Ashwani Kumar vs State Of U.P.
2023 Latest Caselaw 5342 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

                                                                       
 
							  Reserved on: 23.01.2023
 
						        Delivered on: 17.02.2023
 
Court No. - 28
 
Case :- CRIMINAL REVISION No. - 403 of 2013
 
Revisionist :- Ashwani Kumar
 
Opposite Party :- State of U.P.
 
Counsel for Revisionist :- Vaibhav Gupta,Farooq Ayoob,Kapil Gupta
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Mrs. Renu Agarwal,J.

1. The present Criminal Revision is filed under Sections 397/401 Cr.P.C. against the judgment and order dated 29.08.2013, passed by learned Additional Session Judge, Court No.8, Barabanki, in Criminal Appeal No.107 of 2011(Ashwani Kumar Vs. State of U.P.), arising out of Crime No.184 of 1996, under sections 279/304-A, IPC, Police Station Kothi District Barabanki, by means of which learned appellate court has dismissed the appeal and confirmed the judgment and order dated 21.11.2011, passed by learned A.C.J.M., Court No.17, Barabanki.

2. Prosecution version in brief is that the complainant alongwith his father Molhe and younger brother Sukhram was going to his village Arui from Siddhaor on 12.11.1996. At about 5.30 p.m. accused Ashwani Kumar dashed his father from behind with his motorcycle Rajdoot No. D.M.N.-4971 and took to his heels towards the village. The father of complainant expired at the spot. The dead body of the father of complainant and the motorcycle of accused Ashwani Kumar are lying at the spot. The incident is seen by villager Cheddan.

3. On the basis of written report FIR was lodged in police station concerned. Statement of witnesses were recorded. Investigating officer visited the spot and prepared site plan and send the corpse for autopsy alongwith relevant papers and after collecting necessary evidences submitted the charge sheet before the court under sections 279 and 304-A, IPC. Accused appellant was summoned in the court for the charge under sections 279, 304-A, IPC, to which he denied and claimed to be tried.

4. Prosecution adduced P.W.-1 complainant Brijlal, P.W.-2, Sukhram, P.W.-3 Bhailal, P.W.-4 Cheddan, P.W.-5 Balakram, P.W.-6 Suresh, P.W.-7 S.I. Chandra Prakash Singh and P.W.-8 Dr. Vimal Bhatacharya, in support of his case.

5. After perusing the record and hearing the submissions advanced by the A.P.O. and learned counsel for the appellant, learned trial court reached to the conclusion that P.W.-1 and P.W.-2 supported prosecution case, both are sons of deceased. P.W.-2, P.W.-5 & P.W.-6 are witnesses of inquest, who proved inquest report. The learned trial court reached to the conclusion that the motorcycle of accused is found at the spot and taken into custody. Recovery memo is proved by S.I. Chandra Prakash Singh. P.W.-4 was declared hostile by the A.P.O., but he partially supported the prosecution case, as to the effect that accident occurred and the father of complainant Molhe was dashed by motorcycle of accused Ashwani Kumar, who sustained injuries and died due to said injuries. On the basis of evidence adduced in the trial court, learned trial court convicted and punished the accused/revisionist Ashwani Kumar.

6. Aggrieved with the judgment and order dated 21.11.2011, Criminal Appeal No.107 of 2011 is filed by the accused/revisionist Ashwani Kumar in the court of District & Session Judge, Barabanki. During the course of appeal no additional evidence is adduced by any of the parties. Learned Additional Sessions Judge confirmed the judgment and order passed by lerned trial court, finding no abnormality, illegality, irregularity in the judgment of trial court. Learned appellate court found that the plea of false implication of the revisionist Ashwani Kumar cannot be entertained, as the prosecution witnesses proved the incident completely. Therefore, the court of first appellat jurisdiction confirmed the judgment of trial court.

7. Aggrieved with the judgment and order dated 29.08.2013 the present revision is filed on the ground that both the courts below did not consider the facts that the revisionist has already suffered a physical and mental agony. P.W.-4 Cheddan did not support the prosecution story. Revisionist was not arrested at spot and prosecution failed to create a reasonable doubt in the prosecution story. Therefore, it is submitted by learned counsel for the revisionist that the judgment and order dated 29.08.2013, passed by learned Additional Session Judge, Court No.8 and the judgment and order dated 21.11.2011 passed by learned Additional Chief Judicial Magistrate, Court No.17, are liable to be set-aside and prayed to acquit the revisionist of all the charges.

8. On the contrary, learned A.G.A. for the State submitted that the case is fully proved by the prosecution witnesses. The impugned motorcycle dashed the deceased Molhe and he died at the spot due to the injuries sustained by him in this accident. The revisionist fled towards the village leaving his motorcycle at the place of occurrence. Therefore, the judgment and order passed by the learned trial court and the first appellate court is liable to be confirmed.

9. According to FIR, complainant alongwith his father (now deceased) Molhe and his younger brother Sukhram was coming from Siddhaur to Arui, at the time of incident. He is an eye witness alongwith P.W.-1, P.W.-2, and P.W.-4 Cheddan, who arrived at the place of occurrence. P.W.-4 Cheddan has been declared hostile by the A.P.O., but he proved the prosecution case to the extent that when he reached to the road, he saw the dead body of Molhe and one motorcycle was also lying there, but he said that he does not know as to who was driving the motorcycle. P.W.-1, 2 & 4 proved this incident and there is no material contradictions in the statements of the witnesses, so as to disbelieve the prosecution story.

10. P.W.-8 Dr. Vimal Bhatacharya conducted the inquest of deceased and found the following injuries on the body of deceased:-

(i) Contusion 6 c.m. x 4 c.m. on the right temporal and parietal bone. Head bones were also found to be fractured.

(ii) Contusion 10 c.m. x 1 c.m. on the middle of chest and the ribs 3, 4 & 5 were fractured.

(iii) Abraded contusion 10 c.m. x 8 c.m. on the back of left shoulder.

(iv) Abraded contusion 3 c.m. x 2 c.m. on the left shoulder.

(v) Contusion 2 c.m. x 2 c.m. on the back of right wrist. Both radius and ulna were fractured.

(vi) Abrasions 3 c.m. x 2 c.m. on the left knee.

(vii) Lacerated wound 5 c.m. x 3 c.m. x muscle deep, on the lower part of right leg.

It is opined by the doctor that the head bones were fractured. Brain membrane was torned and blood clots were found. It is also opined that the cause of death of the deceased was shock and haemorrhage due to antemortem injuries.

11. Revisionist did not dispute the fact that the motorcycle belongs to him. It is stated by him in his statement recorded under section 313 Cr.P.C that he is falsely implicated in the present case due to political rivalry. It is also important to mention here that revisionist did not adduced any defence, however, he was given the opportunity by the trial court.

12. It is also submitted by learned counsel for the revisionist that P.W.-1 and P.W.-2 are intrested witnesses, therefore, their evidence cannot be relied upon, unless corroborated by any other independent 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 witnesses, 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 relative were not independent witnesses. Speaking through Vivian Bose, J., the Court observed :

We are unable to agree with the learned Judges of 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 is unfortunately still persist, if not in the judgments of the Courts, at any rate in the arguments of counsel."

In this case, the 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 an 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 be 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 wellsettled that a related witness cannot be said to be an ''interested' witnesses merely by virtue of being a relative of the victim. This court has elucidated the difference between ''interested' and '' related' witness 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 erms, 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 the 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 case was made by this Court in Dalip Singh v. State of Panjab 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 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 conistent. 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 witnesses cannot be ignored or shown out solely because it comes from the mouth of a person who is closely related to the victim."

15. P.W.-1 and P.W.-2 are real sons of deceased and were accompanying the deceased at the time of incident, therefore, they are very natural witnesses. P.W.-4 Cheddan corroborated the statement of P.W.-1 and P.W.-2, to the extent that accident occurred and he saw the dead body of deceased and the motorcycle lying at the spot. Revisionist did not disown the ownership of motorcycle. P.W. 1 and 2 are only witnesses who proved the incident beyond reasonable doubt. Therefore, the judgment and order dated 29.08.2013, passed by learned Additional Session Judge, Court No.8, Barabanki, in Criminal Appeal No.107 of 2011(Ashwani Kumar Vs. State of U.P.), arising out of Crime No.184 of 1996, under sections 279/304-A, IPC, Police Station Kothi District Barabanki, and the judgment and order dated 21.11.2011, passed by learned Additional Chief Judicial Magistrate, Court No.17, Barabanki, in Criminal Case No.443 of 1999, are based on the cogent evidence produced by the prosecution in the trial court, therefore, the judgments are liable to be upheld.

16. Learned counsel for the revisionist stated that accused has remained in jail for 31 days. It is also stated that he has already deposited one half of the total fine in the court concerned, therefore, taking a lenient view, he may be given to the benefit of first offender.

17. Learned counsel for revisionist did not adduced any oral or documantary evidence to the effect that why he should be given the benefit of first offender, however, it appears from the record that he has been detained in jail for 31 days and he has deposited one half of the fine, therefore, if the fine is enhanced, the purpose of law shall be fulfilled.

18. Hence the conviction order passed by judgment and order of trial court dated 21.11.2011 and the order of appellate court dated 29.08.2013, are hereby confirmed and appeal is partly allowed. On the point of punishment the order of trial court is modified to the extent that period of imprisonment is commuted to the period already undergone by the revisionist and the fine of Rs.1,000/- awarded under section 279 IPC is hereby confirmed and the fine of Rs.7,000/- awarded under section 304-A IPC is enhanced from Rs.7,000/- to Rs.20,000/-. The fine already paid by the revisionist shall be adjusted towards the fine to be realized by the court. The revisionist shall deposit the amount of fine within a period of one month from the date of production of a certified copy of this order in the court concerned.

19. Learned trial court is directed to award Rs.15,000/- as a compensation to the complainant, after giving notice to him.

20. Let a copy of this order and lower court record be sent to the concerned court for necessary action.

(Renu Agarwal,J.)

Order Date :- 17.02.2023/VKG