Pratap vs State Of U.P.
2018 Latest Caselaw 1997 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
RESERVED   :  10.08.2018
 
                                                     DELIVERED  :   18.08.2018      
 

 

 
Case :- CRIMINAL APPEAL No. - 915 of 1983 
 

 
Appellant :- Pratap 
 
Respondent :- State Of U.P. 
 
Counsel for Appellant :- Mohan Chandra,Akhilesh Srivastava,J.P.Singh,Pulak Ganguly,Ram Pal Singh Rajput,Ratan Singh 
 
Counsel for Respondent :- Govt. Advocate 
 

 

 
Hon'ble Pradeep Kumar Singh Baghel,J. 

Hon'ble Harsh Kumar,J.

(Delivered by Hon'ble Harsh Kumar, J)

The present appeal has been filed against judgment and order dated 12.4.1983 passed by Special Judge, EC Act, Etah in Sessions Trial No.420 of 1982 State vs. Saddiq,- case crime no.424 of 1981 under sections 148, 307/149 and 302/149 I.P.C. P.S. Kasganj, district Etah convicting 3 for the offences u/s 148, 307/149 & 302/149 I.P.C. and acquitting rest 3 out of 6 accused.

Feeling aggrieved the convicted accused persons have preferred this appeal, while no appeal is reported to have been filed by State, first informant or any of the victim against the acquittal part of order in respect of other 3 accused.

Brief facts relating to the case are that on 28.5.1981 first informant Suleman submitted a Tehrir/written report scribed by Ram Singh, at P.S. Kasganj, district Etah upon which F.I.R. was lodged against 7 accused persons at case crime no.424 of 1981 under sections 147, 148, 149, 302 and 307 I.P.C. The occurrence in question is alleged to have occurred in the midnight of 27/28.5.1981 of which F.I.R. has been lodged the next morning at 7.10 a.m. in P.S. Kasganj at a distance of 7 miles.

The brief facts of the F.I.R. are as follows :-

"It is submitted that yesterday on 27.5.1981 the marriage party of my brother Puttan had returned from Salimpur P.S. Khurawali, district Mainpuri and there were several relatives at home who had come for attending marriage; that around midnight there was a storm/Andhi due to which everybody woke up and after making the lantern on, they were talking in the courtyard; that the Southern wall of the courtyard is quite low and certain persons were seen by the side of wall, who were suspected as miscreants; that upon such doubt Lala Ram and Ismail with torches in their hands and his brother-in-law Allah Raji, brother Sattar and Maujuddin with lathis in their hands quickly moved towards the Southern wall, but by that time four miscreants came inside the courtyard by scaling the wall and one miscreant upon being hit with lathi by Allah Raji fell down and called his associates; that in the meantime, miscreants Pratap with his gun and Subedar and Masoom Ali with their pistols made four fires of which pellets hit his brother-in-law Allah Raji who fell down and died on the spot while multiple injuries were caused to applicant, his father, brother Sattar as well as niece Hajra; that on this the family members and relatives pelted bricks and stones over miscreants and armed license holders from Garhi (abadi/colony) also made fires upon which and miscreants fled towards South; that in the light of torches applicant and others identified the miscreants as Saddiq, Sanju/Sannu, Masoom Ali, Pratap, Subedar, Radhey and Suraj Pal and others who may also be identified, if brought before them; that the miscreants could not take away any materials/goods from his home; that other miscreants were also armed with pistols and the were identified being previously known to them, as they were also residents of same vicinity"

Upon submission of the Tehrir/written report, chik F.I.R. was prepared at case crime no.424 of 1981. The investigating officer visited the spot, prepared memos of recovery of torches, lantern, sample of simple and blood strained earth, sent four injured persons for medical examination and treatment at P.H.C., Kasganj, and dead body of Allah Raji for postmortem and after collecting his postmortem report as well as injury reports of the injured persons and making enquiry from witnesses completed the investigation and submitted charge sheet.

Upon submission of charge sheet and taking of cognizance, the case was committed to sessions and registered as Sessions Trial No.420 of 1982. The learned Additional Sessions Judge after hearing the accused persons on 23.11.1982 framed charges against accused Saddiq, Sannu and Suraj Pal under sections 147, 307/149, 302/149 and 460/109 I.P.C. and against Masoom Ali, Pratap and Subedar under sections 148, 307/149, 302/149 and 460 I.P.C. On 2.3.1983 the Additional Sessions Judge reframed charges against all the accused perons under sections 148, 307/149 and 302/149 I.P.C, to which also they pleaded not guilty and demanded trail.

For proving the charges framed against accused persons, the prosecution produced Dr. Subhash Chandra as P.W.-1 who proved the injury reports of four injured persons, injured first informant Suleman as P.W.-2, injured Sattar as P.W.-3, injured Lal Shah as P.W.-4, injured Km. Hajra as P.W.-5, second investigating officer Surya Pal Diwakar as P.W.-6 and first investigating officer Kedarnath Sharma as P.W.-7. The prosecution witnesses also proved the documentary evidence on record. After completion of prosecution evidence, statements of accused persons were recorded under section 313 Cr.P.C. Accused persons did not produce any defence evidence inspite of opportunity given and the learned trial court after hearing the learned counsel for parties decided the sessions trial by impugned judgment and order dated 12.4.1983 acquitting Sadiq, Sannu and Suraj Pal by giving them benefit of doubt and convicting Pratap, Masoom Ali and Subedar under sections 148, 307/149 and 302/149 I.P.C. and sentencing each of them with two years rigorous imprisonment under section 148 I.P.C, ten years rigorous imprisonment under section 307/149 I.P.C. and life imprisonment under section 302/149 I.P.C.

Feeling aggrieved the convicted accused Pratap, Masoom Ali and Subedar have jointly preferred this appeal. No appeal is reported to have been filed against the part of impugned order acquitting Sadiq, Sannu and Suraj Pal either by State or by first informant or by any of the victims.

During pendency of this appeal, accused appellant no.2 Masoom Ali died and appeal in respect of him was abated vide order dated 3.8.2017.

We have heard Shri Pulak Ganguly Advocate for surviving accused-appellant no.1 Pratap, and Shri Ratan Singh, Advocate and amicus curiae Shri Vijay Shankar Chaurasia, Advocate for another surviving accused-appellant no.3 Subedar, and A.G.A. for State and perused the record as well as records summoned from court below.

P.W.-1 who conducted medical examination the four injured witnesses, P.W.-2, 3, 4 and 5 between 8.45 a.m. to 9.20 a.m. on 28.5.1981 has proved the injury reports of all the injured persons and found as many as seven gunshot injuries and two abrasions on the person of Sattar, advising X-ray of gunshot wounds, (ii) one gunshot wound to ten years old Km. Hajra, advising X-ray, (iii) one gunshot injury to Suleman, advising him X-ray and lastly (iv) three gunshot injuries and one abrasion to Lal Shah, advising him X-ray, and kept all the injured persons under observation. All the injuries of four injured persons were opined to be fresh, and could have been sustained in the midnight of 27/28.5.1981.

The postmortem report of Allah Raji deceased Ext. A-20 on record of which genuineness was admitted by accused persons u/s 294 Cr.P.C., states that the postmortem of the body of 42 years old Allah Raji was conducted at about 1.00 p.m on 29.5.1981 and his death did take place about 1½ day ago, due to hemorrhage and shock as a result of following ante-mortem injuries.

(1) Fire-arm wound of entry - 4 cm. X 4 cm. X cavity deep on left back scapular region. No blackening. Direction Anterior and Horizontally.

(2) Multiple fire-arm wounds of entry on the left back below the inf. Angle of left scapula - all over each measuring 1/4 x 1/4 cm. X some were tissue deep, some were cavity deep. No blackening. Direction Anterior and horizontally.

(3) Multiple fire-arm wounds of entry - each measuring 1/4 x 1/4 cm. - some were skin deep and some were muscle deep on the outer surface of the left arm lower part and fore-arm - upper part. Five small pellets were recovered from the muscle. Direction laterially, medially and horizontally.

(4) Fire-arm wound of entry 1/4 x 1/4 cm. X skin deep on the front and middle part of right thigh.

All the four injured Suleman, attar, Lal Shah & Km. Hajra have sustained multiple gun shot injuries resulting in loss of one eye of Sattar. The details of their injury reports have been mentioned in impugned judgment and we do not find it any need to reproduce those injury reports.

Learned counsel for appellants contended that there is no whisper of any enmity and the appellants and their associates may have no motive to commit the incident in question causing death of Allah Raji and injuries to first informant and others in the midnight; that since the accused-appellants are residents of nearby villages and were previously known to prosecution witnesses, they could not have committed the incident in question under any imagination, without covering their faces and concealing their identities; that the incident in question appears to be an incident of house-breaking in the midnight punishable u/s 460 of I.P.C., wherein the miscreants when failed to take away any valuables, would have made fires resulting in death of Allah Raji and injuries to four persons; that since the miscreants could not be identified in the darkness of night, the first informant has falsely implicated the accused persons on the basis of suspicion and enmity.

Per contra, A.G.A. submitted that motive lies in the mind of accused persons and the prosecution may not be expected to give exact details of motive behind the crime; that motive looses its importance in cases based on ocular evidence; that there was sufficient light of lantern and torches on the spot to identify the miscreants, belonging to nearby villages, by the injured persons; that a person conceals his identity only in cases where he feels apprehension upon disclosure of his identity and sometimes the miscreants intentionally do not conceal their identity so that terror may be created in the minds of victims and they may not dare to depose against them.

Undisputedly the incident in question occurred in the night of 27.5.1981 and the same day the marriage party of Puttan, the brother of first informant Suleman had returned from district Mainpuri. At the time of marriage, heavy amount in cash as well as valuables viz., ornaments of bride, and relatives are bound to be there at home of marriage as the bride also brings various valuable items. Under the circumstances, the possibility of committing lurking of house-trespass and house-breaking by night, with an intention to commit theft by miscreants may not be ruled out.

According to prosecution evidence on record, in the midnight of 27.5.1981 when there was a storm/Andhi, various persons of family woke up, assembled in courtyard/verandah and were talking with each other by turning the lantern on, and upon seeing certain persons by the side of southern lower wall of their courtyard and suspecting them to be miscreants by the time they approached upto the wall, four miscreants came inside the courtyard by scaling the wall, while one on wall was hit with lathi by Allah Raji, and fell on the other side of the wall.

There is no whisper of enmity of first informant with any of the accused appellants from either side, so as to form a motive i.e. for committing murder of Allah Raji and injuries to others and vice versa for falsely implicating the accused-persons. The trial court has rightly disbelieved the vague suggestions put to P.W.-2 Suleman with regard to alleged enmity. Suleman, P.W.-2 in his statement on oath has fully corroborated the allegations made in F.I.R. in very natural manner.

P.W.-3 Sattar has also corroborated the occurrence in question as well as sustaining of injuries by him resulting in loss of his one eye as well as injuries to first informant Suleman, his father, Lal Shah and daughter Km. Hajra and death of Allah Raji due to fatal gunshot injuries caused by accused persons.

P.W.-3 Sattar has stated that he could not identify the miscreants and upon being declared hostile, in his cross examination by State, has fully corroborated the entire incident as well as his statement under section 161 Cr.P.C. and has stated that due to terror and apprehension of accused persons he has left the village and is not daring to state the true facts correctly. P.W.-4 Lal Shah the 65 years old father of P.W.2 Suleman and P.W.3 Sattar has also corroborated the occurrence in question as well as sustaining of gunshot injuries by him. On his statement that he could not identify the miscreants, he was also declared hostile. The child witness P.W.-5 Km. Hajara, aged about 10 years has also corroborated the occurrence in question and sustaining of injuries to herself as well as her Chacha, father and Phupha and death of Allah Raji due to injuries sustained in the incident. It is fully proved from the evidence on record that there was sufficient light on the spot in which the miscreants were duly and correctly identified as they belonged to neighbouring village and were previously known to prosecution witnesses.

The statements of P.W.-3 and P.W.-4 show that they were under apprehension of accused persons, due to loss of an eye of P.W.-3, the son of P.W.-4, and leaving their village had also shifted to another village. Under such apprehension from accused persons, their refusal to name accused persons is quite natural, and justified by which the prosecution case does not get adversely affected particularly when not only P.W.-3 fully corroborated the prosecution case, reiterated correction of his statement under Section 161 Cr.P.C. but even PW.-4, his old father has also reiterated his injuries and P.W.-5 a child witness has also identified the accused-persons as the miscreants of the incident in question. It is also clear that P.W.3 and P.W. 4 who were declared hostile, hesitated in identifying culprits before court out of fear accused persons and yet supported the prosecution case. It is pertinent to mention that the P.W.-2 to P.W.-5 all are injured witnesses P.W.-2 & P.W.-3 are real brothers, P.W.-4 is their father and P.W.-5 is daughter of P.W.-3 while deceased Allah Raji was brother-in-law of P.W.-2 & P.W.-3, son-in-law of P.W.-4 and Phupha of P.W.-5.

It is settled principle of law that the evidence of a hostile witness, which supports the other prosecution evidence, may be accepted for the purpose of corroboration. In the case of Balu Sonba Shinde vs. State of Maharashtra, AIR 2002 SC 3137 the Apex Court has held that

"Evidence of hostile witness need not be rejected ipso facto on that count. Parties can take advantage of advantageous portions therein. However, court has to be extremely cautious & circumspect in such acceptance."

In the case of Paramjeet Singh vs. State of Uttarakhand AIR 2011 SC 200, all eye witnesses including injured witnesses turned hostile and the Apex Court held that :

"Evidence of hostile witnesses need not be rejected en-bloc but should be considered with caution - court should look for corroboration."

In the case of Paramjeet ibid, inspite of the fact that all eye witnesses including injured witnesses turned hostile and upon considering :-

(i) lodging of the prompt F.I.R. by injured incriminating the accused,

(ii) statements of all eye witnesses under Section 161 Cr.P.C. indicating accused,

(iii) postmortem and injury reports showing that accused caused many injuries, and

(iv) recovery of gun at the instance of accused,

The Apex Court upheld the conviction of accused holding that, since all eye witnesses who had indicated accused at initial stage turned hostile at trial - it cannot come in aid of accused.

In view of the evidence of four injured witnesses duly corroborated by the medical evidence on record, we find that it is fully proved from the prosecution evidence on record that there was sufficient light on the spot to identify the miscreants/ accused-appellants as well as the motive of theft/loot accused persons behind committing the criminal incident in question of house breaking by night. It is also proved from the evidence on record that during the incident in question of house breaking, by night, the accused persons caused multipe injuries to Suleman, Sattar, Lal Shah and Km. Hajra including grievous injuries to Sattar causing loss of his one eye and fatal injuries to Allah Raji resulting in his death.

The evidence on record shows that there was no enmity between accused-persons on one hand and the injured prosecution party, first informant, his brother, father or niece on the other hand. Even in case of some enmity, with first informant, possibility of accused persons attacking at his house in the midnight by scaling the wall there could have been no occasion for the accused to enter in the house of first informant at mid night to attempt on the life of first informant and others and commit murder of Allah Raji, a distant relative from outside, on the night of return of marriage party, is highly impossible and unnatural. It also indicates that the incident in question is of house breaking by night.

The accused-persons may not be having any motive or intentions to commit murder of Allah Raji (a relative from Aligarh) or to attempt on the life of first informant Suleman, his brother Sattar, father Lal Shah and niece Km. Hajra and vice versa the first informant, his father, brother etc. may also have no motive to falsely implicate the accused-persons for causing death of Allah Raji and injuries to them.

Upon careful analysis of statements of four injured-witnesses on record, we find that their statements are consistent and without any material contradictions. There is no discrepancy in prosecution evidence to discard their natural, truthful and trustworthy evidence confirming their presence on the spot at the time of occurrence. There are no material contradictions in the statements on oath of injured witnesses P.W.2, 3, 4 and 5 and the medical and documentary evidence on record fully corroborates their case. The incident in question is alleged to have occurred inside the house of first informant at midnight, on the same day when the marriage party of Puttan, the brother of first informant had returned from Mainpuri and various relatives were at home.

Before proceeding further we find it proper to reproduce the provisions of Sections 445, 446 & 460 of I.P.C. In verbatim, as under :-

"445. House breaking - A person is said to commit "house-breaking" who commits house-trespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter described; or if, being in the house or any part of it for the purpose of committing an offence, or, having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say:-

Firstly- If he enters or quits through a passage by himself, or by any abettor of the house-trespass, in order to the committing of the house-trespass.

Secondly- If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building.

Thirdly- If lie enters or quits through any passage which he or any abettor of the house-trespass has opened, in order to the committing of the house-trespass by any means by which that passage was not intended by the occupier of the house to be opened.

Fourthly- If he enters or quits by opening any lock in order to the committing of the house-trespass, or in order to the quitting of the house after a house-trespass.

Fifthly- If he effects his entrance or departure by using criminal force or committing an assault or by threatening any person with assault.

Sixthly- If he enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house-trespass.

446. House-breaking by night - Whoever commits house-breaking. after sunset and before sunrise, is said to commit "house- breaking by night".

460. All persons jointly concerned in lurking house-trespass or house-breaking by night punishable where death or grievous hurt caused by one of them If, at the time of the committing of lurking house-trespass by night or house-breaking by night, any person guilty of such offence shall voluntarily cause or attempt to cause death or grievous hurt to any person, every person jointly concerned in committing such lurking house-trespass by night or house-breaking by night, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

In view of evidence on record, we find force in the argument advanced by learned counsel for the appellants that the incident in question appears to be an incident of house-breaking by night by several persons. The prosecution has failed to prove that the accused persons formed an unlawful assembly and in prosecution of common object of such unlawful assembly committed death of Allah Razi, and attempted on the lives of Sattar, Suleman, Lal Shah and Km. Hajra but it is fully proved from the evidence on record, beyond any shadow of doubt that above incident was an incident of house-breaking by night, committed by accused-persons named in F.I.R. including the accused appellants and though they could not succeed in making any theft or loot but during the incident accused-appellants, Pratap, Masoom and Subedar or someone out of them by making fires caused death of Allah Razi, and caused grievous fire arm injuries to Sattar resulting in loss of his one eye and multiple fire arm injuries to first informant Suleman, his father Lal Shah and niece Km. Hajra and thus committed an offence under Section 460 I.P.C. punishable with imprisonment for life or with imprisonment of either description for a term, which may extend to ten years, and shall also liable to fine.

In view of the discussions made above, we are of the considered view that learned trial court has acted wrongly in not considering the evidence on record in right prescriptive and in holding the accused-appellants guilty for the offences under sections 148, 302/149 and 307/149 IPC, while there is no evidence on record to show that there was any enmity between the parties or the accused persons had any motive to cause death of Allah Razi a relative of first informant from another district Aligarh, or to attempt on the life of others and to cause injuries to them. It is also pertinent to mention that there was no evidence on record that the accused persons formed any unlawful assembly at mid night with common object of causing death of Allah Razi and attempting on the life of others causing injuries to them and commit the incident in prosecution of common object of such unlawful assembly. The prosecution has utterly failed to prove charges of offences u/s 148, 302/149 and 307/149 I.P.C. against the accused appellants by any reliable, cogent and independent evidence.

In view of discussions made above, we have come to the conclusion that all the accused-persons including accused appellants committed house breaking by night in the house of first informant and some of them at the time of committing house-breaking by night, voluntarily caused death of Allah Raji and in an attempt to cause death of others caused grievous hurt to Suleman, Sattar, Lal Shah and Km. Hajra and all of them being jointly concerned in committing house-breaking by night are liable to be held guilty of offence under section 460 IPC and sentenced accordingly.

The impugned judgment and order convicting the accused-appellants for the offences under sections 148, 302/149 and 307/149 IPC and acquitting three accused persons giving them benefit of doubt is wrong and incorrect and is liable to be set aside and conviction is liable to be altered u/s 460 I.P.C. Since the State, first informant or any of the victim is not reported to have filed any appeal against the acquittal part of impugned judgement acquitting the co-accused Sadiq, Sannu and Suraj Pal, despite finding them to be guilty of offence under section 460 IPC, they may not be convicted or sentenced for want of appeal by State, first informant or the victims. Accused-appellant Masoom Ali has died pending appeal so the conviction and sentence of surviving accused-appellants Pratap and Subedar u/s 148, 302/149 and 307/149 IPC is liable to set aside. The accused-appellants no.1 and 3 Pratap and Subedar are held guilty of committing offence of house-breaking by night with his associates and voluntarily causing death of Allah Raji and grievous hurt to Sattar, Suleman, Lal Shah and Km. Hajra by causing them fire arm injuries and are conviction for offence under section 460 IPC.

At the time of recording of their statements under Section 313 Cr.P.C. on 18.3.1983 accused-appellants Pratap and Subedar stated themselves to be in their twenties and thirties respectively and after 35 years laps since then they must be now running in their sixties and seventies.

Considering their ages, laps of 37 years since the incident of house breaking at night dated 27.5.1981, we find that though the offence is punishable with life imprisonment or imprisonment for a period which may extend to 10 years and fine, a sentence of imprisonment for a period of 7 years and fine of Rs.10,000/- would meet the ends of justice.

The appeal is allowed. The impugned judgement and order of conviction and sentence of surviving accused-appellants Pratap and Subedar under Sections 148, 307/149 and 302/149 I.P.C. is set aside and their conviction is altered to one under Section 460 I.P.C. And each of the surviving accused-appellant is sentenced with rigorous imprisonment for a period of 7 years and fine of Rs.10,000/- and in case of default in payment of fine with simple imprisonment for an additional period of 3 months.

The accused-appellants are on bail. Their bail bonds are cancelled and sureties are discharged. They are directed to surrender forthwith for undergoing the remaining period of sentence.

We appreciate the valuable assistance rendered by learned amicus curiae Shri Vijay Shankar Chaurasia, Advocate.

Let the lower court record be sent back to court below forthwith, along with a copy of the judgment, for ascertaining necessary compliance, if any.

Order Date : 18.08.2018

VS

Case :- CRIMINAL APPEAL No. - 915 of 1983

Appellant :- Pratap

Respondent :- State Of U.P.

Counsel for Appellant :- Mohan Chandra,Akhilesh Srivastava,J.P.Singh,Pulak Ganguly,Ram Pal Singh Rajput,Ratan Singh

Counsel for Respondent :- Govt. Advocate

Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Harsh Kumar,J.

Shri Vijay Shankar Chaurasia, Advocate was appointed as Amicus Curiae in this case.

Registrar General of this Court is directed to pay an honorarium of Rs.11,000/- to the learned amicus curiae for rendering effective assistance in the matter. The said amount be paid to him within two months.

Order Date :-18.08.2018

vs