Ahibaran vs State Of U.P.
2015 Latest Caselaw 1933 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
                                                                                    A  F   R
 
Court No. - 46                                                              Reserved                                                           
 
Case :- CRIMINAL APPEAL No. - 7064 of 2006
 
Appellant :- Ahibaran
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Mukesh Kumar,Arun Kumar Tripathi,Vinod Kr. Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 

 
Hon'ble Surendra Vikram Singh Rathore, J.

Hon'ble Raghvendra Kumar, J.

(Delivered by Raghvendra Kumar, J.)

1. Heard learned counsel for the accused-appellant, learned A. G. A. for the State of U. P. and perused the record.

2. Under challenge in this criminal appeal is the judgment and order dated 28.9.2006 passed by Additional Sessions Judge, Court No.1, Farrukhabad in Sessions Trial No.119 of 1999 (State Vs. Ahibaran & Others) u/s 302, 504, 506 IPC in Case Crime No.18 of 1999, P. S. Mau Darwaza, District-Farrukhabad whereby the accused-appellant Ahibaran has been convicted u/s 302 IPC and sentenced to imprisonment for life and convicted u/s 506 IPC and sentenced to rigorous imprisonment for six months. Both sentences were ordered to run concurrently.

3. Accused Suraj Singh has been convicted for the offence u/s 506 IPC and sentenced to rigorous imprisonment for six months. No appeal has been preferred on behalf of accused Suraj Singh against the conviction and sentence dated 28.9.2006.

4. Briefly stated the prosecution version is as follows :

The FIR of this case was lodged with police on 1.2.1999 at 6.10 am with respect to an incident that took place on 31.1.1999 at about 9 pm. The distance of police station from the place of incident is mentioned as 7 km. According to the FIR on 31.1.1999 at 9 pm when informant Ahibaran along with his father Tota Ram, wife Smt. Gangawati and neighbours Srikrishna and Ramdayal were warming themselves near fire lit in front of his house situated at village-Thatha Ki Madaiyya, Bhimpur Katari within P. S. Mau Darwaza, District-Farrukhabad, accused Ahibaran s/o Pyare Lodhi armed with country made gun (addhi) accompanied by accused Suraj Singh, who was armed with tamancha (pistol) came there and started abusing informant's father Tota Ram and using filthy language said that "you pose yourself to be a big goonda, if you say I will discharge a shot". Upon this informant's father replied that he had not caused any harm to him (i.e. the accused Ahibaran) and asked why he would kill him. In the meantime, accused Ahibaran discharged a shot from the illicit country made gun, which hit Tota Ram on his chest. Consequently, Tota Ram (informant's father) died on the spot. Informant and others, who were present on the spot, tried to apprehend accused Ahibaran but, accused Suraj Singh discharged a shot in the air and threatened them for life. Both the accused namely, Ahibaran and Suraj Singh then, went towards Prithvipur village and due to poor approach road, the information of the occurrence could not be lodged at the police station in the night.

5. After lodging of the FIR, investigation proceeded in accordance with law, which culminated into filing of police report (charge sheet).

6. The charges against the accused persons were framed for the offences u/s 302, 504, 506 IPC vide order dated 27.9.1999. Accused denied the charges and claimed for trial on merits.

7. Accused persons denying the prosecution case, have taken the defence of false implication.

8. To substantiate the charges levelled against the accused person the prosecution has examined PW-1 Ahibaran s/o Tota Ram (deceased)(who has proved the execution of Tehriri report (written report) marked as Ext Ka.1), PW-2 Smt. Gangawati, wife of informant, PW- 3 S. O., Om Prakash, PW-4 Dr. Raj Kishore and PW-5 Surendra Bahadur Singh, S. O. PW 1 and PW 2 are the eye witnesses of the incident.

9. PW 4 Dr. Raj Kishore is a formal witness and he has conducted autopsy on the corpus of deceased Tota Ram on 1.2.1999 at 2.40 pm and he has noted following ante mortem injuries :-

Fire arm wound of entry 2 cm x 1 cm cavity deep in front of chest, 8 cm below the sternum, margins inverted, lacerated and ecchymosed, sternum bone and chest were found to be fractured. Right side 4th rib was fractured. Chest cavity of right side was full of blood. Pericardium, heart and right lung were found lacerated. One bullet recovered from front chest wall on right side, direction of the bullet-front to back towards right.

On internal examination :

In Head, Neck, Scalp, Membrane, Base, Vertibrae, Spinal Cord nothing abnormal was detected. Pericardium-Aorta were lacerated. In Small intestine-pasty matter and gas, and in large intestine-faecal matters, gall bladder was full.

The doctor has assigned the cause of death to be shock and haemorrhage as a result of ante mortem injuries. He has proved the post mortem examination report marked as Ext Ka.6.

10. PW 3 S. O. Om Prakash has proved the execution of inquest report and the connected papers for execution of post mortem examination. He has stated that he has prepared the inquest on 1.2.1999 between 7 to 8.30 am. He is also a formal witness.

11. PW 5 S. O. Surendra Bahadur Singh has conducted the investigation. He has proved the execution of site plan, recovery memo of blood stained soil and ordinary soil, charge sheet and proved the execution of Chik FIR and G. D.

12. After conclusion of prosecution evidence the statement of accused-appellant was recorded u/s 313 Cr. P. C. He has denied the prosecution version and disclaimed knowledge about execution of Chik F. I. R., G. D., recovery memo of blood stained soil and plain soil, execution of inquest report and the papers prepared in connection with the post mortem examination, site plan, charge sheet. He has further submitted that witnesses have deposed out of enmity and the FIR was lodged because of enmity. He has stated in his additional statement that the informant-complainant owns a house at Mohalla-Anguribagh, P. S. Kotwali Farrukhabad, District-Farrukhabad.

13. After scrutinizing and appreciating the evidence available on record, the learned Court below, vide its judgment and order dated 28.9.2006, convicted accused-appellant Ahibaran, hence the instant appeal. No appeal has been preferred by convicted accused Suraj Singh.

14. It has been submitted by the learned counsel for accused-appellant that it is a case in which some unknown person might have murdered the father of informant-complainant because of criminal antecedent of his close relative Ram Vilas. It is also contended on behalf of accused-appellant that the witnesses named in the FIR have not been examined. Neither the source of light nor, the place of assault has specifically been mentioned by the prosecution. The FIR is belated one and it does not inspire confidence. It has also been argued on behalf of accused-appellants that PW 1 and PW 2 are son and daughter-in-law of deceased respectively, hence, they are close relatives and highly interested persons, whose testimonies cannot be relied upon for convicting the accused-appellant. As such, the accused-appellant deserves to be acquitted after allowing this appeal.

15. Learned A. G. A., refuting the arguments of the learned counsel for the accused-appellant, has submitted that it is a case of direct evidence. Specific role has been assigned to the appellant regarding commission of murder of deceased and the source of light has also been mentioned by the witnesses of fact in their testimonies. The place of assault or occurrence has specifically been averred by the witnesses in their respective on oath statements. Hence, the accused-appellant is not liable to be acquitted and the impugned judgment and order passed by the learned trial Court needs to be affirmed.

16. Hon'ble the Apex Court has been pleased to lay down the guidelines for High Court for exercising Appellate jurisdiction in criminal side while deciding criminal appeals from time to time. The Hon'ble Apex Court has propounded the following principles in Padam Singh Vs. State of U.P. reported in 2000 (1) SCC 621 which is quoted here :

"it is the duty of an appellate court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court."

17. Further guidelines have been issued by the Hon'ble Apex Court in case of Rama & others vs. State of Rajasthan reported in 2002 (4) SCC 571 which is as under:

"It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law."

18. The guidelines have been issued by three Judges Bench of the Hon'ble Apex Court in case of Majjal Vs. State of Haryana, 2013 (6) SCC 798 which is as under:

"It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which to to the root of the matter."

19. The aforesaid observations have been quoted by the Hon'ble Apex Court in a very recent judgment in the case of Kamlesh Prabhudas Tanna and Anr V. State of Gujarat reported in 2014 Cr.LJ 443.

20. Keeping in view the propositions cited above, the Court is to scrutinize the evidence available before it and to draw the inference accordingly, bearing in mind the presumption of innocence of accused unless otherwise is established from evidence available on record without being influenced by the findings recorded by learned trial court.

21. The first point regarding delay in lodging of the FIR is being considered. Hon'ble the Apex Court has propounded principles for appreciation of the aspect of delay, if any, caused in lodging of the FIR.

22. The Hon'ble Apex Court has laid down the following proposition recently in the case of Jai Prakash Singh vs State of Bihar & Another reported in (2012) 4 SCC 379. The relevant paragraph 12 is being reproduced hereinbelow :-

"The FIR in criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye- witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question."

23. It is settled law that if delay in lodging the FIR cannot be explained satisfactorily it is fatal to the case of prosecution. However, it is obligatory on the part of the Court to take notice of delay and examine the same in the backdrop of the case as to whether any acceptable explanation has been offered by the prosecution and, if such an explanation has been offered whether the same deserves acceptance of being satisfactory.

24. The Hon'ble Apex Court in the case of State of Haryana vs Gyan Chandra reported in J. T. 2001 (5) SC 1691 has been pleased to observe that :

"Delay has the effect of putting the Court on its card to search that if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not? If the prosecution fails to satisfactorily explain the delay, the delay would be fatal to prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot itself be the ground for disbelieving and discarding the entire prosecution case."

25. In Ram Dass & Others vs State of Maharashtra reported in 2007 (2) SCC 170 the Hon'ble Apex Court was pleased to observe that mere delay in lodging the first information report is not necessarily fatal to the prosecution. However, the fact that the report was lodged belatedly, is a relevant fact of which the Court must take notice. This fact has to be considered in the light of other facts and circumstances of the case.

26. In view of propositions cited above inference can safely be drawn that the delay should be explained and if, not explained even then the Court has to consider the aspect of delay in the light of totality of evidence and draw inference about the veracity of prosecution version considering the facts and circumstances of the case, which varies from case to case. Mere on the score of delay, the entire story of prosecution cannot be discarded. But, in such a situation an onerous duty is cast upon the Court to scrutinize the version with utmost care and caution and to eliminate the element of embellishment or exaggeration or colouration. In the instant case, it has been stated in the FIR that the incident took place on 31.1.1999 at about 9 pm. The FIR of the case has been lodged on 1.2.1999 at 6.10 am. The distance of police station from the place of occurrence has been mentioned as 7 km in the Chik FIR. There is a categorical explanation on behalf of PW 1 in his examination-in-chief that the road or way to the police station from the place of occurrence was in bad shape and he was terrified, therefore, he did not proceed for police station in the night. In the morning he got the report inscribed by one Awadhesh Singh and lodged FIR early in the morning at 6.10 i.e. on the very next day of the incident. The explanation regarding not lodging of FIR in the night has also been disclosed in the Tehriri report (Written report) i.e. Ext Ka.1. This factual situation cannot be denied that the psychology of the son cannot remain intact when his further is murdered in his presence and he witnessed the incident. So far as the aspect of fear as has been disclosed in the oral testimony by PW 1 is concerned, it also does not appear to be unnatural and disbelievable. As such, we are of the considered opinion that the delay in lodging FIR has sufficiently been explained and even presuming for argument sake, if there is any delay, it would not demolish the FIR.

27. It has been argued that one Anek Ram was murdered by Ram Vilash, who is close relative of deceased and, for that reason the deceased and his family members always felt enmity with appellant Ahibaran and his family members. Learned counsel for the appellant has failed to place any material before us whereby it can be proved that there was direct enmity of deceased Tota Ram with the accused-appellant Ahibaran. Even if, for argument sake, it is presumed that there was some enmity with respect to murder of Anek Ram by Ram Vilash, it has nothing to do with deceased Tota Ram and more particularly, in the instant case the murder has been committed by appellant Ahibaran even in absence of direct enmity with deceased Tota Ram. Hence, we do not find substance in the argument of false implication on the ground of enmity.

28. More so, it is case of direct evidence. The incident has been seen by the residents of the house i.e. son (PW 1) and daughter-in-law (PW 2) of the deceased, whose presence is natural. Hence, motive does not have much significance in the instant case.

29. The other argument of learned counsel for the accused-appellant is that someone else might have murdered deceased Tota Ram and the accused persons have been falsely implicated. Even if, it is conceded for argument sake, it can safely be inferred that appellant has impliedly conceded the place of assault and any argument contrary to it would automatically loose its significance. The aspect of false implication is to be inferred after appreciation of the evidence of witnesses of fact. It has vehemently been argued that PW 1 and PW 2 are closely related to the deceased and as such, they are highly interested persons and related witnesses.

30. It is noteworthy that the principle for appreciation of evidence and related or interested person has been enunciated by Hon'ble the Apex Court from time to time.

31. Hon'ble the Apex Court has opined in the case of Shiv Ram and Anr v State of U. P. reported in (1998) 1 SCC 149 that nowadays it is common tendency that no outsider would like to get involved in a criminal case much less in the crime of present magnitude. Therefore, it is quite natural that no independent witness will 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 person. But, what is required is that the Court must scrutinize the evidence with utmost care and caution. Time and again, it has also been stated by Hon'ble the Apex Court that civilized people are in general insensitive when the crime is committed even in their presence, they withdraw themselves from both victim and the assailants. They keep themselves away from the Court. Evidence has to be appreciated keeping in view such ground realities. The Court instead of doubting prosecution case when no independent witness has been examined must consider the broad spectrum of the prosecution version and then search for nugget of truth with doubt of probability, if any suggested by the accused.

32. Hon'ble the Apex Court in its judgment in the case of Kuria and Another vs State of Rajasthan, (2012) 10 SCC 433 has held in paragraph 34 as under:-

"The testimony of an eyewitness, if found truthful, cannot be discarded merely because the eyewitness was a relative of the deceased. Where the witness is wholly unreliable, the court may discard the statement of such witness, but where the witness is wholly reliable or neither wholly reliable nor wholly reliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the court may base its judgment on the statement of such witness. Of course, in the latter category of witnesses, the court has to be more cautious and see if the statement of the witness is corroborated. Reference in this regard can be made to Sunil Kumar vs State of Punjab, (2003) 11 SCC 367, Brathi vs State of Punjab (1991) 1 SCC 519 and Alaguapndi vs State of T. N., (2012) 10 SCC 451."

33. In a recent judgment in the case of Gurjit Singh v State of Haryana reported in (2015) 4 SCC 380 Hon'ble the Apex Court has observed that testimony of a related witness cannot merely be discarded on the ground of witness being a relative of the deceased. Apart from it, Hon'ble the Apex Court in the case of Veer Singh v State of U. P. reported in (2014) 2 SCC 455 has observed that court can and may act on the single testimony. Legal system has laid emphasis on value, weight and quality of evidence rather than the quantity.

34. Thus, the position has been crystallized with respect to appreciation of evidence of interested or related witness through catena of decisions. In such situation Courts have been enjoined with a greater responsibility of scrutinizing the evidence of related or interested witness with utmost care and caution and if the Court after considering the evidence of such witnesses in its entirety, is of the opinion that their testimony is credible, reliable and trustworthy, then there would be no legal impediment in placing reliance upon testimony of such a related or interested witness.

35. PW 1 and PW 2 are said to be present in the house of deceased father. Their presence cannot be treated as per chance and their presence on the place of occurrence is natural one and it is not an unusual phenomenon if, the son resides with his father along with his wife.

36. PW 1 has categorically stated that on 31.1.1999 at about 9 pm, accused Ahibaran and Suraj came to the house and used filthy abuse and took a position by fire arm towards his father. Accused Ahibaran called him a "big goonda" and asked him "why should I not discharge shot upon you." When the deceased made statement then the accused Ahibaran with intention to kill, discharged shot from his illicit gun ignoring the submissions of deceased. When the witnesses, who were present on the spot, tried to apprehend them, they further extended threats to life by making discharge of shot in the air. The accused went towards Prithivipur village after the incident. The deceased Tota Ram expired on the spot. The way to the police station being in bad shape and out of fear, the FIR could not be lodged with police in the night. This witness has also reiterated the source of light in his oral testimony. Deceased and the witnesses were warming themselves near fire, which is lit in front of the informant's house.

37. PW 2 is wife of PW 1 (informant) and daughter-in-law of deceased. She has also reiterated through her on oath statement the story of FIR and has corroborated the prosecution version as has been stated by PW 1. She has also mentioned about lantern as source of light on the spot.

The witnesses have been put to lengthy cross-examination but, nothing could be elicited by way of cross-examination, which may specifically be categorized as material contradiction and which may have the effect of damaging their testimonies. The examination-in-chief and cross-examination of PW 1 and PW 2 remained coherent. Trivial contradictions, if any, presumed would have no bearing being natural.

38. It has time and again been emphasized by Hon'ble the Apex Court that whenever any witness uniformly makes a statement in his examination-in-chief and cross-examination and there is no contradiction then the other side makes an argument of the witness being tutored one. Minor contradictions are bound to appear in the testimony of any natural witness. As such, contradictions of trivial nature cannot be attributed importance.

39. It has been argued that PW 2 has stated categorically stated that the informant had gone on foot in the morning at 4 am to lodge the FIR whereas PW 1 has stated that at 5 am he went to Awadhesh Kumar for inscribing the written report. These minor contradictions have not any bearing upon the prosecution case. It has further been pointed out by the defence that initially PW 1 left the house on foot but, he went to the police station on a cart being pulled by buffalo (bhaisa gadi). PW 2 did not accompany PW 1 at the time of lodging the FIR. Even if, he reached the police station on a cart being pulled by a buffalo, it does not have any adverse impact on the veracity of the testimonies of witnesses because it might be possible that he rode the cart after travelling some distance on foot.

40. From the testimonies of PW 1 and PW 2 it is explicit that a shot was discharged from the fire arm, which hit the deceased at the chest and he succumbed to the fire shot injury.

41. PW 4 Dr. Raj Kishore has proved the execution of post mortem examination report (Ext Ka.6) and ante mortem injury has been shown at the places as stated by PW 1 and PW 2. Thus, the testimonies of witnesses of fact finds support and corroboration from the medical evidence.

42. In the post mortem examination report (Ext Ka.6) the duration of death has been mentioned as ½ to 1 day. The death has taken place on 31.1.1999 at about 9 pm, which is within the period as noted by PW 4 in Ext Ka.6. Post mortem examination report and the testimony of doctor fully corroborates the factum of assault by fire arm as stated by witnesses of fact.

43. In the site plan (Ext Ka.7) the place where the fire was lit and place of assault of deceased Tota Ram and the place where the source of light i.e. lantern was kept, all have been shown by the I. O. No such suggestion has been given to the I. O., which may raise finger to the facts disclosed by the I. O. in the site plan (Ext Ka.7). The I. O. was fair enough to concede that he did not take the lantern in his possession even after seeing it. Thus, the arguments advanced by the learned counsel for the accused-appellant while arguing the appeal on the aspect of source of light, failed to impress us. When the light was sufficient for the appellant to aim his target then the same light would be sufficient for the witnesses to identify the assailant and witness the incident.

No other point has been brought to the notice of this Bench for consideration.

44. It has been conceded by the learned counsel for the accused-appellant that no defence evidence has been laid on behalf of accused during the course of trial.

45. With respect to the argument of the learned counsel for the accused-appellant that the public witnesses, who were present at the time of incident, have not been examined. It is settled proposition of law that Court should always decide the controversy on the basis of quality of evidence instead of quantity of evidence.

46. On the basis of discussions made above, we are of the considered opinion that the learned Court below has rightly appreciated the evidence available on record and recorded findings of conviction against accused Ahibaran for the offences u/s 302 and 506 IPC. The findings are justified and correct. The judgment and order dated 28.9.2006 passed by the learned Court below convicting and sentencing the accused-appellant Ahibaran, is hereby affirmed. Accordingly, this appeal is dismissed.

47. Accused-appellant Ahibaran is reported to be in jail. He shall serve out the sentence awarded by the learned trial Court.

48. Let the lower Court's record be transmitted back to the Court concerned forthwith along with a copy of this judgment and order for necessary compliance.

(Raghvendra Kumar, J.) (S. V. S. Rathore, J.)

Order Date :-21.8.2015

M. Himwan