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Uttarakhand High Court · body

2006 DIGILAW 575 (UTT)

Ram Naresh v. State of U. P.

2006-10-11

J.C.S.RAWAT

body2006
Judgment 1. This Criminal Appeal has been directed against the judgment and order dated 11-10-1990 passed by Shri Allah Raham, the then III Addl Sessions Judge, Nainital in S.T. No. 180 of 1990, State Vs. Ram Naresh convicting and sentencing the appellant u/s 302 LPC. to undergo life imprisonment. 2. The facts, in a nutshell, are that the complainant-Munna Brabe lodged an F.I.R. on 10/11-03-1990 at about 1:15 A.M. in the police station Bazpur, u/s 302 I.P.C. against the appellant Ram Naresh alleging therein that one Om Prakash had been living with him since his childhood and he had also worked in his fields. It was also mentioned in the F.LR. that he had been working with others on wages. On 10th March, 1990, Om Prakash went to the sugarcane field of Sardar Baldev Singh alongwith the accused Ram Naresh, mother of Ram Naresh and his sister on tractor trolley. When Om Prakash did not return home in the night, the complainant-Munna Brabe alongwith his son-Basil Brabe went in search of deceased-Om Prakash to the house of Sardar Baldev Singh. Sardar Baldev Singh told them that deceased/ Om Prakash and appellant/Ram Naresh alighted from the tractor in their colony. Thereafter, the complainant-Munna Brabe started towards the house of the accused / Ram Naresh and they heard the cry of a person from the field of Sardar Baldev Singh. Thereby, they saw that the accused / Ram Naresh had patal in his hand and he was assaulting the deceased Om Prakash. When the accused Ram Naresh saw the complainant-Munna Brabe and his son Wasil Brabe, he fled away from the spot. The complainant and his son went to the spot and found Om Prakash dead at the spot at about 11:00 / 11:30 A.M. (sic P.M.). Thereafter, complainant-lv1unna Brabe came to his house and he got F.I.R. scribed and lodged the same in the police station. The police reached at the spot in the night it self and the Investigating Officer started investigation and prepared site plan. He also apprehended the accused / appellant Ram Naresh. The appellant / Ram Naresh stated to the Investigating Officer that he could discover the 'patal' used in the murder of the deceased and the 'chadar' which he was wearing at the time of the incident from his residence. He also apprehended the accused / appellant Ram Naresh. The appellant / Ram Naresh stated to the Investigating Officer that he could discover the 'patal' used in the murder of the deceased and the 'chadar' which he was wearing at the time of the incident from his residence. On the said information, the Investigating Officer made the discovery of the 'patal' as well as of the 'chadar' on 11-03-1990. After completing the investigation, chargesheet was submitted before the court. 3. The accused/appellant was charged u/s 302 I.PC. The accused/appellant denied the charges and claimed trial. 4. The prosecution in support of its case examined Munna Brabe as P.W.1. He is the complainant of the case and he is also the eyewitness of the incident. Wasil Brave-P.W.2 is the son of P.W.1. Munna Brabe. He is also an eyewitness of the incident. The accused/ appellant had admitted the genuineness of the discovery memo of patal and chadar (Ext.Ka.2) discovered at the instance of the appellant, post mortem report (Ex.Ka.-5), Chick F.I.R. (Ex.Ka.-6), GD. (Ex.Ka.-7), site plan (Ex.Ka.-8 & 9) prepared at the spot by the Investigating Officer, inquest report (Ex.Ka.-10), naksha laas (Ex.ka.-11), police form No. 33 and 13 (Ex.Ka.12 and 13) by which the body was sent for post mortem and the chargesheet (Ex.Ka.14). 5. The accused/appellant was examined u/s 313 Cr.P.C. and he had pleaded not guilty of the offence. He had stated that he had been falsely implicated in this case. He further stated that he had been working with Munna Brabe-complainant. When the payment of his wages was not made, he did not go to the complainant's field and as such, he was annoyed with him and he had implicated him falsely in this case. The accused/appellant did not adduce any evidence in his defence. 6. The learned Sessions Judge on his appreciation of the evidence in the case held the accused/appellant guilty and convicted and sentenced him under section 302 I.P.C. as aforesaid. 7. We have heard Smt. Pushpa Joshi-learned counsel for the appellant, Sri Harish Pandey-learned A.G.A. and perused the record. 8. At the outset, it needs to be mentioned here that it is not disputed that the deceased-Om Prakash met a homicidal death on account of injuries sustained by him on the date of the occurrence. 7. We have heard Smt. Pushpa Joshi-learned counsel for the appellant, Sri Harish Pandey-learned A.G.A. and perused the record. 8. At the outset, it needs to be mentioned here that it is not disputed that the deceased-Om Prakash met a homicidal death on account of injuries sustained by him on the date of the occurrence. The genuineness of the post mortem report of the deceased was admitted by the learned counsel and the endorsement to this effect was also made on the post mortem report itself. In the opinion of the medical officer, the cause of death was shock and hemorrhage due to the anti mortem injuries. P.W.1-Munna Brabe and P.W.2-Wasil Brabe had categorically stated that they saw the accused on the spot. They have also stated that the appellant was assaulting the deceased with patal. The dead body was taken into possession by the Investigating Officer and the inquest report (Ex.Ka.-1 0) was prepared on 11-03-1990. The genuineness of inquest report of the deceased was admitted by the learned counsel for the defence and endorsement to this effect was also made on the said report. The witness of the inquest report has opined that the deceased died due to the injuries sustained by him. Thus it is amply proved that the deceased met a homicidal death on account of the injuries sustained by him on the date of occurrence. 9. Now, we have to consider whether the accused/appellant was responsible for the injuries sustained by the deceased / Om Prakash or not. The prosecution has produced the evidence of P.W.1-Munna Brabe and P.W.2-Wasil Brabe, the eyewitnesses of the incident. Both the witnesses had stated that the deceased went to work in the field of sugarcane of Sardar Baldev Singh. When he did not return in the night at about 10:00 p.m., they went to the house of Sardar Baldev Singh to find out the deceased / Om Prakash. When Sardar Baldev Singh told them that the deceased and the accused had alighted from the tractor trolley near their colony, the witnesses started to go to the house of accused / Ram Naresh to know whereabouts of the deceased. When Sardar Baldev Singh told them that the deceased and the accused had alighted from the tractor trolley near their colony, the witnesses started to go to the house of accused / Ram Naresh to know whereabouts of the deceased. When they were on the way to the house of accused / Ram Naresh, they heard the cry of the deceased and they focused the torch towards the place from where the cry was coming and they saw that the appellant / Ram Naresh had a patal in his hand and he was assaulting the deceased. When the appellant / Ram Naresh saw the witnesses PW.1 - Munna Brabe and PW.2 - Wasil Brabe, he fled away from the spot. These witnesses reached at the spot and found Om Prakash dead. 10. Learned counsel for the appellant contended that the prosecution had failed to prove the prosecution case. It was further contended that the witnesses had claimed in their evidence that they had seen and recognized the appellant in moonlight and also in the torch light. It was further contended that P.W.1-Munna Brabe had not written in the F.I.R. that he had witnessed the incident in the moonlight. Learned A.G.A. refuted the contention and contended that this fact is not of much consequence because it was not expected to mention the minor details in the F.I.R. that when the witnesses saw the incident the appellant was hitting the deceased by patal and thereafter they found the deceased dead at the spot. It is also in the evidence that the witnesses had torch in their hands and they have recognized the appellant in the torch light. The complainant had written in the F.I.R. that P.W.1-Munna Brabe and P.W.2-Wasil Brabe recognized the accused / appellant in the torch light. It is also pertinent to mention here that according to Pan chang it was a full moon night on the day of occurrence. It is not expected from the informant that he would indicate all the minor details in the F.I.R. The F.I.R. is not the encyclopedia of all the events. The F.I.R. should contain the broad feature of the incident. Thus non-mention of the moonlight in the F.IR. to recognize the appellant is of no consequence. It is not expected from the informant that he would indicate all the minor details in the F.I.R. The F.I.R. is not the encyclopedia of all the events. The F.I.R. should contain the broad feature of the incident. Thus non-mention of the moonlight in the F.IR. to recognize the appellant is of no consequence. So far as the contention of the insignificant light is concerned, we may indicate that in the open area of pathway adjoining to the field of the appellant, there was a cloudless night, there could be no difficulty in identifying the known person from the close distance. Apart this, it has to be kept in mind that there was no difficulty in identifying the assailant because of the existence of moonlight and torch light by which the identification was possible. According to Sri Venkateshwar Satabdhi Panchang written by Pandit Ish war Duff Sharma, it was Sukla Paksha and it was full moon night on the date of the occurrence. The witnesses were close to the appellant and as such, there was no difficulty for them to identify the appellant. It has been observed in Shiv Raj Bapuray Jadhav Vs. State of Karnataka 2003 SCC (Cri) p/372 : "The submission that the occurrence was two days prior to the new moon day and, therefore, the ocular witnesses could not have witnessed the occurrence as they claimed to have, does not appeal to us for the reason that not only, as noticed by the High Court, the parties are used to living in the midst of nature and accustomed to live without light, the parties could have been identified easily not only from the voices but from the fact they are known persons and close relatives and living in the neighbouring huts. " Thus, we do not find any substance in the argument advanced by the learned counsel for the appellant. 11. The learned counsel for the appellant further contended that the prosecution had not produced Sardar Baldev Singh who was the star witness of this incident. It was further contended that Sardar Baldev Singh could have stated that the deceased had worked with him. It was further contended that the prosecution had produced only interested witnesses who were associated with the deceased. It was further contended that Sardar Baldev Singh could have stated that the deceased had worked with him. It was further contended that the prosecution had produced only interested witnesses who were associated with the deceased. It was further pointed out that the deceased had been living with them since childhood, as such, they are chance and interested witnesses and their evidence cannot be relied upon. It is not always necessary to multiply the evidence of the incident and it has to be seen what is the quality of the witnesses. It is the quality of the witnesses and not the quantity which is required. It is the evidence available on record is otherwise satisfactory in nature and can be said to be trustworthy. The evidence of such, witnesses who had seen the occurrence cannot be thrown out on the ground that they are interested witnesses and the other witnesses had not been produced. The courts have only to be careful while examining the evidence of interested witnesses. If the witnesses are trustworthy this does not require that there should be a multiplicity of evidence. Baldev Singh was not the eyewitness of the incident. His non-examination did not effect the prosecution story. There is no rule of law and prudence which requires that evidence of the close relative or interested person must be discarded for the simple reason that they are related with each other or interested in the prosecution. P.W.1-Munna Brabe and P.W.2-Wasil Brabe must be interested to give their evidence so as to convict the appellant for his wrong doings and they would not like to adopt a course by which some innocent person would be convicted in place of the person really guilty of the murder of the deceased. It is also pertinent to mention here that such instances are common where a witness is not inclined to depose because of prevailing social structure, he wants to remain indifferent. The eye witnesses, P.W.1-Munna Brabe and P.W.2-Wasil Brabe were cross examined at length by the appellant but nothing could be elicited from their evidence. The prosecution evidence is consistent, cogent and credible. In these circumstances, it would not be just and proper to discard the evidence of P.W.1-Munna Brabe and P.W.2-Wasil Brabe only on the ground that they are interested witnesses. 12. The prosecution evidence is consistent, cogent and credible. In these circumstances, it would not be just and proper to discard the evidence of P.W.1-Munna Brabe and P.W.2-Wasil Brabe only on the ground that they are interested witnesses. 12. The learned counsel for the appellant has referred the variations in the statement of the prosecution witnesses with regard to the time of the incident. It was further pointed out that• PW.1-Munna Brabe had stated in his examination-in-chief that the incident took place at about 10:30 p.m., whereas the complainant-Munna Brabe P. W.1 had stated in his cross examination that he saw the incident at the place of the occurrence and the accused fled away from there and he came back to his home at about 10:00 p.m. It was further contended that there is variance of time of incident in between the F.IR and the evidence of the informant-Munna Brabe P.W.1. Learned A.G.A. refuted the contention. The discrepancies as pointed by the learned counsel for the appellant are not of much consequence which can be named as boulders of the prosecution. It is pertinent to mention here that the prosecution witnesses are rustic & illiterate villagers. They assess the time according to their own understanding and there is no evidence on record that they had any watch. It is also pertinent to mention here that the murder of their known took place in their presence. Naturally they would be under horror and tension. Under these circumstances, a normal person would be in such a situation which he never thought it. He would not be in a position to ascertain the exact time of the incident under such circumstances. Sometimes a witness may not stand the test of cross examination which may be sometimes, because he is a bucolic person and is not able to understand the question put to him by the skillful cross examiner and at times under the stress of cross examination, certain answers are snatched from him. When a rustic or illiterate villager (witness) faces an astute lawyer, there is bound to be imbalances and therefore, minor discrepancies have to be Ignored. Some discrepancies are found to be there in each and every case which should weigh with the court so long it does not materially affect the prosecution case. The courts have to remove chaff from the grains. Some discrepancies are found to be there in each and every case which should weigh with the court so long it does not materially affect the prosecution case. The courts have to remove chaff from the grains. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remain, the criminals are clothed with the protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, no to merely conclude and leave the case the moment suspicion are created. It is the onerous duty of the courts, within permissible limit to find out the truth. It is quite natural that the normal discrepancies in the testimony of natural and reliable witnesses are bound to creep in. Normal discrepancies in evidence are those which are due to the normal errors of observations, normal error of memory due to the lapse of time, due to the mental disposition, such as shock, horror at the time of the occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected from the normal person. The normal discrepancies do not corrode the credibility of a party's case. (See State of Rajasthan Vs. Kalki 1981 Vol-II SCC p/752, Krishna Mochi Vs. State of Bihar 2002 (6) SCC p/81, Gungadhar Behera Vs. State of Orissa 2002 (8) SCC p/381 and Leela Ram Vs. State of Haryana and another 2000 SCC (Cri) p/222). We do not find any force in the contention raised by the learned counsel for the appellant. 13. It is pertinent to mention here that the learned counsel for the appellant had not put these contradictions to the witnesses to explain them. It is settled principle of law that if a witness is sought to be contradicted with reference to his previous statement, the attention must be drawn to such statement. There is nothing on record to show that the previous statement of Munna Brabe-P.W.1 recorded in the F.I.R. with regard to the time was put to Munna Brabe-P.W.1 during his cross examination. There is nothing on record to show that the previous statement of Munna Brabe-P.W.1 recorded in the F.I.R. with regard to the time was put to Munna Brabe-P.W.1 during his cross examination. It was further pointed out that Murma BrabeP.W.1 had stated in his examination-in-chief that the incident took place at 10:00 or 10:30 p.m. There is nothing on record to show that he was contradicted with his previous statement recorded in the examination in chief with regard to the time of the incident during his cross examination. This fact reveals that the witness was not given a chance to explain as to how he had given such contradictory statement in his deposition. The credit of the witness cannot be impeached without giving him a chance of explanation. In the case in hand nothing has been put to the witnesses to explain inconsistency, as such, the said inconsistency cannot be termed as contradiction and the appellant cannot get any benefit for the same. 14. Learned counsel for the appellant further contended that the prosecution had failed to prove the motive in this case. Learned A.G.A. refuted the contention and contended that the prosecution has fully established the motive of the crime and it was further contended that even if the prosecution has failed to prove the motive for the crime, if the eye account is available, the motive of the crime has no consequence. The learned Sessions Judge has rightly held that the prosecution has stated in his evidence that the deceased had illicit relationship with the sister of the appellant. This fact could only be proved either by the evidence of the sister of the appellant, Somwati or by the deceased. It was rightly pointed out by the learned Sessions Judge that Somwati would never come to state this fact before the court due to the social compulsions. The prosecution witnesses had categorically stated in their evidence that the deceased had illicit relationship with the sister of the appellant. Learned Sessions Judge had rightly held that the evidence of the prosecution witnesses is reliable on this aspect. Assuming that the prosecution could not prove the motive against the appellant and mere fact that the prosecution had failed to prove any motive on the part of the appellant to commit the crime, it would not reflect upon the credibility of the witnesses. Assuming that the prosecution could not prove the motive against the appellant and mere fact that the prosecution had failed to prove any motive on the part of the appellant to commit the crime, it would not reflect upon the credibility of the witnesses. It is settled principle of law that if the evidence of witnesses is reliable, satisfactory and convincing then the absence of motive becomes irrelevant for the decision of the case. It is also well settled that the establishment of motive is not significant for proving the prosecution case. It has been held in Yunus Vs. State of M.P. see 2003 (1) p.429:"The prosecution in the present case has failed to prove the motive. Failure to prove motive for crime in our view is of no consequence. The rule of the accused persons in the crime stands clearly established. The ocular evidence is very clear and convincing in this case. The illegal acts of the accused persons have resulted in the death of a young boy of 18 years. It is also well settled law that establishment of motive is not sine quo non for proving the prosecution case." In the case in hand, the role of the appellant in the commission of the crime had been established by the ocular testimony of the witnesses, hence the failure to prove the motive was of no avail. We do not find any force in the contention of the learned counsel for the appellant. 15. It was further contended by the learned counsel for the appellant that the prosecution witnesses had not made any effort to apprehend the appellant at the spot. If they could have run behind the appellant, they could have apprehended the appellant at spot. It was further contended that the conduct of the witnesses was unnatural, as such, the entire evidence become doubtful. The learned A.G.A refuted the contention and contended that every individual reacts on his own way. There is no set of rules on natural reaction when such heinous offence occurs before a person. A person, who has witnessed the incident like the present one reacts in his own way. Some are stunned, some become speechless and some stand uprooted from the spot. It depends upon the individual to individual how he reacts at the spot. There cannot be any set of rules for the natural reaction. A person, who has witnessed the incident like the present one reacts in his own way. Some are stunned, some become speechless and some stand uprooted from the spot. It depends upon the individual to individual how he reacts at the spot. There cannot be any set of rules for the natural reaction. In the case in hand, it is in the evidence that the witnesses saw the appellant ran away from the spot. It is also revealed from the record that patal was not found at the spot and it was recovered on pointing of the appellant from his house. If the appellant had patal in his hand and he was fleeing from the spot, the witnesses naturally would have been afraid to cause the harm if he was apprehended at the spot by the witnesses. Thus it cannot be said that the witnesses had shown any unnatural conduct at the spot. There is no force in the contention of the learned counsel for the appellant. 16. It was further pointed out by the learned counsel for the appellant that the perusal of post mortem report (Ext.Ka.-5) reveals that semi digested food was found in his stomach. It was further contended that the appellant would have taken food after 9:00 p.m. According to the post mortem report the death would have occurred after 12:00 night. Learned A.G.A. refuted the contention. Perusal of the record reveals that there is no evidence don record that he took the dinner in the night or at 9:00 p.m. In absence of such evidence, it cannot be presumed that he had taken food after 9:00 p.m. In absence of such evidence, the contention of the learned counsel for the appellant is misconceived. 17. It was further contended on behalf of the learned counsel for the appellant that the blood recovered from the spot was not sent to the chemical examiner. Learned counsel for the appellant further contended that the torch was not taken into possession by the Investigating Officer. It was further contended that the witnesses have claimed in their evidence that they had seen and recognized the appellant in the moon light as well as by the said torch. Learned A.G.A refuted the contention. Learned counsel for the appellant further contended that the torch was not taken into possession by the Investigating Officer. It was further contended that the witnesses have claimed in their evidence that they had seen and recognized the appellant in the moon light as well as by the said torch. Learned A.G.A refuted the contention. Failure to seize the blood as has been narrated also indicates only the remissness on the part of the Investigating Officer and the evidence of the prosecution would not be impaired in anyway. Even if the investigation is defective, that pales into insignificance when ocular testimony is found credible and cogent. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Dhanaj Singh Alias Shera & others Vs. State of Punjab 2004 (3) SCC p/654, Chhotu Vs. State of Maharashtra 1997 Cri. L.J. 4394 (SC) and Kamel Singh Vs. State of M.P. 1995 CrLL.J. 4173). 18. Learned counsel for the appellant further contended that the discovery of patal and blood stained chadar at the behest of the appellant is not admissible in the evidence. As such, this circumstance cannot be taken into account against the appellant. The learned A.GA refuted the contention. It was pointed out that Wasil Brabe-PW.2 had stated in his cross examination that the recovery of patal and the said chadar was discovered from the place of the occurrence. It was further pointed out that according to the discovery memo (Ex.Ka.-3), it is disclosed that the discover; had been made by the appellant from his house not from the place of occurrence and it was contended that it is not admissible. Apart this, the prosecution has established by the credible and cogent evidence of P.W.1-Munna Brabe and P.W.2-Wasil Brabe that the deceased was assaulted by patal at the spot and the murder of the deceased was committed by the appellant. If the cogent ocular testimony is available on record, the appellant can be convicted only on the basis of the evidence of the prosecution eye witnesses. 19. If the cogent ocular testimony is available on record, the appellant can be convicted only on the basis of the evidence of the prosecution eye witnesses. 19. The prosecution evidence is lend credence to the fact that P.W.1-Munna Brabe who was present at the scene of the occurrence promptly reported the matter at the police station at about 1:15 a.m. The incident took place at about 11:00/11:30 p.m. and he immediately came to his house and he got the F.I.R. scribed and lodged the report in the police station promptly. The prompt FIR thus inspires confidence that it was not the outcome of due deliberation and consultation. The FIR in a criminal case and particularly in a 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 FIR is to obtain earlier information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapon, if any used as also the names of the eye-witnesses, if any. Delay in lodging the FIR often results in embellishment: which is a creature of an afterthought. On 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 or exaggerated story. The fact that the appellant committed the murder of the deceased further stands corroborated by the prompt F.I.R. in which the name of the appellant has been shown. 20. The prosecution evidence also gets support from the post mortem report (Ext. Ka.-5). Perusal of the post mortem report reveals that the anti mortem incised wound was found on the person of the deceased and it is also of the opinion of the doctor that the appellant died by shock and hemorrhage due to the anti mortem injuries. Incised wound can be caused by sharp edged weapon and the 'patal' is also sharp edged weapon. Thus it is revealed from the medical report also that the death occurred due to the incised anti mortem injuries found on the person of the deceased. The post mortem report further corroborates the incident and the evidence of the prosecution. 21 . Incised wound can be caused by sharp edged weapon and the 'patal' is also sharp edged weapon. Thus it is revealed from the medical report also that the death occurred due to the incised anti mortem injuries found on the person of the deceased. The post mortem report further corroborates the incident and the evidence of the prosecution. 21 . In view of the aforesaid reasons, we are of the view that the prosecution has established the guilt beyond reasonable doubt against the appellant. We find that the learned trial court has rightly convicted and sentenced the appellant u/s 302 I.P.C. to undergo life imprisonment and there is no infirmity in the judgment passed by the trial court. Hence, the appeal is dismissed. The conviction is maintained and the sentence awarded by the trial court vide judgment and order dated 11-10-1990 in S.T. No. 180 of 1990 against the appellant is hereby confirmed. 22. In view of the above, the appeal is dismissed accordingly. 23. Let the lower court record be sent back to the court concerned for compliance. Compliance report be submitted within three months from the date of receipt of order.