Ravindra Pandey And Others vs State Of U.P.
2018 Latest Caselaw 2044 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
In Chamber 
 

 
Case :- CRIMINAL APPEAL No. - 2089 of 1981
 

 
Appellant :- Ravindra Pandey And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- T.Rathore,Aishwini Kumar,B K Srivastava,Ganesh Shanker Srivastava,Harish Chandra Tiwari,K.K. Dwivedi,R.K. Srivastava,R.P. Dwivedi,Shyamal Narain,V.K. Chaturvedi,V.P. Srivastava
 
Counsel for Respondent :- D.G.A.,Ghanshyam Dubey
 

 
Hon'ble Rajesh Dayal Khare,J.

Hon'ble Rajiv Joshi,J.

Heard Sri V.P. Srivastava learned senior counsel assisted by Sri Aishwini Kumar Srivastava who states that he is appearing for the appellant No.3-Pappu @ Prem Prakash and for the appellant No.1, Sri Harish Chandra learned counsel is appearing.

Appellant No.2-Bajrangi Prasad and appellant Mahendra Pandey who had filed separate Criminal Appeal No. 2097 of 1981 which is connected with the present appeal, have since expired therefore, their appeal has been abated by this Court vide order dated 09.12.2005 which is on record in the order sheet of the case.

The present appeal is being argued on behalf of appellant No.1 Ravindra Pande and appellant No.3 Pappu Srivastava alias Prem Prakash.

Present appeal has been filed against the judgment and order dated 15.9.1981 passed by VI-Additional Sessions Judge Gorakhpur in Sessions Trial No. 100 of 1979 whereby the appellant No.1 has been convicted and sentenced to undergo imprisonment for life under Section 302 IPC and to undergo imprisonment of five years for the offence under Section 307 read with Section 34 IPC and the appellant No.3 has been convicted and sentenced to undergo imprisonment for life under Section 302 IPC read with Section 34 IPC and to undergo imprisonment of five years for the offence under Section 307 read with Section 34 IPC. All the sentences were directed to run concurrently.

It is contended by learned counsel for the appellants that the incident is alleged to have taken place on 09.12.1978 at 10.30 a.m., regarding which first information report was lodged on the same day at 11.15 p.m. at police station Rajghat district Gorakhpur and the distance of the place of occurrence from the police station is said to be 3 Kms.. Pursuant to lodging of the F.I.R. investigation was conducted which resulted in filing of charge sheet and as the appellants pleaded not guilty, they were put to trial.

Learned counsel for the appellants contends that the first informant of the case, Ram Prasad, is father of the deceased Jagdish and as per prosecution version when the deceased had gone out to have tea on 09.12.1978 at 10.15 a.m. from his house to a nearby shop, he was assaulted by the four appellants with knife and when the younger son of the informant namely Harish Chandra went to save his brother, accused Mahendra Pandey hurled bomb upon him, in which he was injured and subsequently Jagdish son of the informant died in which incident his brother Harish Chandra received injuries.

Learned counsel for the appellants contends that in the first information report four persons were named namely Pappu Srivastava son of unknown r/o Mohalla Balkati, Ravindra Pandey, Bajrangi and Mahendra Pandey. It is contended that when name of Pappu Srivastava was taken in the Court, he was addressed as Pappu Srivastava @ Prem Prakash for the first time therefore, identity of appellant No.3 is highly doubtful. It is next contended that only general role has been assigned to him as per the first information report while in the statement recorded under Section 161 Cr.P.C. and that in the statement recorded in the Court shows that he was said to be armed with Lathi and no overt act has been assigned to him of assaulting any person. It is next argued that there is no motive assigned to the appellant No.1 to have committed the alleged offence apart from the fact that he used to remain in company of the deceased and his brother and the allegation of assaulting the deceased by knife has been made on Ravindra Pandey and Bajrangi and Mahendra is said to have hurled bomb on the injured. The prosecution examined ten witnesses P.W.-1 father of the deceased and first informant of the case who is said to be an eye witness, P.W-2 Sri Narain Pandey Scribe of the F.I.R. who is also said be an eye witness, P.W.6 Harish Chandra injured brother of the deceased who is also said to be an eye witness and the remaining are the formal witnesses namely P.W.-3 Constable Ramdhir Singh who had taken the deceased body for post mortem, P.W.-4 Dr. Harihar Singh who conducted post mortem of the deceased, P.W.5 Dr. I.P. Singh who examined the injured and gave his injury report, P.W.-7 S.I. Parmanand Dubey who conducted the inquest, P.W.-8 Budhai Prasad Clerk of the C.M.O. Office who took certain documents to the same office, P.W.-9 Dip Chandra Tiwari and P.W.-10 Kali Charan Verma who recorded the first information report. Learned counsel for the appellants contends that only one defence witness namely Shiv Nath @ Vishwa Nath Prasad the tea shop owner, in front of whose tea shop, the alleged incident is said to have taken place, was examined.

Learned counsel for the appellants contends that in the first information report it has been mentioned that Sri Narain, Girish and Devi Prasad have also seen the incident but none of the aforesaid persons have been examined by the prosecution. Learned counsel for the appellants has drawn the attention of this Court to the injury report of the injured witness P.W.-6 Ex. Ka-3 and has contended that as per injury report, he was examined at 11.00 a.m. on 09.12.1978 wherein it has been recorded that he had himself presented before the Doctor for medical examination and the said medical examination was conducted prior to lodging of the F.I.R. It is further contended that as per said injury report all the injuries are said to have been caused by hard and blunt object and no blast injury is shown except injury No.5 for which X-ray was advised. It is contended that no X-ray of the injury was done which could have proved that the injured has sustained any blast injury and the cloth of the injured which were taken into custody were not sent for medical examination to authenticate whether there was any traces of gun powder or blast powder. It is thus, argued that the prosecution story that the injury was caused to the injured by bomb is totally false. It is argued that there is conflict between the medical evidence on record so far as the injuries are concerned as well as the contents of the F.I.R and the statement of the witnesses given before the court, therefore, it is contended that the appellants have been falsely implicated. Learned counsel for the appellants has next drawn the attention of this Court to the post mortem report of the deceased which is Ex. Ka-2 and has referred to page-11 to show that the small intestine of the deceased was found empty while the large intestine was found full. It is argued that the alleged incident is not a night incident and the incident is alleged to have taken place at 10.15 a.m. as alleged by the prosecution and in this regard learned counsel for the appellant contends that the deceased was engaged in the business of electrical fittings/electrical lights at marriage functions and other functions and it is contended that it appears that he was returning home late night on 09.12.1978 and as he was of suspicious character, he must have been done to death by somebody for which the appellants have been falsely implicated for the reason that the deceased and the injured were implicated by the appellant No.1 and Mahendra Pandey co-accused in the connected appeal and are real brothers in a case under Section 307 IPC in which subsequently, the deceased and the injured were bailed out.

It is argued that the deceased had enmity with number of persons however, it is again argued that for appellant No.-3 Pappu Srivastava there is no motive shown as there was no direct enmity of the said appellant with the deceased and the only reason of his implication was that he was friend of the deceased and injured.

It is argued that P.W.-1 and P.W.-2 are the chance witnesses as there was no reason for them to be present at the place of occurrence at the particular time and reference in this regard has been made to the site plan of the incident Ex. Ka-11 and has argued that the site plan does not shown any house of P.W.-1 and P.W.-2 near the place of occurrence, therefore, it is argued that their presence at the place of occurrence is highly doubtful. Learned counsel has further drawn the attention of this Court to the statement of P.W.-1 and has argued that no overt act has been assigned to the appellant No.3 and his role has been shown to be present at the place of occurrence although, there is continuous improvement in the contents of the F.I.R and the statement recorded under Section 161 and thereafter the statement before the Court. It is contended that even the cross examination of P.W.-1 at page-14 also shows that no injury was caused by Pappu. So far as appellant No.1 is concerned it is contended that he has been falsely implicated on account of enmity and there is material contradiction between the medical evidence as well as the oral evidence on record and also there is continuous improvement in the statement of the witnesses therefore, it is argued that no credibility can be placed on their testimony.

It is argued that even P.W.-2 who is stated to be an eye witness is a chance witness as it has been stated by him that he had gone to have tea at the time and place of alleged incident. It is contended that though, he is scribe of the F.I.R. he does not mention of the fact of catching hold of the deceased by the assailants and for the first time in his statement given before the court, said fact has been mentioned which is improvement. Learned counsel has further drawn the attention of this Court to page-39 and question No.14 and has argued that the said question and answer shows that the P.W.-2 is not an eye witness. He has also drawn the attention of this Court to page-42 paragraph-35 wherein it has been stated by the said witness that he knows the real name of Pappu and his father but he did not name him in the first information report which was lodged showing him to be a son of unknown, therefore, it is argued that testimony of P.W.-2 also cannot be relied upon. Learned counsel has further drawn the attention of this Court to the statement of P.W.-6 who is injured witness and his statement was recorded on 08.1.1981 after recording of the statement of P.W.-1 and P.W-2 and the Doctor and special reference has been made to page-55 paragraph-7 and 8 to authenticate the argument raised by him. Learned counsel has also argued that although, P.W.-1 had stated that the deceased had gone to work on 08.12.1978 alone but P.W.-6 in his statement had stated that he had also gone with him which itself shows material contradiction in the statement of the witnesses.

Learned counsel for the appellant has further drawn the attention of this Court to the statement of P.W.-4-Dr. Harihar Singh at page 48 and has stated that the Doctor has also opined that the deceased may have died between 8/9.2.1978 during midnight therefore, the suggestion of the defence that the deceased was done to death by somebody else for which the appellants have been falsely implicated is also authenticated by the said fact. Learned counsel has referred to page-49 and has argued that the Doctor has also stated that the injury could not have been caused by bomb as there was no X-ray report, therefore, no blast injury was caused on the person of the injured, therefore, the prosecution story cannot be relied upon.

Lastly learned counsel for the appellant has contended that the conduct of the informant as well as the P.W.-2 does not inspire confidence as it is stated that after commission of the alleged incident the informant instead of taking his injured son to the hospital preferred to get the F.I.R. scribed and lodged at the police station which action is highly unnatural and caste a suspicion on the prosecution version.

On the contrary, learned A.G.A. contends that it is a case of broad day light and it is a case of direct evidence. It is next contended that P.W.-1 and P.W.-2 cannot be said to be chance witness and their presence at the time and place of alleged incident is natural and probable, therefore, the argument as raised on behalf of the appellants cannot be justified. It is next contended that there is no improvement in the statement of the witnesses as the witnesses were answering those questions which was put to them which cannot be said to be an improvement. Learned A.G.A. further contends that the injured persons were sent to the hospital by the informant alongwith the ladies of the house and thereafter he got the F.I.R. scribed and lodged and his conduct is perfectly natural.

In the present case F.I.R. is said to have been lodged at 11.15 p.m. at police station Rajghat, district Gorakhpur for the alleged incident of the same day, which is said to have taken place at 10.30 p.m. and the distance of police station from the place of occurrence is shown to be 03 Kms. Prosecution story further reveals that the deceased, who had gone to have tea to a nearby shop from his house at around 10.15 p.m. on 19.12.1978, four nominated accused persons namely Pappu Srivastava, Ravindra Pandey, Bajrangi and Mahendra Pandey assaulted the deceased armed with knife and when the younger brother of the informant namely Harish Chandra tried to save his brother, co-accused Mahendra Pandey hurled bomb upon him on account of which Harish Chandra received injuries as argued on behalf of the appellants that in the first information report Pappu Srivastava was also named but when his name was taken in the Court he was addressed as Pappu Srivastava @ Prem Prakash for the first time, therefore it is contended that the identity of Pappu Srivastava (appellant No.3) became highly doubtful and that he is shown to be armed with Lathi and no overt act has been assigned to him of assaulting any person nor he had any motive for committing the alleged offence, therefore, it was argued that he has been falsely implicated.

Appellant No.1 Ravindra Pandey, as contended, had also no motive to commit the offence and that he was implicated only because he used to remain in the company of the deceased and his brother. Facts of the case also reveal that the assault made on the deceased by knife is said to have been made by Ravindra Pandey and Bajrangi and Mahendra Pandey is said to have hurled bomb on Harish Chandra. Facts also reveal that P.W.-1, father of the deceased, P.W.-2 Narain Pandey, scribe of the F.I.R and Harish Chandra brother of the deceased are all said to be the eye witnesses of the alleged incident. Facts further reveal that the injured Harish Chandra was examined at 11.00 a.m. on 09.12.1978 as per injury report of the injured witness P.W-6(Ex Ka-3) which also contains a recital to the effect that the injured himself had presented himself before the Doctor for medical examination and the aforesaid fact shows that the medical examination of the injured was conducted prior to lodging of the F.I.R. It was also contended on behalf of the appellants that as per injury report of the injured, all the injuries on the person of the injured were caused by hard and blunt object and no blast injury was shown on his person except injury No.5 for which X-ray was advised, but no X-ray was done or was on record to authenticate that the injured had suffered blast injury even the clothes of the injured, which were taken into custody, were not sent for medical examination to authenticate whether there was any traces of gun powder or blast powder or had any burn holes on it, therefore, it is contended that the case of the prosecution that the injury caused to the injured was by hurling of bomb is totally falsified and further that there is gross contradiction between the medical evidence on record so far as the injuries are concerned and the contents of the F.I.R. and the statement of the witnesses given before the Court.

Perusal of the post mortem report (Ex. Ka-2 page 11 of the paperbook) shows that small intestine of the deceased was found empty while the large intestine of the deceased was found full, therefore, it was contended that at 11.00 a.m. it is highly improbable for the large intestine to be full and therefore, it was suggested that the deceased who was involved in the business of electrical fittings/electrical lights at marriage functions and other functions and it appears that he was returning home late at night on 09.12.1978 who was assaulted by somebody as the deceased was of suspicious character and was done to death for which the appellants are being falsely implicated because the appellant No.1 and Mahendra Pandey co-accused who are real brothers, had instituted a case under Section 307 IPC against the deceased and the injured, in which they were bailed out and therefore, they were having animosity with the appellants and thus, they have been falsely implicated.

Perusal of site plan (Ex. Ka-11) also shows that the houses of P.W.-1 and P.W.-2 are not situated near the places where the tea shop was situated where the alleged incident took place, therefore, it was contended on behalf of the appellants that presence of P.W.-1 and P.W.-2 both at the same time and place of occurrence is highly doubtful and they are only chance witnesses who are trying to falsely implicate the appellants, therefore, their testimony cannot be relied upon.

Law is settled on the point that the evidence of a witness cannot be discarded only on the ground that he is a related witness. But it is only rule of prudence, rule of caution that evidence of such witnesses is to be scrutinized with some extra caution. Once the Court is satisfied that the witness was present at the scene of occurrence and his evidence inspires confidence then the same cannot be discarded on the sole ground of relationship with the deceased.

Law is settled on the point that even if a witness is a chance witness or a related witness, even then his evidence cannot be discarded solely on the ground that he was a chance or a related witness. In a recent judgment in the case of Nagappan Vs. State (by Inspector of Police, Tamil Nadu) reported in (2014) 3 SCC (Cri) 660 Hon'ble the Apex Court in paragraph no. 10 has observed as under :-

"10. As regards the first contention about the admissibility of the evidence of PW 1 and PW 3 being closely related to each other and the deceased, first of all, there is no bar in considering the evidence of relatives. It is true that in the case on hand, other witnesses turned hostile and have not supported the case of the prosecution. The prosecution heavily relied on the evidence of PW 1, PW 3 and PW 10. The trial court and the High Court, in view of their relationship, closely analysed their statements and ultimately found that their evidence is clear, cogent and without considerable contradiction as claimed by their counsel. This Court, in a series of decisions, has held that where the evidence of "interested witnesses" is consistent and duly corroborated by medical evidence, it is not possible to discard the same merely on the ground that they were interested witnesses. In other words, relationship is not a factor to affect the credibility of a witness. (Vide Dalip Singh v. State of Punjab AIR 1953 SC 364 Guli Chand v. State of Rajasthan (1974) 3 SCC 698, Vadivelu Thevar v. State of Madras AIR 1957 SC 614, Masalti V. State of U.P. AIR 1965 SC 202, State of Punjab v. Jagir Singh (1974) 3 SCC 277, Lehna v. State of Haryana (2002) 3 SCC 76, Sucha Singh V. State of Punjab (2003) 7 SCC 643, Israr v. State of U.P. (2005) 9 SCC 616, S. Sudershan Reddy v. State of A.P. (2006) 10 SCC 163, Abdul Rashid Abdul Rahiman Patel v. State of Maharashtra (2007) 9 SCC 1, Woman v. State of Maharashtra (2011) 7 SCC 295, State of Haryana v. Shakuntla (2012) 5 SCC 171, Raju v. State of T.N. (2012) 12 SCC 701, Subal Ghorai v. State of W.B. (2013) 4 SCC 607."

On the point of chance witness reference may be made to the pronouncement of Hon'ble Apex Court in the case of Vikram Singh and others V. State of Punjab reported in (2010) 3 SCC 56 wherein Hon'ble Apex Court has cited paragraph 3 of its earlier pronouncement in the case of Rana Partap and Others V. State of Haryana reported in 1983 (3) SCC 327 which reads as under:-

"There were three eye witnesses. One was the brother of the deceased and the other two were a milk vendor of a neighbouring village, who was carrying milk to the dairy and a vegetable and fruit hawker, who was pushing his laden cart along the road. The learned Sessions Judge and the learned Counsel described both the independent witnesses as chance witnesses implying thereby that their evidence was suspicious and their presence at the scene doubtful..............

Their evidence cannot be brushed aside or viewed with suspicion on the ground that that they are mere chance witnesses'. The expression 'chance witnesses' is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are 'chance witnesses' even where murder is committed in a street is to abandon good sense and take too shallow a view of the evidence."

Reference may also be made to the pronouncement of Hon'ble Apex Court in the case of Thangaiya V. State of Tamil Nadu reported in (2005) 9 SCC 650 and the Hon'ble Apex Court has observed in para 8 which is reproduced as under:-

"Coming to the plea of the accused that PW-3 was 'chance witness' who has not explained how he happened to be at the alleged place of occurrence, it has to be noted that the said witness was an independent witness. There was not even a suggestion to the witness that he had any animosity towards the accused. In a murder trial by describing the independent witnesses as 'chance witnesses' it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. 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 passersby 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."

For what has been stated, it is clear that statement of interested or chance witness cannot be brushed aside merely because of the fact that they are interested witness or chance witness if their statement inspires confidence and their statement is to be viewed with caution, perusal of which may lead to only one conclusion of guilt of the accused persons.

However, from the facts and evidence on record in the present case, it is apparent that there are contradictions and improvement in the contents of the F.I.R. and the statement of the witnesses of fact recorded before the Court. It will not be out of place to again mention that the injured witness, brother of the deceased P.W.-6 was medically examined even prior to lodging of the F.I.R. and the injuries which were found on the person of the injured were not indicative of the fact that he sustained any blast injury. The factum that the clothes of the injured was not even sent for chemical analysis to authenticate whether there was any gun powder or blast powder or burn holes on the same, is also indicative of the same fact, which again cast a shadow of doubt upon the testimony of the witnesses of fact who claim themselves to be the eye witness of the incident. P.W.-2 who is scribe of the F.I.R. has stated that he knew the real name of Pappu alongwith his parentage (referred to page 42 paragraph-35) but why he did not name parentage of said Pappu in the F.I.R. is not known nor explained, which again cast a shadow of doubt on the testimony of the said witness.

There is material contradiction in the statement of P.W.-1 and P.W.-6 inasmuch as the P.W.-1 had stated that the deceased had gone to work on 08.12.1978 alone but P.W.-6 in his statement before the court, had stated that he had gone alongwith P.W.-1 to work on the said date. Even the timing of death of the deceased is put under a cloud as P.W.-4 Dr. Harihar Singh, who had opined that he may have died on 8/9.12.1978(Page 48) is also indicative of the fact that time of death of the deceased as recorded in the F.I.R. may not be correct.

Perusal of the F.I.R. and the statement of the witnesses also further reveal that there is continuous improvement made by them in the statement recorded under Section 161 Cr.P.C. and the statement given before the Court.

Perusal of statement of P.W.-2 who is alleged to be a chance witness, shows that he had stated that he had also gone to have tea at the same time and place of occurrence and he is also scribe of the F.I.R. but he does not mention anything about catching hold of the deceased by the assailants but in his statement given before the Court this fact was mentioned for the first time, which is improvement made by him.

Perusal of page 39 question No.14 would also reveal that P.W.-2 may not be an eye witness and also perusal of page-42 paragraph-35 would show that the said witness had stated that he knows the real name of Pappu and his father but he did not name his parentage in the F.I.R. thus it is contended on behalf of the appellants that the testimony of the said witness cannot be relied upon and is liable to be brushed aside.

Perusal of statement of P.W.-1 and P.W.-6 so far as P.W.-1 had stated that the deceased had gone to work alone on 08.12.1978 but P.W.-6 in his statement had stated that he had gone with P.W.-1 to work on the said date which is also gross contradiction, which cast a shadow of doubt upon the veracity of the statement made by other witness.

Contention as raised by the counsel for the appellant that the statement of P.W.-4 Dr. Harihar Singh at page-48 shows that the Doctor had opined that the deceased may have died between 8-9.12.1978 during midnight also is suggestive of the fact that the deceased was done to death by somebody else for which the appellants are being falsely implicated.

Aforesaid material contradictions, delay in lodging the F.I.R. improvements in the statement of the witnesses, prosecution failing to establish that the injuries sustained by the injured were blast injury, his medical examination was done prior to lodging of the F.I.R. and other facts which have been detailed above, creates doubt on the prosecution version and therefore, it can be said that the prosecution has failed to prove the guilt of the appellants beyond reasonable doubt for which benefit of doubt needs to be given to the surviving appellants.

Since the prosecution has failed to prove the guilt of the surviving appellant No.1 and 3 beyond reasonable doubt, therefore, we are of the considered opinion that the judgment and order of conviction impugned cannot be sustained and is liable to be set aside.

Accordingly the judgment and order impugned is hereby set aside and the appeal stands allowed.

The appellant, if in jail, be released forthwith if he is not wanted in any other case.

No order as to costs.

Order Date :- 21.8.2018

faraz