Brij Pal And Another vs State Of U.P.
2019 Latest Caselaw 3772 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							Reserved on: 08.04.2019
 
							Delivered on: 30.04.2019
 

 

 
		 CRIMINAL APPEAL No. - 4002 of 2004
 

 
Appellant :- Brij Pal And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Apul Misra,Amit Singh Chauhan,L.S.Yadav,Madan Singh,Mohan Lal Singh,P.N. Misra,Sangam Lal Kesharwani A/C,Zafar Abbas
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Pankaj Naqvi,J.

Hon'ble Umesh Kumar,J.

(Delivered by Umesh Kumar, J)

1- This appeal has been preferred against the judgment and order dated 13.07.2004 in S.T.No. 164 of 2002 ( State Vs. Brijpal & another) convicting the appellants under Sections 302/34 IPC and sentencing them to undergo life imprisonment with a fine of Rs. 500/- each.

2- In brief, prosecution case is that (P.W.1) informant Guru Dayal lodged FIR stating therein that on the pairavi of appellant-Brij Pal, a Government School was constructed on the land of informant behind his house due to which, appellants were on inimical terms; 4 months prior to the incident, in Qasba Chandausi, the son of informant had fired at appellant-Brijpal; thereafter, there was enmity amongst them; on the fateful day at about 4.45 PM, while he along with his sons Kunwar Pal, Rohtash son of Rameshwar and Nem Singh son of Som Pal were going to the house of his elder brother at Naseer Pur through village Sikri and when they reached near Badaun chungi Bus adda, near the house of Chandresh Gupta, Advocate, accused Brij Pal, Siya Ram armed with country made pistol of 315 bore and 12 bore fired on the head of his son Kunwar Pal and then the accused fled away towards Kabir Gali; on account of fear, informant and other persons passing therefrom could not chase the accused. After receiving injuries, Kunwar Pal son of informant died; the dead body lay on the spot. On the said information, written report (Ex.Ka-1) was scribed by Chandra Pal. On the receipt of said report, police lodged first information report (Ex.Ka-2). G.D. entry in this respect was made at 5.30 PM in GD. No. 38(Ex.Ka-3). The SHO/P.W.6 recorded statements of Head Moharrir/P.W.3 and informant-Guru Dayal(P.W.1). Thereafter, inquest (Ex.Ka.5) was conducted by P.W.5/ the SI, under the supervision of P.W.6 . During inquest, a 12 bore country made pistol and 3 cartridges were recovered from the possession of deceased. Inquest prepared in the light of petromax. P.W.5 prepared other relevant police papers i.e. photo lash, challan lash, letters to RI and CMO, specimen seal (Ex.Ka 5 to Ex. Ka.10). Blood stained and plain earth was collected from the spot. Recovery memo (Ex.Ka-11) was also prepared. The dead body was handed over to the two named Constables for sending the same to the hospital for autopsy. Autopsy( Ex Ka.4) of the body of deceased was conducted by (P.W.4) P.W.4 the doctor. He found following injuries on the body of deceased;

1. Gun shot wound of entry 8 cm x 6 cm x brain cavity deep and right pinna. No blackening charring present.

2. Gun shot wound of entry 7 cm x 6 cm x brain cavity deep over right side occipital region of skull. Brain material is coming out from wound. No blackening and charring present.

3. Lacerated wound 1 cm x ½ cm x muscle deep over right side of fore head. Cause of death is shock and coma, as a result of ante mortem gun shot injury".

3- During investigation, The I.O/P.W.6 recorded statements of the witnesses, arrested the accused and prepared site plan (Ex.Ka-12) on the pointing out of informant and witnesses. After completion of investigation, charge sheet (Ex.Ka.13) has been submitted against the appellants.

4- Learned Trial Judge framed charges against the accused under Section 302/34 IPC. They denied their guilt and claimed trial.

5- In support of prosecution version, prosecution has examined 6 witnesses. P.W.1/informant Guru Dayal, and P.W.2/ Nem Singh are the eye witnesses of the occurrence. P.W.3/ Head Moharrir proved written report and check FIR (Ex.Ka-2 and 3). (P.W.4)/the doctor proved autopsy report (Ex.Ka.4). P.W.5/ the S.I.proved inquest (Ex.Ka-5) and other relevant papers,i.e. photo lash, challan lash,letters to RI and CMO and specimen seal (Ex.Ka-6 to Ex.Ka-10). P.W.6/ the I.O. who prepared site plan(Ex.Ka.12), submitted charge sheet( Ex. Ka.13) and proved the same.

6- Statements of the accused were recorded under Section 313 Cr.P.C. They denied the allegations.

7- No defence evidence has been adduced from the side of defence.

8- Heard Sri Sangam Lal Kesarwani, learned Amicus for the appellants and Sri S.R. Pandey, learned AGA on behalf of State.

9- Learned Amicus argued that deceased and his family members were having strong antecedents of criminal character and the ocular witnesses are not reliable; statements under Section 313 Cr.P.C of the accused was not properly framed and due to the said defect, conviction cannot be sustained.

10- Learned AGA opposed the assertions raised on behalf of appellants and argued that merely because the deceased was of a criminal character, acquittal of appellants cannot be made on this count alone. Moreover, during arguments, learned counsel for appellants has not shown any cogent reason showing as to what prejudice has been caused due to irregularity in recording the statements under Section 313 Cr.P.C. which vitiates the trial. The only short coming that proper questions were not put to the accused, cannot by itself a ground to vitiate the trial. The conviction and sentence recorded by learned Trial Judge is liable to be affirmed.

11- P.W.1/Guru Dayal-informant (father of deceased) is an eye witness of the occurrence. He stated that he along with his son Kunwar Pal, his cousing Nem Singh and Rohtash were going from village Ullah to the residence of his brother in Nasirpur. While passing through Sikri gate to Badaun Chungi, at about 4.45 PM, when they reached near the house of Gupta Vakil, accused Brij Pal and Om Pal who belong to his village came out from right side of gali (alley) having country made pistols in their hands. They came near his son Kunwar Pal and fired which hit on the head of his son; receiving fire arm injuries, Kunwar Pal fell down; each of the accused fired once and within 10 minutes, he died on the spot; the motive of the occurrence was that on their land, government school was constructed with the help of the accused and a case in that regard is pending in the Court of Munsif Bisauli, but no evidence has been brought on record to establish the said motive. he stated that written report(Ex.Ka-1) was scribed by one Chandra Pal on his dictation, read over and explained to him,upon which he put his thumb impression. In cross examination, he admitted that cases of criminal nature are pending against him and his son Kunwar Pal, but that cannot be a ground for committing the murder of deceased-Kunwar Pal. This witness categorically stated that his son received injuries of both fire shots in standing position. He denied that one 12 bore country made pistol and 3 cartridges were recovered from the body of deceased; he further stated that he disclosed the Investigating Officer, the place where deceased was standing and the place from where firing was made. He stated that he was 2 steps behind the deceased. After firing, he ran 5-10 steps but soon thereafter, he returned at the place of occurrence. Regarding manner of firing, he stated that both shots hit on the head of deceased, but he could not explain the distance from where both shots were fired. He stated that the accused were on the left of the deceased. This witness visualized the entire event and specifically narrated the manner, mode of firing, place of occurrence and death of deceased. Though, there are minor discrepancies in the evidence, but that strengthens the truthfulness of his statement. He is a rustic and an illiterate villager and therefore, it goes without saying that such rustic witness cannot be expected to state precisely the exact distance, direction from which he had witnessed the incident and the description of whole incident happened in few minutes and his evidence cannot be rejected.(see: State of U.P. Vs. Krishna Master 2010(5) ALJ 423(SC).

12- The argument of learned Counsel for the appellants regarding motive of incident and false implication also has no substance for the reason that when facts are clear, it is immaterial whether motive is proved or not. It is settled that to establish an offence of murder by an accused by direct evidence, motive is not required to be proved. Motive is something which prompts a man to form an intention. It can be formed even at the place of incident at the time of commission of crime. ( See: Bhimsing Vs. State (2015)4 SCC 281, Saddik Vs. State of Gujrat (2016)10 SCC 663 and Sanjeev Vs. State of Haryana (2015)4 SCC 387.

13- P.W.2/ Nem Singh, cousin of P.W.1 Guru Dayal, stated that he along with Kunwar Pal, Rohtash and Guru Dayal were going from village Ullah to Nasirpur; in the way when they reached near Badaun chungi (Sikri Gate), accused Brij Pal and Om Pal came and fired at Kunwar Pal, fell down and expired; P.W.1 and 2 went to the police station where P.W.1 lodged an FIR; they left Rohtash near the dead body; P.W.1 and accused belong to the same village. Kunwar Pal-deceased was his(p.W.1) nephew. He stated that he saw weapons in the hands of accused from 6-7 paces. He stated that accused Brij Pal was having 315 bore country made pistol and Om Pal was having 12 bore pistol. He stated that who fired first shot, he could not say but both the accused fired; he could not say whose shot hit where, but both the fires hit the deceased on head while he was in standing position; accused were about 6-7 paces away from the deceased; the deceased's face was towards north, whereas the accused fired from west side; when firing was made, he was 5-6 paces behind the deceased towards south. The manner, mode, weapon, place of occurrence has been established by this witness too. He is a natural and reliable witness. From a close scrutiny of the ocular witnesses of this case, we are of the view that the statements of eye witnesses are corroborated by medical testimony and under the explained circumstances, though these witnesses are relatives and partial witnesses, but their testimonies fully establish the guilt of accused on the touch stone of prosecution version. They are wholly reliable and trust worthy. The testimony of a witness in a criminal trial cannot be discarded merely because the witness is a relative or family member of the victim of the offence. In such a case, court has to adopt a careful approach in analyzing the evidence of such witness and if the testimony of the related witness is otherwise found credible accused can be convicted on the basis of testimony of such witnesses (see: Bhagwan Jagannath Markad Vs. State of Maharashtra (2016) 10 SCC 537 and Dhari & others Vs. State of U.P., AIR 2013 SC 308).

14- P.W.3/the Head Moharrir is a formal witness. He has proved written report (Ex.Ka-1), check FIR(Ex.Ka-2) and G.D. entry no.38 (Ex.Ka-3.).

15- P.W.4/ the doctor conducted post mortem. He proved post mortem report (Ex.Ka-4). In the internal examination, he found fracture in right temporal and occipital bone. He recovered one big metallic bullet and 12 small metallc pellets. He opined that death of deceased might have occurred a day earlier( on 1.1.2002) from the date of post mortem examination. He stated that injuries no. 1 and 2 were sufficient in ordinary course to cause death.

16- P.W.5/ the S.I. conducted inquest and prepared other relevant police papers. He also admitted the factum of recovery of a country made pistol and 3 cartridges from the body of deceased. He proved inquest report (Ex.Ka.5), photo lash, challan lash, letters to R.I. and CMO together with specimen seal (Ex.Ka-6 to Ex.Ka.10).

17- P.W.6/ the I.O. recorded statements of witnesses, visited place of occurrence, prepared site plan, collected evidence and after completion of investigation, submitted charge sheet(Ex. Ka. 13) in the Court.

18- In defence, D.W.1/ Chandra Pal, scribe of the tahrir has been examined. He stated that he is a practicing lawyer since 1995. On 1.1.2002, in the night at 10.00 PM, on the dictation of P.W.6/the I.O. he prepared tahrir in his office and has shown his name as scribe. He stated that tahrir( Ex.Ka.1) is the same tahrir which was written by him on the dictation of the SHO. Thereafter, SHO called a person named Guru Dayal who was sitting in the verandah of the police station, he put his thumb impression on the tahrir. In cross examination, he admitted that he visited the police station to meet some accused and stated that he was a lawyer at that time. Although, he is a lawyer, yet he does not know that on the dictation of Inspector, report should be written or not. He stated that he wrote the report in good faith knowing it to be correct . He did not receive any summon to appear before the Court. P.W.1 who dictated the tahrir, deposed in his examination that he dictated written report to Chandra Pal regarding the event and put his thumb impression on the same. This tahrir was presented in the police station at 5.30 PM and check FIR was prepared by P.W.3/the Head Moharrir and GD entry No.38 was incorporated. Subsequently, inquest was prepared on the place of incident from 6.30 to 8.30 PM. Under the above circumstances, statement of D.W. that he executed tahrir at 10.00 PM at night at the police station is neither reliable nor acceptable and this witness is totally unreliable witnesses trying to introduce fictitious circumstances only to extend benefit to the accused.

19- Learned counsel for the appellants vehemently argued that incriminating materials/questions were neither properly framed nor confronted to the accused under Section 313 Cr.P.,thus trial stands vitiated as prejudice has been occasioned.

20- From perusal of the statements under Section 313 Cr.P.C of the accused, it appears that the only question put to the accused was based on the statement of witnesses of fact, regarding the event and participation of the accused, other documents prepared during investigation had not been put to the accused under Section 313 Cr.P.C.

21- The power to examine the accused is provided in Section 313 Cr. P.C., which reads as under;

"313. The power to examine the accused is provided in Section 313 Cr.P.C. which reads as under:-

"313. Power to examine the accused.- (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-

(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:

Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2). No oath shall be administered to the accused when he is examined under sub- section (1).

(3). The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4). The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

(5). The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section."

22- The Apex Court in Wasim Khan Vs. The State of U.P. AIR 1956 SC. 400 and Bhoor Singh & Another Vs. State of Punjab AIR 1974 SC 1256 has held that every error or omission in compliance of the provisions of Section 342 of the old Cr. P.C( Section 313 of the new Code) does not necessarily vitiate the trial. The accused must show that prejudice has been caused or was likely to have been caused to him. Thus, it is clear that the omission to put any material circumstances to the accused does not ipso facto vitiate the trial and the accused must show prejudice and miscarriage of justice caused to him. In Paramjeet Singh @ Pamma Vs. State of Uttarakhand (2010) 10 SCC 439, it has been observed as under;

"Thus, it is evident from the above that the provisions of Section 313 Cr.P.C. make it obligatory for the court to question the accused on the evidence and circumstances against him so as to offer the accused an opportunity to explain the same. But, it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance, instead, he must show that such non-examination has actually and materially prejudiced him and has resulted in the failure of justice. In other words, in the event of any inadvertent omission on the part of the court to question the accused on an incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the court."

23- The question whether a trial is vitiated or not depends upon the degree of the error and the accused must show that non-compliance of Section 313 Cr.P.C has materially prejudiced him. Merely because of defective questioning under Section 313 Cr.P.C., it cannot be inferred that any prejudice has been caused to the accused, even assuming that some incriminating circumstances, in the prosecution case are left out. When prejudice to the accused is alleged, it has to be shown that the accused suffered some disability or detriment in relation to safeguard given to him under Section 313 Cr.P.C. The burden is upon the accused to prove the same.

24- We in the light of above legal position find that no doubt accused-appellants were confronted with only 3 questions relating to motive, nature and mode of occurrence including the time and the weapon used, to which there was only a bare denial. We do not approve of the manner of the recording of the statement under section 313 Cr.P.C. However, as stated above a trial cannot be vitiated, merely because some incriminating material was not confronted to the accused. The accused will have to establish some prejudice/miscarriage of justice which was occasioned on account of not being confronted with the incriminating material. In the present case, the accused had cross-examined all the witnesses. The accused-appellants were well aware of the case of prosecution and charges levelled against them. The formal documents such as FIR, charge-sheet, autopsy, inquest, F.S.L report were not only exhibited but witnesses were also cross-examined. Once accused cross-examined the prosecution witnesses on exhibited documents, then merely because the said documents were not confronted to the accused could at the most be an irregularity not occasioning any miscarriage or prejudice to the accused. It is not the case of defence that the formal documents were foreign to the accused or that he had no knowledge of the same.

25- Before parting it would be apposite to refer to the following citations referred by the learned Amicus -

(2013) 12 SCC 406 Sujit Biswas vs. State of Assam;

(2014) 10 SCC 270 Sukhjit Singh vs. State of Punjab; (2015) 1 SCC 496 Nar Singh vs. State of Haryana.

26- The case of Sujit Viswas (supra) is based on circumstantial evidence wherein a material evidence in the form of blood stains found on the undergarments of the accused had matched with that of the victim to which the accused was not confronted under section 313 Cr.P.C. The Apex Court set aside the conviction as the accused did not get the opportunity to explain as to how the blood stains of the victim landed on his undergarment. The said proposition will not hold good in the present case as it is a case of direct evidence where witnesses have established the mode, manner, nature, time, place of occurrence, weapon used, identity of the assailant.

27- The case of Sukhjit Singh (supra) was a case involving an offence under section 364 IPC but neither any prosecution witness alleged abduction of the victim nor any incriminating evidence relating to abduction was confronted to the accused. The Apex Court finding prejudice to the accused set aside the conviction. The said case too would also have no application on the facts of the present case.

28- The Apex Court in Nar Singh (supra) - laid down the following options available before the appellate court, when a plea of omission under section 313 Cr.P.C is raised -

30. Whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the appellate court, courses available to the appellate court can be briefly summarised as under:

(i) Whenever a plea of non-compliance of Section 313 Code of Criminal Procedure is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer;

(ii) In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits.

29- We are, thus, of the view that in the light of evidence on record no prejudice or miscarriage was ever occasioned to accused-appellants and the present case would squarely fall within the ambit of para-30(ii) of Nar Singh (supra). We reiterate that once the prosecution has established its case beyond a doubt, then merely because some questions/documents were not confronted (Exhibited) mentioned utsupra to accused, would not occasion any prejudice, thus there is neither any occasion to call upon the accused or remand the matter to trial court.

30- In view of above discussion, it is relevant to note that as per the prosecution evidence , there are two fire arm injuries on the head of deceased-Kunwar Pal and the two accused-appellants attributed firing of one shot each at the deceased, therefore, conviction recorded by learned Trial Judge is justified for commission of murder of deceased-Kunwar Pal.

31- Taking the cumulative effect of the evidence, we are of the view that the appeal has no substance and the same is, accordingly, dismissed. The appellants are on bail. Their bail bonds are cancelled. They be taken into custody forthwith to serve out remaining sentence.

32- The Registry is directed to transmit the original trial court's record to the court concerned for compliance of the judgment and to ensure that the appellants serve out the sentences, in accordance with law. Compliance report be sent to this Court, within a month.

33- We appreciate the assistance rendered by Sri Sangam Lal Kesarwani, learned Amicus in this case. Registrar General is directed to ensure payment of Rs. 15,000/- (Rs. Fifteen thousand only) to Sri Kesarwani as remuneration.

		                    (Umesh Kumar, J)    (Pankaj Naqvi, J)
 

 
Order Date :-   30.4.2019
 
Shahid