Hajju and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—Since both these appeals i.e. [Criminal Appeal No. 5302 of 2006-Hajju V. State] and [Criminal Appeal No. 4147 of 2006-Prabhu Dayal V. State] arise out same judgment and order, therefore, the same are being disposed off by a common order.

There was one more connected Criminal Appeal No. 4932 of 2006-(Kaushal V. State) preferred by the appellant Kaushal but because of his death during detention his appeal was abated vide order dated 28.09.2015.

Learned counsel for the appellants, learned A.G.A. for the State were heard. We have perused the material available on record.

Challenge in the instant appeals is the judgment and order dated 27.07.2006 passed by Additional Sessions Judge (F.T.C.), Mahoba, in Sessions Trial Nos. 72 of 2004, 73 of 2004 and 74 of 2004 arising out of Case Crime Nos. 39 of 2004, 40 of 2004 and 57 of 2007, Police Station Kotwali Mahoba, District Mahoba whereby the appellants Hajju was convicted for the offence under Section 302 IPC and was sentenced to undergo rigorous imprisonment for life and also with fine of Rs. 5000/- with default stipulation of six months additional imprisonment. However he was acquitted of the charge under Section 25 of Arms Act. Appellant Prabhu Dayal was convicted for the offence under Section 302 read with Section 34 IPC and was sentenced with imprisonment for life and also with fine of Rs. 2000/- with default stipulation of six months'' additional simple imprisonment.

Accused Kaushal (since deceased) was convicted for the offence under Section 302 IPC and was sentenced with imprisonment for life and also with fine of Rs. 5000/- with default stipulation of six months'' further imprisonment. He was also convicted for the offence under Section 25 of Arms Act and was sentenced to undergo rigorous imprisonment for a period of one year and also with fine of Rs. 5000/- with default stipulation of one month''s additional simple imprisonment.

Accused Mobeen was acquitted of the charge under Section 302 read with Section 34 IPC and accused Gopal was acquitted of the charge under Section 302 read with Section 120-B IPC.

All the sentences of the convicted appellants were directed to run concurrently.

In brief, the case of the prosecution was that Smt. Mithlesh who happens to be wife of deceased Ram Kishan lodged an FIR on 14.01.2004 at 9.30 a.m. alleging therein that on the same day at about 8.00 a.m. she after pulling the water from well had given the same to her husband for mouth gargle and the elder brother of her husband namely Deepak was also sitting there and was taking bath. Bhan Singh and Rameshwar Prasad were also sitting near the well. In the meantime, appellant Prabhu Dayal alongwith Hajju, Mobeen and Kaushal reached there and on the exhortation of Prabhu Dayal, Hajju fired with his country made pistol on the back of her husband and Kaushal (since deceased) fired on the head of her husband due to which her husband fell down and accused persons ran towards east side but the persons present there chased the miscreants and appellant Kaushal was apprehended by the public alongwith one country made pistol and two cartridges. The remaining three appellants were successful in making good their escape. It was alleged that Prabhu Dayal in order to take revenge of the murder of his son Nunnu has got this offence committed because Ramesh who is brother of deceased Ram Kishan was accused in the said murder case. In the preceding night all these persons stayed in the house of Gopal and the planning for the murder of the deceased was made in the house of Gopal. The complainant, alongwith his written report and arrested accused Kaushal alongwith his country made pistol and cartridges, went to police station and lodged the FIR of this case which was promptly lodged at 9.30 a.m. i.e. only after one and half hour of the incident at a distance of six kilometers from the place of occurrence.

After registration of the case investigation started and a separate case under Section 25 of Arms Act was registered against accused Kaushal. During course of investigation the inquest proceedings were conducted and postmortem of the deceased was conducted at District Hospital, Mahoba, on 14.01.2004 at 3.45 p.m. During course of investigation, on 28.01.2004 accused Hajju was taken on police remand and on his pointing out country made pistol of 315 bore along with empty cartridge and two live cartridges was recovered and its memo was prepared. From the place of occurrence one empty cartridge of 12 bore was also recovered and its memo was prepared. From the place of occurrence the clothes of the deceased which were found kept near the well containing one pair of shoes, one trousers, one kurta and one nicker were taken into custody and its memo was prepared. Blood stained and plain earth were also taken into custody by the police from the place of occurrence.

As per postmortem examination report, following ante-mortem injuries were found on the body of the deceased Ram Kishan.

"(a) An inverted lacerated wound of entry of gun shot size 14 cm present on right posterior parietal region with anterior and 4 cm from upper end of right ear and posterio-inferior end is 8 cm from lower end of pinna and posterior end is 7 cm. from occipital eminence. Skull bone was missing in area of 9 cm x 7 cm in posterio inferior part of wound margin. Margins of bones are with blackening of gun powder.

(b) An everted irregular lacerated wound of size 12 cm x 10 cm present in left posterior mandibular region with anterior end 6 cm from left angle of mouth and upper end is 6 cm from lateral curverture of left eye and left ear is everted. Bone of skull and base was also fractured it was wound of exit.

(c) An inverted wound of entry of size 2.5 cm x 2 cm of oval shape with blackening of size 5 cm x 4 cm present on back of left side of chest with upper end 4 cm from spine of first thoracic vertebrae and lower end is 19 cm from left renal angle.

(d) An everted irregular wound of size 3 cm x 2 cm present on anterior aspect of left chest with upper end 9 cm medial end of left clavicle and 8 cm from left nipple clotted blood was sticking over it."

In the opinion of the doctor the cause of death was syncope due to shock and haemorrhage due to ante-mortem gun shot injury.

The country made pistol recovered from the possession of Kaushal was sent for Forensic Science Lab and alongwith empty cartridges which was recovered from the place of occurrence. Report of Forensic Science Lab was in the affirmative.

The defence of the appellants was that they have been falsely implicated in this case and they have also pleaded ignorance regarding incriminating circumstances put to them.

Appellant Prabhu Dayal has stated that he is innocent and after the death of his son Nunnu he has left the village and has been falsely implicated in this case because of suspicion and enmity.

In order to prove its case, the prosecution has examined PW-1, the Complainant Smt. Mithlesh, PW-2 Dr. A.K. Pandey, who had conducted the postmortem on the body of the deceased Ram Kishan, PW-3 Deepak, another eye witness of this incident. However, he has not supported the case of prosecution, PW-4 S.I. Ram Ratan Verma, who has proved the chik report and G.D. of this case as secondary evidence and he was also the Investigating Officer of this case, PW-5 Head Constable Chandra Bhushan Pandey, who has investigated the case under Section 25 of Arms Act against the appellant Hajju.

No evidence in defence was adduced on behalf of the appellants.

After appreciating the evidence on record, the trial court convicted the appellants and Kaushal (since deceased) as above. Hence the instant appeal.

Submission of the learned counsel for the appellants was that in this appeal, on the basis of the same evidence two appellants namely Gopal and Mobeen have been acquitted. The appellant Hajju had absolutely no motive to commit this offence. The only role assigned to appellant Prabhu Dayal was of exhortation. It has further been submitted that the presence of PW-1 on the place of occurrence was highly doubtful and the same was denied by PW-3 who has not supported the case of the prosecution and has also stated that no other person was present on the scene of occurrence. Therefore, in view of his evidence, virtually there remains no evidence against the appellants to connect them with the instant offence. All these facts were not considered in correct perspective by the learned trial court which has rendered its judgment unsustainable under law.

Learned Additional Government Advocate has submitted that in this case a very prompt FIR has been lodged in which the appellants have been named. One of the accused who was named in the FIR was arrested on the spot. Learned trial court has rightly convicted the appellants because the evidence of PW-1 was wholly reliable and she appears to be the most natural witness as she would not spare the real assailants of her own husband.

Before proceedings further, we would like to consider the point of FIR. FIR in every criminal case is a very important document. Though it is not substantiative piece of evidence but it is very important as the entire prosecution case rests on it. Law expects a prompt FIR because it eliminates chances of coming up of a coloured version. In the instant case, the occurrence is alleged to have taken place at about 8.00 a.m. and the FIR has been lodged at 9.30 a.m. at a distance of about 6 kilometers. i.e. only after a period of one and half hour. One of the accused Kaushal was chased by the public he was apprehended and the FIR was prepared and thereafter it was lodged at 9.30 a.m. So in the instant case there was absolutely no delay in the FIR. A prompt FIR gives credence to the prosecution story as it eliminates the chances of any fabrication. In the instant case during trial date, time, place and manner of occurrence has not been challenged. It has also not been challenged by the prosecution.

A prompt F.I.R. lends credence to the prosecution case because a prompt F.I.R. eliminates all the chances of cooking up of a false story. Hon''ble the Apex Court in the case of Meharaj Singh (L/Nk.) Vs. State of U.P., while emphasizing the importance of recording a prompt FIR the Supreme Court observed as under:--

"FIR in a criminal case and particularly in murder case is a vital and valuable piece of evidence for the purpose of appreciating evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses if any. Delay in lodging FIR often result in embellishment, which is a creature of an afterthought. On the account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story."

In Thulia Kali Vs. The State of Tamil Nadu, the Supreme Court observed as under:--

"............ first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused."

Similarly in Kishan Singh (D) through LRs. Vs. Gurpal Singh and Others, the Supreme Court held that "Prompt and early reporting of the occurrence by the informant with vivid details gives assurance regarding truth of its version. In case there is some delay in recording the FIR the complainant must give an explanation for the same. Undoubtedly, delay in lodging FIR does not make the complainant''s case improbable when such delay is properly explained."

Hon''ble the Apex court in the case of Nanhey Vs. State of Uttar Pradesh, has held that a prompt F.I.R. eliminates the chances of cooking up of a false story.

Learned counsel for the appellants has also submitted that there was absolutely no occasion or motive for appellant Hajju to join hands with Prabhu Dayal. It has repeatedly been held by the Hon''ble the Apex Court in its several decisions that in case of direct evidence, the motive looses all its significance. Reference on this point may be made to the pronouncement of Hon''ble the Apex Court in the case of Habib Vs. State of Uttar Pradesh, , wherein Hon''ble the Apex Court has observed that if there is direct and trustworthy evidence of witnesses as to the commission of offence, the motive part looses its significance. Ocular testimony of witnesses cannot be discarded only by reason on absence of motive if otherwise evidence is worthy of credence. Similar view has been expressed in the case of Subodh Nath and Another Vs. State of Tripura, wherein Hon''ble the Apex Court has observed that motive becomes relevant as an additional circumstance in a case where prosecution seeks to prove the guilt by circumstantial evidence only. But if there is direct evidence against the accused having committed offence motive becomes irrelevant. Similar view has been expressed by Hon''ble the Apex Court in the case of Darbara Singh Vs. State of Punjab, .

It is true that PW-3 who was eye witness of this occurrence has not supported the case of the prosecution and has been declared hostile. But law is settled on the point that even if a witness has been declared hostile by the prosecution and has been cross examined by the prosecutor then his entire evidence does not stand wiped out from the record and the court would be perfectly justified in placing reliance and seeking corroboration of the prosecution case so far as it corroborates the case of the prosecution.

Reference may be made on this point to the pronouncement of Hon''ble the Apex Court in the case of Rohtash Kumar Vs. State of Haryana, wherein Hon''ble the Apex Court has observed that the evidence of a hostile witness cannot be rejected in toto merely because the prosecution choose to treat him as hostile and cross examined him. This point has been considered in the aforementioned case in paragraph Nos. 25, 26 and 27, which reads as as under:

"25. It is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced, or washed off the record altogether. The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof.

In State of U.P. Vs. Ramesh Prasad Misra and another, , this Court held, that evidence of a hostile witness would not be rejected in entirety, if the same has been given in favour of either the prosecution, or the accused, but is required to be subjected to careful scrutiny, and thereafter, that portion of the evidence which is consistent with the either case of the prosecution, or that of the defence, may be relied upon. ( C. Muniappan and Others Vs. State of Tamil Nadu, ; Himanshu @ Chintu Vs. State of NCT of Delhi, ; and Ramesh Harijan Vs. State of U.P., ).

Therefore, the law permits the court to take into consideration the deposition of a hostile witness, to the extent that the same is in consonance with the case of the prosecution, and is found to be reliable in careful judicial scrutiny."

Similar view was expressed by Hon''ble the Apex Court in the case of Paulmeli and Another Vs. State of Tamil Nadu tr. Insp. of Police, and also in the case of Shyamal Ghosh Vs. State of West Bengal, .

Now the sole point to be considered in the instant case is the evidence of PW-1 Smt. Mithlesh. Learned counsel for the appellants has challenged her presence on the place of occurrence because she has stated that she used to go to the fields after sending her son to the school. She has also admitted that timings of school were from 10.00 a.m. On the basis of this statement of PW-1 it is submitted that according to this statement PW-1 was not present at the place of occurrence. It is settled principle of appreciation of evidence that the evidence of a witness has to be taken as a whole and testimony of a witness cannot be discarded only on the basis of a stray statement. When we consider the evidence of PW-1 Smt. Mithlesh from the said angle then it is clear that she has stated in her cross examination that she used to go to give food to her husband at 8.00 a.m. and she has also stated that after sending her to school she used to go to her field. So there is virtually no contradiction in the two statements. For the first time at about 8.00 a.m. she used to go to provide food to her husband and after sending her son to school she again used to come to the field, may be for the purpose of contributing in the agricultural work or for any other purpose. She has nowhere stated that she used to go to the field after 10.00 a.m. to provide food to her husband. So the two statements are independent and learned counsel for the appellants by connecting these two statements together has tried to build up his argument to show that PW-1 was not present at the scene of occurrence. We are not impressed with this situation.

We have gone through the evidence of PW-3 Deepak who was also present at the place of occurrence with PW-1. But his evidence shows that he has not come up with the true statements. Admittedly, he has stated that he had gone to Smt. Mithlesh to lodge the FIR but at one place he states that Kaushal was apprehended by the villagers. On the other place he has stated that when he came back from the police station then he came to know about the arrest of Kaushal. Apart from it, he has nowhere stated that any firing took place at the place of occurrence or as to how Ram Kishan died. Though he has stated that he had seen the occurrence but he has stated that he could not identify the persons. Perusal of his evidence shows that he has corroborated the date, time and place of occurrence. Simply because a witness could not muster courage to support the case of the prosecution and to name the assailants, so on the basis of his statements it would not be justified to discard the evidence of other witness who has come forward to help the Court and supports the case of the prosecution. The details of the incident as narrated in the FIR that appellant Hajju fired on the back of the deceased and accused Kaushal (deceased) fired from a very close range on the head of the deceased stands fully corroborated from the medical evidence. These facts could have been mentioned only by a person who himself has seen the incident. So the narration of all these facts in the FIR by PW-1 Smt. Mithlesh supports her presence on the place of occurrence. Evidence of PW-3, that no one else was present on the place of occurrence is nothing but a bundle of false statement. Had no one been there then there was absolutely no occasion for the complainant side to apprehend Kaushal after chasing him.

Learned counsel for the appellants has also submitted that in her cross examination she has stated that appellant Hajju, Kaushal and Mobeen were not known to her from before but she came to know about their names as they were being addressed by appellant Prabhu Dayal at the place of occurrence.

On the strength of this statement it is submitted that appellant Hajju was not known to the complainant and he was not put any test identification parade, therefore, her evidence with regard to appellant Hajju cannot be relied upon.

Perusal of the impugned judgment shows that this ground was not considered by the learned trial court. It appears that the same was not raised before the trial court as the same has not been discussed in the impugned judgment. Perusal of the FIR of this case shows that the complainant Smt. Mithlesh and appellant Hajju and other appellants, all are residents of village within the territorial jurisdiction of Police Station Mahoba. The complainant Smt. Mithlesh is resident of village Mamuna while the appellant Hajju is resident of Mohalla Bajaria but both fall within the circle of Police Station Kotwali Mahoba. In the FIR the specific names and addresses have been mentioned by the complainant of all the accused persons and there is nothing in the FIR to give rise to the inference that the appellants were not known to the complainant at the time of registration of the FIR. Apart from it, in the examination-in-chief the complainant has not only named all these accused persons but she has also stated that the appellants Prabhu Dayal, Gopal, Hajju, Mobeen and Kaushal who are present in Court are known to her. This statement of the witness PW-1 shows that she has identified the appellants in Court and during course of her cross-examination the said statement made by the complainant in her examination-in-chief has nowhere been challenged. It transpires from perusal of the cross-examination of this witness that she has deliberately changed her statement simply to save the appellants. Even in the cross examination on behalf of appellant Prabhu Dayal she has changed her version. So far as it relates to appellant Hajju she has changed her version. A question was put by the learned counsel for the appellants to the Investigating Officer PW-4 S.S.I. Ram Ratan Verma who has stated that the complainant has not given any such statement during investigation to him that the appellants were not previously known to her. Thus in the FIR, during investigation and in the examination-in-chief PW-1 Smt. Mithlesh has named the appellant Hajju alongwith other appellants and has nowhere stated that they were not known to her. Even in her examination-in-chief she has identified the accused persons in Court. Thus the statement given by this witness in her cross-examination appears to be the result of any compromise or any pressure or threat to this witness because of which she has given such statement and in our considered view the same cannot be treated to be a ground to discard the otherwise reliable testimony of PW-1 as given by her in her examination-in-chief.

Earlier the dictum was that "no innocent person should be convicted though hundred guilty may escape; but by the lapse of time, after development of law", the said dictum has changed and now the dictum is that "no innocent person should be punished but leaving guilty escape is also not doing to justice according to law". In our opinion the complainant Smt. Mithlesh has made false statement in her cross-examination that these persons were not known to her. So we do not place any reliance on such statement of her cross-examination and discard it. No other corss-examination on behalf of the appellants was made challenging the date, time and place or manner of the occurrence. Not even on the point of spot arrest of co-accused Kaushal. So all these facts remains unchallenged and in the perspective of identification of the appellants in Court by PW-1 we have no hesitation to hold that the prosecution was successful in proving its case beyond reasonable doubt against the appellant Hajju.

So far as the case of appellant Prabhu Dayal is concerned, the only role assigned to him, was of exhortation. Submission of the learned counsel for the appellants was that on the basis of the same evidence co-accused Mobeen has been acquitted by the trial court as he was not assigned any role. The evidence regarding the exhortation is considered to be a weak type of evidence.

Reference on this point may be made to the pronouncement of Hon''ble the Apex Court in the case of Jainul Haque Vs. State of Bihar, , at page 545 and Hon''ble Apex Court has observed as under:

"The part attributed to the appellant according to the first information report is that he had exhorted the other accused to assault Leyaquat, while according to the evidence adduced at the trial the appellant actually joined in the assault on Leyaquat. The High Court did not accept the prosecution evidence on the point that the appellant had joined in the assault on Leyaquat. All the same, the High Court convicted the appellant because it was of the view that the appellant had exhorted the other accused to assault Leyaquat. In the absence of any substantive and cogent evidence adduced at the trial that the appellant had exhorted the other accused to assault Leyaquat, the High Court, in our opinion, should not have convicted the appellant for the offence under Section 323 read with Section 114 of the Indian Penal Code. The High Court has found the evidence of the eyewitnesses to be unsatisfactory. It has also found that the eyewitness were prone to exaggerate things and to involve as many accused as possible. In the circumstances it was, in our opinion, not safe to base the conviction of the appellant on the aforesaid evidence. The evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant, by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant."

Reference on this point may be made to the pronouncement of Hon''ble the Apex Court in the case of Anand Mohan Vs. State of Bihar, and Hon''ble Apex Court has observed in para 69 as under:

"69. This Court has held in Jainul Haque v. State of Bihar (supra) that evidence of exhortation is in the very nature of things a weak piece of evidence and there is often quite a tendency to implicate some person in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim and unless the evidence in this respect is aclear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant."

It was no where the case of the prosecution that Prabhu Dayal was armed with any weapon. Apart from it, if he had managed other persons to serve his purpose of taking revenge then there was absolutely no need for the appellant Prabhu Dayal to remain present on the scene of occurrence. So keeping in view the acquittal of co-accused Mobeen and the fact that no specific role of assault was assigned to appellant Prabhu Dayal he deserves to be granted the benefit of doubt.

In view of the discussion made above, the Criminal Appeal No. 5302 of 2006 (Hajju V. State of U.P.) deserves to be dismissed and is hereby dismissed. The appellant Hajju is in custody and he shall serve out his sentences as inflicted by the trial court.

Criminal Appeal No. 4147 of 2006 (Prabhu Dayal V. State of U.P.) deserves to be allowed and is hereby allowed. Appellant Prabhu Dayal is on bail. His bail is cancelled and sureties discharged. He be set at liberty. He is acquitted of the charges levelled against him.

Office is directed to communicate this order forthwith to the court concerned to ensure compliance and to send back the lower court record.