Nageshwar vs State
2019 Latest Caselaw 4923 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on : 23.01.2019
 
                Delivered on : 23.05.2019
 
Court No. - 34
 

 
Case :- JAIL APPEAL No. - 1504 of 2006
 
Appellant :- Nageshwar
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Surendra Singh
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Rajendra Kumar-IV,J.

(Delivered by Hon'ble Rajendra Kumar-IV,J.)

1. Accused-appellant faced trial in Session Trial No.922 of 2003 (State of U.P. Vs. Nageshwar, Crime No. 281 of 2002) under Sections 336, 304 IPC, Police Station Feelkhana, District Kanpur Nagar and came to be convicted by Court vide its judgement and order dated 01.02.2005, sentencing him under Section 304 (I) I.P.C. to undergo for rigorous life imprisonment and fine of Rs. 5000/-.

2. Being aggrieved with the order of conviction and sentence, accused-appellant has sought intervention of this Court by filing present criminal appeal from Jail through Superintendent of Jail concerned.

3. Brief facts giving rise to the present appeal as emerging from F.I.R. and evidence placed by prosecution on record are that PW-3 Abdul Khalik presented a written tehrir Ex.Ka-1 on 9.10.2002 in the Police Station Feelkhana, District Kanpur Nagar stating therein that in the intervening night of 8/9.10.2002 at about 3:00 a.m. When he was sitting on his rickshaw to relax for some time in the field of Phoolbagh, Kanpur Nagar, accused wearing only pant, came there with brick in his hand and started assaulting on head and face of Rickshaw Puller and other labourers sleeping on Chabutara beneath Peepal tree, suddenly. On alarm raised by PW-3 and other people present there, police reached there. Accused was caught with brick by people with the help of police. On being interrogated, accused disclosed his identity as Nageshwar son of Vijay Kumar resident of Shahnagar, Police Station Ramgarh Chowk, District Lakheesrai Bihar, who was taken to police station. One rickshaw puller Ram Kumar Darji and two other injured persons were taken to hospital for medical treatment by police with the help of people. All the three injured succumbed to injuries and S.I. Saligram Verma held inquest over the dead body of all three deceased and prepared their panchayatnama.

4. On the basis of written tehrir Ex.Ka-1, Chick F.I.R. Ex.Ka-3 was registered by PW-4 as Case Crime No. 281 of 2002 against the accused-appellant under Section 308 I.P.C. at Police Station Feelkhana, District Kanpur Nagar and entry of case was made by Constable Moharir in G.D. Copy whereof is Ex.Ka-3 & 4

5. PW-9 S.I. Sone Lal Yadav commenced investigation and recorded statement of witnesses, visited spot, prepared site plan Ex.Ka-7, collected blood stained and simple earth, took rickshaw in his possession and prepared recovery memo Ex.Ka-2 and Ex.Ka-8 respectively. He recoded statements of Gangaram and Vijay Kumar. Thereafter, he reached Ursala hospital where he came to know about the death of Ram Kumar. Inquest of Ram Kumar has already been made by S.I. Saligram Verma, who proceeded to L.L.R. Hospital and after completion of entire formalities of investigation submitted charge-sheet against accused person.

6. PW-7 Dr. U.C. Sinha, conducted autopsy over the dead body of one unknown person aged about 35 years on 10.10.2002 and prepared post mortem report Ex. Ka-4. On the same day, he further conducted autopsy over the dead body of Ram Kumar and prepared post mortem report Ex.Ka-5 expressing his opinion that death of both deceased was possible at about 3:00 a.m. in the intervening night of 8/9.10.2002 due to shock and haemorrhage on account of ante-mortem injuries on their body.

7. PW-8 Dr. V.P Chauhan conducted autopsy over the dead body of unknown person aged about 45 years sent by Police Station Feelkhana and prepared post mortem report Ex.Ka-6, expressing his opinion that death might have occurred due to Haemorrhage, head injuries on account of ante-mortem injuries.

8. Case, being exclusively triable by Court of Sessions, was transferred to Additional Sessions Judge, Court No.10, Kanpur Nagar for its disposal in accordance with law.

9. Trial Court framed charges against accused-appellants on 6.2.2004, which reads as under :-

" C H A R G E

I, Triyugi Narain Misra, Xth Addl. Sess. Judge, Kanpur Nagar do hereby charge you Nageshwar as under :

That on 09.10.2002 at about 3:00 a.m. (in the morning) at Phoolbagh Maidan near the Peepal tree, within the jurisdiction of Police of P.S. Feelkhana, Kanpur Nagar you caused the death of two unknown persons and one Ram Kumar with the intention of causing such bodily injury as was likely to cause death or with the knowledge that your act was likely to cause death and that you thereby committed an offence of culpable homicide not amounting to murder, punishable U/S 304 I.P.C. And within the cognizance of this Court of Sessions.

And, I hereby direct that you be tried by this Court on the said charge."

10. Accused-appellant pleaded not guilty and claimed trial.

11. In order to substantiate its case, prosecution examined as many as 9 witnesses out of whom P.W. 3 Abdul Khaliq, PW-5 Rajesh Kumar and PW-6 Kamal Singh Tomar are the witnesses of fact and PW-1 Mahmood Alam, PW-2 Ganga Ram, PW-4 Rajvir Singh, PW-7 Dr. U.C. Singh, PW-8 Dr. V.P. Chauhan and PW-9 Sone Lal Yadav are formal witnesses.

12. Statement of accused-appellant under Section 313 Cr.P.C. was recorded by Court explaining all the evidence and other incriminating circumstances wherein accused-appellant claimed false implication in the present case on account of village enmity, denied the prosecution story in toto and all formalities of investigation were said to be wrong.

13. After hearing counsel for parties and evaluating entire evidence, oral and documentary, produced by prosecution, Trial Court held accused-appellant guilty and sentenced as stated above.

14. We have heard Sri Surendra Singh, learned counsel for the appellant and Sri Rishi Chaddha, learned A.G.A for State-respondent at length and have gone through the record available on file carefully with the valuable assistance of learned counsel for the parties.

15. Learned counsel appearing for appellant took us through the record and challenged conviction and sentence of accused-appellant, advancing his submissions, in the following manners :-

(i) PW-3 Abdul Khaliq, Informant of the case has turned hostile. He did not support the prosecution.

(ii) Only police officials supported prosecution case whose presence not natural on spot.

(iii) Accused-appellant has falsely been implicated on account of enmity.

(iv) Nothing has been recovered from the possession of accused-appellant and there is no motive to accused- appellant to commit present crime.

(v) There are major contradiction in the statement of witnesses rendering prosecution case doubtful.

(vi) No independent witness came forward in support of prosecution case.

(vii) Trial Court has not appreciated entire evidence with care and causes and wrongly convicted the accused.

16. Evidently, accused-appellant has been caught with brick, allegedly used in the commission of offence. He was caught on the spot by police with the help of people and was taken to police station.

17. Although date, time, place and manner in which injuries have been caused, as stated by prosecution, have not be disputed from the side of defence but according to learned counsel for accused-appellant, he is not responsible for the present crime and has been falsely implicated.

18. From perusal of evidence, time, date and place, murder of three persons stood proved.

19. Now, only question remains for consideration is, "whether accused-appellant is responsible for the commission of offence and causing death of three persons as alleged by prosecution and Trial Court has right convicted the accused-appellant evaluating the evidence properly or not ?"

20. We may now proceed to consider, briefly, evidence of prosecution on record.

21. PW-1 Mahmood Alam, is only scribe of written tehrir Ex.Ka-1 which has been scribed by him on dictation of PW-3. P.W. 2 Ganga Ram is the witnesses of recovery memo Ex.Ka-2 of one Rickshaw taken by police in from his possession. He did not see any incident. PW-3 Abdul Khaliq is the complainant of present case, who turned hostile and did not support prosecution case. PW.-4 Head Constable Rajvir Singh prepared Chick F.I.R. Ex.Ka-3 and G.D. Ex.Ka-4.

22. PW-5 and 6 are the witness of fact. PW-5 is the police constable posted in Police Station Feelkhana Chauki Patkapur, who deposed that on the fateful night, he was with S.I. Neeraj Gautam, Constable Kamal Singh and Constable Narendra Jeet Singh, on checking duty, and in search of criminals. When they were going through Jeep towards Tiraha crossing, near the field of phoolbagh. They heard noise in the field of phoolbagh. They reached there and saw accused-appellant assaulting rickshaw puller and other labourers with brick and injuries many people. Accused-appellant was caught by police with the help of people. On being inquired he disclosed his identity as Nageshwar. Injured persons were taken to Ursala Hospital and accused was taken to hospital.

23. PW-6 Kamal Singh Tomar, supporting prosecution case deposed that in the night of 8/9.10.2002 he along with S.I. Neeraj Gautam was on checking duty and in search of wanted criminal. While they were on patrolling towards Tiraha through field of phoolbagh, heard noise from near Peepal tree, reached their and saw that accused was assaulting rickshaw puller and other persons sleeping there, with brick. He was caught on the spot with brick. On being interrogated, accused disclosed his identity as Nageshwar, who was taken to police station and injured persons were taken to hospital. One injured succumbed to injures on spot.

24. Both witnesses PW-5 and 6 are police personnel. Both witnesses have undergone lengthy cross-examination but no major contradiction could be brought on record through the same so as to disbelieve their statement. They cannot be said to interested witnesses. They have neither friendship nor any enmity to accused-appellant. They were on duty on the fateful night and their presence on spot is totally reliable. In the statement recorded under Section 313 Cr.P.C. accused although stated that witnesses are giving evidence against him on account of enmity but he did not suggest any causal enmity. Accused-appellant chose not to adduce any evidence in defence, therefore, there cannot be any hesitation to come to conclusion that accused assaulted three persons with brick, who succumbed to injuries later on.

25. In the present case, incident took place in the mid night field of Phoolbagh in Kanpur Nagar and police had reached the spot and witnessed the incident of assaulting the deceased by accused-appellant.

26. It is now well established that the statement of police officials is not to be necessarily disbelieved unless there are reasons creating doubt in the veracity of version of police officials.

27. More than half-a-century ago, in Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217 the Apex Court held:

"The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration."

28. In Nathu Singh Vs. State of M.P. AIR 1973 SC 2783, the Court said:

"The mere fact that they are police officers was not enough to discard their evidence. No reason was shown for their hostility to the appellant."

29. In Tahir v. State (Delhi), (1996) 3 SCC 338, dealing with a similar question, Dr. A.S. Anand, J. (as His Lordship then was) stated:

"Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case"

30. As a matter of rule, there can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Non-examination of independent witness or even presence of such witness during police raid would cast an added duty on the court to adopt greater care while scrutinising the evidence of the police officers. If the evidence of police officer is found acceptable, it would be an erroneous proposition that court must reject prosecution version solely on the ground that no independent witness was examined. In Pradeep Narayan Madqaonkar & others vs. State of Maharashtra 1995 (4) SCC 255, it was held:

"Indeed, the evidence of the official (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigation of the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony."

31. Balbir Singh vs. State 1996 (11) SCC 139, the Court has repelled a similar contention based on non-examination of independent witnesses. The same legal position has been reiterated time and again by Apex Court vide Paras Ram vs. State of Haryana 1992 (4) SCC 662, Sama Alana Abdulla vs. State of Gujarat 1996 (1) SCC 427, Anil alias Andya Sadashiv Nandoskar vs. State of Maharashtra 1996 (2) SCC 589.

32. In Subhash Singh Thakurshyam vs State (Through CBI) (1997) 8 SCC 732, a Two Judge Bench of the Apex Court comprising of Hon'ble M. Mukherjee and Hon'ble K. Thomas JJ, in para 90 observed:

"....We should not forget that the time of the raid was during the odd hours when possibly no pedestrian would have been trekking on the road nor any shopkeeper remaining in his shop nor a hawker moving around on the pavements."

33. In State of U.P. v. Zakaullah 1998 Cri. L.J. 863 in para-10, it is said:

"The necessity for "independent witness" in cases involving police raid or police search is incorporated in the statute not for the purpose of helping the indicted person to bypass the evidence of those panch witnesses who have had some acquaintance with the police or officers conducting the search at some time or the other. Acquaintance with the police by itself would not destroy a man's independent outlook. In a society where police involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty or for any other matter, it cannot be said that those are not independent persons. If the police in order to carry out official duties, have sought the help of any other person he would not forfeit his independent character by giving help to police action. The requirement to have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle. Every citizen of India must be presumed to be an independent person until it is proved that he was a dependent of the police or other officials for any purpose whatsoever."

34. Referring to some of the the aforesaid decisions, the Court in Girja Prasad Vs. State of M.P. (2007) 7 SCC 625 held:

"It is well-settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of Law may not base conviction solely on the evidence of Complainant or a Police Official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a Police Official as any other person. No infirmity attaches to the testimony of Police Officials merely because they belong to Police Force. There is no rule of law which lays down that no conviction can be recorded on the testimony of Police Officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence." (para 25)

35. In so far as discrepancies, variations and contradictions in the prosecution case are concerned, we have analysed entire evidence in consonance with the submissions raised by learned counsel's and find that the same do not go to the root of case.

36. In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124, Court has held that minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person.

37. In Sachin Kumar Singhraha v. State of Madhya Pradesh in Criminal Appeal Nos. 473-474 of 2019 decided on 12.3.2019, Supreme Court has observed that Court will have to evaluate evidence before it keeping in mind the rustic nature of depositions of the villagers, who may not depose about exact geographical locations with mathematical precision. Discrepancies of this nature which do not go to the root of the matter do not obliterate otherwise acceptable evidence. It need not be stated that it is by now well settled that minor variations should not be taken into consideration while assessing the reliability of witness testimony and the consistency of the prosecution version as a whole.

38. We lest not forget that no prosecution case is foolproof and the same is bound to suffer from some lacuna or the other. It is only when such lacunae are on material aspects going to the root of the matter, it may have bearing on the outcome of the case, else such shortcomings are to be ignored. Reference may be made to a recent decision of the Supreme Court (3 Judges) in Criminal Appeal No. 56 of 2018, Smt. Shamim v. State of (NCT of Delhi), decided on 19.09.2018.

39. So far as motive is concerned, it is well settled that where direct evidence is worthy, it can be believed, then motive does not carry much weight. It is also notable that mind set of accused persons differs from each other. Thus, merely because that there was no strong motive to commit the present offence, prosecution case cannot be disbelieved.

40. In Lokesh Shivakumar v. State of Karnataka, (2012) 3 SCC 196, Court held as under :-

"As regards motive, it is well established that if the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive looses practically all relevance. In this case, we find the ocular evidence led in support of the prosecution case wholly reliable and see no reason to discard it."

41. In the entirety of the facts and circumstances and legal preposition discussed herein before, we are satisfied that prosecution has successfully proved its case beyond reasonable doubt against accused-appellant and Trial Court has rightly convicted him for committing offence under Sections 304(I) IPC.

42. So far as sentence of accused-appellants are concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.

43. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].

44. There was no premeditation and act done by appellants appears to be in the heat of passion, without appellants taken any undue advantage or acted in a cruel manner. Number of wounds caused by appellants, it is a well established position, by itself, cannot be a decisive factor.

45. In Surain Singh v. State of Punjab, (2017) 5 SCC 796, Court has restated the settled legal position about the purport of exception 4 to Section 300 of IPC. Even in that case, the accused had repeatedly assaulted the deceased with a Kripan and caused injuries resulting into death. After restating the legal position, the Court converted the offence to one under Section 304 Part-II instead of Section 302 IPC.

46. Keeping in view, the nature of injuries noticed by PW-6, it is difficult to accept that accused-appellant intended to cause death of deceased or that injuries were so dangerous that they would in all probability cause death.

47. Hence, applying the principles laid down in the aforesaid judgments and having regard to the totality of facts and circumstances of case, motive, nature of offence, weapon used in commission of offence and the manner in which it was executed or committed. We partly allow this appeal. We confirm appellants' conviction under Sections 304 (I) I.P.C. by modifying order of sentence under Section 304 I.P.C., to rigorous imprisonment for a period of 16 years and fine of 50,000/-. In default they shall further undergo imprisonment for six months. They shall be entitled to set of under Section 428 Cr.P.C.

48. Lower Court record along with a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action and to apprise the accused-appellant through Jail Authority.

Order Date :- 23.05.2019

Manoj