Pintoo @ Brijesh Rai vs State Of U.P.
2017 Latest Caselaw 3195 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 20.04.2017
 
     Delivered on 11.08.2017
 

 
Court No. - 47
 

 
Case :- CRIMINAL APPEAL No. - 5720 of 2011
 

 
Appellant :- Pintoo @ Brijesh Rai
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- R.K. Shahi,Brijesh Kumar Mishra,M.R. Khan
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Daya Shankar Tripathi,J.

(Delivered by Hon'ble D.S. Tripathi, J.)

1. Appellant has assailed the judgment and order dated 15.09.2011 passed by Additional Sessions Judge, Court No. 16, Deoria in Sessions Trial No. 30 of 2006 (State of U.P. Vs. Pintoo @ Brijesh Rai and others) arising out of Case Crime No. 182 of 2005, under section 302/34 IPC, P.S. Bhatni, District Deoria, by which appellant has been convicted under section 302 IPC and sentenced to undergo life imprisonment and fine of Rs. 5,000/- (in default of payment of fine, six months additional imprisonment).

2. Co-accused Harindra Rai and Smt. Jagdamba Devi have been given benefit of doubt and acquitted from charge under section 302/34 IPC levelled against them, by the aforesaid impugned judgment.

3. Prosecution case, in brief, is that informant Rajan Rai son of Ravindra Rai, resident of Rampur Khoriwari P.S. Bhatni, District Deoria, submitted written Tahrir, Ext. Ka-1, in P.S. Bhatni, District Deoria, narrating therein that his father and another brother of his father are living separately. His grand father Bhikhari Rai son of Sita Rai, aged about 75 years is living with the family of informant. Two bighas of land was reserved for livelihood of his grand father and uncle of informant Sri Harindra was having doubt that the land reserved for his grand father may be transferred by him to father of the informant and uncle of informant and his family members were having enmity with the grand father of the informant due to this reason. Informant was sleeping nearby his grand father on 13/14.06.2005 and Pintoo @ Brijesh Rai son of Harindra Rai came near to cot of the informant at about 2:00 a.m. and said that it is morning hour, go and come back after running. Informant went for easing himself taking Lota (utensil to keep water) at about 2:20 a.m. and after returning back saw that Pintoo @ Brijesh Rai was attacking on neck of his grand father and Harindra Rai and his wife Jagdamba Devi were catching the legs of his grand father. Hearing the alarm raised by the informant, his father Ravindra Rai son of Bhikhari Rai, Nasaruddin Ansari son of Maqbool Ansari, Bhola Kharwar son of Gorakh Kharwar, resident of Rampur Khoriwari, P.S. Bhatni, District Deoria came with torch in their hand and saw the occurrence. There was light of lantern in the nearby 'MADAI'.

4. On the basis of aforesaid written Tahrir of informant, Chik FIR was prepared and Case Crime No. 182 of 2005 was registered under section 302 IPC against accused persons on 14.06.2005 at 4:30 a.m. and entry of the case was made in the general diary of the police station. Investigation was taken up by the Station House Officer Sri Shiv Varan Yadav. Inquest report of dead body of the deceased was prepared alongwith Challan Lash, Photo Lash, letter to CMO, letter to R.I. etc. and dead body of the deceased was transmitted to mortuary for postmortem. Sample of plain and blood stained earth was taken and the same was sent for chemical examination by Forensic Science Laboratory. Autopsy of dead body of deceased was conducted and postmortem report (Ext. Ka-11) was prepared. Accused Pintoo @ Brijesh Rai was arrested on 18.06.2005 and Gadasa used in commission of offence was recovered at the instance of accused. Map of place of occurrence and place of recovery of arm were prepared by the Investigating Officer (hereinafter referred to as the 'I.O.'). Statement of witnesses were recorded by the I.O. and after collecting evidence during the course of investigation, charge sheet (Ext. Ka-5) was submitted by the I.O.

5. Charge under section 302 IPC was framed against accused Pintoo @ Brijesh Rai and charge under section 302 read with section 34 IPC was framed against accused Harindra Rai and Smt. Jagdamba Devi, by learned trial court. Accused denied the charges levelled against them and claimed for trial.

6. As many as 13 witnesses have been examined by the prosecution.

7. PW-1 Nasruddin Ansari was examined, who is said to be eye witness of the occurrence. He did not support the prosecution version and he was declared hostile.

8. PW-2 Bhola Kharwar was examined, who is also said to be eye witness of the occurrence. He also did not support the prosecution version and was declared hostile.

9. PW-3 Rajan Kumar Rai (informant) was examined. He supported the prosecution version and proved written report (Ext. Ka-1).

10. PW-4 Ravindra Rai (father of informant) was examined. He supported the version of PW-3.

11. PW-5 Bairestar Rai was examined, who is witness of recovery of Gadasa at the instance of accused Pintoo @ Brijesh Rai. He proved his signature on recovery memo of Gadasa (Ext. Ka-3).

12. PW-6 Umesh Rai was examined, who is witness of inquest report and he has proved his signature on inquest report (Ext. Ka-3A).

13. PW-7 Constable 285 Virendra Pratap Pal has been examined, who has carried the dead body of deceased to mortuary.

14. PW-8 Ayodhya Nath Dwivedi has been examined, who is witness of recovery of Lantern and torch of witness Nasruddin Ansari and Ravindra Rai and he has proved his signature on recovery memo (Ext. Ka-2).

15. PW-9 Uday Pratap Yadav, Station Officer, has been examined, who is subsequent I.O. and he has proved charge sheet (Ex. Ka-5) filed against the accused persons.

16. PW-10 Kashi Ram has been examined, who has proved his signatures on inquest report (Ext. Ka-3), recovery memo of plain and blood stained earth (Ext. Ka-6), recovery memo of sleeper, Danda, Baansh, pillow, blanket, warm Chaddar of the deceased (Ext. Ka-7) and recovery memo of Taulia of accused Pintoo @ Brijesh Rai (Ext. Ka-8).

17. PW-11 Head Constable No. 29 Vakeel Yadav has been examined, who has proved Chik FIR (Ext. Ka-1) and carbon copy of general diary (Ext. Ka-10).

18. PW-12 Dr. B.S. Srivastava, Senior Consultant, District Hospital Azamgarh has been examined, who has deposed that he had conducted autopsy on dead body of deceased on 14.06.2005 at 3:00 P.M. and after conducting external examination he found following injuries on dead body of deceased:-

"Incised wound on the left side neck extending to back and beyond mid line towards right bone deep necks hanging only a few skin right side neck mussels."

19. He has also deposed that on internal examination of the dead body of the deceased he found that C2-C3 bones of neck of the deceased were broken and cut wound was found on esophagus and larynges alongwith wound on neck mussels and mussel of neck of the deceased were also cut. He has opined that death of the deceased is possible due to haemorrhage shock caused by the anti-mortem injuries of the deceased and death of deceased is possible on 13/14.06.2005 at 2 to 2:30 a.m. He has proved postmortem report (Ext. Ka-11).

20. PW-13 Shiv Varan Yadav, Station Officer, has been examined, who is first I.O. of this case. He has proved inquest report, later to CMO, Letter to R.I., Photo Lash and chalan lash (Ext. Ka-12 to Ext. Ka-16). He has also proved map of the spot (Ext. Ka-17), recovery of memo of plain and blood stained earth (Ext. Ka-7), recovery memo of Taulia from accused Pintoo @ Brijesh Rai (Ext. Ka-8), recovery memo of lantern and torch of witnesses (Ext. Ka-2). He has also proved that accused Pintoo @ Brijesh Rai was arrested on 18.06.2005 and Gadasi used in commission of crime was recovered at his instance and recovery memo of the same (Ext. Ka-3) has been proved by him. Map of recovery place (Ext. Ka-20) has also been proved by him.

21. CW-1 Shiv Baran Yadav (I.O.), CW-2 Bhrigu Rashan Prasad (Village Development Officer), CW-3 Jai Prakash Yadav (Village Development Officer) and CW-4 Reeta Devi (Village Pradhan) have been examined by the Court.

22. Statement of accused persons under section 313 Cr.P.C. were recorded by the trial court. Accused persons stated that the statement of witness is false and they have been falsely implicated due to enmity.

23. DW-1 Bhrigu Rashan Prasad (Village Development Officer) and DW-2 Rajendra Rai have been examined by the accused persons in their defence.

24. After analyzing entire evidence available on record, learned trial court convicted accused Pintoo @ Brijesh Rai under section 302 IPC and sentenced accused Pintoo @ Brijesh Rai and acquitted accused Harindra and Smt. Jagdamba Devi from charge levelled under section 302/34 IPC, by judgment and order dated 15.09.2011.

25. It is this impugned judgment and order of conviction and sentence passed against appellant-accused Pintoo @ Brijesh Rai, which is under challenge in the present criminal appeal.

26. We have heard rival arguments advanced by Sri Brijesh Kumar Mishra, learned counsel for the appellant, Sri Ashish Pandey, learned AGA and perused the material placed on record.

27. Learned counsel for the appellant submitted that independent witnesses PW-1 and PW-2 have not supported the prosecution version and PW-3 and PW-4 are interested witnesses. Prosecution story is improbable and unnatural. There are material discrepancies in statement of PW-3 and PW-4 and their testimony is not trustworthy. There is improvement in the statement of prosecution witnesses. Deceased was having enmity with several persons and he was done to death by unknown persons in dark hours of night in open sky. He lastly submitted that the appellant has been falsely implicated due to enmity and impugned order of conviction and sentence passed by the learned trial court against the appellant-accused is liable to be set aside.

28. On the other hand, learned AGA submitted that statement of PW-3 and PW-4 is natural and trustworthy. Only minor discrepancies have appeared in their statements. Statements of PW-3 and PW-4 cannot be out rightly thrown away, merely on the basis that they are interested witnesses. He further submitted that motive behind commission of offence has been proved by the prosecution. He further submitted that prosecution version is supported by medical evidence of postmortem report. He further submitted that there is no reason why appellant will be falsely implicated in this case and the real culprit will be allowed to go away. He lastly submitted that impugned judgment of conviction and sentence based on proper appreciation of evidence and the appeal is liable to be dismissed.

29. Before we propose to deal with the arguments submitted by learned counsel for both the parties parties, we would like to recollect the manner in which appeal against conviction is required to be considered by this Court and scope of jurisdiction conferred on the Court by Sections 374 and 386 Cr.P.C.

30. In the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995 Supreme Court Cases (Crl) 222]., it has been held by the Apex Court that while dealing with an appeal against conviction and sentence of life imprisonment, it is required to consider and discuss evidence and deal with the arguments raised at the bar. Relevant portion of the report is reproduced below:-

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

31. In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995 CRI.L.J.2659 (Supreme Court), 2659], it has been held by the Apex Court that in an appeal against conviction, the Appellate Court has duty to appreciate the evidence on the record and if two views are possible on the appraisal of evidence, the benefit of reasonable doubt has to be given to an accused. Relevant portion of the report is reproduced below:-

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

32. Learned counsel for the appellant-accused submitted that whole prosecution version is based on statement of only two prosecution witnesses PW-3 and PW-4, with whom the deceased was living at the time of incident. Both of these witnesses are interested witnesses and their testimonies not reliable. But statement of interested witnesses cannot be outrightly thrown away merely on the basis that they are interested witnesses.

33. In Brahm Swaroop v State of U.P. reported in AIR 2011 SC 280, it has been held by Apex Court that testimonies of witnesses cannot be discarded merely on the basis that they were closely related to the deceased persons. Relevant portion of the report is reproduced below:-

"21. Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, moreso, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the Court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence."

34. In Balraje v State of Maharshtra reported in (2010) 6 SCC 673, it has been held by the Apex Court that evidence of witness cannot be discarded solely on the ground of his relationship with victim of the offence and court has to analyse the statement of related witness carefully to find out that it is cogent and credible. Relevant portion of the report is reproduced below:-

".........29.......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 the vidence of related witnesses carefully to find out whether it is cogent and credible."

35. In Dharnidhar v State of Uttar Pradesh reported in (2010) 7 SCC 759, it has been held by the Apex Court that evidence of a witness cannot be thrown out solely because it comes from a person closely related to the victim. Relevant portion of the report is reproduced below:-

"12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In Jayabalan v. UT of Pondichery, (2010) 2 SCC 199: (AIR 2010 SC (Supp) 352) this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim."

36. In Ram Bharosey v State of U.P. reported in (2010) 1 SCC 722, it has been held by the Apex Court that version of an interested witness cannot be thrown overboard, but he has to be examined carefully accepting the same. Relevant portion of the report is reproduced below:-

"A close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the Court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown overboard, but has to be examined carefully accepting the same."

37. In the light of the aforesaid principles laid down by the Apex Court in the cases of Brahm Swaroop (supra), Balraje (supra), Dharnidhar (supra) and Ram Bharosey (supra) it is crystal clear that evidence of an interested witness cannot be thrown away outrightly, but it has to be examined carefully to find out whether it is cogent and credible or not. Accordingly, evidence of PW-3 and PW-4 has to be carefully examined.

38. PW-3 (informant) has deposed that he was sleeping beside the deceased, outside the hut situated nearby the place of occurrence, in open sky. According to version of FIR, appellant came to informant and stated him to go for running and come back. He went for easing himself. According to FIR version, accused Harindra, uncle of the informant, was having doubt that the land reserved for livelihood of the deceased may be transferred by him to father of the informant. In such a condition, prosecution version does not appear to be natural that the informant left the deceased in the hands of appellant/accused, who was having doubt that the deceased may transfer the aforesaid land in favour of the father of the informant, specially when no other family members of the informant was present there. According to FIR version, the informant went for easing himself at about 2:00 a.m. on the date of occurrence and when he was returning back after easing himself at 2:20 a.m., he saw that the appellant was attacking on the neck of the deceased. PW-3 has admitted in his cross-examination that the other two co-accused persons were not present when appellant-accused came to informant saying him to go for running and come back and he has also admitted in his cross-examination that the appellant was having no weapon with him at that time. It is also a human conduct that a person will run away from the place of occurrence after committing crime in a shortest period. It is admitted fact that only one attack was made on the neck of the deceased and he died on the spot. Hence, there was sufficient time for the appellant to commit the crime and run away from the spot. It is also the case of the prosecution that other two co-accused namely, Harindra Rai and Smt. Jagdamba Devi were catching legs of the deceased and appellant-accused was attacking on the deceased. It is also admitted fact that residence of accused persons was situated at a distance of near about 200 yards from the place of occurrence. In these circumstances, it does not appear to be natural and possible that the appellant could call the other two co-accused persons from such a distance and bring weapon for commission of the crime in such a short time of 20 minutes. It is also admitted fact that father of the informant and other independent witnesses were also at a distance of 200 yards from the place of occurrence. The incident is said to have been taken place at 2:20 a.m. in wee hours of night. According to prosecution, father of the informant and other witnesses came on the spot and saw the occurrence, hearing alarm raised by the applicant. It does not appear to be natural that father of the informant and other eye witnesses could hear the alarm raised by the informant from such a distance, at such wee hours of night, which is a time of sound sleep. Hence, presence of eye witnesses PW3 and PW-4 on the place of occurrence, appears to be doubtful. Other independent witnesses PW-1 and PW-2 have not supported the prosecution case and they have been declared hostile by the prosecution.

39. PW-3 has stated in his cross-examination that he was coming back after easing himself, for keeping Lota, because he used to go for running after keeping it. If this was practice of the informant, he might use to devote more time for running than the time used for easing himself. It is quite natural that the appellant could chose the larger time used by the informant for running, for commission of crime, rather than lessor time used by the informant for easing himself. It is also noteworthy that alleged time of occurrence of 2:20 a.m. is wee hours of night for sound sleep and such time is not normally used by a person for easing himself. Accordingly, the prosecution story does not appear to be natural and trustworthy.

40. According to FIR version, informant had seen the accused person while they were committing murder of his grand father, when he was returning back after easing himself at 2:20 a.m. On the other hand, PW-3 (informant) has stated in his cross-examination that he had seen that accused Pintoo @ Brijesh Rai was attacking on deceased and rest of the two accused Harindra and Jagdamba Devi were catching legs of the deceased, while he was easing himself. He has further stated in his cross-examination that he had seen weapon in the hand of accused Pintoo, when he was easing himself. It is admitted fact that lantern was burning in the hut and the deceased was sleeping outside hut in open sky in the darkness of night. In these circumstances, prosecution version does not appear to be true that the informant could see the accused persons committing the crime from such a distance in the dark hours of night.

41. PW-3 has further stated in his cross-examination that it is wrong to say that the deceased had executed sale deed in favour of several persons of village and he was having litigation with purchasers of land. On the other hand, PW-4 had admitted in his cross-examination that the deceased had executed three-four sale deeds in favour of villagers and civil litigations, Bhikhari Vs. Lal Bachan and others, Bhikhari Vs. Ram Vachan Usman and others, Bhikhari Vs. Gauri Shanker and Bhikhari Vs. Ram Briksh and others, were pending. According to FIR version, father of the informant Ravindra Rai and witnesses Nasruddin Ansari and Bhola Kharwar reached on the spot after hearing alarm raised by the informant, having torch in their hand and they had seen the occurrence. On the other hand, PW-4 has admitted in his cross-examination that when they were reaching to the place of occurrence, they had seen the accused persons running away from there at the distance of 15-20 steps.

42. According to prosecution version, murder of the deceased is said to have been committed by appellant and Gadasi is said to have been used by him for committing crime. But aforesaid weapon used in the commission of crime has not been mentioned in FIR. Subsequently, improvement has been made and aforesaid weapon has been mentioned by the prosecution witnesses thereafter.

43. Thus material discrepancies have appeared in statement of PW-3 and PW-4. We are of the view that testimony of PW-3 and PW-4 does not inspire confidence.

44. It is defence version that the deceased was having enmity with other villagers and he was murdered in dark hours of night by unknown persons and the appellant has been falsely implicated in this case due to enmity. PW-1 has denied in his cross-examination that the deceased had executed sale deeds in favour of several villagers and litigating with them in regard to sale deeds of land executed in their favour. PW-4 has stated in his cross-examination that the deceased had executed 3-4 sale deeds in favour of villagers, but he has denied the fact that the deceased had filed any suit regarding the sale deeds of land executed in favour of those villagers. But he has later on admitted in his cross-examination that civil litigations Bhikhari Vs. Lal Bachan and others, Bhikhari Vs. Ram Vachan Usman and others, Bhikhari Vs. Gauri Shanker, Bhikhari Vs. Ram Briksh and others,were pending in the court. Thus, both of these witnesses have suppressed the aforesaid fact of litigation between the deceased and other villagers regarding execution of sale deed of land. But later on PW-4 has admitted the aforesaid fact of litigation between the deceased and other persons regarding the sale deeds executed by the deceased in favour of several villagers. Accordingly, it is established from the record that the deceased had executed sale deeds of his land in favour of several villagers and he was litigating with them regarding the sale deeds executed in their favour. Accordingly, deceased was having enmity with other villagers, before the date of occurrence.

45. Considering the aforesaid facts and circumstances of this case, we are of the view that possibility of this fact cannot be ruled out that the deceased was having enmity with the several persons and his murder might have been committed by some unknown persons in dark hours of night and the appellant might have been falsely implicated in this case due to previous enmity.

46. For all the reasons mentioned hereinabove, we are of the considered opinion that testimony of eye witnesses PW-3 and PW-4 does not appear to be natural, trustworthy and impeccable, due to serious discrepancies and admissions appeared in their testimony. Prosecution version does not appear to be reliable and trustworthy. Deceased was having enmity due to litigation with several persons and it is quite possible that he might have been murdered by unknown person in dark hours of night as he was sleeping in open place and appellant might have been falsely implicated due to previous enmity between the parties. Prosecution has failed to bring home the charge levelled against the appellant beyond reasonable doubt. Thus, the impugned judgment of conviction and sentence passed by the learned trial court against the appellant suffers from legal infirmity and against the evidence on record and deserves to be set aside.

47. Consequently, the appeal is allowed. Impugned judgment and order dated 15.09.2011 passed by learned Additional Sessions Judge, Court No. 16, Deoria, convicting and sentencing the appellant under section 302 IPC is set aside. Appellant Pintoo @ Brijesh Rai is acquitted from the charge levelled against him.

48. Appellant Pintoo @ Brijesh Rai be released forthwith , in case he is not detained in any other case.

49. A copy of this judgment be communicated to the trial court concerned and record of the trial court be sent back forthwith, which shall be preserved by the court below.

Order Date :- 11.08.2017

SR

(Daya Shankar Tripathi, J.) (Ramesh Sinha, J.)