Ram Bali Kannaujia vs Ram Autar And (3) Others.
2017 Latest Caselaw 2297 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

								AFR
 
							 Reserved
 
             Criminal Revision No. 119 of 2000
 
Ram Bali Kannaujia son of Mool Chand,
 
resident of village Purbawan, Police Station
 
Mallawan, District Hardoi
 
                                                  ................Revisionist
 
                                   Vs.
 
1.Ram Autar son of Pancham.
 
2. Shyam Singh son of Ram Autar
 
(resident of village Purbawan, police Station
 
Mallwan, District Hardoi.
 
3. Sant Kumar son of Ram Ratan 
 
resident of village Buswan Kutub, 
 
police station  Bagarmau, District Unnao (now dead)
 
4. The State of Uttar Pradesh.
 
                                             ............Opposite parties 
 

 
Hon'ble Anil Kumar Srivastava-II,J.

1. Heard Shri Mukul Rakesh, learned counsel for the revisionist, Shri Dharmendra Kumar Singh, learned counsel for opposite parties 1 and 2, learned AGA and perused the record.

2. Instant revision has been filed by the revisionist- complainant against the impugned judgment and order dated 18.2.2000 passed by IIIrd Additional Sessions Judge, Hardoi in Sessions Trial No. 676 of 1996 arising out of case crime no. 131 of 1996 under section 302/34 IPC, Police Station Mallawan, District Hardoi, whereby accused Ram Autar, Shaym Singh and Sant Kumar were acquitted for the offence punishable under sections 302/34 IPC .

3. According to the prosecution version, revisionist- complainant lodged a first information report stating that his younger brother Mahadeo Prasad Kannaujia was teacher in Junior High School Gosawan. Dacoity was committed at the house of Ram Autar about 12-13 years back wherein Mahadeo Prasad was the main accused and was convicted and sentenced for seven years' rigorous imprisonment. Appeal was pending before High Court. He was released on bail pending appeal. There was enmity between the parties.

4. On 12.7.1996, at about 6.45 p.m. when the deceased Mahadeo Prasad was going to school and reached near grove of Beni Madhav on his bicycle, Ram Autar, his son Ram Singh and one unknown person were there, who stopped the bicycle of Mahadeo. When deceased tried to run away towards eastern side, then Ram Autar as well as one unknown person started firing upon him by country made pistol. Shyam Singh stabbed Mahadeo by knife. Mahadeo Prasad succumbed to his injuries at the spot. Incident was seen by complainant, Nanhey Lal and Naval Kishore.

5. On the basis of written report, first information report was lodged on 12.7.1996 at about 8.30 a.m. at case crime no. 131 of 1996 under section 302 IPC. Inquest proceedings were conducted on the same day at about 11.30 a.m. Postmortem was also conducted on 12.7.1996 at 5.50 p.m. wherein two fire arms wound and four incised wound were found on the body of the deceased which was the cause of death. After investigation, chargesheet was submitted against the accused.

6. Accused were charged under section 302 read with section 34 IPC who denied the charges and claimed trial.

7. Prosecution has produced P.W.1 Rambali Kannaujia, complainant eye witness, brother of the deceased, P.W.2 Naval Kishore, P.W.3 Dr. Saiyyad Hasim Raza, who conducted the post mortem, P.W.4 S.I.Shri Awadh Sharan Dwivedi, scribe of the chick FIR P.W.5 Constable Suresh Kumar Pal, who has brought the dead body for postmortem.

8. In the statement under section 313 Cr.P.C. accused have stated that they have been falsely implicated due to enmity.

9. Learned trial court appreciated the evidence on record and recorded the finding of acquittal.

10. Complainant, being aggrieved by the impugned judgment and order, preferred this revision.

11. Learned trial court has recorded the finding of acquittal on the ground that no motive for commission of crime is proved. There is discrepancy in the statement about the weapon used by each accused. Presence of P.W.1 Rambali Kannaujiya, who is the real brother of the deceased, was also found doubtful. Investigating officer of the case was not produced despite giving 42 opportunities to the prosecution to produce the investigating officer. Accordingly, accused were acquitted for the offence punishable under section 302/34 IPC.

12. Learned counsel for the revisionist submitted that learned trial court has erred in holding that the prosecution has failed to prove the case beyond reasonable doubt against the accused. Learned trial court has mis-appreciated the evidence on record. P.W.1 Rambali Kannaujiya, who was the real brother of the deceased, had seen the incident and had given categorical statement about the incident. It is further submitted that his presence at the spot could not be made doubtful by putting minor contradictions. P.W.2 Naval Kishore is although a hostile witness but he has also established the presence of P.W.1 Ram Bali Kannaujia at the spot. It is further submitted that it was the duty of the learned trial court to ensure the presence of investigating officer, but no such steps were taken. Complainant could not be held responsible for non production of the investigating officer.

13. Per contra, learned counsel for the opposite parties 1 and 2 submits that learned trial court has rightly appreciated the evidence on record and investigated the case holding that the prosecution has failed to prove the charges beyond reasonable doubt. It is further submitted that the presence of P.W.1 Ram Bali Kannaujia at the spot is not proved. PW.2 Naval Kishore is a hostile witness. There are material contradictions in the statement of the witnesses.

14. Powers of the revisional court in the matter against judgment of acquittal are well defined by the various pronouncements of Hon'ble the Apex Court.

15. In State of Rajasthan Vs. Fateharan Mehdu, (2017) 3 SCC 198, Hon'ble the Apex Court has held in para 28 as under :-

"28. It is useful to refer to judgment of this Court in Amit Kapoor and Ramesh Chander (2012) 9 SCC 460 where scope of Section 397 Cr.P.C. have been succinctly considered and explained. Para 12 and 13 are as follows:-

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well - founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or inter locutory order. The court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantively fails within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the CrPC. "

16. In Ganesha Vs. Sharanappa and another (2014) 1 SCC 87, Hon'ble Apex Court has laid the guidelines for exercise of revisional powers in judgment against acquittal; wherein it was held that" sub-section (3) of Section 401 of the Code contemplates that the power of revision does not authorize a High Court to convert a finding of acquittal into one of conviction. In a case where the finding of acquittal is recorded on account of misreading of evidence or non-consideration of evidence or perverse appreciation of evidence, nothing prevents the High Court from setting aside the order of acquittal at the instance of the informant in revision and directing fresh disposal on merit by the trial court." It was further held that "interference with the order of acquittal in revision is called for only in cases where there is manifest error of law or procedure and in those exceptional cases in which it is found that the order of acquittal suffers from glaring illegality, resulting into miscarriage of justice. The High Court may also interfere in those cases of acquittal caused by shutting out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. In such an exceptional case, the High Court in revision can set aside an order of acquittal but it cannot convert an order of acquittal into that of an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial."

17. Reliance was placed upon Bindeshwari Prasad Singh v. State of Bihar 2 (2002) 6 SCC 650, wherein it was held that " the High Court will not be justified in interfering with an order of acquittal merely because the trial court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances, in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party."

18. In Vimal Singh Vs. Khuman Singh and another (1998) 7 SCC 223, Hon'ble Apex Court has held as under:-

"The High Court in its revisional power does not ordinarily interfere with judgments of acquittal passed by the trial court unless there has been a manifest error of law or procedure. The interference with the order of acquittal passed by the trial court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial court has no jurisdiction to try the case or where the trial court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked."

19. Same view was taken in Suryakant Dadasaheb Bitale Vs. Dilip Bajrang Kale and another (2014) 13 SCC 496.

20. It has been held in Dhanpal Vs. State 2010 (1) JIC 172 by Hon'ble the Apex Court that "When the view which has been taken by the trial court is a possible view, then the acquittal cannot be set aside by merely substituting its reasons by the High Court".

21. In the first information report, it is specifically mentioned that Ram Autar and one unknown person has fired upon the deceased while Shyam Singh caused injuries by knife. P.W.1 Rambali is the real brother of the deceased and the complainant. Incident took place on 12.7.1996 at about 6.45 p.m., while the first information report was lodged on the same day at about 8.30 a.m. Specific allegation has been made about the fact that incident took place in front of grove of Beni Madhav wherein Ram Autar was armed with country made pistol, while Shyam Singh was armed with knife and other relative of Shyam Singh was armed with country made pistol. Motive is the old enmity wherein Mahadeo Prasad deceased was named in dacoity, which was committed at the house of Ram Autar. Mahadeo Prasad was convicted and enlarged on bail in appeal by the High Court.

22. At the very outset, in the first information report, the presence of P.W.1 Rambali Kannaujia is not mentioned. The same was improved in the statement under section 161 Cr.P.C. as well as in the court that at the time of incident, P.W.1 Rambali Kannaujia was easing himself near the place of occurrence about 40 steps away, the accused persons were also present to attack the deceased.

23. Learned counsel for the revisionist submits that learned trial court has erred in holding that statement of P.W.1 Rambali Kannaujia did not inspire confidence. It is further submitted that the statement of P.W.1 Rambali Kannaujia has been found in contradiction to the statement of P.W.2 Naval Kishore, who has been declared as hostile witness. P.W.2 Naval Kishore was declared as hostile. Thereafter, he was cross examined in detail by the defence wherein he has specifically stated that he heard the voice of firing about a furlong away from eastern side and he did not see the occurrence.

24. So far as the statement of P.W.2 Naval Kishore is concerned, he did not support the prosecution version. At the same time, it may be stated that it is settled legal position that the statement of witness can only be either wholly reliable or unreliable, which is to be scrutinized and appreciated, on the basis of its own statement. Statement of P.W.1 Rambali Kannaujia could not be appreciated in the light of the statement of P.W.2 Naval Kishore, who has not supported the prosecution version.

25. Now, it is to be seen whether evidence of P.W.1 Rambali Kannaujia is wholly reliable or not? Whether it proves the prosecution version beyond reasonable doubt?

26. At this stage, before appreciating the evidence of P.W.1 Rambali Kannaujia it would be apposite to refer to the relevant case law on the subject.

27. So far as the powers of revisional court are concerned, they are very limited. It has been held in the case of Ganesha (supra) that interference with the order of acquittal in revision is called for only in cases where there is manifest error of law or procedure and in those exceptional cases in which it is found that the order of acquittal suffers from glaring illegality, resulting into miscarriage of justice.

28. Admittedly, P.W.1 Rambali Kannaujia is the real brother of the deceased. It is also admitted fact that the deceased was tried for an offence of committing robbery in the house of Ram Autar wherein the deceased was convicted for seven years' rigorous imprisonment. He was released on bail in appeal by the High Court. Admittedly, relations between the parties were inimical. There was long drawn enmity between the parties. Enmity itself is a double edged weapon which can be used on either side.

29. So far as question of acceptance of statement of P.W.1 Rambali Kannaujia is concerned, in catena of judgments, it has been held that the evidence of real brother of the deceased or a close relative of the deceased cannot be thrown out merely on the ground of being closed relative, rather it is to be appreciated in view of over all evidence led by the prosecution.

30. Law is settled on the point that the evidence of a related witness cannot be discarded solely on this score. Hon'ble Apex Court in a recent judgment in the case of Kuria and another v. State of Rajasthan reported in (2012) 10 SCC 433 had held in paragraph no.34 as under:-

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

31. In another recent judgment in the case of Gurjit Singh v. State of Haryana reported in (2015) 4 SCC 380 Hon'ble the Apex Court has observed that statement of a relative cannot be discarded on the ground that he is a relative.

32. Law is settled on the point that mere relation of the witness with the deceased is by itself no ground to discard his evidence. Reference may be made on the pronouncement of Hon'ble the Apex Court in the case of Sahabuddin & Anr. Vs. State of Assam passed in Criminal Appeal No.629 of 2010. In this case Hon'ble the Apex Court has discussed the legal position on this point in paragraph no.16. Relevant portion of the aforesaid judgment reads as under:-

"16. ............. At this stage, we may refer to the judgment of this Court in the case of Gajoo V. State of Uttarakhand [JT 2012 (9) SC 10], where the Court while referring to various previous judgments of this Court, held as under:-

"We are not impressed with this argument. The appreciation of evidence of such related witnesses has been discussed by this Court in its various judgments. In the case of Dalip Singh v. State of Punjab [(1954) SCR 145], while rejecting the argument that witnesses who are close- relatives of the victim should not be relied upon, the Court held as under :-

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate and innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." Similar view was taken by the Court in the case of State of A.P. vs. S. Rayappa and Others [(2006) 4 SCC 512]. The Court observed that it is now almost a fashion that public is reluctant to appear and depose before the court especially in criminal cases and the cases for that reason itself are dragged for years and years. The Court also stated the principle that, "by now, it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons." This Court has also taken the view that related witness does not necessarily mean or is equivalent to an interested witness. A witness may be called interested only when he or she derives some benefit from the result litigation; in the decree in a civil case, or in seeing an accused person punished. {Ref. State of Uttar Pradesh v. Kishanpal and Others [(2008)16 SCC 73]} In the case of Darya Singh & Ors Vs. State of Punjab [AIR 1965 SC 328], the Court held as under:-

6 ................ On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars."

33. It will be useful to make a reference of another judgment of Hon'ble the Apex Court, in the case of Satbir Singh & Ors. Vs. State of Uttar pradesh reported in [ (2009) 13 SCC 790], wherein Hon'ble the Apex Court has held as under:-

" It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon ......."

31. Again in the case of Balraje @ Trimbak v. State of Maharashtra [(2010) 6 SCC 673], Hon'ble the Apex Court has held that when the eye-witnesses are stated to be interested an inimically disposed towards that 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 person. The truth or otherwise of the evidence has to be weighed pragmatically. The Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. But 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."

34. P.W.1 Rambali Kannaujia is not named as witness in the first information report, in which no-where it is stated that he was present at the spot. It is stated that he was present 20 steps away from the place of occurrence. He was easing at that time. At the same time, he stated that he saw the occurrence. He alongwith Naney Lal Verma and Naval Kishore ran away towards the place of occurrence and the accused ran away. He wrote the first information report and submitted the same to the police station. P.W.1 Rambali Kannaujia has admitted that neither in the first information report nor before the investigating officer he has stated that at the time of incident, he was easing himself and he had seen the accused, who were sitting about 40 steps away from his place. Even he had seen his brother coming, but he did not raise an alarm that accused were sitting there. This witness did not make any efforts to save his brother as he was not having any arms. The place of incident is about five furlong from the village.

35. According to P.W.1 Ram Bali Kannaujia, he left his house at about 6.30 a.m. This story itself raises doubt about the presence of P.W.1 Rambali Kannaujia. P.W. Rambali Kannaujia was working as operator in the Power House, Baghauli. He lives there. On 11.07.1996, he was on duty from 8.00 a.m. to 4.00 p.m. Thereafter, orally he took the permission from his senior officer and came to his house. What was the reason for coming to his house after obtaining the leave could not be explained by the witness. It shows that merely to make out presence at the place of incident, he told the story of taking oral leave from his senior officer for coming his house. Presence of P.W.1 Rambali Kannaujia at the spot for easing himself is doubtful. His presence at his house on the date of incident is also doubtful.

36. Incident occurred at about 6.45 a.m. while the first information report was lodged on the same day at about 8.30 a.m. Distance of police station from the place of occurrence is about five Kms. Inquest proceedings began at about 11.00 a.m. and concluded at about 11.30 a.m. Post mortem of corpse was conduced on the same day at about 5.50 p.m. According to P.W.1 Rambali Kannaujia, he himself has written the report and went to the police station on bicycle. It shows well calculated in time that just after the incident within 1:45 Hrs. even the report was lodged wherein the distance is about five Kms. Report was written by the complainant himself who is real brother of the deceased, which creates doubt about the genuineness of the incident. Prompt FIR reduces the chances of manipulation, but the promptness should not be such which may raise a doubt about the time of incident. In the present case, real brother of the deceased acted so wisely that within quarter two hours he completed all the formalities and lodged the first information report. This fact itself is creating doubt.

37. The most glaring aspect of the case is non examination of the investigating officer inspite of making all best possible efforts by the learned trial court, prosecution could not produce the investigating officer in the court. Investigation is an integrated part of the trial. Presence of investigating officer in the court is necessary in order to find out the truth as the cross examination of the investigating officer could only bring on record as to what was actually happened. He had collected the evidence at the spot and recorded the statement of the witnesses under section 161 Cr.P.C. Defence has a right to cross examine the investigating officer about the veracity of statement of witnesses coupled with other material collected during investigation. No plausible explanation could be given by the prosecution for non production of investigating officer. Learned trial court has rightly held that inspite of making all best possible efforts and giving sufficient time i.e. 42 days for production of investigating officer, prosecution has not produced him. Accordingly this is a vital point which disproves the charges against the accused, rather it creates a doubt about the prosecution version.

38. Learned trial court has arrived at the conclusion which is not against law. Finding recorded by the learned trial court is based on the material available on record which did not call for any interference in revision.

39. In view of the above, I do not find any ground to interfere in the impugned judgment and order passed by the learned trial court. Revision is devoid of any merits and is accordingly dismissed.

40. Let a copy of this judgment alongwith the lower court record be sent to the learned trial court forthwith by the office to ensure the compliance of this judgment.

Order Date: 13.7.2017

GSY