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Allahabad High Court · body

2012 DIGILAW 57 (ALL)

ASHOK KUMAR v. STATE OF U. P.

2012-01-06

ASHOK SRIVASTAVA, DHARNIDHAR JHA

body2012
JUDGMENT By the Court.—The present appeal on behalf of solitary appellant arises out of Judgment and order of conviction dated 22.4.1983 passed by the learned Sessions Judge, Fatehpur in Session Trial No. 166 of 1982 by which appellant Ashok Kumar was held guilty of committing offence under Section 302/34 I.P.C. and was directed, after being heard under Section 235 Cr.P.C., to suffer rigorous imprisonment for life. 2. One Mukta Kurmi having three daughters, i.e., Sudhara, Sudama and Suman, died, and as per the First Information Report, Ex. Ka-3, the three sisters came into possession of their respective shares of 14 Bigha and 17 Bishwa of immovable property owned and possessed by their father on account of having succeeded to him on his death. 3. It appears from both Ex. Ka.-3, the F.I.R. and evidence of the informant Brij Mohan (P.W.-2), that the deceased Sudama was at loggershead with her two sisters namely, Sudhara the eldest and Suman the youngest in respect of possession of the property. Due to the dispute between the sisters, proceedings under Sections, 107/116 and 145 Cr.P.C. had been initiated and as may appear from Ex. Ka. -2, the written report those were pending on the date of occurrence, i.e., 29.3.1981 before the competent Courts. The relationship between the three sisters, had worsened so much so that the informant who use to come to village Majhilegaon did not stay at the parental house of the deceased and would rather stay in the house of one Malikhan Kurmi. 4. It is stated by the informant (P.W. -2) that he had come in connection with making pairvi in the pending cases and also for realizing the usufructs of the immovable property which had come in possession of his wife, deceased Sudama, to village Majhilegaon and was staying in the house of the said Malikhan Kurmi. On 29.3.1981 at about 7.30 p.m. his wife Sudama who was earlier married to one Vijay Bahadur and had married the informant Brij Mohan after the demise of Vijay Bahadur, was going with the niece of the informant, namely, Mithila for attending to the call of nature. On 29.3.1981 at about 7.30 p.m. his wife Sudama who was earlier married to one Vijay Bahadur and had married the informant Brij Mohan after the demise of Vijay Bahadur, was going with the niece of the informant, namely, Mithila for attending to the call of nature. The deceased had a water pot while, Mithila had a torch light, when the appellant alongwith his unknown companion came from south armed with a country made pistol and the appellant was said to have attacked the deceased with intention to kill her and himself fired a shot at Sudama. The deceased Sudama ran for safety, raising cries that the appellant was killing her, with her companion Mithila and attempted to enter the house of Jagnandan(P.W-3) but fell down there at the threshold of the house. 5. The informant P.W. -2 stated that picking up the cries of his wife, he alongwith Malikhan (not examined), Indal (not examined), Udal (not examined), Jagnandan (P.W.-3) and Jagdev (not examined), who were sitting together at the Darwaja of the house of said Malikhan, were attracted to the sound of firing. It is stated that a lantern and a Dhibari (earthen lamp) were burning there and in that light the informant claimed to have identified the appellant, but could not identify his companion. The informant and his companion witnesses chased the criminals but did not pursue them on account of distance between the criminals and themselves. However, when the informant and his companions had chased the criminals, the unknown criminal fired a shot but that did not hit anyone. It is stated that after having accomplished their mission, the criminals ran away towards east. 6. As regards the motive or the reason for the commission of offence, it was stated that Ramdin and Beche Lal who were respectively the husbands of Sudhara and Suman, hired the criminals for liquidating Sudama under a deep rooted conspiracy. 7. On the basis of Ex. Ka. 2, the First Information Report was drawn up and investigation was taken up by P.W. 5, S.O. Lalta Prasad Tiwari, who came to the place of occurrence. During the course of its inspection, prepared the site plan Ex. Ka. 6. 7. On the basis of Ex. Ka. 2, the First Information Report was drawn up and investigation was taken up by P.W. 5, S.O. Lalta Prasad Tiwari, who came to the place of occurrence. During the course of its inspection, prepared the site plan Ex. Ka. 6. He also seized blood stained earth and pieces of glass bangles, which probably were put on by the deceased and which broken on account of falling the deceased falling there, from the place of occurrence by preparing seizer memo Ex. Ka. 12. The earthen lamp, torch which was carried by Mithila and the lantern which was burning at Darwaja of the house of Jagnandan were also produced, as may appear from another seizer memo Ex. Ka 13. The dead body was forwarded for post mortem examination through constable Surendra Chandra Dubey (P.W.-4) and, accordingly, the same was held by P.W. -1 Dr. J.S. Rai who prepared post- mortem examination report Ex.Ka.-1. The investigating officer (P.W.-5) and also P.W. 6, namely, Arvind Mishra recorded the statements of witnesses and as may appear from the charge-sheet, finding materials sufficient, sent up the present appellant for trial which ended in the impugned judgment. 8. The defence of the appellant was that he was a fellow villager of P.W.-2 who was resident of the same village Bibipur,P.S. Billhaur District Kanpur and there was a dispute for some tree situated at a particular piece of land and the appellant had cut that tree and that had created the sense of remorse and vengeance in the heart of P.W. -2. In fact no one had seen Sudama being assassinated and utilizing the opportunity, the informant (P.W. 2) dragged the present appellant in the case out of the his sense of vengeance as noted above. 9. During the course of the trial the prosecution examined as many as 11 witnesses out of whom P.Ws. -4, 5 and 6 were police personnel, P.Ws. 5&6 being the Investigating Officers of the case and P.W.-4 constable Suresh Chandra Debey, we have just pointed out, was handed over the dead body to be taken to the hospital for post-mortem examination by Dr. J.S. Rai (P.W. 1.). P.W. 2 was the informant of the case and he supported the incident. 5&6 being the Investigating Officers of the case and P.W.-4 constable Suresh Chandra Debey, we have just pointed out, was handed over the dead body to be taken to the hospital for post-mortem examination by Dr. J.S. Rai (P.W. 1.). P.W. 2 was the informant of the case and he supported the incident. P.W.-3, Jagnandan also appears as an eye-witness, as may appear from the account given by him but he was not naming the present appellant or anyone as the assailant of the deceased and had in fact stated that no one had been named by the informant himself on the very day of the occurrence. Due to these reasons, the learned Public Prosecutor, who was conducting the prosecution before the learned Session Judge, declared P.W.-3 hostile and cross-examined him at some length. Thus what appears from the above resume of the evidence of the witnesses produced by the prosecution, the case fundamentally rested on the evidence of a solitary witness P.W. -2, Brij Mohan, the informant of the case, who also happened to be husband of the deceased Sudama. 10. Learned Senior Counsel appearing on behalf of the appellant took us through the relevant part of the written report, as also the evidence of witnesses and submitted that the F. I. R. makes out a case of single shot being fired at the deceased and that allegation attributed to the present appellant. It is true that the unidentified accused had also been alleged to have fired the other shot, but the F.I.R. is completely silent as it did not point out that it had indeed struck the deceased. However, when the evidence of the informant (P.W.-2) is considered, it may be found that he had made an improvement and had stated that the other shot fired by the unknown criminal had also hit the target, i.e., the deceased, but that story gets no support from the medical evidence inasmuch as P.W. -2 was stating that the unidentified criminal fired the shot lowering the muzzle of his pistol. It was contended that if it could be the manner of firing the second shot, then it could have never hit the deceased. It was contended that if it could be the manner of firing the second shot, then it could have never hit the deceased. The other contention which was raised before us was that the informant (P.W. 2) had in fact not seen the occurrence as no one had seen it and, probably, he was utilizing the opportunity for taking revenge upon the appellant by roping him in the present case. It was contended that some of the most important persons, especially the two, namely, Mithila, the niece of Brij Mohan and his landlord Malikhan, who had given shelter to the informant, were not turning up to support the prosecution story. The contention further was that the informant appears a person of surreptitious character as why should show his ignorance on the direction, in which the sun was rising and in which it was setting. It was contended that the informant appears deeply motivated to inflict the malice upon the appellant for cutting the tree as would come out from the evidence of D.W.-1. 11. The learned A.G.A. attempted to make out a case for sustaining the conviction of appellant by submitting that there might be some frailty in the evidence of P.W. -2, but that frailty could not reflect upon his competence as a witness. There could not be any reason to doubt his claim of being present at village Majhilegaon and the story appears natural that he was accompanying his wife to that village especially when the background of relationship between the sisters was worse. It was contended that there could be many reasons for the prosecution not to produce witnesses, especially, Mithila niece of the informant and on that score it may not be a fault of the prosecution. 12. Non-examination of the witness may always not be a stumbling block into the claim of the prosecution if neat and sound reasons are shown to the Court for their non-production or for their non-examination. There were as many as seven witnesses named in the charge-sheet who had been claimed by the prosecution to have seen the occurrence and they were eye-witnesses to the occurrence. The informant Brij Mohan (P.W. 2) and Jagnandan (P.W.-3) were examined out of those seven named witnesses in the charge-sheet. There were as many as seven witnesses named in the charge-sheet who had been claimed by the prosecution to have seen the occurrence and they were eye-witnesses to the occurrence. The informant Brij Mohan (P.W. 2) and Jagnandan (P.W.-3) were examined out of those seven named witnesses in the charge-sheet. The reason for non-examination of the remaining witnesses has been supplied by P.W. -2 in the last line of his examination-in-chief when he had stated in paragraph No. 1 as may appear from page 21 of the paper book that Mithila, Malikhan, Udal, Indal and Jagdev had gone in collusion with the accused persons and as such he did not want to examine them. We want simply to reiterate that giving such statement before the Court below by the informant of the case would never be sufficient to justify the non-examination of such important witnesses, like, Mithila and Malikhan. The law is very trite that even filing of a petition before the trial Court informing the Court about intent of the prosecution not to examine a witness may not always be sufficient. It has to be shown to the satisfaction of the Court that there were some very reasonable and acceptable reasons for non-examination of the witnesses. The best course would have been that the learned public prosecutor should have produced those witnesses before the trial judge and then there could have made a submission before the trial judge that the prosecution was not desirous on account of any particular reason to examine them. We looked to the record of learned trial Court and we find that all the prosecution witnesses were examined on 10.1.1983. The proceedings continued but no order was passed by the learned trial Judge after 10.1.1983 or prior to that, indicating to us that the learned public prosecutor had resorted to the legally recognised method or procedure of not examining the witnesses. The learned Public Prosecutor ought to have produced the witnesses. If the witnesses were not ready to come then the real and sufficient course was that he should have filed an appropriate application in the light of Section 230 Cr.P.C. for issuance of appropriate process by the Court for enforcing appearance of the witnesses for their evidence in Court. 13. Above all, the duty of prosecuting a case lies upon the shoulders of the public prosecutor and not the informant of the case. 13. Above all, the duty of prosecuting a case lies upon the shoulders of the public prosecutor and not the informant of the case. The informant was merely a witness, his mere statement that some witnesses named by P.W.-2 in his examination-in-chief had gone into the collusion of the accused persons, in our opinion, was never sufficient to justify the non examination of the witnesses. 14. We could have countenanced the non examination of a witness like Malikhan, but we are more concerned on account of the non- examination of Mithila who was not only the niece of the informant, but also appears from the record continuously moving with the deceased and was also running into the house of P.W.-3 after the first shot was fired by the assailants. It was extremely essential for the prosecution for unfolding the real story as to how the occurrence had taken place and who was the real participants in commission of the offence that Mithla ought to have been produced for her examination. Her non-examination has greatly affected the credential of the prosecution story and we are of the opinion that it was major defect and a deep void in the prosecution story. 15. The death of Sudama does not appear in question. That stands concluded by virtue of evidence of P.W. -1, Dr. J.S. Rai who deposed that he found two gun shot-wounds on the dead body of Sudama. Both wounds on the dead body of Sudama were wounds of entry caused by two gun shots, one was located on the right arm of the deceased, the fillets of which shot had further pierced into the chest of the deceased on its right side and had shown the downward tendency. It was indicative of the fact that the assailant was standing on a higher pedestal and on the right side of the deceased. The second wound was also constituted by 7 different wounds of entries each measuring 1.5" x 1.3" and was spread over an area of 6.5" x 5" and that too was located on the right side of the abdomen and further down deep towards buttock part of the deceased. In both the wounds, Dr. J.S. Rai (P.W.-1) did not find any charring, tattooing and singing which clearly indicated that the assailant was beyond a distance of 5 ft. or more than that. In both the wounds, Dr. J.S. Rai (P.W.-1) did not find any charring, tattooing and singing which clearly indicated that the assailant was beyond a distance of 5 ft. or more than that. As we have just noted the two wounds indicated as if the assailants of the deceased had fired the shots while standing at an angle and on the right hand side of Sudama. When we contrast the above finding of P.W. -1 with the evidence of P.W.-2, the informant of the case, we may find out as to the anomaly in the evidence of P.W. -2. While so doing, we want also to point out that it may be the legal position that the First Information Report was not by itself as an evidence in a case, but nonetheless its importance could not be lost sight of, when it comes to judging the evidence of witnesses, especially that of the maker of the document. In our considered view, the value of the F. I. R. may not be evidential but it is the most important weapon in the hands of the prosecution which could be used by the defence to impeach the veracity of the prosecution story as also the credibility of the evidence of a particular witness especially, when it comes to judging the evidence of the informant of the case. That way the document, i.e., F.I.R. gets its own value in a criminal trial. Considering the evidence of P.W. 2, from that angle what we find is that he had given some shift to his basic story which was contained in Ex. Ka. 2, the written report. In the written report, it was the story that it was the appellant Ashok Kumar who had fired the first shot and that shot was fired by him while he was standing opposite and in front of the deceased. We have already pointed out after referring to the evidence of P.W. 1, Dr. J. S. Rai that in view of the injuries, the assailant could always be said to be standing on the right hand side of the deceased. We have already pointed out after referring to the evidence of P.W. 1, Dr. J. S. Rai that in view of the injuries, the assailant could always be said to be standing on the right hand side of the deceased. This one contradiction which we have found out while considering the evidence of the informant P.W. 2, if the assailants of the deceased Sudama was standing opposite her and in her front then no doctor could have found two shots hitting the deceased on her right side of arm or abdomen, this clearly creates a reasonable doubt as regards the manner of occurrence as stated by P.W.1 and his claim as well of being an eye-witness to the occurrence. 16. We further find from the evidence of P.W. 2 and the written report, Ex. Ka.-2 that the appellant, i.e., Ashok Kumar and his companions had come from the south and had gone in front of the deceased where after appellant Ashok Kumar had fired the shot. When we were considering the evidence of P.W.-2 and when we were further considering the evidence of P.W.-5, the first investigating officer and the site plan Ex. Ka. 6, we found that the deceased was coming from a different directions, i.e., from west and particularly from the side of the parental house of the deceased and if the witness P.W.-2 is to be believed then the assailants were following her, as may appear from the site plan, which is completely contrary to the evidence of P.W.-2 who had stated that the assailants of the deceased appeared all of sudden opposite her and in front of her and thereafter the two shots were fired by the two accused persons, one of whom could not be identified. In cross-examination, on the above point P.W.-2 stated that the first shot fired by Ashok Kumar was directed at the deceased, while the second shot fired by the unknown criminal was directed downwards. We have already pointed out that the basic prosecution case was confined to killing of Sudama by firing one shot and that was fired by appellant Ashok Kumar. The evidence of Dr. J.S. Rai (P.W.-1) who found injury of the other shot, points out that it was equally fatal and devastating and clearly indicated that two shots were fired at the deceased. 17. The evidence of Dr. J.S. Rai (P.W.-1) who found injury of the other shot, points out that it was equally fatal and devastating and clearly indicated that two shots were fired at the deceased. 17. We are of the view that the story which emerged from the evidence of P.W.-2, regarding two shots being fired at the deceased, was probably introduced subsequently by the prosecution after they had the advantage of seeing the post-mortem examination report, and specially after they had been faced with the difficulty of reconciling the second injury and that probably necessitated the addition of the story of second shot being fired by the unidentified criminal. 18. The conviction of an accused may be based on the evidence of a solitary witness provided he appears to be trustworthy to the Court. The trustworthiness of a witness connotes that his evidence in examination-in-chief remains undisturbed on account of his cross-examination, which is one hallmark of trustworthiness. The other hallmark, could be circumstances which may appear from the evidence of the witnesses, which may render his evidence not acceptable and unsafe to be relied upon. The informant (P.W.-2) had claimed, residing in the village after being married to the deceased. He had also claimed that his wife, the deceased Sudama had come over the possession of her 1/3 share of the immovable property, but still the litigations were going on between the three sisters and the relationship was worse to such an extent that the deceased and the informant did never reside in the house of the father of the deceased, rather they had taken shelter in house from one Malikhan Kurmi, after hiring it. 19. Under the above background, it is accepted that he was quite acquainted with the village and its directions but when he was cross-examined by the defence, he was making completely a false statement by showing his ignorance towards the direction in which the accused had fled away by feigning lack of knowledge of four geographical directions. He was pointing out to the Court that he was not acquainted with the geographical directions of the village. We are simply not ready to accept that particular statement of the informant (P.W.-2), for the reason, we have just assigned that he was almost a permanent resident of that village. More over, his case in Ex. Ka. He was pointing out to the Court that he was not acquainted with the geographical directions of the village. We are simply not ready to accept that particular statement of the informant (P.W.-2), for the reason, we have just assigned that he was almost a permanent resident of that village. More over, his case in Ex. Ka. 2 was that the appellant ran towards east, we have the site plan before us in the form of Ex. Ka. 6 and the evidence of witnesses also. when we were contrasting the site plan so as to reconciling the evidence of witnesses, we find it utterly impossible that the persons who was sitting at Darwaja of Malikhan, would be, firstly, seeing the assailants and would again be seeing then while they had made good their escape. 20. These are some of the circumstances which we have culled out of the evidence of P.W.-2 which renders him not a trustworthy witness. In addition to that, he was highly interested and appears ill disposed towards the present appellant on account of the evidence which had come on cutting of the tree through D.W.-1. This was the reason, we feel, P.W.-3 Jagnandan was not naming anyone who could have been identified by him as the assailant of the deceased, though we are satisfied that he had all the opportunity of seeing the assailants and he was one of the most competent witnesses on the point of firing shots and running of the deceased to gain safety after being confronted by her killers. Jagnandan (P.W.-3) had stated that after the occurrence was over, the informant had not named anyone despite having seen the killers of his wife. 21. On consideration of the evidence of the informant (P.W.-2) and that of Jagnandan (P.W.-3) and the Doctor (P.W.1), we find that P.W.-2 was not a trustworthy witness and his evidence was mere by way of making out a case so as to naming someone as the killer of his wife than by way of telling the truth to the Court. He was equally motivated by some ulterior intent and on that account it might have been the possibility that the appellant was implicated. 22. In addition to the above, we find some of the most competent witnesses had not been produced in the Court below. On account of these reasons, we find merit in the present appeal. He was equally motivated by some ulterior intent and on that account it might have been the possibility that the appellant was implicated. 22. In addition to the above, we find some of the most competent witnesses had not been produced in the Court below. On account of these reasons, we find merit in the present appeal. Accordingly, we allow the appeal and set aside the order of conviction and sentence dated 26.4.1983 passed upon the appellant by the learned Session Judges, Fatehpur. 24. The appellant is on bail. He shall stand discharged from the liability of his bond. ——————