Anil Yadav vs State Of U.P.
2022 Latest Caselaw 5545 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

						        AFR                 							Reserved on 29.03.2022.
 
					          Delivered on 29.06.2022
 
     IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
 
                              LUCKNOW BENCH, LUCKNOW 		                                             
 

 
Case :- CRIMINAL APPEAL No. - 998 of 2008
 
Appellant :- Anil Yadav
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Mr. Maneesh Kumar Singh.
 
Counsel for Respondent :- Government  Advocate
 
Hon'ble Ramesh Sinha,J.

Hon'ble Mrs. Saroj Yadav,J.

(The judgment is pronounced in terms of Chapter VII Sub-rule (2) of Rule (1) of the Allahabad High Court Rules, 1952 by Hon'ble Ramesh Sinha, J.)

(Per Mrs. Saroj Yadav, J. for the Bench)

1. This Criminal Appeal has been filed by the convict/appellant Anil Yadav, against the judgment and order dated 23.12.2007 passed by Additional Sessions Judge/FTC IV, (Room No.13), Sultanpur in Sessions Trial No.284 of 2005, whereby the convict/appellant was held guilty for the offence punishable under Section 302/34 of Indian Penal Code, 1860 (in short I.P.C.) and sentenced to rigorous imprisonment for life coupled with a fine of Rs.5,000/- and in default of payment of fine to further imprisonment of six months. The convict/appellant was also held guilty and sentenced under Section 25 of the Arms Act in Sessions Trial No. 285 of 2005 whereby he was sentenced to rigorous imprisonment of two years coupled with fine of Rs.1,000/- and in default of payment of fine to further imprisonment of three months.

2. The facts necessary for disposal of this appeal shorn of unnecessary details are as under:

(i) A First Information Report (in short FIR) was registered at Case Crime No. 308 of 2005, under Section 302 of I.P.C. at Police Station Jaisingh pur, District Sultanpur, on the basis of written report presented by the complainant Vinod Yadav. It was described in the written report that on 13.06.2005 his father Asha Ram was coming back after leaving Ram Jagpal at his house and he (complainant) was coming to his home after visiting his sugarcane field. Anil and Sanjay, resident of the same village were sitting on culvert with sticks in their hands. At about 7-7:15 PM when his father reached near the culvert Anil assaulted his father on his hand, due to which his father fell down, then Anil and Sanjay both fired upon his father with country made pistols (tamanchas). He raised a loud cry then many persons of village came there then Anil and Sanjay ran away from the spot. His father sustained fire arm injury in his chest. He was carried to hospital where doctors declared him brought dead. The dead body was kept in the hospital.

(ii) On the FIR lodged, the police of concerned police station came into action and investigation started. Inquest report of the dead body was prepared, and the dead body was sent for postmortem along with necessary police papers. During investigation both the accused persons surrendered in the Court on 24.06.2005. The Investigating Officer recorded the statements of the accused persons in jail after taking permission of the Court, wherein the accused persons stated that they might get the weapons recovered, used for committing the crime. The Investigating Officer applied for the police custody remand which was allowed. The accused persons were remanded in police custody on 30.06.2005 for 24 hours. During police custody remand the weapons of offence were recovered at the pointing out of the accused persons alongwith live and empty cartridges. The case was registered against the accused persons under Section 25 of the Arms Act, at Case Crime No.339 of 2005 against accused Anil Yadav and at Case Crime No.340 of 2005 against Sanjay Yadav, under Section 25 of the Arms Act.

(iii) After investigation chargesheet No.47 of 2005 in Case Crime No.308 of 2005 of I.P.C. (Exhibit Ka-27) was submitted in the Court. The Chargesheet No.48 of 2005 in Case Crime No.339 of 2005 under Section 25 of the Arms Act against accused Anil Yadav (Exhibit Ka-31) was also submitted before the Magistrate concerned. After taking cognizance on the chargesheets submitted the Magistrate concerned committed the case to the Court of Sessions for trial. The Sessions Court framed charge under Section 302 read with Section 34 of I.P.C. The accused persons denied the crime and claimed to be tried. The charge under Section 25 of the Arms Act was also framed against both the accused persons. Both the accused denied the charge framed under Section 25 of the Arms Act also and claimed to be tried.

(iv) The prosecution in order to prove its case examined nine witnesses in toto, which are as under:-

1. P.W. 1 Vinod Kumar Yadav, the complainant.

2. P.W. 2 Om Prakash, the witness of Panchayatnama.

3. P.W.3 Ram Jagpal, the witness of the recovery of weapon of offence at the pointing out of the accused persons.

 
		4. P.W.4 Dr. C.P. Rawat, Senior Consultant of District 
 
		Hospital, Sultanpur, who conducted autopsy of the 			dead body of Asha Ram.
 
		5. P.W. 5 Syed Alamdar Hussain Rizvi, Police 			Inspector, who prepared Panchayatnama of the dead 		body of Asha Ram and sent the same for postmortem 		alongwith necessary papers.
 
		6. P.W.6 Head Constable Police, Durga Prasad, who 		wrote the chick FIR and prepared the concerned G.D.
 
		7. P.W. 7 Mr. S.K. Ram, Investigating Officer of Case 		Crime No.308 of 2005.
 
		8. P.W. 8 Sub Inspector Hari Shankar Prajapati, who 		accompanied with Station Officer S.K. Ram when the 		weapon of offence were recovered at the pointing out 		of the accused persons.
 
		9. P.W 9 Sub Inspector Shambu Sharavan Singh, 			Investigating Officer of Case Crime No.399 of 2005 		and Case Crime No.340 of 2005 both under Section 		25 of the Arms Act.
 
	(v) Apart from above witnesses the prosecution also proved 	the necessary documents which are as under:-
 
		1. Exhibit Ka-1 written report. 
 
		2. Exhibit Ka-2 Panchayatnama. 
 
		3. Exhibit Ka-3 recovery memo of recovery of 			weapons of offence.
 
		4. Exhibit Ka-4 postmortem report. 
 
		5. Exhibit Ka-5 information sent to police station 	
 
		from hospital about the dead body.
 
		6. Exhibit Ka-6 specimen seal. 
 
		7. Exhibit Ka-7 letter to Reserve Inspector.
 
		8. Exhibit Ka-8 letter to C.M.O.
 
		9. Exhibit Ka-9 Photonash (Police Form No.379)
 
		10.Exhibit Ka-10 details of sending the dead body for 		postmortem. 
 
		11.Exhibit Ka-11 carbon copy of concerned G.D. 			dated 13.06.2005.
 
		12. Exhibit Ka-12 Chick FIR.
 
		13. Exhibit Ka-13 carbon copy of Kayami GD.
 
		14. Exhibit Ka-14 Chick FIR of Case Crime No.339 		of 2005 and Case Crime No.340 of 2005. 
 
		15. Exhibit Ka-15 Site plan of the place of 				occurrence. 
 
		16. Exhibit Ka-16 carbon copy of recovery memo. 
 
		17. Exhibit Ka-17 to 24  photographs relating to 			recovery of weapons of offence. 
 
		18. Exhibit Ka-25 'Nakal Rapat' No.24 at 15:10 hours 		dated 30.06.2005. 
 
		19. Exhibit Ka-26 Site plan of the place of recovery of 		weapon of offence prepared at the time of recovery. 
 
		20. Exhibit Ka-27 chargesheet of Case Crime No.308 		of 2005.
 
		21. Exhibit Ka-28 letter to Forensic Science 				Laboratory. 
 
		22. Exhibit Ka-29 Site plan of the place of recovery of 		weapon of offence prepared by the Investigating 			Officer. 
 
		23. Exhibit Ka-30 prosecution sanction for 				prosecution of the accused persons under Section 25 		of the Arms Act. 
 
		24. Exhibit Ka-31 chargesheet of Case Crime No.339 		of 2005, under Section 25 of the Arms Act. 
 
		25. Exhibit Ka-32 report of Forensic Science 			Laboratory. 
 
		26. Exhibit Ka-33 report of Forensic Science 			Laboratory. 
 

(vi) After recording of evidence learned trial Court declared accused Sanjay Juvenile and sent his case before the Juvenile Justice Board for trial. Thereafter the statement of concivt/appellant Anil was recorded under Section 313 of the Code of Criminal Procedure (in short Cr.P.C.), wherein he denied the crime and also the recovery of weapon of offence. He further stated that witnesses have deposed falsely and the case has been registered against him due to enmity. He has further stated that the deceased was killed somewhere else by someone else in the dark of the night and he has been implicated due to enmity of parcenery (pattidari). One witness Suresh was also examined by the convict/appellant in his defence.

(vii) After completion of evidence, hearing the arguments of both the sides and analysing the evidence available on record the learned trial court found the evidence of eye witness P.W.1 trustworthy and the ocular evidence consistent with the medical evidence. Learned trial court also found proved that weapon of offence was recovered at the pointing out of the convict/appellant and all the necessary facts and circumstances were proved by the prosecution beyond reasonable doubt and found the convict/appellant guilty for the offence punishable under Section 302/34 of I.P.C. and sentenced to life imprisonment coupled with fine noted herein above. (para 2(iii))

(viii) Learned trial court also found proved the offence under Section 25 of the Arms Act and sentenced the convict/appellant for the offence.

(ix) Being aggrieved of this conviction and sentence the present appeal has been preferred by the convict/appellant.

(3) Heard Shri Manish Kumar Singh, learned counsel for the appellant and Ms. Smiti Sahai, learned A.G.A. for the respondent State.

(4) Learned counsel for the convict/appellant argued that the learned trial court has committed grave error in holding guilty and sentencing the convict/appellant because the FIR is anti time and fabricated. The alleged eye witness was not present at the place of occurrence. He has deposed falsely. No blood was found at the place of occurrence. The memo of motorcycle of the deceased was not prepared. The medical evidence does not support the ocular testimony. No independent witness has been examined by the prosecution. P.W.1 is the son of the deceased, he has deposed falsely and has tried to improve his version during recording of his statement in trial court in order to make it consistent with the medical testimony. The Forensic Science Laboratory report cannot be read in evidence. The recovery of alleged weapon of offence is highly doubtful and no independent witness of the incident has been produced by the prosecution. The crime number has not been mentioned in the inquest report. The prosecution remained unable to prove the guilt of the convict/appellant beyond reasonable doubt. Therefore, the impugned judgment and order should be set-aside.

5. Contrary to it, learned A.G.A. argued that the evidence of P.W.1, the complainant and the son of deceased is true as no major contradiction could be brought by the defence during the cross-examination. The weapon of offence was recovered at the pointing out of the convict/appellant. The medical evidence as well as ocular evidence is consistent with each other. According to Forensic Science Laboratory report the empty cartridges recovered at the spot were found fired by the weapon recovered at the pointing out of the convict/appellant Anil. In the opinion of autopsy surgeon the cause of death was shock and hemorrhage due to ante-mortem injuries. FIR was lodged promptly without any unreasonable delay. For non mentioning of the crime number in the inquest report, the registration of the FIR cannot be doubted. The motive of the crime has been alleged and proved. As far as the place of occurrence is concerned, it is very well proved and even the defence witness has supported the place of occurrence mentioned in the FIR. Thus there is no error or discrepancy in the impugned judgment. Therefore, the appeal should be dismissed.

6. Considered the rival submissions and perused the original record of trial court as well as of appeal. The perusal of the record as well as the impugned judgment and order shows that the conviction rests mainly on the evidence of P.W. 1 Vinod Kumar, complainant of the case. This witness has stated before the trial court that accused Anil Yadav and Sanjay Yadav are the residents of his village. Where the incident took place, a metalled road goes from Sameri to Mahorua Ambedkar Nagar and from that metalled road one paved road (kharanja) on the north side goes to Madhavpur and at the place where paved road emerges one culvert is there. Prior to this incident Anil Yadav used to drive his tractor. He stopped to drive tractor, prior to one and a half or two years of the incident. Some altercations took place on it, and for this reason the accused persons became inimical. He further stated that both the accused are present in the Court. After leaving the job of driving the tractor of the complainant the accused persons went to Indore. The incident occurred on 13.06.2005 at about 7:15 PM. On that day his father asked him to visit the sugarcane field, for that reason he went to Gram Itkohiya on motorcycle and his father went to Gram Itkohiya by his own motorcycle. When he (witness) was coming back after visiting sugarcane field and reached at the road, at the same time his father was also coming on his motorcycle and he saw that Anil Yadav and Sanjay were sitting on the culvert with sticks in their hands. When his father came near the culvert the accused Anil Yadav assaulted his father with stick on his hand and accused Sanjay caught his motorcycle from behind and made him fell down. Thereafter both the accused persons fired upon his father with an intention to kill him. He shouted loudly, hearing his shout villagers came there then both the accused ran away. Due to firing made by accused persons, his father sustained injuries in his chest. After that, with the help of the people of village he carried his father to the hospital where doctors declared him dead. Thereafter he dictated and got written an application by Bechu Verma and after hearing that put his signature on that application. The application was presented by him at the police station Jaisinghpur and an FIR was registered. He proved his written report as Exhibit Ka-1 and recognized his signature on that.

7. He has further stated that the Investigating Officer recorded his statement and he showed the spot to the Investigating Officer, this examination-in-chief of the witness was recorded on 24.04.2006, but on that day, the counsel for the accused persons did not cross examine the witness and sought adjournment, the adjournment was allowed and 25.4.2006 was fixed to continue with the evidence. On 25.04.2006 also the witness P.W.1 remained present, but the counsel for the accused persons moved adjournment and that was rejected and an opportunity to cross examine the P.W. 1 was closed and date 04.05.2006 was fixed. Thereafter the counsel for the accused moved application to recall P.W.1 and that was allowed and the witness was recalled for cross-examination and his cross-examination was recorded on 11.01.2007 and again on 17.01.2007. A lengthy cross-examination has been made on behalf of the convict/appellant, but no major contradiction could be brought in cross-examination. The ocular account presented by this witness has been supported by the medical evidence. P.W. 4 who conducted the postmortem, prepared the report, has proved the postmortem report as Exhibit Ka-4 and also the injuries noted therein. In the postmortem following injuries were found on the cadaver of the deceased.

" 1. Lacerated wound 4 cm x 1 cm x bone-deep present on the left side of skull.

2. Lacerated wound 3 cm x 1 cm muscle-deep present on occipital region of skull.

3. Fire arm wound of entry 1 cm x 1 cm x Chest cavity deep present on the center of chest, margins were inverted and lacerated and blackening and tattooing were present around the wound area of 4 cm x 3 cm. "

8. In the opinion of autopsy surgeon the death occurred due to shock and hemorrhage, as a result of fire arms injuries.

9. In the chest cavity 1.5 liter clotted blood was found. One bullet was found in the heart of the deceased and the autopsy surgeon after extracting the same from the cadaver put in an envelope and sealed it and handed over to the police personnel. In the opinion of the autopsy surgeon the injury No.1 & 2 can be caused by a stick (danda), injury No.3 can be caused by fire arm (tamancha). According to this medical witness injury No.3 was on vital part of the deceased and was sufficient enough to cause death. In his opinion injuries found on the body of the deceased would be possible in the incident occurred on13.06.2005 at about 7:15 PM. Thus the perusal of the evidence of this medical witness shows that the injuries found on the body of the deceased are in consonance with the ocular account given by the complainant P.W.1.

11. Learned counsel for the convict/appellant argued that the complainant in his written report has mentioned that accused hit his father by stick on his hand, but in the statement made before the court he improved his version and stated that the accused hit his father on his head and this creates serious doubt. No doubt the complainant in his written report has mentioned that accused hit his father on hand and in the statement made in the Court he stated that his father was hit on the head, but the main injury which was found on the chest and caused death was correctly mentioned by the complainant in the FIR and also in his evidence before the trial court. Hence this argument raised by defence counsel is of no importance.

12. The counsel for the convict/appellant also submitted that no independent witness has been examined. The only witness P.W.1 is a related witness as he is son of the deceased, hence his testimony should not be relied upon. This argument also of the defence is of no importance because it is well settled law that the evidence of a witness cannot be doubted only for the reason that he is a related witness.

13. In Kartik Malhar Vs. State of Bihar: (1996) 1 SCC 614, the Hon'ble Apex Court has held as under:-

"We may also observe that the ground that the witness being a close relative and consequently, being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dilip Singh's case (supra) in which this Court expressed its surprise over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., the Court observed :

"We are unable to agree with the learned Judges of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rules. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. The State of Rajasthan, [1952] SCR 377 = AIR 1952 SC 54. We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."

In this case, this Court further observed 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 tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must he laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."

14. In another case of Mohd. Rojali Versus State of Assam: (2019) 19 SCC 567, the Hon'ble Apex Court in this regard has held as under:-

"As regards the contention that all the eye­witnesses are close relatives of the deceased, it is by now well­ settled that a related witness cannot be said to be an ''interested' witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between ''interested' and ''related' witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki, (1981) 2 SCC 752; Amit v. State of Uttar Pradesh, (2012) 4 SCC 107; and Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298). Recently, this difference was reiterated in Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 549, in the following terms, by referring to the three Judge bench decision in State of Rajasthan v. Kalki (supra): "14. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be "interested"..."

11. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab, 1954 SCR 145, wherein this Court observed:

"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person..."

12. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. Union Territory of Pondicherry, (2010) 1 SCC 199:

"23. We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."

15. Learned counsel for the defence vehemently argued that the place of occurrence is doubtful, as no blood was found by the Investigating Officer at the place of occurrence. It is true that the Investigating Officer has stated that he did not find any blood on the spot, but for this reason only the direct ocular evidence cannot be doubted. It is quite possible that due to the gathering of the people of the village at the place blood might have disappeared or it is also possible that most of the blood remained inside the body of the deceased, as per postmortem report 1.5 lt. blood was found in the chest cavity of the deceased.

16. In the case of State of Rajasthan Vs. Satya Narain (1998) 8 SCc 404 the Hon'ble Apex Court has held that merely because of absence of blood at the place of occurrence, the occurrence of the incident itself cannot be doubted.

17. Learned counel for the convict/appellant has also argued that the recovery of weapon is doubtful. This argument also, of the defence counsel is very feeble, because the recovery has very well been proved by the prosecution by producing the independent witness P.W.3 Ram Jagpal and also by the evidence of P.W.8 Sub Inspector Hari Shankar Prajapati.

18. Thus to sum up, the prosecution has proved the commission of crime by the convict/appellant. P.W. 1 the eye witness has proved the incident and his testimony was supported by the medical evidence. The motive of the crime has also been proved i.e. convict/appellant used to drive the tractor of the deceased and some altercations took place between the deceased and the convict over the issue, for that convict/appellant was inimical to the deceased. The fact of dispute regarding driving of tractor has also been suggested by the defence counsel to P.W. 1 in cross-examination.

19. Thus the prosecution has proved the charges levelled against the convict/appellant beyond reasonable doubt and the learned trial court has rightly held him guilty and sentenced accordingly. There appears no ground for interference in the conviction and sentence recorded by the trial court.

20. The convict/appellant is already in jail, he shall serve out the sentence awarded by the learned trial court.

21. The appeal is dismissed, accordingly.

22. Office is directed to send a copy of this order along with lower Court record to the trial Court concerned for necessary information and compliance forthwith.

(Mrs. Saroj Yadav, J.) (Ramesh Sinha, J.)

Order Date :- 29.06.2022

A.K.Singh