Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 1770 (ALL)

Ganesh Rajbhar v. State of U. P.

2018-08-10

A.P.SAHI, BACHCHOO LAL

body2018
JUDGMENT & ORDER : 1. Heard Sri Ashwini Mishra, learned counsel for the appellants and Sri Jai Prakash Tripathi, learned A.G.A. for the State. 2. The appellants were charged for the offences under section 302 I.P.C. read with section 34 I.P.C. coupled with the offence of Section 25 Arms Act along with two other co-accused namely Uma Shanker and Shambhu Nath. 3. The trial court after having analyzed the testimony on record came to the conclusion that the other two co accused Uma Shanker and Shambhu Nath were entitled for the benefit of doubt keeping in view the direct testimony of P.W.-1 the informant/ complainant, Umesh Rajbhar, coupled with the corroboration by the defence witness Bihari Lal who was produced as D.W.-1. 4. However, on the basis of almost the same set of evidence the appellant Ganesh Rajbhar and Sitaram Giri have been indicted and convicted for the offences aforesaid and have been accordingly sentenced coupled with fine and in the event of default of payment of fine to undergo further imprisonment as per the impugned judgment dated 28.2.2011. 5. The incident as narrated in the F.I.R. is that the deceased Ram Nath was sleeping on a Machan (a raised platform for shooting wild animals or for scaring beasts away from farms) outside his house and about 5 to 6 feet distance away, the informant P.W.-1 was sleeping inside a thatched hut. Sudama who has been examined as P.W. -4 was sleeping besides the deceased on a pile of hay stack. At midnight about 12.00 on 20/21.11.2000 the accused arrived and woke up Ram Nath and then appellant Ganesh shot him with a country made pistol causing the injuries resulting into his death. The accused are alleged to have been seen fleeing away in the light of a lantern that was placed out side the thatched hut where the informant was sleeping. The incident was also witnessed by P.W.2 Maya Rajbhar, P.W.-3 Rajeshwar Rajbhar and one Bhajju who also ran to the scene of occurrence and with the aid of torch light, they tried to chase the assailants but could not catch them as they were armed. It is alleged that all these witnesses including the informant had seen the assailants accused fleeing away and had recognized them. 6. The first information report was lodged at 6.10 a.m. on 21.11.2000. It is alleged that all these witnesses including the informant had seen the assailants accused fleeing away and had recognized them. 6. The first information report was lodged at 6.10 a.m. on 21.11.2000. The inquest was prepared and the body was sent for postmortem. There is a variation in the evidence as to whether the body was first taken to the police station and then sent for post mortem or it was directly sent for autopsy. 7. The recovery memo was prepared with regard to the items of the source of light namely the two torches that were handed over to the Investigating Officer and also the lantern as mentioned in the First Information report. A recovery of a country made pistol is said to have been made on the pointing out of the accused on 12th December 2000 and the recovery memo was prepared to that effect. This recovery has also been questioned during the course of arguments on the ground that according to one of the witnesses the country made pistol had been taken away by the Investigating Officer from the scene of occurrence itself which shall be dealt with later on. 8. The postmortem was carried out on 21.11.2000 itself and the report was prepared indicating a gun shot injury through and through, the point of entry being on the neck. The cause of death was shown to be hemorrhage and shock due to the said ante mortem injury. 9. All the four accused were charge sheeted and the prosecution introduced its witnesses with Umesh Rajbhar, the informant and the son of deceased as P.W.-1. Maya Rajbhar and Rajeshwar Rajbhar who are neighbours and who are said to have arrived at the time of occurrence of the incident, were also introduced as witnesses of fact as P.Ws. 2 and 3. Sudama who was said to have been sleeping besides the deceased when he was shot was examined as P.W.-4. 10. The constable-Clerk Kashinath who registered the Check F.I.R. was examined as P.W.-5. Dr. B.K. Rai who carried out the autopsy and prepared the postmortem report was examined as P.W.-6. Kamlesh Singh the Investigating Officer was examined as P.W.-7. Arjun Ram who prepared police papers of recovery of the country made pistol was examined as P.W.-8 and Atma Yadav who proved the site plan pertaining to the recovery of weapon and the charge sheet was examined as P.W.-9. Kamlesh Singh the Investigating Officer was examined as P.W.-7. Arjun Ram who prepared police papers of recovery of the country made pistol was examined as P.W.-8 and Atma Yadav who proved the site plan pertaining to the recovery of weapon and the charge sheet was examined as P.W.-9. Nar Singh, Nazir Sadar of collectorate Ballia, who deposed with regard to the sanction of prosecution was examined as P.W. 10. 11. The accused got their statements recorded under Section 313 Cr.P.C. where after Bihari Lal the father of the accused Uma Shanker came to be examined as defence witness D.W.-1. The trial court as noted above by the impugned judgment has convicted and sentenced the appellants and has acquitted the accused Uma Shanker and Shambhu Nath, hence this appeal. 12. The prosecution version commenced by introducing the witnesses narrating their ocular version which has been questioned by Sri Ashwini Mishra, learned counsel for the appellants primarily on the ground that they are all inconsistent and contradict each other which renders it unworthy of any belief which amounts to a fatal discrepancy. Narration of facts clearly indicate that none of the witnesses had actually seen the occurrence or the participation of the appellants and consequently the appellants are entitled to the benefit of doubt. He submits that the prosecution has failed to prove the case beyond reasonable doubt inasmuch all the witnesses of fact namely P.Ws. 1 to 4 have deposed in a manner that establishes that their evidence is incompatible with the basic prosecution case. He therefore, submits that ocular testimony being absolutely shaky, its creditworthiness is not only doubtful but the entire evidence deserves to be rejected. He therefore, contends that if the trial court on the same set of evidence found that two of the accused could be acquitted, then there was no special reason so as to construe the same evidence adverse to the appellants and convict them for the same charges. His contention therefore, is that on scrutiny of the statements of P.Ws. 1 to 4 there is no material which may clinchingly establish the presence of the witnesses or they having seen the incident or the participation of the appellants in the commission of the offence. The judgment of the trial court therefore, insofar as it convicts the appellants deserves to be reversed. 13. 1 to 4 there is no material which may clinchingly establish the presence of the witnesses or they having seen the incident or the participation of the appellants in the commission of the offence. The judgment of the trial court therefore, insofar as it convicts the appellants deserves to be reversed. 13. On the other hand, learned A.G.A. Sri Ajit Ray contends that the prosecution has tendered all possible evidence in support of the case to demonstrate that there is only one hypothesis which is the same as accepted by the trial court that the appellants were clearly involved in the participation and commission of the offence and they having been identified clearly by the testimony of the ocular witnesses, there is no reason to disbelieve their participation or infer any reasonable doubt about them having committed the offence. He submits that even if there are certain discrepancies the same are neither vital nor material so as to discard the entire prosecution story and even if the oral testimony has partially proved the existence of the facts in order to construe a probability, then merely because a different opinion may be possible on the evidence, the judgment does not require reversal. He submits that in view of the background of the case where enmity and motive have also been indicated, the ocular evidence clearly supports the said version of the prosecution, and in the absence of any evidence to the contrary the appellants are not entitled for any benefit of doubt. He submits that merely because the other co accused have been acquitted the same would not be read in favour of the appellants for whom the evidence is intact and which can be safely relied on to sustain their conviction and punishment. 14. Having considered the submissions raised and perused the record, it is correct that the court has to endeavour to search for the truth and not dwell into a bout of technicalities. The evidence has to be read as a whole and unless there are any vital discrepancies or any pitfalls indicating variation in material particulars, the ocular testimony should not be ordinarily disbelieved. The evidence which is forthcoming should upon an evaluation be unworthy of belief in order to extend the benefit of doubt and it should be assessed in order to find out that the evidence does not reflect complete incompatibility. The evidence which is forthcoming should upon an evaluation be unworthy of belief in order to extend the benefit of doubt and it should be assessed in order to find out that the evidence does not reflect complete incompatibility. This is necessary keeping in view the provisions of Section 155 of the Indian Evidence Act which makes a provision as to the manner in which the creditworthiness of a witness can be impeached. The manner of examination of witnesses as provided for under Chapter 10 of the Indian Evidence Act, 1872 therefore, have to be kept in mind in order to apply the yard stick of probabilities that have a proximity to the case set up by the prosecution. Contradiction in order to discredit the testimony should not be an isolated scrutiny and it is the totality of the oral and circumstantial evidence, coupled with the uniformity in the pattern of deposition that can be utilized safely in order to arrive at a conclusion which may be probable and which may also allow enough room for the defence to point out any reasonable doubt about the testimony led by the prosecution. 15. We therefore now proceed to examine the statements of the witnesses of fact in the light of the aforesaid principles to determine the creditworthiness of the four witnesses of fact in the present case. 16. The informant P.W.-1 Umesh, who is the son of the deceased Ramnath has narrated the incident supporting the version of the first information report to the effect that while his father was sleeping and PW-4 Sudama was also sleeping nearby, the two of the accused Shambhu Nath and Uma Shankar woke up his father and at that very time, the said witnesses also woke up. He also states that the appellants Ganesh and Sitaram had also arrived with the aforesaid two accused. The accused appellant Ganesh had a country made pistol in his hand whereas the other three accused were carrying sticks. He also supports the first information version where it is narrated that as the deceased woke up, Uma Shankar (acquitted by the trial court) and Sitaram (appellant No.2) exhorted the appellant Ganesh to finish off the deceased, as it is only thereafter they would be able to cultivate their land. He also supports the first information version where it is narrated that as the deceased woke up, Uma Shankar (acquitted by the trial court) and Sitaram (appellant No.2) exhorted the appellant Ganesh to finish off the deceased, as it is only thereafter they would be able to cultivate their land. Simultaneously, Uma Shankar and Sitaram surrounded his father, the deceased, from the front and then the appellant Ganesh fired the fatal shot from a close range on the neck of the deceased. The bullet pierced through the backside and it was a through and through shot. His father immediately fell down and died on the spot. 17. Thus, the role assigned to the appellant Ganesh was of firing a shot and exhortation by Sitaram having surrounded the deceased with the aid of Uma Shanker and Shambhu Nath. He then narrates that P.W. 4 Sudama was also awake but he could not resist the assailants. P.W.-1 only raised a call. The accused could not be caught. While describing his placement from where he saw the incident, he narrates that he was sleeping inside his thatched hut and he saw the incident with the aid of light but he does not specifically indicate the lantern at the gate of his thatched hut. He claims to have identified the accused with this source of light available to him. On raising a call the other witnesses P.W. 2 Maya Rajbhar, P.W.-3 Rajeshwar and one Bhajju Ram came towards the scene of occurrence with their torches and they chased the accused but since the accused were carrying country made pistols who ran away towards the east, they could not catch hold the assailants. 18. He admits that having lodged the first information report at 6.00 a.m. at police station Maniyar and has proved the written report that was tendered by him. He then described that the appellant Ganesh was shorter in height than his father. He also describes the enmity of the accused Ganesh with his father relating to land of one Chandar. He also stated that Sudama P.W.-4 was a witness in his case. 19. On cross examination he stated that when he first saw his father he was lying down and his feet were towards the southern side and the head was towards the western side. He also stated that Sudama P.W.-4 was a witness in his case. 19. On cross examination he stated that when he first saw his father he was lying down and his feet were towards the southern side and the head was towards the western side. He was lying in an inverted position with both the hands pressed toward his chest and he was dead. It was the night hours during which he had witnessed the aforesaid position of the body of his father where after some villagers had arrived. He then states that it is only after sun rise that he went towards the dead body of his father. Thereafter he came with 4-5 people to the police station. He had transcribed the written report after having seen the dead body of his father and returned from police station at about 7.30 a.m. and reached home at about 8.00 a.m. where after the Investigating Officer arrived whom he had not met at police station. He then in his cross examination admits that the lantern was inside the thatched hut and he had indicated the place to the Investigating Officer where the lantern was placed. The place of lantern was shown outside the hut which he explained was correct. The aforesaid inconsistency deserves to be noted. 20. In his further cross examination, he said that he did not talk to any body in the night when the incident occurred nor did he touch the body of his father until morning when about 40-50 people had assembled and the village chaukidar had arrived. The chaukidar went to the police station to give the information where after the Investigating Officer arrived. The police papers had been prepared both at his house as well as at the police station. He then states that by dawn the name of the accused were known to him. People of the village had visited the house of the accused where they found that the doors were closed and no one in their house were present. A search was made but they were not found. 21. He had then doubted about the safety of his grand father who had gone to Vikrampur Diyara which is two kilometers north from the village. He did not find his grand father who went missing and his whereabouts are not known till today. 22. A search was made but they were not found. 21. He had then doubted about the safety of his grand father who had gone to Vikrampur Diyara which is two kilometers north from the village. He did not find his grand father who went missing and his whereabouts are not known till today. 22. He then admits that all the other accused except Sitaram are of his family pedigree. He also admits that the appellant Ganesh had lodged a report against the deceased Ramnath and Sudama for arson under section 436 IPC in which they were on bail and that case is still continuing. He then describes the status of the body of the deceased and also narrates that when his father was shot, the Machan broke and there were blood stains on the bedding material. The place where the body of the deceased was lying is the main road. Very close by is the house of Guru Deen and Sahab Deen who had also arrived on the spot but after sometime they went back to sleep. He has stated that the place where his father was sleeping, there was no land of Sudama nearby. 23. He has then in the last part of his cross-examination stated that Bihari is the elder brother of the appellant Ganesh and is father of Uma Shanker. Shambhoo Nath is the son of the appellant Ganesh who was also accused in the case. He has categorically stated that the said two accused Uma Shanker and Shambhoo Nath were staying with Bihari at Shivpuri Chandanpura (Madhya Pradesh) between 6.11.2000 and 5.12.2000 and they were staying there with him. 24. He has then denied the suggestions made by the defence. 25. On a reading of the entire statement of P.W. 1 the first issue is about the presence of the said witness having actually seen all the four accused. He has categorically maintained the version in the FIR, in his examination-in-chief about the arrival of all the four accused and Shambhoo Nath and Uma Shanker waking his father up and then firing of the shot by Ganesh. This evidence stands materially contradicted with the witness admitting the presence of Uma Shanker and Shambhoo Nath in Madhya Pradesh on the date of the incident. This statement in the cross-examination came much before what was stated by the defence witness D.W. 1 Bihari later on. This evidence stands materially contradicted with the witness admitting the presence of Uma Shanker and Shambhoo Nath in Madhya Pradesh on the date of the incident. This statement in the cross-examination came much before what was stated by the defence witness D.W. 1 Bihari later on. This admission therefore is the best piece of evidence and is an admission as defined in terms of Section 17 of the Indian Evidence Act 1872. The fact in issue was about the presence and participation of all the four accused. P.W. 1 has categorically, without any inhibition in his cross-examination, admitted the fact of the other two accused being present in the State of M.P. on the date of incident. The said two co-accused Shambhoo Nath and Uma Shanker in their statement had also clearly indicated that they have been falsely implicated as on the date of the incident they were in the State of M.P. In the wake of the aforesaid evidence coming forth we find that the trial court was fully justified in accepting the said evidence to be correct and relying on the same has rightly proceeded to acquit the other two co-accused. 26. In this background the testimony of P.W. 1 has to be further seen where he implicates the appellant Sita Ram Giri of having exhorted the appellant Ganesh to shoot and also having surrounded the deceased along with Uma Shanker who has been acquitted. The appellant Sita Ram Giri in the same fashion is stated to be armed with a stick as Uma Shanker and Shambhoo Nath. He has not been assigned any different role nor any other overt act has been attributed to him. In the given circumstances Sita Ram Giri even though has not claimed any alibi or set up any defence except that he has been falsely implicated, we find that the trial court committed an error by segregating the case of Sita Ram Giri from that of Shambhoo Nath and Uma Shanker whose roles were similar and on the same set of facts, except that P.W. 1 had admitted their absence. The role assigned is that Sita Ram Giri joined with Uma Shanker in exhortation and surrounding the deceased. The role assigned is that Sita Ram Giri joined with Uma Shanker in exhortation and surrounding the deceased. If Uma Shanker was not present and has been extended the benefit of doubt then we do not find any other additional material or evidence on the basis where-of Sita Ram Giri's presence could be clinchingly established, inasmuch as, Sita Ram Giri being armed with a stick has not been indicated to have even attempted to cause any injury to the deceased. There is no such injury of stick on the body of the deceased as per the autopsy report. Consequently there is no material so as to connect the participation of Sita Ram Giri in the commission of the offence more so when he has been assigned the same role as Uma Shanker and Shambhoo Nath who have been extended the benefit of doubt. To the aforesaid extent we do not find the evidence of P.W. 1 to be credit-worthy in order to implicate Sita Ram Giri in the incident. 27. What we find is that P.W. 2 Maya Rajbhar has also parroted the same statement of having seen Sita Ram Giri and then the fleeing away with the aid of torch. There is no other indication or special or specific mention about the presence of Sita Ram Giri in his testimony. Similarly Rajeshwar P.W. 3 has also assigned the same role of exhortation but he has gone a step further to say that Sita Ram Giri was also armed with a country made pistol. This statement was not substantiated and rather stood contradicted by P.W. 3 himself who later on stated that the shot was fired by appellant Ganesh. Thus no role of firing was assigned to the appellant Sita Ram Giri and there is no recovery of any weapon on the pointing out of Sita Ram Giri. The testimony of P.W. 3 Rajeshwar also does not appear to be credit-worthy inasmuch as he changed the entire story of prosecution by stating that he was already present and that the assailants arrived after he had arrived. This has come in his cross-examination. This clearly contradicts what was stated by P.W. 1 and P.W. 2 namely that the other witnesses arrived after the incident. This has come in his cross-examination. This clearly contradicts what was stated by P.W. 1 and P.W. 2 namely that the other witnesses arrived after the incident. The testimony of P.W. 3 Rajeshwar therefore appears to be a clearly exaggerated version and a totally un-credit-worthy testimony that can be clearly jettisoned on account of the infirmities indicated above. 28. Coming to the testimony of P.W. 4 Sudama the same role as assigned by P.W. 1 to Sita Ram Giri has been narrated. No other indication has been shown so as to specify the manner of participation of the appellant Sita Ram Giri and consequently in the light of the aforesaid evidence which has been brought on record and without there being any recovery from the appellant Sita Ram Giri we find that the prosecution has not been able to prove the case beyond reasonable doubt to establish that Sita Ram Giri was found to have participated in the commission of the offence in which the appellant Ganesh was involved. 29. There is yet another reason to distinguish the case of accused Sita Ram namely that Sita Ram is not a family member or relative of the accused and is a stranger. He therefore neither has a motive nor his identity can be said to have been fully established in the manner in which the source of light has been depicted in the statement of the prosecution witness. In our opinion it may not have been possible for the witnesses to have recognized Sita Ram whom they did not know and who did not belong to the family of the other co-accused. He also belongs to a different village. In such circumstances the possibility of the recognition of Sita Ram being one of the assailants and having been identified at the dead of night does not appear to be a probability. The prosecution has not travelled beyond the stage of reasonable doubt to prove his participation. In the given circumstances we are therefore inclined to grant him the benefit of doubt in view of these distinguishing features. 30. However, coming to the case of Ganesh the fact remains that he is a member of the family and related to the deceased as per the relationship disclosed in the evidence which remains undisputed. In the given circumstances we are therefore inclined to grant him the benefit of doubt in view of these distinguishing features. 30. However, coming to the case of Ganesh the fact remains that he is a member of the family and related to the deceased as per the relationship disclosed in the evidence which remains undisputed. It is true that the question of motive is a double edged weapon but in the instant case the conflict of interest is evident keeping in view the litigation which had ensued between the parties and their involvement. In such circumstances the recognition of the appellant at the time of the incident has to be considered in the said background as the case of the other accused stood on a different footing as discussed hereinabove. We are of the view that so far as the recognition of a person who is closely known can be construed in view of the fact that, he being a member of the family, the pedigree whereof is not the disputed, even assuming for the sake of arguments that the flash of torch lights and the positioning of the lantern was not sufficient to reflect on his face, the law settled by the Apex Court in the case of State of U.P. Vs. Babu and others, (2003) 11 SCC 280 that the recognition of a known person can be construed by the gait of that person. Paragraph no.7 of the judgment is extracted herein under : "Apart from the mention about the torchlight, one important aspect which cannot be lost sight of and which is of relevance and great significance is that the accused persons are known to the witnesses. When the persons are known, identification is possible from the manner of speech, manner of walking and gesticulating and special features of a person like the physical attributes." 31. The ability to identify from a short distance has also been considered in the case of Kedar Singh Vs. State of Bihar, (1999) AIR SC 1481. 32. The fact that Ganesh is related to the deceased and the informant who was sleeping in a thatched hut, and who woke after the shot was fired, the possibility and rather the probability of his having recognized the appellant Ganesh can-not be entirely ruled out. State of Bihar, (1999) AIR SC 1481. 32. The fact that Ganesh is related to the deceased and the informant who was sleeping in a thatched hut, and who woke after the shot was fired, the possibility and rather the probability of his having recognized the appellant Ganesh can-not be entirely ruled out. The entire discussion hereinabove and the principles indicated in the decisions of the Supreme Court we find that while proceeding to analyze the demeanour of an ocular witness it is also pertinent to observe about the surrounding circumstances, the relation of the parties and the motive if any. 33. We have traversed the statement of all the four witnesses of fact who have deviated in substance and materially in relation to the other co-accused, but so far as the appellant Ganesh is concerned their testimony almost remains intact. For this we may also refer to the the variation in the statement of PW-3 Rajeshwar who even though stated that it was Sita Ram who was carrying the weapon of assault yet he again stated that it was Ganesh who fired the shot. In the above circumstances the consistency about the participation of the appellant Ganesh can not be ruled out and it can-not be construed to be a case of false implication. 34. It has been pointed out by the learned counsel that the discrepancy in the statements are such which do not fix the identity of the appellant Ganesh particularly in the statement of PW-1 where he has stated that he came to know the names of the assailants by dawn. The contention is that the manner in which the first information report was lodged after due consultation is evident from the statement of the witnesses which establishes that the written report was transcribed after due deliberations. He therefore contends that it is evident that even PW-1 has not seen the appellant, and it is only after the occurrence of the incident that on account of previous enmity, the appellant Ganesh was implicated. 35. We are unable to accept this submission for the simple reason that the appellant Ganesh is the only person who is stated to have been involved in the litigation with the deceased. 35. We are unable to accept this submission for the simple reason that the appellant Ganesh is the only person who is stated to have been involved in the litigation with the deceased. Apart from the veiled motive, with proof of existence of a dispute arising out of possession of some land that has been brought on record, we find it difficult to discard the theory of motive in so far as the case of appellant Ganesh is concerned. The scribing of the first information report after consultation and the fact that by dawn they had known the names of the assailants is an expression confirming what had been witnessed in the night. Merely because they concluded at dawn about the presence of the accused, we find that this was before the lodging of the first information report and is not an introduction or improvement either in the evidence or anywhere through out the trial. The dispute about the source of light raised on behalf of the appellant cannot be a ground to disbelieve the prosecution story, inasmuch as, the lantern was very much present and has been testified to have been recovered from the same place by the Investigating Officer. The question of it being hung outside has also been stated by PW-1 who at one place had said that the lantern was inside. There was a source of light and this in our opinion was sufficient for recognizing the gait of the appellant Ganesh who was a member of the family and related to the informant. This is coupled by the recovery of the assault weapon which has also been proved. The participation and the allegations against the Ganesh therefore in our opinion remain intact. The prosecution has thus proved the case beyond reasonable doubt as observed by the Division Bench while dealing with the issue as to what are reasonable doubt Krishna Pal & Another Vs. State of U.P., (2018) 3 AllLJ 122 in paragraph nos. 41 to 46. Applying the said principles on the facts of the present case, we do not find any room for any doubt much less a reasonable doubt so as to extend any benefit to the appellant Ganesh. 36. For all the aforesaid reasons we partly allow the appeal and set aside the conviction and sentencing of appellant Sita Ram who is stated to be on bail. 36. For all the aforesaid reasons we partly allow the appeal and set aside the conviction and sentencing of appellant Sita Ram who is stated to be on bail. The impugned judgment dated 28.02.2011 of the trial court is set side to the said extent. His bail bonds shall stand discharged subject to the provisions of Section 437-A Cr.P.C. 37. We dismiss the appeal in so far as appellant Ganesh is concerned and confirm the conviction and sentence awarded to him by the trial court. 38. The appeal stands partly allowed.