Azad vs State Of U.P.
2017 Latest Caselaw 3398 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 

 
Case :- CRIMINAL APPEAL No. - 404 of 1997
 

 
Appellant :- Azad
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- M.P.Yadav,Rajendra Kumar
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Sheo Kumar Singh-I,J.

1. The present appeal has been filed against the judgment and order dated 22.07.1997 passed by Sessions Judge, Sitapur, in Sessions Trial No.447 of 1995 arising out of Crime No.47 of 1991, Police Station Kamlapur, District Sitapur, whereby and whereunder the accused appellant was found guilty under Section 307 IPC and was sentenced to undergo rigorous imprisonment for a period of four years.

2. The brief facts giving rise to filing of the present appeal are that on 28.06.1991 the marriage ceremony of complainant Ram Prasad son of Babu Ram was going to be solemnized in the night. The Barat came to village Kushala Purwa within the Police Station Kamlapur where the members of the Barat reached during evening and the marriage party proceeded to Dwarchar at about 12.00 O'clock in the night while the informant Mewa Ram, Babu Ram, Badri and some other persons remained at the place where necessary items and ornaments for marriage were kept. During the period, a person reached there armed with firearm for looting the goods and inflicted firearm injury on the person of Babu Ram. The appellant-accused was seen in the gas lantern which was emitting sufficient light. The informant and other members present there made loud alarm and the persons, nearby, ran towards the place of incident and caught hold the accused-appellant Azad at the spot. In the meantime, Mahipal, Phool Singh and other persons also reached there and after taking the person committing the offence into custody, the first information report was given to the police and the accused Azad arrested at the spot was entrusted to the Constable of Police Station. The first information report was lodged and the injured was sent for medical examination to District Hospital Sitapur where he was medically examined by Dr. G.C. Verma. After investigation, charge sheet was filed against the accused-appellant . Learned Chief Judicial Magistrate took the cognizance and committed the case to the Court of Sessions where charges were framed against the accused Azad under Section 307 IPC for which he pleaded not guilty and claimed for trial. He had further stated that he has been falsely implicated in this case due to enmity.

3. In order to prove the prosecution case the witnesses were examined and the statement under Section 313 Cr.P.C. was recorded before the learned court below. Vide impugned order dated 22.07.1997, the accused-appellant was found guilty under Section 307 IPC and was sentenced to undergo rigorous imprisonment for a period of four years. Thus, the present appeal.

4. It is not disputed that the accused-appellant was caught hold on the spot while he was trying to loot the ornaments or the belongings of the Barat party. It is also not disputed that injured Babu Ram was sent to medical examination immediately after the incident where Dr. G.C. Verma examined the injured and prepared a report vide Ext. Ka-4. Following injuries were found on the person of Babu Ram:-

I. Lacerated wound 1 cm x 0.2 cm x through and through on right side of face 2.5 cm below and outer to right angle of mouth. Margins irregular. Soft blood clot present in the injury.

II. Multiple firearm wound of entries in an area of 8 cm x 6 cm on the lower part of right chest 4.5 cm below the right nipple measuring 0.2. cm x 0.2 cm., margins inverted and blackened. Under observation.

5. Learned counsel for the appellant has submitted that there are major contradictions in the statements of the witnesses.

6. Perusal of the judgment and evidence shows that PW-1 Mewa Ram and PW-2 Babu Ram (injured), were examined and had narrated the whole story before the trial court and proved the prosecution case. The accused-appellant was caught hold on the spot while causing injury to the injured and was taken to the police station immediately and handed over to the police. There is no contradiction on these facts.

7. Mrs. Zeba Islam Siddiqui, learned counsel for the State, has submitted that though there are no contradictions, even if there are certain discrepancies, these are normal discrepancies which did not corrode the credibility of the prosecution case as laid down in the following cases:-

"72. In State Represented by Inspector of Police v. Raravanan and another - JT 2008 (11) SC 290, reiterating the principle, the Court held:

"18. .... it has been said time and again by this Court that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. Further, on the general tenor of the evidence given by the witness, the trial court upon appreciation of evidence forms an opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself would not prompt the court to reject the evidence on minor variations and discrepancies."

73. In Mahendra Pratap Singh v. State of Uttar Pradesh- JT 2009 (3) SC 120, the Court referred to the authority in Inder Singh and another v. State (Delhi Administration) 1978 (4) SCC 161 wherein it has been held thus:

"2. Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect."

74. In Sunil Kumar Sambhudayal Gupta and others v. State of Maharashtra - JT 2010 (12) SC 287, while dealing with the issue of material contradictions, the Court held:

"30. While appreciating the evidence, the court has to take into consideration whether the contradictions/ omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan)

31. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide State of Rajasthan v. Rajendra Singh.)

32. The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt." (Vide Mahendra Pratap Singh v. State of U.P. )"

And again:

"35. The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so." (See Syed Ibrahim v. State of A.P.22 and Arumugam v. State)"

8. Injured Babu Ram was sent for medical examination where blood clot and injuries were found on his face and firearm wound of entries were also found on the lower part of right chest. He has been examined as prosecution witness and has proved the case.

9. The injuries found on the person of PW-2 and the fact that PW-2 was injured in the same occurrence lends assurance to his testimony that he was present at the time of the occurrence. The evidence of an injured witness is entitled to a greater weight and the testimony of such a witness is considered to be beyond reproach and reliable. Firm, cogent and convincing ground is required to discard the evidence of an injured witness. It is to be kept in mind that the evidentiary value of an injured witness carries great weight. In Mano Dutt and another v. State of Uttar Pradesh - (2012) 4 SCC 79, it was held as under:

"31. We may merely refer to Abdul Sayeed v. State of M.P. - (2010) 10 SCC 259 where this Court held as under:

"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. ''Convincing evidence is required to discredit an injured witness.' [Vide Ramlagan Singh v. State of Bihar -(1973) 3 SCC 881, Malkhan Singh v. State of U.P. - (1975) 3 SCC 311, Machhi Singh v. State of Punjab - (1983) 3 SCC 470, Appabhai v. State of Gujarat - 1988 Supp SCC 241, Bonkya v. State of Maharashtra -(1995) 6 SCC 447, Bhag Singh v. State of Punjab -(1997) 7 SCC 712, Mohar v. State of U.P.-(2002) 7 SCC 606, Dinesh Kumar v. State of Rajasthan-(2008) 8 SCC 270, Vishnu v. State of Rajasthan -(2009) 10 SCC 477, Annareddy Sambasiva Reddy v. State of A.P.-(2009) 12 SCC 546 and Balraje v. State of Maharashtra- (2010) 6 SCC 673.]

29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab-(2009) 9 SCC 719 where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under:

''28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka-1994 Supp (3) SCC 235 this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

29. In State of U.P. v. Kishan Chand-(2004) 7 SCC 629 a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana-(2006) 12 SCC 459. Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.'

30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."

10. The trial court judgment was fortified by the decisions of the Court in Pudhu Raja and another v. State Represented by Inspector of Police-40 (2012) 11 SCC 196, Jaswant Singh v. State of Haryana-(2000) 4 SCC 484 and Akhtar and others v. State of Uttaranchal-(2009) 13 SCC 722 on the law of material omissions and contradictions. Concurringly, the Court too observed that the defence had failed to demonstrate from the informant's testimony such discrepancies, omissions and improvements that would have caused the Court to reject such testimony after testing it on the anvil of the law laid down by this Court:

"325. ...Their throbbing injuries and the rigors of the weather coupled with the state of their minds must have at that point of time brought forth their instinct of survival and self preservation. The desire to have apprehended their assailants and to mete out just desserts to them could not have been their priority. ..."

11. In this context, I may fruitfully reproduce a passage from State of U.P. v. M.K. Anthony- (1985) 1 SCC 505:

"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. ..."

12. In Harijana Thirupala v. Public Prosecutor, High Court of A.P.-(2002) 6 SCC 470, it has been ruled that:

"11. .... In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses."

13. In Ugar Ahir v. State of Bihar-AIR 1965 SC 277, a three-Judge Bench held:

"7. The maxim falsus in uno, falsu in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."

14. In Krishna Mochi v. State of Bihar-(2002) 6 SCC 81, the Court ruled that:

"32. .... The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing the world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find that this Court in recent times has conscientiously taken notice of these facts from time to time".

15. In Inder Singh (supra), Krishna Iyer, J. laid down that:

"Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes."

16. In the case of State of U.P. v. Anil Singh-1988 (Supp.) SCC 686, it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.

17. In Mohan Singh and another v. State of M.P.-(1999) 2 SCC 428, this Court has held:

"11. The question is how to test the veracity of the prosecution story especially when it is with some variance with the medical evidence. Mere variance of the prosecution story with the medical evidence, in all cases, should not lead to the conclusion, inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which courts are created. To search it out, the courts have been removing the chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long as chaff, cloud and dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the court, within permissible limit, to find out the truth. It means on one hand, no innocent man should be punished but on the other hand, to see no person committing an offence should get scot-free. If in spite of such effort, suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. For this, one has to comprehend the totality of the facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of eyewitnesses including the medical evidence, of course, after excluding those parts of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of a prosecution or a defence case could be concretised. It would depend on the evidence of each case including the manner of deposition and his demeans (sic), clarity, corroboration of witnesses and overall, the conscience of a judge evoked by the evidence on record. So courts have to proceed further and make genuine efforts within the judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt."

18. Learned counsel for the appellant has submitted that the accused-appellant was not identified by anyone or the by the injured.

19. In reply, learned counsel for the State has submitted that the accused-appellant was arrested on the spot by the persons who came there after making the alarm by the injured and other persons present there. In these situations, the identification loses its importance. Identification test is primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation of an offence is proceeding on the right lines. The accused appellant was arrested on the spot and was identified by the prosecution witnesses before the Court also.

20. In Santokh Singh v. Izhar Hussain and another-(1973) 2 SCC 406, it has been observed that the identification can only be used as corroborative of the statement in court.

21. In Malkhansingh v. State of M.P.- (2003) 5 SCC 746, it has been held thus:

"7. ... The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. ..."

And again:

"16. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. ..."

22. In this context, reference to a passage from Visveswaran v. State represented by S.D.M.-(2003) 6 SCC 73 would be apt. It is as follows:

"11. ... The identification of the accused either in test identification parade or in Court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a time, crimes are committed under the cover of darkness when none is able to identify the accused. The commission of a crime can be proved also by circumstantial evidence. ..."

23. In Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi)-(2010) 6 SCC 1, the Court, after referring to Munshi Singh Gautam v. State of M.P.-(2005) 9 SCC 631, Harbhajan Singh v. State of J & K-(1975) 4 scc 480 and Malkhansingh (supra), came to hold that the proposition of law is quite clear that even if there is no previous TIP, the court may appreciate the dock identification as being above board and more than conclusive.

24. In the present case, injured and informant identified the accused-appellant before the Court and the appellant was arrested on the spot and was handed over to the police. Thus, this Court is of the view that these facts deserve to be accepted.

25. Though learned counsel for the appellant has submitted that the appellant was falsely implicated in this case but no evidence in defence has been produced to prove as to how the informant and the accused-appellant have inimical terms. There is nothing on record to show that the parties at any point of time were inimical to each other.

26. In light of above facts, the view taken by the learned trial court can not be held to be a view against the provisions of law or against the evidence on record. The contention of learned counsel for the appellant that the trial court failed to exercise proper adjudication and failed to prove the case beyond all reasonable doubt or there are major contradictions or injury no.1 has been caused by blunt object, has no relevancy at all because the accused-appellant was caught hold on the spot while committing the offence and the doctor has specifically mentioned that there were firearm wounds of entries on the part of the body of PW-2. The appreciation of evidence by learned trial court is based on the statement of the witnesses with test of reasonability and actual occurrence. There is no infirmity, illegality or irregularity in the impugned order and thus no interference is required in the order dated 22.07.1997. The criminal appeal lacks merit and thus dismissed.

27. A copy of the order with lower court's record be immediately sent to the learned Chief Judicial Magistrate, Sitapur, with direction that the accused-appellant Azad be immediately taken into custody to serve out the sentence inflicted on him with submission of compliance report to the Registry of this Court within 30 days.

Order Date :- 19.8.2017

A. Katiyar