Shree Pal And Others vs State
2021 Latest Caselaw 8272 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R. 
 
   Reserved on : 20.01.2021
 
Delivered on : 20.07.2021
 
Court No. -75
 

 
Case :- CRIMINAL APPEAL No. - 1244 of 1987
 

 
Appellant :- Shree Pal And Others
 
Respondent :- State
 
Counsel for Appellant :- S.P.S. Raghav,Gopal Sahai Srivastava,Indra Kumar Chaturvedi,Rekha Pundir
 
Counsel for Respondent :- A.G.A.
 

 
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, Shripal, Vijaypal, Kiranpal and Rishipal against the judgement and order dated 30.04.1987 passed by III Additional Sessions Judge, Meerut in Sessions Trial No.420 of 1982, Police Station Sardhana, District Meerut, whereby trial Court convicted the accused appellants under Sections 302/34, 201 and 307/34 IPC and sentenced them for life imprisonment and fine of Rs.200/- each with default clause.

2. According to prosecution story in brief, one Rajpal was shot dead on 25.08.1982 at about 11:00 AM in Village Kapsar, Police Station Sardhana, District Meerut by accused-appellants Shripal, Vijaypal, Kiranpal and Rishipal and accused persons took away his dead body towards Rajwaha. Informant was also injured by shrapnel. Incident was reported to police station concerned telephonically by informant PW-1 Jagdish.

3. On the basis of information received telephonically, a chik FIR Ex.Ka-14 was registered by Head Constable Moharrir Rajpal Singh at Crime No. 256 of 1982, under Sections 302, 201 and 307 IPC. Entry was made by same Constable in G.D. of police station concerned.

4. The then S.H.O. Roshan Lal Verma PW-5 undertook investigation of the case and took relevant papers, proceeded to spot along-with S.I. V.S. Sharma and other police officials. Recorded the statement of PW-1 Jagdish, PW-2 Smt. Ummed (W/o deceased) and other witnesses, visited the spot, prepared site plan Ex.Ka-2 at the pointing out of informant, found signs of dragging the dead body up to Gang Naher, prepared site plan of that place i.e. Ex.Ka-3, collected blood stained earth and simple earth of place of incident, prepared fards thereof and searched the body on the bank of river but found it nowhere. Investigating Officer collected blood stained soil and some pieces of wound there from and prepared fards thereof.

5. On the next day, Investigating Officer received information from one Mohd. Yaseen regarding dead body that was entered into G.D.15. Investigating Officer visited there with S.I. V.S. Sharma and other officials, directed S.I. to hold inquest over the dead body which was beheaded. Sri Sharma held inquest Ex.Ka-6 and prepared relevant papers thereof. Dead body was sent for postmortem. On the very same day, Investigating Officer recorded the statement of Mohd. Yaseen.

6. Further investigation was done by PW-7 S.I. A.K. Chaudhary due to transfer of former Investigating Officer.

7. PW-3 Dr. Prempal Singh medically examined PW-1 Jagdish on 25.08.1982 and found one lacerated wound on scalp of right parital measuring 0.8 x 0.2 cm muscle deep and clotted blood was also found over the injury. Doctor prepared medico legal report Ex.Ka-1.

8. PW-8 Dr. Vijay Singh held autopsy over the dead body of Rajpal and prepared postmortem report Ex.Ka-13, noting ante mortem injuries therein.

9. PW-7 S.I. A.K. Chaudhary, after completing entire formalities of investigation, found sufficient evidence against accused persons and submitted charge sheet Ex.Ka-12 against the accused-appellants before CJM concerned who took cognizance of the case.

10. CJM, after making sufficient compliance under Section 207 Cr.P.C., case being triable by Court of Sessions, committed it to Court of Sessions for trial.

11. Session trial came to be heard by III Additional Sessions Judge, Meerut. Trial Court framed the charges under Sections 302/34, 201 and 307/34 IPC against the accused-appellants, who denied the charges and pleaded not guilty and claimed to be tried.

12. In support of its case, prosecution examined nine witnesses, namely, PW-1 Jagdish, PW-2 Smt. Ummed, PW-3 Dr. Prem Raj Singh, PW-4 Dharampal, PW-5 S.H.O. Roshan Lal Verma, PW-6 Constable Shaukat Ali, PW-7 S.I. A.K. Chaudhary, PW-8 Dr. Vijay Singh and PW-9 Moharrir Rajpal Singh out of which PWs 1 Jagdish and PW-2 Smt. Ummed are witnesses of fact and rest are formal witnesses.

13. On closure of evidence by prosecution, Court recorded the statements of accused persons under Section 313 Cr.P.C. explaining entire evidence and incriminating circumstances. Accused persons denied the prosecution story in toto. Statements of witnesses are alleged to be wrong, they claimed false implication but they did not set up any defence story. They did not choose to lead any evidence in their defence.

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

15. We have heard Sri Indra Kumar Chaturvedi, learned Senior Council assisted by Sri Hari Mohan Kesarwani for the appellants and Sri S.A. Murtaza, learned AGA for State and we have gone through the record with the valuable assistance of learned Counsel for the parties.

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

i. Accused-appellants are innocent, they have committed no offence and they have been falsely implicated in the present case.

ii. There was no sufficient and prompt motive to accused-appellants to commit murder of deceased Rajpal in the presence of witnesses who are the close relative of deceased, enabling them to give video-graphic version.

iii. As per prosecution evidence, dragging of dead body is alleged but postmortem report does not indicate any sign of dragging over dead body of deceased. Body was found beheaded, there is no injury of any fire arm over the dead body. It seems that story of opening fire on head has been developed by prosecution after postmortem report is received because body was beheaded.

iv. Sripal is alleged to have gun with him but there is no fire arm injury on deceased or alleged injured PW-1.

v. Medical evidence does not go with the prosecution case and it is not sufficient to prove the guilt of the accused-appellants.

vi. Medical report of PW-1 also does not support the story of PW-1 as injury found was of hard blunt object while it is stated to have been caused by fire arm.

vii. Police failed to recover the head of the deceased or any offending arms allegedly used in the commission of offence from the possession of any of the accused.

viii. PWs 1 and 2 being close relative of deceased is not worthy of credence. There is no public witness whereas incident is said to have taken place in the light of day.

ix. Incident is said to have taken place in the broad daylight and PW-2 stated that more than 100 persons had gathered there but nobody came forward to support the prosecution case.

x. No independent witness has been produced from the side of prosecution.

xi. There is material contradiction in the evidence of witness so as to disbelieve the prosecution case.

xii. Deceased had previous litigation with other persons besides accused-appellants. He might have been murdered by someone else.

xiii. Place of standing buggi has neither been shown in site plan nor any recovery memo has been prepared by Investigating Officer.

xiv. Trial Court, without appreciating proper evidence and in haphazard manner, passed impugned order of conviction which is liable to be quashed.

17. On the other hand, learned AGA supporting the impugned judgement submitted that it is a daylight murder. PW-1 has been injured in the incident and it is settled legal position that evidence of injured persons cannot be ignored lightly unless it is proved otherwise. Relationship of the witnesses to victim/deceased is not a ground for ignoring their evidence. This is a case of direct evidence where motive has no relevance although motive shown by prosecution for committing murder of Rajpal has been established by prosecution. Body was identified by PW-2 wife of deceased and father of deceased (not examined). Evidentally Rajpal was brutally murdered and there was no reason for the witnesses to falsely implicate the accused persons. Prosecution story is fully supported by medical evidence. Trial Court has rightly convicted the accused-appellants.

18. Before adverting to submission made by learned Counsel for the accused-appellants, we would like to consider the evidence of witnesses on the point of time of incident, weapon and manner in which incident took place.

19. PW-1 informant Jagdish deposed that incident took place at 11:00 AM on 25.08.1982. He (informant), his cousin Rampal (deceased) and Smt. Ummed PW-2 wife of Rajpal (deceased) were returning to his house taken Mayar in Buggi from his field, when they reached at the patri of Rajwaha (Canal) accused Sripal, Vijaypal, Kiranpal and Rishipal came there with their respective weapons. Sripal and Rishipal were armed with gun, Kiranpal was armed with Katta and Vijaypal having farsa. Accused took down Rajpal from Buggi saying that he was head of the opposite party whereupon he and Smt. Ummed raised alarm. Accused Sripal hit fire on the head of Rajpal. Sripal also fired on him, all the accused persons assaulted Rajapal with their respective weapons. All the accused persons tied the hands of Rajpal by his own shirt and his leg by bed sheet and took him away towards Canal. Informant ran away to his village leaving Smt. Ummed on spot. Statement further recites that Rajpal (deceased) sustained head injury by fire arm. He was also injured in head by shrapnel. In cross examination, PW-1 states that all the accused persons are his family member, he ran away from spot leaving his Bhabhi PW-2 there, he made telephone call from post office. He further deposed that when he again reached on spot, Buggi was there but Bhabhi was not there. He did not know how long after the incident his Bhabhi came there. In entire cross examination, neither place, date and time of incident nor the murder of Rajpal has been challenged by the accused persons. It appears that cross examination has been made for the sake of cross examination.

20. PW-2 Smt. Ummed deposed that at the time of occurrence she, her husband Rajpal and her Dewar Jagdish were coming from Jungle, when they reached on the parti of Canal, accused Sripal, Vijaypal, Kiranpal and Rishipal met there. All the accused persons told Rajpal that he was the head of opposite party and took him down, when they raised alarm accused Sripal hit first fire on Rajpal and second fire on Jagdish. Her husband fell down on the earth having sustained fire-arm injury and all the accused persons started cutting him, accused persons tied the hands of her husband with his own shirt and his legs with bed sheet. They took him towards Canal. She further deposed that her Dewar PW-1 ran away to village and gave information to Police through telephone. She further deposed that at the time of incident only she and her Dewar was there, no other family member was there. Telu and Santa who were the outsider have come, who witnessed the incident. She further stated that dead body of her husband was recovered from Gang Naher next day at 07:00 AM. She further states in her examination-in-chief that there was an enmity between her husband and his family (accused persons) from before her marriage. In her cross examination she had gone to her field one day before the incident. She did never go to field before. She is not in position to tell whose fields are near the field of Jagdish and her. She specifically stated in paragraph 8 of her statement that accused persons took off her husband and Sripal opened fire. Accused Vijaypal attacked with farsa. Where incident took place, her husband's blood was spilled. Nobody chased the accused. In paragraph no.12 of statement, she admits that dead body was recovered before her. Suggestion put before her that she had not seen the incident has been denied by the witness. Defence did not put any suggestion challenging the time, date of incident and murder of Rajpal.

21. Both the witnesses withstood the lengthy cross examination but nothing could be brought so as to disbelieve their statements.

22. Statement of PW-2 and her presence on spot with her husband is quite natural. Presence of PW-1 Jagdish got cemented with the statement of PW-2. Time, place and manner in which Rajpal has been murdered is unchallenged from the statement of PWs 1 and 2, incident stands corroborated.

23. Now only question remains for consideration before us is that who are responsible for causing murder of Rajpal and whether trial Court has rightly convicted the accused-appellants under the aforesaid sections or not?

24. PW-8 Dr. Vijay Singh conducted the autopsy over the dead body of Rajpal at about 02:20 PM on 27.08.1982. He opined that death was possible at 11:00 AM on 25.08.1982 as a result of ante mortem injuries. Doctor found following antemortem injuries on his person at the time of postmortem:-

i. Incised wound amputating the head from trunk at the lower part of neck. 38 cm in circumference and 13 cm from interior to back. Borders were incised and interrupted. All the soft tissues including trachea, esophagus and large vessels were cut underneath, VI cervical vertebrae was also cut into half.

ii. Incised wound 2 cm x 2 cm Skin deep left side front of chest upper part.

iii. Incised wound 2 cm x 2 cm muscle deep with tailing at lower end on inner part of front of lower chest.

iv. Incised wound 1 cm x ¾ cm x skin deep on left base of neck.

v. Incised wound 11 cm x 6 cm muscle and bone deep both on top of left shoulder cutting the head left humorous and achromion process.

vi. Incised wound 6 cm x 2 cm bone deep of back chest 5 cm from midline tailing present on outer end.

Vii. Two incised wound 4 ½ cm x 2 cm and 3 ½ cm x 1 ½ cm both muscle deep and parallel each other and also parallel to injury no. 6, 4 cm above injury no.6.

Viii. Incised wound 7 cm x 2 cm bone deep upper part of back of left chest, tailing present on the outer end.

ix. Incised wound 5 cm x 1 cm x skin deep 2 cm interior to injury no.8.

x. Contusion 14 cm x 2 cm on back and ineer side of right arm extending from upper end of right arm to back of right elbow.

25. PW-5 S.I. Roshan Lal Verma deposed that on 25.08.1982, he was posted as S.H.O. at police station Sardhana . On the very same day on the basis of telephone call made by Jagdish, case was registered in his presence. He under-took investigation, visited spot along-with S.I. V.S. Sharma and Constable Shaukat Ali, recorded the statement of PWs 1 and 2, on the pointing out of PW-1 inspected the spot, prepared site plan Ex.Ka-2. He found the sign of dragging the dead body up to Gang Naher, prepared site plan Ex.Ka-3. Collected blood stained and simple earth from spot and prepared fard thereof. He searched the dead body and found blood stained earth and some pieces of wound at the bank of Canal. On 26.08.1982, on the information made by Mohd. Yaseen, he reached at Gang Naher and directed S.I. V.S. Verma to hold inquest over the dead body which was found in Gang Naher. Ultimately after completing entire formalities of prosecution, charge sheet was submitted by S.I. A.K. Chaudhary.

26. From the statement of PWs 1 and 2 discussed above and perusal of statements of witnesses PWs 8 and 5, complicity of accused persons in commission of offence stands proved.

27. One of the argument advanced by learned Senior Counsel for appellants is that as per prosecution, accused persons opened fire on the deceased Rajpal but there was no fire arm injury found on the dead body of deceased while conducting postmortem by doctor, thus prosecution case is not supported by medical evidence and statements given by PWs 1 and 2 inspires no confidence.

28. So far as the argument advanced by learned Counsel for accused-appellants, we are not convinced for the reasons that witness PW-1, alleged eye witness, specifically deposed that accused Shree Pal fired on the head of Rajpal. Accused Shree Pal fired on him also and other accused persons assaulted Rajpal with their respective weapons.

29. It is also noteworthy that dead body of Rajpal was recovered beheaded and his head could not be traced out by police. When head of Rajpal could not be recovered by police, panchayatnama and postmortem of his head could not be conducted, therefore, there was no accused of any fire-arm injury in the postmortem report, argument is misconceived and not worthy to be accepted.

30. 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.

31. 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.

32. 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.

33. In Sachin Kumar Singhraha v. State of Madhya Pradesh, (2019) 8 SCC 371, 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.

34. 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 Smt. Shamim v. State (GNCT of Delhi), (2018) 10 SCC 509.

35. 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)."

36. 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., accused persons simply stated that they have been falsely implicated on account of rivalry. No evidence was adduced from the side of defence. They denied the prosecution case and statement of witnesses is said to be of rivalry. No specific plea has been taken by accused persons as to why they have been trapped in so serious matter. Time, date and murder of Rajpal has not been challenged by the accused persons in cross examination or statement under Section 313 Cr.P.C.

37. So far as motive is concerned, it is well settled that where direct evidence is worthy of 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 there was no strong motive to commit the present offence, prosecution case cannot be disbelieved.

38. 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."

39. Another limb of argument is that PW-1 and PW-2 are closely related to each other and because of enmity they have falsely implicated the accused. The law on this 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."

40. 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"

41. 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)."

42. 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)."

43. We have held that the presence of PW-1 and PW-2 was natural. Their testimony is consistent in respect of time and place of occurrence, the manner in which occurrence took place, witnesses were subjected to lengthy cross examination, but the defence could not succeed in impeaching their creditworthiness by extracting anything suspicious.

44. 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.

45. The result of above discussion is that there is concrete evidence to prove the prosecution case. The ocular version stands corroborated by the medical evidence. Accused persons had come with lathi, danda, farsa and gun and in prosecution of common object, brutally murdered Rajpal. The circumstances that accused shot fire on Rajpal, dragged him to canal where they caused serious injuries by cutting his head and threw the dead body in the canal, would show that occurrence could not be carried out by one person alone, therefore, involvement of all accused persons seems to be in incident. 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 conviction and sentence awarded by the trial Court. The appeal is devoid of merit and is dismissed. Accused-appellants shall be taken in custody forthwith to serve out their sentence.

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

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

 
Order Date :- 20/07/2021
 
I.A. Siddiqui