Allahabad High Court
Ram Pyare Yadav And Another vs State Of U.P. on 1 October, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:160265-DB
Reserved on 27.8.2024
Delivered on 01.9.2024
1. Case :- CRIMINAL APPEAL No. - 2814 of 2010
Appellant :- Ram Pyare Yadav And Another
Respondent :- State of U.P.
Counsel for Appellant :- Gajendra Pratap,H.Narayan Singh,R.R.Singh
Counsel for Respondent :- Santosh Kumar Singh,Shailesh Kumar Tripathi
Heard Sri Gajendra Pratap, learned Senior Counsel assisted by Sri Satyendra Prakash Srivastava, learned counsel for the appellants; Shri Santosh Kumar Singh and Shri Shailesh Kumar Tripathi, learned counsels for the informant; Ms. Divya Ojha, learned A.G.A.-I for State and perused the material on record.
With
2. Case :- CRIMINAL APPEAL No. - 3017 of 2010
Appellant :- Om Pal Singh
Respondent :- State of U.P.
Counsel for Appellant :- Jagdish Singh Sengar,Lav Srivastava,R.R.Singh,Rajesh Kumar Singh
Counsel for Respondent :- Santosh Kumar Singh,Shailesh Kumar Tripathi
Heard Shri Rajesh Kumar Singh, learned counsel for the appellant, Shri Santosh Kumar Singh and Shri Shailesh Kumar Tripathi, learned counsels for the informant; Ms. Divya Ojha, learned A.G.A.-I for State and perused the material on record.
Hon'ble Siddharth,J.
Hon'ble Syed Qamar Hasan Rizvi,J.
(Delivered by Hon'ble Siddharth,J.)
1. The above noted criminal appeals have been filed against the judgement and order dated 23.4.2010 passed by Additional Sessions Judge, Mau, Court No.3, in Sessions Trial No.375 of 2004 (State Vs. Umesh Yadav and others), convicting and sentencing the appellants under Section 302/34I.P.C. for life imprisonment with fine of Rs.15,000/- each. The appellants shall undergo additional imprisonment of one year each in default of payment of fine imposed against them.
2. The prosecution case, as per FIR, is that at about 8:30 p.m. on 27.9.2004 informant had gone towards east of his house to ease himself. As soon as he reached near the canal, he heard the shrieks of his brother, Darshan Yadav. The informant ran to save his brother raising alarm. When he reached there, he saw that on the junction of water outlets from the canal, co-villagers, Umesh Yadav, s/o Ramsareekh Yadav, Rampyare Yadav, s/o Late Gaya Yadav and Om Pal Singh, s/o Ram Krishna Singh, were causing injuries by spade to his brother. The informant saw the aforesaid persons in the light of torch, who ran away seeing the informant. This incident was seen by Ram Ashish Yadav, s/o Srikant Yadav and Saroj Singh, s/o Ram Singh apart from the informant. Because of the injuries caused by the aforesaid assailants, his brother died. Hence FIR was lodged against three accused named above at police station Kopaganj, District Mau, as Case Crime No.720 of 2004 on 27.9.2004 at about 22:30 hours.
3. The accused were charged under Section 302/34 IPC. They denied the charges and sought trial.
4. Before the trial court, prosecution produced PW-1, Paltan Yadav, the informant; PW-2, Prem Nath; PW-3, Sup Inspector, Mritunjai Misra; PW-4, Dr. S.P. Rai, Senior Physician; PW-5, Fahimuddin Khan, the Investigating Officer and PW-6, Contable Udai Raj Yadav as witnesses to prove the prosecution case.
5. Before the trial court, statements of accused under Section 313 Cr.P.C. were recorded wherein they denied the charges made against them. The defence produced DW-1, Santa Yadav and DW-1, Akhilesh.
6. In his examination-in-chief, PW-1, Paltan Yadav, repeated allegations made in the FIR and further stated that on 27.9.2004, his brother had gone for channelling the water to his field from the canal. He was 40-50 steps away on west side of the chak road, when he heard the sound of shrieks of his brother. He was having torch. He flashed his torch and ran towards the canal making noise to save his brother, where he saw that appellant, Umesh Yadav, was holding the legs of his brother, Darshan Yadav and appellant, Ram Pyare Yadav, was holding his arms. His brother had fallen down and appellant, Om Pal Singh, was cutting his legs by spade. He saw and recognized these persons in the torch light. This incident was seen by Ramashish, Saroj Singh, Srikant, Jagdish, etc., who were monitoring the flow of water from canal to their field and had reached the place of incident immediately. Prior to this incident, appellant, Om Pal Singh had cut the canal water channel due to which his dispute took place with informants' brother, Darshan Yadav and his brother got the breach in canal repaired. Four months before the incident, his dispute took with appellants, Umesh Yadav and Ram Pyare, regarding which case was got registered. Hence they killed his brother. The deceased died after 2-4 minutes of his arrival on the spot. He gave an application at Police Station Kopaganj, where he went with Srikant, Prem Nath and Jagdish. He proved the same and also the memo of Sapurdaginama of torch produced by him before police. He further stated that the inquest proceedings on the dead body of deceased were conducted on the next day, i.e., 28.9.2004, in the morning. Blood stained earth was collected by the police from the spot and a spade and blood stained vest/jacket of appellant, Om Pal Singh, was also recovered from the scene of incident, which were taken in custody by the police and memos were accordingly prepared. In his cross-examination, topography of the place of incident was proved by PW-1. He admitted that there is latrine constructed on the upper floor of his house on north-west corner, which is used by ladies of the house. There is no way to the aforesaid latrine from outside. He denied the suggestion that the same is used by him and guest for whom it was got constructed and there is passage to latrine from outside. He admitted that towards the east of his house, there is Khadanja road (uneven road) from which people of his locality go to attend the call of nature, but his family members go for the same purpose towards the western side. He further stated that prior to the incident, no dispute took place between deceased, Darshan and Ramashish, s/o Srikant. The deceased was not always having lathi in his hand and used to guard boundaries and crops of his agricultural field. He was detained in jail in case under Section 151 Cr.P.C., wherein other side was Kedar Singh. The case, which was lodged against the appellants, Ram Pyare Yadav and Umesh Yadav, was compromised prior to the incident. He further admitted that towards north of his house, the house of the appellants, Umesh Yadav and Ram Pyare, is situated. Their Sahan (common open space in front of their houses) are connected. The members of the family of the appellants are employed on higher posts and are his collaterals. Four months ago, his dispute took place with appellants, Umesh Yadav and Ram Pyare. He admitted that he did not mentioned this fact in his application given at police station that he was having torch, when he heard the shrieks of his brother and he ran for saving him by lighting torch and saw that appellant, Umesh Yadav, was pulling legs of his brother, Darshan Yadav and appellant, Ram Pyare, was holding his arms and his brother had fallen. He was being attacked by spade by appellant, Om Pal Singh. He also admitted that he did not stated in his FIR that about four months ago, his dispute had taken place with appellants, Umesh Yadav and Ram Pyare. He had stated in his application that 2-4 minutes after he reached, his brother died. He also stated all these facts before the Investigating Officer and cannot say why he did not incorporated them his statement. He further stated that on the fateful evening, he had gone towards east of his house to ease himself because it was drought and there was canal on the eastern side. He did not go to the latrine inside the house. It was month of September, at the time of incident, he had sat to ease himself, when he heard the shrieks of his brother, rather he was on the way. He was not carrying any lathi in his hand. He had seen the blood and vomiting on the place of incident and the appellants, where dead body of his brother was lying. He also saw the spade left behind by the appellants on the scene of occurrence. He saw appellant, Ram Pyare, who was pulling the arms of his brother and he was in pain. appellant, Umesh Yadav, was dragging his legs towards the side of the canal. He had reached 12-14 steps near the appellants at the time of incident. He only raised alarm for help, but did not tried to apprehend the appellants. He did not cried, but when other people picked his brother and put him on the even surface he touched him and found him to be alive. When the appellants ran away from the place of incident, their hands were empty. He did not tried to take lathi, etc., from the house of Mageed Pandey, who resided nearby. He further stated that his statement was recorded at 10:45 p.m. on the date of incident itself under Section 161 Cr.P.C. He denied that because of jealousy with accused appellants, Ram Pyare and Umesh Yadav, he falsely implicated them since their family members are employed on higher posts. In his further cross-examination, he admitted that he is employed as teacher in primary school. House of appellant, Om Pal Singh, is situated 600-700 meters away from his locality. Appellant, Om Pal Singh, was employed in Military. PW-1 was confronted with his statement recorded under Section 161 Cr.P.C., wherein he had stated that appellants were causing injuries to his brother by spade and lathi to which he replied that except the recital about of lathi, he had given statement before the Investigating Officer. He cannot say why he mentioned causing injuries to the deceased by lathi. He further stated that he is giving the statement for the first time that appellant, Om Pal Singh, was cutting the legs of his brother by spade and had stated before the Investigating Officer that Om Pal Singh was causing injuries to the deceased by spade. He denied that he ever gave statement that appellant, Om Pal Singh, was cutting legs of his brother by spade. In his final cross-examination, PW-1 stated that on 27.9.2004, Om Pal Singh had cut the canal. One day ago he also cut the canal, which was repaired. The beach of canal was got repaired by him on 26/27.9.2004 at about 3:00 a.m. At that time, his brother, Darshan Yadav and his son, Ram Badan Maurya, were with him. He denied that this fact was being stated by him for the first time. He stated that he informed this fact to the Investigating Officer. He also stated that he was 40-50 steps away on the western chak road, when he heard the shrieks of his brother, Darshan Yadav. On being asked, he stated that this fact has been stated for the first time before the court. He replied that he informed this fact to the Investigating Officer also, but why he did not mentioned it in his statement he cannot say.
7. PW-2, Prem Nath Yadav, proved that inquest report of the dead body of the deceased was prepared before him. Deceased had suffered injuries on his head, which resulted in his death. He proved that he signed on the inquest report, which took place from 6/7:00 a.m. or 7:30 a.m. He admitted that PW-1 showed his rechargeable torch to the inspector. From the scene of incident, inspector collected the samples of blood stained and plain earth and sealed them in two boxes. Blood stained spade was taken in possession and memo was prepared. A blood stained vest was also collected from the scene of incident, which was stated to be vest of appellant, Om Pal Singh. He admitted that he is not related to PW-1 and he reached the place of incident on 27.9.2004 at 8:40 p.m. He admitted that he was going from Kopaganj to his house in adjoining village. He found that on western side of road 10-15 persons had collected. He alighted from his motorcycle and gathered information from the people collected there, namely, Srikant, Dinanath, Jaishri, Jagdish, Paltan, etc. When he reached place of incident, he saw the dead body of Darshan Yadav. He did not signed on the recovery memo of torch. He stayed on the place of incident for whole night and in the morning he signed on the inquest report. The dead body was sent for post mortem at about 7:30 a.m. He signed memo of recovery/ sample of the blood stained earth and plain earth collected by the Investigating Officer, but not on the memo of recovery of spade and blood stained vest of appellant, Om Pal Singh. He proved that the vest recovered was of appellant, Om Pal Singh, because he saw him wearing it and running and going to field. He informed this fact to Investigating Officer also and if he did not mentioned the same in his statement, he cannot tell the reason. He denied that he ever informed the Investigating Officer about spade and vest recovered belonging to appellant, Om Pal Singh. He denied that he is cousin of PW-1 and concealing his relationship.
8. PW-3, Sub Inspector, Mritunjai Misra, proved that he was posted as Station House Officer of Police Station Kopaganj at the relevant time and case in dispute was registered at the police in his absence. The Investigation of the case was started by Sub Inspector, Fahimuddin Khan. He took the investigation of the case from him on 29.9.2004 and recorded the statements of eye-witnesses, namely, Ramashish Yadav, Saroj Singh and Ramvadan, under Section 161 Cr.P.C. He made efforts to arrest the accused persons and they were arrested and produced before the court on 05.11.2004. Thereafter he submitted charge-sheet in this case on 07.11.2004.
9. PW-4, Dr. S.P. Rai, found the following injuries on the body of the deceased:- (i) Lacerated wound 2 cm. X 1 cm. bone deep over left side head 11 cm. above root of left ear and 12 cm above and behind left eyebrow surrounded by defused swelling 27 cm X 10 cm area.
(ii) Incised wound 8 cm X 1 cm X bone cut deep over front of left thigh 14 cm above left knee surrounded by defused swelling 20 cm all around. On opening wound muscles around the wound are contused and haematoma of size 10 cm X 8 cm present between the bone and muscles and there is fracture of the lower part of the thigh bone (femur).
(iii) Multiple abraided contusions in area of 7 cm X 6 cm over front of right thigh 20 cm above right knee.
(iv) Liner abrasion 6 cm over back of left shoulder 3 cm bellow and behind left shoulder, muscles around abraded and contused.
PW-4 stated that on opening the scalp, parietal and temporal bones on both sides were broken. Haematoma was present below scalp and skull. Semi digested food of 200 gm. bread, rice and pulses were found in the stomach. The cause of death of the deceased was found to be coma as result of anti mortem injuries.
10. PW-5, Inspector, Fahimuddin Khan, admitted that case in dispute was registered before him and he started the investigation. He recorded the statement of PW-1 at police station and made Supurdaginama of the torch from which the PW-1 saw the incident. He returned the torch to the PW-1. He went to the place of incident in the night but because of non-availability of proper light, he left two constables near the dead body for protection of the place of incident and came back. On 28.9.2004, he went back to the scene of incident and prepared the site plan. He collected the samples of plain earth and blood stained earth from the place of incident and took possession of the blood stained spade and vest of appellant, Om Pal Singh. He proved the goods collected by him before the court. He admitted in cross-examination that he did not sent any items collected by him from place of incident to the Forensic Science Laboratory for getting the opinion of the expert. He stated that PW-1 never informed him that he saw appellant, Om Pal Singh, cutting the legs of the deceased by spade. He only stated that he was hitting the deceased by spade and lathi. He also stated that PW-1 never informed him that appellant, Om Pal Singh, had thrown the spade and his blood stained half Jacket (Bandi) while running away from scene of incident. PW-1 never informed him that he was 40-50 steps away on western side of chak road, when he heard the shrieks of his brother. He also admitted that he did not mentioned the recovery of spade in the inquest report.
11. PW-6, Udai Raj Yadav, proved that he was posted as constable clerk on 27.9.2004 at Police Station Kopaganj, where he registered the case in dispute. He admitted that on the date of incident, S.H.O. of the police station was not there. He prepared the chik FIR and thereafter made G.D. entry of the same. He admitted that signature of PW-1 is not on the FIR. He admitted that time of lodging FIR has been mentioned as 22:30 hours after overwriting. In his cross-examination, he admitted that he has not mentioned the date when FIR was sent to the court. He stated that he only mentioned that it was sent by post. He stated that the date is mentioned in the Dak Bahi, which he has not brought in court.
12. Statements of accused-appellants were recorded under Sections 313 Cr.P.C., wherein they denied the allegations against them and alleged false implication. Appellants, Umesh Yadav and Ram Pyare Yadav, stated that they have been implicated because of envy, being related as collaterals of PW-1 and dispute regarding Khalihan. Appellant, Om Pal Singh, claimed that his implication has been done because of closeness to co-appellants and enmity.
13. DW-1, Santa Yadav, stated in his statement that on 26.9.2004, Ram Pyare Yadav came to village Damriao for purchasing buffalo to the house of Akhilesh Yadav, DW-2. The deal was settled for Rs.8 thousand, being Sunday amount was not paid and on the next day, i.e., Monday, Rs.8000/- was paid by Ram Pyare Yadav and buffalo was taken by him to his house from DW-2. DW-1 in his cross-examination admitted that Ram Pyare Yadav is his real brother-in-law (Sala). On 25.9.2004 he stayed at his house for the purpose of purchasing buffalo. DW-1 proved that he accompanied Ram Pyare Yadav to the house of Akhilesh Yadav, DW-2, where they took meals at 10:00 a.m. They came back from his house alongwith his buffalo.
14. DW-2, Akhilesh Yadv, proved that his buffalo was purchased by appellant, Ram Pyare Yadav, after making payment of money, when he came at his house on Sunday. He did not mentioned any amount of the buffalo paid by Ram Pyare Yadav to him for purchasing buffalo.
15. Learned counsel for the appellant has submitted that the incident took place on a lonely place on 27.9.2004 at about 8:30 p.m. in the night. Deceased is said to have gone to the canal for diverting canal water towards his paddy field. When PW-1 claims that he had also gone near the same canal to attend the call of nature and when he heard shrieks of his brother, he ran towards him where he saw him being assaulted by the appellants. PW-1 is not reliable witness and is only chance and interested witness, being real brother of the deceased. PW-1 has not been able to prove any motive of crime in his deposition before the court. He only stated that four months prior to the incident, quarrel had taken place between the side of the appellants, Ram Pyare Yadav and Umesh Yadav and his side on account of cutting of water channel and causing disruption in the flow of water towards the field of the deceased. This is the only motive assigned for committing offence alleged against the appellants. He further submitted that there is clear admission of PW-1 that there is latrine in his house and therefore, there was no reason for him to go towards the field to attend the call of nature. In his cross-examination, he only stated that he did not used the latrine of his house since there was drought outside. He has submitted that his answer is absurd and cannot be believed.
16. His second submission is that PW-1 has admitted that people of his locality go towards eastern side of the village to attend the call of nature then why he went towards western side has not been explained. Further, he submitted that time of 8:00 p.m. is not the usual time in village when people go to attend the call of nature. In villages by 8:00 p.m. people go to sleep and hardly any activity is seen in the village. The incident is of the year, 2004, when there was no electricity in the village. The deceased had also taken meals before death, which is clear from his post mortem report. Around 7:00-8:00 p.m. semi digest food was found in his stomach. Therefore presence of PW-1 at the scene of occurrence is doubtful.
17. Learned counsel for the applicant has finally submitted that PW-1 stated in FIR that all the appellants were assaulting the deceased by spade, but only two injuries were found on the body of the deceased, out of which one could not have been caused by spade. One injury was lacerated wound on the head of the deceased and other was incised wound over the front of left thigh of the deceased. Other two injuries were contusions. He has submitted that the injury on head in the form of laceration suffered by deceased was not being explained and therefore, PW-1 in his statement under Section 161 Cr.P.C. stated that all the appellants were assaulting the deceased with spade and log (lathi). He has submitted that lathi was introduced for the first time by PW-1 in his statement under Section 161 Cr.P.C. to explain lacerated head injury of the deceased. In his examination-in-chief, PW-1 changed the versions of FIR and statement under Section 161 Cr.P.C. and came out with the version that Om Pal Singh was cutting legs of the deceased by spade; Umesh Yadav, was pulling legs of deceased and Ram Pyare was holding his arms. He has submitted that before the court, PW-1 assigned definite role to all the accused for the first time and on being confronted with his statement under Section 161 Cr.P.C. he denied that he never gave such statement to the Investigating Officer regarding use of lathi in the incident, when the Investigating Officer of the case clearly stated that such statement was made before him by PW-1. He has submitted that PW-1 made such improvements in the prosecution case, which amounts to improvement and makes the prosecution case doubtful.
18. Learned counsel for the appellants has relied upon the judgements in the cases of Sekaran Vs. State of Tamil Nadu, (2024) 2 Supreme Court Cases, 176 and Rajesh Yadav and another ETC. Vs. State of U.P., 2022 LiveLaw (SC) 137.
19. Learned counsel for the informant and learned AGA have opposed the submissions of learned counsel for the appellants and have submitted that there is no delay in lodging the FIR. The incident took place at 8:30 p.m. on 27.9.2004 and FIR was lodged on 10:30 p.m. at Police Station Kopaganj, District Mau. All the three appellants are named in the FIR. They were seen by PW-1 in the light of torch, which was being carried by PW-1. He had gone to the field in the night to attend the call of nature. The blood stained half jacket/vest of Om Pal Singh was recovered from the scene of incident and was proved by PW-2, who claimed that he had seen Om Pal Singh wearing the same and going to field and running. The motive of crime was the dispute between both the sides regarding cutting of water channel carrying water to the field of the deceased. One day prior to the date of incident, appellant, Om Pal Singh, had again cut the channel of water carrying water to the field of deceased. He has submitted that motive becomes irrelevant when there is direct evidence to prove the prosecution case. He has further submitted that PW-1 had gone towards the eastern side of the village to attend the call of nature and not towards the western side, where normally people of the locality used to go, because of lack of water on the western side. In the eastern side there was canal and he had gone to attend the call of nature towards the canal. The spade used in the commission of offence of crime in dispute was recovered from the spot and sent to Forensic Science Laboratory and blood of human origin was found thereon. The cloth recovered from the spot was torn and one hand and back side of the cloth was missing. There may have taken quarrel between the appellants and deceased prior to the incident and deceased may have used violence against them to save himself and in the process, the cloth recovered may have got torn. He had submitted that the testimony of PW-1 is absolutely reliable and has rightly been made basis of conviction and sentence of the appellants by the trial court. The statements of DW-1 and DW-2 are absolutely unreliable. DW-1 is brother-in-law (Bahnoi) of appellant, Ram Pyare. DW-2, is not a reliable witness since he could not even state the amount of consideration of buffalo purchased by appellant, Ram Pyare.
20. Learned counsel for the informant and learned AGA have relied upon the judgements in the cases of 2023 0 Supreme (SC) 228, Ravasaheb @ Ravasahebgouda Etc. Vs. State of Karnataka; Criminal Appeal No.3577 of 2023, Ram Naresh Vs. State of U.P.; 2007 0 Supreme (SC) 336, Namdeo Vs. State of Maharashtra and Gurchanran Singh and another Vs. State of Punjab, 1962 0 Supreme (SC) 261.
21. After hearing the rival contentions, this Court finds that the prosecution has produced two prosecution witnesses of fact, namely, Paltan Yadav (PW-1) and Prem Nath (PW-2). Both witnesses are chance witnesses. PW-1 is not only chance witness, but also an interested witness, being brother of the deceased, Darshan Yadav. The incident had taken place at 8:30 p.m. in the night besides the canal as per the prosecution case. The deceased, who was the brother of PW-1, had taken meals and semi digest food was found in his stomach by PW-4, the doctor, who conducted autopsy of the dead body of the deceased. PW-1 and deceased, Darshan Yadav, were residing with their families in a common house. It has been argued by learned Senior counsel for the appellant that in village in the year 2004, there was no electricity and villagers used to take their dinner in the early hours of the night around 6:00-7:00 p.m. or earlier and the entire villagers used to go to sleep soon, which does seems improbable. The presence of PW-1 on the place of incident is doubtful to the core. While his deceased brother had taken meals, about two hours earlier, PW-1 claimed that he had gone to attend the call of nature at about 8:30 p.m. near the same canal, but at distance of 40-50 steps, where he heard shrieks of his brother. He ran to save his brother raising alarm and only after he reached the place of incident, he saw the appellants causing injuries to his brother by spade. In the post mortem report of the deceased, only one injury caused by spade was found by the doctor on the left thigh of the deceased, which does not appears to be fatal for life of the deceased. The other injury was on the head of the deceased in form of lacerated wound which proved fatal for his life, but it was not explained by the prosecution. Attempt was made by PW-1 to introduce lathi also in the hands of the assailants in his statement recorded by the Investigating Officer under Section 161 Cr.P.C., but when he was confronted with the same, during trial, he denied and stated that he did not gave any such statement before the Investigating Officer of this case. The testimony of PW-1, therefore, suffers from unexplained contradictions and his presence on the scene of occurrence does not appears to be credible. He admitted that he heard the shrieks of his brother from the distance of 40-50 steps and when he reached at the place of incident, he saw the appellant, Umesh Yadav, holding of legs of his brother and appellant, Ram Pyare, holding his arms and appellant, Om Pal Singh, was cutting his legs by spade. This incident was seen by Ramashish, Saroj Singh, Srikant, Jagdish, etc., who were monitoring the flow of water from canal to their fields. None of the witnesses of the incident named in the statement of PW-1 were produced before the trial court to corroborate the presence of PW-1 on the scene of incident. However, there is no such rule as it is for the prosecution to decide whom to produce as witness before the trial court, but PW-1 being chance witness and also interested witness, his testimony was required to be supported by some evidence, oral or documentary, which is missing in this case.
22. It has come in the statement of PW-1 that the villagers of his locality used to go towards eastern side to attend the call of nature, but it did not included him because his family members used to go towards western side. On the fateful day, he had gone towards the western side because it was dry on the eastern side and on the western side there was canal. We find that PW-1 has not stated that why villagers of his locality used to go to eastern side when it was dry and why on the date of incident PW-1 went to ease himself on the western side near the canal. There is also no explanation why only his family members used to go to western side of his house for the purpose aforesaid. He has stated in his statement that people used to go generally in the eastern side for the aforesaid purpose, but his family members used to go to western side for the same. Therefore, there appears to be unexplained contradiction in this regard in the statement of PW-1.
23. Vest / torn jacket of appellant, Om Pal Singh, was recovered from the place of incident as per prosecution case. It was also blood stained. PW-2 proved that he had seen appellant, Om Pal Singh, wearing the aforesaid cloth while going to his field and running. This cloth was neither sent to the forensic laboratory nor PW-1 claimed that he saw the aforesaid cloth on the place of incident.
24. The spade, which was recovered from the place of incident, was stated to the blood stained, but was also not sent to the expert for determination whether the blood on the spade was of human origin.
25. PW-2 is again a chance witness being passerby, who had not seen the incident, but has proved that after the incident he was passing by and saw the blood stained jacket of appellant, Om Pal Singh, on the place of incident at 8:40 p.m. He is resident of another village and was coming from Kopaganj on motorcycle and going to his village. He claimed that he had seen the dead body of the deceased on the place of incident. He claimed that he stayed on the place of incident for whole night and in the morning and became witness of the inquest report. He only signed the memo of recovery of blood stained earth and plain earth made by Investigating Officer, but not on the memo of recovery of spade and blood stained cloth of the appellant, Om Pal Singh, which he only alleged to be of Om Pal Singh. Therefore, the statement of PW-2 regarding recovery of cloth of appellant, Om Pal Singh, made before Investigating Officer does not appears to be credible since he did not signed on memo of recovery of cloth and also the recovery of spade. His signatures were found only on the recovery of the samples of blood stained earth and plain earth collected by the Investigating Officer on the next day and also on the inquest report, which was also prepared on the next day. Therefore, his presence on the place of incident soon after the incident on the night of the date of incident, i.e., 27.9.2004, is highly doubtful. No passerby will stay on the place of incident for whole night waiting for being witness of the inquest proceedings and recovery of samples of earth from the place of incident, when he is neither related to the deceased nor PW-1.
26. The arguments of learned counsel for the informant and learned AGA that FIR is prompt and lodged within two hours deserves consideration. It is clear from the FIR that it was lodged within two hours of the incident, but a perusal of the copy of original FIR shows that it was although lodged on 27.9.2004 at 22:30 hours but CJM, Mau, had seen the same on 7.10.2004. There is also cutting and over writing on the time of incident mentioned in FIR. This creates doubt about the prosecution case since as per Section 157 Cr.P.C., the copy of the FIR ought to have been sent to the Magistrate competent to take cognizance of the offence forthwith, but it was sent to the C.J.M., concerned on 7.10.2004, only when the same was registered on 27.9.2004.
27. Regulation 97 of the Police Regulations also mandates that the original copy of the FIR shall be sent by the Superintendent of Police to the Magistrate forthwith having jurisdiction. For ready reference regulation 97 of Police Regulations is quoted hereinbelow:-
"97. Process for information relating to the commission of a cognizable offence.- Whenever information relating to the commission of a cognizable offence is given to an officer-in-charge of a police station the report will immediately be taken down in triplicate in the check receipt book for reports of cognizable offences (Police Form No. 341). The step will on no account be delayed to allow time for the true facts to be ascertained by a preliminary investigation. Even if it appears untrue, the report must be recorded at once. If they report is made orally, the exact words of the person who makes it, including his answers to any questions put to him should be taken down and read over to him; he must sign each of the three parts, or if he cannot write, he must make his mark or thumb-impression. If a written report is received an exact copy must be made, but the signature por mark of the messenger need not be taken. In all cases the officer-in-charge of the station must sign each of the three parts and have the seal of the station stamped on each. The triplicate copy will remain in the book; the duplicate copy will be given to the person who makes the oral or brings the written report; the original will be sent forthwith through the Superintendent of Police to the Magistrate having jurisdiction with the original written report (if any) attached.
The practice of delaying first information reports until they can be sent toheadquarters attached to special or general diaries is contrary to the provisions of Criminal Procedure Code and is prohibited.
If there is an Assistant or Deputy Superintendent incharge of the subdivision, and stationed at a place other than the headquarters of the district, the original should be sent through him to the Magistrate."
28. The Apex Court in the case of Ishwar Singh (The appellant) Vs. State of U.P. (The respondent) AIR 1976 SC 2423 has held that delay in sending report to the Magistrate makes the prosecution case doubtful. Only two days' delay in sending of the FIR to the Magistrate was considered fatal for the prosecution case. The Apex Court found that the delay in sending of the FIR gives time for introducing improvements setting up distorted version of the occurrence in the FIR. It would be useful to refer to paragraph 5 of the judgment of the Apex Court which is as follows:-
" 5. Mr. Frank Anthony appearing for appellant Ishwar Singh submitted that in affirming the Judgment of the trial Court, the High Court also overlooked certain important aspects of the case that the Sessions Judge had failed to consider. He pointed out that the F.I.R. which is stated to have been lodged at 9.05 A. M. on February 14, 1973 was sent out from the police station the next day, February 15; the time when it was despatched is not stated, but it appears from the record that the Magistrate received it on the morning of February 16. The Court of the Magistrate was nearby, which makes it difficult to understand why the report was sent to him about two days after its stated hour of receipt at the police station. Section 157 of the CrPC, 1898 as well as of 1973 both require the first information report to be sent "forthwith" to the Magistrate competent to take cognizance of the offence. No explanation is offered for this extraordinary delay in sending the report to the Magistrate. This is a circumstance which provides a legitimate basis for suspecting, as Mr. Anthony suggested, that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. In this case the suspicion hardens into a definite possibility when one finds that the case made in Court differs at least in two very important particulars from that narrated in the F.I.R. Mahabir Singh, who lodged the first information report, stated in-Court that he had invited some people to his house to effect a settlement between him and Ishwar Singh, and that he had also sent Ghanshyam to call Ishwar Singh there. The F.I.R. does not mention anything like this. From the F.I.R. it appears as if the accused persons came uninvited to his house, demanded why he had demolished the drain, and started assaulting him and the other persons who were present there. It is also difficult to understand why Mahabir should invite anyone to his house for a settlement, if really Ishwar Singh had permitted him to demolish the drain as he claimed. Further, the F.I.R. does not mention that Mahabir and Satyapal wielded lathis in their defence when attacked and that this resulted in some of the accused getting injured; but that is what both Mahabir (P.W. 1) and Satyapai (P.W. 2) stated in their evidence in Court. These variations relate to vital parts of the prosecution case, and cannot be dismissed as minor discrepancies. In such a case, the evidence of the eye-witnesses "cannot be accepted at its face value", as observed by this Court in Mitter Sain v. State of U.P."
29. The Apex Court in the case of Marudanal Augusti Vs. State of Kerala (1980) 4 SCC 425 has held that once FIR is found to be fabricated brought into existence long after the occurrence, entire prosecution case will collapse. In this case there was only 29 hours delay in receipt of FIR by Sub-Magistrate which the Apex Court held fatal for the prosecution case and affirmed the order of the acquittal passed by the trial court and set aside the judgment of the High Court.
30. In the recent judgment of the Apex Court in the case of Mohd. Muslim Vs. State of U.P. (Now Uttarakhand) [2023 (124) ACC 932] Apex Court has held that four days delay in sending of FIR to the court in a case of murder casts doubt on its authenticity in paragraph 13 which is quoted as follows:-
"13. The chick FIR report was sent to the Court on 08.08.1995 with the delay of about 4 days. It is worth mentioning that FIR in a criminal case and particularly in a murder case is a vital and a valuable piece of evidence especially for the purpose of appreciating the evidence adduced at the trial. It is for this reason that the infirmities, if any, in the FIR casts a doubt on its authenticity. The FIR in such cases may also lose its evidentiary value. In Meharaj Singh and Ors. Vs. State of U.P. and Ors.1, it has been opined that on account of the infirmities such an ante-timing of the FIR loses its evidentiary value. Thus, this entitles the accused to be given the benefit of doubt."
31. This Court further finds that the conduct of PW-1 was not natural. He claimed that he had reached the place of incident and before him his brother was subjected to the injuries by the appellants and he fell down and after seeing him they ran away. He has not stated in his statement that he raised alarm after seeing his brother being assaulted by the appellants when he claimed in his statement that incident was seen by Ramashish, Saroj Singh, etc. Appellants had only weapon of spade and that also was left by them on the spot. Neither PW-1 nor the witnesses named in the FIR claimed that they chased the appellants or raised alarm or cried for help. Only one spade was found on the spot when appellants were there in number.
32. The Apex Court in the case of Amar Singh Vs. State (NCT of Delhi) (2020) 19 SCC 165 has deprecated such a conduct of the brothers of the deceased in paragraph-19, which is quoted hereinbelow:-
"19. The unnatural conduct of Parminder Singh PW-1 and Amar Singh PW-11 the two brothers of the deceased which we have noticed from record is that though they claim to be present at the time of occurrence no attempt was made by them to save their brother from assault. Though PW-1 has tried to explain in his examination in chief that when they tried to intervene and save their brother Devinder Singh @Ladi all the three accused persons aimed their weapons at them and threatened that in case they intervened they would also be killed. It may be relevant to notice that Amar Singh PW-11 neither in statement in chief nor in his cross-examination by the prosecution after being declared hostile stated about any efforts made either by him or by PW-1 Parminder Singh to save their brother Devinder Singh @ Ladi when he was attacked. On the contrary PW-11 stated in his examination in chief that he was not able to run because of his spinal injury. In the cross-examination he categorically stated that he never told the police that when they tried to rescue Accused Inderjeet Singh brandished the knife and accused Amar Singh and Shiv Charan brandished hockey towards them threatening to kill anyone who comes to rescue Devinder Singh @ Ladi. He also denied in the cross-examination having ever being given any statement to the police that he had identified the culprits or accused Inderjeet Singh has stabbed with knife and accused Amar Singh gave hockey blows and the front portion of the hockey had broken because of assault and the 3rd accused Shiv Charan also gave hockey blows."
33. Reference to another judgment of the Apex Court in the case of Birappa and Anr. Vs. State of Karnataka AIR 2020 SCC 3398 where Apex Court has held that where witnesses had seen his brother being taken for sacrifice, but they made no efforts to save him and ran away, there conduct was not natural.
34. Regarding chance witnesses, the Apex Court in the case of Rajesh Yadav and another (Supra) has held as follows:-
26.A chance witness is the one who happens to be at the place of occurrence of an offence by chance, and therefore, not as a matter of course. In other words, he is not expected to be in the said place. A person walking on a street witnessing the commission of an offence can be a chance witness. Merely because a witness happens to see an occurrence by chance, his testimony cannot be eschewed though a little more scrutiny may be required at times. This again is an aspect which is to be looked into in a given case by the court. We do not wish to reiterate the aforesaid position of law which has been clearly laid down by this Court in State of A.P. v. K. Srinivasulu Reddy, (2003) 12 SCC 660.
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27.The principle was reiterated by this court in Jarnail Singh v. State of Punjab, (2009) 9 SCC 719:
"21. In Sachchey Lal Tiwari v. State of U.P. [(2004) 11 SCC 410: 2004 SCC (Cri) Supp 105] this Court while considering the evidentiary value of the chance witness in a case of murder which had taken place in a street and a passerby had deposed that he had witnessed the incident, observed as under: If the offence is committed in a street only a passerby will be the witness. His evidence cannot be brushed aside lightly or viewed with suspicion on the ground that he was a mere chance witness. However, there must be an explanation for his presence there.
The Court further explained that the expression "chance witness" is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country like India where people are less formal and more casual, at any rate in the matter of explaining their presence.
22. The evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence (Satbir v. Surat Singh [(1997) 4 SCC 192: 1997 SCC (Cri) 538], Harjinder Singh v. State of Punjab [(2004) 11 SCC 253:
2004 SCC (Cri) Supp 28], Acharaparambath Pradeepan v. State of Kerala [(2006) 13 SCC 643: (2008) 1 SCC (Cri) 241] and Sarvesh Narain Shukla v. Daroga Singh [(2007) 13 SCC 360: (2009) 1 SCC (Cri) 188]). Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (vide Shankarlal v. State of Rajasthan [(2004) 10 SCC 632: 2005 SCC (Cri) 579]).
23. Conduct of the chance witness, subsequent to the incident may also be taken into consideration particularly as to whether he has informed anyone else in the village about the incident (vide Thangaiya v. State of T.N. [(2005) 9 SCC 650: 2005 SCC (Cri) 1284]). Gurcharan Singh (PW 18) met the informant Darshan Singh (PW 4) before lodging the FIR and the fact of conspiracy was not disclosed by Gurcharan Singh (PW 18) and Darshan Singh (PW 4). The fact of conspiracy has not been mentioned in the FIR. Hakam Singh, the other witness on this issue has not been examined by the prosecution. Thus, the High Court was justified in discarding the part of the prosecution case relating to conspiracy. However, in the fact situation of the present case, acquittal of the said two co-accused has no bearing, so far as the present appeal is concerned." Related and Interested Witness:
28.A related witness cannot be termed as an interested witness per se. One has to see the place of occurrence along with other circumstances. A related witness can also be a natural witness. If an offence is committed within the precincts of the deceased, the presence of his family members cannot be ruled out, as they assume the position of natural witnesses. When their evidence is clear, cogent and withstood the rigor of cross examination, it becomes sterling, not requiring further corroboration. A related witness would become an interested witness, only when he is desirous of implicating the accused in rendering a conviction, on purpose.
29.When the court is convinced with the quality of the evidence produced, notwithstanding the classification as quoted above, it becomes the best evidence.
Such testimony being natural, adding to the degree of probability, the court has to make reliance upon it in proving a fact. The aforesaid position of law has been well laid down in Bhaskarrao v. State of Maharashtra, (2018) 6 SCC 591.
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33. In Masalti v. State of U.P., (1964) 8 SCR 133 : AIR 1965 SC 202 :
(1965) 1 Cri LJ 226] , a five-Judge Bench of this Court has categorically observed as under: (AIR pp. 209-210, para 14) "14. ... There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence.
Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard- and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
34. In Darya Singh v. State of Punjab [(1964) 3 SCR 397 : AIR 1965 SC 328 : (1965) 1 Cri LJ 350] , this Court held that evidence of an eyewitness who is a near relative of the victim, should be closely scrutinised but no corroboration is necessary for acceptance of his evidence. In Harbans Kaur v. State of Haryana [(2005) 9 SCC 195 :
2005 SCC (Cri) 1213 : 2005 Cri LJ 2199] , this Court observed that:
(SCC p. 227, para 6) "6. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused."
35. The last case we need to concern ourselves is Namdeo v. State of Maharashtra [(2007) 14 SCC 150 : (2009) 1 SCC (Cri) 773] , wherein this Court after observing previous precedents has summarised the law in the following manner: : (SCC p. 164, para 38) "38. ... it is clear that a close relative cannot be characterised as an "interested" witness. He is a "natural" witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the "sole" testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one."
36. From the study of the aforesaid precedents of this Court, we may note that whoever has been a witness before the court of law, having a strong interest in result, if allowed to be weighed in the same scales with those who do not have any interest in the result, would be to open the doors of the court for perverted truth. This sound rule which remains the bulwark of this system, and which determines the value of evidence derived from such sources, needs to be cautiously and carefully observed and enforced. There is no dispute about the fact that the interest of the witness must affect his testimony is a universal truth.
Moreover, under the influence of bias, a man may not be in a position to judge correctly, even if they earnestly desire to do so. Similarly, he may not be in a position to provide evidence in an impartial manner, when it involves his interest. Under such influences, man will, even though not consciously, suppress some facts, soften or modify others, and provide favourable colour. These are most controlling considerations in respect to the credibility of human testimony, and should never be overlooked in applying the rules of evidence and determining its weight in the scale of truth under the facts and circumstances of each case."
30.Once again, we reiterate with a word of caution, the trial court is the best court to decide on the aforesaid aspect as no mathematical calculation or straightjacket formula can be made on the assessment of a witness, as the journey towards the truth can be seen better through the eyes of the trial judge. In fact, this is the real objective behind the enactment itself which extends the maximum discretion to the court.
35. In the light of the above mandate of the Apex Court, this Court finds that evidence of chance witness requires a very cautious and close scrutiny and he must adequately explain his presence at the place of occurrence. In this case as discussed above, the presence of PW-1 and PW-2 on the place of occurrence does not stands proved. PW-1 being related and interested witness, his evidence appears to be partisan since he has not been able to explain contradictions in his statement recorded by the Investigating Officer and statement before the court. Other infirmities in his statement have already been considered by us hereinabove.
36. It is not a case of PW-1 that he was normally present, at place of incident at the relevant time and was therefore not a chance witness. The incident took place at odd hours in the night and in the villages, specially in eastern part of the State, there was no electricity connection in the villages and people used to go for sleep early. PW-1 claims that he had gone to attend the call of nature at 8:30 p.m., which was not the normal time in the dark night in his village, where the alleged incident took place. He heard the shrieks of his brother and ran for 40-50 steps to reach the place of incident and after he reached the place of incident, he saw the appellants causing injuries to his brother by spade. In the FIR, no other weapon was assigned, nor any other weapon except spade was recovered from the place of incident. One lacerated wound was found on the head of the deceased, which appears to have proved fatal for his life. Initially, there was no explanation as to how such lacerated wound was caused to the deceased on his head by spade. Before Investigating Officer, PW-1 stated in his statement under Section 161 Cr.P.C. that accused were also having lathi and they caused injury by lathi also. No lathi was recovered by the police. PW-1, however, disowned, his statement under Section 161 Cr.P.C. regarding the possession of lathi by the appellants. He stated that he never gave such statements before the Investigating Officer. Therefore, statement of PW-1 does not inspires confidence of this Court and it has not proved conclusively that he was present near the place of incident. The scrutiny of his evidence proves that his claim of being chance witness of the incident does not stands the test laid down by the Apex Court in the case of Rajesh Yadav (Supra). The Apex Court in the case of Satbir v. Surat Singh (1997) 4 SCC 192, had held that a chance witness must adequately explained his presence at the place of occurrence which PW-1 failed to prove. In view of the judgement in the case of Shankar Lal Vs. State of Rajasthan, (200) 10 SCC 632. his evidence deserves to be discarded.
37. PW-1 has also not claimed that soon after the incident he informed anyone in the village about the incident. Had his evidence being clear and cogent, it could not have required further corroboration despite being closely related and interested witness, but evidence of PW-1 is not of such quality.
38. Learned counsel for the informant and learned AGA have relied upon the judgment Apex Court in the case of Ravasaheb @ Ravasahebgouda Etc. (supra), which is regarding number of prosecution witnesses turning hostile and rejection of evidence of sole witness by the trial court. The Apex Court has held that even if one prosecution witness is reliable then conviction of the accused can be based thereon and upheld the conviction of eight persons of testimony of sole prosecution witness. In this case, judgement aforesaid is not applicable since no prosecution witness had turned hostile as discussed hereinabove. The testimony of PW-1 and PW-2 is not sufficient to uphold the conviction of the appellants. While PW-1 is neither wholly reliable nor wholly unreliable witness and PW-2 is wholly unreliable witness. The testimony of PW-1 is not corroborated from any credible evidence, oral or documentary. This Court cannot rely upon the same to uphold the conviction of the appellants keeping in view of the mandate of the Apex Court in the case of Vadivelu Thevar Vs. State of Madras, 1957 SCR 981.
39. Other judgement relied upon by the other side is of Ram Naresh Vs. State of U.P. (Supra). In this case the Apex Court found that co-accused shared common intention to commit the alleged offence and therefore, their conviction with the help of Section 34 IPC was in accordance with law. In this case, prosecution has not proved common intention of appellants justifying their conviction under Section 302/34 IPC.
40. The last judgement relied upon by learned counsel for the informant is Namdeo Vs. State of Maharashtra (Supra). In this case, the conviction of accused was upheld on the basis of single testimony of close relative of the deceased. The Apex Court held that it is quality of evidence and not quantity of the same, which is material. The Apex Court found that the solitary witness proved the prosecution case to the hilt and there was also corroborative evidence of PW-6 and PW-8. Therefore the conviction of the appellants on the basis of statement of solitary evidence was upheld.
41. The facts of the present case are different. We have not found the testimony of PW-1 up to the mark set up by the Apex Court. Therefore, conviction of the appellants on the basis of testimony of PW-1 by the trial court cannot be upheld. Further it has come in the evidence of PW-1 that four months prior to the date of incident, dispute had taken place between appellants, Umesh Yadav and Ram Pyare and his deceased brother, Darshan Yadav, but it was settled. One day prior to the incident, dispute had taken place regarding channeling the water to their field from the canal between appellant, Om Pal Singh and deceased, Darshan Yadav, which was the motive of the alleged incident. The breach of canal was got repaired by PW-1 in the night of 26-27/9/2004 at about 3:00 a.m. At that time his brother Darshan Yadav and his son, Ram Badan, were with him. To prove the earlier incident which took place one day ago, son of the deceased, could have been produced as witness but he was not produced before trial court to substantiate the motive. The Apex Court in the case of Sekaran Vs. State of Tamil Nadu (Supra) had held in paragraph No.23 that where material witnesses were mentioned by the prosecution in their statements, it was incumbent on the prosecution to adduce relevant evidence. Withholding of their evidence would attract adverse inference as per Illustration (g) of Section 114 of Evidence Act.
42. Learned AGA has relied upon the judgement of the Apex Court in the case of Gurchanran Singh and another Vs. State of Punjab (Supra) and has submitted that mere non examination of expert cannot be a ground for disbelieving the prosecution case since ballistic expert was not examined in the given case. After going through the above judgement, this Court finds that there is no quarrel with the rule that evidence of expert is not necessary in every case where offence is caused by lethal weapon. The Apex Court in the same judgement has held that where the direct evidence is of such an unimpeachable character and the nature of injury disclosed in post mortem report are so clearly consistent with the direct evidence, then examination of ballistic expert may not be regarded as essential. However, where direct evidence is not satisfactory or disinterested or where the injures are alleged to have been caused by gun, when the injury appeared to have been inflicted by a rifle, such inconsistency cannot be cured without corroborative and oral evidence by leading evidence of ballistic expert. In the present case, since direct evidence itself is inconsistent and unreliable corroborative evidence from forensic expert regarding blood recovered from the spot and the blood on the spade alleged used in the crime would have been of great importance but the prosecution has not produced the same.
43. In view of the above consideration, we are of the opinion that prosecution has failed to prove its case beyond reasonable doubt against the appellants and therefore, the judgement and order of the trial court is set aside.
44. Appellants are on bail. Their bail bonds are cancelled and sureties are discharged.
45. The above noted criminal appeals are allowed.
46. The Registry is directed to return the trial court record and notify this judgement to the trial court for compliance, within two weeks.
Order Date :- 01.09.2024
Ruchi Agrahari
(Syed Qamar Hasan Rizvi,J.) (Siddharth, J.)
