Harish Chandra And Others vs State Of U.P.
2019 Latest Caselaw 287 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

	Court No.54
 
Criminal Appeal  No. 5425 of 2007
 

 
1. Harish Chandra 
 
2. Dheeraj 
 
3. Titoo alias Pankaj Saxena                              ---- Appellants 
 
Vs. 
 
State of U.P. 						 ---- Respondent
 
								
 
	For Appellant		:  Sri Brijesh Chandra Kaushik, Advocate 					   Sri Anubhav Chandra, Advocate	
 
	For Respondent/State	:  Sri B.A. Khan, Addl. Govt. Advocate 
 

 
Hon'ble Pritinker Diwaker, J.

Hon'ble Raj Beer Singh, J.

Per: Pritinker Diwaker, J

(28.2.2019)

1. This appeal arises out of impugned judgement and order dated 26.07.2007 passed by Additional Sessions Judge, Court No. 9, Aligarh in Sessions Trial Nos. 1019 of 2004, 1021 of 2004 and 1020 of 2004 convicting accused- appellants, Harish Chandra, Dheeraj and Titoo alias Pankaj Saxena under Section 302 of IPC and sentencing them to life imprisonment and a fine of Rs. 5,000/- each, in default thereof, to undergo six months additional imprisonment.

2. As per prosecution case, deceased-accused Harish Chandra was initially tenant of one Anil Saxena from whom the said house was purchased by deceased Bachchan Babu Saxena in two parts. An eviction suit was filed by deceased Bachchan Babu Saxena against Harish Chandra and he used to ask him to vacate the house in question. Annoyed with the request of deceased, Bachchan Babu Saxena, on 24.08.2004 at about 4:45 PM, accused persons met the deceased and his son PW-1, Shravan Kumar in the market and there deceased-accused Harish Chandra asked the remaining two accused-appellants, namely, Dheeraj and Titoo alias Pankaj (sons of Harish Chandra) to kill the deceased. On 24.08.2004, Dheeraj and Titoo alias Pankaj both were carrying country made pistols with them, caused firearm injuries to the deceased and he immediately fell down resulting his instantaneous death. An attempt was also made to assault PW-1, Shravan Kumar but somehow he escaped. Further case of the prosecution is that the incident was also witnessed by PW-2, Ashok Kumar and some other witnesses, who have not been examined. On 24.8.2004 at 5:20 PM, FIR was lodged by PW-1, Shravan Kumar (son of the deceased) naming all the three accused persons under Sections 307 of IPC vide Ex.Ka-3.

3. Postmortem on the body of the deceased was conducted on 25.08.2004 by PW-3, Dr. S.K. Gupta vide Ex.Ka-2 and as per postmortem report, following two injuries were noticed on the body of the deceased:

1. L.W. (wound of entry) edges inverted size 2 cm x 1 cm root of neck a left side 2 cm above neck part of left clavicle laceration of great vessels of neck both side laceration of thoracic part upper region metallic bullet recorded from top of Rt. shoulder celuch sealed.

2. L.W. size 1 cm x 1 cm left side back of abdomen 2 cm lateral to mid line 8 cm above iliac crest left side poids passes to the wound of exit part of abdomen left side size 3 cm x 3 cm. 8 cm lateral to umbilicus at 3 O'clock position edges everted abdomen cavity fall of blood laceration of corrective and utestive seen.

4. According to autopsy surgeon, the cause of death of deceased was due to haemorrhage and shock as a result of ante-mortem injury.

5. From the possession of accused-appellants, Dheeraj and Titoo alias Pankaj, two country made pistols have been seized vide Ex.Ka-10, however, there is no ballistic expert report.

6. While framing charge, the trial Judge has framed charge against all the three accused-appellants under Sections 307/34, 302/34 of IPC in S.T. No. 1019 of 2004, whereas charges were also framed against accused-appellants, namely, Titoo alias Pankaj Saxena and Dheeraj Saxena under Section 25 of the Arms Act in S.T. Nos. 1021 of 2004 and 1020 of 2004 respectively.

7. So as to hold accused persons guilty, prosecution has examined eight witnesses and one defence witness has also been examined. Statements of accused persons were recorded under Section 313 of Cr.P.C in which, they pleaded their innocence and false implication.

8. By the impugned judgment, the trial Judge has acquitted all the accused-appellants under Section 307 of IPC, whereas accused-appellants Dheeraj and Titoo @ Pankaj have also been acquitted of the offence under Section 25 of the Arms Act, but has convicted all the accused persons under Section 302 of IPC. This appeal was preferred by all the three accused persons assailing the impugned judgment. However, during pendency of this appeal, accused-appellant, Harish Chandra has expired and copy of his death certificate has been produced before this Court, which is taken on record, therefore, appeal in respect of accused Harish Chandra is abated and is confined only in respect of accused-appellants, namely, Dheeraj and Titoo alias Pankaj.

9. Counsel for the appellants submits:

(i) that accused persons have been falsely implicated in the present case.

(ii) that PW-1, Shravan Kumar had not seen the actual occurrence and unfortunately deceased, Bachchan Babu was killed by some other persons but the appellants have been made scapegoat.

(iii) that number of litigations were pending between the deceased with other persons and it appears that the deceased had been killed by someone else but accused-appellants have been falsely implicated in the present case.

(iv) that PW-2, Ashok Kumar though has been cited as eye witness to the incident but has not seen any occurrence and this fact has been admitted by him.

(v) that medical report of the deceased does not support the prosecution case.

(vi) that on the same set of evidence, once the accused persons have been acquitted under Section 25 of the Arms Act and Section 307 of IPC, the same benefit should have been extended to them and they ought to have been acquitted under Section 302 of IPC as well.

(vii) that the appellants are real brothers, they are in jail since last 14 years and therefore, some leniency be shown to them.

10. On the other hand, supporting the impugned judgement, it has been argued by the State counsel:

(i) that the conviction of the appellants is in accordance with law and there is no infirmity in the same.

(ii) that even if, we ignore the statement of PW-2, Ashok Kumar, PW-1, Shravan Kumar appears to be reliable and trustworthy witness and his testimony cannot be discarded just because he happens to be the son of the deceased.

(iii) that medical report of the deceased duly supports the statement of PW-1, Shravan Kumar.

(iv) that there was an old enmity between deceased Bachchan Babu and deceased-accused Harish Chandra and this fact has not been disputed by anyone and an eviction suit was also pending.

(v) that a prompt FIR was lodged by PW-1, Shravan Kumar within 35 minutes of the incident and there was no time for him to cooked up a case against the accused persons and to lodge a false report.

11. We have heard learned counsel for the parties and perused the record.

12. PW-1, Shravan Kumar is the son of the deceased and the first informant in this case. He states that the house in question, where Harish Chandra was residing along with other accused persons, was purchased by his father from two different persons in two installments. An eviction suit was also pending between the deceased and deceased-accused, Harish Chandra and on account of the said dispute, there was quarrel between them. On 24.08.2004 at about 4:45 PM, when he and his father had gone to market, on the way, all the three accused persons met them, deceased-accused Harish Chandra called his two sons to kill the deceased and upon hearing the said command, accused Dheeraj and Titoo alias Pankaj took out their country made pistols and caused gunshot injuries to the deceased, as a result of which, he fell down, he (this witness) somehow escaped from the said incident. He states that upon hearing his cries, Abhishek, Manohar, Ashok (PW-2), Sanjay and other persons also reached there. His father was immediately taken to the police station, where on the basis of his written report, FIR was registered. In cross-examination but for minor contradictions, this witness remained firm and has reiterated that he saw the accused persons killing his father by causing firearm injuries.

13. PW-2, Ashok Kumar, is a cousin brother of PW-1, Shravan Kumar and has been produced as an eye witness to the incident. However, in paragraph no. 4 of his statement, states that after hearing the sound of firearm, when he reached to the place of occurrence, he saw his uncle Bachchan Babu Saxena in injured condition. In paragraph no. 5 of his statement, he states that by the time he reached to the place of occurrence, assailants fled away from the spot and he was informed by the persons gathered there that accused persons have killed his uncle.

14. PW-3, Dr. S.K. Gupta, conducted postmortem on the body of the deceased.

15. PW-4, Rajpal Gautam, recorded the FIR.

16. PW-5, Mahipal S. Yadav, is an Investigating Officer, who has duly supported the prosecution case.

17. PW-6, Amar Singh and PW-7, Lokpal assisted during investigation.

18. PW-8, Vivek Varshney, did initial part of investigation.

19. DW-1, Aditya Kr. Saxena, has stated that upon hearing sound of firearm, he reached to the place of occurrence and found the deceased lying in injured condition and that no one else was there. Upon his information, PW-1, Shravan Kumar, reached there and took the injured to police station on a Rickshaw.

20. Close scrutiny of the evidence makes it clear that on 24.08.2004, it is the accused-appellants Dheeraj and Titoo alias Pankaj, who caused firearm injuries to the deceased, resulting his instantaneous death. The incident has been witnessed by PW-1, Shravan Kumar, who has duly supported the prosecution case. Statement of Shravan Kumar has also been supported by the Autopsy Surgeon, who in his statement, has stated that two firearm injuries have been found on the body of the deceased. Most important aspect of the case is that within 35 minutes of the incident, FIR was lodged by PW-1, Shravan Kumar, naming all the three accused persons. There is no evidence on record to suggest that within 35 minutes of the incident, the false case was cooked up by Shravan Kumar against the accused persons. From the evidence, it also appears that relations between the deceased and that of accused family were not cordial and an eviction suit and a criminal case were also pending. The law is well settled that it is the quality of the evidence which is to be seen and not the quantity. Statement of Shravan Kumar appears to be reliable and trustworthy and we have no reason to disbelieve the same.

21. It is well settled principle of law that the evidence of an interested witness should not be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. All that the Courts required as a rule of prudence, not as a rule of law, was that the evidence of such witness should be scrutinized with a little care. It has to be realized that related and interested witness would be the last persons to screen the real culprits and falsely substitute innocent ones in their places. Indeed there may be circumstances where only interested evidence may be available and no other, e.g. when an occurrence takes place at midnight in the house when the only witnesses who could see the occurrence may be the family members. In such cases, it would not be proper to insist that the evidence of the family members should be disbelieved merely because of their interestedness. But once such witness was scrutinized with a little care and the Court was satisfied that the evidence of the interested witness have a ring of truth such evidence could be relied upon even without corroboration. 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. (See Anil Rai vs. State of Bihar (2001) 7 SCC 318; State of U.P. vs. Jagdeo Singh (2003) 1 SCC 456; Bhagalool Lodh & Anr. vs. State of U.P. (2011) 13 SCC 206; Dahari & Ors. vs. State of U.P. (2012) 10 SCC 256; Raju @ Balachandran & Ors. vs. State of Tamil Nadu (2012) 12 SCC 701; Gangabhavani vs. Rayapati Venkat Reddy & Ors. (2013) 15 SCC 298; Jodhan vs. State of M.P. (2015) 11 SCC 52)

The Supreme Court in the matter of Bur Singh and Anr. vs. State of Punjab, (2008) 16 SCC 65 has held that merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. Further, the Supreme Court in the matter of Sudhakar vs. State, AIR 2018 SC 1372 and Ganapathi vs. State of Tamil Nadu, AIR 2018 SC 1635 relying in its earlier judgments held as under:

"18. Then, next comes the question 'what is the difference between a related witness and an interested witness?. The plea of "interested witness", "related witness" has been succinctly explained by this Court that "related" is not equivalent to "interested". The 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. In this case at hand PW 1 and 5 were not only related witness, but also 'interested witness' as they had pecuniary interest in getting the accused petitioner punished. [refer State of U.P. v. Kishanpal and Ors., (2008) 16 SCC 73] : (2008 AIR SCW 6322). As the prosecution has relied upon the evidence of interested witnesses, it would be prudent in the facts and circumstances of this case to be cautious while analyzing such evidence. It may be noted that other than these witnesses, there are no independent witnesses available to support the case of the prosecution."

Relationship is not a factor to affect credibility of a witness. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. A witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive. A close relative cannot be characterized as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the 'sole testimony of such witness. (See- Harbans Kaur and another vs. State of Haryana, 2005 AIR SCW 2074; Namdeo vs. State of Maharashtra, 2007 AIR SCW 1835; Sonelal vs. State of M.P., 2008 AIR SCW 7988; and Dharnidhar vs. State of Uttar Pradesh and Others & other connected appeals, (2010) 7 SCC 759).

22. We find no substance in the argument of the appellants that PW-1, Shravan Kumar being interested witness, has falsely implicated the accused persons.

23. Taking the cumulative effect of the evidence, in our considered view, the trial court was justified in convicting the accused-appellants under Section 302 of IPC.

24. The appeal has no substance and the same is, accordingly, dismissed.

25. So far as accused-appellant no. 2, Dheeraj is concerned, he is already in jail and therefore, no further order is required in his respect. Accused-appellant no. 3, Titoo @ Pankaj Saxena was granted parole on 15.11.2018 with a direction to surrender before the trial court on 20.2.2019. His application for extension of time is pending and in the meanwhile, appeal itself has been heard finally.

26. Considering the facts and circumstances of the case, appellant no. 3, Titoo @ Pankaj Saxena, if has not surrendered, is directed to be taken in custody forthwith for serving the sentence as awarded by the trial court.

 
Dated: 28.02.2019			
 
AKK/AV
 
				(Raj Beer Singh, J)       (Pritinker Diwaker, J)