Ashok Kumar and others vs The State of U.P.

Hon''ble Imtiyaz Murtaza, J.—This criminal appeal has been filed against the judgment and order dated 27.10.2004 and 28.10.2004 passed by the Additional Sessions Judge/Fast Track Court-1,Faizabad in Session Trial No.321 of 1992 arising out of case crime no. 18 of 1992, P.S. Inayat Nagar, District Faizabad, whereby the appellants have been convicted u/s 302/149 IPC and sentenced to undergo life imprisonment and fine of Rs. 5000/- each and in default of payment of fine, six months further rigorous imprisonment. The appellants have further been convicted u/s 148 IPC and sentenced to undergo one year rigorous imprisonment. Both the sentences were directed to run concurrently.

Filtering out unnecessary details, the facts of the case are that according to the prosecution, First Information Report was lodged by Rajrani Upadhyay wife of deceased Jagdamba Prasad Upadhyay alleging therein that a litigation was going on between her husband Jagdamba Prasad Upadhyay and Bhola Prasad Upadhyay relating to landed property, due to which there was enmity between them. On 15.1.1992 at 7.30 A.M. her husband, after milking of the buffallo, was going to milk the other buffallo. The informant Rajrani, her daughter Anju and mother-in-law Smt. Sitapati wife of Bhulai were sitting there. Accused Bhola son of Devkali Upadhyay, Ashok Kumar son of Bhola Upadhyay, Triveni and Girja sons of Bhagauti Shukla, Omprakash son of Shanker Pandey and one unknown person whose name was not known to her, entered the house of the deceased The assailants, who were armed with katta, sword, bhujali, started abusing her husband and fired from country made pistol and also assaulted the deceased with sword and bhujali, resulting in his instantaneous death. The incident was witnessed by Rampal son of Ram Prakas, Ganga Prasad son of Rajitram, Raghuraj son of Gangaprasad, Sahabdin son of Chandrapal and some other villagers. On alarm being raised and seeing the villagers, one of the miscreants whose name was not known to the complainant, ran towards the eastern side of the village while the remaining assailants made good their escape towards the western side of the village. The unknown miscreant was chased by the villagers and was assaulted by them resulting into his death. The dead body of her husband was brought to the police station by the informant alongwith co-villagers on a cot. On the basis of her written application a report was lodged against the appellants u/s 147,148,149 and 302 I.P.C. on 15.1.1992 at 10.15 a.m. The distance of police station from the place of incident is three miles.

S.I. Surendra Nath Chaube had recorded the statements of Rajrani and witnesses Bhulai, Amarjeet, Doodhnath, Jadgamaba Parasad Pathak and Ram Milan and prepared the inquest reports of dead bodies of Jagdamba and one unknown miscreant which are marked as Ex. Ka 2 and 3. Their dead bodies were sent for postmortem examination. Autopsy report, recovery memo and site plan were also prepared. Initial investigation was done by Shri Chaube as Mr. Shafiq Ahmad I.O. was on leave from 14.1.1992 to 17.1.1992, therefore, on 18.1.1992 investigation was commenced by him. After investigation of the case, the Investigating Officer, Shafiq Ahmad submitted charge-sheet against the appellants under sections 147,148,149, 302 and 504 IPC. The case was committed to the court of sessions and sessions judge framed charges against the accused; namely; Ashok Kumar Upadhyay,Triveni, Girija and Omprakash under sections 148, 302 read with section 149 IPC. 307 read with section 149 IPC. One of the accused Bhola had died before framing of charge, therefore, he was not charged alongwith other accused appellants. The accused appellants denied the charge and claimed trial.

The prosecution in order to prop up its case, examined in all four witnesses as P.W. 1 Rajrani Upadhyay wife of deceased Jagdamba Prasad, P.W. 2 Sitapati mother of deceased Jagdamba Prasad, P.W. 3 Dr. A.K.Shah, P.W. 4 S.O. Shafiq Ahmed. Mr. Vijay Prasad Srivastava was examined as Court Witness.

P.W. 1 Rajrani Upadhyay deposed that a litigation was going on with accused Bhola relating to some grove and land. Accused Omprakash is son in law of Bhola. Sister in law of Omprakash is married with brother of accused Girja and Triveni and daughter of accused Bhola is married with accused Omprakash and his second daughter is married with brother of accused Giraja. The incident took place five and a half years back at 7.30 a.m. She further deposed that when her husband was going to take milk from second buffalo, her daughter Anju and mother in law Sitamati were lying near a thatched (chhappar), at that time accused Ashok armed with sword, Omprakash armed with katta, Girja, Triveni and Bhola armed with bhujali and one unknown miscreant whose name she did not know, armed with katta reached there and started assaulting him with katta, bhujali and sword. Her husband died on the spot. On raising alarm, several persons namely Sahabdeen, Rampal, Raghuraj and Ganga Prasad reached there and they saw the entire incident. The accused ran away towards western side of the village. Unknown miscreant was apprehended by some villagers, who caught hold of him and assaulted him, resulting in his death. Even after the incident, name of the said miscreant could not be known. She had lodged a report. The first information report was scribed by one Rajendera Shukla (Ex. Ka 1).

In cross examination she deposed that Bhulai was her father in law and accused Bhola was real brother of Bhulai. Accused Bhola was contesting the case on the basis of a Will, claiming himself owner of grove and land and Chandrabhan was also contesting in that regard on the basis of his adoption by Bhagwandeen. She further deposed that a litigation was going on between her husband and Bhola in regard to some land. Her husband used to do pairvi on behalf of Chandrabhan.

P.W. 2. deposed that name of her only son is Jagdamba Prasad Upadhyay. Bhagwandeen adopted Chandrabhan and after the death of Bhagwandeen a litigation was going on between Bhola and Chandrabhan with regard to property. Her son was doing pairvi on behalf of Chandrabhan. On that count Bhola had enmity with her son. The incident took place five and a half years back at 6.30 a.m. At that time her son was milking the buffalo. Rajrani, Anju her grand daughter and her daughter-in-law were sitting. Accused Omprakash, Ashok Kumar, Girja, Triveni, Bhola and one unknown miscreant reached there. Bhola and Triveni were armed with bhujali, Ashok Kumar was armed with sword and Omprakash was carrying katta in one hand and bhujali in the other. Ompraksh fired at her son with a country made pistol and he ran about 4-5 steps towards the southern side, thereafter all the accused persons began assaulting her son. On raising alarm, several persons reached the place of occurrence. One unknown person, who escaped towards the eastern side of the village was killed by the villagers and her son was also killed.

P.W. 3 Dr. A.K. Sahu who was posted as Medical Officer in District Hospital, Faizabad on 16.1.1992 deposed that he had conducted the autopsy of deceased Jagdamba Prasad Upadhyay on that date at 2.30 p.m. and noted the following anti mortem injuries.

Incised wound 11 cm x 2 cm x bone deep, on the right side scalp, 2 cm above right ear with fracture of bone underneath.

Incised wound 7 cm x 1.5 cm x bone on the right side scalp 4 cm above eye brow.

Incised wound 3 cm x 2 cm x bone deep on the forehead 2 cm above root by nose.

Incised wound 4 cm x 2 cm x bone deep on the back of left forearm middle 1/3.

Incised wound 5 cm x 1cm x bone deep on the left palm.

Incised wound 5 cm x 5 cm x bone deep underneath on the web space between middle & ring finger fracture of both sides of left metacarpal)

Incised wound 2cm x 0.5 cm. x muscle on the outer side of left thigh 10 cm above knee joint.

Abrasion 5 cm x 2 cm on the outer side of left thigh upper 1/3.

Incised wound 2 cm x 0.5 cm x muscle on the anterolateral of left knee joint.

Incised wound 5 cm x 1 cm x muscle on the right side back upper part of scapular region.

Incised wound 9 cm x 3 cm muscle on the outer side of right upper Arm 4 cm. below the top of shoulder.

Incised wound 9 cm x 2.5 cm x bone on the outer side of right forearm 10 cm above wrist joint with fracture of underneath bones.

Incised wound 10 cm x 3 cm through and through the right palm with fracture of bone underneath.

Multiple gun shot wounds of entry in an area of 8 cm. on the front of right side chest 4 cm above right nipple. Size of wound varies from 0.2 x 0.2 cm to 0.4 cm x 0.2 cm. No blacking, tattooing or charring present.

In his opinion the death was caused due to shock and haemorrhage as a result of anti mortem injuries. He has proved Post-portem medical examination report as Ex. Ka 2.

P.W. 4 I.O. deposed that he had submitted charge-sheet against the accused persons, which is marked as Ex. K 4 and proved it. Since he was on leave from 14.1.192 to 17.1.1992, the preliminary investigation was entrusted to S.I. Surendra Nath Chaube, who recorded the statements of informant Rajrani and Anju on 15.1.92. Thereafter, he also recorded statements of witnesses Munai Upadhyaya and the witnesses of Panchnama, namely, Amarjeet Upadhyay, Doodhnath Upadhyay, Jagdamba Prasad Yadav and Ram Milan Pasi. He also inspected the place of occurrence. He prepared recovery memo of blood stained earth and plain earth collected from the place where the dead body of unknown miscreant was lying. He also recorded the statements of witnesses Shyam Sundar, Ashok Kumar, Bhawani Prasad, Jokhulal, Ram Bahadur, Ram Pher, Mahadeo, Mata Prasad Dubey and Ram Ratan and Ram Yash etc. On 16.1.92, he recorded the statements of witnesses Sitamati, Ganga Prasad Upadhyay, Raghuraj Upadhyay, Ram Prakash Upadhyaya and scriber Rajendra Prasad. On 17.1.92, he recorded the statement of Constable Shrikant. On 18.1.92. I.O. Shafiq Ahmad investigated the case. After recording the statements of the accused, he submitted charge sheet which is marked as Exhibit Ka-4.

C.W.1 Vijay Prakash Srivastava who was posted in 1992 as Session Clerk in the office of Chief Judicial Magistrate, Faizabad deposed that he had given information to the present Presiding Officer about missing of file of S.T. No. 321 of 1992, which was ordered to be reconstructed.

The Sessions Judge after scrutinizing the evidence brought on record by the prosecution recorded verdict of conviction against the appellants as aforesaid. Hence this appeal.

We have heard Sri S.M.Munis Jafari, Learned Counsel for the appellants and learned Additional Government Advocate and perused the lower court''s record.

The first submission of the Learned Counsel for the appellants is that it was a case of dacoity and the same has been converted into murder on the ground of previous enmity with the appellants.

We have carefully examined the testimony of P.W. 1 and P.W. 2, who appear to have narrated the entire evidence truthfully and only vague suggestion has been given to them that it is a case of dacoity by unknown persons and the appellants have falsely been implicated in this case. It is pertinent to mention here that there was no suggestion of any article being looted nor there was any evidence on record to suggest that it was a case of dacoity. Another important point is that P.W. 4 investigating officer who was extensively cross examined in this case but no suggestion has been given to him that it was a case of dacoity which has been converted into a case of murder. A large number of injuries obviously show that the informant''s husband was brutally murdered. The theory of dacoity being committed by certain miscreants including the one who was lynched by the villagers does not find support from any quarter as neither there was any report lodged in this context nor any villager was examined during trial to support that story.

Therefore, we are of the view that there is nothing on record to substantiate the plea that it is a case of dacoity.

Another submission of the counsel for the appellants is that no independent witness had been produced in the case and only interested and relatives have been examined. It is a settled position that there is no proposition in law that relatives are to be treated as untruthful witness. Just because the witnesses are related to the deceased would be no ground to discard their testimony, if otherwise their testimony inspires confidence. Being relatives, it would be their endeavour to see that the real culprits are punished and normally they would not implicate wrong person in the crime, so as to allow the real culprits to escape unpunished. So far as the submission of the non examination of other witnesses is concerned, mere failure to examine all the witnesses who may have witnessed the occurrence will not result in out right rejection of the prosecution case if the witnesses examined by the prosecution are found to be truthful and reliable. Moreover, we cannot ignore the reality that many eye witnesses shy away from giving evidence for obvious reasons.

In the case of Ravi Vs. State Rep. by Inspector of Police, it has been observed that ''''It is settled by a catena of cases by this Court that the evidence of eyewitnesses cannot be rejected merely because they are related. In such a situation, the evidence of PW 2 in the present case, there is no strong motive or ill will on the part of PW 2 to exonerate the real person who caused the injuries to her son and to implicate the accused.''''

In the case of Appabhai v. State of Gujarat reported in 1988 (supp.) SCC 241 the Apex Court has observed as under:

"Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror-stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner."

It is now well settled that the evidence of witnesses cannot be discarded merely on the ground that they are related witnesses, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness. In the case of Seeman @ Veeranam Vs. State, by Inspector of Police, the Apex court had observed that ''The prosecution''s non-production of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement.''

In the case of Harbans Kaur and Another Vs. State of Haryana, the Apex Court observed.

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 the actual culprit and falsely implicate the accused. No evidence has been led in this regard. So far as the delay in lodging the FIR is concerned, the witnesses have clearly stated that after seeing the deceased in an injured condition, immediate effort was to get him hospitalised and get him treated. There cannot be any generalisation that whenever there is a delay in lodging the FIR, the prosecution case becomes suspect. Whether delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case, would depend upon the facts of each case. Even a long delay can be condoned if the witnesses have no motive of implicating the accused and have given a plausible reason as to why the report was lodged belatedly. In the instant case, this has been done. It is to be noted that though there was cross-examination at length, no infirmity was noticed in their evidence. Therefore, the trial court and the High Court were right in relying on the evidence of the prosecution witnesses.

In view of the sustainable findings of the trial court, and for the foregoing reasons, we are of the view that the trial court has rightly sentenced the appellants to undergo life imprisonment.

Therefore, the findings recorded by the trial court are affirmed by us. The appellants are in jail. They shall serve out the sentences, as awarded by the trial court.

The appeal is dismissed.