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Shiv Bahadur Ram vs State Of U.P. on 12 July, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on 2nd May, 2019

Delivered on 12th July, 2019

A.F.R

Court No. – 78

Case :- CRIMINAL APPEAL No. – 2093 of 2009

Appellant :- Shiv Bahadur Ram

Respondent :- State Of U.P.

Counsel for Appellant :- Vidhu Bhushan Singh,Chandra Prakash Pal,Pradeep Singh,Prem Prakash Yadav,Rama Shanker Mishra,Sudhist

Counsel for Respondent :- Govt. Advocate,Arvind Kumar Singh,Atul Kumar,Md. Zeaul Hoda,Mohd. Shoeb Khan

Hon’ble Mrs. Manju Rani Chauhan,J.

1. The appellant-Shiv Bahadur Ram has preferred this criminal appeal against the judgment and order dated 28.03.2009 passed by Additional District Sessions Judge, Fast Track Court No. 1, Ghazipur in Sessions Trial No. 401/2006 (SectionState vs. Shiv Bahadur Ram) arising out of case crime no. 494/2006 U/s 304 (II) SectionIPC, Police Station Jamania, District Ghazipur, whereby the appellant has been convicted under Sectionsection 304 (II) IPC and has been sentenced for seven (7) years rigorous imprisonment and a fine of Rs. 10000/- and in default of payment of fine, one year additional rigorous imprisonment.

2. The prosecution case in brief, as reveals from record, is that the first information report was lodged by P.W.-1 Muninder Kumar S/o Late Jamuna Ram, resident of Mohalla Rajpur, town and police station Jamania, District Ghazipur on 26.08.2006 at about 06:00 A.M. alleging therein that Mewa Ram, uncle of first informant, was going towards his Dera for milking buffalo. Suddenly accused appellant Shiv Bahadur Ram came out from his hut and started beating Mewa Ram with Lathi. The incident was witnessed by first informant Muninder Kumar, Virendra Kumar and Surendra. After committing the offence, accused appellant Shiv Bahadur ran away from the spot. The first informant and other persons arranged a rickshaw trolley and took Mewa Ram to Primary Health Centre, Jamania but the doctor of Primary Health Centre, Jamania, declared him dead.

3. The F.I.R. was lodged on the same day at about 07:10 A.M. giving rise to Case Crime No.494/2006 U/s 304 SectionIPC, police station Jamania. After registration of the case, the investigation was conducted by Station House Officer, Sri R.B. Yadav, during which he recorded statement of first informant, inspected the spot and prepared site plan etc. The accused was arrested and on his pointing out, a lathi, the weapon used in commission of offence was recovered from his hut. Meanwhile the inquest of the deceased was conducted at about 09.45 A.M. and thereafter the dead body was sent to postmortem, which was conducted on the same day at about 04:00 P.M. It appears that thereafter the Investigating Officer was transferred and the remaining investigation was conducted by Sri Prem Shankar Singh, In-Charge, police outpost, Mohammadabad, District Ghazipur and after completion of the investigation, charge sheet u/s 304 SectionIPC was submitted against the accused appellant Sri Shiv Bahadur Ram. The Chief Judicial Magistrate, Ghazipur, took cognizance of the offence on the charge sheet and committed the case to the Court of Sessions for trial vide order dated 24.10.2006.

4. The Trial Court vide order dated 17.02.2007 framed the charge for the offence U/s 304 SectionIPC against the accused Shiv Bahadur Ram, which was denied by the accused appellant and trial commenced.

5. During trial, prosecution produced documentary evidence with regard to the investigation etc. vide exhibit Ka-1 to exhibit Ka-12 and also examined the prosecution witnesses to prove its case. The prosecution examined three witnesses of facts namely P.W.-1 Muninder Kumar, the first informant, P.W.-2 Surendra Prasad, P.W.-3 Virendra with regard to the assault made by accused appellant on deceased. P.W.-4 Mehboob Alam was examined as witnesses of inquest and recovery of lathi at the pointing out of accused from his hut. P.W.-5 Ram Awadh Ram was also a witness of recovery of lathi at the pointing out of accused but was declared hostile on account of his denial about preparation of recovery memo in his presence. Dr. Vinay Kumar Srivastava being P.W.-6 had conducted the post-mortem of the deceased and had proved the same. P.W.-7 Constable Rajesh Kumar Singh was produced as link evidence of taking the dead body for post mortem. P.W.-8 Sub Inspector Rameshwar Prasad Tripathi was the first Investigating Officer and P.W.-9 Sub-Inspector Brijesh Dubey was the then Head Moharir of police station Jamania, who registered the FIR and had proved the same. P.W.-10 Prem Shanker Singh, Sub-Inspector, the subsequent investigating officer had completed the investigation and had submitted the charge sheet and had proved the same.

6. The accused appellant Shiv Bahadur was examined U/s 313 SectionCr.P.C. on 02.03.2009, wherein he denied the incriminating circumstances put to him and further stated that he was implicated on account of enmity and the murder was committed in the night by unknown assailants. However, no witness was examined by the defense.

7. The learned Trial Court came to the conclusion that enmity is admitted to the defense and the eye witnesses of the incidents are near relatives of the accused. Their statements are natural and trustworthy and their presence near the place of occurrence and the opportunity of witnessing the incident cannot be doubted. The learned Trial Court further came to the conclusion that minor discrepancies and contradictions pointed out by the learned Defense Counsel in the course of argument are not actually there and even assuming that the investigation was not up to the mark, the prosecution case is not adversely affected as the eye witnesses are natural and reliable. With such findings, the Trial Court convicted and sentenced the appellant, as noted above. Feeling aggrieved by the judgment and order of conviction and sentence, the present criminal appeal has been filed.

8. Heard Sri Prem Prakash Yadav, learned counsel appearing for the appellant, Sri Om Prakash Mishra, learned Addl. Government Advocate for the State and Mohd. Shoeb Khan, learned counsel for the informant as well as perused the record.

9. It has been vehemently argued by the learned counsel for the appellant that the appellant has been falsely implicated on account of enmity and the witness reached the place of occurrence only when the incident was over, and they had no opportunity to see the incident. It has been further argued that the investigation of the present case is tainted and unfair and makes the prosecution case wholly unreliable. It has also been submitted that there is delay committed by the Investigating Officer in recording the statement of prosecution witness and no satisfactory explanation is available for causing their delayed interrogation. There are omissions and improvements in the statement of witnesses recorded U/s 161 SectionCr.P.C., which make the witnesses wholly unreliable and their conduct is also not natural under the facts and circumstances of the case. Lastly, it has been submitted that the sentence of seven years rigorous imprisonment is too severe and even assuming that the appellant has committed the offence, the sentence is liable to be reduced. In support of his contention, the learned counsel appearing for the appellant has submitted a compilation of various case laws on the points mentioned above, which will be dealt with at an appropriate place.

10. On the other hand, the learned Addl. Government Advocate supported the judgment and order of conviction and sentence passed by trial court and has submitted that the prosecution witnesses are the most natural witnesses and their presence at the scene of occurrence cannot be doubted as they are residing in the same vicinity. Furthermore, they are close relatives of the accused as well as the deceased and have no occasion to falsely implicate the appellant. The medical evidence fully corroborates the eye-witness account. It has further been submitted that the minor discrepancies in the statement of witnesses demonstrates truthfulness on their part and the defense has failed to elicit any such material contradiction or improvement in the cross examination of witnesses, which may be read against the prosecution version adversely affecting the reliability of prosecution witnesses. It has further been submitted that when the eye-witness are natural, truthful and reliable, the trivial irregularities in the police investigation are irrelevant. It has also been submitted that the sentence to be awarded to the convict should be appropriate in terms of his criminal liability and too much leniency, without mitigating circumstances, will cause much harm and will be counterproductive in the longer run. The facts of the case show that the accused appellant committed homicidal death of his real uncle without any provocation. The nature of injury shows that many blows were inflicted to the deceased causing sufficient internal damage and hence, the totality of the facts and circumstances makes the appellant disentitle for any lenient view in the circumstances of the case and the undue sympathy to the accused will undermine the public confidence for the efficacy in the rule of law. Learned A.G.A. and the learned counsel for the informant have also placed reliance on few case-laws in support of their arguments.

11. On the issue of reducing the period of sentence of the appellant as submitted by the learned counsel for the appellant, Mr. Om Prakash Mishra, learned A.G.A. for the state has placed reliance upon the judgment the Apex Court in the case of State of Uttar Pradesh Versus Kishan reported in 2004 LawSuit (SC) 1548/2005 (1) SCJ 390, wherein in paragraphs-5 to 9, it has been observed as follows:

“5. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Naidu .

6. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in SectionDennis Councle MCGDautha v. State of Callifornia: 402 US 183: 28 L.D. 2d 711 that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.

7. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.

8. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result- wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

9. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal”

12. On the issue of incomplete and defective investigation and its object, Mr. Mishra, learned A.G.A. has placed reliance upon the judgment of the Apex Court in the case of State of Punjab Versus Hakam Singh reported in (2005) 7 SCC 408.

13. On the issue of contradictions in the testimonies of the prosecution witnesses and their appreciation, Mr. Mishra, the learned A.G.A. has placed reliance upon the judgment of the Apex Court in the case of Vinod Kumar Versus State of Haryana reported in 2015 LawSuit (Sc) 14/2015 (3) SCC 138, wherein in paragraphs-19 $ 20 it has been observed as follows:

“19. The next facet relates to the discrepancies in the evidence of the witnesses. The learned trial Judge has found discrepancies with regard to the handing of letter by Santosh to Manphul; the discrepancies relating to the place and time pertaining to various aspects stated by witnesses and the identity of the accused at the time of arrest. The discrepancies which have been noted are absolutely minor. The High Court has correctly observed that the minor discrepancies like who met whom, at what time and who was dropped and at whose place and at what time, etc. have been given unnecessary emphasis. It is well settled in law that minor discrepancies on trivial matters not touching the core of the case or not going to the root of the matter could not result in rejection of the evidence as a whole. It is also well accepted principle that no true witness can possibly escape from making some discrepant details, but the Court should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that it would be justified in jettisoning his evidence. It is expected of the Courts to ignore the discrepancies which do not shed the basic version of the prosecution, for the Court has to call into aid its vast experience of men and matters in different cases to evaluate the entire material on record. [See State of U.P. V. M.K. Anthony, 1985 1 SCC 505, SectionRammi v. State of M.P., 1999 (8) SCC 649 and SectionAppabhai V. State of Gujarat, 1988 Suppl. SCC 241.

20. Tested on the touchstone of the aforesaid principles, we are inclined to concur with the opinion expressed by the High Court that the learned trial Judge has really given undue emphasis on the discrepancies which are minor in nature. To elaborate, emphasis has been laid on the fact that the arrest memo indicates Vinod Kumar son of Suraj Bhan. The learned trial Judge has failed to appreciate that Vinod Kumar has been describing himself as son of Suraj Bhan. There is no dispute with regard to the fact that he was found along with boy Anand. There is no dispute with regard to his identity or the fact that he was working in the house of the husband of Santosh. It has also been brought in evidence that Harpal, P.W.-3, had seen him taking Anand and on a query being made, he answered that he was taking the child to Jind to buy shoes for the boy and medicine for himself. That apart, Vinod Kumar has not taken the plea that he was not employed by Jagbir. Thus, the hypertechnical approach of the learned trial Judge has correctly not been accepted by the High Court.”

14. Mohd. Shoeb Khan, learned counsel for the informant/complainant, on the issue as raised by the learned counsel for the appellant that there was delay in lodging of the first information report, therefore, the prosecution case becomes suspect and the relatives are to be treated as untruthful witnesses, has place reliance upon the judgment of the Apex Court in the case of Shyam Versus State of Madhya Pradesh reported in 2007 LawSuit (SC) 164/2009 (16) SCC 531, wherein in paragraphs-7 and 9 it has been observed as follows:

“7. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. No evidence has been led in this regard. So far as the delay in lodging the FIR is concerned, the witnesses have clearly stated that after seeing the deceased in an injured condition immediate effort was to get him hospitalized and get him treated. There cannot be any generalization that whenever there is a delay in lodging the FIR, the prosecution case becomes suspect. Whether delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case, would depend upon the facts of each case. Even a long delay can be condoned if the witnesses have no motive of implicating the accused and have given a plausible reason as to why the report was lodged belatedly. In the instant case, this has been done. It is to be noted that though there was cross-examination at length no infirmity was noticed in their evidence. Therefore, the trial Court and the High Court were right in relying on the evidence P.W.-1.

………

9. In some cases persons may not like to come and depose as witnesses and in some other cases the prosecution may carry the impression that their evidence would not help it as there is likelihood of partisan approach so far as one of the parties is concerned. In such a case mere non-examination would not affect the prosecution version. But at the same time if the relatives or interested witnesses are examined, the Court has a duty to analyse the evidence with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the evidence was biased. Whenever a plea is taken that the witness is partisan or had any hostility towards the accused, foundation for the same has to be laid. If the materials show that there is partisan approach, as indicated above, the Court has to analyse the evidence with care and caution. Additionally, the accused persons always have the option of examining the left out persons as defence witnesses.”

15. On the submission raised by the learned counsel for the appellant that no witnesses of the village concerned came forward to support the prosecution case, therefore, the prosecution case is fatal, Mohd. Shoeb Khan, learned counsel for the informant/complainant submits that if the witnesses of the village concerned did not come forward to support the prosecution, the case of the prosecution will not be fatal. In support thereof, he has placed reliance upon the judgment of the Apex Court in the case of Chaman Another Versus State of Uttarakhand reported in (2016) 12 SCC 76, wherein in paragraph-24 it has been held as follows:

“24. An analytical evaluation of the materials on record does not admit of any doubt of the successive visits of the appellants on the turn of 15 days to the house of the deceased in search of Vinod whom they suspected was involved in the murder of the son of the appellant Chaman. There is nothing to disbelieve P.W.s 1 and 2 that the appellants, on the date of the incident, had come in a jeep and as they did not find Vinod in the house, they abducted Jagram, who was later on found dead within 3/4 days therefrom in a nearby jungle. Though the incident took place in the broad day light and the daughters did raise alarm, the mere non-intervention by the persons in the locality, in our opinion, in the face of the otherwise overwhelming and consistent testimony of the mother and the daughter does not discredit the prosecution case. Noticeably, the P.W.s 1 and 2 were steadfast in the matter of identification of the three appellants, not only at the time of the incident but also thereafter in court. According to them, the appellants were of the village Ismailpur and thus their identification was not difficult for them. Admittedly the FIR was lodged with due promptness, thus obviating the possibility of any embellishment. To reiterate, non-examination of the scribe of FIR does not render the prosecution case untrustworthy in the attendant facts and circumstances.”

16. On the submission made by the learned counsel for the appellant that on the date and time of incident, it was raining and all the witnesses were at some distance, how could they recognize the assailant, Mohd. Shoeb Khan, learned counsel for the informant/complainant replies that if the witnesses are well known to the assailant, they can recognize him despite they being at some distance. In support thereof, he has placed reliance upon the judgment of the Apex Court in the case of Angnoo Versus State of Uttar Pradesh reported in 1970 LawSuit (SC) 364/1970 (3) SCC 208, wherein in paragraph-7, it has been held as follows:

“7. So far as the possibility of recognizing the ten appellants is concerned, all the witnesses have stated that they arrived within a distance of about 50 steps while the assault was still going on. All the appellants were well-known to the witnesses and there is no reason to doubt their evidence that they were able to recognize all the ten of them. Persons well-known can be recognized within a very short time. The appellants were seen by them while continuing the attach on Mahadeo and while they were going away after completing the assault.”

17. On the submission made by the learned counsel for the appellant that there is variance in the medical evidence and ocular evidence, therefore, the prosecution case is false, Mohd. Shoeb Khan, learned counsel for the informant/complainant submits that the medical evidence and ocular evidence fully corroborates and also establishes the prosecution story. In support thereof, he has placed reliance upon the judgment of the Apex Court in the case of Shyam Vs. State of Uttar Pradesh (Supra), wherein in paragraph-8 it has been held as follows:

“8. So far as the alleged variance between the medical evidence and ocular evidence is concerned, it is trite law that oral evidence has to get primacy and medical evidence is basically opnionative. It is only when the medical evidence specifically rules out the injury as claimed to have been inflicted as per the oral testimony, then only in a given case, the Court has to draw adverse inference.”

18. On the submission made by the learned counsel for the appellant that the there are contradictions and discrepancies in the testimonies of the witnesses, Mohd. Shoeb Khan, learned counsel for the informant/complainant submits that overmuch importance cannot be attached to minor discrepancies/contradictions. In support thereof, he has placed reliance upon the judgment of the Apex Court in the case of Bharwada Bhoginbhai Hirjibhai Versus State of Gujarat reported in AIR 1983 SC 753, wherein in paragraph-5 and 6 it has been held as follows:

“5. …………………..We do not consider it appropriate or permissible to enter upon a reappraisal or re-appreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by the learned counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. ………

6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. More so when all important “probabilities-factor” echoes in favour of the version narrated by the witnesses.”

19. He has also placed upon the another judgment of the Apex Court in the case of Pawan Kumar @ Monu Mittal Versus State of Uttar Pradesh Another reported in (2015) 7 SCC 148, wherein in paragraph-35, it has been held as follows:

“35. As regards the allegation of contradictions in the statements of prosecution witnesses, we do not find any major contradictions which require our attention and consideration. When a witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. But Courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence [See: Rammi Vs. State of M.P., (1999) 8 SCC 649]. There is no doubt that when two views are possible, the one which favours the accused should be taken and the accused should be acquitted by giving the benefit of doubt. But in the instant case, the evidence on record is trustworthy and consistent, and there is only one view, which points to the guilt of the accused. Though the learned counsel for the appellants sought to point out minor discrepancies in the evidence of the witnesses, but in the light of the above judgment of the court, we are of the considered opinion that such minor discrepancies should not come in the way of the other strong circumstantial evidence, cumulatively taken together, forms a complete chain of events, pointing towards the guilt of the accused in the commission of the crime.”

20. In the light of above noted rival submissions, this court reshuffles the evidence available on record, which reveals that as per the statement of P.W.-1 Muninder Kumar, he is nephew of deceased Mewa Ram as well as accused Shiv Bahadur Ram. He was having matrimonial dispute with his wife Savita Devi and a divorce petition and a case U/s 125 SectionCr.P.C. was pending in the Court at Ghazipur. The deceased Mewa Ram was doing pairvi on behalf of Muninder Kumar, while accused Shiv Bahadur was supporting Smt. Savita Devi wife of P.W.-1 Muninder Kumar. On account of this, the accused appellant Shiv Bahadur was unpleased with Muninder Kumar and due to this enmity, on 26.8.2006 at about 06:00 A.M., when deceased Mewa Ram was going towards Dera for milking buffalo and had reached near the hut of accused appellant Shiv Bahadur Singh, he came out of his hut and started wielding lathi to Mewa Ram. Upon hue and cry, P.W.1 Muninder Kumar who was brushing his teeth at his house reached on the spot and saw the incident. Some other persons also came there including prosecution witnesses Surendra and Virendra, who are cousins of P.W.-1. However, the accused appellant succeeded in running away and by that time, Mewa Ram became unconscious. He was taken to the P.H.C. Jamania in a rickshaw trolley. However, he was declared dead. P.W.1 Muninder Kumar lodged the F.I.R. at police station and his statement U/s 161 SectionCr.P.C. was recorded by the Investigating Officer and spot inspection was also made on the same day. The postmortem was conducted and thereafter, the dead body was cremated. P.W.1 Muninder Kumar also mentioned the topography of the place of incident and his house and the house of other witnesses, which all are situated in close vicinity.

21. Similar statements have been given by P.W.-2 Surendra Prasad and P.W.-3 Virendra. Surendra Prasad has been examined as P.W.-2 and he has stated that on 26th August, 2006 at 06:00 a.m. (morning), i.e. on the date and time of the incident, when he was returning to his house after nature’s call from the field, he heard shouting from west side after hearing the same, he ran away to the place of shouting, when he reached in front of the house of one Dinesh Seth, he saw that his uncle Mewa Ram was beating the appellant-Shiv Bahadur, his cousin brother Munendra came to the place of incident to save his uncle before he could reach there. P.W.-3 Virendra, his real brother also reached the place of incident half minute before from him, he also saw the incident. Before all three, namely, P.W.-1,P.w.-2 and P.W.-3 could reach the place of incident, the appellant ran away and they could not catch him. Due to injuries sustained by his uncle, he became unconscious. After arranging a trolley, they took his uncle to the Government Hospital, Jamania, where he was declared dead, from where, P.W.-1 Munendra Kumar went to the Police Station for lodging the first information report.

22. Virendra has been examined as P.W.-3. He has stated that the incident is of 26th August, 2006 at 06:00 a.m. (morning), when his father was going towards Dera for milking buffalo and he was returning to his house attending nature’s call. As soon as he reached the road before 30 lattha from the Dera/house of appellant Shiv Bahadur, he saw that the appellant-Shiv Bahadur was beating his uncle Mewa Ram. His brother Surendra (P.W.-2) and cousin brother Munendra (P.W.-1) were also present, as soon as they reached the place of incident to save his uncle, appellant after beating his uncle ran away. Due to injuries sustained by his uncle, he became unconscious. Some villagers also reached the place of incident. After lifting his uncle on rickshaw trolley, they took his uncle to the Primary Health Centre, Jamania, where he was declared dead. Thereafter, after taking the dead body of his uncle, they went to the Police Station and on the application given by Munendra Kumar, the first information report has been lodged. After Panchayatnama, the body of the deceased i.e. his uncle was taken by the Police to Ghazipur for post-mortem.

23. The prosecution has examined P.W.-4 Mehboob Alam with regard to the preparation of inquest report. The postmortem of the deceased has been proved by P.W.-6 Dr. Vinay Kumar Srivastava and as per the postmortem report and the statement of P.W.-6 Dr. Vinay Kumar Srivastava, the deceased received five injuries on his person, in which right forearm was found fractured and the pleura and right lung of the deceased was also found ruptured and about two litres blood was found in chest cavity. The death was opined due to shock and hemorrhage on account of anti-mortem injuries and the time since death was opined about half day. The postmortem was conducted at about 04:00 P.M.

24. To substantiate his argument regarding delay in recording statement of eye-witnesses under Sectionsection 161 of Cr.P.C., learned counsel for appellant has placed reliance on the case-laws of Shahid Khan vs. State of Rajasthan reported in (2016) 4 SCC 96 and SectionSudarshan Kumar vs. State of Himachal Pradesh reported in (2014) 15 SCC 666. In Shahid Khan’s case (supra), the eye-witnesses being P.W.-24 and P.W.-25 were not the resident of same vicinity, where incident took place and other prosecution witnesses had not disclosed their presence on the place of incident. Moreover, there was nothing on record to explain the delay in recording statement of those eye-witnesses under Sectionsection 161 of Cr.P.C. and even there was no corroboration of the evidence of P.W.-24 and P.W.-25. Like-wise in Sudarshan Kumar’s case (supra), there was a delay of 77 days in recording statement of those eye-witnesses under Sectionsection 161 of Cr.P.C. and no explanation had come forth to explain the same. Under these facts, the Hon’ble Supreme Court proceeded to hold that such aspect of the matter shakes the credibility of prosecution witnesses, whose statements were recorded belatedly without any explanation.

25. In the present case, it has come on record that the eye-witnesses are resident of same vicinity and their presence near the place of incident appears to be quite natural. P.W.-8 Rameshwar Prasad, Sub-Inspector, has stated about the initial investigation done by him. He started the investigation by copying the FIR and GD Entry in the case diary and thereafter recorded the statement of first informant. He has proved the site plan, spot inspection memo and has stated about the arrest of accused appellant Shiv Bahadur and recovery of lathi from his possession. On the same day it appears that thereafter he has been transferred and after some time investigation was entrusted to another Investigating Officer P.W.-10 Prem Shankar Singh, the subsequent investigating officer has stated about the entrustment of subsequent investigation to him on account of transfer of his predecessor and claims to have interrogated the witnesses Surendra, Virendra, Ramanand, Mahboob Alam and others. He had stated that he was entrusted with the investigation of the case on 15.09.2006. Thus the delay in interrogation of witnesses had occurred not on account of any lackadaisical functioning of investigating agency but on account of change of investigating officer, as the same is apparent from the deposition of P.W.8 and P.W.10. Apart from this, it is well settled proposition of law that any inconsistency or discrepancy occurred in the investigation or laches on the part of the Investigating Officer does not affect the veracity of statement of reliable prosecution witnesses until and unless such discrepancies are of such nature that the entire prosecution story is collapsed. In view of aforesaid, the case-laws cited on behalf of appellant being Shahid Khan’s case (supra) and Sudarshan Kumar’s case (supra) does not give any support to the appellant’s contention.

26. In support of contention regarding omission, improvement by the prosecution witnesses from their statement recorded under Sectionsection 161 of Cr.P.C., learned counsel for appellant has pressed following case-laws:

(i) SectionSatyapal vs. State Haryana reported in (2014) 13 SCC 397;

(ii) SectionVijay Kumar vs. State Rajasthan reported in (2014) 3 SCC 412;

(iii) SectionNallabothu Ramalu @ Seetharamaiah vs. State Andhra Pradesh reported in (2014) 12 SCC 261.

27. In Satyapal’s case (Supra), the trial court acquitted the accused for offence under Sectionsection 304-B and Section498-A by treating the evidence of prosecution witnesses contradictory to their statements recorded under Sectionsection 161 of Cr.P.C.; After discussing the facts of the case, the Hon’ble Supreme Court upheld the findings of High Court, whereby the findings of acquittal arrived at by the trial court were reversed and the accused appellant in that case was held guilty of offences. The Hon’ble Supreme Court in paragraoh no. 9 of Satyapal’s case (Supra) held as follows:

“…………………………………………… an omission to state a fact or circumstance in the statement made to the police may amount to contradiction if same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to be contradiction in the particular context shall be a question of fact. It is therefore for the court to decide under the facts and circumstances of the case as to whether any alleged omission in the statement recorded under Sectionsection 161 of Cr.P.C. amounts to contradiction.”

28. In the case of Vijay Kumar (Supra), under the given facts, the Hon’ble Supreme Court came to the conclusion in paragraph no. 13 and 14 that while deposing before trial court, one of the prosecution witness made material improvement, which were stated for the first time before the court, regarding two circumstances out of total four circumstances put forth by the prosecution. With this conclusion, the Hon’ble Supreme Court held that evidence in relation to those circumstances failed to pass the test of credibility and was liable to be rejected.

29. In paragraph no. 24 of Nallabothu Ramalu @ Seetharamaiah’s case (supra), the Hon’ble Supreme Court observed regarding discrepancies in ocular evidence in following manner:

“………………………………………………………. It is true that due to passage of time, witnesses do deviate from their police statements, as their memory fades to some extent. Reasonable allowances can be made for such discrepancies. But when such discrepancies make the foundation of prosecution case shaky, the court has to take strict note thereof. ……………………………”

30. The legal position enunciated in above noted pronouncements makes it clear that It is for the court to decide under the facts and circumstances of the case as to whether any alleged omission in the statement recorded under Sectionsection 161 of Cr.P.C. amounts to contradiction, if same appears to be significant and otherwise relevant having regard to the context in which such omission occurs. It further clarifies the legal position that while appreciating evidence to ascertain truthfulness of prosecution case, the court has to consider the discrepancies and contradictions under the facts and circumstances of the case and even after giving reasonable allowances to the ocular version of witnesses, if it makes the foundation of prosecution case shaky, the court has to take a strict note thereof.

31. In the light of above discussed position of law, let us now examine the evidence available on record of this case to ascertain the factual matrix of the case.

32. Much emphasis has been laid by the counsel for appellant on the statement of P.W.-1 in his cross-examination to the effect that till the time he reached on the spot, Mewa Ram had fallen down and while reaching upto the spot, the assailant had flew away along with Lathi and after one-two minutes of his arrival, Surendra and Virendra had reached on the spot. By stressing upon this part of statement of P.W.-1, it is sought to be argued that no one had seen the incident and statements of P.W.-1, P.W.-2 and P.W.-3 are not reliable. It has also been pointed out by the counsel for appellant that P.W.3 has stated in his cross examination that when they all reached on the spot, Mewa Ram had fallen down and no assailant was present there.

33. According to the evidence available on record, P.W.1 has stated in his cross examination that he saw the incident while brushing his teeth on his door and when Mewa Ram shouted “Save me, Save me”, he turned his eyes towards the place of incident and thereafter he was the first person to reach on the spot but till that time Mewa Ram had fallen down and the assailant had already gone along with Lathi and after one-two minutes of his arrival, Surendra and Virendra had reached on the spot. Like-wise P.W.-2 has stated in his cross examination that firstly Munendra, thereafter he himself and thereafter Virendra reached on the spot. He has also stated that till the time he reached on the spot, Mewa Ram had fallen down after being assaulted and he saw from a distance of 25 Katthttha that appellant Shiv Bahadur was hitting Mewa Ram through a Lathi. In tune with these statements of P.W.-1 and P.W.-2, the P.W.3 has stated that firstly Munendra reached on the spot, Surendra reached half minute thereafter and he reached half minute thereafter and subsequent to this, other residents of village came on the spot. P.W.-3 has further stated that as soon as they reached on the spot, appellant Shiv Bahadur had already left. After making this assertion, P.W.-3 has stated that when they all reached on the spot, Mewa Ram had fallen down and no assailant was present there.

34. Another argument made by the learned Counsel for the appellant is that due to the location of the house of the witnesses they were not in position to see the incident, is also misconceived in as much as the witnesses P.W.2 P.W.3 have not stated that they saw the incident from their houses but they have clearly stated that they were returning from the side of Dera towards their houses after easing themselves. Thus there is no doubt that the witnesses were in position to see the incident and they actually saw the incident.

35. From perusal of the record, as discussed above, it is easily discernible that the prosecution witnesses have clearly stated that they saw the incident but could not save the deceased on account of fact that when they reached near the deceased, the accused appellant had completed his act of assault and had succeeded in running away. The medical evidence fully corroborates the eye witness account and no serious challenge has been made to the testimony of the P.W.-6 doctor Vinay Kumar Srivastava, who conducted the post mortem examination. The internal damage, below the seat of the injuries, goes to show that the same has been received by the Lathi below.

36. At this juncture, it would be appropriate to consider the contradiction so pointed out by learned counsel for appellant about the fact of leaving the place of incident by the appellant with the Lathi or without the Lathi. In this regard, P.W.-1 has clearly stated in his cross examination that after committing the incident in question, the appellant ran away along with lathi, whereas P.W.-2 has stated in his cross examination that the appellant ran away leaving his Lathi on the spot, which was recovered by the Sub-Inspector. So far as P.W.-3 is concerned, he neither stated anything in this regard nor was he asked any question in this regard during cross examination.

37. The weapon of assault i.e. Lathi, has been shown to be recovered at the pointing out of accused appellant Shiv Bahadur Ram from his hut and P.W.-4 Mehboob Alam has proved his signature on the recovery memo. The prosecution witness P.W.-5 Ram Awadh has stated that the lathi was recovered in his presence at the pointing out of the accused appellant Ram Awadh Ram from his hut. However, he has stated that the recovery memo was not prepared in his presence. This witness was declared hostile on this denial but nonetheless, he admitted the fact of recovery of Lathi at the pointing out of the accused appellant Ram Awadh Ram from his hut. The recovery of Lathi was effectuated by the initial investigating Officer Mr. Rameshwar Prasad, P.W.-8, who has supported the fact of recovery of Lathi at the pointing out of the accused appellant Ram Awadh Ram from his hut. Although he has been asked question during cross examination about falsehood of recovery, which has been denied by him but he has not been put to the contradiction in the statements of P.W.1 and P.W.2 regarding fact of leaving the place of incident by the appellant with the Lathi or without the Lathi and its recovery on the place of incident instead of the hut of appellant on his pointing out. Because of absence of any cross examination in this regard from the initial investigating Officer Mr. Rameshwar Prasad, P.W.-8, this contradiction does not inspire confidence of this court so as to accept the contention of appellant’ counsel in this regard. Even otherwise, except this contradiction, there is no other circumstance available on record, which may give support to the contention of learned counsel for the appellant to dislodge the entire prosecution version, which is otherwise natural and reliable.

38. Issue of reliability of prosecution witnesses raised on behalf of appellant has drawn the attention of Hon’ble Supreme Court on several occasions and in the case of SectionThoti Manohar vs. State of A.P. Reported in 2012 (7) SCC, Hon’ble Supreme Court has observed as follows:

“39. No evidence can ever be perfect for man is not perfect and man lives in an imperfect world. Thus, the duty of the court is to see with the vision of prudence and acceptability of the deposition regard being had to the substratum of the prosecution story. In this context, we may reproduce a passage from the decision of this Court in SectionState of Punjab v. Jagir Singh, wherein H.R. Khanna, J., speaking for the Court, observed thus:

“23. A criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by a yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.”

………………………………

………………………………………

40. In view of our aforesaid analysis, we are unable to accept the submission of the learned counsel for the appellant that the evidence of the eyewitnesses should be rejected solely on the ground that they are close relatives and interested witnesses.”

39. Where the witness is wholly unreliable, the Court may discard the statement of such witness, but where a witness is wholly reliable or neither wholly reliable nor wholly unreliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the Court may base its judgment on the statement of said witness. Of course, in the later category of witnesses, the court has to be more cautious and see if the statement of witnesses is corroborated by other attending circumstances. Such a view has been taken by the Hon’ble Supreme Court in the case of SectionKuria v. State of Rajasthan; (2012) 10 SCC 433.

40. Moreover, the Latin maxim ‘falsus in uno, falsus in ominibus’ is not applicable in India. If anything stated by a witness on any unimportant point appears not to be true, then also the clear and consistent statement made by him on material points cannot be thrown out.

41. The contentions of learned counsel for appellant in respect of reliability of prosecution witnesses prima facie may appear to be attractive but a conspicuous view over the entire evidence of P.W.1, P.W.2 and P.W.3 reveals that such contention is fallacious for the reason that any person having normal eye-sight will certainly see the place of incident while running towards it and in case, the place is not so distant/diverted so as to restrict the eye sight, the person may get the complete picture of the incident. It is rather more natural on the part of P.W.1, P.W.2 and P.W.3 that they could not catch the appellant at the time of incident and reached on the spot, when things went out of their hands. Thus, the discrepancies pointed out by the learned counsel for the appellant in the statements are not having much force because presence of witnesses of fact on the spot at the time of the incident is very much established by the prosecution evidence.

42. In view of aforesaid factual and legal discussion, the case-laws of Satyapal’s case (Supra), Vijay Kumar (Supra), Nallabothu Ramalu @ Seetharamaiah’s case (supra) so cited by the counsel for appellant do not help the cause of appellant.

43. Coming to the motive part, the prosecution has successfully proved motive of appellant to commit the crime through the statement of P.W.-1 and P.W.-2 and in this regard, it has been deposed that a matrimonial dispute was going on in between Muninder and his first wife Savita and litigation in between them was pending and the decease Mewa Ram was supporting Muninder, while the accused appellant Shiv Bahadur was helping Savita and due to this reason, the accused applicant was having grudge against deceased Mewa Ram. These facts have not been challenged by the prosecution. It is also important that in the statement recorded U/s 313 of SectionCr.P.C., the accused appellant has stated that he has been falsely implicated on account of enmity. There is neither any explanation U/s 313 of SectionCr.P.C. nor any defense evidence about these incriminating facts regarding motive to commit the offence in question.

44. It has further been submitted by the learned counsel for the defense that the family members of the deceased have not come forward at any point of time and the prosecution case has been concocted by the first informant and the other witnesses, who are inimical to the accused appellant. This submission is also not traceable from perusal of record in as much as it transpires from the cross examination of the prosecution witnesses that the wife and children of the deceased Mewa Ram were in a state of utter shock and the eldest son namely Randhir @ Raju, who was aged about 15-16 years at the time of incident had become unconscious after the incident. Moreover, mere fact that the family members of the deceased have not come forward to depose before the court does not give any dent to the prosecution version, especially when the testimony of prosecution witnesses of fact is not only reliable but is quite natural under the facts of the case and does not suffer from any material contradiction.

45. With regard to medical evidence, the injuries received by the deceased have been duly proved by the prosecution, according to which as many as five injuries were found on the person of deceased Mewa Ram, out of which three injuries were inflicted on chest part of the deceased and two injuries on the hands of deceased. Pleura and right lung of the deceased was also found to be ruptured and about two liters blood was found in chest cavity. These injuries were sufficient to cause death in the ordinary course of incident.

46. In totality of all the facts and circumstances put forth by the prosecution, the prosecution version is proved beyond reasonable doubt and the appellant is guilty of causing homicide of deceased Mewa Ram.

47. So far as the extent of criminal liability of appellant is concerned, this court finds that the manner in which the incident was committed and its background goes to establish at least this much fact that the bodily injuries caused by the appellant to the deceased Mewa Ram were either intended to be caused or the appellant was knowing that his act is so imminently dangerous that it must, in all probability, cause death or such bodily injuries as are likely to cause death. The trial court framed charge against appellant under Sectionsection 304 I.P.C. but has convicted him in its wisdom for offence under Sectionsection 304 (part II) SectionI.P.C.. For this purpose, suffices is to quote the position of law enumerated by Hon’ble Supreme Court in the case of Richhpal Singh Meena Versus Ghasi @ Ghisa Ors. reported in 2014 (8) SCC 918 in which Hon’ble Supreme Court considered plethora of earlier judgments to find out as to what should be the criteria to ascertain the criminal liability in cases of homicide and ultimately following conclusion was arrived at: –

“The jurisprudence

42. A review of the decisions in the first category of cases, indicates that in spite of the death of a person, and a finding in some of them of an act of voluntarily causing grievous hurt, this Court has not considered the provisions of Section 299 read with Section 304 of the IPC. In our opinion, such a consideration is important not only from the jurisprudential point of view but also from the sentencing point of view.

43. From the jurisprudential point of view it is important because when an act or omission of an accused causes the death of any person, he or she is either guilty of culpable homicide or guilty of not-culpable homicide. It is for the Court to determine on the evidence whether, if it is culpable homicide, it amounts to murder as explained in Section 300 of the IPC (along with all its clauses) or not as explained in Section 304 of the IPC. If culpable homicide cannot be proved, then it would fall in the category of ”not-culpable homicide’.

44. We agree with learned amicus that the sections in the SectionIPC relating to hurt (from Section 319 onwards) do not postulate death as the end result. In this regard, our attention was drawn to Section 320 of the IPC which designates various kinds of hurt as grievous and particularly to ”eighthly’ which relates to any hurt which endangers life, but does not extinguish it. In fact, as pointed out by learned amicus, the arrangement of sections in the SectionIPC makes it clear that ”offences affecting life’ are quite distinct from offences of ”hurt’. If hurt results in death, intended or unintended, the offence would fall in the category of an offence affecting life, else not. It is this distinction that has apparently been ignored of overlooked in the first category of cases, but as mentioned above, those cases were decided on their particular facts.”

48. The trial court did not venture the required analysis to determine the extent of criminal liability and convicted the appellant for offence under Sectionsection 304 (part II) SectionI.P.C. and the case in hand arises out of appeal against conviction preferred by the accused and the State of U.P. has chosen not to file any appeal against conviction for lesser offence. Had any such appeal been filed by the State of U.P., this court would have an occasion to deal this issue further. Hence, this court refrains itself in making any further observation as to which offence is made out against the appellant and the conviction of appellant for offence under Sectionsection 304 (part II) SectionI.P.C. is liable to be upheld.

49. Now what remains is the question of punishment awarded to the appellant. Awarding punishment to a convict is a process of adjudication by the court, which includes consideration of various factors of the crime in question like, the nature and gravity of crime, the manner in which the crime was committed (whether occurred suddenly or otherwise), the conduct of accused at the time of committing crime, the background and motive of crime and its surrounding circumstances, the status of accused and deceased, etc.

50. With regard to submission on behalf of appellant for a lesser punishment, this court finds that the appellant inflicted five injuries to the deceased by using Lathi. Three injuries were inflicted on chest part of the deceased and two injuries on the hands of deceased. Pleura and right lung of the deceased was also found to be ruptured and about two liters blood was found in chest cavity. The offence committed by the appellant was not a result of sudden quarrel and the appellant had a motive to commit the crime. The offence committed by the appellant is serious in nature and he has not come forth with any plausible explanation or evidence to mitigate the severity of crime. The maximum punishment provided for offence under Sectionsection 304 (part II) SectionI.P.C. is up to Ten years and in present case, the trial court after giving a thoughtful consideration to various factors has taken a lenient view and has awarded seven (7) years rigorous imprisonment and a fine of Rs. 10000/- and in default of payment of fine, one year additional rigorous imprisonment, which is appropriate punishment under the facts of the case and does not require interference by this court.

51. Resultantly, the Appeal fails and is dismissed. Since the appellant is already in jail, therefore, a copy of this order be sent to the Chief Judicial Magistrate, Ghazipur and the Jail Superintendent of District Jail, Ghazipur forthwith so that the appellant may serve out remaining part of sentence. Office is directed to return the Lower Court record to do the needful.

(Manju Rani Chauhan, J.)

Order Date :- 12.07.2019

Sushil/-

 

 

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