Badri And Others vs State Of U.P.
2021 Latest Caselaw 6885 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR  
 
   Reserved on : 04.01.2021
 
Delivered on : 01.07.2021
 
In Chamber
 

 
Case :- CRIMINAL APPEAL No. - 2752 of 1983
 

 
Appellant :- Badri and others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Mohan Chandra,Arunkumar Mishra,C.S. Saran,Kundan Singh,N.P.Midha,Ram Pal Singh,Ratan Singh,S.K.Kulshrestha,Sanjiv Ratan,Shailendra Prakash
 
Counsel for Respondent :- Dga,N.P. Middha,Sanjiv Ratan
 

 
Hon'ble Manoj Kumar Gupta,J.

Hon'ble Rajendra Kumar-IV,J.

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

1. The present Criminal Appeal has been filed by accused-appellants, namely, Badri, Babu Ram, Jawahar Singh, Natthu and Subedar against the common judgement and order dated 21.10.1983 passed by IV Additional Sessions Judge, Etah, in Sessions Trial No.515 of 1983 and Sessions Trial No. 507 of 1983, under Sections 147, 302/149 and 307/149 IPC, Police Station, Mirehchi, District Etah, convicting accused-appellants and sentencing them to undergo life imprisonment.

2. Factual matrix of case as emerging from First Information Report (hereinafter referred to as "FIR") as well as material placed on record is as follows.

3. A written report, Ex.Ka-7, dated 15.05.1983 was presented in Police Station Mirehchi, District Etah by Informant PW-5, Tolwar Singh, alleging that on 14.05.1983 at about 7:00 p.m., he (informant), his brother-in-law Tota Ram and his uncle (Tau) Chhviram were sitting on respective cot on Chabutara (platform) in front of his house. His mother Smt. Ramdevi (deceased) was also sitting on the earth of Chabutara. A lantern was lighting on the peg. Accused persons, namely, Badri, Babu Ram, Jawahar Singh, Natthu and Subedar came from the side of one Khumano with intention to kill them (informant side), threw hand grenade due to which there was a huge explosion and he, (complainant himself), his uncle and his mother sustained serious injuries. His mother sustained much injuries in her head and died on spot. All the accused persons were recognized by informant, his brother-in-law Tota Ram and his Tau in the light of lantern. The F.I.R. further recites that his uncle Chhaviram was issue-less and lived with him. He wanted to give six Beegha land of his share to the informant Tolwar Singh, because of this accused Badri who happens to be his cousin was angry with Chhaviram.

4. On receipt of written report Ex.Ka-7, Chik F.I.R. Ex.Ka-3 was prepared by constable concerned, who registered the case under Sections 302 and 307 IPC as Case Crime No. 59 of 1983. An entry of case was made in General Diary on the same day at 6:00 a.m., a copy whereof is Ex.Ka-4 on record.

5. Immediately after registration of case, PW-7, Sri Bal G. Sonkar, started investigation, took copies of relevant papers, proceeded to spot, directed S.I. Jagdish Prasad for conducting inquest Ex.Ka.-8 and other relevant papers. Investigating Officer prepared site plan Ex.Ka-12, took lantern in his possession, collected bloodstained and simple earth from spot and prepared Fards thereof Ex.Ka-13 and 14. Dead body of deceased Ramdevi was sent for post-mortem.

6. P.W. 4 Dr. K.K. Singh conducted post-mortem over the dead body of deceased Smt. Ramdevi and prepared post-mortem report Ex.Ka-6. Doctor noted the anti-mortem injuries found on the dead body of deceased as under :-

(i) 3 lacerated wounds of skull cavity deep of the dimension of 8 cm. x 6 cm., 4 cm. x 2 cm. and 5 cm. x 2 cm. On occipital parietal region of left half. 7 cm. Medial and back of ear.

(ii) Multiple wound of entry of various sizes measuring from 1 cm. x ½ cm. x skin deep muscle deep and ½ cm. x ½ cm. x skin deep on the left shoulder in an area of 8 cm. x 8 cm.

(iii) Multiple wounds of entry in an area of 10 cm. x 10 cm. On the shoulder of supra scapular region of right back varying ¾ cm. x ½ cm. x tissues deep to ½ cm. x ½ cm. x skin deep.

Doctor opined that death of Smt. Ramdevi was possible at 7:00 p.m. on 14.05.1983 due to coma as result of ante-mortem injuries.

7. PW-1, Dr. S.P. Varshney, the then Medical Officer, District Hospital, Etah, medically examined the injured Tolwar Singh P.W.-5 and Chhaviram PW-6 on 15.05.1983 and prepared injurty reports.

(a)       Injuries of Tolwar Singh P.W.-5 are as under :
 
(i)	Superficial burn over contused base in an area 16 cm x 7 cm on back of right elbow and upper forearm with peeling of cuticle.
 
(ii) 	Superficial burn on front of Rt. Arm in upper part size 4 cm. x 2 cm. Superficial layer of skin is absent with contused base. No black area are around the wound present. 
 
(iii)	Superficial burn in an area of 15 cm. x 6 cm. On Rt. Side of abdomen in lower part. Skin has not peeled off. 
 
(iv)	Superficial (multiple) burn in an area of 18 cm. x 8 cm. On front and outer side of Rt. Thigh upper half skin has not peeled off. 
 
 (b)	Injuries of Chhaviram P.W.-6 are as under : 
 
(i)   Superficial burn are (multiple) on left side of whole of chest 30 cm. x 18 cm.  With some lacerated wound of .5 cm. x .5 cm. x skin deep. Skin has not peeled off.
 
(ii)    Multiple small area of burn of the 1 cm. x .75 cm on back side of Lt. arm in an area of 20 cm. x 5 cm. 
 
(iii)    Superficial burn with the L/w 1 cm. x 1 cm. to 0.5 cm. x .75 cm. No blackening of skin present on the back of the hip and upper thigh in an area of 25 cm. x 10 cm. 
 

8. Investigating Officer of case, after completing entire formalities of investigation submitted charge sheets Ex.Ka-15 and 16 against the accused persons before C.J.M. concerned. C.J.M. took cognizance on the charge sheets and after necessary compliance under Section 207 Cr.P.C. and case, being triable by Court of Session, was committed to the Court of Session for trial.

9. It appears that trial was transferred from the Court of Sessions Judge, Etah to IV Additional Sessions Judge, Etah, who, after examining the entire evidence collected by Investigating Officer, hearing both the parties, framed charges against the accused-appellants under Sections 147, 302/149 and 307/149 I.P.C.

10. Charges were read over and explained to accused-appellants, who denied the charges, pleaded not guilty and claimed to be tried.

11. In order to substantiate its case, prosecution has examined total seven witnesses, out of whom, Informant PW-5 Tolwar Singh, PW-6 Chhaviram, are witnesses of fact, whereas PW-1 Dr. S.P. Varshney, PW-2 Constable Vijay Bahadur, PW-3 Constable Satyaman Singh, PW-4 Dr. K.K. Singh and PW-7 S.O. Bal G. Sonkar are formal witnesses.

12. On closure of prosecution evidence, statement of accused-appellants under Section 313 Cr.P.C. was recorded by Trial Court explaining entire evidence and other incriminating circumstances. Accused denied prosecution case in toto and said that they have been falsely implicated in this case and witnesses are giving false evidence.

13. Trial Court, after hearing counsel for parties and appreciating entire evidence on record has found accused-appellants guilty and convicted and sentenced them as stated above.

14. During the pendency of appeal, appellant nos. 3 and 4 died and their appeals have already been abated by this Court vide order dated 03.08.2016. Appeal is pending on behalf of surviving appellants.

15. We have heard Sri Arun Kumar Mishra, learned counsel for the appellants, Sri Arunendra Kumar Singh, learned A.G.A. for State and have gone through the entire record with the valuable assistance of learned counsel for the parties.

16. Learned counsel appearing for appellants has challenged conviction of accused-appellants, advancing his submissions in the following manner :

i. The accused-appellants are innocent and they have been falsely implicated in the present case on account of land dispute.

ii. There is no sufficient motive to accused-appellants to commit murder of deceased Smt. Ramdevi and to cause injuries to other injured persons.

iii. There is no source of light so as to enable the witnesses to recognize the assailants.

iv. There is no public witness in support of prosecution while public witnesses are alleged to have been present on spot. Both the witnesses are interested and they have the motive for false implication of accused appellants because of land dispute.

v. There are major and material contradiction in the statement of witnesses so as to disbelieve the prosecution case.

vi. The medical evidence does not go with the prosecution case, hence, prosecution case is not worthy to credence.

17. Per contra learned AGA opposed submissions by submitting that this is the case of direct evidence, therefore, motive has no importance. Although there was a motive to the accused-appellants to commit the murder because of accused Badri is the cousin of informant and nephew of Chhaviram and Chhaviram lived with informant. It was the perception in the mind of accused Badri that Chhaviram might have transferred his property in favour of Tolwar Singh so he wanted to finish Chhaviram so that he may get the property of Chhaviram. It was further submitted by learned AGA that Chhaviram and Tolwar Singh supported the prosecution case. Indisputably, Smt. Ramdevi succumbed to injury caused to her in incident and there was no reason to witnesses to falsely implicate the accused persons and medical evidence is in support of prosecution story. Witnesses are injured, therefore, their presence on spot cannot be doubted.

18. Although, time, date, place and nature of injuries found on the person of deceased have not been disputed or challenged by accused-appellants but what is argued is that accused-appellants are not responsible for present crime. From evidence of PW-5 and PW-6 and injury report Ex. Ka-1 and 2, inquest report Ex.Ka-8, post mortem report Ex.Ka.-6, time, date and place of incident stand established.

19. Thus the only question remains for consideration is "whether accused-appellants caused death of Ramdevi by throwing hand grenade on the victims and Trial Court has rightly convicted them or not?"

20. We now proceed to consider rival submissions on merits.

21. Before adverting to rival contention, we would like to consider briefly the evidence of prosecution, PW-5 Tolwar Singh, who happens to be informant, eye witness and injured, deposed that Chhaviram was his real uncle. He was issue-less and lived with him. He wanted to give six beegha land of his share to him, due to which accused Badri felt bad. On the fateful day, at about 7:00 p.m., he (informant), his brother-in-law (Bahnoi) Tota Ram and his uncle Chhaviram were sitting on their respective cots on the platform (Chabutara) in front of his house, his mother Ramdevi was also sitting there on the earth. Lantern was lighting on the peg. Then accused-appellants Badri, Babu Ram, Jawahar Singh, Natthu and Subedar came there with hand grenade and threw on them for killing, due to explosion of which he and Chhaviram sustained injuries and his mother Ramdevi succumbed to injuries received in incident. Accused Badri was also injured due to explosion. All the accused persons ran way from the spot. Statement further states that at about 3:00 a.m. in the same night, he got Tehrir Ex.Ka.-7 scribed by Tota Ram and presented it before police station at 6:00 A.M. He and Chhaviram were medically examined in district hospital, Etah.

22. P.W. 6 Chhaviram, injured witness, deposed that informant Tolwar Singh and accused Badri are his real nephews. He was issue-less. He was living with Towar Singh from beginning. He asked Towar Singh to give six beegha land of his share three or four days prior to the incident. Badri felt bad. On the fateful day, at about 7:00 p.m., he (witness), Towar Singh and Tota Ram were sitting on their respective cots on chabutara in front of his house. Smt. Ramdevi (deceased) was also sitting on earth. Lantern (Lalteen) was also lightning on peg. Then accused Badri, Babu Ram, Jawahar Singh, Natthu and Subedar came there with hand grenade and threw on them. The hand grenade got burst due to which, he, Tolwar Singh (P.W.-5) and Ramdevi sustained injuries and Smt. Ramdevi succumbed to injuries on spot. He was medically examined. Accused Badri was also injured. Accused persons ran away.

23. Both the witnesses P.Ws.- 5 and 6 withstood lengthy cross-examination by accused persons but no major or material contradiction could be brought through the same, which may dent prosecution case or veracity of their statements. From the statement of PW-5 and 6, complicity of accused-appellants in the commission of present offence stands proved.

24. Certainly, there is minor contradictions or development in their evidence but they are not of such nature so as to disbelieve the entire story of prosecution and they are not so serious and sufficient that accused could be acquitted. Each and every contradiction and development appeared in cross examination do not affect the root of case.

25. 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.

26. 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.

27. In Sachin Kumar Singhraha v. State of Madhya Pradesh in Criminal Appeal Nos. 473-474 of 2019 decided on 12.3.2019 Hon'ble Supreme Court has observed that the Court will have to evaluate the evidence before it keeping in mind the rustic nature of the 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.

28. 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 Apex Court (3 Judges) in Criminal Appeal No. 56 of 2018, Smt. Shamim v. State of (NCT of Delhi), decided on 19.09.2018.

29. In Yogesh Singh vs. Mahabeer Singh & Other, 2017 (11) SCC 195, Supreme Court has held that minor inconsistencies or insignificant embellishments in the statement of witnesses should yield to the fallibility of human faculties and be ignored if the evidence is otherwise trustworthy and corroborates in material particulars: -

"29. It is well settled in 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 omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions. (See Rammi @ Rameshwar Vs. State of M.P. (1999) 8 SCC 649; Leela Ram (dead) through Dulli Chand Vs. State of Haryana and Another, (1999) 9 SCC 525; Bihari Nath Goswami Vs. Shiv Kumar Singh & Ors., (2004) 9 SCC 186; Vijay @ Chinee Vs. State of Madhya Pradesh, (2010) 8 SCC 191; Sampath Kumar Vs. Inspector of Police, Krishnagiri, (2012) 4 SCC 124; Shyamal Ghosh Vs. State of West Bengal, (2012) 7 SCC 646 and Mritunjoy Biswas Vs. Pranab @ Kuti Biswas and Anr., (2013) 12 SCC 796)."

30. Evidently, P.Ws.-5 and 6 are injured in incident. Dr. S.P. Varshney P.W.-1 examined their injuries and deposed that on 15.5.1983, he was posted as Medical Officer at District Etah. On the very same day, he medically examined Tolwar Singh and Chhaviram at about 1:45 p.m. and 2:00 p.m. respectively and found injuries on their person, prepared medical report mentioning their injuries. Dr. found following injuries on the body of Tolwar Singh :-

(i) Superficial burn over contused base in an area 16 cm x 7 cm on back of right elbow and upper forearm with peeling of cuticle.

(ii) Superficial burn on front of Rt. Arm in upper part size 4 cm. x 2 cm. Superficial layer of skin is absent with contused base. No black area are around the wound present.

(iii) Superficial burn in an area of 15 cm. x 6 cm. On Rt. Side of abdomen in lower part. Skin has not peeled off.

(iv) Superficial (multiple) burn in an area of 18 cm. x 8 cm. On front and outer side of Rt. Thigh upper half skin has not peeled off.

He also examined Chhaviram and found following injuries on his person.

(i) Superficial burn are (multiple) on left side of whole of chest 30 cm. x 18 cm. With some lacerated wound of .5 cm. x .5 cm. x skin deep. Skin has not peeled off.

(ii)    Multiple small area of burn of the 1 cm. x .75 cm on back side of Lt. arm in an area of 20 cm. x 5 cm. 
 
(iii)    Superficial burn with the L/w 1 cm. x 1 cm. to 0.5 cm. x .75 cm. No blackening of skin present on the back of the hip and upper thigh in an area of 25 cm. x 10 cm. 
 
31.	From the statement of Dr. S.P. Varshney P.W.-1, it transpires that both P.Ws.-5 and 6 received injuries in incident. It is well settled that presence of injured witnesses cannot be easily ignored on spot unless it is proved otherwise. 
 

32. There is no suggestion from the side of accused persons that witnesses were not present on spot. In statement under Section 313 Cr.P.C., it is simply stated that they do not know why F.I.R. has been lodged against them. They have nothing to say. No evidence was adduced from the side of accused person in his defence. In his statement under Section 313 Cr.P.C., accused Badri Singh pleaded not guilty and denied the prosecution case and evidence of prosecution is said due to rivalry on account of land dispute. No specific plea has been taken by the accused persons why they have been trapped in so serious matter.

33. So far as motive is concerned, it is well settled, where direct evidence is worthy to credence, 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.

34. 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."

35. Another limb of the argument is that PW-5 and PW-6 are closely related to each other and because of enmity they have falsely implicated the accused. The law of the point is well settled. The evidence of such witness is to be closely scrutinized, with extra care and caution. It cannot be rejected merely for the reason that they are closely related to the complainant. If on a careful scrutiny, their testimony is found to be intrinsically reliable and trustworthy, then nothing prevents the court from placing reliance upon the same, it is now well settled law laid down in Dalip Singh v. State of Punjab, AIR,1953, SC 364, where Court has held as under :-

"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."

36. In Dharnidhar v. State of UP (2010) 7 SCC 759, Court has observed as follows :-

"There is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In the case of Jayabalan v. U.T. of Pondicherry (2010) 1 SCC 199, this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim"

37. In Ganga Bhawani v. Rayapati Venkat Reddy and Others, 2013(15) SCC 298, Court has held as under :-

"11. It is a settled legal proposition that the evidence of closely related 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. 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.

(Vide: Bhagalool Lodh & Anr. v. State of UP, AIR 2011 SC 2292; and Dhari & Ors. v. State of U. P., AIR 2013 SC 308)."

38. In Yogesh Singh (Supra), the Supreme Court summarized the legal position on the above issue as follows:

"28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related 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. 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)."

39. We have held that the presence of PW-5 and PW-6 was natural. Their testimony is consistent in respect of time and place of occurrence, the manner it took place and the persons instrumental in the same. They were subjected to lengthy cross examination, but the defence could not succeed in impeaching their creditworthiness by extracting anything suspicious.

40. It is settled that merely because witnesses are close relatives of victim, their testimonies cannot be discarded. Relationship with one of the parties is not a factor that affects credibility of witness, more so, a relative would not conceal the actual culprit and make allegation against an innocent person. However, in such a case Court has to adopt a careful approach and analyse the evidence to find out that whether it is cogent and credible evidence.

41. The result of above discussion is that there is clinching evidence to prove the prosecution case. The ocular version stands corroborated by the medical evidence. The accused had come with hand grenade and in prosecution of the common object murdered Smt. Ramdevi and caused injuries to the injured. They succeeded in executing their plan successfully. They were rightly found guilty of offences by the Trial Court. There is no mitigating circumstance or evidence for taking a different view on the quantum of punishment. The appeal is devoid of merit and is dismissed. If the surviving appellants are on bail, they shall be taken in custody forthwith to serve out their sentence.

42. Let a copy of this judgment be sent to the trial court concerned.

(Rajendra Kumar-IV, J.)    (Manoj Kumar Gupta, J.)
 

 
Order Date :- 01.07.2021
 
Manoj