Roop Narain Mishra vs State Of U.P.
2016 Latest Caselaw 6603 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										A.F.R.
 
									          Reserved
 
Case :- CRIMINAL APPEAL No. - 6708 of 2008			
 
Appellant :- Roop Narain Mishra
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rajiv Gupta,Amit Misra,Anil Mishra,Brijesh
 
Sahai,Dileep Kumar,Ghan Shyam Das,Kamal Krishna,P.C.
 
Saxena,Prakash Chandra Shakya,S.K.Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
connected with
 
Case :- CRIMINAL APPEAL No. - 4734 of 2008
 
Appellant :- Indra Narain Mishra
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rajiv
 
Gupta,Dileep Kumar,Prakash Chandra Shakya
 
Counsel for Respondent :- Govt.
 
Advocate,A.K. Srivastava
 

 
Hon'ble B.K. Narayana, J.

Hon'ble Arvind Kumar Mishra-I, J.

(Delivered by Hon'ble Bala Krishna Narayana, J.)

The appellants Roop Narain Mishra and Indra Narain Mishra have preferred these two criminal appeals under Sections 374(2) Cr.P.C. against the judgement and order dated 31.7.2008 passed by the Sessions Judge, Kannauj in S.T. No. 248 of 2006 (State vs. Roop Narain Mishra and others), by which the appellants, Roop Narain Mishra and Indra Narain Mishra have been convicted under Sections 302 and 302/34 I.P.C. respectively and sentenced to imprisonment for life and a fine of Rs.5000/- each and in default of payment of fine additional six months rigorous imprisonment.

The facts of this case as spelt out in the F.I.R. and later testified by the four witnesses of fact examined on behalf of the prosecution during the trial are that on the basis of a written complaint Ext. Ka-1 given by the complainant Shakir Hussain PW1 at police station-Chibramau, district-Kannauj on 24.08.1993 at about 10:30 p.m, stating therein that about three days before the occurrence appellant Roop Narain Mishra who is the resident of same village had gone to the tailoring shop of his father Chiraguddin alias Zahoor Islam (deceased) and requested him to stitch a case and a pouch for him for keeping his handmade gun and bullets but when his father Chiraguddin declined to accept his request for the reason that he was carrying on the profession of stitching clothes and not cases and pouches for keeping illicit weapons and bullets, the appellant Roop Narain Mishra felt deeply insulted and returned back from his shop threatening him with dire consequences and with a view to take his revenge from his father, while the complainant and his father along with Damodar Prasad, Yagya Kumar and Ashwani Kumar were sitting in front of the door of the house of Ram Lakhan on 24.8.1993 at about 6:00 p.m. and discussing amongst them about sprinkling of manure in their agricultural fields, accused Roon Narain, Sujeet alias Guddu armed with ''tamanchas', Raj Kishore and Indra Narain armed with ''dharia' arrived at the place of incident and Indra Narain Mishra exhorted accused Roop Narain to kill Chiraguddin who had insulted him by refusing to stitch his pistol case, whereupon Roon Narain fired with his firearm on the face of Chiraguddin as a result of which the complainant's father Chiraguddin fell on the cot and died instantaneously where after accused Indra Narain, Roop Narain, Raj Kishore and Sujeet alias Guddu ran away from the place of occurrence firing with their fire arms in the air and threatening the complainant and the other persons who were present there with dire consequences in case they dared to clash with them. On the basis of the written complaint given by the PW1 Ext.Ka-1, PW6 Babu Lal Yadav who on the date of incident was posted as Head Moharrir at police station-Chibramau prepared the chek F.I.R. and registered a case under Sections 302/506 I.P.C. as Case Crime no. 57 of 1993 and made the relevant G.D. entry vide rapat no. 44 at 10:30 p.m. which is on record as Ext. Ka-4. The investigation of the case was entrusted to PW7 Sub Inspector Ved Pal Singh who after copying down the chek F.I.R. and the relevant G.D. entry in the case diary on 25.8.1993 recorded the statement of Head constable Babu Lal Yadav and left the police station for the place of incident along with the police force. On arriving at the place of incident he recorded the statement of complainant Shakir Hussain and on his instance inspected the place of incident and prepared site plan Ext.Ka-5. He also collected plain and blood stained soil from the place of occurrence and kept the same in two different containers and prepared recovery memo Ext. Ka-6 and held the inquest of the dead body of the deceased at 7:00 a.m., he got the inquest report prepared by R.P. Yadav under his supervision along with the other documents namely, photolash, letter addressed to Chief Medical Officer and challan lash and after sealing the dead body of the deceased handed it over to Constable Sarvesh Chandra Dwivedi and Constable Daya Shankar Tripathi for being transported to Fatehgarh for conducting the postmortem. He also recorded the statement of PW4 Ram Lakhan, witness of inquest and after arresting accused Sujeet alias Guddu on the same day at about 7:00 p.m. recorded his statement.

The postmortem of the dead body of the deceased Chiraguddin alias Zahoor Islam was conducted on 25.8.1993 by PW5 Dr. R.K. Chaudhary who prepared his postmortem report Ext.Ka-2. The postmortem report of the deceased denotes following antemortem injury on his dead body :

"Firearm wound of entry 4.5 x 3 cm bone deep on left side face involving left eye and nose margins inverted lacerated and ecchymosed. Tattooing and blackening around wound 5.5 cm x 4 cm on dissection fracture of nasal and maxilla both side and orbital bone left side fracture, right side mandible angle fracture right side neck vessels including carotid lacerated and recovered one bullet point right side lateral part of neck lower part with lacerati on of neck muscles right side with blood clot. Direction left to right downwards and onward. Both eye balls lacerated."

The deceased according to postmortem report had died as a result of antemortem injury. The time of death was estimated to be about one day before the postmortem. Accused Indra Narain Mishra and Raj Kishore upon initiation of proceedings against them under Sections 82 and 83 of the Cr.P.C. on the request of the Investigating Officer surrendered before the concerned Court and were remanded to police custody. Thereafter the process of investigation of the case was transferred on 18.6.1996 to C.B.C.I.D. and entrusted to PW8 Roshan Lal Jayant, Inspector C.B.C.I.D. who after recording the statements of the witnesses dispatched the plain and blood stained soil collected from the place of incident to the Forensic Laboratory, Lucknow and after completion of investigation process submitted charge sheet Ext.Ka-11 against all the accused under Section 302/ 506 I.P.C. before the Chief Judicial Magistrate, Kannauj on 13.11.1996. Since the offences enumerated in the charge sheet were triable exclusively by the court of session, the Chief Judicial Magistrate, Kannauj committed the case for trial of the accused to the court of Sessions whereupon it was registered as S.T. no. 248 of 2006.

On the basis of the material collected during investigation charge was framed against the accused under Section 302 I.P.C. read with section 34 and 506 I.P.C. The accused pleaded not guilty and claimed trial.

The prosecution in order to prove its case examined as many as eight witnesses. PW1 Shakir Hussain, PW2 Ashwani Kumar Mishra, PW3 Yagya Kumar, PW4 Ram Lakhan were examined as eye witnesses of the incident. PW5 Dr. R.K. Chaudhary proved the postmortem report Ext.Ka-6, PW6 Babu Lal Yadav proved the chek F.I.R. Ext.Ka-3 and the relevant G.D. entry Ext.Ka-4, PW7 Ved Pal Singh, the first Investigating Officer of the case proved the site plan Ext.Ka-5, recovery memo of plain and blood stained earth from the place of incident Ext.Ka-6, inquest report Ext.Ka-7, letter addressed to C.M.O., challanlash, letter written to R.I. (Ext.Ka-8, Ext.Ka-9 & Ext.Ka-12) by deposing that the aforesaid documents were prepared by S.I., R.P. Yadav under his supervision and PW8 Inspector C.B.C.I.D Roshan Lal who had completed the investigation and submitted charge sheet Ext.Ka-11, proved the same. Closure of recording of prosecution evidence was followed by examination of all the accused under section 313 Cr.P.C. who denied the prosecution case and alleged that they had been falsely implicated due to enmity. Accused Roop Narain Mishra in his statement under Section 313 Cr.P.C. stated that while he was posted as clerk in Rishal Singh Inter Collage, Mahoi in 1989, which was established by his grandfather Risal Singh who was also its manager, Damodar Prasad had requested him to appoint his son in the college which he had declined on account of which Damodar Prasad had become inimical towards him. Chiraguddin, Ram Lakhan and Damodar were carrying on the business of selling potatoes in partnership and Damodar had got the present case registered against him by winning over the complainant and the other witnesses on his side. There was old enmity between Chiraguddin and one Subhash Bhurji who was a member of the gang of Lala Ram and he had got Chiraguddin murdered.

Accused Indra Narain and Sujeet alia Guddu in their statements under Section 313 Cr.P.C. alleged that they had been falsely implicated in the present case on account of their being relatives of Roop Narain, while Raj Kishore stated that his friendship was with Roop Narain was the only reason for his implication in the present case. The accused also examined Head Moharrir 10 Jitendra Singh Chandel as DW1.

After very carefully considering the submissions made by learned counsel for the parties before him and scrutinizing the evidence on record both oral as well as documentary, the learned Sessions Judge, Kannuj convicted the appellants Roop Narain Mishra and Indra Narain Mishra under Section 302 and 302/34 I.P.C. and sentenced them to imprisonment for life while accused Sujeet alias Guddu and Raj Kishore were acquitted of the charge framed against them.

Learned counsel for the appellants has submitted that the prosecution having failed to prove its case against the appellants beyond all reasonable doubts, their recorded conviction can not be sustained and is liable to be set aside. Learned counsel for the appellants has assailed the impugned judgement and order on the following grounds :-

(i) The first information report of this case Ext.Ka-3 which was registered on the basis of the written report of the incident Ext.Ka-3 given at police station-Chibramau by PW1 Shakir Hussain on 24.08.1993 at 22:30 hours is ante timed.

(ii) The prosecution has miserably failed to prove by any cogent evidence that the incident had taken place either at the time or the place mentioned in the F.I.R. The Investigating Officer had neither found any pallets at the place of incident although it was alleged by the prosecution witnesses that the accused while retreating from the place of incident after committing the murder of the deceased had fired with their firearms in the air nor any blood was found on the weaved strings of the cot on which the deceased had fallen after being shot by the accused. No blood stained soil was found at the place of incident mentioned in the F.I.R. and the forensic report of the plain and blood stained soil allegedly collected by the Investigating Officer from the place of incident was not produced during the trial.

(iii) The prosecution has also failed to prove that the incident had taken place in the manner described in the F.I.R. and also the motive assigned to the appellants for committing the offence in the F.I.R. The conviction of the appellants is based upon the testimony of witnesses who, apart from the complainant, who is the son of the deceased and whose presence at the place of incident at the time of occurrence is extremely doubtful, are highly interested witnesses and whose testimony was partially disbelieved by the trial court itself by acquitting co-accused Sujeet alias Guddu and Raj Kishore, the conviction of the appellants on the basis of the same evidence is wholly unjustified.

Per contra, Sri Sagir Ahmad, learned A.G.A. appearing on behalf of the State has made his submissions in support of the impugned judgement and order. Refuting the arguments made by learned counsel for the appellants, Sri Sagir Ahmad submitted that all the four witnesses of fact have fully supported the prosecution case as spelt out in the F.I.R. on all material particulars which stand further fully corroborated from the medical evidence on record. The conviction of the appellants is not liable to be set aside merely on the ground of latches on the part of the I.O. of the case in conducting the investigation as the appellants have failed to plead or prove that any prejudice was caused to them due to latches on the part of I.O. or the omissions committed by him during the course of investigation. The conviction of the appellants recorded by the trial court is based upon cogent evidence and sentence awarded to them is supported by relevant considerations. The appellants can not claim their acquittal on the ground of acquittal of co-accused Sujeet Kumar alias Guddu and Raj Kishore on the basis of the testimonies of the same witnesses on which they have been convicted as the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything) does not occupy the status of rule of law, it is merely a rule of caution. The impugned Judgement and order do not merit any interference by this Court. This appeal lacks merit and is liable to be dismissed.

We have very carefully heard Sri Dilip Kumar, learned counsel for the appellants and Sri Sagir Ahmed, learned A.G.A. for the State.

F.I.R : From the perusal of the written report Ext.Ka-3, it transpires that the same was scribed by PW1 complainant himself and thereafter it was given by him to the police station-Chibramau at 10:30 p.m. on 28.4.1993. Upon perusal of record of the case there does not appear to be any contradiction with regard to the place of scribing of F.I.R. mentioned in the F.I.R. and in the testimony of PW1. The F.I.R. does not contain any recital that the same was scribed by PW1 at the police station. Learned counsel for the appellants submitted that the F.I.R. is ante-timed as neither the photolash nor challan lash contain any crime number and further the F.I.R. was sent to the concerned Magistrate after nine days and signed by him on 3.9.1993. Regarding the challenge of the appellants' counsel to the F.I.R. being ante timed, we do find that neither the challanlash nor the photolash contain any crime number and that the F.I.R. of the incident was signed by the Chief Judicial Magistrate on 3.9.2013 but the aforesaid circumstances in themselves are not sufficient for us to infer that the F.I.R. in this case is ante timed for the simple reason that in the inquest report Ext.Ka-7 which was prepared along with photolash and challanlash and sent to the District Hospital, Fatehgarh for conducting the postmortem of the dead body of the deceased, Case Crime no. 571 of 1993 is clearly written. As far as the signing of the F.I.R. by the concerned Magistrate on 3.9.1993 is concerned, it does not prove that the F.I.R. was sent to him on 3.9.1993, it merely denotes that the concerned Magistrate had seen the F.I.R. on 03.09.1993 and put his signature thereon on that date. Non mentioning of the number of case crime on Ext.Ka-7 and Ext.Ka-8 is merely an omission on the part of the Investigating Officer which would not accrue to the benefit of the accused in any manner. In the absence of any suggestion given by the defence counsel to PW6 Babu Lal Yadav who had received the written complaint Ext.Ka-3 of the incident and registered the case in the G.D. that he had failed to dispatch the F.I.R. to the concerned Magistrate promptly, we can not presume that the F.I.R. was sent to the concerned Magistrate on 3.9.1993. Another circumstance which has been highlighted by the learned counsel for the appellants in support of his argument that the F.I.R. in this case is ante timed is that the copy of the F.I.R. was given to the complainant PW1 after two days of the incident as admitted by him on page 4 of the paper book. Learned counsel for the appellants has further stated that the arrival of the Investigating Officer at the place of incident after an inordinate and unexplained delay of about five and half hours is also a very relevant factor pointing to the fact that the F.I.R. was not registered at the time alleged by the prosecution. In our opinion the aforesaid two circumstances brought to our notice by learned counsel for the appellants to convince us that the F.I.R. is ante timed also in our opinion are neither material nor relevant for holding that the F.I.R. in this case is ante-timed.

The next ground on which the appellants' counsel has assailed the impugned judgement and order is that the prosecution has failed to prove by any cogent evidence that the incident had taken place either at the time or the place mentioned in the F.I.R. F.I.R. of the occurrence Ext.Ka-3 was lodged by PW1 Shakir Hussain, stating therein that on 24.8.1993 at about 6 p.m. while the deceased, his son complainant and witnesses Damodar, Ashwani Kumar, Yagya Kumar and Ram Lakhan were sitting on two cots in front of the door of the house of PW4 Ram Lakhan and talking among themselves the accused Roop Narain Mishra, Sujeet alias Guddu, Raj Kishore and Indra Narain arrived at the place of incident armed with country made guns and ''dharia' and on the exhortation of Indra Narain appellant Roop Narain fired a shot from his firearm which hit the deceased Chiraguddin @ Hazoor Islam on his face causing his instantaneous death. As far as the time at which the deceased had been shot is concerned apart from the unimpeachable evidence of four eye witnesses on the aforesaid point showing that the deceased was shot at 6:00 p.m. on 24.8.1993 we have the evidence of PW5 Dr. R.K. Chaudhary on record who in his examination-in-chief on page 69 of the paper book has stated that the antemortem injury found on the dead body of the deceased which had resulted in his death could have been inflicted on him on 24.8.1993 at about 6 p.m. The correctness of the time of the incident mentioned in the F.I.R. has been challenged by the learned counsel for the appellants also on the ground of presence of pasty foods in his intestines. He has submitted that in case the incident had taken place at the time alleged by the prosecution then semi digested food ought to have been found in his intestines. There being no cross-examination of any of the prosecution witnesses by the defence with regard to the time at which the deceased had taken his meal, we can not doubt the correctness of time of incident mentioned in the F.I.R.

We now come to the next ground on which the learned counsel for the appellants has assailed the impugned judgement that the prosecution has failed to prove by any cogent evidence that the incident had taken place in front of the door of the house of Ram Lakhan as alleged in the F.I.R. We have perused the site plan of the place of incident Ext.Ka-5. In the site plan the place where the dead body of the deceased was found lying has been shown by letter-A which is in front of the house of Ram Lakhan PW4 across the kharanja road while the spot where the deceased and the eye witnesses were sitting on a cot has been denoted by letter-B. The place where the other cot was lying has been shown by letter-C. Letter-D in the site plan denotes the place where witness Ram Lakhan was sitting and letter-E denotes the place where drawing room of PW4 exists. The place from where the appellant Roop Narain had shot the deceased has been denoted by letter-F. The site plan indicates that the accused had come from the northern side and after committing the crime had escaped in the same direction. It is true that the Investigating Officer neither seized any cot from the place of incident nor there is any cogent evidence connecting the blood stained soil collected by the I.O. allegedly from the place of incident with the soil of the place of occurrence and it is equally true that all the prosecution witnesses have deposed that several shots were fired by the accused in the air while retreating from the place of incident but the I.O. had not found any fired pallets at the place of incident. It has also been submitted by learned counsel for the appellants that the place where the dead body of the deceased was found is not in front of the door of the house of Ram Lakhan as a ''kharanja' road separates the house of Ram Lakhan from the place where his dead body was found which was in a shape of khandhar and at a distance of about 20 meters from the house of Ram Lakhan. We are unable to agree with the aforesaid contention of learned counsel for the appellants. By no stretch of imagination can it be said that the place where the incident had taken place or the place where the dead body of the deceased was found is not in front of the door of the house of Ram Lakhan merely because a ''kharanja' road intervenes between the house of Ram Lakhan and the place of incident. We are also unable to agree with the contention of learned counsel for the appellants that the place mentioned in the F.I.R. where the occurrence had taken place cannot be said to be in front of the house of Ram Lakhan. As far as the omissions on the part of the Investigating Officer to make any mention of the presence of two cots at the place of incident or to seize the same or to collect fired pallets or to notice any blood on the weaved strings of the cot on which the deceased had fallen after the assault and to seize the same is concerned, the same, in our opinion at best can be described as latches on the part of the Investigating Officer in conducting the investigation which do not affect the core of prosecution case. The appellants have failed to prove or even suggest that on account of the aforesaid latches of the I.O. they have suffered any prejudice. All the four eye witnesses of the incident have in their evidence recorded before the trial court unanimously stated that the incident had taken place in the ''khandhar' in front of the house of Ram Lakhan and mere omission on the part of the complainant to mention in the F.I.R. that the deceased and the eye witnesses were sitting in the ''khandhar' across the 'kharanja' in front of the door of the house of Ram Lakhan would not lead us to infer that the prosecution has failed to prove that the occurrence had taken place at the place described in the F.I.R. as the evidence of the four eye witnesses with regard to the place of incident stands fully corroborated from the place of incident shown in the site plan Ext.Ka-5 which was prepared at the behest of PW1. All the four eye witnesses were subjected to a long drawn cross-examination by the defence counsel but he has failed to extract anything from them which may even remotely create a doubt with regard to the veracity of the facts stated by them in their evidence.

Motive : According to the prosecution case the motive to commit the crime in question had come into existence on 21.8.1993 about three days before the incident when it is alleged that A1 Roop Narain Mishra had gone to the tailoring shop of the deceased Chiraguddin alias Zahoor Islam and requested him to stitch a case and a pouch for keeping his handmade gun and bullets but deceased Chiraguddin had turned down his request for the reason that he was carrying on the profession of stitching clothes and not cases and pouches for keeping illicit weapons and bullets on which Indra Narain Mishra had felt greatly insulted and with the object of having his revenge for the insult heaped on him by the deceased he had committed the murder of the deceased Chiraguddin on the exhortation of the appellant Indra Narain Mishra.

In order to prove the motive the prosecution had examined PW1 complainant, Shakir Hussain who however, in his cross-examination on page 8 of the paper book conceded that he had not witnessed the occurrence which had taken place in the tailoring shop of his father three days before the incident in which appellant Roop Narain had allegedly threatened his father with dire consequences on account of his refusal to stitch a case and pouch for keeping his handmade gun and bullet.

Thus, in view of the above, it can not be said that the prosecution has been able to prove the motive assigned to the appellants for committing the murder of the deceased. However, when there is direct evidence motive loses importance as held by a Division Bench of this Court in the case of State of U.P. vs. Nawab Singh reported in 1995 ACC 584. Another Division Bench of this Court in the case of Subhash Rajbhar v. State of U.P. reported in 2013(80) 271 paragraph 13 of the judgment has observed as here under :-

"Moreover absence of motive cannot disprove a charge of murder. Though it is very much natural that every criminal act is done with some sort of motive, but it would be unsafe to hold that no such criminal act can be presumed unless motive is proved. Motive is locked in the mind of the accused and sometimes it becomes difficult for the prosecution to unlock the motive, which is primarily known to accused and sometimes to the deceased as well. Mere fact that the prosecution failed to lead conclusive evidence in this regard would not mean that no such mental condition existed in the mind of the accused. The motive assumes importance in the cases based on circumstantial evidence, however, it becomes meaningless when direct evidence of the crime is available and led by the prosecution to bring home the guilt to accused persons."

In the instant case, there are four eye witnesses of the occurrence who have uniformly supported the prosecution case as spelt out in the F.I.R. and the prosecution has not withheld any material witness to prove the charge against the accused. Thus, under the facts and circumstances of the case and for the reasons stated herein above, the conviction of the appellants is not liable to be set aside merely on account of the prosecution's failure to prove the motive.

Manner of assault : Learned counsel for the appellants has also submitted that considering the inconsistencies and contradictions in the testimonies of the four eye witnesses examined on behalf of the prosecution to prove that the incident had taken place in the manner described in the F.I.R. belies their claim of having seen the occurrence and being present at the place of incident. Advancing his argument further in this regard learned counsel for the appellants submitted that neither the prosecution witnesses PW Shakir Hussain, PW2 A.K. Mishra, PW3 Yagya Kumar and PW4 Ram Lakhan were present at the place of incident nor they had seen the incident in which deceased Chiraguddin had been shot and they had given false evidence against the appellant Roop Narain Mishra due to enmity. As far as PW1 Shakir Hussain is concerned learned counsel for the appellants submitted that on the date of occurrence he was working as tailor in Delhi and the sequence in which the deceased and the witnesses were sitting on the two cots in the khandhar as disclosed by PW1 in his evidence tendered before the trial court is contradictory to the one disclosed by him in his is statement recorded under Section 161 Cr.P.C. which proves that PW1 was not present on the spot. In the site plan Ext.Ka-5 it is shown that PW1 was sitting on the ground at the time of incident at the point denoted by letter-E. However, PW1 on page 9 of the paper book in his examination in chief has stated that at the time of assault he was sitting on the cot while PW4 Ram Lakhan was sitting on a "charni" denoted by letter-B although PW1 on page 7 of his evidence has further stated that Ram Lakhan was sitting on the second cot which again indicates that PW1 had not witnessed the incident otherwise he would have disclosed the exact place where he and Ram Lakhan were sitting at the time of incident. Learned counsel for the appellants has further invited our attention to page 14 of his evidence, in which he had stated that his father was sitting with his face towards south while according to the site plan the accused had fired at the deceased from the point-X which is not in the north and hence the deceased could not have received the gun shot injury on his face if the accused had fired on him from the point-X. Similarly PW2 A.K. Mishra deposed that Chiraguddin was sitting with his face towards east while PW1 and PW3 have stated that the deceased was sitting with his face towards south and PW4 Ram Lakhan has deposed that the deceased was sitting with his face towards north. Hence it is apparent that there are material contradictions in the evidence of the eye witnesses with regard to the places which the deceased and witnesses were sitting and the direction which the deceased was facing at the time of assault and which are sufficient to belie their presence at the place of incident.

However upon a careful scrutiny the aforesaid argument of the learned counsel for the appellants in the light of evidence on record, we do not find that there is any material contradiction in the evidence of four eye witnesses with regard to the sequence in which the deceased and the witnesses were sitting on the two cots at the time of incident and the direction which the deceased was facing at the time of his being shot. It is noteworthy that the incident had taken place on 24.8.1993 and the recording of the evidence of the witnesses in this case had commenced on 4.8.2007, almost fourteen years after the incident. The discrepancies in the depositions of the four eye witnesses which have been highlighted by the learned counsel for the appellants before us appear to be normal discrepancies due to normal errors of observations, normal errors of memory, due to lapse of time. In the present case all the eye witnesses have given convincing and reliable evidence with regard to the details and manner of assault, and the minor discrepancies in their evidence which have been pointed out by learned counsel for the appellants will not effect their evidentiary value. The crux of the matter is that all the four eye witnesses have deposed in unison that they were present at the place of incident at the time of occurrence and they had seen the appellant Roop Narain Mishra firing at the deceased with his country made pistol.

Now coming to the last issue which has been raised by learned counsel for the appellants relating to the credibility of the prosecution witnesses produced by the prosecution for proving the charge against the appellants, we find that the credibility of the prosecution witnesses has been assailed by the learned counsel for the appellants primarily on the ground that the four eye witnesses of the incident are either close relatives of the deceased or interested witnesses. Learned counsel for the appellants has further stated that while PW1 Shakir Hussain is the son of the deceased, PW2 A.K. Mishra and PW3 Yagya Kumar are the real nephews of Damodar who according to the F.I.R. of the occurrence was present at the place of incident with whom deceased Chiraguddin was carrying on business of potatoes in partnership and who was harboring, ill-will and enmity against him ever since his refusal to appoint his son as a teacher in the inter college run by his grandfather Risal Singh. He further submitted that Damodar had requested the appellant Roop Narain Mishra to appoint his son as a teacher in Rishal Singh Inter Collage which was established and run by the grandfather of the appellant in which Roop Narain Mishra was working as head clerk but since the appellant Roop Narain Mishra had refused to appoint the son of Damodar as teacher in the collage of his grandfather citing policy of the management of not appointing anyone from the village in the college as the reason and ever since then the aforesaid Damodar had been harboring, ill-will and enmity towards him and both PW2 and PW3 had given false evidence against the appellants at the behest of aforesaid Damodar who had got a false F.I.R. of the occurrence registered against the appellants as is evident from the evidence on record indicating that Damodar had accompanied PW1 to the police station for the purpose of getting the F.I.R. of the incident registered. PW2 A.K. Mishra had admitted his enmity with the appellant Roop Narain Mishra on account of his father having lost a civil litigation. As regard PW3 Yagya Kumar, it has been submitted by learned counsel for the appellants that he was carrying on a business of manufacturing illicit weapons along with his maternal uncle Dhani Ram. He had received a fire arm injuries in his hand when the barrel of a country made 'tamancha' manufactured by him had exploded in his hand. With regard to the aforesaid incident appellant Roop Narain Mishra had filed a complaint at the police station-Chibramau on 15.3.1993 whereupon criminal proceedings were initiated against his uncle Dhani Ram who was eventually convicted and sentenced to ten years imprisonment and on account of the aforesaid enmity he had given false evidence against him. As regards PW4 it has been submitted by learned counsel for the appellants that he had been inimical towards appellant Roop Narain Mishra ever since he had purchased a piece of land of one Chandra Prakash on which PW4 Ram Lakhan also had an eye. Summarizing his submissions in this regard learned counsel for the appellants submitted that for the aforesaid reason no reliance can by placed on the testimonies of PW1 to PW2 for the purpose of holding the appellants' guilty of the murder of Chiraguddin.

Per contra, Sri Sagir Ahmad, learned A.G.A. has submitted that the evidence of PW1 to PW4 cannot be held to be unreliable only on account of their being interested and inimically disposed towards appellants unless their evidence appears to be unreliable and untrustworthy.

In order to examine whether the evidence of PW1 to PW4 is liable to be discarded merely on the ground of their being interested witnesses and inimically disposed towards accused, we must first examine the law on the issue.

On the point of interested witnesses, the Hon'ble Supreme Court in State of U.P. v. Jagdeo, reported in 2003 Cri LJ 844 (SC) observed that only on the ground of interested or related witnesses, their evidence cannot be discarded. Most of the times eye witnesses happen to be family members or close associates because unless a crime is committed near a public place, strangers are not likely to be present at the time of occurrence.

In Mst. Dalbir Kaur v. State of Punjab 1976 Cr LJ 418(SC), following observations were made :

(i) Interested witness:- Relatives who are natural witnesses are not interested witnesses and their testimony can be relied upon.

The term "interested" postulates that the person concerned must have some direct interest in seeing that the accused is somehow or the other is convicted either because he had some animus with the accused or for some other reason. In the reported case the incident took place at midnight inside the house, the only natural witnesses who could be present to see the assault were the persons present in the house at that time. No outsider can be expected to have come at that time because the attack was sudden. Moreover a close relative who is a very natural witness cannot be regarded as an interested witness.

(ii)

(iii) Witness who gives details with absolute accuracy is trustworthy.

Hon'ble Supreme Court in Waman and others v. State of Maharashtra 2011 Crl. LJ 4827 has observed in paragraph no. 9 which reads as follows:

"In Balraje alias Trimbak v. State of Maharashtra 2010 (70) ACC 12 (SC) 2010 (90) AIC 32 this Court held that the mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eye- witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyze the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. After saying so, this Court held that if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same."

It has been further observed in Waman (supra) that relationship cannot be a factor to affect the credibility of a witness. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the Court has to analyse evidence of related witnesses carefully to find out whether it is cogent and credible. The same view has been reiterated in State of U.P. v. Naresh and others reported in 2011 (75) ACC 215 (SC).

Thus, the principle which is culled out from a careful reading of the aforesaid authorities is that mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. When the eye witnesses are stated to be interested and inimically disposed towards the accused, the truth or otherwise of their evidence has to be weighed pragmatically and the Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused with extreme caution.

After having scrutinized and analysed the evidence of four witnesses of fact on the touchstone of the aforesaid principle, we do not find any reason to discard their evidence only on the ground on their being related to the deceased or inimically disposed towards the accused considering the fact that PW1 Shakir Hussain has fully supported the prosecution case as spelt out in the F.I.R. and the other eye witnesses PW2, PW3 and PW4 have also corroborated PW1 on all material particulars relating to the time, place, manner of assault and the identity of the accused. Learned counsel for the appellants has also very seriously castigated the approach adopted by the trial court in acquitting two out of four accused on the basis of the same evidence upon which the appellants' conviction is founded. He has submitted that once the trial court had come to the conclusion that the evidence of four eye witnesses tendered by them before the trial court with regard to the presence of co-accused Sujeet alias Guddu and Raj Kishore at the time and place of incident and the role assigned to them was unreliable, the trial Judge was wholly unjustified in believing the evidence of PW1 to PW4 given by them against the appellants. Stress laid by the learned counsel for the appellants on nonacceptance of evidence tendered by PW1 to PW4 to a large extent to contend about desirability to throw out the entire prosecution case, in essence is prayer to apply the principle of falsus in uno falsus in omnibus (false in one thing, false in everything). This plea is clearly untenable in view of the observation made by the Apex Court in the case of Gunnana Pentayya @ Pentadu and others v. Stae of A.P. Reported in 2008 (62) ACC 898 (SC) which is reproduced herein below:-

"The next plea as noted above related to the acquittal of number of persons. Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by PW1 to a large extent to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient, or to be not wholly credible. Falsity of material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witness or witnesses cannot be branded as liar(s). The maxim "falsus in uno falsus in omnibus" 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. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence. (See Nisar Alli v. The State of Uttar Pradesh [AIR 1957 SC 366]. In a given case, it is always open to a Court to differentiate accused who had been acquitted from those who were convicted where there are a number of accused persons. (See Gurucharan Singh and Anr. v. State of Punjab [AIR 1956 SC 460]. The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment."

In Triloki Nath v. State of U.P. 2006 (54) ACC 591 (SC) it has been observed by the Apex Court as under :

"'Falsus in uno, Falsus in omnibus' is not a rule of evidence in criminal trial and it is the duty of the Court to disengage the truth from falsehood, to sift the grain from the chaff."

Thus, in view of the observations made by the learned Apex Court in the aforesaid judgement it follows that the maxim "falsus in uno falsus in omnibus" has no application in India and the witness or witnesses cannot be branded as liar(s). It is merely a rule of caution and the doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence. In a given case, it is always open to a Court to differentiate accused who had been acquitted from those who were convicted where there are a number of accused persons. The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment.

Upon appraisal of the evidence of four eye witnesses, we find that all of them have deposed that the four accused namely, Roon Narain Mishra, Sujeet alias Guddu armed with ''tamanchas', Raj Kishore and Indra Narain armed with ''dharia' had arrived at the place of incident and on the exhortation of Indra Narain Mishra accused Roop Narain Mishra had fired at the deceased Chiraguddin from his firearm as a result of which the complainant's father Chiraguddin fell on the cot and died instantaneously. Thereafter the appellants and co-accused Raj Kishore and Sujeet alias Guddu had ran away from the place of occurrence firing with their fire arms in the air and threatening the complainant and the other persons present there with dire consequences. The different roles which have been assigned to the four accused by the prosecution inter alia are that of exhortation to Indra Narain Mishra firing at the deceased with his firearm to Roop Narain which had caused his instantaneous death and that of firing with their fire arms in the air and extending threats to the witnesses to all the accused. There is no evidence on record indicating that the appellant Indra Narain Mishra was either inimically disposed towards the deceased or he had any score to settle with the deceased. He happens to be the real brother of appellant Roop Narain Mishra and evidence of PW1 to PW4 to the extent of inculpating the appellant Indra Narain Mishra also as an accused by assigning to him the role of exhortation does not appear to be trustworthy. There is no evidence that he had caused any injury to the deceased. We do not find the evidence of PW1 to PW4 against the appellant either reliable or convincing to convict him under Section 302 I.P.C. by invoking the aid of section 34 I.P.C. Moreover the acquittal of co-accused Raj Kishore and Sujeet alias Guddu recorded by the trial court by disbelieving the evidence of PW1 to PW4 accused Indra Narain Mishra and Roop Narain Mishra has not been challenged by the State and the same has attained finality.

Thus, after a very careful consideration of the submissions made by learned counsel for the appellants before us and a thorough marshaling of the facts of the case and a microscopic scrutiny of the evidence on record, we have no hesitation in holding that the prosecution has been able to prove its case beyond all reasonable doubts against Roop Narain Mishra appellant in criminal appeal no. 6708 of 2008 but the evidence of prosecution witnesses vis-a-vis the complicity of Indra Narain Mishra appellant in criminal appeal no. 4734 of 2008 in the crime in question appears to be untrustworthy, unreliable, embellished, exaggerated and motivated by their zeal to ensure the implication of both the brothers, Roop Narain Mishra and Indra Narain Mishra although it was Roop Narain Mishra who committed the murder of the deceased. In view of the above, the recorded conviction of the appellant Indra Narain Mishra and sentence awarded to him by the trial court cannot be sustained and are liable to be set aside. Criminal appeal no. 4734 of 2008 stands allowed. Appellant Indra Narain Mishra is acquitted of all the charges framed against him. He is on bail. His sureties and bail bonds are discharged. Criminal appeal no. 6708 of 2008 lacks merits and is accordingly dismissed.

The impugned judgement and order stands modified accordingly.

There shall be however no order as to costs.

dt. 21.10.2016

Faridul.