Jhandu And Others vs State Of U.P.
2018 Latest Caselaw 198 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                         A.F.R         								RESERVED
 

 
Case :- CRIMINAL APPEAL No. - 209 of 1983
 

 
Appellant :- Jhandu And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- V.P. Srivastava,Ashutosh,B.L. Jha,K.D.Tiwari,Manoj Kumar,Sanjay Vikram Singh A./C.
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ram Surat Ram (Maurya),J.

Hon'ble Mukhtar Ahmad,J.

(Delivered by Justice Mukhtar Ahmad J.)

1. Challenge in this appeal is to the judgment and order of conviction dated 17.1.1983 passed by Additional Sessions Judge, Moradabad in Sessions Trial No. 586 of 1979 (State Vs. Jhandu and other) under Sections 302,307, 149 and 147 I.P.C convicting and sentencing the appellants to undergo life imprisonment under sanction 302/34 IPC and 4 years imprisonment under section 307/34 IPC. Both the sentences were ordered to run concurrently.

2. The facts of the prosecution case in brief are that first informant Mohar Singh and accused persons are residents of the same village ''Mangupura' having adjoining agricultural plots. There was some dispute with regard to the intervening boundary (maind) which was dismantled by Jhandu and other accused about 5-6 days before the present incident. The accused persons had threatened the complainant, who subsequently lodged a report under section 504, 506 IPC. In the intervening night of 23/24 July,1979 informant Mohar Singh, his father Gokul, uncle Shivcharan, and Natthu s/o Shivcharan were sleeping in dalan on separate cots. A burning lantern was hanging on a Khuti in the same dalan. At about 2 a.m. informant Mohar Singh awoke hearing the noise of barking dogs and saw the accused persons just in front of the chabutra of the dalan. Accused Jhandu and Nanhey were armed with country made pistols while remaining accused persons Chhuttan, Sona and Ram Chandra were armed with lathies. The informant Mohar Singh intercepted and asked them as to why they were there. His father Gokul, uncle Shiv Charan and cousin Natthu also woke up and they also challenged them on which accused Chuttan said that they shall teach them a lesson for lodging FIR against them. They also started abusing the informant at which his father Gokul came down from the dalan and went near to the accused persons and asked them to go back to their houses as the matter may be settled in the morning. Accused Chhuttan then exhorted the co accused persons Jhandu and Nanhey to shoot him and accordingly Nanhey opened fire on Gokul with pistol and accused Jhandu fired towards first informant. Gokul succumbed to the injuries sustained. Natthu PW2 also receives pellet injuries on his fore head and thigh. Hearing the noise mother of the first informant, co-villager Munna Lal and others also reached on the spot. The informant and the witnesses watched the incident in the light of the lantern.

3. The first information report was lodged by Mohar Singh, P.W.1, son of the deceased on 24.7.1079 at 10.45 A.M. at police station Belari, District Moradabad, which is situated at a distance of 9 miles from the place of occurrence.

4. The matter was investigated by Sub Inspector R.S.Tomar PW6, who visited the spot, conducted the inquest, prepared the site plan and recorded statements of the witnesses and after concluding the investigation submitted charge sheet against all the accused persons under Sections 147,149 307 and 302 I.P.C. The concerning Magistrate committed the case to the Court of Sessions where charges under aforesaid sections were framed. Accused persons pleaded not guilty and claimed to be tried.

5. To substantiate the charges against the accused persons as many as seven witnesses were examined on behalf of the prosecution.

6. P.W.1 Mohar Singh is the son of the deceased and first informant of the incident as well as eye witness of the incident. P.W. 2 Nathoo is the injured eye witness of the incident. P.W.3 is Dr. S. Agarwal who had examined the injuries of Nathoo. He has proved the injury report. P.W. 4 Suraj Pal Singh is the Head Constable who prepared the Chick FIR. and he has also proved the same. P.W. 5 Dr. Ram Teerath is a witness who had conducted post mortem on the body of the deceased Gokul Singh. He found following injuries on the dead body of the deceased-

(1) Multiple gun shot wounds in an area of 22 cm x 13 cm on the right side of whole neck and some part front also and lower part of the right side of face with abrasion No scorching is present. No tattooing and no blackening present whole area. Abraded and stained dry blood. On dissection of face ( right side) 5 pellets recovered from the muscle of mastication, in the right side of neck 4 pellets could be recovered which has damaged the big blood vessels. The whole area full of blood. 6 pellets recovered from the upper lobe of right lung which is damaged and hence amount of blood present in the thoracic plural and lung cavity due to these injuries to the vital organ and big blood vessels of the neck. The cause of death is shock and hemorrhage.

7. P.W. 6 Sub Inspector R.K. Tomar, is the I.O. of the case. He has stated that he had visited on the spot, conducted the inquest, prepared site plan and also recorded the statements of the concerning witnesses. PW7 is Constable Kamta Prasad who had taken the dead body to the mortuary for postmortem. After concluding the prosecution evidence, statements of accused persons under Section 313 Cr.P.C. were recorded in which they denied the prosecution version and claimed their false implication.

8. On behalf of the accused persons no evidence was produced in defense.

9. Learned Trial Judge on the basis of the evidence on record found the case as proved against the appellants, convicted them and awarded the sentence as stated above. However remaining accused persons viz. Ram Chandra and Sona were acquitted giving benefit of doubt .

10. Feeling aggrieved with the judgment and order aforesaid, this criminal appeal was filed on behalf of the appellant Zhandu, Chuttan and Nanhey but during pendency of this appeal Zhandu and Chuttan have died and appeal in their respect has already been abated. Now this appeal survives only in respect of accused appellant Nanhey.

11. We have heard Sri Mewa Lal Shukla learned amicus curiae for the appellant and learned A.G.A. for State and have gone through the record.

12. Learned counsel appearing on behalf of appellant has assailed the impugned judgment on various grounds. He has submitted that there is no evidence worthy of credence to establish the prosecution case and impugned judgment lies more on surmises than on facts proved beyond reasonable doubt. He further submits that PW1 Mohar Singh and PW2 Natthu were examined by the prosecution as eye witnesses but they are son and nephew of the deceased respectively so they are highly interested witnesses. Further, their presence on spot at the time of occurrence is highly doubtful and their testimony have several discrepancies, so their testimony do not inspire confidence. Further, their un natural conduct and behavior as well as of the deceased make their evidence un-believable, as such, entire prosecution story becomes doubtful.

13. Per contra learned A.G.A. has opposed these arguments and supported the judgment and order impugned. It has also been argued that mere relationship can not be a ground for discarding the evidence of a witness, further minor contradictions in the testimony of the witnesses are bound to occur which also shows that the witnesses are not tutored and they have come to the Court for disclosing the fact in their own way. Minor discrepancies not touching the core of the case can not be a ground for rejection of their evidence in entirety.

14. Admittedly, in this matter relationship between P.W.1 and P.W.2 with the deceased has not been denied, but we are of the view that only on the basis of relationship, the witnesses cannot be termed as interested witnesses and their testimony cannot be discarded only on account of relationship. Our this view finds support of the law laid down by the Apex Court in Balraje alias vs State of Maharashtra (2010)6SCC Page 673, where in it has been held that mere fact that the witnesses were related to the deceased can not be a ground to discard their evidence. It was further held that when the eye witnesses are stated to be interested and inimically deposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope an innocent person. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyze the evidence of related witnessed and those witnessed who are inimically deposed towards the accused. The Honorable Court held that 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.

15. The same principles have been reiterated in Prahlad Patel vs State of Madhya Pradesh AIR 2011 SC 961, in which the Hon'ble Apex Court has held that though prosecution witnesses are brothers of the deceased, relationship is not a factor to affect the credibility of a witness. In series of decisions the Hon'ble Supreme Court has accepted the above principle. In State of U.P. Vs Naresh and others AIR 2011 SC (Cri.)761 the Hon'ble Apex Court has emphasized that relationship can not be a factor to affect the credibility of a witness and observed that evidence of a witness can not be discarded solely on the ground of his relationship with the victim of the offence.

16. In view of the above, it is clear that merely on the basis that the witnesses are related to the deceased, their evidence can not be thrown out. If their evidence is found to be consistent and true, the fact of being a relative can not by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of the witnesses, however scrutiny of their evidence would require great care and caution.

17. The manner of occurrence was deposed to in the trial by P.W.1, Mohar Singh, first informant and son of deceased,who in his oral testimony has stated that his fields and fields of accused persons are just adjacent and about 6 days before the incident accused Jhandu had dismantled it and an FIR in this regard was lodged by him. He further stated that due to this accused persons were having animosity with him and his father. He has narrated the version as described in the FIR. Describing the manner of incident he said that he along with deceased, uncle and cousin, as stated above, were sleeping in the Dalan. In cross examination he says that his house situates towards north at a distance of 15-20 steps. It was also specified that there was common passage for the house of Jhandu-accused appellant and his house. It is also stated that a fodder cutting machine was also installed in the same Chhappar where they were sleeping and cots were having no space between them and these were all of different sizes and a lantern was also burning; that at about 2.00 a.m. on hearing the noise of barking dogs he awoke and found accused persons in front of the Chabutra. Out of them Nanhey and Jhandu were having country made pistols while remaining other three persons were having Lathies in their hands. He asked that why they had come this time upon which accused Chuttan started abusing. His father Gokul stepped down from the Chabutra and went towards the accused persons and asked Chuttan to go to his house and in the morning he shall talk but Chuttan shouted that they shall teach a lesson for lodging the report. Thereafter he exhorted Nanhey and Zhandu to shoot, then Nanhey opened fire on Gokul Singh which hit his neck and other fire opened by Zhandu towards first informant caused injury to Natthu. He also stated that after receiving fire arm injuries his father fell down on the spot where he was standing and remained in the same position till arrival of the police and no one touched the body of the deceased nor put it to some other place. His father was wearing Shirt and Lungi at that time. It is also said that fire opened by accused Jhandu towards him, hits Natthu, who received injuries on his fore head and thigh and blood was oozing from his injuries and dropped down on earth and his clothes. In cross examination he further says that no blood or Tikli was found to the investigating officer in the Chhapper, despite his efforts to search them.

18. P.W.2 Natthu, has also been produced as an eye witness. He is the nephew of the deceased. It is stated that he,his father Natthu, deceased and first informant were sleeping in the Chhappar of Dalan where a lantern was burning; that at about 2.00 a.m. on hearing the noise of Mohar Singh he had awoken. He found accused persons in front of the Chabutra out of them Nanhey and Zhandu were having country made pistols while remaining other three persons were having Lathies in their hands. Mohar Singh asked that why they had come this time upon which accused Chuttan started abusing and shouted that they will teach a lesson for lodging report against them. Gokul stepped down from the Chabutra and went towards the accused persons and asked Chuttan to go to his house and in the morning he shall talk but Chuttan shouted that they shall teach a lesson for lodging the report. Thereafter he exhorted Nanhey and Zhandu to open fire on him then Nanhey opened fire on Gokul Singh which hit his neck and other fire opened by Zhandu towards first informant caused injury to him. It has been stated by him in cross examination that the sleeping place of Mohar Singh and his family members were separate. It is also stated by him that sustaining the fire arm injuries his uncle Gokul fell down on the earth, at the place where he was standing and his dead body remained in the same position and was not put therefrom in the Chhappar.

19. Submission of learned counsel for the appellant is that the incident is said to have been taken place in the night of 23/24.7.1979 at about 2.00 a.m. and the F.I.R. was lodged on 24.7.1979 at 10.45 a.m. while the distance of the village from the police station is about 9 miles and the prosecution has utterly failed to explain the delay in lodging the F.I.R. It is also submitted that first information report plays a vital role in criminal trial and if it is ante timed or delayed, it affects the prosecution version adversely. He further submits that on one hand the F.I.R. is delayed even then on the other hand it is ante timed too which cast shadow of doubt on the whole prosecution story. To enrich his argument he has raised the following points:-

(i) that after lodging the F.I.R. its copy is required to be sent to the concerning Magistrate to take cognizance of such offence as has been provided under Section 157 Cr.P.C. but there is no compliance of such provision and the copy of the F.I.R. was never sent to the Magistrate which shows that F.I. R. was not registered even at the time as shown by the prosecution.

(ii) That P.W.2 Nathoo is also said to have sustained pellet injuries and he was sent for medical examination on 24.7.1979 through constable Prahlad to primary health centre but in Chitthi Majroobi there is no mentioning of any description of the crime such as case crime number, sections and name of the accused persons which shows that even upto that time the F.I.R. was not in existence. Further Nathoo was medically examined on 24.7.1979 at 11.15 p.m. and no reason has been shown for sending the injured for medical examination so late.

(iii) that P.W. 1 in his oral testimony in cross examination at page 7 (para 2) has stated that on the next day in the morning police had reached on the spot at about 8-9 a.m. and the same version has been reiterated by P.W. 2 Nathoo at paga 5 while the I.O. R.S. Tomer-P.W. 6 in his oral examination has stated that he reached on the spot after registration of the F.IR. at 10.30 a.m. and recorded the statement of first informant at police station, which also shows that F.I.R. was not registered at the time as shown by the prosecution and the same was lodged after thought.

(iv) It is much emphasized that P.W. 6 S.I. R.S. Tomer has stated that he had conducted the inquest of the dead body on the spot and after preparing the inquest report handed over the dead body to constable Kamta Prasad -P.W. 7 and village Chaukidar Ranjeet for post mortem. A perusal of the inquest report shows that proceedings of inquest were finished at 4.00 p.m. on 24.7.1979 but the dead body was received in post mortem house on 25.7.1979 where post mortem was conducted on that date at 2.30 p.m. and there is no explanation on behalf of the prosecution that for such a long period where was the dead body, which again made the prosecution version suspicious and there is reason to believe that the delay in this regard was deliberated just fill up the lacuna of not registering the FIR.

20. Per contra, learned A.G.A. has opposed these arguments by saying that it is not disputed that the incident took place at 2.00 a.m. in the night but there is evidence of this fact that it was raining heavily. Further in the circumstances where father of the first informant was shot dead, no man of ordinary prudence would dare to go in the night for lodging the report particularly when the accused persons were armed with deadly weapons and it was the reason of delay which has been mentioned in the first information report too. He further submits that the points raised by Mr. Shukla are hipertechnical having no legal value effecting the prosecution case adversely. Further at the most these are the mistakes on the part of the investigation officer and accused can not be given the benefit of such mistakes.

21. No doubt, the first information report in a criminal case and particularly in a murder case, is a vital and valuable piece of evidence for the purpose of appreciating the evidence led during trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and roles played by them, the weapons used,if any. If the first information report is delayed or ante timed, it often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a colored version of exaggerated story. In this matter, report is allegedly written by Mohar Singh who has been examined as PW-1 and has proved the same. In this matter, Chick FIR bears no indication that it was perused by the concerned Magistrate. However, as per endorsement over it, the same was perused by the C.O. Police on 26-7-79. Now we have to peruse the bare effect on the prosecution version- In Ahmad Nabi Vs. State of U.P. 1987 (1) Crimes 85 (All), this court has observed that the provisions innumerated under Section 157 Cr.P.C. are mandatory in nature. In N.A. Victor Immanuel v. State 1991 Cr.LJ 2014(555) it has been observed that sending of report to the Magistrate, as provided under Section 157 Cr.P.C. is no doubt directory and not mandatory. It is directory in nature, however, it does not mean that the police officer can paraffin or voided without any legal consequence. Take it single such a delay or failure may not be sufficient to lead to the infirmities or discrepancies. It may assume great importance and may cause suspicion about purported time of its recording or even about its time. In Mahabir Singh Vs. State 1979 CrLJ 1159 and in Gobbu B. Lodhi Vs. State of M.P. 2004 Cr.LJ 2001 it has been observed that failure to send copy of F.I.R. to the Magistrate is bound to cast shadow on the case of the prosecution.

22. In the oral testimony of PW1 and PW2 it is stated that police had reached on the spot at about 9 a.m. while admittedly FIR was registered at 10.30 a.m. and PW6 Investigation officer has deposed in his testimony that he after lodging the FIR and recording the statement of first informant in police station proceeded to the spot, where he conducted the inquest and sent the dead body for postmortem through constable Kamta Prasad and village Chaukidar Ranjeet. According to Mr. Shukla, these facts are sufficient to discard the prosecution version. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report prepared under Section 174 Cr. PC, is aimed at serving a statutory function, to lend credence to the prosecution case. In the inquest report and other papers such as photo-nash, chitthi mazroobi etc. there is only case crime number and sections but the name of accused is not shown. According to learned counsel for the appellant, it suggests that at that time first information report was not in existence and the inquest report was performed in a routine manner and up to that time, it was not ascertained as to against whom, the FIR was to be lodged and by whom. Though it has come in the evidence of the eye witnesses as well as in oral testimony of the Investigating Officer that in the night it was raining heavily and the dead body of the deceased was found in the mud but it is not the reason alone but the other reasons as stated above creates some doubt in our mind with regard to the promptness of lodging the FIR and we are of the view that FIR in this case is not only delayed but anti-timed too.

23. Learned counsel for the appellant next contented that the most unnatural conduct of the deceased as well as eye witnesses have not been considered by the learned trial court. He further submits that even as per the prosecution version, before six days of the incident a dispute in respect to the boundary of the fields had taken place between the first informant and accused persons as their fields were demarcated by a common boundary which was broken by the accused persons and in this regard an F.I.R. was also lodged by the first informant against them and in that situation when accused persons came in night hours and particularly when they were armed with pistols and Lathies, no man of ordinary prudence would go near to them and shall try to escape from the spot. We may demonstrate this by noticing that P.W.1 Mohar Singh, son of the deceased and first informant of this case claims that he was present on the spot at the time of occurrence. His conduct was unnatural that not only he did not try to stop his father from going near to the accused persons but even after his father fell down on receiving fire arm injuries he did not even try to go near his father and even later on holds his head in his lap and tried to provide some comfort to him. This becomes obvious from the absence of any blood stain on his cloths. In the situation like this the normal conduct of his son would be first to stop his father from going near the accused persons or make an effort to save him and if that is not possible then at least to go close to his father after the assailants had left; that there would be no escape from the blood stain on his cloths oozing out of the injures sustained by the deceased. Similar criticism is also available against P.W. 2 and widow of deceased as well. It is not the case of the prosecution that the cloths of any of the witness and widow who were said to be present on the spot had got blood stains.

24. The next contention of learned counsel for the appellant is that as per prosecution version Natthu Singh P.W.2 had also received injuries of pellets on his forehead and thigh. He also stated in his oral testimony that blood was oozing but there is nothing on record to show that his clothes were having blood stains. Further it has also been submitted by him that cots were without beds and no blood as well as pellets were found in the Chhappar despite the best efforts made by the I.O. He further submits that P.W. 3 Dr. S. Agarwal who had examined the injured Natthu has opined that the injuries found on the body of the Natthu though caused by fire arm but were simple in nature. It was also stated by him that if anybody hits Suja in his body then such type of injury may occurred. On this ground he further says that the presence of P.W.2 on spot becomes doubtful.

25. Per contra learned A.G.A. has opposed these arguments by saying that there is sufficient material on record that in the night of incident it was raining heavily and Chhappar in which the deceased and witnesses were sleeping was also leaking and it cannot be denied that the blood comes from the simple injury of P.W.2 was washed out in the rain.

26. Before taking into consideration the rival submissions it would be proper to note some other facts at this stage. Admittedly the incident took place in the night hours and it is alleged that eye witnesses have watched the incident in the light of lantern. It is specified in the F.I.R. that out of the accused persons, appellants Nanhey and Zhandu were having country made pistol while remaining accused persons were armed with Lathi. Further it is also said that fire arm opened by the appellant hits the deceased while co-accused Zhandu fired towards first informant in which Natthu has sustained pellet injuries. In our opinion it is not possible to ascertain in night hours as to which accused was having pistol in his hand. Further it was also difficult to ascertain that fire opened by which of the accused hits the deceased and injured Natthu. It may also be noted that perusal of the site plan shows that there was separate Kotha of first informant and Shiv Charan but in the night of incident Shiv Charan and Nathoo were also sleeping in the Dalan of first informant Mohar Singh. It is not specified as to why they were not sleeping in their own houses and this fact also creates some doubt in our mind that Shiv Charan and Nathoo were shown sleeping in the house of first informant instead there were separate places of sleeping. All these facts also puts shadow of doubt on the prosecution version and we are of the considered opinion that appellant has succeeded to put shadow of doubt on the presence of PW1 Mohar Singh and PW2 Natthu on spot and it would not be safe to rely on their testimony.

27. As a result of our above discussion, it appears that it was a blind murder and none of the eye witnesses were actually present at the scene. The delayed and ante-timing of the FIR was obviously made to introduce eye witnesses to support the prosecution case. Our independent analysis of the evidence on the record coupled with the infirmities which we have noticed above, has created an impression to our mind, that the prosecution has not been able to bring home the guilt to the appellant beyond reasonable doubt. Consequently, appellant is entitled for benefit of doubt .

29. Accordingly, appeal succeeds and is hereby allowed. The judgment and order dated 17.1.1983, passed by learned Additional Sessions Judge, Moradabad in Sessions Trial No. 586 of 1979, convicting and sentencing the surviving appellant Nanhey, as aforesaid, is hereby set aside. He is hereby acquitted with the charges levelled against him. His bail bonds are cancelled and sureties are discharged.

30. Let a copy of this judgment be sent to the trial court for information. Original record be also transmitted to the learned trial court.

Order Date :- 25.4.2018

M.A.Ansari