Rajesh (In Jail) vs State of U.P.

Imtiyaz Murtaza, J.—These appeals are directed against the judgment and order dated 6.8.2005 passed by the Additional Sessions Judge, Court No. 10 Ghaziabad in S.T. No. 348 of 1998 whereby all the appellants have been convicted under Sections 148, 302/149 I.P.C. and sentenced to R.I. for one year u/s 148 I.P.C. and sentenced to life imprisonment u/s 302/149 I.P.C. and fine of Rs. 10,000/- each and in default of payment of fine further imprisonment for six months. All the sentences were directed to run concurrently.

The brief facts of the case mentioned in the first information report lodged by Om Prakash at police station Vijay Nagar, Ghaziabad are that Indrajeet, Amar Singh, Sighraj Singh, Omi and his; brother Veer Singh were working in Rathi Sariya Mill. He had come to meet his brother Veer singh in connection with an important work. After the duty was over they were coming to catch a Train at the Railway Station but they failed to board the Train and they had taken their meal in a Hotel. They were coming towards By-pass to catch a Truck. At about 10:30 p.m. when they reached in front of Bhoot Bharat Nagar Railway Club one person collided with Veer Singh and Veer Singh had told him to be careful on road. That person started Marpeet and his brother and Indrajeet had also quarreled with him. He raised an alarm and called Jony, Ranjan, Sonu, Rajesh, Raju and Boby and said whether they will get him killed. One of them said what is the matter Dharampal, we are coming, these persons came carrying knife and Gupti and started assaulting. His brother fell and died and Indrajeet was lying in an injured condition. He ran away to save his life and reached at the police station. The report was registered at 11.25 p. m. on 29.9.1998, the distance of the police station was one and a half km. After the registration of the case S.I. C.G. Goswami commenced investigation. On 30.9.1997 he reached at the place of occurrence and recorded the statement of the informant and also prepared a site plan, which is Ext. Ka-6. He also recorded the statement of Ganga Ram and Om Prakash. He instructed S.I. M.M. Chaturvedi to prepare the inquest memo. He had arrested Raju Valmiki, Sonu Valmiki, Rajesh Jatav and Boby. On the pointing out of Sonu a knife was recovered. On 1.10.1997 he had arrested Dharam Pal. On 4.10.1997 he recorded the statement of Amar Singh, Omi and Ganga Ram. On 5.10.1997 he had recorded the statement of Om Prakash, Bhanwar Singh, Fateh Singh, Siya ram, Veer Singh and Narendra. On 6.10.1997 he had arrested Rajjan. Indrajeet was declared brought dead in the Hospital. After the investigation he submitted charge sheet which is Ex. K.a-7.

The autopsies on the dead bodies of the deceased were conducted by Dr. Ajay Agarwal. He noted following ante mortem injuries on the dead body of Veer Singh:

I.W. 3 cm. x .5 cm., 8 cm. from right nipple

I.W. 3 cm. x 1 cm., 1 cm. from injury No. 1

I.W. 1 cm. x 1 cm., on right iliac back

I.W. 2 cm. x .5 cm., 11 cm. from left nipple

Swelling 8 cm. x 5 cm. on left occipital region

In the internal examination he found Haematoma in the membrance, V, VIth rib fractured, Pleura full of blood, right lung lacerated, blood was present in peritoneum. 150 gm. flued was found in the stomach and in his opinion cause of death was due to shock.

On 30.9.1997 at 3 p.m. he conducted post mortem examination on the dead body of Indraject and noted following ante mortem injuries:

I.W. 3 cm. x 1 cm. on right chest, 9 cm. from right nipple

I.W. 3 cm. x 1 cm. on right chest, 13 cm. from right nipple

I.W. 4 cm. x 1 cm., 16 cm. below left nipple

I.W. 3 cm. x 1 cm. on left iliac back, intestines coming out

In the internal examination he found fracture of VIth right rib, Pluera full of blood, right lung lacerated. Peritonium was full of blood. Liver lacerated. In the stomach he found 100 gm. food. In his opinion cause of death of the deceased was shock.

After the submission of the chargesheet the case was committed to the court of Session in usual manner. The Sessions Judge had framed charges under Sections 147, 148, 307/149, and 302/149 I.P.C. The Sessions Judge also framed charge u/s 25/4 Arms Act against Sonu. In order to prove its case, the prosecution had examined P.W. 1 Om Prakash, P.W. 2 Amar Singh, P.W. 3 Veer Singh, P.W. 4 S.I. C.G. Goswami, P.W. 5 Dr. Ajay Agarwal, P.W. 6 M.N. Chaturvedi P.W. 7 Hakim Singh, P.W. 8 Bharat Veer. The case of the defence was of denial and they did not examine any witness in their defence.

The Sessions Judge after considering the evidence on record convicted the appellants, as aforesaid, and the case of Sonu was separated because he was declared juvenile. Hence these appeals.

We have heard Shri Sanjay Kumar Srivastava and Shri P.C. Srivastava, learned Counsel for all the appellants and Shri A.K. Dwivedi, learned A.G.A.

The counsel for the appellants has challenged the findings of the trial court on the ground that the first information report is ante timed only interested and chance witnesses were examined and no independent witness is produced to corroborate the testimonies of interested witnesses, the investigation is tainted and there is conflict in medical and direct evidence.

In order to appreciate the submissions of learned Counsel we have to examine the testimonies of the witnesses.

P.W. 1 Om Prakash deposed that on 29.9.1997 he had come to Rathi Sariya Mill to meet his brother who was working in Rathi Steel. Indrajeet, Amar Singh and Omi also used to go alongwith him. They could not board the Train and thereafter they had taken food in a Hotel and thereafter proceeding towards Vijay Nagar Bypass for catching the Truck. When they reached near the Railway Club one person collided with his brother Veer Singh. The person who had collided with Veer Singh started Marpeet. He also participated in the Marpeet alongwith Indrajeet Singh. That man raised alarm and called Jony, Rajjan, Sonu, Rajesh, Boby and Raju. He asked them whether they will get him killed. Those people reached there and said that Dharampal we are coming. He came to know about their names at that time but he knew them before because he used to pass through that road. These people had knife and Gupti in their hands and they started assaulting Veer Singh and Indrajeet with their weapons. Both had sustained injuries Veer Singh fell on the ground and died. Indrajeet was seriously injured. He witnessed the occurrence in the mercury light. After the occurrence all the accused persons ran away carrying their weapons. He also identified the accused in court. Indrajeet had later on died in the Hospital. The investigating officer had collected blood smeared and plain earth from the place of occurrence and prepared its recovery memo, which is Ext. Ka-2.

P.W. 2 Amar singh corroborated the testimony of P.W. 1 Om Prakash. He deposed that on 29.9.1997 Om Prakash had come to Rathi Sariya Mill. After the duty he alongwith Om Prakash, Veer Singh, Indrajeet and Omi were coming to Railway Station but the Train had already left and they took their meal at the Railway Station. After meal they were proceeding towards Vijay Nagar Bypass for catching a Truck. When they reached near Railway Club Dharampal collided with Veer Singh and some altercation had started. Dharampal called Sonu, Rajesh, Raju, and Boby and Ranjan and said whether they will get him killed. They reached there carrying knife and Gupti and started assaulting Indrajeet and Veer Singh. The time of the occurrence was 10.30 p.m. They had seen the occurrence in the electric light. He had identified the accused in court. Veer Singh died on the spot and Indrajeet was injured and while taking to MMG Hospital he succumbed to his injuries and he was declared brought dead in the hospital. He further stated that he knew Dharampal from before.

P.W. 3 is Veer Singh son of Ram singh deposed that Investigating Officer had prepared the inquest of the dead body of Veer Singh and he was a witness of inquest The inquest memo is Ext. Ka-3. P.W. 4 S.I. C.G. Goswami is the investigating officer of the case.

P.W. 5 Dr. Ajay Agarwal had conducted the post mortem examinations.

P.W. 6 S.I. Mahesh Nath Chaturvedi prepared the inquest memo of the dead body of Veer Singh, which is Ex. Ka-3. and he had also prepared the relevant papers for the post mortem examination, which are Ext. Ka-10 to Ka-15. He had also prepared the inquest on the dead body of Indrajeet which is Ext. Ka-16 and the relevant papers for the post mortem examination are Ext Ka-17 to 21. On 30.9.1997 he prepared the recovery memo of blood smeared and plain earth which is Ext. Ka-2. He also recovered blood stained knife on the pointing out of accused Sonu and prepared its recover memo, which is Ext. Ka-22.

P.W. 7 is constable Hakim Singh. He deposed that on 29.9.21997 he prepared the chik F.I.R. No. 355 of 1997 on the basis of F.I.R. Ext. Ka-1, which is Ext. Ka-4 and its G.D. entry is Ext. Ka-5.

P.W. 8 S.I. Bharat Veer had prepared the site plan of the place of recovery of knife on the pointing out of Sonu.

The counsel for the appellants has challenged the presence of the witnesses and submitted that P.W. 1 Om Prakash is a chance witness and he is son of the deceased Veer Singh and P.W. 2 Amar Singh is nephew of deceased Indrajeet and both are interested witnesses. It is further submitted that other independent witnesses who were alleged to be present at the time of occurrence were not examined. The counsel for the appellants further submitted that the conduct of the witnesses clearly indicates that they were not present at the time of occurrence because deceased were close relative but they did not try to save them. Neither they sustained any injury nor any blood was found on their clothes to show that they were present at the time of occurrence. We have considered these submissions and in our opinion there is no substance. P.W. 2 Amar Singh was working alongwith the deceased in Rathi Sariya Mill and they were returning after completing their duty. He further explained that they had gone to Railway Station to board the Train for their village but by the time they reached the Station the Train had already left. They had taken their meal in a Hotel and were going to catch a Truck near a Bypass. It is not disputed that the deceased was working alongwith P.W. 2 Amar Singh in Rathi Sariya Mill and he had no other occasion to be present at the time of occurrence. Similarly P.W. 1 Om Prakash had also stated that he had come to meet his brother Veer Singh and all were returning together. The presence of these witnesses cannot be doubted because their testimony find corroboration from the post mortem report. The ante mortem injuries are possible by the weapons which they have assigned to the accused. The time of occurrence also finds corroboration from the medical evidence. The counsel for the appellants contended that it was consistent case of the prosecution that the deceased and the witnesses had taken their meal in a Hotel near Railway Station but in the post mortem examination of Veer Singh only 150 gm. fluid was found in the stomach. We do not find any inconsistency in the statements of the witnesses and post mortem examination report because no question was asked about the nature of food which was taken by the deceased. The post mortem examination report of Indrajeet shows presence of 100 gms. food, therefore, there is no inconsistency in the eye witness version about taking of meal by the deceased and the post mortem examination report.

There is no proposition of law that the testimony of related and interested witnesses cannot be accepted and the testimonies of P.W. 1 Om Prakash and P.W. 2 Amar Singh cannot be rejected on this ground. In such a case, it is paramount duty of the court to be more careful in the matter of scrutiny of the evidence of interested witnesses. The counsel for the appellants has also challenged the presence of the witnesses on the ground that the witnesses did nothing to save the deceased and their clothes were also not smeared with blood. We do not find any substance in this submission because the assailants in this case were in large number and were heavily armed and the witnesses were totally unarmed and in such a situation it was absurd to expect any intervention and if they were to do so it would have led to some more causality. The behaviour of the witnesses varies from person to person. Different persons behave and react differently in different situation. Every person who witnesses a serious crime reacts in his own way. Some arc stunt, become speechless and stand rooted to the spot. Some become hysterical and start wailing some start shouting for help. Others run away to keep themselves so far away from the spot as possible yet others rush to the rescue of the victim, even going to the extent of counter attacking the assailant. Each one reacts in his special way even in similar circumstances. The Apex Court in the case of State of Uttar Pradesh Vs. Devendra Singh, had observed that "to discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way". So far as the submission of the counsel for the appellants for non examination of other witnesses who have seen the occurrence is concerned the Apex Court in the case of Seeman @ Veeranam Vs. State, by Inspector of Police, has held that " the non production of one independent witness who has been named in the F.I.R. 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 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 statements. The reality cannot be ignored that many eye-witnesses shy away from giving evidence for obvious reasons.

The counsel for the appellants further submitted that the first information report is ante timed. It was pointed out that the dead body of Veer Singh was lying on the spot for several hours and inquest was prepared at 12 o''clock The prosecution failed to prove the time of dispatch of the F.I.R. to the higher authorities. It was also submitted that if really the incident was reported at the time as alleged by the prosecution then surely inquest proceeding should have been done in the early morning, if not during the night and this was a serious infirmity and demolishes the very substratum of the prosecution based on the F.I.R. which is a concocted document. We do not find any substance in this submission because the inquest proceeding on the dead body of Indrajeet had started at 7 a.m on 30. 9. 98. In the inquest report case crime number and sections in which report was registered are mentioned. It is also important to mention that the dead body was handed over to the constable for the post mortem examination along with inquest report and the first information report was one of the enclosures sent along with inquest report. The delay in the inquest proceeding on the dead body of Veer Singh is also explainable. After the registration of the report investing officer had reached at the place of occurrence and found Indrajeet in injured condition and he sent him to the hospital where he was declared dead. The investigating officer had deputed S.I. Mahesh Nath Chaturvedi for the preparation of inquest. He had started inquest proceedings on the dead body of Indrajeet at 7 am and concluded the same at 10.30 a.m. Thereafter inquest on the dead body of Veer Singh was done. In view of the matter there is no such delay to cast any doubt whatsoever about time of lodging of the first information report.

The next submission of the learned Counsel for the appellants is that the provisions of 157 of the Code of Criminal Procedure were also not complied with. P.W. 7 constable Hakim Singh admitted that time and date of dispatch of report to higher authorities is not mentioned in the chik. It is true that Section 157 of the Code of Criminal Procedure makes it obligatory on the officer in charge of the police station to send a report of the information received to a Magistrate forthwith, but that does not mean and imply to denounce and discard an otherwise positive and trustworthy evidence on record. Technicality ought not to out way the course of justice, if the court is otherwise convinced and has come to a conclusion as regard the truthfulness of the prosecution case, mere delay which can otherwise ascribe to be reasonable would not by itself demolish the prosecution case. The Apex Court in the case of Rabindra Mahto and Ors. v. State of Jharkhand 2006 3 SCC 592 has held that "there cannot be any manner of doubt that Section 157 of Code of Criminal Procedure requires sending of an F.I.R. to the Magistrate forthwith which reaches promptly and without undue delay. The reason is obvious to avoid any possibility of improvement in the prosecution story and also to enable the Magistrate to have a watch on the progress of the investigation. At the same time, this lacuna on the part of the prosecution would not be the sole basis for throwing out the entire prosecution case being fabricated if the prosecution had produced the reliable evidence to prove the guilt of the accused persons. The provisions of Section 157 Cr.P.C. are for the purpose of having a fair trial without there being any chance of fabrication or introduction of the fact at subsequent stage of investigation. The cases cited by the learned Counsel for the appellants do not lay down any law that simply because there is a delay in lodging the F.I.R. or sending it to the Magistrate forthwith, the entire case of the prosecution has to be discarded. The decision rendered by this Court and relied upon by the learned Counsel for the appellant would only show that this will be a material circumstance which will be taken into consideration while appreciating the evidence on record."

Another submission of the counsel for the appellants is that the trial court should not have relied upon the testimony of the P.VV.2 Amar Singh because his statement u/s 161 Cr. P.C. was recorded on 4.10. 1997. If he was really an eye witness his statement should have been recorded immediately. We do not find any substance in this submission because the name of P.W. 2 was mentioned as a witness in the F.I.R. If the statement of an eye is not recorded by the investigating officer it could be due to fault of the investigating officer and eye witness account cannot be disbelieved. No explanation was asked from the investigating officer for not recording the statement u/s 161 Cr. P. C. of P.W. 2 Amar Nath before 4.10.1997.

The Apex Court in the case of Banti @ Guddu Vs. State of Madhya Pradesh, has held that "It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness, the prosecution version becomes suspicious. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion".

In this case no adverse inference can be drawn for delayed recording of the statement u/s 161 Cr.P.C. of P.W. 2 Amar Singh unless opportunity to explain is given to the investigating officer. In the absence of any explanation no adverse inference can be drawn and his evidence cannot be suspected.

In this case the identity of the accused was also challenged. The informant came to know about the names only at the time of occurrence and the accused were also not put up for identification. There is no substance in this submission also because the informant came to know about the names of the accused persons at the time of occurrence. It is also very important to note that the investigating officer arrested accused next day and all the accused are resident of the place of occurrence. There is no suggestion to the witnesses that their names were introduced on account of some enmity or due to suggestion of any other person. The only conclusion is that the informant had mentioned because they had called their names and the statement of the witnesses is truthful. The counsel for the appellants submitted that the appellant should have been put for identification. In our opinion in the facts and circumstances of the case it was not necessary because the informant stated that he had seen the accused earlier while passing through the road and P.W.2 mentioned that he knew accused Dharampal from before. It is also important to mention that the witnesses had identified the accused in court. Mere failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The apex Court in the case of Simon and Others Vs. State of Karnataka, has held that " the purpose of prior test identification is to test and strengthen the trustworthiness of the evidence. Courts generally look for the corroboration of the sole witness in court so as to fix the identity of the accused who are strangers to them in the form of earlier identification proceeding. This rule of prudence however, is subject to exception, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration".

We do not find any force in the submission of the counsel for the appellant that there was no light at the time of occurrence only because the witnesses did not disclose the source of light in the F.I.R. or in the statements of witnesses. The place of occurrence is within the city limits and there were residential houses and a railway club. The witnesses were also not suggested that there was darkness at the place of occurrence. On the contrary suggestion was made that some preparation of Ramlila was going on near the place of occurrence and they had scuffled with the persons who were present there. It is also to be noted that considering the manner of occurrence the witnesses must have come very close with the assailants and some time have been taken place in the occurrence and they had ample opportunity to recognise them.

We have carefully examined the testimonies of both the eye witnesses and in our opinion their testimonies inspire confidence. Both the witnesses have supported the prosecution case in all material particulars and their evidence is consistent inter-se as well as the prosecution case disclosed in the F.I.R. and by the witnesses in their statements before the police. The Sessions Judge had rightly relied upon their testimonies and recorded the findings of conviction. The F.I.R. is also lodged within an hour of occurrence, which mentions the name of the accused and manner of assault. The prompt lodging of the report eliminates the chances of embellishment. The witnesses had no reason to falsely implicate the appellants. The witnesses had also identified the accused in court. The eyewitness account finds corroboration from the medical examination report.

The prosecution has proved its case beyond reasonable doubt and the Sessions Judge has rightly recorded the findings of conviction of the appellants and we also concur with the same.

For the reasons stated above, the above appeals are decided as under:

Crl. Appeal No. 4295 of 2005 (Rajesh v. State) is dismissed. The conviction and sentence awarded by the trial court to the appellant Rajesh is affirmed. He is in jail. He shall be kept there to serve out the sentence awarded by the trial court and affirmed by us.

Crl. Appeal No. 3701 of 2005 (Dharam Pal and Jony v. State) is dismissed. The conviction and sentence of the appellants Dharam Pal and Jony is affirmed. They are in jail. They shall be kept there to serve out the sentence awarded by the trial court and affirmed by us.

Crl. Appeal No. 3813 of 2005 (Rajan alias Ranjan and Raju v. State) is dismissed. The conviction and sentences awarded by the trial court to the appellants Rajan alias Ranjan and Raju is affirmed. They are in jail. They shall be kept there to serve out the sentence awarded by the trial court and affirmed by us.

Crl. Appeal No. 3502 of 2005 (Boby alias Raj Kumar v. State) is dismissed. The conviction and sentence awarded by the trial court to the appellant Boby alis Raj Kumar is affirmed. He is in jail. He shall be kept there to serve out the sentence awarded by the trial court and affirmed by us.

Office is directed to communicate this order to the court concerned within two weeks for compliance.