Guddu Maurya @ Sunil Maurya and another vs State of U.P.

Pradeep Kumar Singh Baghel, J.—This is first bail application of Guddu Maurya @ Sunil Maurya and Sami Nath Mallah u/s 398 (1) of Criminal Procedure Code in Criminal Appeal No. 821 of 2012.

Both the appellants stood convicted u/s 302/148/149. I.P.C. and Section 7 of Criminal Law Amendment Act for life imprisonment and fine of Rs. 10,000. The appellants alongwith other accused were put up for trial before the Additional Sessions Judge, Mau in S.T. No. 245 of 2006. The prosecution case in brief is that on 11.5.2006 at 7 a.m. the informant. Jai Prakash Singh alongwith Praveen Kumar Singh were present at the spot of the occurrence when his elder brother Om Prakash Singh was shot dead by the appellants alongwith other accused. The incident occurred at the bank of Tons river. The details of the facts have been unfolded in the first information report which was instantly lodged after an hour at about 8 a.m. by the informant Jai Prakash against six persons namely (1) Swami Nath Mallah. (2) Sushil Chaurasia. (3) Jalandhar Mallah @ Jaylendra. (4) Ram Janam Chauhan. (5) Guddu Maurya and (6) Param Hans Singh. Informant in the first information report has stated that his elder brother Om Prakash Singh was engaged in the business of sand and on the date of occurrence he was present alongwith his brother and Praveen Kumar. In respect of the said business there was animosity between his brother and Param Hans Singh, Sushil Chaurasia, Jalandhar Mallah @ Jaylendra, Ram Janam Chauhan. Guddu Maurya and Swami Nath Mallah. They wanted that his brother Om Prakash Singh the deceased should not do the business of the sand in the same area. On 11.5.2008 at about 7 a.m. all the afore mentioned persons armed with the country made pistols surrounded his brother and after abusing him they fired on his brother with their country made pistols on the exhortation of Swami Nath Mallah. His brother was fatally injured. After committing the crime all the accused fled from the spot.

On 11.5.2006 autopsy of the deceased Om Prakash Singh was conducted by Dr. Ajit Kumar Singh. The post-mortem report mentions "cause of death due to ante-mortem fire arm injuries" in the said report two bullet injuries have also been mentioned. The investigation was entrusted to Jalodhar Yadav P.W. 7. He prepared the site plan which is Ex. Ka-10 on the record. The sample of the blood which was found at the spot of the occurrence was also taken which is Ex. Ka-11 and an empty cartridge was also found at the spot which is Ex. Ka 12.

The police arrested Sushil Kumar Chaurasia. Ram Janam Chauhan and Guddu Maurya and on their search a country made pistol of 315 bore alongwith live cartridge was recovered from Sushil Kumar Chaurasia. A separate Criminal Case No. 532 of 2006 u/s 25. Arms Act was registered. On 24.5.2006 another country made pistol of 315 bore was recovered from accused Jalandhar Mallah.

It is the case of the prosecution that Jalandhar Mallah had admitted during investigation that he had caused injury by knife on the deceased Om Prakash Singh. After the crime he had thrown the knife in the river Tones. However, he could not point out the exact place where he had thrown the said knife after the crime and as such it could not be recovered.

All the accused were put up for the trial and all three cases S.T. No. 245 of 2006 in Case Crime No. 295 of 2006. State v. Sushil Kumar Chaurasia, u/s 147/148/149/302/504/506 and 120B. I.P.C. read with Section 7 of Criminal Law Amendment Act. S.T. No. 246 of 2006 in Case Crime No. 532 of 2006. State v. Sushil Kumar Chaurasia, u/s 25 of Arms Act and S.T. No. 247 in Case Crime No. 332 of 2006. State v. Jalandhar Mallah @ Jaylendra, u/s 25 of Arms Act were tried and decided by a common judgment of the Additional Sessions Judge, Mau by means of a judgment and order dated 8.2.2012. All the accused were found guilty under the different sections. Only one of the accused Param Hans Singh against whom charge-sheet was filed u/s 120B. I.P.C. was acquitted and given the benefit of doubt.

The accused aggrieved by the judgment and order dated 8.2.2012 passed by the Additional Sessions Judge, Mau filed two separate criminal appeals u/s 374 (2). Cr. P.C. and Criminal Appeal No. 821 of 2012 by Guddu Maurya and Swami Nath Mallah appellants in the present bail application and Ram Janam Chauhan filed a separate Criminal Appeal No. 1010 of 2012.

We have heard learned counsel for the appellants Dr. S.B. Singh and learned A.G.A. Counsel for the appellants submitted that from the post-mortem report it is evident that there was a an incised cut wound. 16 cm. x 1 cm., muscle deep, from the left ear to right ear at the thyroid level of the deceased Om Prakash Singh. However, none of the witnesses of the prosecution have mentioned the said wound in their depositions. Thus the prosecution has failed to prove as to how the incised cut wound had been caused as there was no allegation against the appellants that they had caused the said wound. He had further submitted that from the evidence of Dr. Ajit Kumar Singh P.W. 6 it is clear that the time of the death was around 2.30 a.m. since semi digested food was found, thus it was highly improbable that incident had taken place at 7 a.m. He had lastly submitted that all the witnesses of the prosecution were interested witnesses as P.W. 1 Jai Prakash Singh was the real brother and the P.W. 2 Praveen Kumar was the close friend of the informant Jai Prakash Singh.

Learned A.G.A. has submitted that the trial court has rightly relied on the statements of the eye-witnesses P.W. 1 and P.W. 2 who were present on the spot at the time of occurrence. He has further submitted that the trial court has rightly appreciated the entire evidence. He urged that the statement of Dr. Ajit Kumar Singh is only an opinion and in view of the overwhelming evidence on the record to prove the involvement of the accused in the crime.

We have considered the rival submissions of the learned counsel for the parties.

As regards the first submission of the learned counsel for the appellants that none of the eye-witnesses have stated about that the wound was caused by the sharp edged weapon from left ear to right ear of the deceased as such the presence of the eye-witnesses on the spot are doubtful, we do not agree with the submission of the learned counsel for the appellants. In the facts and circumstances of the this case where the prosecution case was that several accused came and they fired at Om Prakash Singh it is natural that the persons who were present on the spot at that point of time would become shocked and confused. In such a situation the normal human instinct would be to save their own life and they are not supposed to observe each and every activity of all the accused at that moment. As there were six accused in number and most of them were armed with weapons and they fired simultaneously in such a situation the P.W. 1 and P.W. 2 would have been terrified and as such the omission of the fact regarding incised cut wound on the neck of the deceased would not be so glaring to ignore the clinching evidence. In respect of such minor discrepancies in oral evidence Supreme Court''s observation/conclusion are apt and relevant for our purpose. In case of State of Rajasthan Vs. Smt. Kalki and Another, , the Supreme Court held that:

In the depositions of witnesses there are always normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person. As indicated above we have not found any material discrepancies in the evidence of P.W. 1.

The next argument of learned counsel for the appellants is that a semi digested food found in the stomach of the deceased shows that the occurrence did not take place at 7 a.m. in the morning we do not agree with the said submission of the learned counsel for the appellants for the reasons that the contents of food concerned remains for long hours in the stomach and duration thereof depends on various factors. The Supreme Court in the case of Mani Ram v. State of Rajasthan. 1993 (3) SCC 18, has held that "the process of digestion depends upon the digestive power of an individual and varies from an individual to an individual. It also depends upon the type and amount of food taken. The period of digestion is different for different types of food."

We also agree with the finding of the court below that in the country side the people take their meal in the early morning before going for the work. Therefore, only on the basis of the opinion of Dr. Ajit Kumar Singh P.W. 6 the prosecution case cannot be disbelieved. The Supreme Court has highlighted the fact in Bur Singh v. State of Punjab, (2008) 16 SCC 65 : 2009 (1) ACR 393 (SC) 73 :

so far as the presence of semi-digested food is concerned the High court has stated that people in the villages get up early in the morning, take some food and then start their daily pursuits. No question was asked to the witnesses as to when the deceased woke up and when he took his good if any.

As regards the submissions of learned counsel for the appellants that the P.W. 1 is the brother of the deceased and the P.W. 2 is the friend of P.W. 1, therefore, they are interested witnesses and for the said reason their statement ought to have been discarded we do not agree with the said submission.

The Supreme Court in same judgment has observed in following terms:

11......Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

Merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version.

In Dalip Singh v. State of Punjab, it has been laid down as under : (AIR p. 366, para 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 relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge alongwith the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

(Italicized by us)

From the record we find that Swami Nath Mallah appellant No. 2 to the instant appeal and applicant for bail was assigned only the role of exhortation, he was not armed with any fire arm and there is no finding by the learned Sessions Judge in respect of the involvement of the appellant No. 2 Swami Nath Mallah. We agree with the submissions of learned counsel for the applicant that his alleged Involvement is minimal. Let the appellant No. 2 Swami Nath Mallah who is convicted and sentenced in Sessions Trial No. 245 of 2006. u/s 147/148/149/302/504/506/120B. I.P.C. and Section 7 of Criminal Law Amendment Act. Police Station Kotwali, district Mau be released on bail on his furnishing a personal bond and two suretires each in the like amount to the satisfaction of the court concerned.

However, we do not find any substance in the submission of the learned counsel for the appellants in respect of appellant No. 1 Guddu Maurya @ Sunil Maurya for consideration of his bail. His application for bail lacks merit and It is rejected.