Ved Pal vs State Of U.P.
2019 Latest Caselaw 920 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
(Judgement reserved on 13.2.2019)
 
(Judgement delivered on 11.3.2019)
 

 
Court No. - 43
 

 
Case :- CRIMINAL APPEAL No. - 4883 of 2004
 

 
Appellant :- Ved Pal
 

 
Respondent :- State Of U.P.
 

 
Counsel for Appellant :- G.P. Dikshit,F.N. Duby,N.K.Sharma,Sukrampal,Vinay Saran
 

 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Pankaj Naqvi,J.

Hon'ble Umesh Kumar,J.

(Delivered by Hon.Pankaj Naqvi,J)

This criminal appeal is preferred against the judgment and order dated 10.9.2004 passed by the Additional Sessions Judge, Court No.8, Muzaffar Nagar in S.T. No.643 and S.T No. 642 both of 2001 (Case Crime Nos.181 and 212 both of 2001) convicting/sentencing appellant for life under Section 302 IPC with fine of Rs.10,000/- and a default sentence of 3 years; under section 25 Arms Act to 1 year R.I. All sentences were to run concurrently.

1. The prosecution case in brief is that the accused had borrowed money from the father of informant (P.W.1), a year prior to the occurrence, latter used to insist for repayment but the amount remained unpaid. The accused-appellant went to jail in some other case, was released 7-8 days prior to the occurrence. The father of informant again insisted for his money. On 31.3.2001 at about 12.15 PM, accused-appellant came to the house of P.W-1, in presence of his Mother, Bhabhi-Chhoti (P.W-2), guest-Mukesh (P.W-3) and one Suresh Pal threatened the father of informant as to how he insisted for return of the amount, as no one ever dared to do so, the accused took out a country-made pistol from his waist, fired a shot at the father of informant, accused fled from the scene, father (victim) was taken to the District Hospital from where he was referred to Meerut but he succumbed on way. The body kept at District Hospital, Muzaffar Nagar.

2. On above allegations a written report (Exbt Ka-1) scribed by Gram Pradhan-Satyaveer, came to be submitted at the police station at a distance of 6 kms which became a basis for registering an F.I.R as Case Crime No.181/2001 under Section 302 IPC at 3.35 PM same day.

3. P.W-8 is the Sub Inspector who carried out the inquest (Exbt Ka-8) of the deceased at the hospital prepared other police papers. He testified that one Madan Lal was the I.O, in the case who is no more but is familiar with his hand writing. The deceased I.O, commenced investigation on 31.3.2001 and at the instructions of P.W-1/the informant prepared a site plan (Exbt Ka-13), collected bullet from the scene, prepared a memo (Exbt Ka-15) under his signature apart from conducting other investigational formalities. During investigation at the pointing out of accused-appellant he recovered the offending weapon from a box in his house, on 17.4.01 at 9.30 PM, memo (Exbt Ka-2), duly authenticated in respect of which an F.I.R, as Case Crime No.212/2001 under section 25 of the Arms Act came to be registered on 17.4.2001 at 11 PM.

4. The trial court was of the view that the eye-witnesses (P.W-1,2 and 3) are reliable, sole fire-arm injury is in tandem with the oral account, FIR is prompt and D.W-1 is wholly unreliable convicted the accused-appellant as above.

5. We have heard Shri Vinay Saran, learned Amicus, assisted by Sri Pradeep Kumar Mishra, and Sri A.N. Mulla, the learned A.G.A.

Learned Amicus raised the following contentions:-

(i) F.I.R is ante-timed and manipulated.

(ii) No independent witness is examined.

(iv) There are material contradictions in the testimony of eye-witnesses discrediting the case of prosecution.

(v) Report under section 157 Cr.P.C was belatedly despatched.

(vi) Recovery of country made pistol is doubtful.

6. Learned A.G.A opposed the submissions.

7. An ante-timed F.I.R is the one which is lodged not on the date and/or the time, which it purports to have been lodged. P.W-1 is rustic and illiterate. Testimony of such a person will have to be evaluated giving some reasonable latitude. P.W-1 is the informant. His father is reported to have been killed by the appellant on 31.3.2001 at around noon. He took his father (victim) to the District Hospital. While P.W-1 was at hospital, he came across one S.I, with whom he shared the identify of one assailant. P.W-1 was candid to admit that on the basis of a disclosure as to the identify of the assailant made by him, the S.I, prepared a report but he was neither aware as to the content of the report nor did he append his thumb to any such report. We lest not forget that P.W-1 is rustic. Thus the contention of the learned counsel for the appellant that a report was submitted to the S.I at the hospital is neither established nor corroborated from any other evidence on record. On the contrary P.W-1 stated that the F.I.R (Exbt ka-3) was scribed by one Satyaveer, a Pradhan, read over to him, thereafter he appended his signatures, and submitted at the police station on 3.3.2001 at about 3.35 P.M. P.W-6 is the constable who on 31.3.2001 prepared a check F.I.R No.149 at 3.35 P.M under his signatures. Thus registration of the F.I.R on the date and time alleged by prosecution stands authenticated. Merely because the S.I arrived at the hospital, obtained information as to the identity of the assailant would not mean that the F.I.R was an outcome of deliberations and consultation.

8. A perusal of site plan (Exbt Ka-13) indicates that at point A two cots were laid over which deceased, P.W-1, P.W-3, wife of the deceased and one Suresh Pal were sitting. Point B is the place where P.W-2/bhabhi of P.W-1 was drawing water. Point C is the place from where accused fired a shot at the victim at point D as the latter came out at the call of the accused. It has come in evidence that apart from aforesaid persons no outsiders were present to witness the occurrence. Considering the evidence of the prosecution that but for the altercation between the victim and the accused assailant, it was a case of hit and run as the accused after firing a single shot at the victim fled from the scene. The accused resides in the same vicinity. Ordinarily in a rural scenario outsiders are reluctant to become a privy to one faction or the other else they are blamed for taking sides, more-so when it was a private dispute between the victim and the accused.

9. We have carefully examined the testimony of P.W-1. We find that he has truthfully disclosed that around noon while they were sitting inside their house at point D of the site plan, accused-appellant came at their doors, started abusing the victim, who went to point D of the site plan, thereafter it was only upon the sound of fire shot P.W-1 along with others rushed to the doors to see that his father was lying injured but the accused had fled from the scene.

10. P.W-2 claims to have witnessed the position of the accused at point D and fall of the deceased at point C, from point B where she was drawing water, involving the use of fire-arm shot from the hands of accused. She did make an effort to catch hold the accused but the accused threatened her with fire-arm injuries, she let the accused go. She remained firm during cross examination in so far witnessing the occurrence and identity of assailant was concerned.

11. P.W-3 the son-in-law of the deceased, arrived a day earlier. He too was sitting along with the victim and others in the house at point A, when the accused arrived at the doors. During cross-examination he conceded that the victim disclosed to him that the accused appellant after firing a shot at him fled away. P.W-1 and 2 were not disclosing that the deceased had confided in either of them as to the identify of assailant. Against this backdrop statement of P.W-3 appears to be exaggerated. We are not oblivious that a witness has a tendency to exaggerate. On this ground alone we cannot discredit his entire testimony.

12. The Apex Court in Gajoo vs. State of Uttarakhand (2012) 9 SCC 532 has held as follows:

11. We are not impressed with this argument. The appreciation of evidence of such related witnesses has been discussed by this Court in its various judgments. In the case of Dalip Singh v. State of Punjab[(1954 SCR 145], while rejecting the argument that witnesses who are close-relatives of the victim should not be relied upon, the Court held as under:-

"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

12. Similar view was taken by this Court in the case of State of A.P. v. S. Rayappa and Others [(2006) 4 SCC 512]. The court observed that it is now almost a fashion that public is reluctant to appear and depose before the court, especially in criminal cases and the cases for that reason itself are dragged for years and years. The Court also stated the principle that, "by now, it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or for some other reasons."

We on above parameters find eye-witnesses wholly reliable.

13. The learned counsel for the petitioner argued that there are material contradictions in the testimonies of eye-witnesses rendering them unreliable. We are not impressed with this argument as after analysing the testimonies of eye-witnesses, we find that although there are some contradictions but they are not affecting the basic prosecution case. No prosecution case is ever foolproof. Reliance may be placed on a decision of the Apex Court in Shamim vs. State (GNCT of Delhi) (2018) 10 SCC 509 wherein it has been held as under:-

12. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole inspires confidence. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error without going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/Trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it.

14. Section 157 of the Code postulates that upon receipt of an information of the cognizable offence the I.O is to forthwith send a report to the jurisdictional magistrate. This provision not only acts as a procedural safeguard to check an ante-timed report, control over police authority but also keeps the magistrate informed and updated of investigation of the cognizable case, so that if required it may also issue appropriate directions. Merely because a special report was despatched delayed could not be a ground ipso facto to discredit the entire prosecution case. Such a plea will have to be evaluated in the light of totality of the evidence on record.

15. The law on Section 157 Cr.P.C is no longer res- integra.

The Apex Court in State of U.P. Vs. Gokaran (1984) Supp SCC 482 has held as under:-

12. As regards the last circumstance, it is true that the special report was received by the District Magistrate on 29th March but it is not as if every delay in sending such special report to the District Magistrate under Section 157 Cr.P.C. necessarily leads to the inference that the F.I.R. has not been lodged at the time stated or has been ante-timed or ante-dated or that the investigation is not fair and forthright. As has been pointed out by this Court in Pala Singh and Am. v. State of Punjab (1973) 1 SCR 964 the relevant provision contained in Section 157 Cr.P.C. is really designed to keep the Magistrate informed of the investigation of a cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction under Section 159 Cr.r.P.C.; but if in a case it is found that the F.I.R was recorded without delay and the investigation started on that F.I.R. then however improper or objectionable the delayed receipt of the report by the Magistrate concerned that cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.

The Apex Court in State of Rajasthan vs. Daud Khan (2016) 2 SCC 607 held as under:-

26. The interpretation of Section 157 of the Code of Criminal Procedure is no longer res integra. A detailed discussion on the subject is to be found in Brahm Swaroop v. State of U.P. (2011) 6 SCC 288 which considered a large number of cases on the subject. The purpose of the "forthwith" communication of a copy of the FIR to the Magistrate is to check the possibility of its manipulation. Therefore, a delay in transmitting the special report to the Magistrate is linked to the lodging of the FIR. If there is no delay in lodging an FIR, then any delay in communicating the special report to the Magistrate would really be of little consequence, since manipulation of the FIR would then get ruled out. Nevertheless, the prosecution should explain the delay in transmitting the special report to the Magistrate. However, if no question is put to the investigating officer concerning the delay, the prosecution is under no obligation to give an explanation. There is no universal rule that whenever there is some delay in sending the FIR to the Magistrate, the prosecution version becomes unreliable. In other words, the facts and circumstances of a case are important for a decision in this regard.

27. The delay in sending the special report was also the subject of discussion in a recent decision being Sheo Shankar Singh v. State of U.P. (2013) 12 SCC 539 wherein it was held that before such a contention is countenanced, the accused must show prejudice having been caused by the delayed dispatch of the FIR to the Magistrate. It was held, relying upon several earlier decisions as follows:

(SCC pp. 549-50, paras 30-31)

30. One other submission made on behalf of the Appellants was that in the absence of any proof of forwarding the FIR copy to the jurisdiction Magistrate, violation of Section 157 Code of Criminal Procedure has crept in and thereby, the very registration of the FIR becomes doubtful. The said submission will have to be rejected, inasmuch as the FIR placed before the Court discloses that the same was reported at 4.00 p.m. on 13-6-1979 and was forwarded on the very next day viz. 14-6-1979. Further, a perusal of the impugned judgments of the High Court as well as of the trial court discloses that no case of any prejudice was shown nor even raised on behalf of the Appellants based on alleged violation of Section 157 Code of Criminal Procedure. Time and again, this Court has held that unless serious prejudice was demonstrated to have been suffered as against the accused, mere delay in sending the FIR to the Magistrate by itself will not have any deteriorating (sic) effect on the case of the prosecution. Therefore, the said submission made on behalf of the Appellants cannot be sustained.

31. In this context, we would like to refer to a recent decision of this Court in Sandeep v. State of U.P. (2012) 6 SCC 107 wherein the said position has been explained as under in paras 62-63: (SCC p. 132)

62. It was also feebly contended on behalf of the Appellants that the express report was not forwarded to the Magistrate as stipulated Under Section 157 Code of Criminal Procedure instantaneously. According to the learned Counsel FIR which was initially registered on 17-11-2004 was given a number on 19-11-2004 as FIR No. 116 of 2004 and it was altered on 20-11-2004 and was forwarded only on 25-11-2004 to the Magistrate. As far as the said contention is concerned, we only wish to refer to the reported decision of this Court in Pala Singh v. State of Punjab (1972) 2 SCC 640 wherein this Court has clearly held that (SCC p. 645, para 8) where the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the court then, however improper or objectionable the delay in receipt of the report by the Magistrate concerned be, in the absence of any prejudice to the accused it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.

63. Applying the above ratio in Pala Singh to the case on hand, while pointing out the delay in the forwarding of the FIR to the Magistrate, no prejudice was said to have been caused to the Appellants by virtue of the said delay. As far as the commencement of the investigation is concerned, our earlier detailed discussion discloses that there was no dearth in that aspect. In such circumstances we do not find any infirmity in the case of the prosecution on that score. In fact the above decision was subsequently followed in Sarwan Singh v. State of Punjab (1976) 4 SCC 369, Anil Rai v. State of Bihar (2001) 7 SCC 318 and Aqeel Ahmad v. State of U.P. (2008) 16 SCC 372.

28. It is no doubt true that one of the external checks against ante-dating or ante-timing an FIR is the time of its dispatch to the Magistrate or its receipt by the Magistrate. The dispatch of a copy of the FIR "forthwith" ensures that there is no manipulation or interpolation in the FIR.2 If the prosecution is asked to give an explanation for the delay in the dispatch of a copy of the FIR, it ought to do so.3 However, if the court is convinced of the prosecution version's truthfulness and trustworthiness of the witnesses, the absence of an explanation may not be regarded as detrimental to the prosecution case. It would depend on the facts and circumstances of the case.

Recently the Apex Court reiterated the law developed on Section 157 Cr.P.C in Jafel Biswas vs. State of West Bengal AIR 2019 SC 519 wherein it held as under:

20. The obligation is on the I.O. to communicate the report to the Magistrate. The obligation cast on the I.O. is an obligation of a public duty. But it has been held by this Court that in the event the report is submitted with delay or due to any lapse, the trial shall not be affected. The delay in submitting the report is always taken as a ground to challenge the veracity of the F.I.R and the day and time of the lodging of the F.I.R.

21. In cases where the date and time of the lodging of the F.I.R. is questioned, the report becomes more relevant. But mere delay in sending the report itself cannot lead to a conclusion that the trial is vitiated or the Accused is entitled to be acquitted on this ground.

22. This Court in the case of Anjan Dasgupta v. State of West Bengal and Ors. (2007) 11 SCC 222 (of which one of us was a member, Hon. Ashok Bhushan, J.) had considered Section 157 Code of Criminal Procedure. In the above case also, the FIR was dispatched with delay. Referring to an earlier judgment of this Court, it was held that in every case from the mere delay in sending the FIR to the Magistrate, the Court would not conclude that the FIR has been registered much later in time than shown.

23. The High Court has rightly noted this submission and opined that to find out whether the F.I.R. is genuine or not, and whether the trial court has rightly convicted the Accused or not, the entire evidence has to be looked into.

We examined original records. The FIR (Ex Ka-3) is dated 31.3.2001 and it was despatched by post. The initials of the C.J.M with an endorsement of "seen" is dated 3.4.2001. P.W-6 the Head Moharrir stated that he ensured all due compliances. Neither P.W-6 nor P.W.- 8 were cross examined on this issue. We have already held ut-supra that in respect of an occurrence dated 31.3.2001 at 12.15 PM, the F.I.R having been lodged at 3.35 P.M same day is not ante-timed. Learned counsel for the appellant also could not demonstrate any prejudice in view of alleged delayed despatch.

16. P.W-4 is the constable who authenticated the recovery of country made pistol of 315 bore in working condition at the pointing out of accused while in police remand, from a tin box inside his house on 17.4.2001 at about 9.30 PM, in presence of P.W-5 (public witness) and the I.O who was no more. A copy of the memo (Exbt Ka-2) was also furnished to the accused and in acknowledgement he appended his signature. On the aforesaid recovery an F.I.R under section 25 of the Arms Act was registered in which the appellant was convicted and sentenced as above. P.W-5 claims to be an independent witness to the recovery of country made pistol. He is friends with the Pradhan of the village and the I.O is on visiting terms with the said Pradhan.

17. We after evaluating the evidence of P.W-4 and 5 are of the view that merely because P.W-5 was on friendly terms with the Pradhan who shared a visiting relationship with the I.O,could not be a ground in itself to reject his testimony when the recovery of the offensive weapon has also been authenticated by P.W-4.

18. P.W-9 is the doctor who conducted the autopsy (Exbt Ka-17) of the deceased on 1.4.2001 at 3.30 PM and noted the following ante-mortem injuries.

Firearm lacerated wound1.5 x 01 cm of cavity deep on centre and upper part of abdomen, 8 cm above the umbilicus, inverted margin and there is area of blackening 8 x 6 cm around the wound, wound passed through liver overture, stomach and intestine and came out as wound of exit, lacerated wound 1 x 0.5 cm on left side back, 5 cm above the iliac bone, further everted margin

19. The doctor was fixing the time of death between 12.15 PM to 12.30 PM on 31.3.2001 and death attributable to fire-arm injuries. He categorically ruled out that the injuries could have been caused involving the use of pointed end of a ballam. The medical injuries are in tandem with the oral account.

20. Cumulatively examining the entire evidence, eye-witness account is wholly reliable, injuries on the body of deceased are in consonance with the oral account. The plea of D.W-1 that as the victim was dealing in illicit arms and while showing the arms to one of his customer a mishap took place with which the accused-appellant has no concern, is liable to be repelled on the ground that he admitted that he was not present at the scene of occurrence was not aware as to the identity of assailant and was disclosing this version for the first time in the court.

21. The prosecution has successfully established its case beyond a reasonable doubt, appeal is bereft of merit, liable to be dismissed.

22. The appeal is dismissed. The appellant is in jail.

23. Let a copy of this judgement along with records be sent to the learned Sessions Judge, for compliance and intimation to this court within 2 months.

24. The Court places on record the valuable assistance rendered by the Learned Amicus and his assisting counsel. The Registrar General is directed to ensure a payment of Rs.15,000/- to Shri Pradeep Kumar Mishra who assisted the learned Amicus.

 

 
Order Date :- 11.3.2019
 
RS
 

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