Atul Kumar vs State Of U.P.
2017 Latest Caselaw 643 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

	           							     AFR						  Reserved on 12.4.2017
 
		                                                Delivered on 15.5.2017.
 

 
Case :- CRIMINAL APPEAL No. - 1719 of 2009
 
Appellant :- Atul Kumar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Pradeep Kumar Shukla,Anubhav Shukla,Dileep Kumar,Ram Shiromani Shukla,Sarvesh,Sunil Kumar Sharma
 
Counsel for Respondent :- Govt. Advocate,Dr.C.P.Upadhyay
 
Connected with 
 

 
Case :- CRIMINAL APPEAL No. - 1477 of 2009
 
Appellant :- Santosh Yadav
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- S.K. Yadav,Birendra Singh,Dr. S.K.Yadav,R.B.Rastogi
 
Counsel for Respondent :- Govt. Advocate,Dr.C.P. Upadhyay
 

 
Connected with 
 

 
Case :- CRIMINAL APPEAL No. - 3475 of 2011
 
Appellant :- Firoz Ahmad
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Kapil Rathore,Adil Jamal,Lalji Chaudhary
 
Counsel for Respondent :- Govt. Advocate,Dr.C.P.Upadhyay
 

 
Hon'ble Ramesh Sinha, J. 

Hon'ble Umesh Chandra Srivastava, J.

(Delivered by Hon'ble U.C. Srivastava, J.)

1. The above mentioned three criminal appeals having arisen out of judgment and order dated 6.2.2009 passed by the learned Addl. Sessions Judge, Allahabad in S.T. No. 353 of 2007: State Vs. Atul Kumar & others under Sections 302 IPC and 7 Criminal Law Amendment Act, P.S. Keedganj, District Allahabad convicting and sentencing accused-appellants to undergo life imprisonment as well as to pay Rs.10,000/- each as fine and in default to undergo one year rigorous imprisonment under Section 302/34 IPC, are being decided together by a common judgment.

2. Brief facts giving rise to present criminal appeals are that Shree Nath Sahu was the resident of House No. 516, Krishna Nagar, Kydganj, Allahabad. He came to his house in the night of 10.9.2006 at about 10.00 p.m. on his motorcycle from his go-down and after parking the motorcycle on the platform of his house, he proceeded towards the shop of Munna Vishwakarma situated in front of his house. When he was taking cigarette from the shop keeper appellants, namely Atul Kumar, Firoz Ahmad and Santosh Yadav along with one unknown person came there and attacked with bombs over him as a result he was badly injured. He was immediately taken to Jeevan Jyoti Hospital, Allahabad where he was admitted. The incident was witnessed by his wife Smt. Rekha Sahu, brother-in-law Sri Satish Chandra Sahu, son Tejaswa Sahu and many other people of the Mohalla. Smt. Rekha Sahu got the report of the incident scribed by Dheeraj Nagar in the hospital and thereafter she went to police station Kydganj where she lodged report against appellants and one unknown person which was registered under Section 307 IPC. The investigation of the case was entrusted to S.I. Arvind Kumar.

3. Shree Nath Sahu died in the hospital during treatment on 15.9.2006 at 6.15 a.m. Thereafter, the case was converted under Section 302 IPC and its investigation was undertaken by Sri Kamlesh Singh, S.O. Kydganj. The postmortem on the dead body of the deceased was done by Dr. R.S. Ram and following ante-mortem injuries were found on his body.

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4. The Investigating Officer, on the basis of evidence collected during investigation, submitted charge sheet in the court of magistrate concerned under Section 302 IPC, who committed the case to the court of Sessions. Charge was framed against appellants under Section 302 IPC which they denied and claimed to be tried.

5. The prosecution examined as many as 7 witnesses namely P.W.1-Rekha Sahu, P.W.2-Tejeshwa Sahu, P.W.3-Constable Ramesh Kumar Singh, P.W.4-Dr. R.S. Ram, P.W.5- SI Arvind Kumar Singh, P.W.6-SI Kamlesh Singh and P.W.7-Dr. Vijay Tripathi to prove the charge.

6. Appellants' statements under Section 313 Cr.P.C. were recorded in which while denying the prosecution case, they stated that a false FIR was lodged against them and on the basis of false evidence collected during investigation, false charge sheet was filed. They further stated that they were falsely implicated due to enmity. The appellants also examined D.W.1-Mahendra Yadav, D.W.2-Chand Babu, D.W.3-Rajnish Kumar and D.W.4-RajKumar Bhargav in defence.

7. Learned Additional Sessions Judge after having heard learned counsel for the parties and perused the material brought on record came to the conclusion that appellants have committed the murder of the deceased and, therefore, he held them guilty for the offence of murder under Section 302 IPC. Accordingly, they were sentenced to undergo life imprisonment and pay Rs.10,000/- as fine each and in case of default to undergo one year rigorous imprisonment. Aggrieved by the order of conviction and sentence the present appeals have been filed by the appellants.

8. We have heard Sri Sarvesh, Sri Lalji Chaudhary learned counsel for the appellants, Dr. C.P. Upadhyaya, learned counsel for the complainant and Sri Ashish Pandey, learned A.G.A. for the State.

9. The submission of learned counsel for the appellants is that learned court below has recorded the order of conviction against appellants on the basis of evidence of two witnesses namely P.W.1-Smt. Rekha Sahu and P.W. 2-Tejeshwa Sahu, who are none else but the wife and son of the deceased. Further submission is that as a matter of fact the so called witnesses were not present on the spot when the occurrence took place, rather they were in Mohalla-Meerapur and after having received the news of incident they had directly reached Jeevan Jyoti Hospital where deceased was admitted for treatment. Further submission is that it is not a case that no one had seen the incident, rather incident having occurred at the shop of Munna Vishwakarma in his presence, he was the best witness to be examined by the prosecution. But, the prosecution did not examine him probably for the reason that he was not ready to give false evidence against appellants. Further submission is that since no independent witness has supported the prosecution version, and eye-witnesses who have been examined from the side of prosecution being related with the deceased are interested witnesses, the learned Additional Sessions Judge could not have based the order of conviction on the basis of their evidence. Further submission is that appellants have challenged the veracity of the so called eye witnesses on the following grounds:

1. Had the so called eye witnesses been present on spot and would have seen the occurrence then they had taken the deceased to Jeevan Jyoti Hospital and got him admitted there.

2. If the so called eye witnesses would have taken the deceased to hospital and got him admitted then their clothes would have soaked into blood while it was not so done in the present case.

3. Had the so called eye witnesses taken the deceased to hospital and got him admitted then their names would be mentioned in the hospital Register as the persons who brought the deceased to hospital instead of names of Dinesh Chandra Pasi and Ram Chandra being mentioned in the register.

4. Mentioning the names of Dinesh Chandra Pasi and Ram Chandra as persons who brought the deceased to hospital is suggestive of the fact that the so called eye witnesses had not taken the deceased to hospital, rather he was taken by those whose names are mentioned in the Register.

5. Had the so called eye witnesses taken the deceased to hospital then they would have never stated in the statements given in the court that people of Mohalla had taken the deceased to hospital in a Riksha.

10. Learned counsel for the appellants has next submitted that statement of eye witnesses make it crystal clear that they were not present on the spot when the occurrence took place otherwise there could be no reason for the people of Mohalla having taken the deceased to hospital. Further submission is that if the so called eye witnesses would have taken the deceased to hospital then they would never state in their statements given in the court that they had reached hospital after the deceased having reached there and specially P.W. 2-Tejeshwa Sahu would not state that he had seen his father in the night of the incident for the first time in the hospital at 11.00 p.m. Further submission is that statement of P.W. 2 Tejeshwa Sahu is suggestive of the fact that alleged eye witnesses were not present on the spot when the occurrence took place, but they were somewhere else and had reached the hospital in the night of 10.9.2006 at about 11.00 p.m. after having heard the news of the incident.

11. Further submission is that had the so called eye witnesses been present on the spot and seen the incident then prosecution would never withhold the star witness of the incident namely Munna Vishwakarma, the owner of the shop where incident is said to have taken place. Further submission is that the act of prosecution not examining the star witness in the court is suggestive of the fact that if the star witness would be examined then he would tell the correct story of the incident. Further submission is that if the wife and son of the deceased would be present on spot at the time of occurrence and had seen the incident then this news would never be flashed on RT set by Kydganj police station that deceased was killed in a bomb blast by some unknown assailants. Further submission is that flashing the news on RT set that deceased was killed in bomb blast by some unknown assailants makes it clear that appellants did not cause the incident rather it were some unknown assailants who cause the incident.

12. Further submission is that it is proved from the evidence of D.W.1-Mahendra Yadav that wife and son of the deceased were not present at home at the time of occurrence but they were in Mohalla Meerapur, which is at the distance of about 4-5 km. from Mohalla Kydganj, Allahabad. This is also the submission that this witness has categorically stated that he had met with the deceased at the shop of Munna Vishwakarma before the incident and the deceased had then told him that he was waiting his wife and children who had gone to Meerapur. This evidence of D.W.1-Mahendra Yadav is again suggestive of the fact that P.W.1-Smt. Rekha Sahu and P.W. 2-Tejeshwa Sahu were not present at home when the incident took place, but they were at the house of their father and maternal grand father in Meerapur at that time.

13. The last submission of learned counsel for the appellants is that it is also proved from the evidence of D.W.3-Rajneesh Kumar that appellant Atul Kumar was present at his home at the time of occurrence watching India -West Indies Cricket match on the television. He submits that evidence of D.W.1-Mahendra Yadav and D.W.3-Rajneesh Kumar cannot be thrown away merely on the reason that they are defence witnesses and they have given a false evidence to defend the appellant Atul Kumar and others.

14. Per contra, learned A.G.A. has submitted that defence does not deny the incident, the timing of the incident, the place of occurrence which is not not away from the house of the deceased and also the mode and manner in which the incident is said to have taken place. He has further submitted that it is admitted to defence that incident in question took place near the shop of Munna Vishwakarma which is situated in front of his house adjoining to the house of the deceased. The timing of incident is also not odd so that probability of presence of eye witnesses namely P.W.1 Smt. Rekha Sahu and P.W.2-Tejeshwa Sahu near the place of occurrence may be doubted. The plea of the defence that Smt. Rekha Sahu and Tejeshwa Sahu were not present at their home at the time of occurrence, rather they were in Mohalla Meerapur at the relevant time is not proved from the defence evidence. D.W.1- Mahendra Yadav who claims to have met with the deceased at the shop of Munna Vishwakarma before the incident and deceased had then told him that he was waiting the arrival of his wife and children who had gone to Meerapur. The statement of the witness is is not liable to be believed for two reasons; firstly, the witness has said this thing for the first time in court and never before and, secondly, it is proved from his own evidence that he is inimical to deceased family as he was an accused in a criminal case lodged/filed against him by the real brother of the deceased. As regards evidence of D.W.3-Rajneesh Kumar, learned A.G.A. has submitted that his evidence is also not reliable as it is also proved from his evidence that he had no idea about the incident and also why the police arrested appellant Atul Kumar from his house in the night of the incident. He has also submitted that incident is not said to have taken place at a place which is away from the house of the appellant Atul Kumar. He has submitted that if the house of appellant Atul Kumar is situated near the place of occurrence then it would not be possible to believe that this witness could not hear about the incident in the night of the incident more so when he was watching T.V. With appellant Atul Kumar while he was arrested from his house in connection with the incident.

15. Learned A.G.A. has further submitted that testimony of P.W.1-Smt. Rekha Sahu and P.W. 2-Tejeshwa Sahu, cannot be discarded on the reason that they being close relative of deceased, are interested witness. He has further submitted that P.W.1-Smt. Rekha Sahu and P.W.2-Tejeshwa Sahu being wife and son of the deceased are related with the deceased, but for this reason they cannot be treated interested witnesses unless there would be any compelling reason to believe that their evidence is false or tainted. He has also submitted that the incident in question having taken place near the house of the deceased, the presence of wife and son of the deceased at the time of occurrence at their house is probable and natural and, in view of this, their evidence being of a natural witness is mere reliable and it cannot be discarded merely on the reason that they are related to deceased.

16. Further submission of learned A.G.A. is that presence of eye witnesses on the spot cannot be doubted merely on the reason that they did not take the deceased to hospital in Riksha rather deceased was taken to hospital by some body else. Their testimony cannot be disbelieved on this reason also that names of these witnesses are not mentioned in the Register of hospital as persons who brought the deceased to hospital. He has also submitted that since it is a case of bomb blast and after having heard the news of incident many people would have collected on the spot, and in that event if some of them took the deceased to hospital and got him admitted there and their names were mentioned in the hospital register as the persons who brought him to hospital which is very common, the presence of family members on the spot at the time of occurrence can not be doubted on the reason that had they been present on the spot then they also would have taken deceased to hospital, their clothes would have soaked into blood and their names would have been entered in the hospital register as the persons who brought the deceased to hospital.

17. Similarly, learned A.G.A. has also submitted that if it has come in the statement of eye-witnesses that people of Mohalla had taken the deceased to hospital and they had reached hospital after deceased having reached there then this could not be made a basis to believe that they were not present on the spot and did not see the incident. Similarly, if it has come in the statement of P.W.2-Tejeshwa Sahu that he had seen his father for the first time in hospital at 11.00 p.m. then it could not be made basis to believe that he was not present on the spot when incident took place rather he was present in Mohalla Meerapur along with his mother at the relevant time and had directly reached the hospital from there after having received the news of the incident.

18. As regards the witness Munna Vishwakarma being not examined by the prosecution, the learned A.G.A. has submitted that it is not a case that this witness was not interrogated by the Investigating Officer during interrogation. It is also not a case that prosecution did not make attempt to summon him for the evidence. As a matter of fact, summons were issued to this witness time and again but he did not turn up due to nonavailability for giving evidence in court. He has also submitted that these days it is a common practice that people avoid coming to court and giving evidence not only in criminal cases but in civil cases also and so, if the witness near whose shop the incident admittedly occurred did not come in court for giving evidence, this can not be made basis to disbelieve the testimony of the other eye witnesses merely on the reason that they are close relatives of the deceased. He has also submitted that despite lengthy cross examination of the eye witnesses nothing has elicited in their cross examination so that their presence on the spot at the time of occurrence may be doubted. So, in the given case, if the star witness Munna Vishwakarma did not turn up for giving evidence, this could not be made basis to disbelieve the testimony of P.W. 1 Smt. Rekha Sahu and P.W.2 Tejeshwa Sahu.

19. Learned A.G.A. has also submitted that presence of eye witnesses on the spot at the time of occurrence cannot be doubted on the reason of news of incident being received at City Control Room, Allahabad also in which it has been stated that deceased was killed in a bomb blast by some unknown assailants. He has submitted that falsity of this news is proved from the fact that deceased was not killed in the incident then and there rather he was killed after five days of the incident on 15.9.2006. Further, this news has not been flashed by any eye witness or close relative of the incident but by a person who had no knowledge of the incident because if he had the knowledge then he would never state that deceased had died while he was alive, the veracity of eye witnesses regarding their presence at the time of occurrence cannot be doubted on this reason.

20. After having heard the respective submissions of learned counsel of both sides, the admitted factual position that has been so emerging is that deceased Shree Nath Sahu was the resident of House No. 516 Krishna Nagar, Kydgang, Allahabad. His house is situated in the said mohalla and it is south facing. In the west of his house is the house of Munna Vishwakarma having a shop in front of the house. The alleged incident had taken place near the shop of Munna Vishwakarma on 10.9.2006 at 10.00 p.m. The deceased was attacked with bombs as a result, he was badly injured. He was immediately taken to Jeevan Jyoti Hospital where he died during treatment on 15.9.2006 at 6.15 a.m. The prosecution case is that appellants along with one unknown person came to the place of occurrence and hurled five bombs over the deceased as a result he was badly injured and succumbed to injuries during treatment. Appellants have denied this saying assailants who hurled bombs over deceased were not the appellants but they were some unknown persons.

21. P.W.1-Smt. Rekha Sahu and P.W. 2-Tejeshwa Sahu, who are the wife and minor son of the deceased, have categorically stated that they were present out side their house when the incident took place. They have stated that deceased came on a motorcycle from his go down at the time of the incident and after parking the vehicle on the platform of his house, he went towards the shop of Munna Vishwakarma for taking cigarette, and while he was taking cigarette appellants came there along with one unknown person and attacked him with five bombs as a result he was badly injured.

22. Learned Addl. Sessions Judge has believed the testimony of wife and son of the deceased and on account of their testimony he has held the appellants guilty for the offence. The plea of the appellants with regard to testimony of wife and son of the deceased is that they being interested witnesses on account of being related with the deceased, their testimony is not reliable nor conviction can be based on their testimony. Further plea of the appellants is that wife and son of the deceased were not present when the incident took place rather they were at the place of their father and maternal grand father in mohalla Meerapur which is at a distance of about 4-5 km. from the place of occurrence and they had directly reached the hospital from the place they were after having received the news of the incident.

23. A witness if related with a party or victim or deceased is called related witness. However, it is not necessary that a related witness be interested witness also. A witness may be called 'interested' witness only if he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished in a criminal case. Thus, a related witness is not equivalent to interested witness.

24. The Hon'ble Apex Court in the case of State of Rajasthan V. Smt. Kalki and another, (1981) 2 SCC 752 has given distinction between related and interested witness and has said that a witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. Paragraphs 7 & 8 of the judgment, which are relevant in this regard, are quoted here as under:

"7. As mentioned above the High Court has declined to rely on the evidence of P.W. 1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased", and (2) there were discrepancies in her evidence. With respect, in our opinion, both the grounds are invalid. For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True, it is, she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possibly eyewitness in the circumstances of a case cannot be said to be 'interested'. In the instant case PW 1 had no interest in protecting the real culprit, and falsely implicating the respondents.

8. The second ground on which the High Court refused to place reliance on the evidence of PW 1 was that there were "material discrepancies". As indicated above we have perused the evidence of PW 1. We have not found any "material discrepancies" in her evidence. The discrepancies referred to by the High Court are, in our opinion, minor, insignificant, natural and not 'material'. The discrepancies are with regard to as to which accused "pressed the deceased and at which part of the body to the ground and sat on which part of the body; with regard to whether the respondent, Kalki, gave the axe blow to the deceased while the latter was standing or laying on the ground, and whether the blow was given from the side of the head or from the side of the legs. In the deposition of witnesses there are always normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person. As indicated above we have not found any material discrepancies in the evidence of PW 1."

25. Regarding reliability of a related witness, the Hon'ble Apex Court in the case of Brahm Swaroop & another V State of Uttar Pradesh, (2011) 2 SCC (Cri) 923 has held that merely because the witnesses are closely related with the deceased victim, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that affects the credibility of a witness, more so, a relation would not conceal the actual culprit and make allegations against an innocent person. However, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence and if the defence wants that evidence of related witness should not be believed, it has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication by evidence. Paragraph 26 of the said judgment, which is relevant in this regard, is quoted here as under:

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

26. The Hon'ble Apex Court in the case of Bhagwan Jagannath Markad & others V. State of Maharashtra, (2016) 10 SCC 537 regarding credibility of witness has held that while appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind, the deficiencies, drawbacks and infirmities, to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. However, only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Paragraph 19 of the said judgment, which is relevant in this regard, is quoted here as under:

"19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects the creditworthiness and the trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting the credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a "partisan" or " interested" witness may lead to failure of justice. It is well known that principle "falsus in uno, falsus in omnibus" has no general acceptability. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness."

27. Regarding credibility of witness, the Hon'ble Apex Court in the case of Mahavir Singh V. State of Madhya Pradesh, (2016) 10 SCC 220 has held that evidence of interested witness can only be relied upon if the evidence is cogent, credible and trustworthy. It is further held that evidence of interested witness needs to be scrutinized with utmost care.

28. In the present case, it is not disputed that P.W.1-Smt. Rekha Sahu and P.W.2-Tejeshwa Sahu being related with the deceased are related witness. However, their evidence cannot be discarded on this reason nor they can be said to be interested witnesses unless it is proved from their own evidence that they are not trustworthy. So, we have to examine the evidence of these two witnesses whether they have correctly deposed about the incident or their deposition is biased with any ulterior motive. If we examine the evidence of these two witnesses, it will transpire that their presence on the spot at the time of occurrence is not doubtful. The place of occurrence being very close to their house their presence on the spot at the time of occurrence appears to be natural. It has come in the statement of P.W. 1 and P.W. 2 that deceased was in habit of blowing horn while reaching home. So, if the deceased was in habit of blowing the horn while reaching the home and the eye witnesses have said that they were present outside their house waiting arrival of deceased, their presence outside their house, which is very close to the place of occurrence, at the time of occurrence does not appear unnatural and uncommon from any corner rather it appears to be real and natural.

29. P.W.1-Smt. Rekha Sahu and P.W.2-Tejeshwa Sahu have categorically stated that on the day of occurrence i.e. 10.9.2006, deceased came to his house from his go down in the night at about 10.00 p.m. on his motorcycle and after parking motorcycle on the platform of the house, he proceeded towards the shop of Munna Vishwakarma for taking cigarette. They have stated that while deceased was taking cigarette from the shop of Munna Vishwakarma all three appellants namely Atul Kumar, Santosh Yadav and Firoz Ahmad along with one unknown person came there and attacked him with bombs as a result he was badly injured. In view of the aforesaid clear and unambiguous statements of the eye witnesses, the plea of the defence that wife and son of the deceased were not at their home at the time of occurrence rather they were at the house of their father and maternal grand father in Meerapur does not hold field more so when no credible evidence has been led in this regard.

30. The evidence of D.W.1-Mahendra Yadav in which he has said that he had met the deceased at the shop of Munna Vishwakarma before the incident and deceased had then told him that he was waiting the arrival of his wife and children, who had gone to the house of their father and maternal grand father in Mohalla-Meerapur, is not liable to be believed as this witness has said this thing for the first time in court and never before. It is also proved from his evidence that he is inimical to the deceased family as he is an accused in a criminal case lodged against him by the brother of the deceased. Thus, this witness being inimical to the deceased family, no reliance can be placed on his evidence.

31. Reliance cannot be placed on the evidence of D.W.3-Rajneesh Kumar also who has said that appellant Atul Kumar was present at his home from 8.00 p.m. to 10.00 p.m. on the day of occurrence watching India-West Indies match with him on the television because this witness has also said this thing for the first time in court and never before. He has shown ignorance about the incident having occurred in the night. This witness being resided in the same locality wherein incident is said to be occurred, in the normal course, it could not be possible for him to believe that he had no idea about the incident in the night of the incident and he also did nothing why appellant Atul Kumar was arrived when he was watching television with him. The ignorance about the incident being shown by this witness and also that in what connection he was arrested makes it clear that he is a prosecution witness who has been giving false evidence to defend appellants, specially appellant Atul Kumar from the crime being resident of the same locality, if he has said that he had no idea of the incident having occurred in the night of the incident itself and had also no idea as to in what reference appellant Atul Kumar was arrested in the night of occurrence, this witness cannot be held a reliable witness.

32. Evidence of P.W.1-Smt. Rekha Sahu and P.W.2-Tejeshwa Sahu finds full corroboration with the medical evidence. P.W.4-Dr. R.S. Ram, who had conducted postmortem on the body of the deceased, has stated that six injuries were found on the body of the deceased and out of them, five were the blast injuries. This shows that deceased received the blast injuries in the incident in question. Though there is some variation in the statements of P.W. 4-Dr. R.S. Ram and P.W.7-Dr. Vijay Tripathi regarding number of injuries received by the deceased, but the variation is not so material that evidence of eye witnesses could be disbelieved. On a combined reading of evidence of both the doctors, it appears that deceased received blast injuries in the incident in question and died of the same during treatment in hospital on 15.9.2006 at 6.15 a.m.

33. Eye-witness account of P.W. 1-Smt. Rekha Sahu and P.W.2-Tejeshwa Sahu is corroborated with the evidence of P.W. 5-SI Arvind Kumar Singh also in which he has said that he had visited Jeevan Jyoti Hospital in the night of occurrence itself after having received the news of the incident and had interrogated Smt. Rekha Sahu same night about the incident. He has also stated that he visited the place of occurrence in the night itself and collected blood stained grit and pellets from the place of occurrence. This proves that the incident had occurred at the same place where prosecution witnesses say. Both prosecution witnesses being the residents of the same locality and the place of occurrence being hardly 6 steps away from their house, their presence on the spot at the time of occurrence cannot be doubted.

34. We also feel it necessary to mention here that appellants are not stranger to both the eye witnesses. Both eye witnesses knew the appellants from before the incident. When eye-witnesses knew appellants from before the incident and they have said that they saw the appellants hurling bombs on the deceased while he was taking cigarette from a nearby shop of Munna Vishwakarma, their evidence cannot be discarded on the defence plea that they were not present on the spot at the time of occurrence and did not see the incident and they have given false evidence that appellants along with one unknown person caused the incident. The appellants have not assigned any reason for eye witnesses giving false evidence and in the absence of any cogent reason it is difficult to believe that eye witnesses would falsely implicate the appellants while leaving the real culprit.

35. Though it has been stated from the side of defence that there was no source of light on the place of occurrence in the night of incident, but they have not adduced any evidence in this regard. To the contrary, both eye-witnesses have said that they had identified appellants in the street light as well as in the light of bulb which was lighting at the shop of Munna Vishwakarma. This is again indicative of the fact that there was a source of light at the place of occurrence at the time of incident and all three appellants being known to eye-witnesses from before the incident, if it has come in the statements of the eye witnesses that they had identified appellants in the street light as well as in the light of bulb which was lighting at the shop of Munna Vishwakarma then there is nothing unusual in it so that evidence of eye witnesses may be doubted.

36. The evidence of eye witnesses cannot be doubted on the reason of minor discrepancies having occurred in their evidence because discrepancies which are said to have come in their evidence are not touching the core of the case and they are also not so material to reject the evidence as whole. The Hon'ble Apex Court in the case of Bhagwan Jagannath Markad & others Vs. State of Maharashtra (supra) has held that if the discrepancies coming in the evidence of eye witnesses are not material but minor one and they are not touching the core of case, the evidence of eye witnesses cannot be disbelieved. The Apex Court has further held that evidence of eye witnesses on account of discrepancies would only be disbelieved when discrepancies are so incompatible as to affect the credibility of the version of a witness.

37. Learned counsel for the appellants has next submitted that FIR in question is ante time. For this submission, learned counsel for the appellants has drawn our attention towards statement of P.W.5- SI Arvind Kumar in which he has stated that he had reached the hospital in the night of the incident at about 12.05 a.m. after having received the news of the incident on the R.T. Set and had interrogated the wife of the deceased in the hospital. He has also said that he had visited the place of occurrence in the same night in presence of wife of the deceased besides having collected the blood stained grits, plain earth and pellets from the place of occurrence. He had also prepared the site plan at the instance of wife of the deceased. He has also submitted that since the wife of deceased was busy attending her husband in the hospital, it could not be possible for her to go to police station in the same night of the incident and having lodged the FIR of the incident. He has further submitted that even according to statements of P.W. 1 Smt. Rekha Sahu, she came to her house from the hospital on the next day of the incident at 9.00 a.m., and not the same night of the incident which proves the evidence of P.W.5 SI Arvind Kumar false in which he has said that he had visited the place of occurrence in the night of the incident and had prepared the site plan at the instance of wife of deceased.

38. We have examined the evidence of P.W.1-Smt. Rekha Sahu regarding lodging of FIR in which she has clearly stated that she had got the report of the incident scribed in the hospital by Dheeraj Nagar, a resident of Meerapur, and thereafter went to Kydganj police station and lodged the report. FIR of the incident in question has been lodged within one and half hour of the incident. The distance of police station Kydganj from Jeevan Jyoti Hospital is less than 3-4 km. Since the husband of informant was admitted in the hospital and being taken care by the doctors and his relatives who had reached the hospital after having heard the news of the incident, and distance of police station Kydganj from the hospital is being less than 3-4 km., if the report of the incident was lodged within one and half hour of the incident, the first information report can not be called ante time saying under the circumstances it could not be lodged same night.

39. As regards variation having come in the statements of P.W. 1-Smt. Rekha Sahu and P.W. 5- SI Arvind Kumar Singh regarding timing of interrogation, it is true that there is some variation. However, the said variation is not of such nature so that prosecution story may be disbelieved. The variation does not appear to be material but they being minor, the statements of eye witness Smt. Rekha Sahu cannot be discarded or disbelieved. It is not material whether wife of the deceased was interrogated in the night of the incident or next date morning, but the material thing is that she was interrogated by the Investigating Officer and in the said interrogation she has fully supported the prosecution version. She had seen appellants having assaulted deceased by hurling bombs over him. So, if there is any variation regarding the timing of her interrogation, the same cannot be made basis for rejecting the evidence of eye witness.

40. Much has been said from the side of the appellants that since the independent witness of the incident, namely, Munna Vishwakarma has not been examined, the same is fatal to the prosecution. It is true that Munna Vishwakarma at whose shop the incident is said to have taken place and as such he is an independent witness of the incident, has not been examined by the prosecution. It is also true that he is a named witness in the charge sheet and summons were issued to him by the Court of the learned Additional Sessions Judge, but he did not turn up to court for giving evidence. If the summons were sent to the independent witness but he did not turn up for giving evidence due to his nonavailability or any other reason, prosecution cannot be blamed for this nor the evidence of other eye witnesses can be discarded for want of corroboration by independent witness.

41. The eye witness account of wife and son of the deceased cannot be discarded on this reason also that there clothes did not soak into blood when they took the deceased to hospital and their names have not been entered in the hospital register as persons who brought the deceased to the hospital. As we have stated above, on the close scrutiny of evidence of the eye witnesses, it appears that they are trust worthy as their presence on the spot at the time of occurrence is very natural. They have fully supported the prosecution version and their evidence is corroborated with the medical evidence also. Thus, in view of the fact that when wife and son of the deceased have fully supported the prosecution and their evidence is fully corroborated with medical evidence and there does not appear any reason for appellants being falsely implicated while leaving the real culprits, we do not find any reason to discard the evidence of eye witnesses on the reasons cited by the learned counsel for the appellants. Eye-witness account being consistent regarding participation of appellants in the offence, the appellants are guilty for the offence of murder of the deceased. The findings recorded by the learned Additional Sessions Judge against the appellants being based on cogent and reliable are liable to sustain and we do not see any reason to interfere with the said findings. In the result, appeals having no force are liable to be dismissed.

42. All three criminal appeals are accordingly dismissed. The judgment and order of the learned Additional Sessions Judge convicting and sentencing the appellants with life imprisonment and to pay Rs.10,000/- as fine and in default to undergo one year rigorous imprisonment under Section 302 read with Section 34 I.P.C. for committing the murder of the deceased are confirmed.

43. Appellants are in jail and they shall remain therein to serve out the punishment awarded to them.

44. Let a certified copy of this judgment be sent to the court concerned for ensuring compliance of the order.

          (Umesh Chandra Srivastava,J.)       (Ramesh Sinha,J.)
 

 
Order dated:15.5.2017
 
RCT/-