Prakash @ Om Prakash Misra & 2 Ors. vs State Of U.P.
2017 Latest Caselaw 2751 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
						    Reserved On : 27.06.2017
 
                                                      Delivered On : 28.07.2017 
 
Court No. - 20
 

 
Case :- CRIMINAL APPEAL No. - 59 of 2008
 
Appellant :- Prakash @ Om Prakash Misra & 2 Ors.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- T.N. Singh,Ashish Kumar Singh,Gyan Singh Chauhan,Indra Pratap Singh,Prabhu Ranjan Tripathi,R.R. Upadhyay,Rajendra Prasa Mishra,Soniya Mishra
 
Counsel for Respondent :- Govt. Advocate,Bhupendra Veer Singh,M.K. Tewari
 

 
Hon'ble Suneet Kumar,J.

Hon'ble Mrs. Rekha Dikshit,J.

(Delivered by Hon'ble Rekha Dikshit, J.)

1. This appeal assails the correctness of the judgment dated 14 December, 2007 passed by Special Judge, Gangster Act, Faizabad, in State of U.P. Vs. Babbar @ Vikram Mishra and others. The Special Judge has convicted the appellants-accused, namely, Babbar, Guddoo and Prakash under Section 302 I.P.C. read with Section 34 I.P.C. and under Section 3(1) Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 and sentenced them to undergo life imprisonment under Section 302 I.P.C. with fine of Rs. 25,000/- each, in default two years additional imprisonment, and three years rigorous imprisonment under Section 3(1) Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 with fine of Rs. 5,000/- each, in default six months additional imprisonment to each of the accused respectively.

2. Narrated concisely, prosecution case against the appellants is that on the day of occurrence, i.e., on 12 May, 2002 Babbar and Guddoo both son of Ashok Mishra and Prakash Mishra son of Gokul Mishra, pattidar of the informant Krishna Dev Mishra called his brother Dinesh Mishra at 07:00 am in the morning for irrigation of their fields by his pumping set. The brother of complainant Dinesh proceeded towards the pumping set, situated near his own house, with the handle to switch it on. A little later, the informant heard loud noises towards the pumping set so he, his mother and his family members rushed towards the pumping set, where they saw, all the three above mentioned persons assaulting his brother Dinesh with Kudal and Fawrah. As soon as they reached the site, all the three fled away and he saw his brother lying dead.

3. The informant Krishna Dev Mishra lodged FIR in the police station and the dead body of the deceased, Dinesh Mishra, was sent for post mortem where he was examined by Dr. Vijay Malik (P.W. 11) Exhibit Ka-10 is post mortem report in which ante mortem injuries are as follows:

(1) Incised wound 5cm x 1cm x scalp deep on scalp Rt side 12cm above & medial Rt ear pinna.

(2) Incised wound 14cm x 2cm x bone deep on Rt side face extending from just below Rt eye to Rt side neck area.

(3) Incised wound 10cm x 2cm x bone deep on front of Neck above the thyroid cartilage trachea through and through cut.

4. The case was investigated by S.O. Suresh Kumar Singh and S.I. Chandra Shekhar Singh and consequently charge-sheet (Exhibit Ka-12) was submitted after completing the investigation. The charge was framed against all the accused under Section 302 I.P.C. read with Section 34 I.P.C. and under Section 3(1) Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 on 18.07.2006 by the trial court.

5. To bring home the guilt of the appellant, the prosecution has examined 12 witnesses which are as follows:

(i) P.W. 1 Krishna Deo Mishra, the informant of the case and brother of the deceased has categorically substantiated the entire incident, which took place on 12.05.2002, around 07:00 am in the morning appellants came to his house and called his brother deceased Dinesh to start the pumping set for irrigation of their fields, so his brother along with handle of the pumping set accompanied the appellants towards nearby pumping set. A little later he heard loud noises coming from the site of pumping set, he, his mother and his sister rushed towards pumping set, where they saw the appellants assaulting his brother with Kudal and Fawarah. As soon as they reached the place of occurrence, the appellants fled away and his brother Dinesh was lying dead.

(ii) P.W. 2, Kalpnath, father of the deceased has substantiated the incident in his deposition and stated that on the date of occurrence he went for natural call from where he saw the appellants assaulting his son, deceased Dinesh, with Kudal and Fawarah. He tried to scream but lost his consciousness and fell down.

(iii) P.W. 3, Janki Devi, mother of the deceased has corroborated the said incident and stated in her oral testimony that the appellants took his son to start the pumping set for irrigation of their fields. After a short while, she heard loud noises towards pumping set, so she along with Manju, Krishna Dev and and Lavlesh ran towards the pumping set and saw the appellants assaulting his son, deceased Dinesh, with Kudal and Fawarah. As she reached the spot all the appellants ran away and she saw his son lying dead.

(iv) P.W. 4 Ram Lakhan, witness of recovery of weapon denied any such recovery in his presence, so he was declared hostile by the prosecution.

(v) P.W. 5, Virendra Singh, witness of inquest report has not supported the prosecution version and stated that no inquest report was prepared in his presence by the police. He has also been declared hostile by the prosecution.

(vi) P.W. 6, Bahoran Singh is also a witness of inquest report but has denied preparation of any such report in his presence. He has further stated that the police obtained his signature on a plain paper, as such, he has also been declared hostile by the prosecution.

(vii) P.W. 7, Hausila Prasad Mishra has also turned hostile denying preparation of any inquest report in his presence.

(viii) P.W. 8 Suresh Kumar Singh, Inspector, C.B.C.I.D. is the first Investigating Officer of the present case, has proved the prosecution papers, namely, inquest report Exhibit Ka-2, photonash Exhibit Ka-4, site plan Exhibit Ka-5, recovery memo Exhibit Ka-6 and Exhibit Ka-7 and after detailed investigation also added Section 3(1) Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.

(ix) P.W. 9, Ram Krishna Mishra is the witness of recovery memo Exhibit Ka-7 prepared on the recovery of Kudal and Fawrah from the house of the appellants. He has also proved recovery of blood stained mud and plain mud Exhibit Ka-6 from the place of occurrence.

(x) P.W. 10, Sajjan Singh Yadav, Head Constable has proved chik F.I.R. Exhibit Ka-8 and G.D. Exhibit Ka-9 which were prepared by him on 12 May, 2002.

(xi) P.W. 11, Dr. Vijay Malik conducted post mortem of the deceased on 12 May, 2002 and has proved post mortem report Exhibit Ka-10.

(xii) P.W. 12, Chandra Shekhar Singh, Sub Inspector, Vigilance received the investigation under Gangster Act from first I.O. and after investigation submitted charge-sheet Exhibit Ka-12 against the appellants under Section 302 I.P.C. and 3(1) Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.

6. Incriminating evidence and circumstances were put to the appellants under Section 313 Cr.P.C. who denied all of them and claimed false implication due to enemity with the complainant on account of some property dispute.

7. The trial court held, that the appellants committed the said incident and the prosecution established the circumstance, proving their guilt under Section 302 I.P.C. read with Section 34 I.P.C. and Section 3(1) Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 and sentenced them to undergo life imprisonment under Section 302 I.P.C. with fine of Rs. 25,000/- each in default two years additional imprisonment, and three years rigorous imprisonment under Section 3(1) Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 with fine of Rs. 5,000/- each, in default six months additional imprisonment to each of the accused respectively.

8. Heard Sri Rajiv Mishra holding brief of Ms. Soniya Mishra, learned counsel for the appellants, Sri Umesh Verma, learned AGA for the State and perused the record.

9. Learned counsel for the appellants submitted that as per prosecution version the place of occurrence is about 500-600 meters away from the house of the informant, which creates suspicion about hearing of loud noises from the place of occurrence and the factum of informant and his mother reaching the spot and witnessing the appellants assaulting the deceased. In fact, the informant and his mother have not seen the alleged incident as they could not have reached the place of occurrence in such a short time.

10. It has, further, been argued that there was no motive behind the commission of the alleged incident. More over, the appellants have their own pumping set, as such, there is no question of asking the deceased for irrigation of their fields by his pumping set. The genesis of crime is absolutely missing.

11. Learned counsel for the appellants has also contended that the alleged recovery of weapon is not proved as the witnesses of recovery have turned hostile and more so, none of the weapon has been recovered on the pointing out of any of the appellants. Similarly, the veracity of inquest report is highly doubtful as the independent witnesses of inquest report have not supported the prosecution version. Absence of the site plan of recovery also indicates a faulty investigation.

12. Learned counsel for the appellants has vehemently placed before the Court, the non-production of the alleged scribe of the F.I.R. in the trial. Neither the place of occurrence is identified in the site plan nor the presence of P.W. 2 at the spot. He has also argued that witnesses of fact being family member, fall in the category of related witnesses, thus, their evidence cannot be relied upon. Moreover, lot of discrepancies and contradictions in their evidence falsifies the prosecution case.

13. Per contra, learned AGA for the State contended that the prosecution has established the guilt of appellants in the commission of crime in this case. The F.I.R. version has fully been supported by medical and ocular evidence, based on the said evidence, the court below rightly convicted the appellants and the impugned judgment warrants no interference.

14. We have considered the rival contentions and perused the impugned judgment and order of the trial court and material on record.

15. In the present case, the appellants called the deceased Dinesh from his house for irrigation of their fields by the pumping set of the deceased. He accompanied them towards nearby pumping set. On hearing loud noises from the pumping set, informant and his mother along with other family members rushed towards the pumping set and saw appellants assaulting deceased to death. When they reached the spot, the appellants fled away and deceased, Dinesh, was lying dead.

16. The aforesaid fact is substantiated by the averments in first information report lodged by P.W. 1, who is eye-witness and medical evidence. The informant, Krishna Dev Mishra (P.W. 1), has categorically established the fact that the said occurrence took place in his sight as he reached there immediately. He has further deposed that all the appellants were assaulting his brother, Dinesh, with Kudal and Fawarah which resulted in his death. The entire commission of crime has been corroborated by P.W. 3 also.

17. The informant P.W. 1, P.W. 2 and P.W. 3 alleged eye-witnesses have deposed that the appellants took away deceased, Dinesh, towards the pumping set for irrigation of their fields and assaulted him with Kudal and Fawarah which resulted in his death. The medical evidence and oral testimony of Dr. Vijay Malik has corroborated the fact of inflicting injuries by alleged weapons causing his death. The manner of the incident has been substantiated by all the three eye-witnesses. Though the presence of P.W. 2 at the place of occurrence has not come up in the prosecution documents but he has supported the prosecution story. Even if, his version may not be taken into account due to his questionable presence at the spot, the testimony of P.W. 1 and P.W. 3 does not raise any serious doubts.

18. Learned counsel for the appellants has raised vital question regarding presence of the eye-witnesses at the time of commission of crime. P.W. 1 has categorically stated in his oral testimony that the place of occurrence is around 500-600 meters away from his house and it takes 15-20 minutes approximately to reach there, though, P.W. 3 mother of the deceased has deposed that on hearing loud noises and apprehending something wrong she ran towards the place of occurrence and reached their within two minutes. The natural reaction towards any such loud noise, more so, apprehending to be of one's own family member would be to reach the spot as soon as possible. Even if, the alleged distance of 500-600 meters be taken as it is, then also the family members running towards the same will reach there in a lesser time and the commission of crime would have been visible from a little distance also. Thus, this argument do not go to the extent of falsifying the factum of death of deceased due to the assault by the appellants.

19. We, now advert to other contention like motive as has been canvassed by learned counsel for the appellants, so far as motive is concerned, since, this being a case based on eye-witness count of the informant, supported well by witnesses present at the spot, it relegates into insignificance. Further, it has been contended that the alleged motive is more of a reason for false implication of the accused then to commit the said crime. Admittedly, the parties were having inimical relations on account of some property dispute, such type of enmity works on both sides but in the present case three witnesses have substantiated and corroborated the commission of crime. It is well settled that where the direct evidence is worthy of credence and can be believed then the question of motive does not carry much weight.

We may make a reference in the case of Shivraj Bapuray Jadhav and others Vs. State of Karnataka (2003) 6 SCC 392, Criminal Appeal No.805 of 2002 wherein it has been observed:

"In a case of direct evidence, the motive element does not play such an important role as to cast any doubt on the credibility of the prosecution witness even if there be any doubts raised in this regard."

20. Further contention of learned counsel for the appellants is vis-a-vis genesis of the crime. The fact that the appellants took away Dinesh for irrigation of their fields by his pumping set has not been denied or challenged in the entire evidence, so it may be taken as an admitted fact that the deceased, Dinesh, accompanied the appellants towards his pumping set, the genesis of the crime whatsoever it may be started the moment appellants took the deceased alongwith them for starting the pumping set. Even if, it is taken to be true that the appellants had their own pumping set then in that event it was even all the more to be explained as to why or with what intention appellants called deceased Dinesh to irrigate their fields by his pumping set. In the instant case, the testimony of eye-witness is crystal clear regarding the genesis and manner of the crime.

21. It has, further, been placed that the recovery of weapon is not proved as neither the witnesses have supported the prosecution case nor it was recovered at their behest. The witnesses of recovery have categorically admitted their signatures on the recovery memo and mere denial will not render the entire case false.

22. Similar, is the argument for the inquest report as the witnesses have not supported the prosecution version, though they have admitted their signatures on the report. Considering the fact that the preparation of an inquest report is a procedural matter so it cannot be falsified by mere denial of the witnesses. Further investigation has been questioned on the count of non-preparation of site plan of recovery. It is a part of investigation to prepare site plan and other documents as per procedure but its absence will not render the entire case false. It may be a fault on the part of Investigating Officer but a case supported by eye-witness, count shall always take a precedence over the same.

23. The instant case is not a case of wherein inquest report has been prepared before lodging of first information report. The FIR was lodged at 09:10 am and inquest report mentions the starting time as 09:30 am so this legal principle has no effect on the facts of the case.

24. It has further been argued that the scribe of the F.I.R. has not been produced. The informant has deposed in his oral testimony that he dictated the F.I.R. to a boy who wrote it. Admittedly, the said scribe has not been produced during the trial but it does not demolish the prosecution case as the informant has himself proved the written report dictated by him to the said scribe. The first information report is merely an information to the police and if it is substantially proved the technicality of producing scribe does not demolish the prosecution case. It has also been placed that the presence of P.W. 2 at the place of occurrence is not shown in the site plan which creates a doubt regarding proper investigation and the presence of P.W. 2 at the spot. If the Investigating Officer has committed error while preparing site plan then it will not falsify the prosecution case substantiated by eye-witnesses.

25. It has further been placed that the witnesses of fact P.W. 1, P.W. 2 and P.W. 3 are of the same family, as such, they fall under the category of related witnesses, thus, their evidence cannot be trustworthy. It is well settled law that evidence of witnesses to the occurrence cannot be thrown overboard merely because they are interested and partisan witnesses. All that the law demands is that their evidence should be scrutinised with great care and caution to safeguard against the normal temptation to falsely implicate others. The direct testimony of witnesses, whose evidence is otherwise consistent, should not ordinarily be rejected on the ground that they are partisan witnesses, unless the surrounding circumstances discredit their version. Ordinarily, close relatives of the deceased would not allow the real culprits to escape.

We may make a reference in the case of Anvaruddin and others Vs. Shakoor and others, (1990) 3 SCC 266, Criminal Appeal Nos. 119, 120, 121 and 122 of 1979 wherein it has been observed:

"Testimony of family members of deceased cannot be rejected merely because they are interested or partisan witnesses - However, their evidence is to be scrutinised with great care and caution - Possibility of implicating innocent persons to be kept in mind."

26. Learned counsel for the appellants has submitted that the present case is squarely covered by the following decisions:

(i) In the case of Arshad Hussain Vs State of Rajasthan, (SC) 1 Criminal Appeal No.889 of 2009 wherein it has been observed:

"The genesis and the manner of the incident is doubtful the accused cannot be convicted for the offence punishable under Section 302 I.P.C."

(ii) In the case of Motilal and another Vs. State of Rajasthan, (2009) 7 SCC 454, Criminal Appeal No.117 of 2003 with Nos. 118-20 of 2003 wherein it has been observed:

"It is true that a faulty investigation cannot be a determinative factor and would not be sufficient to throw out a credible prosecution version - But in the instant case, it was required to be explained by the investigating officer by plausible evidence on record, as to how the inquest was undertaken at a point of time when the FIR was not in existence."

27. Having regard to the aforesaid discussion, decision relied upon by learned counsel for the appellants have no application in the facts of the present case.

28. We, thus, are of the opinion that the trial court rightly held appellants guilty of murder under Section 302 I.P.C. read with Section 34 I.P.C. and under Section 3(1) Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 and sentenced them to undergo life imprisonment under Section 302 I.P.C. with fine of Rs. 25,000/- each, in default two years additional imprisonment, and three years rigorous imprisonment under Section 3(1) Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 with fine of Rs. 5,000/- each, in default six months additional imprisonment to each of the accused respectively.

29. For all the reasons stated above, we see no reason to interfere, with the order of the Special Court and dislodge the same, therefore, this appeal is liable to be dismissed and is, accordingly, dismissed.

30. The appellants are in jail since 14.12.2007. They shall remain in jail to serve out sentence awarded by the trial court in pursuance of the impugned judgment and order.

31. Senior Registrar is directed to ensure the compliance by forwarding the copy of the judgment to the District Judge, Faizabad.

	(Rekha Dikshit, J.)                (Suneet Kumar, J.) 
 
	Order Date :- 28.07.2017
 
	Nitin Verma