Raj Prasad vs State

D.V. Sharma, J.—This criminal appeal is directed against the judgement and order dated 2.11.1981 passed by III Addl. Sessions Judge, Gonda in Session Trial No. 13 of 1980 convicting and sentencing the appellants under sections 147/148/452/302 and 149 I.P.C. to undergo two years'' R.I. each under the first three counts and imprisonment for life under section 302/149 I.P.C. All the sentences were made to run concurrently.

The factual matrix is as under:

According to the prosecution version, there was a long drawn enmity between the parties owing to litigation between them regarding property matters. It is further alleged that sometimes prior to the incident accused Raj Dutt''s brother Prem Dutt was murdered in which the deceased and witness Gopal were accused, but ultimately the case ended in acquittal. On account of this, the accused persons bore grudge and on 31.7.1977 at about 11.00 a.m. in a village Kansapur, P.S. Kotwali Dehat, Gonda while the deceased Lallu was lying in his Baithaka along with his wife, the accused persons Jag Prasad armed with Pharsa, Ram Chandra (since dead) and Gulab armed with Bhala, Raj Dutt armed with gun. Raj Kumar, Ram Prasad and Ram Abhilakh (since dead) armed with Kattas entered the house of the deceased and assaulted him with their respective weapons, in prosecution of common object of unlawful assembly viz to commit murder, which resulted in his instantaneous death on the spot. On the alarm being raised, Narain, Nanku, Gopal, Satya Dev, Shyam Pandey and others reached the spot and the accuse persons made their escape good. The informant Smt. Kaushal Kumari @ Kaushalya wife of the deceased went to the police station along with Gopal and lodged the F.I.R. Ext.Kal, on the basis of which a case at Crime No. 320 of 1977, under sections 147/148/149/452 and 302 I.P.C. was registered. The Investigating Officer after completing usual investigation submitted the chargesheet against the accused persons.

To prove its case the prosecution examined as many as six witnesses, out of them P.W.I Smt. Kaushal Kumari, informant, P.W.2 Satya Dev and P.W.3 Gopal are the witnesses of fact and rest are formal ones. P.W.4 is Krishna Mohan Shukla, in whose presence S.I. Prasad Ram (untraceable) recovered broken pieces of bangles, pellets, blood stained and ordinary sand and blood stained wads for which fards were prepared. P.W.5 is Dr. H.C. Srivastava, Medical Officer, District Hospital, Gonda, who conducted autopsy on the dead body of deceased Anand Kumar @ Lallu on 1.9.1977 at about 12.45 p.m. and prepared the postmortem report Ext.Ka7, which shows the following antemortem injuries:

Incised wound 4.00 cm. x 1.00 cm. bone deep over Rt. side scalp 31/2 cm. above Rt. eyebrow.

Incised .wound 1/1/2 cm. x 1/2 cm. skin deep over his middle part of Rt. eyebrow.

Incised wound 1/2 cm. x 1/2 cm. x skin deep Rt. side upper lips.

Incised wound 1/4 cm. x 1/4 cm. x muscle deep over Rt. side chin.

Firearm wound of entry of 3 cm. x 2 cm. x muscle deep charring around it inverted margin over Rt. side neck 111/2 cm. below Rt. ear TO clock position.

Firearm wound of exist 4 cm. x 21/2 cm. x muscle deep over anterior part of neck 10 cm. below chin 7''O clock position with inverted margin, wading pieces and pellet found.

Punctured wound 2 cm. x 1 cm. x 21/2 cm. x towards below medially over Lt. side neck 7 cm. above medial and of clavicle.

Punctured wound on area of 21 cm. x 16 cm. over front of chest 9 No. layout 11/2 cm. x 1/4 cm. x 2 cm. smallest 1/4 cm. x 1/4 cm. x 1/2 cm.

Punctured wound in area of 17 cm. x 6 cm. over lateral side of Rt. upper Arm layout 1/2 cm. x 1/2 cm. x 1/4 cm. smallest 1/4 cm. 1/4. x 1/2 cm. 5 cm, below top of Rt. shoulder.

Incised wound 2 cm. x l cm. x 1 cm. over lateral side of Rt. chest 12 cm. from Rt. exiula below.

Punctured wound 1 cm. x 1 cm. cavity deep Rt. side chest 7 cm. lateral to injury No. 10.

Punctured wound 1/2 cm. x 1/2 cm. x 1 cm. over anterior Rt. side 13 cm. away from scalp 9''O clock position.

Incised wound 3 No. little away of index finger Rt. at base dorsal aspect 1 cm. 1/2 cm. x skin deep each app.

Punctured wound 5 No. in area of 23 cm. x 8 cm. over posterior aspect of Rt. thigh 91/2 cm. above knee joint.

Punctured wound 2 No. in 5 cm. x 1 cm. lower front of Rt. knee layout 1/4 cm. x muscle deep smallest

. 1/10 cm. x 1/10 cm. muscle deep.

Firearm wound of injury in area 15 cm. x 61/2 cm. over Lt. shoulder anterior aspect 2 cm. below top of Lt. shoulder.

Incised wound 31/2 cm. x 1 cm. muscle deep outer aspect of Lt. thumb at bone.

Punctured wound 1/2 cm. x 1/2 cm. muscle deep over it side upper part of abdomen 14 cm. above the umbilicus 2''O clock position.

Firearm wound of enter of 5 cm. x 5 cm. muscle deep margin inverted charring present around wound Lt. thigh.

Punctured wound 1 cm. x 1/2 cm. muscle deep over back Lt. thigh 10 cm. above Lt. knee joint.

Punctured wound 1/2 cm. x 1/2 cm muscle deep over knee of Lt. thigh 18 cm. below injury No. 20.

Punctured wound in area of 7 cm. x 10 cm. x 3 No. over Lt. knee joint layout 1/4 cm. x 1/4 cm. muscle deep smallest 1/10 cm. x 1/10 cm. x muscle deep.

Punctured wound in area of 15 cm. x 7 cm. 4 No/over Rt. side back 14 cm below lower angle of Rt. scapula maximum size 1/2 cm. x 1/2 cm. muscle deep smallest 1/4 cm. x 1/4 cm. x muscle deep.

Punctured wound 1 cm. x 1 cm. muscle deep 10 cm. above hip bone over vertebrae.

Punctured wound 10 cm. x 1 cm. muscle deep 3 cm. away from injury No. 24 Lt. side back.

P.W.6 is Constable Vashist Prasad Upadhya, who was posted as Head Moharrir, P.S. Kotwali (Dehat) on 31.8.1977. He proved the G.D. entries written and signed by Head Constable D.N. Tiwari. This witness further deposed that S.H.O. Sri R.N. Mishra (now dead) and S.I. Prasad Ram (an absconder) were also posted with him and he was acquainted with their handwritings and signatures. He had accompanied them to the place of occurrence. Since the. Investigating Officer Sri Mishra had pain in his right hand, he got the site plan prepared through Prasad Ram and signed the same in his presence. Thus, he has proved the site plan on record. He further proved the inquest report and necessary papers connected with postmortem.

The statements of the accused persons were recorded under section 313 Cr.P.C. They pleaded not guilty and claimed to be tried. They stated that they have been falsely implicated in this case due to prolong litigation on civil as well as on criminal side between the parties and in support thereof they filed as many as sixteen papers in their defence.

On appraisal of evidence on record, the Trial Court came to the conclusion that the prosecution succeeded in proving the guilt of the accused persons beyond reasonable doubt and consequently convicted and sentenced them as aforesaid.

Feeling aggrieved by the order of conviction and sentence, the instant appeal has been preferred on the grounds that the finding recorded by the Trial Court is against the facts and law and is based on surmises and conjectures and is bad in law.

We have heard the learned Counsel for the appellants and the learned A.G.A. and perused the entire record carefully.

On reappraisal of evidence on record, we find that the factum of occurrence is not disputed, rather it is well established from the overwhelming documentary oral and medical evidence on record.

We have given our anxious thoughts to the facts of the case and also considered the statements of the witnesses, which are as under.

P.W.I Kaushal Kumari is the wife of the deceased, who was sitting besides him at the time of occurrence. She had deposed that the accusedpersons on 31.7.1977 at about 11.00 a.m. entered her house, dragged her away and started assaulting the deceased with countrymade pistol, gun, bhala and kattas. She tried to intervene, but she was dragged away by the accused persons with the result her bangles were broken. On the alarm being raised, Naraian, younger brother of the deceased, Nanku, Gopal, Shyam Pandey, Satya Dev and others reached the spot, then the accused persons fled away. Leaving the dead body of her husband in the supervision of her devar, motherinlaw and sisterinlaw went to the police station alongwith Gopal and lodged, the F.I.R. Ext.Ka1 on the same day at 2.15 p.m. The distance of the police station is about 8 miles from the place of occurrence. She also admitted longstanding enmity with the accusedpersons on account of civil as well as criminal litigation between the parties.

P.W.2 Satya Dev is another eyewitness of the incident. He stated that he was going to purchase sweatmeat and saw the incident. He has fully supported the prosecution version and corroborated the testimony of P.W.I on all material points by narrating the incident that he saw the accused persons beating the deceased mercilessly and firing at him, resulting in his instantaneous death. The witnesses Gopal, Nanku, Shyam Pandey and wife of the deceased were also present there, who tried to intervene.

P.W.3 Gopal is the next eyewitness of the incident, who narrated the entire incident and supported the prosecution version in toto. He deposed that accused Jag Prasad was armed with farsa. Ram Chandra and Gulab with bhala, Raj Dut with gun, Raj Kumar, Raj Prasad and Ram Abhilakh with kattas. They attacked the deceased with their respective weapons, resulting in his death. He along with the informant went to the police station to lodge the report. He also admitted long drawn enmity between the parties. He has also fully corroborated the testimony of PW1.

All these witnesses have been crossexamined at length, but they could not be shaken, rather they are unanimous on all material points and nothing could be elicited from their crossexamination so as to make their testimony untrustworthy, incredible and unreliable or to create any doubt in the prosecution version.

The F.I.R." has been lodged promptly by the wife of the deceased on the same day at 2.15 p.m. after covering a distance of about 8 miles. There was no occasion for any consultation, deliberation or embellishment. Genuineness of entries of General Diary and of check report has to be presumed unless rebutted otherwise. There was opportunity to the appellants to discredit the testimony of the Investigating Officer, doctor and others that they were hand in glove to falsely implicate the appellants. No such effort was made to this effect, with the result, with no stretch of imagination, it can be believed that the Investigating Officer cooked up the matter to falsely implicate the appellants. On the contrary, without any substance such a cock and bull story was rightly rejected by the Trial Court as no such plea was either taken during the trial or in the statement recorded under section 313 Cr.P.C. Thus, on surmises and conjectures without any evidence the appellants'' version is unbelievable and it can not impeach the credibility of the witnesses nor on its basis the Overwhelming evidence corroborated by the documents, which are genuine in nature, could be disbelieved by the Trial Court and even on reappraisal of evidence, there is nothing black in the bottom to cast any aspersion on anybody, nor there was any grudge to anybody to implicate the appellants falsely in this case. On the contrary, the eyeaccount appears to be truthful.

All the witnesses of fact have supported the prosecution version. The informant being the wife of the deceased is a very natural witness of the occurrence. Since the incident took place inside the house, her presence cannot be doubted. Her statement finds full corroboration from the statements of other prosecution witnesses. No enmity has been shown by the appellants to the extent that instead of real culprits, innocent persons would have been implicated. Presence of Smt. Kaushal Kumari is established for two reasons, firstly she is the complainant and wife being natural witness residing inside the house. Nothing adverse has come in her crossexamination to discard her testimony.

Learned Counsel for the appellants has urged that the statement of PW1 Smt. Kaushal Kumari @ Kaushalya Devi being wife of the deceased should not have been believed.

In this context, Hon''ble Apex Court in the case of Abdul Rashid Abdul Rahinian Patel v. State of Maharashtra((2007) 3 SCC (Cri) 323), I has observed as under:

"As mentioned above the High Court has declined to rely on the evidence of PW1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased" and (2) there were discrepancies in her evidence. With respect, in our opinion, both the grounds are invalid. For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence and the only person who saw the occurrence. True, it is, she is the wife of the deceased; but she cannot be called an ''interested'' witness. She is related to the deceased. ''Related'' is not equivalent to ''interested''. A witness may be called ''interested'' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be ''interested''. In the instant case PW1 had no interest in protecting the real culprit and falsely implicating the respondents."

"The learned Counsel for the appellants submitted that no reliance should be placed upon the evidence of PWs 7, 8, 11, 12 and 19 as all of them are related to members of the prosecution party. It is well settled that in a criminal trial merely because a witness is interested his evidence cannot be discarded if the same is otherwise found to be credible. In the present case, as we have come to the conclusion that the evidence of these witnesses is consistent and corroborated by medical evidence it is not possible to discard the same on the ground that they were interested persons."

Hon''ble Apex Court has further observed in the case of State of Andhra Pradesh v. S. Rayappa and others(2006 (54) ACC 828 (SC) = 2006 (39) AIC 121) as under:

"The other reason assigned by the High Court in recording acquittal of the accused is that PW 1 and PW 2 were interested witnesses being relations of deceased and no independent witness was examined by the prosecution. By now it is a wellestablished principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons.

On the contrary it has now almost become a fashion that the public is reluctant to appear and depose before the Court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are harassed a lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy crossexamination. In such a situation, the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously. The High Court has brushed aside the testimony of PW 1 and PW 2 on the sole ground that they are interested witnesses being relatives of the deceased. "

Thus, the statement of PW1 was rightly believed.

As regards the veracity of the statement of PW 2 Satya Dev, it has been urged on behalf of the appellants that he has stated that he was going to purchase sweetmeat, hence he was a chance witness. It is not a matter of dispute that he has given cogent evidence and the Trial Court has rightly branded him as a reliable witness. The statement of P.W.2, who was thoroughly crossexamined on behalf of the appellants, leaves no room for doubt on the conclusion drawn by the Trial Court, which had occasion to see the demeanor of the witnesses and peep into the matter well that P.W.2 was present at the scene of occurrence and was not a chance witness.

Thus, on reappraisal of evidence when two possible views could be taken then this Court cannot take the view of the Trial Court as erroneous. In this context Hon''ble Supreme Court in the case of State of U.P. v. Farid Khan and others(2004 (50) ACC 787 (SC)) has observed as under:

"Of course, the evidence of a witness, who has got a criminal background, is to be viewed with caution. But if such an evidence gets sufficient corroboration from the evidence of other witnesses, there is nothing wrong in accepting such evidence. Whether this witness was really an eyewitness or not is the crucial question. If his presence could not be doubted and if he deposed that he had seen the incident, the Court shall not feel shy of accepting his evidence. The High Court must have kept in mind that the Sessions Court, which had the opportunity to see the witness, relied on the evidence of such a witness and such an evidence should not have been lightly discarded these grounds."

........... "The reasons given by the High Court are not tenable and cannot be accepted. In order to earn their livelihood, people go to different places depending upon their choices and preferences. On the sole ground that the witness in question belonged to a different area and has no business to be near the place of occurrence, his evidence should not have been disbelieved."

Thus, the conclusion drawn by the Trial Court that P.W.2 was not a chance witness, appears to be in accordance with cordinal principles of law and based on appreciation of evidence. We affirm the view taken by the Trial Court that he was present at the time of occurrence.

It is further urged that PW3 Gopal was involved in the murder case of accused Raj Dutt''s brother, hence he was a partisan and interested witness and having criminal antecedents should have been discarded. The suggestion so given by the appellants during the trial that P.W.3 Was highly interested witness who remained hand in glove with the deceased and in view of criminal antecedents his statement has to be discarded, is unfounded. The Trial Court rejected this plea. The same point has again been pressed before us. In this context, we would like to refer the views taken by the Hon''ble Apex Court as well as of a Division Bench of this Court.

Hon''ble Apex Court in the case of State of Punjab v. Wassan Singh and others(AIR 1981 SC 697) observed in para 27 as under

"27. It is true that both these witnesses are related to the deceased and, as such, are interested witnesses. Their antecedents, also, are of a questionable nature. But their antecedents or mere interestedness was not a valid ground to reject their evidence. Persons with such antecedents are not necessarily untruthful witness. Nor mere relationship with the deceased was a good ground for discarding their testimony, when, as we have already held, their presence at the scene of occurrence was probable. All that was necessary was to scrutinise their evidence with more than ordinary care and circumspection with reference to the part or role assigned to each of the accused. An effort should have been made to sift the grain from the chaff; to accept what appeared to be true and to reject the rest. The High Court did not adopt this methodology in appreciating their evidence. Instead, it took a shortcut to disposal and rejected their evidence wholesale against all the accused, for reasons which as already discussed, are manifestly untenable."

In this context the view of the Divisiort Bench of this Court in the case of State of U.P. v. Kalyan Singh and other(1984 (21) ACC 43 (Sum.) = 1984 Cri. LJ NOC), is also as under:

"The rule of prudence is that the testimony of such witnesses should be scrutinized with a little care and once that approach is made and the Court is satisfied that the evidence, of such witnesses has a ring of truth, such evidence can be relied upon even without corroboration."

Considering the entirety of the matter, it transpires that P.W.3 who was closely associated with the deceased must have been present at the scene of occurrence because it is a matter of common experience that the close associates are the natural witnesses and so is the case with P.W.3. His presence was not rightly doubted by the Trial Court. We are unable to accept the contention that he had any axe to grind in the matter or was in any way interested to falsely implicate the appellant and leave the real assailants. No enmity has been shown to P.W.3 with the appellants, consequently, he had no opportunity to cook up a case against the appellants.

Thus, criminal antecedents cannot discard the overwhelming evidence of the prosecution witnesses. We find the statements of PW2 and PW3 corroborative to the statement of PW1.

Learned Counsel for the appellants has also pointed out certain discrepancies in the statement of prosecution witnesses and contented that their evidence should not have been believed.

In this regard Hon''ble Apex Court has recently observed in Abdul Rashid''s case (supra) as under:

"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 PW1."

On the surrounding circumstances, minor contradictions cannot discard his presence or impeach his credibility. Minor contradictions are always possible, if the witness is natural and not tutored, otherwise peacock version can only be repeated by the tutored witness with no infirmity. Thus, minor contradictions do not create any suspicion to the effect that the witness is unreliable.

In view of the above discussions, the statements of all the three prosecution witnesses can be relied upon and have rightly been believed by the Trial Court.

In this case we find that F.I.R. is prompt one. Place of occurrence is also well established from the recovery of blood stained earth, blood stained wads and broken bangles etc. of which recovery memos are on the record. Siteplan has been proved by producing secondary evidence of PW6 Constable Vashist Prasad Upadhyay. who had accompanied the Investigating Officer Shri R.N. Mishra (since deceased) and S.I., Prasad Ram (untraceable) to the place of occurrence. He has stated that since Shri Mishra had pain in his right hand, he got the siteplan prepared through S.I., Prasad Ram and appended his "signature thereon. He has also deposed that he is fully acquainted with the handwriting and signatures of the above two officers. Thus it is wrong to say that no siteplan was prepared in this case.

Learned Counsel for the appellants has suggested that it was a night occurrence and no one could see the occurrence and the appellants have falsely been implicated in this case due to enmity. But it remained merely a suggestion, which could not take place of proof and no crossexamination was made on this point. On the contrary, F.I.R., check report and inquest report, prepared on the same day are on the record, which go to establish that the occurrence took place at 11.00 a.m. on 31.7.1977 itself. In view of reflection of evidence available on record, one can conceive that the incident took place in day time and not in night as suggested by the appellants. The suggestions so given about the time of occurrence by the appellants during the trial was not approved by the Trial Court on the strength of the statement of the doctor, who positively opined that the time of death as referred in the F.I.R., appears to be inconformity with the condition of the cadaver of the deceased on which postmortem was conducted. There was nothing on record to establish the contention of the appellants that really the incident took place at any time in the night. On the contrary, neither venue of occurrence was challenged nor the time was probably challenged. Consequently the Trial Court rightly came to the conclusion that the place and time of occurrence as referred in the F.I.R. was proved beyond doubt.

In this case we find that virtually there is no inconsistency between the medical report and the ocular evidence on the point of injuries caused by Ballam. In this case the autopsy was conducted by the Dr. H.C. Srivastava, PW5. He was thoroughly crossexamined. It does not transpire from his statement that the prosecution version is unbelievable or should be discarded. No circumstance has been pointed out to belie the prosecution version. The appellants had an opportunity to crossexamine the doctor. There is nothing on record to establish that ocular evidence is not cogent and credible and against the medical evidence. Even if for argument''s sake it is presumed that medical report is not consistent with the ocular evidence, even then it cannot corrode the evidentiary value of the ocular evidence. In this context the HonTjle Apex Court in the case of Madan Copal Kakkad v. Naval Dubey( 1992 (Suppl.) ACC 167 (SC)) has held as under:''

"A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the date which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court, although not an expert may form its own judgment on those materials after giving due regard to the expert''s opinion because once the expert''s opinion is accepted, it is not the opinion of the medical officer but of the Court.

Thus, we are of the opinion that the contention of the learned Counsel for the appellants will be of no assistance in face of ocular evidence that there was no Ballam injury and it was inflicted by some other weapon. The doctor was crossexamined but nothing material could come out to justify the version of the appellants. On this point also we are unable to agree with the contention of the learned Counsel for the appellants. Thus we are unable to find any compelling circumstance to discard the view taken by the learned Trial Court.

Thus, the decision arrived at by the Trial Court appears to be consistent with the prosecution version. The learned Trial Court has well discussed the evidence on record on all material points raised by the learned Counsel for the defence. We find no infirmity in the conclusion of the Trial Court and it does not warrant any interference of this Court.

In the result, the appeal being devoid of merit is hereby dismissed. The order of conviction and sentence recorded by the Trial Court are maintained. The appellants are on bail. They shall be taken into custody to serve out their sentences awarded by the Trial Court. Their bail bonds are cancelled and sureties discharged.

Let a copy of this order along with lower Court record be sent to the Trial Court for compliance. The CJM concerned shall submit compliance report within six weeks from today.