Chunan Singh (In Jail) vs State Of U.P.
2015 Latest Caselaw 731 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved Judgment
 

 
Case :- CRIMINAL APPEAL No. - 1215 of 2003
 
Appellant :- Chunan Singh (In Jail)
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Chandra Shekhar Sinha,B L Bhartiya,Manoj Dixit,Rajesh Kumar,Ram Kumar
 
Counsel for Respondent :- Govt. Advocate
 

 

 
Hon'ble Surendra Vikram Singh Rathore, J.

Hon'ble Anant Kumar, J.

(Per Surendra Vikram Singh Rathore, J.)

1.Heard learned counsel for the appellant, learned A.G.A. for the State and perused the material available on record.

2.The instant criminal appeal has been preferred by the appellant-Chunan Singh challenging the judgment and order dated 09.06.2003 passed by learned Additional Sessions Judge, Court No.6, Unnao in Sessions Trial No.30 of 2002 under Section 302/34 IPC and Sessions Trial No.31 of 2002, under Section 25 Arms Act, relating to Case Crime Nos.320 of 2001 and 322 of 2001, Police Station Ajgain, District Unnao, whereby the appellant Chunan Singh alongwith one Rajendra Singh was tried for the aforesaid offences and by the impugned judgment the present appellant was convicted for the offence under Section 302 IPC and he was sentenced with imprisonment for life. However, co-accused Rajendra Singh was acquitted of the charges levelled against him. Appellant Chunan Singh was also acquitted for the offence under Section 25 Arms Act.

3.In brief, the case of the prosecution was that the complainant Smt. Nirmala Devi lodged an FIR at Police Station Ajgain, District Unnao on 31.10.2001 at 16:45 hours alleging therein that on the same day the complainant, her son Vikram Singh and her daughter Seema Singh were present in the house. At about 2.00 p.m. the said Vikram Singh came out of the house and he was standing in the verandah of his house. Meanwhile appellant Chunan Singh armed with a country made pistol and co-accused Rajendra Singh armed with lathi reached there and hurled filthy abuses to Vikram Singh and appellant Chunan Singh fired at him which hit him on left side of his chest below the ribs due to which he fell down. The complainant Smt. Nirmala Devi raised alarm but co-accused Rajendra Singh closed her mouth. Hearing the noise several persons namely Bacchu Lal and others reached there then the accused persons went away from there extending threats of dire consequences. The complainant alongwith his son Vikram Singh, in injured condition, went to the police station and lodged the FIR. The case was initially registered under Section 307 IPC and it was initially investigated by S.I. Naresh Chandra Yadav and in the same night Vikram Singh succumbed to the injuries received by him, therefore, on the same day at 22:50 hours the case was converted under Section 302 IPC and further investigation was conducted by PW-6 S.O. Jaisraj Yadav. During investigation, the appellant and Rajendra Singh were arrested by the police on a secret information of an informer on 02.11.2001 at 10.30 a.m. One country made pistol was recovered from his possession which, as told by the accused, was the same weapon with which he has committed the offence.

4.After completing the investigation, the charge-sheet was filed against both the accused persons.

5.The post mortem of the deceased Vikram Singh was conducted on 01.11.2001 by PW-3 Dr. R.K. Agarwal at 3.30 p.m. and in his post mortem one fire arm wound of entry on the left side of chest measuring 3.5 cm. X 2.5 cm. cavity deep with blackening around wounds with inverted margins was found. The direction of the wound was upward and backwards. In the opinion of the doctor the death was about one day old.

6.The case of the defence was of total denial. It was submitted that the deceased himself was testing his own country made pistol and during this process the said pistol fired due to which he received injuries and ultimately he died and the appellant has been falsely implicated in this case because of the village enmity.

7.In order to prove its case, the prosecution has examined PW-1, Seema, sister of the deceased, PW-2 Smt. Nirmala Devi, mother of the deceased, PW-3 Dr. R.K. Agarwal, who has conducted the post mortem of the deceased, PW-4 Constable Daya Shanker who has prepared the chik report and G.D. of the case under Section 307 IPC which was subsequently converted under Section 302 IPC, PW-5 S.I. Naresh Chandra Yadav, initial Investigating Officer of this case, PW-6 S.O. Jaisraj Yadav who has conducted the investigation after the case was converted under Section 302 IPC, PW-7 Constable Vinay Kumar Tiwari, who has prepared the chik report and G.D. of the case under Section 25 of the Arms Act and PW-8 Dr. B. Lal who has conducted the medical examination of one Bachhu Lal who in the same incident is alleged to have sustained injuries.

8.Appellant in his statement under Section 313 Cr.P.C. has stated that his sasural is situated in village Padariya which is also village of the complainant. He got some land in his sasural and the complainant is also related to the members of his wife's parental home. Because of the enmity of the agricultural land he has been falsely implicated in this case.

9.On behalf of the appellant DW-1 Raj Singh son of Bhagwant Singh has been examined.

10.After appreciating the evidence on record, the trial court convicted the appellant as above. Hence the instant appeal.

11.Submission of the learned counsel for the appellant was that in this case Bacchu Lal who is alleged to have sustained injuries, has not been examined. The country made pistol which is alleged to have been recovered from the possession of the appellant Chunan Singh was sent to Forensic Science Laboratory but Forensic Science Lab report does not support the case of the prosecution. He has further submitted that in this case, the prosecution evidence with regard to co-accused Rajendra Singh has been disbelieved, therefore, the same evidence cannot be believed with regard to the present appellant. He has further submitted that only related witnesses have been examined in support of the case of the prosecution and no independent witness could be produced by the prosecution to support their case.

12.Learned Additional Government Advocate has submitted that in this case a prompt FIR has been lodged and there is no law that the evidence of related witnesses cannot be relied upon even if it is found to be wholly reliable. He has further submitted that the accused appellant has come with a vague defence of the enmity of land and no specific enmity or specific relationship of the complainant with the family members of his wife could be brought to the notice of the Court to show that such defence of false implication has any substance. He has further submitted that the appellant is the person who has fired on the deceased and caused his death. The firing on the body of the deceased was made from a very close range and it stands proved because blackening was also found around the wound. So the case of the prosecution stands proved. Co-accused Rajendra Singh was acquitted because he is alleged to be armed with lathi only and no injury of lathi was found on the person of the deceased. Therefore, the trial court has rightly acquitted co-accused Rajendra Singh. No appeal against the acquittal of Rajendra Singh has been preferred by the State or by the complainant.

13.The first point to be considered in this case is the delay in FIR. The incident of this case is alleged to have taken place on 31.10.2001 at 2.00 p.m. and the FIR of this case has been registered on the same day at 16:45 hours i.e. only after 2 hours and 45 minutes of the incident. According to the chik report, the distance of the village from the police station was 12 kilometers. During this period the complainant side must have made arrangement to take Vikram Singh in injured condition to the police station and thereafter he was taken to Hospital.

14.Thus in our considered opinion there is no delay in lodging the FIR. Hon'ble the Apex Court in the case of Jai Prakash Singh V. State of Bihar reported in (2012) 4 SCC 379 has observed that a promptness in filing FIR gives assurance of veracity of the informant and reflects first hand account of occurrence and persons responsible therefor. Object to insist upon prompt FIR is to obtain information regarding circumstances in which crime was committed, names of actual culprits, parts played by them as well as names of eye witnesses. FIR is a valuable piece of evidence though not substantive evidence.

Therefore, in this case prompt FIR has been lodged and specific allegation of firing by country made pistol on the deceased Vikram Singh has been assigned to the present appellant.

15.PW-1 Seema Singh has given detailed description of the incident and has assigned the specific role of firing to the present appellant. She has also stated that the appellant Chunan Singh fired at the deceased from a distance of one and half paces which hit Vikram Singh. She has undergone long cross-examination but nothing material could be elicited from her cross-examination to make any dent on her credibility. Likewise she has also denied the suggestion of the defence that the deceased sustained fire arm injury while he was sitting on Takhat and was opening his own country made pistol. Likewise, PW-2 Nirmala Devi has given similar statement and she has also undergone a lengthy cross-examination but nothing in her cross-examination could be elicited which makes her evidence unreliable. From the place of occurrence police has recovered the pellets wad and empty cartridge which established the place of occurrence. The place of occurrence was inspected on the same day by the initial Investigating Officer and place 'A' has been shown where from fire was opened which hit the deceased while he was standing at point 'B'. The distance between two points was only one and half paces. These witnesses (PW-1 and PW-2) were present on a Takhat which was lying towards west of the place where from the appellant Chunan Singh fired. So all these persons were very close to each other and this incident has taken place in broad day light at 2.00 p.m. so there was ample opportunity for the witnesses to see the incident and recognize the assailant.

16.We have gone through the evidence of PW-1 and PW-2. They are sister and mother of the deceased respectively and their evidence shows that their evidence is very consistent regarding the role played by the present appellant and they have stated that he is the person who fired at the deceased from a close range and their evidence stands fully corroborated by the medical evidence wherein one fire arm wound of entry was found on the chest of the deceased with blackening around the wound. Learned counsel for the appellant has challenged the evidence of these two witnesses on the ground that there are some contradictions in the evidence of these witnesses. But we find only minor discrepancies in the evidence of these two prosecution witnesses. Minor discrepancies are bound to occur. It does not make their evidence unreliable.

17.Hon'ble the Apex Court in the case of State of U.P. Vs. Naresh reported in JT 2011 (3) SC 508 has held as under:-

"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely; errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.

Exaggerations per se do not render the evidence brittle. But it can be done of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.

Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited."

A similar view has been reiterated by this Court in Tehsildar Singh & Anr V. State of U.P., [AIR 1959 SC 1012]; Pudhu Raja & Anr. V. State, Rep. By Inspector of Police, [JT 2012 (9) SC 252]; and Lal Bahadur v. State (NCT of Delhi), [(2013) 4 SCC 557)].

Thus, it is evident that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence."

So in our considered opinion the discrepancies towards which the learned counsel for the appellant has drawn our attention, were of minor nature and does not go to the root of the case. These minor contradictions go on to show that the witnesses were not tutored and they are giving evidence which was seen by them. The incident has taken place on the house of the deceased and these two witnesses, though they are related to the deceased, but are the most natural witnesses because they are inmates of the house and their presence on the scene of occurrence cannot be doubted. Their evidence has also been assailed on the ground that they are related witnesses. There is no dispute to the fact situation that PW-1 is the sister of the deceased and PW-2 is the mother of the deceased but there is no law that the evidence of close relatives cannot be acted upon even if they are wholly reliable and their presence on the scene of occurrence stands established. In a recent judgment passed in the case of Mano Dutt Vs. State of U.P. reported in 2012 (4) SCC 79 Hon'ble Apex Court on this point has observed as under:

"There is no bar in law in examining family members or any other person, as witnesses since in cases involving family members of both sides it is a family member or a friend who come for the rescue of injured. When statement of such witness is found to be credible, reliable, trustworthy, admissible in accordance with law and corroborated with other witnesses or documentary evidence of the prosecution, Court cannot reject such evidence merely on ground that witness was family member or interested witness or person known to affected party. However, where testimony of sole witness is discarded in toto as being wholly unreliable, no amount of corroborating can cure that defect."

18.We would like to quote another judgment of Hon'ble the Apex Court in the case of Kuriya and another vs State of Rajasthan, (2012) 10 SCC Pg 433 has held in paragraph no. 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 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 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 Alagupandi vs State of T.N., (2012) 10 SCC 451.

19.In a very recent judgment in the case of Gurjit Singh @ Gora V. State of Haryana reported in (2015) 4 SCC 380, Hon'ble Apex Court has observed in para 17 as under:-

"It is settled law, that the statement of a relative of the deceased cannot be discarded merely on the ground that he or she is an interested party. In Anwar Ali v. State of U.P., (2011) 15 SCC 360, this Court rightly observed that once the prosecution has been able to prove its case by leading admissible and cogent evidence with reference to statements of the witnesses, the same cannot be brushed aside merely on the ground that the witnesses are relatives of the deceased. In Kartik Malhar V. State of Bihar (1996) 1 SCC 614, this Court held that even a close relative who is a natural witness cannot be regarded as an interested witness. The term "interested" postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some animus or for some other reason. More recently, this principle was upheld in Ashok Rai v. State of U.P., (2014) 5 SCC 713, whereby this Court clearly stated that the evidence of interested witnesses is not infirm. The High Court has also disagreed with the Trial Court that the fight took place at the spur of the moment and the accused had not conspired with each other to commit the crime, since there was no evidence to that effect."

20.In such circumstances the query would be as to why these close relatives of the deceased would spare the real assailants and falsely implicate the innocent person. The defence could not show that their defence is probable. The case of the defence is not the least probable that he has been falsely implicated due to enmity. No such enmity could be elicited in the cross-examination nor any such specific enmity was suggested.

21.Submission of the learned counsel for the appellant was that co-accused Rajendra Singh has been acquitted on the basis of the same evidence, therefore, the same evidence can not be relied upon with regard to the present appellant. But we are not impressed with this arguments because principles of falsus in uno, falsus in omnibus has no application in India. It is merely a rule of caution. It does not have the status of rule of law in India. In Balaka Singh V. State of Punjab reported in (1975) 4 SCC 511 Hon'ble Apex Court has said that where it is not feasible to separate truth from falsehood, because the grain and the chaff are inextricably mixed up, and in the process of separation, an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and background against which they are made, the Court cannot make an attempt to separate truth from falsehood. But, as we have already noted, this is not a case where the grain and chaff are inextricably mixed up. The evidence of the eye witnesses is not discrepant on the material aspect of the prosecution case. Reliance can, therefore, be placed on them. In this connection, reliance placed by the counsel for the State on Rizan V. State of Chhattisgarh reported (2003) 2 SCC 661 is apt.

22.Reference may also be made on this point to the pronouncement of Hon'ble Apex Court in the case of Manjit Singh V. State of Punjab reported in (2013) 12 SCC 746 wherein para 27 the Hon'ble Apex Court has observed as under:-

"27. It is well settled in law that unless the entire case of the prosecution suffers from infirmities, discrepancies and material contradictions and the prosecution utterly fails to establish its case, acquittal of some accused persons cannot be a relevant facet to determine the guilt of other accused persons. In Dalbir Singh v. State of Haryana reported in (2008) 11 SCC 425 a two-Judge Bench reproduced para 51 from Krishna Mochi and Others v. State of Bihar reported in (2002) 6 SCC 81 wherein it has been stated that the maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is, that in such cases testimony may be disregarded, and not that it must be disregarded."

23.Keeping in view the role assigned to co-accused Rajendra Singh, and his acquittal would not adversely affect the case of the prosecution and the present appellant would not get any benefit of his acquittal.

24.Entirely different role were assigned to both the accused persons. No role of causing any injury was assigned to Rajendra Singh while specific allegation of firing on the deceased with country made pistol was assigned to the present appellant from the very beginning. So the facts are not so mixed up that cannot be separated.

25.Learned counsel for the appellant has also vehemently argued that countrymade pistol which is alleged to have been recovered from the possession of the appellant, was sent to Forensic Science Laboratory but the report of the Forensic Science Lab does not corroborate the case of the prosecution. As per the report of Forensic Science Laboratory the disputed cartridge was not fired by the said country made pistol. But in the instant case the said pistol is not alleged to have been recovered from the possession of the appellant on the spot but it was recovered after about 2 days of the occurrence. At the time of recovery of the said pistol, the accused himself told that this is the weapon of offence so it was very much open to the appellant to change the said country made pistol during this interval of two days and to produce another pistol to the Investigating Officer to save himself and to get the result of Forensic Science Laboratory in his favour. The appellant Chunan Singh has already been acquitted of the charge under Section 25 of Arms Act. Thus the subsequent recovery of country made pistol from his possession was found to be false. Even if the said recovery has been found to be false even then it is not going to adversely affect the case of the prosecution because that was a subsequent incident and it was only an additional circumstance. So it would not adversely affect the evidence of PW-1 and PW-2.

26.It has also been argued that the injured witness Bachhu Lal has not been examined. Bachhu Lal has received superficial type of injuries. While appreciating the evidence the Court cannot ignore the ground realities. In the present day world, people avoid to become witness in criminal cases. Hon'ble Apex Court in the case of Shiv Ram v. State of U.P. 1998 SCC Pg 149 has considered this aspect and was of the view that nowadays it is a common tendency that no outsider would like to get involve 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 persons but what is required in such situation is that the Court must scrutinize the evidence of such witnesses with utmost care and caution.

27.In another case Appa vs State of Gujarat, AIR 1988 SC Pg 698 Hon'ble Apex Court observed that 'Experience reminds us that civilized people are generally insensitive when crime is committed even in their presence. They withdraw from both, victim and vigilant. They keep themselves away from the Court. They take crime as a civil dispute. This kind of apathy of general public is indeed unfortunate but it is everywhere whether in village life or town and city. One cannot ignore this handicap. Evidence of witnesses has to be appreciated keeping in view such ground realities. Therefore, the Court instead of doubting the prosecution case where no independent witness has been examined must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any suggested by the accused.

28.It has also been argued on behalf of the appellant that non- examination of Bachhu Lal would adversely affect the case of the prosecution. But law is settled on the point that it is not necessary for the prosecution to examine all the witnesses. It is the quality of the evidence and not the quantity of the evidence that matters for the Court. Simply because Bachhu Lal has not been examined, this cannot be a ground to discard the otherwise reliable testimony of PW-1 Smt. Seema Singh and PW-2 Nirmala Devi. On this point a reference may be made to the pronouncement of Hon'ble the Apex Court in the case of State of Gujarat V. Kishanbhai reported in (2014) 5 SCC 108. We would like to quote para 14.1 and 14.2 of the said judgment which reads as under:-

14.1 Referring to the judgment rendered by this Court in Ram Prasad & Ors. v. State of UP, (1974) 3 SCC 388, it was asserted at the hands of the learned counsel for the appellant, that non-examination of some of the eye- witnesses would not introduce a fatal infirmity to the prosecution case, specially when conviction could be based on evidence produced by the prosecution.

14.2 Reference was also made to Takhaji Hiraji V. Thakore Kubersing Camnsing & Ors. (2001) 6 SCC 145, and it was pointed out, that this Court has ruled that in cases where witnesses already examined were reliable, and the testimony coming from the mouth was unimpeachable, a court could safely act upon the same uninfluenced by the factum of non-examination of other witnesses. Yet again the conclusion was, that reliable evidence should be available, to determine the culpability of an accused, and in the above view of the matter it would be irrelevant whether some others who could have deposed on the facts in issue had not been examined.

29.Learned counsel for the appellant has also drawn our attention towards the evidence of DW-1 Raj Singh son of Bhagwant Singh, it is alleged that this defence witness has supported the defence story and has stated that while deceased Vikram Singh was testing his country made pistol it accidentally fired which ultimately proved fatal. But the evidence of this defence witness was not found reliable by the trial court. Learned trial court has given several reasons to disbelieve the evidence of this witness. It has been observed that at no point of time this witness made any effort to bring this fact to the notice of the police while the police has visited the village of occurrence several times in connection with the investigation of this case which is clear from the evidence of the two Investigating Officers. He made no effort to move any application to this affect before Court or before any higher authorities concerned. Apart from it, there is one very glaring fact that this witness was also a witness in the inquest proceedings but even at that time he has not given this information that it is a case of accidental death. So the evidence of this witness was not the least reliable and has rightly been discarded by the trial court.

30.In view of the discussion made hereinabove, we are of the considered view that the prosecution has been able to prove its case beyond any reasonable doubt against the present appellant. This appeal has no force deserves to be dismissed and is hereby dismissed. The appellant is in custody.

31.Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance.

 
Order date:28th May, 2015
 
PAL
 
Crl. Appeal No.1215 of 2003          (Anant Kumar, J.)   (S.V.S. Rathore, J.)