9. The Sessions Judge relied on various items of evidence to prove that there was a deep-rooted conspiracy among the accused to murder the deceased Shankar Guha Niyogi. In order to prove the conspiracy, the Sessions Judge relied on certain circumstances. One of the circumstances relied on is that A-1, A-4, A-5 and A-7 had a strong motive to do away with deceased Shankar Guha Niyagi. Motive by itself is not sufficient to prove the guilt of the accused. However, the prosecution adduced extensive evidence to show that A-1, A-4, A-5 and A-7 were owners of certain industries at Durg and the trade union activities of deceased Niyogi created a lot of problems in running their business and cause loss to these industries. M/S Simplex is one of the factories referred to by the witnesses for the prosecution. Several witnesses were examined to prove that Simplex and Kedia Distilleries were acting against the interests of the workers and there were a series of agitations by the workers against he factory-owners. Evidence was also adduced to show that some workers were retrenched from Simplex and the agitating workers wanted the reinstatement of the retrenched workers. Some of the witnesses examined by the prosecution turned hostile and did not support this version. The overall evidence given by the prosecution only show that some agitation had been going on against the management of these industries and the deceased Niyogi was spearheading many of these agitations. This by itself would not prove the prosecution was of conspiracy.’

Evidence of witnesses is being assessed in light of exposition of law mentioned above.

29. P.W.1, during his cross examination, has specifically stated that his father raised alarm during occurrence of incident. He rushed to the place of occurrence and found that accused persons were assaulting him. They also assaulted the deceased, even then he had fallen down and became unconscious. He has also stated that accused persons were assaulting the deceased, his father, with sticks. He could not count number of sticks struck on the body of his father. He has denied this fact that a bullock cart was parked near the door of his house or some heap of bricks was lying there.

30. P.W.1 has also specifically stated that his father did not scream like, “Uthao hum mar gayin”. He has also disclosed this fact that Sugar Mill was being constructed by another party, but Jeep used by them (P.W.1) was owned by previous owners who were constructing the sugar mill. P.W.1 during his cross examination has also refuted this suggestion that his father was in the state of intoxication and he had fallen down from the roof of his house on the heap of bricks and sustained injures. He also refuted the assertion that he has falsely implicated the accused persons/ appellant with consultation and deliberation of Ramlal, his brother-in-law. No material contradiction was elicited during cross examination of P.W.1, so that any benefit could be extended to the appellant.

31. Learned counsel for the appellant has vehemently argued that during his cross examination, P.W.2, injured, Ram Kunwarey has accepted that when he reached at the place of occurrence, 100 to 200 villagers gathered there. It is relevant to mention here that P.W.2 injured has specifically stated in his examination in chief that when appellant and his brother abused his father Nankau, he reached along with P.W.1-Ramtej and P.W.3-Hemraj and Rampheran and other villagers. He tried to save his father, then appellant and co-accused assaulted him with sticks(lathi-danda). He sustained injuries in his hand and right thumb. His father also sustained injuries in his head and legs and fell down and became unconscious. When villagers gathered at the place of occurrence appellant and co-accused fled away.

32. Therefore, he reached on the screams of his father at the place of occurrence along with P.W.1, P.W.3, Rampheran and other villagers. In his examination-in-chief he has specifically stated that he and his father were medically examined at Civil Hospital, Bahraich, where his father expired at 1:00 a.m. on the same day, intermittent night of 9/10.01.1991. He has further stated that incident took place in front of his house, where source of light was Dibri. He has further stated that where his father fell down his blood was available on the place of occurrence. He has denied this fact in his cross examination that they reached at Civil Hospital, Bahraich by bullock cart at Railway Station from the place of occurrence, then by train. He has stated that he became unconscious after this incident. He gained consciousness at hospital.

33. He has refuted the suggestion put forth by learned counsel for the defence that after hearing screams/ alarm raised by his father he and other witnesses rushed to the place of occurrence in darkness of night and thrashed with some Ladiya and sustained injuries. He has refuted the assertion that accused persons/ appellant has falsely been implicated due to old enmity of Ramlal, who is his brother-in-law. He has also refuted this assertion that accused persons had not assaulted his father, he was in the state of intoxication and fell down from the roof of the house on the heap of bricks and sustained injuries.

34. He has clarified this fact that he, complainant-Ramtej, P.W.1, witnesses Rampheran and Hemraj were sitting and talking in the courtyard of the house, from where they reached at the place of occurrence. After appreciation of statement, examination-in-chief and cross examination of P.W.2 it reveal that he reached at the place of occurrence along with P.W.1 and P.W.3, witness Rampheran and villagers on hearing screams of his father and tried to save him. During course of incident appellant and accused assaulted him also with sticks by which he sustained injuries.

35. Therefore, statement of P.W.2 made in cross examination that when he along with other witnesses came out from house 100 to 200 villagers were present at the place of occurrence and they apprised them that his father sustained injuries from bricks and took him at hospital, then they brought his father at civil hospital, does not help the appellant, because P.W.2 is injured of the incident and sustained injuries during the incident, when he was trying to save his father.

36. Evidence of P.W.1 and P.W.2 are reliable, credible and inspires confidence. Although they are sons of deceased, they are natural witness of this crime. Accused persons/ appellant are next door neighbour of these witnesses, therefore, they might have reached at the place of occurrence instantly and immediately after hearing screams of their father and noise of abuse hurled by the appellant and his brother, co-accused.

37. Regarding interested witness, following case law is relevant:

Hon’ble Supreme Court (Division Bench) in the case of Shiv Ram and anr. vs. State of U.P. reported in (1998) 1 SCC 149, in para16 has observed as under:-

“16. …… The witnesses further admitted that many persons had gathered at the place of occurrence, if this be so it was very much necessary for the prosecution to examine some independent witnesses to lend assurance to the credibility of the evidence of these two eyewitnesses. These submissions do not impress us at all. nowadays it is a common tendency that no outsider would like to get involved in a criminal case much less in the crime of present magnitude and, therefore, it was quite natural that no independent witness would come forward to assist the prosecution. it is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons. All that is required in such a situation is that the court must scrutinize the evidence of such witnesses with utmost care and caution. The magnitude of the present crime and nature of prosecution evidence has put us on guard to appreciate the evidence of these two eye witnesses with utmost care and caution. We have done this exercise and we are unable to be persuaded to discard the evidence of these two witnesses on the grounds urged before us. The evidence of both these witnesses in our considered view is absolutely straightforward, unblemished and without any infirmity. The first information report which was lodged within four hours, naming all the accused also lends asurance to our conviction that the evidence of these two witnesses is trustworthy and cannot be discarded. The contentions of the learned counsel for the accused, therefore, stand rejected.”

Hon’ble Supreme Court in Nirmal Singh and another Vs. State of Bihar reported in (2005)9SCC725

…..With these facts in the background, we have to consider whether the ocular testimony of Pws. 1, 3, 4, 5, 6, 8 11 should be discarded. It is no doubt true that the eye witnesses are related to each other but that is to be expected since the occurrence took place in the dalan of the house of the deceased. The evidence of the eye witnesses does not suffer from any infirmity, and appears to be convicting. No significant contradiction or infirmity has been brought to our notice.

In these circumstances, we do not feel persuaded to discard the case of the prosecution only on account of some infirmities which we have noticed earlier. There appears to be no reason why so many eye witnesses should falsely implicate the appellants, and there is in fact, nothing on record to suggest that the witnesses had any reason to falsely implicate them.

Hon’ble Supreme Court in the case of Hukum Singh and others Vs. State of Rajasthan reported in 2000 (7) SCC 490 has held as under:-

8. Bhupender Pal (PW. 4) and Ram Pyari (PW. 5) were the two eye witnesses examined by the prosecution. The fact that they were present at the scene of occurrence could not be disputed nor the same has been disputed by the accused. They sustained injuries at the hands of the assailants and the doctor who noted such injuries had testified about them in the Court as PW. 9. The version spoken to by PW. 4 in Court is substantially a reiteration of the version which he supplied to the police as early as 8.40 P.M. on the same night. That became the basis for the FIR. The Sessions Court refused to believe the testimony of those witnesses on the erroneous perception that they are “interested witnesses”. The only premise for dubbing them as “interested witnesses” is that they were the kith and kin of the deceased. Why should such witnesses be termed as interested witnesses? If they had seen the occurrence they would certainly have the interest to bring the offenders of the murder of their breadwinner to book Normally the kith and kin of the deceased, if they had seen the occurrence would not absolve the real offenders and involve innocent persons for that murder. [Vide Dalip Singh v. State of Punjab MANU/SC/0031/1953 : [1954]1SCR145 , Guli Chand v. State of Rajasthan MANU/SC/0107/1973 : 1974CriLJ331 and Dalbir Kaur v. State of Punjab MANU/SC/0144/1976 : 1977CriLJ273 ].

15. The situation in a case where the prosecution cited two categories of witnesses to the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the Public Prosecutor’s duty to the Court may require him to produce witnesses from the latter category also subject to his discretion to limit to one or two among them. But if the Public Prosecutor got reliable information that any one among that category would not support the prosecution version he is free to state in Court about that fact and skip that witness being examined as a prosecution witness. It is open to the defence to cite him and examine him as defence witness. The decision in this regard has to be taken by the Public Prosecutor in a fair manner. He can interview the witness before hand to enable him to know well in advance the stand which that particular person would be adopting when examined as a witness in Court.

Hon’ble Supreme Court in State of Rajasthan Vs. Hanuman reported in AIR 2001 SC 282 has held as under:-

The position is well settled that evidence of eye-witnesses cannot be discarded merely on the ground that they are relatives of the deceased. Normally close relatives of the deceased are not likely to falsely implicate a person in the incident leading to the death of the relative unless there are very strong and cogent reasons to accept such criticism.

Hon’ble Supreme Court in the case of Surendra Narain alias Munna Pandey vs. State of U.P. reported in AIR 1998 SC 192 has held as under:

22. Turning to the facts of this case, it is seen that PW 1 had mentioned the name of the accused in the FIR which was given within 15 minutes of the occurrence. The other two eye witnesses, PW 2 and PW 3 also knew the accused previously. The crucial factor is that the accused was related to the deceased as a son of his “Sala” and PW 1 was also related to the deceased. The accused had never denied the relationship. As the trial Judge has observed, “there is not a scintilla of evidence” that PW 1 had a grudge against the accused. There is also no evidence that the wife of the deceased had any enmity with the accused. She would not have allowed a false case to be foisted on her brother’s son. The accused was not traceable from 7.4.77 to 13.5.77. On the facts of the case, his application for the test identification parade on his surrender after such a long time does not appear to be bona fide. In any event, the evidence on record as accepted by the Courts below is sufficient to prove the guilt of the accused. Further the point does not seem to have been argued before the trial court or the High Court. On the facts of this case there is no doubt that the failure to hold a test identification parade in spite of an order passed by the Sessions Court is not fatal to the prosecution.

23. The second contention is without any merit. The evidence adduced by the prosecution is adequate to prove the charge. The non-examination of another person who was on the scene of occurrence does not make the evidence of PWs 1 to 3 unreliable. It is needless to point out that evidence has to be weighed and not counted.

Hon’ble Supreme Court in the case of Banti @ Guddu vs. State of Madhya Pradesh reported in AIR 2004 SC 261 has held as under:

10. Coming to the plea that the presence of PWs 1 and 2 at the spot of occurrence is doubtful, it is to be noticed that both PWs 1 and 2 were cross-examined at length. Nothing Infirm has been elicited to cast doubt on their veracity. If the lack of motive as pleaded by the accused appellants is a factor, at the same time it cannot be lost sight of that, there is no reason as to why PW-1 would falsely implicate the accused persons. There was no suggestion of any motive for such alleged false implication. Merely because PW-1 is a relation of the deceased, and PW-2 was known to him, that per se cannot be a ground to discard their evidence. Careful scrutiny has been done of their evidence and it has been found acceptable by both the trial Court and the High Court. We find no reason to take a different view.

Hon’ble Supreme Court in the case Periyasami vs. State of Tamil Nadu reported in (2014) 6 SCC 59, in which, in para-15 the following has been observed:

“15. At the outset, wee must deal with the submission that the prosecution has not examined any independent witnesses. It is common knowledge that when the terrorists unleash a way of terror, no independent witnesses are ready to come forward and depose against them. The prosecution case cannot be rejected on this ground. In any case, the evidence on record is cogent and reliable and, therefore, non-examination of independent witnesses does not have any adverse impact on the prosecution. We may also note that the evidence of defence witnesses does not inspire confidence and has rightly not been taken into consideration by the trial court. Pw-14 Chandra, wife of PW-15 Sevi Periyasamy turned hostile. Some other formal witnesses also turned hostile. Thus, however, has not affected the core of prosecution case which is established by reliable evidence. We shall now deal with the evidence which, in our opinion, bears out the prosecution case.”

38. Trial Court has appreciated and evaluated the evidence of P.W.1 and P.W.2 in correct perspective and discarded the suggestions put forth by the defence counsel that the deceased Nankau was in state of intoxication on the date of incident and fell down from the roof of the house on the heap of bricks kept outside near his house and sustained injuries, or appellant and co-accused were implicated due to old enmity of Ramlal. No defence evidence has been adduced on behalf of appellant regarding nature of old enmity with Ramlal. It is pertinent to mention here that Ramlal is not the resident of village of complainant and the appellant. Argument of learned counsel is not helpful for the appellant in this regard.

39. P.W.3-Hemraj has corroborated the evidence of P.W.1 and P.W.3 and narrated the facts and circumstances in which the appellant and his brother, co-accused, abused father of P.W.1 and P.W.2, the deceased Nankau and assaulted him with sticks. He has also proved this fact that he along with Rampheran, P.W.1 and P.W.2 reached at the place of occurrence. P.W.2 tried to save his father. Appellant and co-accused also assaulted Ram Kunwarey, P.W.2 with sticks(lathi-danda). He reached at the place of occurrence after hearing noises of abuses made by appellant/ accused persons. He has proved this fact that source of light was Dibri, kept outside Pakki Kothri of the complainant.

40. P.W.3 has stated that he and villagers intervened in the course of incident and brought Nankau and Kunwarey at the hospital at Bahraich by vehicle. Nankau expired at 1:00 a.m. at night. He has further stated that blood of Nankau was available on the place of occurrence. On page-2, during his cross examination, he has specifically stated that he is able to see things from a distance of 10-20-50 Kasi. The Presiding Officer of the Trial Court has also instructed him to see regulator of ceiling fans, which were situated at a distance of 15 feet, which were seen correctly by this witness. Therefore, it is not material that P.W.3 is unable to see from his right eye. He has specifically stated that he could clearly see the things from his left eye. Therefore, there is no substance in the argument of the learned counsel for the appellant that P.W.3 was unable to see the things due to ailment of his eyes due to chicken pox(Chechak).

41. P.W.3, during his cross examination at page-3, has stated that his house is located at a distance of 3 to 4 kassi from the house of Nankau (deceased). He heard noises at his house, when the appellant and his brother Husssaini were abusing Nankau (deceased) and were having altercation with him. He has stated that he does not know, why appellant and Hussaini were abusing Nankau. He has further stated heap of bricks was not available near the house of Nankau. Bullock cart was parked at a distance from his house. He has specifically stated that Nankau was not in the state of intoxication on the date of incident. He stated on his own that he was Bhagat.

42. During his cross examination, P.W.3 has disclosed this fact that when he reached at the place of occurrence nobody was there except Ramtej and Kunwarey. Presence of Kunwarey and Ramtej has been clarified by P.W.3 in his examination-in-chief also. He has further specifically stated in his cross examination that Ram Kunwarey and Ramtej were present at the place of occurrence, when he reached there. Ram Kunwarey tried to save his father, they left the deceased and then appellant and co-accused assaulted him also. Kunwarey fell down and became unconscious. He has stated that villagers were not there. 50 to 100 afterwards villagers reached at the place of occurrence after hearing noises.

43. P.W.3 has clarified this fact that accused persons/ appellant tried to assault with stick to Ramtej (P.W.1) but stick could not struck him. Likewise they were unable to slap him also. He has stated that when he scolded appellant and co-accused they fled away and entered their house, which is situated to next door of the house of complainant. He has proved that appellant and his brother are next door neighbours of the complainant.

44. P.W.3 during his cross examination has denied this fact that villagers did not apprise that Nankau sustained injuries by felling on the heap of bricks. On the other hand they told that Ramachal and Hussaini assaulted Nankau. He has disclosed this fact that Kunwarey and Nankau became unconscious and they were brought by Jeep at Civil Hospital, Bahraich. P.W.3 also accompanied the complainant for this purpose. He has refuted this suggestion put forth by the learned defence counsel that no such incident as stated by him took place and he is adducing evidence because he is nephew of the deceased. He has denied that any old enmity was between the parties. He has clarified that Ramlal, brother-in-law of Ramtej, P.W.1 came in the village after incident of his own.

45. Learned counsel for the appellant has argued that there is contradiction in the statements of P.W.1 and P.W.3 regarding this fact that Ramlal was called upon by P.W.1 or he reached in the village of complainant on his own as stated by P.W.3. Ramlal is the scribe of written report submitted by P.W.1, therefore, contradiction, indicated by the learned counsel for the appellant is minor contradiction, and is not material to extend any benefit to the appellant. Learned Trial Court has appreciated and evaluated the evidence of P.W.3 and accepted it being reliable, credible and inspired confidence.

46. Learned counsel for the appellant has further argued that injury reports of the deceased Nankau and injured P.W.2 Ram Kunwarey were not proved by the prosecution by producing Dr. Dhruv Nath. He has also submitted that injuries sustained by the deceased were not sufficient to cause his death. It is also argued that there is a delay in lodging of the FIR for about one day. Therefore, FIR of this case has been lodged with consultation and deliberations of Ramlal, who is the brother-in-law of the complainant P.W.1.

47. P.W.4, Dr. R. S. Dixit has conducted autopsy on the corpse of deceased on 10.01.1991. He has stated that the deceased Nankau expired on 09.01.1991 at 9:15 p.m. at District Hospital, Bahriach and his dead body was brought by Constable Arvind Kumar Singh and P.R.D. Sitaram of Kotwali Gilola, Bahraich. He found following ante mortem injures on his body:

“(i) lacerated wound of size 4 cm x 1 cm x bone deep on the top of the head 9 cm above from right ear underneath depressed fracture of right temporal and occipital bone.

(ii) Contusion of size 5 cm x 3 cm on the upper lid of right eye.

(iii) Lacerated wound of size 3 cm x 0.5 cm x bone deep on the left leg in front 6 cm below from the knee.

(iv) Contusion of size 12 cm x 6 cm on the back of left forearm just above the wrist.

(v) Contusion of size 10 cm x 5 cm on the left upper side of the abdomen 8 cm below from the left nipple.”

P.W.4 further stated that beneath injury No.1 there was hemotoma in brain and its membrane. He has proved cause of death due to coma as a result of head injury sustained by deceased.

48. P.W.4 has proved this fact that deceased could sustained injuries on 09.01.1991 at about 9-10 pm at night. He has specifically stated that injuries sustained by the deceased were sufficient in ordinary course of nature to cause his death. During his cross examination the learned defence counsel put forth suggestion, which was answered by P.W.4. He has stated that injury No.1 could be sustained by the deceased by falling down from the roof of the house on the bricks or bullock cart. Likewise, injury Nos. 2 to 5 could also be sustained in the like manner. But no defence evidence has been adduced by the appellant and co-accused that in which circumstance the deceased had fallen down in the state of intoxication from the roof of his house, on the alleged heap of bricks or bullock cart parked near to his house. Therefore, there is no substance in the argument of the learned counsel for the appellant that injury No.1 sustained by the deceased Nankau was not sufficient in ordinary course of nature to cause his death.

49. As far as it is argued that injury reports prepared at Civil Hospital, Bahraich were not proved by Dr. Dhruv Nath on behalf of prosecution, it is relevant to mention here that P.W.7-Shri Awadhram Mishra, pharmacist cum record keeper of District Hospital, Bahraich has proved this fact that Dr. Dhruv Nath as EMO of the hospital prepared the injury reports of the deceased Nankau and Kunwarey on 09.01.1991 and these injury reports are available in the medico legal register maintained at the hospital. Certified copies of these injury reports (Ex.Ka.-7 and 8) were proved and provided by P.W.7 on the basis of original medico legal register. P.W.7, during his cross examination, has disclosed this fact that Nankau and Kunwarey were brought at the hospital by their family members. Police did not bring these injured at hospital. No information was sent to the police station. These facts did not help the appellant in any way because injuries of Nankau proved by P.W.4 were also found by E.M.O. Dr. Dhruv Nath, which are as follows:

“(i) Bluish contusion on right eye of size 5 cm x 3 cm.

(ii) Lacerated wound of size 4 cm x 1 cm x bone deep on right side skull 11 cm above right ear. Bleeding was present.

(iii) Lacerated wound of size 2 cm x 0.5 cm x bone deep on left leg on front 7 cm below left knee joint. Bleeding was present.

(iv) Lacerated would of size 1 cm x 0.5 cm x muscle deep on front of left leg 2 cm below left knee joint.

(v) Abrasion of size 3 cm x 2 cm on front of left foot.”

Injury No.1 was kept under observation and referred to eye surgeon. Injury Nos.2 and 3 also kept under observation and referred to orthopedic surgeon. Injury Nos. 4 and 5 were found simple in nature.

50. Injury report of injured Kunwarey has also been provided by P.W.7 which was prepared by Dr. Dhruv Nath. The following injuries were found on the body of injured P.W.2:

“(i) Lacerated wound of size 2 cm x 1 cm x bone deep on left side forehead 2 cm above left eye brow. Bleeding was present.

(ii) Bluish contusion of size 5 cm x 3 cm on left eye.

(iii) Lacerated wound of size 1 cm x 0.3 cm on back of terminal phalanx of left thumb.”

Injury No.2 was kept under observation. Injury Nos. 1 and 3 were found simple in nature. Injury No.2 was referred to eye surgeon for expert opinion.

51. Therefore, non examination of Dr. Dhruv Nath is not fatal for prosecution.

52. Learned Trial Court has recorded the finding that evidence of P.W.1, P.W.2 and P.W.3 are corroborated by the medical evidence adduced by P.W.4, Dr. R. S. Dixit, which cannot be termed as perverse or incorrect. Learned Trial Court has also dealt with the case law relied upon by the learned defence counsel in correct perspective on the basis of evidence adduced by witnesses on behalf of the prosecution and recorded the finding that appellant and co-accused Hussaini (since dead) with common intention committed incident of this crime and assaulted the deceased Nankau and injured Ram Kunwarey (P.W.2) in which they sustained injuries and Nankau succumbed to injuries sustained by him.

53. I have perused the statement of Investigating Officer P.W.8, who has proved site plan (Ex.Ka.-7) and recovery memo (Ex.Ka.-9) of plain and blood stained soil taken in possession by him from the place of occurrence. He has also proved this fact that he took in his possession source of light (Dibri) and prepared recovery memo (Ex.Ka.-10). He recorded the statements of witnesses, Rampheran, Hemraj and Kunwarey and the scribe, Ramlal. He collected injury reports of deceased Nankau and injured Kunwarey. He also recorded statements of witnesses and scribe of inquest report and submitted charge sheet(Ex.Ka.-11) against the appellant and co-accused. No material fact has been elicited during cross- examination of P.W.8. He has disclosed this fact that witnesses apprised him about the fact that injured and deceased were brought at Bahraich by Jeep. He has further stated that the complainant in his statement recorded on 10.01.1991 apprised him that there was source of light of Dibri at the time of occurrence. No other cross examination was conducted on behalf of accused. P.W.5, Constable Gograj Pandey prepared Check FIR (Ex.Ka.-3) and GD (Ex.Ka.-4), therefore, P.W.5 and P.W.8 are the formal witnesses.

54. On the basis of above discussion and evidence, learned Trial Court has recorded the findings which cannot be termed as perverse or against the law and evidence available on the record.

55. Learned counsel for appellant has argued that P.W.1 has accepted in his cross-examination on page-4 that incident of this case was occurred in the dark night of winter season and fact of presence of source of light, ‘Dibri’, has been developed by this witness because source of light is not mentioned in the FIR. It is relevant to mention here that every minute detail is not required to be mentioned in the FIR as held by Hon’ble Supreme Court. In the above mentioned circumstances, FIR is not encyclopedia of each and every detail of the FIR. On the other hand, P.W.8 has proved site plan (Ex.Ka.-7), in which at place marked ‘A’, he has mentioned that at this place source of light ‘Dibri’ was available and it was illuminating, as apprised by witnesses to him. At place marked as ‘B’ and ‘C’, presence of witnesses Rampheran and Hemraj has been shown in this site plan. Likewise he has mentioned in site plan at mark ‘(X)’ deceased Nankau and Kunwarey sustained injury during incident committed by appellant and co-accused.

56. P.W.1 has refuted this suggestion that there was fog in the night of date of incident. On the other hand, appellant and his brother co-accused were next door neighbour of the witnesses P.W.1, P.W.2 and the deceased. P.W.3-Hemraj is also neighbour of both the parties, therefore, accused persons were very well known to the witnesses P.W.1-P.W.3 and they were capable to identify accused persons in the night also. These witnesses have proved that there was source of light of ‘Dibri’ at the place of occurrence, therefore, no benefit can be extended to the appellant on the basis of suggestion put forth by the defence counsel in this regard. Likewise, there is no force in the argument that fact of presence of source of light ‘Dibri’ was developed by these witnesses.

57. This appeal lacks merit and is liable to be dismissed.

58. Dismissed accordingly.

59. Appellant be taken into custody by the Trial Court to undergo sentence awarded against him.

60. Record of Trial Court be sent back alongwith copy of the judgment.

Order Date :- 08.11.2017

Mustaqeem

 

 

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