Nanhe & Another vs State Of U.P.
2017 Latest Caselaw 1474 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved.
 
Court No. - 44
 

 
Case :- CRIMINAL APPEAL No. - 6824 of 2007
 

 
Appellant :- Nanhe & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- S.P. Tewari,Arvind Agrawal A/C,C.P.Mishra,M.S. Akhtar
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Shailendra Kumar Agrawal,J.

(Delivered by Hon. Bharat Bhushan, J.)

1. Appellants Nanhe and Satya Prakash have assailed the judgment and order dated 26.9.2007 passed by the then Addl. Sessions Judge, Court No. 2 Farrukhabad in Sessions Trial No. 21 of 1998 (State Vs Nanhe and another) arising out of Case Crime No. 262 of 1997, under Section 302 Indian Penal Code, 1860 (in short IPC), Police Station (PS)-Shamshabad, District Farrukhabad whereby the appellants were convicted under Section 302 IPC and sentenced to life imprisonment and a fine of Rs. 5000/- with default stipulation.

2. Prosecution story in brief is that on 8.11.1997 at about 5 p.m., the deceased Ravindra Singh and his son Kaushal Kishore (P.W.-1) were coming back on a bicycle from Majhna Bazar towards their village Khudna Baid. As soon as they neared the agriculture field of one Lala Ram, close to village, appellants Nanhe and Satya Prakash, armed with country made pistol, surfaced from the bushes nearby and opened fire. Deceased Ravindra Singh father of Kaushal Kishore (P.W.-1) got hit. The complainant Kaushal Kishore (P.W.-1) left his bicycle and raised alarm whereupon Awadhesh Kumar (P.W.-3), Mahaveer Prasad of Village Khudna Baid (not examined), Dr. Udaiveer of village Majhna (not examined) and Prabhat Kumar of village Karanpur Gangtara (not examined) arrived on the spot. All of them recognized the assailants but assailants ran away from the spot while Ravindra Singh died instantaneously on the spot.

3. Complainant Kaushal Kishore got a report (Ex-Ka-1) scribed by one Kamlesh Kumar of village Kuiyankhera and lodged it at P.S. Shamshabad at 7.45 p.m. meaning thereby that the FIR was lodged in less than three hours at P.S. Shamshabad, which was six kilometers away from the place of occurrence. Evidence reveals that complainant Kaushal Kishore traversed the distance between the place of occurrence and P.S. with bicycle.

4. P.W.-4 Constable Ram Bharosey Lal, the then constable clerk of P.S. Shamshabad recorded the First Information Report (FIR) (Ex-Ka-1), carved out a chick report (Ex-Ka-5) and made relevant entries in the General Diary (GD) of P.S. The original G.Ds. have been destroyed and a report in this connection has been proved on record as Ex-Ka-6, while the Carbon Copy of the GD is available on record as EX-Ka-7.

5. Initially investigation was conducted by P.W.-6 Ram Kumar Singh, the then Sub Inspector of P.S. Shamshabad, who is said to have conducted the inquest proceedings, prepared inquest report Ex-Ka-9 and obtained blood stained earth and simple earth from the place of occurrence and prepared Fard report Ex-Ka-3. A cycle on which the deceased and his son were traveling was also first taken into possession and thereafter given in custody of complainant (Fard Ex-Ka-4). Site plan (Ex-Ka-14) was also prepared. Dead body was sent for postmortem on 9.11.1997 through Constable Praveen Kumar and Constable Ravindra Singh of P.S. Shamshabad. Autopsy was conducted by P.W.-2 Dr S.C. Tiwari, who prepared the postmortem report (Ex-Ka-2). Dr. S.C. Tiwari found following anti-mortem injuries on the person of deceased:-

1. A firearm wound of entry 2.5 cm X 2 cm X Cranial Cavity Deep on beglet mastoid region just below and behind the right ear. Margins are inverted. Lacerated ecchynosed. Blackening and tattooing present in an area of 9 cm X 7 cm on debection right mastoid bone; left parietal bone fractured, mid of Cranial fossa bones of skull fractured. Margins are brain lacerated with blood clots. Recovered one metallic big bullet recovered from cranial cavity.

2. A firearm wound of entry 1.5 cm X 1 cm X through and through on right side of chest in the middle 10 cm above and medial to right nipple at 2 O' clock position. Margins are inverted and lacerated ecchynosed with commune cutting wound of exit 2 cm X 1.5 cm on back of left

6. P.W.-6 Ram Kumar Singh is said to have recorded the statement of certain witnesses. This witness has testified that he reached the place of occurrence somewhere about 8.45 p.m. meaning thereby that the police reached the place of occurrence within an hour of lodging of FIR. Thereafter, investigation was taken over by the then Station Officer (SHO) Kaliram (P.W.-5) on 9.11.1997 i.e. on the next day of incident. This witness has informed that he was not present on the date of occurrence i.e. on 8.11.1997, therefore, he took over the investigation only on 9.11.1997. This witness recorded the statements of P.W.-3 Awadhesh Kumar, Udaiveer, Prabhat Kumar, Kamlesh Kumar (scribe), Anil, Jaidrath, Ram Sewak and Vinod Kumar. He also tried to arrest the accused persons. Subsequently, he was informed that both the appellants Nanhe and Satya Prakash had surrendered before the then Chief Judicial Magistrate, Farrukhabad. On conclusion of the investigation, the Investigating Officer filed a charge sheet (Ex-Ka-8) against appellants Nanhe and Satya Prakash.

7. Trial Judge framed charge under Section 302 IPC against both the appellants on 26.8.1998. Both appellants denied the charge and claimed trial. Prosecution has produced the evidence of six witnesses in support of its case. They are P.W.-1 Kaushal Kishore (complainant/eye witness), P.W.-2 Dr S.C. Tiwari (conducted postmortem), P.W.-3 Awadhesh Kumar (eye witness), P.W.-4 Constable Ram Bharosey Lal, P.W.-5 Kaliram (second I.O.), P.W.-6 Sub Inspector Ram Kumar Singh (first I.O.).

8. Thereafter, the statements of accused were recorded under Section 313 Cr.P.C. wherein they denied the allegations and claimed false implication on account of previous enmity. Appellants were given opportunity to place defence evidence but of no avail. Trial Judge was convinced of the prosecution evidence, therefore he convicted both the appellants Nanhe and Satya Prakash under Section 302 IPC and sentenced them as aforesaid by the said impugned judgment dated 26.9.2007. This judgment is under challenge before this court.

9. It appears that the appellants are in jail. Several bail applications were dismissed by co-ordinate benches of this Court yet their counsel Sri M. S. Akhtar was not prepared to argue this appeal on 18.4.2017. He was specifically asked to conclude the hearing of the appeal on next date but again he refused to argue this appeal on 27/4/2017 on the ground that he has not been instructed by his client to argue the appeal. Strangely he was prepared to argue another bail application but not prepared to argue the final appeal despite long incarceration of appellants, therefore, this court was constrained to appoint Mr Arvind Agrawal, Advocate as Amicus curiae for both the appellants, who subsequently and finally argued this appeal on behalf of appellants very diligently. Sri Ajit Ray, learned AGA has argued this appeal on behalf of State.

10. Learned Amicus curiae has submitted that the FIR was ante-timed; that prosecution evidence is discrepancy ridden; motive for murder is very weak; medical report is inconsistent with the oral evidence. Presence of witnesses on the spot is highly doubtful and that only partisan witnesses have been produced. It is further submitted that no independent witnesses have been produced despite their availability.

11. Per contra, Sri Ajit Ray, learned AGA has submitted that there is no evidence on record to demonstrate that the FIR was ante-timed and further the minor discrepancies would merely indicate that the witnesses were not tutored. Sri Ajit Ray, learned AGA also urged this court to consider the prosecution evidence in the light of fact that the witnesses were examined after considerable delay. It is stated that the testimony of P.W.-1 Kaushal Kishore was recorded after 4-5 years that too on several dates. It is further stated that the evidence of P.W.-3 Awadhesh Kumar was recorded after almost 8-9 years. This delay infact has resulted in some minor discrepancy which in our opinion has not adversely affected the core of the prosecution case.

12. Bare perusal of the prosecution evidence would reveal that both P.W.-1 Kaushal Kishore and P.W.-3 Awadhesh Kumar are related. Presence of P.W-1 Kaushal Kishore is quite natural. Deceased was his father who had gone to Majhna Bazar for his treatment. He took medicines from Dr. Devendra Kumar Sanyasi and when they were returning back on the bicycle, the alleged incident occurred. P.W.-1 Kaushal Kishore, younger son of deceased Ravindra was infact riding the bicycle. Deceased was sitting with his son. As soon as they neared the agriculture field of one Lal Ram, close to their own village, appellants emerged from the bushes nearby. Both of them were holding country made pistol. They stopped the cycle and shot the deceased. P.W.-1 Kaushal Kishore is supposed to have raised the alarm whereupon P.W.-3 Awadhesh Kumar and several other witnesses arrived on the spot. Prosecution story says that the incident occurred at 5 p.m. in the evening on 8.11.1997. Report was lodged in less than 3 hours at P.S. which was six kilometers away from the place of occurrence. This prompt lodging of the FIR obviates any possibility of concoction.

13. It is pertinent to point out that both P.W.-1 Kaushal Kishore and P.W.-3 Awadhesh Kumar have testified against the appellants, who belong to same village. Evidence would reveal that Awadhesh Kumar also lives in the same village near the house of deceased. Therefore, there was no occasion and possibility of wrong identification of assailants. Incident occurred in earlier part of November, 1997 at 5 p.m. At that time, darkness is not of such a level to create any difficulty in identification of assailants, therefore, it was not possible for witnesses to misread the presence of assailants. P.W.-1 Kaushal Kishore is son of deceased. Therefore, there was no reason for him to spare the real culprits and implicate the appellants falsely.

14. It is contended by learned Amicus curiae that P.W.-1 Kaushal Kishore has said that his father (deceased) was sitting on back side of bicycle while P.W.-3 Awadhesh Kumar has said that the deceased was sitting on the frame of the bicycle i.e. ahead of his son P.W.-1 Kaushal Kishore. Learned Amicus curiae has argued that this indicates that one of the witnesses was not present on the spot. We do not agree with learned Amicus curiae on this score.

15. Careful examination and perusal of evidence would reveal that this minor discrepancy does not create any doubt about the presence of any witness. P.W.-1 Kaushal Kishore has said that he was traveling on bicycle. He himself was riding the bicycle while his father was sitting behind the bicycle as pillion rider. On the other hand, P.W.-3 Awadhesh Kumar has said that deceased was sitting on the frame of the bicycle i.e. ahead of complainant Kaushal Kishore. Cumulative examination of testimony of P.W-3 Awadhesh Kumar would reveal that this discrepancy does not necessarily create doubt about the presence of either witnesses. P.W.-3 has clearly stated that he first saw the deceased and his son in Majhna Bazar. Deceased Ravindra was sitting with his son on the frame of the bicycle. This witness has specifically testified that deceased and his son were traveling ahead of him. While bicycles of Prabhat Kumar, Dr Udaiveer, Kamlesh Kumar etc were behind him. All of them were returning from the Bazar due to their own reasons. His testimony indicates that he was not exactly accompanying the deceased and Kaushal Kishore. Bicycle of complainant was ahead of them. Apparently, he left Majhna Bazar after few minutes of deceased and complainant. Learned AGA has argued that it is very much possible that deceased had changed the place of sitting subsequently on his way back to village.

16. P.W.-3 Awadhesh Kumar was traveling at some distance with deceased. Additionally, his attention was not completely with them. Therefore, this argument of learned AGA cannot be ignored. The fact that P.W.-3 Awadhesh Kumar has testified after 8-9 years of the incident could also be a reason for this minor discrepancy. In any case, we do not think that this discrepancy in any manner creates doubt about the presence of witnesses. P.W.-3 has specifically testified that deceased and his son had left little earlier but he later caught up with them and witnessed the incident. His testimony in this regard is highly credible.

17. We have carefully examined testimonies of both eye witnesses. We believe that they have testified in a natural and trustworthy manner. Intense and searching cross examination has not been able to extract any adverse material from them. We completely rely upon their testimonies.

18. Learned Amicus curiae has also submitted that motive attributed to appellants is very weak and that this motive by itself would not impel the assailants to commit murder of deceased Ravindra. We do not give any credence to this argument as well. The question of motive is one of the perception. Motive, ordinarily lie-locked in the heart of miscreants. Other side can merely perceive it. In any case, question of motive becomes secondary, if trustworthy direct evidence is available for establishing the involvement of miscreants in the said crime as has been done in the instant case.

19. In any case, even the stated motive is not weak. If we carefully peruse the available evidence on record, it would indicate that rival parties infact were perhaps not decent citizens. They were facing several criminal cases. Deceased too was a man of questionable antecedents. It is said that appellant Nanhe was facing a criminal trial with deceased Ravindra. Nanhe was not appearing in this case, therefore, deceased went his residence and asked his brother co-accused Satya Prakash to ask Nanhey to appear in the case so that criminal case could be concluded quickly. Satya Prakash reportedly abused deceased Ravindra and opened fire upon deceased Ravindra.

20. It is said that deceased sustained injuries and he also filed a report in that case. It is said that Nanhe suspected that deceased Ravindra was responsible for issuance of warrants against him. This incident could have been serious. Some folks especially of rural background do take issuance of warrants and arrival of police at their residence as an insulting phenomenon. According to P.W.-1 Kaushal Kishore present incident did have a history. Relations between rival parties were not exactly hunky-dory. There was some tension between the rival parties.

21. Learned Amicus curiae has said that P.W.-1 Kaushal Kishore was a student of Industrial Training Institute (ITI). He has admitted that he used to spent whole day i.e. from 10 am to 5 pm in the class, therefore his presence at the time of incident is doubtful. We are afraid that this argument is not justified. Being student of a particular place does not necessarily mean that student is present in all Classes and on all days. There have been instances of absence of student in all kind of Institutes on various grounds. In any case, P.W.-1 has clarified the position saying that incident occurred on second Saturday and the Institute was closed on that day and also his father was sick, therefore he was accompanying his father. Even if, it is believed that the institute was not closed on that day, still it would not ordinarily detain any son from accompany his sick father to doctor.

22. Testimonies of P.W.-1 Kaushal Kishore and P.W.-3 Awadhesh Kumar are trustworthy. There are several documents on record to establish their presence. P.W-1 Kaushal Kishore went to the police station to lodge the FIR. His presence and presence of P.W.-3 Awadhesh Kumar were also noted at police station. Relevant entries were made in the general diary, extract of which is available as Ex-Ka-7.

23. In the same evening, inquest proceedings were conducted. Presence of Kamlesh Kumar is shown. Name of Kaushal Kishore (P.W.-1) is also mentioned in this inquest report as a person who had given information to the police personally. Documentation done in the wake of lodging of the FIR also establishes the presence of both the witnesses. Crime number is available on inquest report and documents prepared subsequently. Fard of blood stained and simple earth (Ex-Ka-3) and fard of possession of bicycle (Ex-Ka-4) do contain the crime number as well. These documents were prepared in the same night. Availability of crime number as well as signatures of both P.W-1 Kaushal Kishore and P.W.-3 Awadhesh Kumar on Fard (Ex-Ka-3) and Fard (Ex-Ka-4) rule out any possibility of concoction. We have carefully perused the evidence in this regard and we do not believe that the FIR was ante-timed.

24. P.W.-4 Constable Ram Bharosey Lal and P.W.-6 first I.O. Ram Kumar Singh have also established the presence of P.W.-1 Kaushal Kishore. It is pertinent to point out that the police personnel reached the place of occurrence at 8.45 p.m. in the night i.e. in less than four hours of the incident but for the report filed by P.W.-1 Kaushal Kishore subsequent events would not have taken place.

25. Learned Amicus curiae has claimed that there are discrepancies in the evidence of both the eye witnesses and this indicate absence of these witnesses on the spot as well as weak nature of their testimonies. We have already discussed discrepancies. Question of contradiction and discrepancies has to be taken into account in the context and facts of a particular case. Incident occurred in November, 1997. The evidence of first witness was recorded on 4.7.2002 i.e. after almost 4-5 years of the incident and it was concluded on 31st July, 2007. Similarly, examination of P.W.-3 Awadhesh Kumar started on 12.7.2006 and finished by 4.9.2006. This considerable delay in recording the testimonies of witnesses would naturally result in some discrepancies but it is now well known that discrepancies per-se are not enough to brand the eye witnesses as liars. It depends on the nature of discrepancies. In fact some discrepancies may show that witnesses have not been tutored. Courts do not expect parrot like repetition of events by each witness. Unless the stated discrepancies affect the core of prosecution case, they have to be discarded. In the present case, core of prosecution case is intact. No serious discrepancy is visible.

26. Learned Amicus curiae has also claimed that despite the presence of eye witnesses only partisan witnesses have been produced and that, according to him, weakens the case of the prosecution. We are not convinced of this argument. Evidence is accepted on the basis of truthfulness of the witnesses. If the courts believe that testimony of witnesses is trustworthy then their evidence cannot be ignored merely because they are related to deceased or his family. It is pertinent to point out that criminal cases are decided on the basis of available evidence and not on, what prosecution ought to have done.

27. In any case, the evidence of witnesses cannot be discarded merely on the ground that they are related or interested. There is no rule of law, which requires rejection of testimony of related witnesses. The evidence of an interested witness does not suffer from any infirmity as such, but the Courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinized with a little care. Once this course is adopted and the Court is satisfied that the evidence of the interested witness is truthful then such evidence could be relied upon even without corroboration.

28. In Ram Gopal Vs State of Rajasthan (1998) 6 SCC 441, Hon'ble Supreme Court has held that if witnesses are related to deceased, that is no reasonable ground to discard the testimony of otherwise reliable witnesses. Similarly, in Chapho @ Jakeal Vs Kerala (1998) 6 SCC 602 also, the Hon'ble Apex Court has held that in the event independent witnesses are available and yet not produced even then this is not a reasonable ground to discard the testimony of otherwise trustworthy witnesses.

29. Hon'ble Supreme Court in Bhupendra Singh and others Vs State of UP (2010) 1 SCC (Cri) 275, has held that merely because eye witnesses are family members, their evidence cannot per-se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of deceased they are likely to falsely implicate accused, cannot be a ground to discard the evidence, which is otherwise cogent and credible.

30. Apex Court in t he case of Jayabalan Vs UT of Pondicherry, (2010) 1 SCC 199, the Apex 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. The supreme Court in paragraph no. 23 held as under:

"23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."

31. Learned Amicus curiae has argued that medical evidence in this case is not consistent with the prosecution evidence. He has drawn the attention of the court towards medical report prepared by P.W.-2 Dr. S.C. Tiwari which reveals that both wounds of entry are on the right side of the body. First wound of entry is 2.5 cm X 2 cm X cranial cavity deep towards right side of ear. Second wound of entry on the right side on the chest near the right nipple. It is argued that P.W.-3 Awadhesh Kumar has stated that second fire was discharged on the left temporal region (duiVh). It is further submitted that this shows that P.W.-3 Awadhesh Kumar was not present on the spot and that he has been roped in subsequently as witness in the prosecution case. We are not convinced of this argument. Fact of the matter is that medical evidence itself cannot compared with the ocular testimony in a mechanical fashion.

32. Apex court in Vitthal Pundalik Zende versus State of Maharashtra, 2009 (2) ACR 1497 (S.C.) held that minor discrepancies between ocular testimonies and medical evidence would not result in rejecting the evidence of injured witness. Apex Court in G.S. Walia Vs State of Punjab, (1998) 5 SCC 150 has held that medical evidence should not be mechanically compared with oral testimony. In the case of G.S. Wallia (supra) certain injuries caused by sharp edged weapon was found on the body yet oral testimony did not refer any sharp edged weapon yet the Apex Court declined to reject the oral testimony.

33. Apex Court in Anwar Vs State of Haryana, 1997 (34) ACC 492 has held that minor discrepancy between the oral testimony and medical evidence is not enough to discard the otherwise trustworthy evidence of eye witnesses.

34. Coming back to the facts of the present case, it is apparent that both the assailants came out of the bushes suddenly and simultaneously opened fire upon the deceased. Fire was made from a very close range. P.W.-3 Awadhesh Kumar has said that this fire was made from 2-3 paces. When some body says that fire was opened from 2-3 steps it does not mean that witness had measured the distance. This description of distance is obviously based upon guesstimate.

35. It is pertinent to point out that the incident occurred suddenly. First fire was opened by assailants Satya Prakash which hit deceased Ravindra on his chest. Thereafter Ravindra fell down and then second fire was opened by co accused Nanhey.

36. The testimony of P.W.-3 Awadhesh Kumar itself would reveal that deceased was not stationery at the time of at least second fire. He was falling down or had fallen down completely. P.W.-3 has not been able to disclose whether the deceased fell down on his back or on his chest. No body is expected to describe such grave instances with mathematical precision. Witnesses are expected to describe the events in reasonable manner. They are not expected to narrate the incident with absolute precision.

37. Testimonies of P.W.-1 Kaushal Kishore and P.W.-3 Awadhesh Kumar are of high quality. Both have narrated the entire episode in great detail. They have been subjected to searching cross examination and yet they reiterated the prosecution story with trust worthy depiction. In our opinion, their testimonies are natural, convincing and in accordance with the normal human conduct.

38. We have perused the record. Trial Judge has appraised the evidence adroitly. There is nothing on record to show that the conclusions drawn by the trial Judge are not sustainable.

39. In the result, we find that the appellants have rightly been found guilty of offence under Section 302 IPC. We, therefore, affirm the conviction and sentence imposed on the appellants. The appeal is hereby dismissed.

Let a copy of the order be certified within ten days to the concerned trial court. Concerned Court shall report compliance within one month.

(Justice S. K. Agrawal)    (Justice Bharat Bhushan)
 

 
Order Date :-   31.5.2017
 
RavindraKSingh