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2017 DIGILAW 2079 (ALL)

SANKATHA PRASAD @ RAJA v. STATE OF U. P.

2017-09-05

BALA KRISHNA NARAYANA, SHAILENDRA KUMAR AGRAWAL

body2017
JUDGMENT : 1. This appeal has been filed by the appellant Sankatha Prasad alias Raja against the judgment and order dated 28.10.1987 passed by the IIIrd Additional Sessions Judge, Fatehpur in Sessions Trial No.59 of 1986 (State Vs. Sankatha Prasad alias Raja), by which he has been convicted and sentenced to imprisonment for life, under Sections 302 I.P.C. 2. Briefly stated the facts of this case are that the house of complainant, Gaya Prasad which is situate towards south of village Sarai Sahzada, P.S. Malwan, District Fatehpur is separated from the house of the accused-appellant which lies towards south-west of the house of complainant, Gaya Prasad (P.W.1) by one house. A Chak Road runs towards south from the complainant's village and after one plot from the Chak Road lies the plot towards east of the Chak Road, on which occurrence took place. Gaya Prasad (P.W.1) is the former Pradhan of the village. 3. According to the prosecution, on 25.8.1985 at about 8.45 A.M., complainant, Gaya Prasad (P.W.1) was returning home by the said Chak Road after easing himself. When he reached near the disputed plot while going through the Chak Road he saw that Durga Prasad alias Lala ( the real brother of accused Sankatha Prasad) was getting a KHAI (mound) dug with the help of two labourers namely Kali Charan and Ram Nath (P.W.2). Gaya Prasad objected, to which Durga Prasad retorted by saying that he was not doing anything wrong. Suddenly, Durga Prasad's brother Sankatha alias Raja came and dared Gaya Prasad (P.W.1) to stop the digging work. There ensued an exchange of hot words between them. Sankatha Prasad rushed to his house and returned with a country made pistol with him and while he was aiming a shot at Gaya Prasad (P.W.1), Uma Shanker, son of Gaya Prasad (P.W.1) on hearing the noise of altercation, came and caught hold of accused Sankatha Prasad from behind. Accused Sankatha Prasad however managed to free himself from the clutches of deceased Uma Shanker and after turning towards him, he shot Uma Shanker, who fell down after receiving the fire arm injury. The accused was chased by other witnesses and Gaya Prasad but he managed to escape threatening them with his country made pistol. Gaya Prasad (P.W.1) after arranging a bullock-cart, proceeded to Kunwarpur with his injured son for medical aid. The accused was chased by other witnesses and Gaya Prasad but he managed to escape threatening them with his country made pistol. Gaya Prasad (P.W.1) after arranging a bullock-cart, proceeded to Kunwarpur with his injured son for medical aid. However by the time they reached near pucca Talab, his son Uma Shanker succmbed to his injuries. Thereafter Gaya Prasad left the dead body of Uma Shanker in the care of Rajendra Prasad and got the written report (Ex. Ka-1) of the incident scribed by Barati alias Shiv Shanker Tiwari on his dictation, and on the basis of written report Ex. Ka-1, the chik F.I.R. (Ext. Ka-11) was prepared by Constable Moharrir Surendra Prasad Jaiswal and relevant entry of the registration of the case under Section 302 IPC was made in the G.D. at serial no.14 at 10.30 A.M. on 25.8.1985 (copy Ext. Ka-12). The investigation of the case was entrusted to Surendra Singh (P.W.3). 4. S.I. Surendra Singh (P.W.3), after the registration of the case, immediately rushed to the place where the dead body of Uma Shanker was lying. He prepared the inquest report (Ext. Ka-2) of deceased Uma Shanker, prepared relevant papers for getting the postmortem examination of the dead body of Uma Shanker done and sent the dead body in sealed cloth through Constable Dinesh Singh and village Chaukidar Pitamber. The S.I. thereafter went to the place of the occurrence. He inspected it and prepared its site plan (Ext. Ka-8). He took the blood stained and simple earth from the place of the occurrence in two separate tins and prepared its memorandum (Ext. Ka-9). 5. On 17.9.1985, the S.O. took over the investigation from the said S.I. and after performing other formalities of the investigation, submitted charge sheet (Ext. Ka-10) against the accused under Section 302 I.P.C. 6. Since the offence mentioned in the charge-sheet was triable exclusively by the Court of Sessions, the case was committed for the trial of the accused to the Court of Sessions Judge, Fatehpur, where it was numbered as S.T. 59 of 1986 and made over for trial from there to the Court of IIIrd Additional Sessions Judge, Fatehpur, who on the basis of material on record and after hearing the prosecution as well as the accused, framed the charge under Section 302 I.P.C against the accused-appellant, who denied the charge and claimed trial. 7. 7. In order to bring home the charge framed against the accused-appellant, the prosecution examined Gaya Prasad as P.W.1, Ram Nath as P.W.2, S.I. Surendra Singh as P.W.3 and Dr. G.S. Gaur as P.W.4 and closed its evidence. 8. The prosecution also adduced documentary evidence, which has been referred to and dealt with in detail by the learned Additional Sessions Judge, Fatehpur in the impugned judgment and to which, we shall refer as and when the context so requires. The accused appellant in his statement recorded under Section 313 Cr.P.C, refuted the prosecution case. He further stated that there was a quarrel between the accused-appellant and deceased Uma Shanker (son-in-law of Shiv Das), P.W.1 Gaya Prasad, Salig Ram, Shiv Das, Durga Prasad (son-in-law of Salig Ram) intervened and when the accused-appellant tried to stop them from interfering, a combat followed between him and Salig Ram, on which PW-1 Gaya Prasad came holding a gun and fired at the appellant but he missed the target and accidentally shot Uma Shanker. 9. Learned IIIrd Additional Sessions Judge, Fatehpur after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, convicted the appellant under section 302 I.P.C and awarded the aforesaid sentence to him. 10. Shri I.M. Khan assisted by Ms. Sweta Pandey and Ms. Puneeta Pandey, learned counsel for the appellant submitted that the prosecution has failed to prove its case against the accused appellant beyond all reasonable doubts. The recorded conviction of the appellant and the sentence awarded to him cannot be sustained and are liable to be set aside. He next submitted that there are inherent contradictions and discrepancies in the statement of witnesses of fact produced by the prosecution during the trial, which fully establish that none of the so-called eye witnesses had seen the occurrence. F.I.R. in this case is ante-time. The medical evidence on record does not corroborate the ocular version. The appellant was falsely implicated in the present case due to village politics. 11. Per contra Shri Saghir Ahmad, learned AGA appearing for the State respondent submitted that the finding of guilt recorded by the Trial Judge against the accused-appellant is based upon cogent evidence and supported by relevant considerations. Same does not suffer any illegality or legal infirmity requiring any interference by this Court. 11. Per contra Shri Saghir Ahmad, learned AGA appearing for the State respondent submitted that the finding of guilt recorded by the Trial Judge against the accused-appellant is based upon cogent evidence and supported by relevant considerations. Same does not suffer any illegality or legal infirmity requiring any interference by this Court. The two witnesses of facts examined by the prosecution during trial fully corroborate the prosecution story as spelt out in the F.I.R. There is no material conflict between the medical evidence and eye witness account. The impugned judgment and order does not require any interference by this Court. This appeal lacks merits and is liable to be dismissed. 12. We have very carefully considered the submissions of the learned counsel for the parties and perused the entire lower court record. 13. The only question for our consideration in this appeal is that whether the prosecution has been able to prove its case against the accused-appellant beyond all reasonable doubts or not. 14. The ocular account of the occurrence has been given by Gaya Prasad (P.W.1) and Ram Nath (P.W.2). Gaya Prasad (P.W.1) is the father of the deceased Uma Shanker while Ram Nath (P.W.2) is the mason who, according to the prosecution, was digging the mound at the time of the occurrence. Obviously, the testimony of both these witnesses has to be scrutinised. 15. Gaya Prasad (P.W.1) described as to how he reached near the disputed plot where Durga Prasad was getting the mound dug by two masons namely, Kali Charan and Ram Nath (P.W.2). His presence at the time of the occurrence does not seem to be improbable because the occurrence took place in the morning at about 8.45 A.M. It was not an odd time for attending call of nature. It has come in evidence that he had gone to ease himself and while returning and when he had reached near the place of the occurrence. This assertion made by this witness has not been challenged by the defence in cross-examination. A bare suggestion was advanced to the effect that this witness reached the place of the occurrence upon hearing the alarm. This suggestion has been suitably repelled by the witness. In this way, the presence of this witness at the time of the occurrence is established without any doubt. 16. A bare suggestion was advanced to the effect that this witness reached the place of the occurrence upon hearing the alarm. This suggestion has been suitably repelled by the witness. In this way, the presence of this witness at the time of the occurrence is established without any doubt. 16. It is argued on behalf of the accused-appellant that Gaya Prasad (P.W.1) is a partisan witness. Being the father of the deceased, he is an interested witness and his testimony should be cautiously scrutinised. It may be observed that once the presence of any witness at the time of the occurrence is established, the only thing which is to be determined is that whether such witness is lying lie or giving the details of the occurrence without mincing with the matters. There is nothing on record to suggest as to why PW-1 Durga Prasad will spare the real culprit and falsely implicate the accused. No prior enmity between this witness and the accused could be established. Durga Prasad was also present at the time of the occurrence, as stated by Gaya Prasad (P.W.1). It was very easy for Gaya Prasad to have implicated Durga Prasad also with whom there was an altercation which resulted in the unhappy episode. This is the most crutial fact which goes in favour of the prosecution and it reflects truthfulness of this witness. 17. Regarding evidentiary value of testimony of the interested or relatives witnesses, Hon'ble Supreme Court in Mano Dutt and another Vs. State of U.P., 2012 (77) ACC 209 has observed in paragraph no.19 referring to the case of Namdeo Vs. State of Maharashtra, 2007 (58) ACC 414 (52) : 2007 (54) AIC 162, that this Court drew a clear distinction between a chance witness and a natural witness. Both these witnesses have to be relied upon subject to their evidence being trustworthy and admissible in accordance with law. 18. Hon'ble Supreme Court in Waman and others v. State of Maharashtra, 2011 Cr.L.J. 4827 has observed in paragraph no.9, which reads as follows: "In Balraje @ Trimbak V. State of Maharashtra, 2010 (70) ACC 12 (SC) : 2010 (90 AIC 32, this Court held that mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eye-witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed toward the accused. After saying so, this Court held that if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same." 19. It has been further observed in Waman (supra) that relationship cannot be a factor to affect the credibility of a witness. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the Court has to analyse evidence of related witnesses carefully to find out whether it is cogent and credible. The same view has been reiterated in State of U.P. v. Naresh and others, 2011 (75) ACC 215 (SC) : 2011 (106) AIC 76 (SC). 20. In the present case, as already mentioned that there was no previous enmity between the accused and the father of the deceased and so the rule of caution should be sparingly applied. Even applying the rule of caution, the testimony of Gaya Prasad inspires confidence. He has successfully withstood the cross-examination. The vivid description of the occurrence narrated by this witness corroborates the F.I.R. version. 21. It has been argued that the F.I.R of the occurrence is anti time and therefore, it has lost its sanctity. It may be observed that Gaya Prasad has stated that immediately after the occurrence when Uma Shanker was alive, he took immediate steps to get medical aid to his son. This was the most natural conduct of Gaya Prasad ( P.W.1), the father of the deceased. But Uma Shanker succumbed to his injuries before any medical aid could be provided to him. This was the most natural conduct of Gaya Prasad ( P.W.1), the father of the deceased. But Uma Shanker succumbed to his injuries before any medical aid could be provided to him. He thereafter left the dead body of his son in the care of Rajendra Prasad and dictated the F.I.R to Barati alias Shiv Shanker. Gya Prasad ( PW1) thereafter went to P.S. Malwan and lodged the F.I.R. there. The distance between the place of the occurrence and the Police Station Malwan is only 5 Kms. and there was nothing unusual about Gaya Prasad ( P.W.1) reaching the police station within quarter and two hours. The distance of 5 Kms. is not such that he could not have reached the police station within such time even excluding the time spent in dictating the report and carrying his son Uma Shanker. In this way, reasonable time was taken by Gaya Pd. In reaching the police station. This ensures that there was no time for Gaya Prasad for making deliberations and concoctions. The F.I.R, therefore, was prompt. Testimony of Gaya Prasad (PW-1) which contains full and correct information of the occurrence fully corroborates the FIR version. The submission of the learned counsel for the defence contrary to it are devoid of merits. They are accordingly rejected. 22. No material contradiction could be elicited in cross-examination by the defence. His testimony is also corroborated by attending circumstances of the case. All the aforesaid facts taken together go to show that Gaya Pd. (P.W.1) is a truthful witness and his testimony cannot be rejected. 23. The credibility of Ram Nath (PW-2), who was also examined by the prosecution during the trial as an eye-witness is sought to be shattered by the learned counsel for the accused-appellant on the ground that he too was an interested witness being the nephew of one Bela, who was 'Bataidar' of PW-1 Gaya Prasad and it was under the influence of aforesaid Bela that he had given false evidence against the accused-appellant. It is significant to note that neither any evidence has been led by the accused-appellant before the trial court nor any suggestion was given by him to PW-2 Ram Nath about his being inimical towards the accused-appellant. It is significant to note that neither any evidence has been led by the accused-appellant before the trial court nor any suggestion was given by him to PW-2 Ram Nath about his being inimical towards the accused-appellant. We do not find that merely because PW-1 Gaya Prasad had given his land on 'Batai' to Bela, the real maternal uncle of PW-2 Ram Nath and he would give false evidence against the accused-appellant. The name of the witness finds mention in the FIR, which was lodged promptly without any undue delay. Considering the alacrity with which the FIR of the incident was lodged, there was no time for PW-1 Gaya Prasad to concoct story and to deduce the name of Ram Nath as witness in the FIR. 24. PW-2 Ram Nath in his deposition made before the trial court has fully corroborated the prosecution case on material points as narrated in the FIR and by PW-1 Gaya Prasad in his evidence. PW-2 Ram Nath was cross-examined by the defence counsel at great length, but he could not elicit anything out of him, which may even remotely indicate that he was lying. There is ring of truth in his testimony. Nothing material could be pointed out by the learned counsel for the appellant, which may persuade us to disbelieve the testimony of PW-2 Ram Nath, which in our opinion is truthful and reliable. 25. It has been argued by learned counsel for the appellant that the medical evidence on record does not corroborate the prosecution version with regard to manner of assault. As per the FIR recitals and the facts deposed by two witnesses of fact examined by the prosecution during trial namely PW-1 Gaya Prasad and PW-2 Ram Nath, the accused-appellant had shot Uma Shankar Tiwari (deceased) while he was aiming a shot with his fire arm at PW-1 Gaya Prasad, his son caught hold of the accused-appellant from behind, but somehow he managed to free himself from the clutches of Uma Shankar and turning towards and thereafter he shot him with his fire arm. Thus, it is a case of single shot, author whereof, according to the witnesses of fact, is accused-appellant. The autopsy of the deceased Uma Shankar was conducted by PW-4 Dr. G.S. Gaur, who prepared his postmortem, which is on record as Ex. Ka-13. Thus, it is a case of single shot, author whereof, according to the witnesses of fact, is accused-appellant. The autopsy of the deceased Uma Shankar was conducted by PW-4 Dr. G.S. Gaur, who prepared his postmortem, which is on record as Ex. Ka-13. He found the following ante-mortem injuries on the body of deceased Uma Shankar:- One fire arm wound of entry 1'' x 1'' x chest cavity deep on the sternum 3'' from the right nipple at 3 o' clock position. The margins were inverted and lacerated. There was blackening and tattooing around the wound. The direction of the injury was from front to back. He found one pellet from inside the dead body of Uma Shankar. In the internal examination, he found that the sternum bone was fractured. The pleura and right lung was lacerated. There was 3 ounce of semi digested food in the stomach of the dead body. The small intestine and the large intestine were empty. 26. PW-4 Dr. G.S. Gaur in his evidence tendered during the trial proved the postmortem report of the deceased Uma Shankar and he deposed that as per his opinion the death of Uma Shankar was caused on account of shock and haemorrhage due to ante-mortem injury. He further opined that Uma Shankar might have died at about 9.00 AM on 25.08.1985 and the ante-mortem injury found on the dead body of Uma Shankar was sufficient in ordinary course of nature to cause his death. The injury could have been caused by 'Tamancha'. In his cross-examination, PW-4 Dr. G.S. Gaur stated that the ante-mortem injury could have been caused by a gun. 27. After going through the medical evidence, we do not find any conflict between the ocular version and the medical evidence on record. 28. Investigating Officer of the case Surendra Singh, who was examined as PW-3 in his evidence tendered before the trial court narrated the various steps taken by him during the course of investigation. He proved the inquest report Ex. Ka-2 and other related documents, recovery memo Ex. Ka-9 of blood stained and plain earth from the place of occurrence, site plan of the place of incident Ex. Ka-8. 29. He proved the inquest report Ex. Ka-2 and other related documents, recovery memo Ex. Ka-9 of blood stained and plain earth from the place of occurrence, site plan of the place of incident Ex. Ka-8. 29. Thus, upon a holistic view of the facts of the case and a careful appraisal and threadbare scrutiny of the evidence on record, both oral as well as documentary, we have no hesitation in holding that the prosecution has succeeded in proving beyond all reasonable doubts that the deceased Uma Shankar was shot by the accused-appellant by his 315 bore 'Tamancha' on 25.08.1985 at about 8.45 AM in Village- Sarai Sahzada, P.S.- Malwan, District Fatehpur and he died as a result of the fire arm injury sustained by him at the hands of the accused-appellant while his father Gaya Prasad was taking him to hospital for treatment. The evidence of PW-1 and PW-2 is throughout consisting and clinching. We do not find any reason to disbelieve them. The medical evidence fully corroborates the ocular version. 30. Thus in view of the above, we do not find that the learned trial judge had committed any illegality or legal infirmity in convicting the appellants and sentencing them to imprisonment for life. 31. There is no merit in this appeal and the same is accordingly dismissed. 32. There shall be however, no order as to costs.