Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 767 (ALL)

BANSH LAL v. STATE OF U. P.

2018-04-02

A.P.SHAI, RAJEEV MISRA

body2018
JUDGMENT : 1. The appellants Bansh Lal his son Pramod alias Deepu have been convicted under Section 302 read with Section 34 IPC in Session Trial No. 347 of 2010 arising out of Case Crime No. 121 of 2010 under Sections 147, 148, 149 and 302 IPC, Police Station- Chaubeypur, District- Kanpur Nagar. They have been awarded the sentence of life imprisonment coupled with Rs.20,000/- fine each. In the event of non-payment of fine, an additional six months imprisonment has been directed to be undergone for default. 2. The FIR was lodged on a written report which is Exhibit ka-1 tendered by Sri Santosh Pal, the informant and PW-1 in this case. 3. It is narrated therein that some time before about 1-1/2 years back the appellant Bansh Lal alongwith his sons had assaulted his brother Rakesh who had received a gun shot injury and his mother had sustained injuries. In a cross case of the same incident, one Raju Pal had died in which Santosh Pal and his brothers had been sent to jail. After having being released on bail in the said incident, the informant and his brothers had given up their residence in the village on account of fear and they now reside at the house near their tubewell. They used to have meals that were brought by the brother-in-law of the informant Deepu. 4. On account of this old enmity on 14th May, 2010 between 20-20:30 hours when the brother-in-law of the informant, Deepu son of Ram Babu was returning after delivering meals to them, they heard shouts of Deepu trying to save himself. The informant and his brother Rakesh with the aid of a torch light ran towards the gate. As soon as they reached the gate they saw Bansh lal and Pramod and their associates Rajendra, Awadesh and Harish Chandra together with Ramesh and Rinku armed with weapons who were hiding behind the boundary wall, exhorted and together caught hold of Rakesh, the brother of the informant, whereupon the appellant Pramod alias Deepu shot a fire from a country-made pistol that was carried by him right into the body of Rakesh once hit in his abdomen. The said incident was witnessed by Raja Ram alias Bhoora and others. There was a gas lantern burning in the light of which the entire occurrence was seen. 5. The said incident was witnessed by Raja Ram alias Bhoora and others. There was a gas lantern burning in the light of which the entire occurrence was seen. 5. The informant immediately took the deceased to Kulwanti Hospital, Kakadev whereupon admitting him, he came straightaway to the police station to lodge the FIR. The FIR was lodged under Section 307 IPC, at this stage together with Sections 147, 148 and 149 IPC against seven persons including the two appellants. On the death of Rakesh Pal, the case was converted into Section 302 IPC. The accused in two sets surrendered before the Court and their separate charge-sheets were filed being Exhibit Ka-7 and Exhibit Ka-8. They were accordingly committed to the sessions court and both the Session Trial Nos. 347 of 2010 and 164 of 2011 arising out of the same case crime number were tried together. 6. The prosecution story as unfolded was that Raju Pal, son of Bansh lal, had been murdered in which the first informant, Santosh Pal and his brother Raju pal in which there was cross case and this resulted in an existing past enmity. It is for this reason that the informant had left the village and had started living at their tube-well making a separate residence. Every evening at about 7:00 pm food was brought to them by the brother-in-law of the informant Deepu, and as usual Deepu had come on the fatal day at about 8:00 pm. When he was returning back at about 8:30 pm he was assaulted, whereupon he raised cries to save himself. On hearing this hue and cry, the informant and his brother Rakesh with the aid of a torch and the gas lantern which was burning witnessed the incident and as indicated above, other villagers also arrived on the scene including Raja Ram alias Bhoora. The assailants ran away from the scene after having assaulted Deepu whereafter they went to the Hospital and got him admitted in a serious condition at about 10:00 pm. 7. Raja Ram was examined as PW-2 who stated about the incident that when he was returning home from his agricultural field, he saw that the accused had caught hold of Deepu who was returning after delivering meals but after having seen Rakesh, brother of informant, they caught hold of him and he was shot by Pramod alias Deepu. 7. Raja Ram was examined as PW-2 who stated about the incident that when he was returning home from his agricultural field, he saw that the accused had caught hold of Deepu who was returning after delivering meals but after having seen Rakesh, brother of informant, they caught hold of him and he was shot by Pramod alias Deepu. This was also witnessed by Shahjad Ali and Devideen who arrived on the spot at that time and saw the assailants running away. 8. PW-3, Dhirendra Kumar Saxena, the doctor who had carried out the post mortem was examined and gave his opinion that the gun shot injury caused haemorrhage and shock which led to the death of the deceased. He had died at about 4:00 am in the morning on 15.05.2010 i.e. in the early morning hours in which he had been shot. This was proved by him through Paper No. 5 and the post mortem report was prepared which is Exhibit Ka-2. 9. The scribe of the FIR, Ved Prakash Dubey was examined as PW-4 who proved the FIR as Exhibit Ka-3 and the GD pertaining to the same as Exhibit Ka-4. 10. PW-5 is Umesh Pal, brother of Rakesh who is also a witness to the alleged recovery of the country-made pistol. He has also witnessed the inquest report that was prepared where he had also put his signatures. 11. PW-6 is Deepu, the brother-in-law of the informant who stated that the past enmity was the cause of all these troubles and the incident is of about 8:30 pm when he was returning back after having given the tiffin to his in-laws. He also supported the prosecution story. 12. PW-7, is the Sub-Inspector of Police, Raj Pal Singh who investigated the case and prepared the site plan which was proved by him as Exhibit ka-5. He also made the recovery of the country-made gun of 12 bore which was the subject matter of a recovery memo filed as Exhibit Ka-6 that was also proved by him. On his directions, the Sub-Inspector of Police, Kiran Pal Singh prepared the inquest report and the body had been sent for post mortem after having enhanced the section in which the case was to be investigated after the death of the deceased. 13. On his directions, the Sub-Inspector of Police, Kiran Pal Singh prepared the inquest report and the body had been sent for post mortem after having enhanced the section in which the case was to be investigated after the death of the deceased. 13. PW-8 is the Station House Officer, Ajay Pal Singh of the Police Station who has tendered the charge-sheet and prove it as Exhibit Ka-7 and he also proved the preparation of the inquest report by Kiran Pal Singh as well as the other documents as Exhibit Ka-9 and Exhibit Ka-13 which is the dispatch descriptive roll of the body and also the sealing of the body. 14. After the prosecution witnesses had been examined, the accused got their statements recorded under Section 313 Cr.P.C. denying the entire incident and stating that they had been falsely implicated on account of previous enmity. They also got examined Ram Vilas as DW-1 who is the record keeper of Kulwanti Hospital and Research Centre where the deceased had been admitted. The timing of the admission at 10:10 pm and his death had occured at about 04:10 am was proved by him. Accordingly to the case sheet maintained in the hospital, the deceased had been admitted through one Umesh and Santosh. The same was proved by him as Exhibit Kha-1. It was also testified by him that one Raghunath Pal's name was endorsed on the reverse side of the said document stating that he is the brother-in-law of the deceased. 15. One of the initial arguments advanced by the defence is that the FIR was prepared later on, as the information about the death of the deceased as maintained in the Hospital record does not indicate the lodging of the First Information Report. 16. There were discrepancies between the eye witness account and the medical evidence and that the statements given to the police had been clearly contradicted while deposing before the Court. 17. The witnesses of fact are interested and partisan witnesses being related to the deceased and they are not the eye witnesses of the incident. In view of various discrepancies that were pointed out in the statements, it was urged that the accused had been falsely implicated and deserve acquittal. 18. 17. The witnesses of fact are interested and partisan witnesses being related to the deceased and they are not the eye witnesses of the incident. In view of various discrepancies that were pointed out in the statements, it was urged that the accused had been falsely implicated and deserve acquittal. 18. The trial Court proceeded to analyze the arguments and held that the inquest report and cause of death indicated therein is only to ascertain as to whether the death was unnatural, and if so, whether it was homicidal or otherwise. The same is not a detail about the manner of the occurence or other details relating thereto including, the name of the assailants or the manner of assault. It is, therefore, not substantive evidence, and therefore any such omission in the inquest report cannot establish that the FIR had not been lodged. The FIR had been lodged and it has been proved by the scribes and the witnesses. The FIR was lodged at about 10:00 pm on the written report of PW-1, Santosh Pal. This was further corroborated by PW-4, the Clerk Constable Vedh Prakash Dubey who in his cross-examination has categorically indicated that the written report had been brought by the first informant which was in his hand writing. He proved that he had prepared the check FIR on the directions of the Station House Officer and he denied having prepared the FIR otherwise. 19. We have assessed the submissions with regard to the timing of the FIR, and we do not find any such discrepancy in the evidence as urged by the learned counsel so as to arrive at the conclusion that the FIR had not been timed appropriately or had been written much after the inquest report. 20. Learned counsel for the appellants urged that the allegations about the presence of a gas light on the scene and the source of light being available to identify the assailants is also incorrect and belies the statement of PW-1 who is alleged to have seen the occurence. It is urged that the presence of Umesh Pal is also noted there but he was not brought in the witness box. The aforesaid argument does not in any way demolish the prosecution story, inasmuch as, the eye witness account is consistent in this regard. It is urged that the presence of Umesh Pal is also noted there but he was not brought in the witness box. The aforesaid argument does not in any way demolish the prosecution story, inasmuch as, the eye witness account is consistent in this regard. PW-2, Raja Ram has corroborated this by his statement and he has stated that PW-1 was carrying a three cell torch and there was a gas lantern available and in the said light, he had clearly seen the assailant Pramod alias Deepu having shot Rakesh which ultimately became fatal. His statement under Section 161 was also put to him which was explained by him and also stated that if the Investigating Officer has not recorded any part of his statement or has omitted to do so, he cannot give any reason for the same. 21. PW-6, Deepu is the main eye witness who was returning back after delivering the meals when this incident occured. He was cross-examined on every point. His statement does not waiver, and therefore the learned counsel for the appellant vehemently urged that he being an interested witness and a partisan witness, should be discarded. The question as to whether the person is an interested witness came to be considered in the case of Gangabhavani (infra) wherein it was held that merely because one is related to the deceased, the same does not discredit his evidence, as a related witness and is not always an interested witness. Nonetheless, the nature of the enmity that existed and the incident which has occured near the household of the boundary wall, the only natural witnesses would obviously be the members of the family but here the same is also corroborated by the evidence of an independent witness Raju Ram, PW-2 as indicated above. The argument also stands negatived in view of the law propounded on this issue by the Apex Court in the case of Gangabhavani Vs. Rayapati Venkat Reddy & Others 2013 (15) SCC 298 , paragraph nos. 11 to 14 of the judgment are relevant for the controversy in hand and are extracted hereinunder:- "11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. 11 to 14 of the judgment are relevant for the controversy in hand and are extracted hereinunder:- "11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent,credible and trustworthy, it can, and certainly should, be relied upon. (Vide: Bhagaloo Lodh and Anr. v. State of Uttar Pradesh MANU/SC/0700/2011 : AIR 2011 SC 2292 ; and Dhari and Ors. v. State of Uttar Pradesh MANU/SC/0848/2012 : AIR 2013 SC 308 ). 12. In State of Rajasthan v. Smt. Kalki and Anr. MANU/SC/0254/1981 : AIR 1981 SC 1390 , this Court held: 5A. As mentioned above the High Court has declined to rely on the evidence of P.W. 1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased"......For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True it is she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W. 1 had no interest in protecting the real culprit, and falsely implicating the Respondents. (See also: Chakali Maddilety and Ors. v. State of A.P. MANU/SC/0609/2010 : AIR 2010 SC 3473 ). 13. In Sachchey Lal Tiwari v. State of Uttar Pradesh MANU/SC/0865/2004 : AIR 2004 SC 5039 , while dealing with the case this Court held: 7....Murders are not committed with previous notice to witnesses; soliciting their presence. (See also: Chakali Maddilety and Ors. v. State of A.P. MANU/SC/0609/2010 : AIR 2010 SC 3473 ). 13. In Sachchey Lal Tiwari v. State of Uttar Pradesh MANU/SC/0865/2004 : AIR 2004 SC 5039 , while dealing with the case this Court held: 7....Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence." 14. In view of the above, it can safely be held that natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased." 22. It may be put on record that merely because there are some errors in the minute details, the same cannot be detrimental to the case of the prosecution. 23. The argument of the learned counsel for the appellants that the details of the incident were not mentioned in the FIR including the scuffle that preceded the alleged firing of the shot. It is settled law that the narration in the FIR is not to be construed like an encyclopedia of the entire incident vide Manoj @ Bhau & Others Vs. State of Maharashtra reported in 1999 (4) SCC 268 and Subhash Kumar Vs. State of Uttrakhand reported in 2009 (6) SCC 641 . It is settled law that the narration in the FIR is not to be construed like an encyclopedia of the entire incident vide Manoj @ Bhau & Others Vs. State of Maharashtra reported in 1999 (4) SCC 268 and Subhash Kumar Vs. State of Uttrakhand reported in 2009 (6) SCC 641 . The presence of the accused to the extent that the story can be believed can be culled out, and if there is any doubt about any of the other accused being present then the Court would be justified in acquitting those who have not been found to be involved in the incident and convicting those about whom evidence is brought on record. The trial court, in our opinion, therefore has rightly proceeded to construe that the source of light stood proved, even if the torch cell had not been recovered or the gas lantern had not made an exhibit. The placing of the gas lantern at about 10 paces away over a mound of boulders has been proved as per the statement of PW-1 in his examination-in-chief on 16.01.2012 even though during cross examination on 04.06.2012 he stated that this information of source of light had not been stated before the I.O. PW-2, Raju Ram has also testified the existence of a gas lantern and the presence of a torch. PW-6 has also supported this version. 24. We agree with the findings of the trial court to the effect that even though the other accused are alleged to have been present and are stated to have been armed with the weapons, yet keeping in view the nature of the single shot injury on the deceased and there being no assault having been attributed to the other co-accused, the trial court was justified in acquitting the others and recording a conviction as against the present appellants. The prosecution has failed to prove the involvement of the other accused, and consequently we find that the findings recorded by the trial court in respect of the other accused apart from the appellants does not come to the aid and advantage of the appellants who have been actually found in attempting the assault and being directly involved in the commission of the offence. The trial court was also justified in coming to the conclusion that there was no such meeting of minds established from the evidence on record. The trial court was also justified in coming to the conclusion that there was no such meeting of minds established from the evidence on record. The evidence on record also does not indicate that all the accused had joined together on the spot with the common intention of committing the offence of murder of the deceased. 25. In the above background, we do not find any error in the appreciation of evidence by the learned trial court and arriving at the conclusion of convicting the appellants and acquitting the other accused. There being no cross appeal having been filed atleast to our knowledge, we find no justification even otherwise to take a different view from that of the trial court. 26. The appeal lacks merit, and is, accordingly dismissed. 27. The appellant Bansh lal is on bail. His bail bonds are cancelled and the sureties discharged. The accused appellant Bansh lal shall be taken into custody forthwith and sent to jail to serve out the sentence awarded to him. The appellant no. 2 Pramod alias Deepu is in jail. He shall remain in custody to serve out the setence awarded by the trial court. 28. A copy of this order be sent to the CJM, Kanpur in advance for necessary action.