Dashrath vs State Of U.P.
2018 Latest Caselaw 1851 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						A.F.R.
 

 
			JUDDGMENT RESERVED ON : 23.07.2018
 
			JUDGMENT DELIVERED ON :   06.08.2018
 
Case :- JAIL APPEAL No. - 1873 of 2013
 

 
Appellant :- Dashrath
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sri Radhey Sham Yadav (Amicus Curiae)
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Om Prakash-VII,J.

(Delivered by Om Prakash-VII, J.)

1. Present Jail Appeal has been preferred by appellant Dashrath against judgment and order dated 23.2.2013 passed by Additional Sessions Judge, Court No. 3, Jhansi in S.T. No. 332 of 2010 (State Vs. Dashrath), crime no. 1359 of 2009, Police Station Mauranipur, district Jhansi whereby appellant was convicted and sentenced for offence under Section 302 IPC for life imprisonment and fine of Rs. 10,000/- was also imposed. In default of payment of fine, appellant was also directed to undergo six months' additional imprisonment.

2. Prosecution case, in nutshell, is as under :

3. One written report (Ext. Ka-1) was moved by P.W.-1 Pooran Singh at Police Station concerned on 1.10.2009 mentioning therein that in the last night informant's brother Nawab Singh, his wife Smt. Bilaspurwali and his daughter Parvati after taking their meal were sleeping in their room. Brother of the first informant runs a poultary farm. In the night at about 11.30 accused appellant Dashrath along with one unknown person came at the house of the deceased and asked for a chicken. Deceased told him that chicken is not ready to sell. On this they started quarreling. Thereafter both the accused inflicted injuries by spear and knife. Deceased making hue and cry came out from the room and fell down on the road at about 100 paces away from the place of occurrence. On hearing the alarm, the informant, his brother Bharat Singh and nephew Pushpendra came there and exhorted the accused persons then they ran away towards southern side. Informant and his brother had torches with them. Leaving the dead body at the place of occurrence informant came to Police Station and moved written report.

4. On the basis of written report (Ext. Ka1) chik F.I.R. Ext. Ka-5 was registered on 10.10.1989 at 4.15 A.M. against the present appellant and one unknown person for the offence under Section 302 IPC. G.D. Entry was also made. Police reached at the place of occurrence and prepared inquest report (Ext. Ka-3) and other police papers i.e. Ext. Ka-10, Ext. Ka-11, Ext. Ka-12 and Ext. Ka-13, keeping the dead body in sealed cloth. Police also took the plain and blood stained soil from the place of occurrence and prepared memo Ext. Ka-2. Site plan (Ext. Ka-14) after inspecting the place of occurrence was also prepared by the Investigating Officer. Dead body was carried to the Mortuary by Constable Lallan Singh and Rama Shankar. Post mortem of the dead body was conducted on the same day i.e. 1.10.2009 at 3.30 P.M.

5. On external examination, deceased was found to be aged about 35 years and was of average body built. Rigor mortis was present all over the body. Eyes were closed. Mouth was semi opened.

6. On examination of dead body, following ante mortem injuries were found :

(I) Stab wound size 2 cm x 1 cm x cavity deep 5 cm below and medieval to the right nipple.

(II) Stab wound size 3.5 cm x 1.5 cm x cavity deep oval and oblique, present 16 cm below right nipple.

(III) Stab wound oblique and oval, size 1.5 cm x 1.0 cm x muscle deep.

(IV) Stab wound oblique and oval size 2.5 cm x 1 cm x cavity deep. This injury was situated 2 cm below tip of left scapula.

(V) Stab wound size 3 cm x 1.5 cm x cavity deep oblique 8 cm below injury no. 4.

(VI) Stab wound oblique and oval size 3.5 cm x 1.5 cm x cavity deep situated 5 cm medieval to injury no. 5.

7. Cause of death was shock and hammeorage due to ante mortem injuries. Post mortem report is Ext. Ka-3.

8. Investigating Officer after completing the investigation, interrogating the witnesses submitted charge sheet (Ext. Ka-7) against the present appellant for the offence under Section 302 IPC.

9. Concerned Magistrate took the cognizance. Case being exclusively triable by the Sessions Judge was committed for trial to the Sessions Court.

10. Accused appeared and learned Sessions Judge concerned framed charge under Section 302 IPC against the appellant to which accused denied and claimed his trial.

11. In order to prove its case, prosecution examined P.W.-1, the informant; P.W.-2 Pushpendra Singh, eye witness; P.W.-3 Dr. R. G. Shankhwar, who had conducted the post mortem of the dead body of the deceased; P.W. 4 Bharat Singh who has been declared hostile; P.W.-6 Constable Maheshwari Prasad, the chik writer; P.W.-7 Lalluram Diwakar, the then S.H.O. who has investigated the matter and submitted charge sheet. This witness has also proved the police papers except the chik F.I.R. and G.D.

12. After conclusion of the prosecution evidence, statement of the appellant under Section 313 Cr.PC. was recorded in which the appellant has denied the prosecution case and has stated that F.I.R. was lodged on the basis of the false facts. Police papers have been wrongly proved. Charge sheet was submitted on the basis of insufficient evidence. Accused appellant specifically stated that witnesses have deposed against the appellant to grab the land belonging to him.

13. No defence evidence was adduced by the appellant in his defence.

14. Trial court after hearing the parties vide impugned judgment and order convicted and sentenced the appellant as above. Hence this appeal.

15. Heard Sri Radhey Sham Yadav, learned Amicus Curiae for the appellant and Sri Ratan Singh, learned A.G.A. for the State.

16. Castigating the impugned judgment, learned counsel for the appellant submitted that appellant is innocent and has not committed the present offence. F.I.R. is delayed and is an after-thought. No plausible explanation has been given. Although two persons are said to be involved in committing the present offence,. charge sheet was submitted only against the appellant. Witnesses examined on behalf of the prosecution to prove the incident were not present on the spot at the time of occurrence as incident is of 11.30 P.M. in the night. Neither source of light is disclosed nor the witnesses were sleeping in the same house where the deceased was sleeping. Thus referring to these facts, it was also argued that P.W.-1, P.W.-2 and P.W.-4 have not seen the present incident. They are chance witnesses and their statement is hearsay statement. Thus prosecution was not able to prove the case beyond reasonable doubt. Referring to the medical evidence, it was also argued that it is not clear from the prosecution evidence as to what weapon was used by the appellant in committing the present offence. It is further argued that deceased was done to death in other manner by unknown persons. Medical evidence does not support the prosecution case. Date, time and place of occurrence have not been proved by the prosecution. There is major contradiction in the statement of the prosecution witnesses on material point. There is also contradiction in the statement of the witnesses on the point of source of light. It appears improbable and unbelievable that witnesses who were sleeping in their houses and had come at the place of occurrence after hearing the alarm would have recognised the assailants in dark night. Referring to the statement of the prosecution witnesses on the point of weapon, source of light, place of occurrence, it was also argued that findings recorded by the trial court on these points are perverse.

17. Per contra, learned A.G.A. argued that although incident is of 11.30 P.M. yet the F.I.R. was lodged in the morning at 4.15 A.M. promptly on the next day. Since accused appellant was recognised by the witnesses, he was named in the F.I.R. Witnesses who have seen the occurrence were sleeping in their houses situated by the side of the place of occurrence. Therefore, their presence on the spot at the time of occurrence cannot be doubted. They reached on the spot hearing the hue and cry of the deceased and also saw the accused persons there. P.W.-1, P.W.-2 and P.W.-4 are natural witnesses. Merely on this basis that they belong to the same family, their statements cannot be disbelieved and they cannot be placed in the category of partisan witnesses. Statement of P.W.-5 Bhagwan Singh, who has been declared hostile, is meaningless and no benefit goes to the defence on the basis of statement of this witness. Medical evidence fully supports the prosecution evidence. Doctor has clearly stated that injuries found on the body of the deceased could be caused with the weapon assigned to the appellant. Since there is ocular evidence, motive in the matter if not strong is immaterial. Thus referring to the impugned judgment and order as well as entire evidence, it was further argued that findings recorded by the trial court are in accordance with law. Prosecution was able to prove the guilt of the appellant beyond reasonable doubt, hence appeal is liable to be dismissed.

18. We have considered the rival submissions and have gone through the entire record.

19. In this matter, offence is said to have been committed on 30.4.2009 in the night at 11.30 P.M. First information report was lodged at 4.15 AM. Distance between the place of occurrence and the Police Station is 4 kms. Appellant is named in the F.I.R. Informant is the brother of the deceased. Keeping in view the time of occurrence, the distance between place of occurrence and police station, time of lodging of the F.I.R. in the present matter, submission raised by the learned counsel for the appellant on the point of delay in lodging of the F.I.R. is not acceptable. One person was done to death in the midnight. Police station was situated near about 4 kms. away from the place of occurrence, it is not expected that family members in such a situation in the night hours would go immediately to the police station to lodge the F.I.R. Thus on this score prosecution case cannot be disbelieved. Delay occurred in lodging the F.I.R. is natural one and the same is not fatal to the prosecution case.

20. So far as the whereabouts of the co-accused who was accompanying the appellant is concerned, if he was not traceable, trial of the present appellant on this score will not vitiate nor the impugned judgment and order can be set aside on this score.

21. Inquest report was prepared in this matter just after lodging of the first information report on 1.10.2009. Dead body was carried to the Mortuary and post mortem was done on the same day. P.W.-3 Dr. R.G. Shankhwar has specifically stated in his statement that injuries found on the body of the deceased could be caused with the weapon assigned to the appellant. Although in the first information report specific weapon assigned to the appellant is not clear and there is version that accused persons caused injuries to the deceased with spear and knife but from a perusal of the statement of the fact witnesses i.e. P.W.-2, P.W.-3 and P.W.-4 it is amply clear that appellant was possessing knife. No question in the cross examination was put to the Doctor that injuries found on the body of the deceased could not come with the weapon assigned (knife) to the appellant. If this question had been put to the Doctor and Doctor would have stated that injuries found on the body of the deceased could not be caused by knife then in that situation appellant's plea was acceptable. Thus in the present matter, on close scrutiny of entire evidence, we are of the considered view that medical evidence in the present matter fully supports the prosecution case. In this regard it is also noteworthy that time of death stated by the P.W.-3 Dr. R.G. Shankhwar clearly tally with the time of the incident mentioned in the first information report. Finding recorded by the trial court that medical evidence fully supports the prosecution case is not interferable.

22. As far as the presence of the witnesses on the spot is concerned, prosecution case is that deceased along with his family was sleeping in the room. Accused appellant and his companion caused injuries on the body of the deceased. When deceased made hue and cry, first informant came out of his room for his rescue. Hearing the noise of the deceased witnesses whose houses were situated by the side of the house of the deceased also reached the place of occurrence and exhorted the persons committing the crime, thereafter they ran away. Topographical details given in the site plan if compared with the facts mentioned in the first information report as also with the statement of the P.W.-1, P.W.-2 and P.W.-4, it will be clear that the presence of the witnesses at the place of occurrence cannot be doubted. These three witnesses have reached the spot hearing hue and cry of the deceased. They saw the accused appellant along with his companion at the place of occurrence in the light of torch. Apart from this, appellant is known person to the witnesses. A known person can easily be recognised by his voice and foot steps etc. It is also pertinent to mention here that defence was not able to show any fact of enmity to falsely implicate the appellant in this matter. The fact that the appellant was falsely implicated only to grab the property can not be accepted as this fact is not supported by any evidence nor the appellant comes in the pedigree of the deceased or informant. It is natural phenomena/re-course that neighbourer after hearing the hue and cry of the deceased would immediately reach at the place of occurrence. Presence of P.W.-1, P.W.-2 and P.W.-4 at the place of occurrence is most natural phenomena.

23. If prosecution witnesses are brother and family members of the deceased then also their statement cannot be disbelieved on this ground. Only requirement under law is that their statement shall be scrutinized very carefully. As regards the interestedness of the witnesses is concerned, Hon'ble Supreme Court in para nos. 15, 16, 17 and 18 in the case of Gangabhavani Vs. Rayapati Venkat Reddy and others, (2013) 15 SCC 298 has held as under :

"EVIDENCE OF RELATED/INTERESTED WITNESSES:

15. 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).

16. 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).

17. 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."

18. 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."

24. In the present matter after a careful/close scrutiny, presence of the fact witnesses on the spot at the time of occurrence is fully established beyond reasonable doubt. Findings recorded by the trial court on this point are not interferable.

25. So far as non examination of all the fact witnesses in the present matter is concerned, law does not say to prove any fact with the evidence of number of witnesses. A fact may be proved by the statement of solitary witness.

26. As far as the contradiction in the statement of the prosecution witnesses on the point of actual time of reaching them at the place of occurrence and other contradictions are concerned, normal discrepancies are bound to occur in the deposition of witnesses due to normal errors of observation. Incident is of the year 2009, witnesses have been examined in the year 2011 and 2012, there is chance of error of memory due to lapse of time or due to mental ability of witness concerned. Contradictions elicited on behalf of appellant are not creating serious doubt about the truthfulness of the statement of the witnesses present on the spot. Mere marginal variations cannot be dubbed as fatal to the prosecution case. There is no any major contradiction in the statement of the witnesses on material/main points.

27. For ready reference paragraph no. 13 of the Gangabhavani case (Supra) is quoted below :

"CONTRADICTIONS IN EVIDENCE

13. 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."

28. In this matter, on the basis of analysis made herein above, it is fully established from the prosecution evidence beyond reasonable doubt that death of the deceased took place due to ante mortem injuries found on his body. Injuries found on the body of the injured were caused by the appellant and his companion, presence of the witnesses P.W.-1, P.W.-2 and P.W.-4 at the place of occurrence is most natural, they are neighbourer, deceased died instantaneously due to injuries sustained by him, prosecution was able to prove the date, time and place of occurrence from the prosecution evidence beyond reasonable doubt and also the manner in which the present offence was committed by the appellant and his associates. Thus finding recorded by the trial court regarding the guilt of the accused appellant for the offence under Section 302 IPC cannot be said to be illegal or perverse. There is no need to interfere with the finding of the trial Court. Appeal lacks merit and is not liable to be allowed.

29. Thus, the Jail Appeal is dismissed. Impugned judgment and order dated 23.2.2013, passed by Additional Sessions Judge, Court No. 3, Jhansi in S.T. No. 332 of 2010 (State Vs. Dashrath) is hereby confirmed/affirmed.

30. Copy of this order along with lower court record be sent to court concerned forthwith.

31. A copy of this order be also sent to appellant through the concerned Jail Superintendent.

32. Sri Radhey Sham Yadav learned Amicus Curiae has assisted the Court very diligently. We provide that he shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Sri Radhey Sham Yadav, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.

06-08-2018.

Sachdeva