Sanjay Balmiki vs State Of U.P.
2018 Latest Caselaw 1844 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 23.7.2018
 
							       Delivered on 06.8.2018
 

 
Case :- JAIL APPEAL No. - 5047 of 2012
 
Appellant :- Sanjay Balmiki
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Pramod Kumar, Rajesh Chandra Gupta, Vikrant Pandey
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Om Prakash-VII,J.

(By Om Prakash-VII, J.)

1. Present jail appeal has been preferred by accused appellant Sanjay Balmiki against judgment and orders dated 18 & 19.10.2012 passed by Additional Sessions Judge, Court No.4, Gautam Budh Nagar in Session Trial Nos. 7 of 2011 and 11 of 2011 convicting and sentencing the appellant for the offence punishable under Section 302 I.P.C. for imprisonment of life and a fine of Rs. 5,000/- and for the offence punishable under Section 25/4 Arms Act to undergo two years rigorous imprisonment and a fine of Rs.1000/-. All sentences have been directed to run concurrently.

2. Facts of the case, as unfolded by informant Kanwar Pal, father of deceased, are that his daughter Manju was married to accused appellant way back seven years. Manju had come to meet the informant seven days ago. Accused appellant used to harass and beat deceased for money. On 19.10.2010 at about 5 p.m. appellant came to house of informant and started beating to his daughter hurling abuses. When Arti, grand-daughter of informant, objected, appellant taking out knife from his pocket with intention to kill caused 3-4 blows on the chest of Manju. She was taken to hospital but on the way she succumbed to her injuries and accused-appellant ran away from the place of occurrence.

3. On the basis of written report (Ext. ka-1), chik First Information Report (Ext. Ka-5) was registered at Police Station concerned on 19.10.2010 at 5.55 p.m. mentioning all details as had been described in Ext. Ka-.1. G.D. entry was also made at the same time. Distance between place of occurrence and police station concerned was only two kilometers.

4. Investigation started in the matter. Police reached on the spot and took bloodstained and simple pieces of floor. Inquest report (Ext. ka-8) alongwith other police papers keeping the dead body in sealed cover were also prepared at the mortuary of Hospital concerned. Police also arrested appellant on same day from BSNL Chouraha and on personal search of accused appellant a knife was also recovered from his pocket, details whereof have been given in recovery memo ((Ext. ka-4). After recovery, another FIR for the offence under Section 25/4 Arms Act was lodged on 20.10.2010 at 11.10 a.m., which is Ext. ka-9. G.D entry was also made. Site plan of first incident is Ext. ka-7 and for another incident is Ext. ka-17. Dead-body was carried by

Constables Viresh Kumar and Rajendra Singh for post-morterm. Post-mortem on dead-body of deceased was done on 20.10.2010 at 03.15 p.m. and autopsy report (Ext. ka-3) was prepared.

5. As per post mortem report, deceased was about 25 years old. On external examination, rigor mortis was present all over body.

On examination of dead body of deceased, following ante-mortem injuries were found:

"1. I.W, 2.0 x 1.0 cm x bone deep on midline of sternum 9.0 m below supra sternal notch. Margin clean cut.

2. I.W. 2.0 x 1.0 cm x bone deep on left side chest on the outer point 2.00 c.m. Outer to the left nipple at 2.0 O'clock. Margin clean cut."

6. In the opinion of doctor, death was caused due to shock and hemorrhage as a result of ante-mortem injuries.

7. After completing investigation, charge-sheets (Ext. ka-.8 and 9) against accused for the offence under sections 302 IPC and 25/4 Arms Act were filed. Concerned Magistrate took cognizance and case being exclusively triable by sessions court, was committed to Court of sessions.

8. Since offence under Section 25/4 Arms Act was related to main offence, both matters were consolidated and tried simultaneously. Accused appeared and charges under Sections 302 IPC and 25/4 Arms Act were framed against appellant in both trials separately. Accused denied charges and claimed for trial.

9. Trial proceeded, and in order to prove its case, prosecution examined, nine witnesses, namely, PW-1 Km Arti, PW-2 Kanwar Pal (informant), PW-3 Dr. Rakesh Kumar, who conducted post-mortem of deceased, PW-4 Durbesh Singh Nagar, who arrested accused and proved recovery memo, PW-5 Constable Pradeep Singh, who registered chik F.I.R. and made G.D. entry, PW-6 Sub-Inspector Som Prakash, Investigating Officer, PW-7 Constable Prem Shankar Sharma, PW-8 Sub-Inspector Naresh Chandra Sharma, who prepared inquest report and other police papers and PW-9 Sub-Inspector Birender Kumar, who investigated matter for the offence under Section 25/4 Arms Act. Accused - appellant, in defence, did not adduce any evidence.

10. After closure of prosecution evidence, statement of accused appellant under Section 313 Cr.P.C. in both matters was recorded separately wherein he denied the charges and stated that F.I.R. is ante-timed and ante-dated document; charge-sheets were submitted on the basis of insufficient evidence; site plans were prepared sitting at police station concerned; he has been falsely implicated by his father-in-law to escape payment of Rs. 20,000/- which was given by appellant to him; since he loved his wife, he could not think to kill her and nothing was recovered from his possession nor he was arrested at the place of occurrence.

11. Having heard learned counsel for parties and going through the record, trial court has found that prosecution has fully succeeded in bringing home the charges against accused appellant beyond reasonable doubt warranting his conviction and sentence. Hence this appeal.

12. We have heard Shri Vikrant Pandey, learned counsel for appellant and Shri Syed Ali Murtaza learned AGA for State at length, and perused entire record carefully.

13. Castigating the impugned judgment and order, it was submitted by learned counsel for appellant that appellant is innocent and has not committed present offence. Prosecution was not able to prove its case beyond reasonable doubt. Referring to statement of prosecution witnesses, it was submitted that there are major contradictions in prosecution evidence on the point of recovery of knife. It was next contended that medical evidence does not support prosecution case. Though knife, said to be recovered in the matter, was sent to laboratory for Forensic Science Laboratory report yet no report has been received. Thus, material evidence to connect appellant with present matter is lacking. Referring to statement of prosecution witnesses it was also submitted that prosecution was not able to prove date, time and place of occurrence. There are major contradictions on these points also. It was further submitted that F.I.R. is ante-timed document. It appears improbable and unbelievable that incident took place at 5.00 p.m. and F.I.R. was lodged within 55 minutes irrespective of fact that deceased was taken to hospital before lodging F.I.R.. PW-1 and PW-2 were not present on the spot at the time of incident. Findings of trial court recorded in impugned judgment and order are perverse and illegal and said findings on the point of guilt of present appellant is result of wrong appreciation of evidence.

14. Per contra, learned A.G.A. appearing for State submitted that though there is contradiction in prosecution evidence on the point of recovery of knife, yet injuries found on the body of deceased were caused by knife. This fact finds support from oral version of fact witnesses. PW-1 Arti and PW-2 Kanwar Pal were present in the house at the time of incident. Medical evidence fully supports prosecution case. Deceased died due to injuries sustained by her in the said incident. Contradictions elicited by counsel for appellant are not material or fatal to prosecution case on main points. Findings recorded by trial court in impugned judgment and order are in accordance with law. There is no illegality, infirmity or perversity in the findings of trial court warranting interference by this Court.

15. We have considered rival submissions advanced by learned counsel for the parties.

16. In this matter, as is evident from records, two F.I.Rs. were lodged and two separate trials were conducted. First F.I.R. was lodged on the basis of written report submitted by PW-2 Kanwar Pal at crime no. 1035/2010 under Section 302 IPC on 10.10.2010 at 5.55 p.m.. Incident is said to have taken place at 5.00 p.m. on the said day. Distance between place of occurrence and police station concerned is only two kilometers. Prosecution case is that immediately after the incident local police was informed through Mobile and police reached on the spot within few minutes. Since deceased was in serious condition, every effort was made by family members to take her hospital. It is also prosecution case that deceased was taken to hospital on police vehicle and when she was brought to hospital, situated in same locality, she was declared dead. Thereafter informant alongwith PW-1 Arti and scribe Her Pal proceeded to police station concerned by police vehicle for lodging F.I.R. and prepared written report (Ext. ka-1) at police station concerned.

17. If on the basis of above factual backdrop, submission of learned counsel for appellant are compared, it is possible that prosecution witnesses might have described / mentioned time of incident on the basis of assumption and incident would have taken place few minutes earlier to the time mentioned in F.I.R. . It is impossible to remember exact time of incident in hour and minutes by bereaved family. Since deceased was immediately taken to hospital on motor vehicle and informant rushed to police station for lodging F.I.R. immediately from hospital, it cannot be said that within 55 minutes all these works could not be done and F.I.R. is too prompt and is ante-timed document. It is pertinent to mention here that information through Mobile was already given to local police just immediately after incident although same was not reduced in writing by police. Hence, keeping in view the entire facts and circumstances of case and analyzing evidence available on record, we are of the view that F.I.R. is not an anti-timed document. In the facts and circumstances of the case, F.I.R. could be lodged within 55 minutes and on this score entire prosecution story cannot be disbelieved. Submission made by learned counsel for appellant in this regard is not acceptable.

18. So far as lodging of second F.I.R. is concerned, it was lodged on 20.10.2010 at 11.10 a.m. on the basis of recovery of knife. Accused was arrested from BSNL Chauraha. Police personnel, who arrested accused and recovered knife, in examination before Court, has supported recovery memo but admitted in cross-examination that when they proceeded to place of occurrence for arrest and recovery, they did not enter this fact in general diary. PW-1 Arti has stated that accused leaving knife at place of occurrence (roof) ran away but on this point a different version has been taken by PW-2 Kanwar Pal. At one point of time in examination made before Court this witness has stated that accused was arrested immediately on the spot and at another point of time he admitted that accused ran away from the place of occurrence by pushing him. If statement of PW-1, PW-2 and PW-4 are minutely scrutinized in consonance with submissions made by learned counsel for appellant, it is evident that in the statement of prosecution witnesses two different version have come on the point of recovery of knife. There is contradiction in prosecution evidence, whether knife was recovered from roof (place of occurrence) or on the next day from possession of accused appellant at BSNL Chauraha. Since there is no entry in general diary regarding departure of police personnel from police station for recovery of knife, prosecution did not produce Forensic Science Laboratory Report to connect knife with present matter, we are of considered opinion that recovery of knife, said to have been made in the matter, is doubtful. Hence, in our opinion, prosecution has failed to establish guilt of accused appellant under Section 25/4 Arms Act in S.T. No. 11 of 2011 beyond reasonable doubt and to the satisfaction of judicial conscience of court. So, impugned judgment and order of conviction and sentence dated 18 & 19.10.2012 for the offence under Section 25/4 Arms Act, which has been sought to be assailed, call for and deserves, interference to this extent.

19. Now we come to submission regarding presence of PW-1 Arti and PW-2 Kanwar Pal at place of occurrence and their being interested witness.

20. In instant case, incident is said to have taken place in the house of informant. PW-1 Arti is grand-daughter of informant. She was present in the house and her presence could not be shaken by defence in cross-examination. She is natural witness. She has objected / resisted accused while he was abusing deceased and causing injuries with knife. If there is variation in the statement of this witness and F.I.R. about number of blows caused by appellant, this fact itself does not render this witness unreliable. Two injuries were found on the body of deceased at the time of post mortem and both were caused by knife. Thus, version of this witness in the present matter is supported by medical evidence also.

21. As far as presence of PW-2 Kanwar Pal, who is father of deceased, is concerned, it is case of prosecution that accused appellant and deceased both had come to house of informant to see him as he was ailing. He was also present in the house where incident took place. It is prosecution case also that before causing injuries, quarrel took place between deceased and accused appellant. If such type of incident was taken place in the house, inmates would have certainly reached there and witnessed the incident. Inmates are best and natural witnesses. PW-2 in his statement, given on oath before Court, has clearly stated that accused appellant after committing offence ran away by pushing him from the place of occurrence. Thus, presence of PW-2 at the place of occurrence can also not be doubted. Though there is contradiction on the point of number of blows caused by appellant upon deceased in the statement of PW-1 and PW-2, yet presence of these witnesses on the spot at the time of incident cannot be doubted on this ground. Presence of these witnesses at the place of occurrence can also not be doubted on the ground that police personnel, who prepared inquest report, has shown only one injury in it. It is pertinent to mention here that in the post mortem report, two injuries were found on the body of deceased which were caused by knife. Accused appellant in his statement under Section 313 CrPC has taken plea that he was falsely implicated in this case due to reason that informant had taken certain amount but he was not willing to return the same, thereafter a false case was initiated again him but this plea has not been substantiated by evidence. It is not clear at what point of time money was given by accused appellant and when informant refused to return the same. But there is clear and consistent statement of PW-1 and PW-2 that accused appellant used to make demand of money and on non-fulfillment of said demand, caused harassment to deceased. Thus, in our opinion, prosecution was able to prove not only presence of PW-1 and PW-2 at the place of occurrence on the date and time of incident but also fact of quarrel, due to which present incident was committed by appellant, beyond reasonable doubt.

22. As regards interestedness of PW-1 and PW-2 is concerned, Hon'ble Supreme Court in case of Gangabhavani vs. Rayapati Venkat Reddy and others, JT 2013 (12) SC 117 , as relied upon by this Court in Mahendra Singh and others vs. State of U.P., 2014 (6) ADJ 657 (DB), held as under:

"11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (Vide: Bhagalool Lodh & Anr. v. State of U.P., AIR 2011 SC 2292; and Dhari & Ors. v. State of U. P., AIR 2013 SC 308).

12. In State of Rajasthan v. Smt. Kalki & Anr. AIR 1981 SC 1390, this Court held:

"5A. 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"..........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 possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W.1 had no interest in protecting the real culprit, and falsely implicating the respondents."

(Emphasis added)

(See also: Chakali Maddilety & Ors. v. State of A. P., AIR 2010 SC 3473).

13. In Sachchey Lal Tiwari v. State of U.P., AIR 2004 SC 5039, while dealing with the case this Court held:

"7...........Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence."

14. In view of the above, it can safely be held that natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased."

23. In the instant case though PW-1 and PW-2 both are closely related to deceased yet their presence on the spot at the time of incident is not doubtful in any way. They are natural witnesses and are only possible eye witnesses, therefore, their statement cannot be disbelieved only on the ground that they are closely related to the deceased. Statement of these two witnesses also finds support with medical evidence. PW-1 and PW-2 can also not be said to be interested witnesses. Their deposition inspires confidence.

24. Referring to statement of PW-3, learned counsel for appellant submitted that this witness in cross-examination has admitted that injuries found on the body of deceased could also come due to falling on sharp edged blades. It is pertinent to mention here that it is mere an opinion of Doctor and same was stated on suggestion made by accused but there is no concrete evidence to substantiate the same. This witness in examination- in-chief has clearly stated that injuries found on the body of deceased could be caused by a sharp edged weapon on 19.10.2010 at 5.00 p.m.. It may also be mentioned here that in the post mortem report left lung and heart of deceased were found damaged due to cut injuries, semi-digested food was found in the stomach and one and a half ltr. clotted blood was also found in the chest. Deceased died due to shock and hemorrhage as a result of ante mortem injuries sustained by her. Thus, on close scrutiny of entire evidence in consonance with medical evidence, submissions advanced by learned counsel for appellant are not acceptable. Medical evidence fully supports prosecution case. Since there is ocular evidence, PW-1 and PW-2 both were present on the spot at the time of incident and they have witnessed the incident, there is no chance of false implication of accused appellant as he is son-in-law of PW-2. Hence, prosecution case cannot be disbelieved. Deceased died due to injuries sustained by her on the same day. Thus, manner in which present incident was committed, clearly shows that accused appellant had caused knife injuries on the body of deceased with intention to kill her. All the ingredients to attract offence under Section 302 IPC have been proved by prosecution beyond reasonable doubt. Date, time and place of incident have also been established. If there is any fault on the part of Investigating Officer i.e. non-submission of F.S.L. report etc., the same are not fatal to testimony of ocular evidence. It is well settled proposition of law that inconsistency or discrepancy occurred in the statement of prosecution witnesses or laches on the part of the Investigating Officer does not affect veracity of statement of reliable prosecution witnesses until and unless such discrepancies are of such nature that the entire prosecution story is collapsed or go to the root of the case or materially affect the prosecution case. Prosecution witnesses have been examined after few years of the incident. Minor contradictions, inconsistencies, embellishments or improvements on some points do not affect veracity of statement of these two witnesses on material points.

25. Hon'ble Supreme Court in Gangabhavani case (supra) has held as under:

"9. In State of U.P. v. Naresh, (2011) 4 SCC 324, this Court after considering a large number of its earlier judgments held:

"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.

Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.

Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited."

9.1 A similar view has been re-iterated by this Court in Tehsildar Singh & Anr. v. State of U.P., AIR 1959 SC 1012; Pudhu Raja & Anr. v. State, Rep. by Inspector of Police, JT 2012 (9) SC 252; and Lal Bahadur v. State (NCT of Delhi), (2013) 4 SCC 557).

10. Thus, it is evident that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence.

26. In the circumstances, findings recorded by trial court in impugned judgment and order against accused appellant for the offence under Section 302 IPC are based on correct appreciation of evidence and law. The trial court has rightly held accused appellant guilty under Section 302 IPC and sentenced him imprisonment for life.

27. Considering the entire aspects of matter and looking to the circumstances, under which present offence has been committed, we are of the view that impugned judgment and order passed by trial court is well thought and well discussed and trial court has rightly held that prosecution has succeeded to prove guilt of accused appellant under Section 302 IPC beyond reasonable doubt. As such, impugned judgment and order passed by trial court is liable to be upheld to this extent.

28. In view of above discussions, jail appeal is liable to be allowed in part and judgment and order of conviction and sentence dated 18 & 19.10.2012 passed by trial court in S.T. No. 11 of 11 is liable to be set aside for the offence under 25/4 Arms Act and accused appellant is found not guilty for said offence. However, conviction and sentence imposed upon accused appellant vide impugned judgment and order in S.T. No. 7 of 2011 for offence under Section 302 IPC is liable to be confirmed.

29. Accordingly, jail appeal is allowed in part. Judgment and order of conviction and sentence dated 18 & 19.10.2012 passed by trial court in S.T. No. 11 of 11 for the offence under Section 25/4 Arms Act is set aside and he is acquitted for the charges of offence under Section 25/4 Arms Act. However, conviction and sentence imposed upon accused appellant vide impugned judgment and order in S.T. No. 7 of 2011 for the offence under Section 302 IPC is confirmed.

30. Copy of this judgment alongwith lower court record be sent forthwith to Sessions Judge, Gautam Budh Nagar for compliance. Compliance report be also submitted to this Court.

31. A copy of this judgment and order be also sent to appellant through concerned Jail Superintendent. A compliance report be also sent by concerned Jail Superintendent.

Order Date :06.08.2018

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