Allahabad High Court

Hoti Lal vs State Of U.P. on 25 February, 2021

Bench: Kaushal Jayendra Thaker, Gautam Chowdhary




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 21							
 

 
Case :- CRIMINAL APPEAL No. - 1201 of 2011
 

 
Appellant :- Hoti Lal
 
Respondent :- State of U.P.
 
Counsel for Appellant :- S.K. Tyagi
 
Counsel for Respondent :- Govt. Advocate,R.B. Maurya
 

 
with1
 

 
Case :- CRIMINAL APPEAL No. - 1202 of 2011
 

 
Appellant :- Shankar
 
Respondent :- State of U.P.
 
Counsel for Appellant :- S.K. Tyagi,Arvendra Singh,Dileep Kumar,Rajeev Gupta,Rajrshi Gupta,Satish Kumar Yadav
 
Counsel for Respondent :- Govt. Advocate,Arun Kumar Sharma,R.B. Maurya
 

 
with
 

 
Case :- CRIMINAL APPEAL No. - 1203 of 2011
 

 
Appellant :- Prem Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- S.K. Tyagi,Gautam Arvind Singh,Satish Kumar Yadav
 
Counsel for Respondent :- Govt. Advocate,R.B. Maurya,Ram Badan Maurya
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Gautam Chowdhary,J.

(Delivered by Hon'ble Gautam Chowdhary, J.)

1. By way of these appeals the appellants have challenged the judgement and order dated 15.2.2011, passed in Sessions Trial No. 115 of 2006 (State of U.P. vs. Prem Singh and others), arising out of Case Crime No. 318 of 2005, under Section 302 I.P.C., S.T. No. 116 of 2006 (State of U.P. vs. Shankar), arising out of Case Crime No. 329 of 2005, under Section- 25 Arms Act and Sessions Trial No. 117 of 2006 (State of U.P. vs. Prem Singh @ Baba), arising out of Case Crime No. 25 of 2006, under Section 25 Arms Act, all cases were registered at Police Station- Allow, District Manipuri.

2. All these sessions trials were tried jointly and were decided by common judgment, whereby all the accused were convicted and sentenced for commission of offence u/s 302/34 I.P.C. for life imprisonment with fine of Rs. 10,000/- and for commission of offence u/s 25 Arms Act, accused- Shankar and Prem Singh were sentenced for two years rigorous imprisonment with fine of Rs.1000/-.

3. Brief facts of the case are that on 19.11.2005, the informant - Krishna Murari had given a written report to the Station House Officer, P.S.- Allow, District- Mainpuri, alleging therein that he has participated in V.D.C. election. One of his family members, namely, Shankar, was helping his opposite contestant Krishna Pal and opposed the informant from participating in that election but the informant participated in the alleged election at the behest of villagers, since then, Shankar was inimical and because of that resentment, on 19.11.2005 at about 11:00 am, when informant's wife and son were coming from fields, Shankar came there and hurled abuses in front of Ziledar's house. During this period, Prem Singh and Hoti Lal also came there. When the informant's wife and son opposed, the accused- Hoti Lal instigated other accused to kill the informant's wife and son at which all the accused, armed with country made pistol, with intention to kill the informant's son, fired at informant's son whereby he got one gun shot injury on his chest and another on his arm in result of which the informant's son- Bhanwar Pal, died on spot. On 24.12.2005, S.O. Ambarish Kumar Yadav (PW-7), along with police personnel, in order to recover the country-made pistol of accused- Shankar, went to village- Nihalpur, where he summoned Karvarilal and Udayveer Singh to make them witnesses of recovery of pistol. The police party alongwith the witnesses searched out themselves personally and after satisfaction that no objectionable article was with them, they, along with the accused, went at the place pointed out by the accused- Shankar and recovered a country-made pistol. Ferd (Ex.ka.10) was prepared and site plan (Ex.ka-14) was also prepared. Again on 21.1.2006, S.O. Ambarish Kumar Yadav, along with police personnel, in order to recover 315 bore country-made pistol, reached village- Nihalpur, where he summoned Netrapal and Satyaram to make them witnesses of recovery. On pointing out of the accused- Prem Singh, a country-made pistol was recovered.

4. After the investigation was over, charge-sheet was filed against all the accused. As the case was exclusively triable by the court of sessions, the same was committed to the sessions court by the learned Magistrate. Charges were framed by the trial court against the accused/appellant who pleaded not guilty and claimed for trial.

5. The prosecution, in order to prove its case, examined 11 witnesses who are as under :-

Krishna Murari

PW-1

Ziledar Singh

PW-2

Udayveer Singh

PW-3

Dr. K.C. Bhardwaj

PW-4

H.C.P. Kishanlal

PW-5

Ram Kishor Dixit

PW-6

S.I. Ambarish Kr. Yadav

PW-7

S.I. Surendra Nath

PW-8

9 .

S.I. Rajendra Singh

PW-9

10.

Ram Kishor

PW-10

6. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence:-

Tehrir (Report)

Ex.ka.1

Post mortem report of deceased

Ex.ka.2

Chik F.I.R.

Ex.ka.3.

Nakal Rapat

Ex.ka.4

Panchayat

Ex.ka.5

Letter to C.M.O.

Ex.ka.6

Recovery of dead body of deceased

Ex.ka.7

Form 379 Namuna Lash

Ex.ka.8

Namuna Mohar

Ex.ka.9

10.

Recovery memo of blood stained and simple soil

Ex.ka.10

11.

Recovery memo of empty cartidge

Ex.ka.11

12.

Site Plan

Ex.ka.12

13.

Charge sheet

Ex.ka.13

7. On completion of the evidence of the prosecution, the accused were put to questions under Section 313 Cr.P.C. The accused also examined Chhote Lal as DW-1.

8. Heard Sri Rakesh Chandra Upadhyay, learned counsel for appellant in Crl. Appeal No. 1201 of 2011, Sri Satish Kumar Yadav, learned counsel for the appellants in Crl. Appeals No. 1202 of 2011 and 1203 of 2011 and Sri Vikash Goswami, learned counsel for the State. Sri N.K. Srivastava and Ms. Alpana Singha, learned counsels for State have assisted us in all the three matters. None has remained present for the private respondent on any of the days of hearing.

9. Both the learned counsels for the appellants have submitted that two of accused are in jail for more than 15 years. The appellant- Hoti Lal was granted bail by this Court but has been recently sent to jail after his bail was cancelled. It is further submitted that the accused- Hoti Lal had only instigated and that there is no recovery of any incriminating material from his possession. So far as accused- Prem Singh and Shankar are concerned, there was no intention or motive to kill the deceased as the incident took place all of a sudden. It is further submitted that the mother of the deceased Vimala Devi, who was accompanying the deceased and who had witnessed the whole incident, had not been examined. It is further submitted that the doctor also opined that injury Nos.1 and 2 may be caused by a single shot. It is further submitted that direction of injury No.1 is upward towards backward which means that the fire was opened from lower surface but in the site plan all are shown to be on parallel or same surface, hence the medical evidence is not corroborated by the site plan. The informant has admitted in his testimony that there was no rivalry with the accused- Hoti Lal. Learned counsels for the appellants have further contented that if this Court feels that case is made out against the accused and they cannot to be accorded benefit of doubt.

10. The following judgments of the Supreme Court are relied by the learned counsel so as to contend that offence under Section 302 read with 34 I.P.C. is not made out in the facts of this case:

(i) Narain vs. State of Punjab, 1959 AIR (SC) 484.

(ii) Stephen Seneviratne vs. King, 1936 AIR (PC) 289;

(iii) Habeeb Mohammad vs. State of Hyderabad, 1954 AIR (SC) 51;

(iv) Yudhishtir Rajkumar vs. State of Madhya Pradesh, 1971 (3) SCC 436;

(v) Jaikaran and Anr. vs. State of U.P., Crl. Appeal No. 431 of 1990;

(vi) Vijay Kumar and others vs. State of U.P., 2011 (8) SCC 136.

11. Learned counsel for the State has taken us through the record and has contended that the intention was present and it is a case where all that common intention, the accused were armed with country-made pistols and on instigation of Hoti Lal the other accused fired at deceased which shows that it was pre-planned murder. It has been further contended that country-made pistols were recovered on the pointing of the accused- Shankar and Prem Singh. It completes the chain. The story narrated by the prosecution is well proved and corroborated by the medical evidence as well as other evidences. So there is no reason to differ from the judgement pronounced by the lower court. Learned A.G.A. has placed reliance on judgement of Apex Court in State of West Bengal vs. Mir Mohammad Omar, reported in Laws(SC) 2000 8 138.

12. The informant- Krishna (PW-1) in his testimony has deposed as under:-

"चुनाव लड़ने के लिए होतीलाल ने मना नहीं किया था लेकिन विरोध किया था मेरी होतीलाल से पहले से कोई रंजिश नहीं थी."

Here he admits that there was no rivalry with accused- Hoti Lal.

13. While considering the testimony of PW-1, PW-2 and PW-3, it comes out that accused- Shankar had fired on the chest of the deceased whereas accused- Prem Singh had fired on arm of the deceased. PW-2 and PW-3 have corroborated the prosecution story and all the three witnesses i.e. PW-1, PW-2 and PW-3 clearly state that by firing of accused- Hoti Lal, deceased was not injured at all. It is relevant to mention that in the F.I.R. it is alleged that the mother of the deceased was accompanying the deceased when this incident took place and the story starts that accused started abusing the deceased and then firing took place. It demonstrates that there was no intention or motive to kill the deceased. It happened all of a sudden.

14. The accused are in jail for more than 15 years. It is submitted by learned counsel that the learned Judge had relied on evidence which could not have been done for the basis for conviction in fact the conviction of the accused Hoti Lal should not have been recorded and even if it was held that he was guilty then it is not a case under Section 302 I.P.C. but case for lesser sentence we are constrained to decide.

15. The submission of the learned counsel for the appellant will also have to be perused from the angle which it is pressed into service. The decision in Jaikaran (supra) goes to show that it will apply in full force. The fact that discrepancies in the prosecution story goes to show that Hoti Lal may not have been present there. The eye witnesses seem to have implicated the accused. There was a suggestion of enmity also. The injuries on the body appeared to have been inflicted by the other two but can it be said that there was a premeditated conspiracy. The survivor of the incident i.e. mother of the deceased has not deposed on oath. Analysing the testimony of all the witnesses unusual facts come out from the statements of PW-1. The testimony PW-1 has many improvements in his statement which is noticeable and weakens the prosecution story. In Jaikaran (Supra) the Apex Court has held as under:-

"The same principle has been reiterated in a recent judgment of the Apex Court in Yogesh Singh vs. Mahabeer Singh and others. Wherein the Apex Court has laid down that the evidence of a closely related witness/inimical witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case.

So far as issue of discrepancies in the ocular evidence, it is well settled law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The discrepancies which do not shake the basic version of the prosecution must not be attached undue importance to discard the prosecution case. The discrepancies which are due to normal errors of perception or observation should not be given importance. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution may be give due allowance."

16. The cumulative evidence and its probative values has to be put into the scales. There are minor contradictions which can be ignored but if there are major contradictions the same will have to be weighed against the State. The decision in Yudhishtir @ Raj Kumar (supra) will also come to the aid of accused. Omission in F.I.R. and in Section 161 Cr.P.C. would prove fatal if the evidence is substantially in variance with version given by the witnesses in the statements given to the Police.

17. The State as well as the appellants have relied on the decision in Narain (supra) but in our case we do not know whether the mother was a reluctant eye witness and, therefore, she was dropped but the fact that she was not examined goes into the root of the matter as it is alleged that she was the one who was essential to unfold the incident. Learned counsel has submitted that it was Hoti Lal whose case is akin to that of Narain (supra) and in our case also it was Hoti Lal who had directed the attack against the deceased.

18. The decision in Habeeb Mohammad (supra) will also help the accused as material eye witness has not been examined wherein it is held that as in Indian Penal Code, 1860 wherein Section 148, 302, 307, 342, 436 and Evidence act, 1872 of Section 114 and Code of Criminal Procedure, 1898 wherein it is held that material witness and non examination of the same and effect of the same particularly when no allegation was made that if produced, he would not speak truth, adverse inference can be raised against prosecution - therefore, circumstances of his being withheld from court casts serious reflection on fairness of trial.

19. The decision cited by the State in State of West Bengal vs. Mir Mohammad Omar which is pressed into service goes to show that where the evidence is to the satisfaction of the Court that it was Shankar and the other who had caused death. The circumstances of the case and the factual scenario would permit us to hold that there is no serious lacuna and irregularity but the question would be can all the three said to have harboured common intention as per Section 34 I.P.C., the answer is no.

20. This takes us to the issue of whether the offence would be punishable under Section 299 or Section 304 I.P.C.

21. Considering the evidence of these witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellants and admission on part of accused. However, the question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellants under Section 302 of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code. It would be relevant to refer Section 299 of the Indian Penal Code, which read as under:

"299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

22. The academic distinction between ''murder' and ''culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

Section 299

Section 300

A person commits culpable homicide if the act by which the death is caused is done-

Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done.

INTENTION

(a) with the intention of causing death; or

(1) with the intention of causing death; or

(b) with the intention of causing such bodily injury as is likely to

cause death; or

(2) with the intention of causing such bodily injury as the offender knows to be likely to

cause the death of the person to whom the harm is caused;

KNOWLEDGE

(4) with the knowledge that the act is so immediately dangerous

that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

23. While penning this judgment, this Court has come across the judgment of the Apex Court in the case of Special Leave to Petition (Crl.) No. 1156 of 2021, State of Orissa Vs. Banabihari Mohapatra (Coram: Hon'ble Mrs. Justice Banerjee and Hon'ble Mr. Justice Hemant Gupta), reported in Live Law 2021 SC 103 wherein the Apex Court has held as under:

"It is well settled by plethora of judicial pronouncements by this Court that suspicion, however strong cannot take the place of proof. An accused is presumed to be innocent unless proved guilty beyond reasonable doubt"

24. The evidence must be such that the guilt of the accused would have to be proved by consistent evidence which would be proved by the attending circumstances from which cogent evidence would emerge.

25. In a recent judgement in Rajesh Vs. State of Haryana, (2021) 1 SCC 118, the Apex Court has acquitted the accused where the depositions of the alleged eye witnesses were found suffering from material contradictions and there were improvements. In our case there are material improvements in the evidence of PW-1 which we have discussed at length. In our case also the ballistic expert has not been examined. The recovery is of a different kind of country-made pistol. The legal position regarding necessity of examination of ballistic experts in case of assault has been reiterated. It would be fatal qua accused - Hoti Lal is concerned. The related eye witnesses have been also disbelieved by us not just because they are related eye witnesses but their presence on the spot is not believable.

26. It is very clear from the F.I.R. and other witnesses of facts that deceased started abusing the accused and vice versa, thereafter, firing took place. It demonstrates that there was no intention or motive to kill the deceased. It happened all of a sudden. The most viable testimony would have been of Vimala Devi who was accompanying the deceased and who had actually witnessed the whole incident but she had not been examined and this goes in benefit of the accused. While going through the record, we are convinced that learned Judge instead of writing philosophy, if he did not think it was a case of acquittal but could have punished under Section 304 part I or II of I.P.C. which was attracted in the facts of this case.

27. While we have decided that the provisions go to show that injuries were caused after altercation as from perusal of the statements of all the witnesses, it appears that abusing took place and then all of a sudden the offence occurred, therefore, it would fall within the scope of the provisions of Section 304 I.P.C. as narrated herein above as far as accused- Shankar and Prem Singh are concerned.

28. As far as accused-appellant Hoti Lal is concerned there is no clear evidence against him who has only instigated and also nothing was recovered on pointing out of Hoti Lal. Therefore, the accused- Hoti Lal is exonerated. Hoti Lal shall be released forthwith if not required in any other offence.

29. So far as other accused- Prem Singh and Shankar are concerned, the accused- Shankar is family member of deceased and the accused are in jail for a period of more than 15 years. It is a matter of fact as it transpires from the F.I.R. and as we have held that it is homicidal death but not murder. We hold the accused guilty for Section 304 of I.P.C. but not under 302 read with Section 34 I.P.C. The punishment of life imprisonment is reduced to ten years. The period of ten years is already over, the accused- Prem Singh and Shankar shall be released forthwith if not required in any other offence. However, this would be coupled with the fine imposed by the court below. The fine be deposited within four weeks of their release, failing which they shall undergo three months simple imprisonment in default.

30. In view of the aforementioned discussion, the appeal of accused- Hoti Lal, i.e. Crl. Appeal No. 1201 of 2011 is allowed. So far as appeals of other accused, namely, Shankar and Prem Singh, i.e. Crl. Appeal Nos. 1202 of 2011 and 1203 of 2011, are concerned, the same are partly allowed.

31. Record and proceedings be sent back to the trial court.

Order Date :- 25.2.2021

Vandana