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2018 DIGILAW 883 (ALL)

SANTOSH MISHRA v. STATE OF U. P.

2018-04-12

UMESH CHANDRA TRIPATHI

body2018
JUDGMENT : Hon'ble Umesh Chandra Tripathi,J. By way of instant criminal appeal, the appellant has challenged the legality and sustainability of the judgment and order dated 20.08.2002 passed by Sessions Judge, Ballia in S.T. No. 432 of 1997 (State v. Kailash Mishra & others), whereby the appellant - Santosh Mishra was convicted under Section 304 Part II of the Indian Penal Code (hereinafter referred to as 'IPC') and sentenced to rigorous imprisonment for five years and fine of Rs. 10,000/- and in case of default in payment of fine, one year's additional rigorous imprisonment has to be undergone. 2. By the impugned judgment and order, the appellant was acquitted of the offences punishable under Section 323/34 IPC. 3. Facts of the case, in brief, as discernible from perusal of record, are that on 20.07.1996 at about 01.00 P.M., while Tej Bahadur Mishra, nephew of informant Sarvdev Mishra was levelling the path (chak road) which led to his tube well, accused-appellant Santosh Mishra having a 'fawda' (spade) and co-accused Kailash Mishra having a 'lathi' (wooden stick) came on the spot and told Tej Bahadur Mishra not to level the road. On this, Tej Bahadur Mishra resisted and said that the said road is being used by him frequently and they have no right to stop him from levelling it. This led to accused-appellant Santosh Mishra and co-accused Kailash Mishra getting infuriated. Santosh Mishra assaulted Tej Bahadur Mishra on his head with his 'fawda' and Kailash Mishra assaulted on the right side of his chest, due to which he fell on the ground and became unconscious. When his mother Smt. Vimlawati Devi came on the spot to rescue him, co-accused Kailash Mishra also inflicted wounds on her. On alarm being raised, Kuber, Ramprasad Tiwari (relative of informant) of village Maniyar, Tiwari ka Pura, Police Station - Rasda and others reached the spot and saw the occurrence. Informant Sardev Mishra and other people took injured Tej Bahadur Mishra to Government Hospital, Rasda for treatment. It was request that report be lodged and action be taken. The written report is on record and the same is marked as Ex.Ka.1. 4. Informant Sardev Mishra and other people took injured Tej Bahadur Mishra to Government Hospital, Rasda for treatment. It was request that report be lodged and action be taken. The written report is on record and the same is marked as Ex.Ka.1. 4. Contents of written report were taken down in the chik FIR (Ex.Ka.6) at Case Crime No. 238 of 1996 under Section 308/323 IPC at Police Station - Rasda, District - Ballia on 20.07.1996 at 04.05 P.M. The FIR is on record and the same is marked as Ex.Ka.6. On the basis of entry so made in the FIR, relevant entry was made in the General Diary and a case was registered against the accused at the aforesaid case crime number under the aforesaid section. The carbon copy of G.D. is on record and the same is marked as Ex.Ka.7. 5. Injured Tej Bahadur Mishra was medically examined by Dr. Satya Prakash at Community Health Centre, P.S. - Rasda, District - Ballia on 20.07.1996 at about 03.30 P.M., wherein the following injuries were found on his person : 1. A lacerated wound 7.0 cm. x 1.0 cm. x bone deep present over middle of scalp. lacerated margins. bleeding present. Advised - x-ray skull AP and lateral view. 2. A traumatic swelling 5.0 cm. x 2.5 cm. present over right side of chest situated 11.0 cm. below the right nipple. tenderness present. Advised - x-ray chest AP view. 6. General condition : very poor, pupil B/c semi dilated, not responding to painful stimuli. 7. Opinion : Injury no. 1 & 2 was kept under observation. Both injuries are caused by some hard and blunt object. Duration fresh. 8. The injury report is on record and the same is marked as Ex.Ka.3. 9. Thereafter, the injured was referred to District Hospital for x-ray and further management. 10. In the meanwhile, on 20.07.1996 at 04.15 P.M., a memo from Community Health Center, Rasda, District - Ballia was received with the information that injured Tej Bahadur Mishra has become unconscious due to injuries caused and that his condition is very severe. He be sent to some other hospital immediately for further treatment. The letter is on record and the same is marked as Ex.Ka.4. 11. He be sent to some other hospital immediately for further treatment. The letter is on record and the same is marked as Ex.Ka.4. 11. After some time at about 07.45 P.M., another memo was received from C.H.C., Rasda, District - Ballia with the information that while injured Tej Bahadur Mishra was taken to Mau by jeep, it was found by the jeep driver that Tej Bahadur Mishra has died. Thereafter, he took back the dead body of deceased Tej Bahadur Mishra and left it in the premises of CHC, Rasda. The dead body was lying unclaimed in the premises of CHC. The letter is on record and the same is marked as Ex.Ka.5. 12. On information so received, the Investigating Officer reached on the spot and took the dead body of deceased Tej Bahadur Mishra in his possession. Thereafter, he prepared inquest report 'panchayatnama' (inquest report), sealed the dead body and send it for post mortem examination. The 'panchyatnama' is on record and the same is marked as Ex.Ka.11. The sample seal is also on record and the same is marked as Ex.Ka.14. Thereafter, he recorded statement of witnesses, inspected the place of occurrence and prepared its site plan. The site plan is on record and the same is marked as Ex.Ka.10. 13. On the next day, i.e. 21.07.1996, at about 02.00 P.M. accused Kailash Mishra was caught by the police and on his pointing out, the weapons alleged to have been used in the crime - 'kudal/fawda' and 'lathi' were recovered from his 'bhoosa ghar' (a room in which stock of animal fodder is kept). Thereafter, the I.O. prepared recovery memo and site plan of the place of recovery. The recovery memo of 'fawda' and 'lathi' is on record and the same is marked as Ex.Ka.16. The site plan is also on record and the same is marked as Ex.Ka.17. Thereafter, he also prepared other relevant documents, viz. - photo nash (Ex.Ka.12), police form 13 (Ex.Ka.13) and memo of blood-stained earth sample (Ex.Ka.15). Thereafter, he send injured Smt. Vimlawati Devi, mother of deceased Tej Bahadur Mishra to District Hospital, Rasda for medical examination of injuries caused to her. The I.O. then prepared injury memo of injured Smt. Vimlawati Devi. 14. Thereafter, he also prepared other relevant documents, viz. - photo nash (Ex.Ka.12), police form 13 (Ex.Ka.13) and memo of blood-stained earth sample (Ex.Ka.15). Thereafter, he send injured Smt. Vimlawati Devi, mother of deceased Tej Bahadur Mishra to District Hospital, Rasda for medical examination of injuries caused to her. The I.O. then prepared injury memo of injured Smt. Vimlawati Devi. 14. On the other hand, post mortem on the cadaver of deceased Tej Bahadur Mishra was conducted on 21.07.1996 at about 03.30 P.M. at District Hospital, District - Ballia by Dr. Vijay Bahadur Singh, who noted the following ante mortem injury on the person of the deceased : 1. Incised wound 10.00 cm. x 1.00 cm. x bone deep on the head 16.00 cm. above Rt. Ear. After removing the six stitches which was applied on the wound and open the wound, found Haematoma just below the wound, compound depressed fracture of Rt. parital bone. 15. Opinion : In the opinion of doctor, cause of death is shock and haemorrhage as a result of ante-mortem injury. 16. The post mortem report is on record and the same is marked as Ex.Ka.2. 17. Injured Smt. Vimlawati Devi was medically examined by Dr. S.K. Singh at CHC, Rasda on 21.07.1996 at 09.45 A.M., wherein the following injuries were found on her person : 1. Traumatic swelling 4 cm. x 2 cm. on left posterior part of skull, situated 7 cm. above left ear. tinder. 2. Traumatic swelling 5 cm. x 2 cm. on palmar surface of right hand above root of thumb, reddish black in colour. 18. Opinion : All injuries are simple in nature, about one day old and caused by some hard blunt object. 19. The injury report of injured Smt. Vimlawati Devi is on record and the same is marked as Ex.Ka.19. 20. After completion of investigation and other formalities, the police submitted charge-sheet against accused-appellant Santosh Mishra and co-accused Kailash Mishra under Section 304/323 IPC. The charge-sheet is on record and the same is marked as Ex.Ka.18. 21. Pursuant thereto, committal proceedings took place and the case was committed to the Court of Sessions. As a sequel to that, it was made over for trial and disposal to the court of Sessions Judge, Ballia. The charge-sheet is on record and the same is marked as Ex.Ka.18. 21. Pursuant thereto, committal proceedings took place and the case was committed to the Court of Sessions. As a sequel to that, it was made over for trial and disposal to the court of Sessions Judge, Ballia. Accused were heard on point of charge and the trial court was prima facie satisfied with the case against them, therefore, it framed charges against them under Section 304 Part ii/34 IPC. Charge was read over and explained to the accused, who pleaded not guilty and claimed to be tried. 22. During trial, co-accused Kailash Mishra died, due to which case in his reference was abated by the trial court. 23. The prosecution in order to prove guilt of the accused examined P.W.1 informant Sarvdev Mishra and P.W.2 Smt. Vimlawati Devi (witnesses of fact), P.W.3 Dr. Vijay Bahadur Singh, P.W.4 Dr. Satya Prakash, P.W.5 Head Constable Jaishankar Singh, P.W.6 Sub-Inspector Lal Bahadur Malviya and P.W.7 Pharmacist Shailesh Kumar Singh, CHC, Rasda (formal witneses) as prosecution witnesses. 24. Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and statement of the accused-appellant was recorded under Section 313 of Code of Criminal Procedure, wherein, he claimed to have been falsely implicated in this case due to enmity. He deposed that deceased Tej Bahadur Mishra had fallen into the pit of tube well, due to which he sustained injury and died, while injuries of Smt. Vimlawati Devi are false and fabricated. 25. In turn, the defence did not lead any evidence, either oral or documentary. 26. Learned trial Judge after considering the case on its merit passed aforesaid finding of conviction and passed the impugned judgement and order. 27. Consequently, this appeal. 28. Heard at length the arguments advanced by Sri Kameshwar Singh, learned counsel for the appellant and Sri L.D. Rajbhar, learned Additional Government Advocate for the State of Uttar Pradesh. 29. Learned counsel for the appellant contended that P.W.1 informant Sarvdev Mishra and P.W.2 Vimlawati Devi are inimical to the appellant Santosh Mishra and relative of the deceased. There are material contradictions in their statement. Without properly appreciating the material brought on record, the learned trial court has passed the impugned order, which is not sustainable. 30. 29. Learned counsel for the appellant contended that P.W.1 informant Sarvdev Mishra and P.W.2 Vimlawati Devi are inimical to the appellant Santosh Mishra and relative of the deceased. There are material contradictions in their statement. Without properly appreciating the material brought on record, the learned trial court has passed the impugned order, which is not sustainable. 30. Apart from arguing on the merits of the case, learned counsel for the appellant contended that informant P.W.1 Sarvdev Mishra, P.W.2 injured Vimlawati Devi, deceased Tej Bahadur Mishra and appellant Santosh Mishra belong to the same family. The occurrence had taken place about 22 years ago. Therefore, lenient view should be adopted and the sentence of the appellant should be reduced to the period already undergone by him. 31. Per contra, learned A.G.A. has opposed the arguments advanced by learned counsel for the appellant and contended that there is no illegality or infirmity in the impugned order. The learned trial court has passed the impugned order after carefully scrutinizing the evidence material brought on record and hence, the same is liable to be upheld. 32. P.W.2 Smt. Vimlawati Devi is injured witness. She has sustained two injuries. First injury is on left posterior part of her skull. Nature of injuries shows that these injuries are not self-inflicted, but caused by some other person. Therefore, presence of Smt. Vimlawati Devi on the spot cannot be doubted. 33. P.W. Smt. Vimlawati Devi had put her thumb impression on her statement before court, which shows that she in an illiterate lady belonging to village. She has described the incident in a very natural manner. There is no material contradiction in her statement. P.W.1 informant Sarvdev Mishra and P.W.2 Smt. Vimlawati Devi have specifically stated before court that at the time of occurrence, deceased Tej Bahadur Mishra was levelling chak road, which led to his tube well. At that time, accused-appellant Santosh Mishra and co-accused Kailash Mishra came there and asked Tej Bahadur Mishra not to do so. On denial by Tej Bahadur Mishra, the accused got enraged and assaulted him, which later on due resulted into his death. There is no material contradiction in their statement about this point, on the basis of which their testimony may be discarded. Moreover, their statement is supported by medical evidence. 34. Smt. Vimlawati Devi is an injured witness and she is mother of the deceased. There is no material contradiction in their statement about this point, on the basis of which their testimony may be discarded. Moreover, their statement is supported by medical evidence. 34. Smt. Vimlawati Devi is an injured witness and she is mother of the deceased. It is not possible for her to conceal the actual culprit and make false allegations against innocent persons, as alleged by the accused. In Gangadhar Behera & Ors. v. State of Orissa, (2002) 8 SCC 381 , Hon'ble Apex Court held as follows :- ......Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. In Dalip Singh and Ors. v. The State of Punjab, AIR 1953 SC 364 it has been laid down as under:- "A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan, 1974 (3) SCC 698 in which Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 was also relied upon. There is no such general rule. Each case must be limited to and be governed by its own facts." The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan, 1974 (3) SCC 698 in which Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 was also relied upon. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: "We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in 'Rameshwar v. State of Rajasthan', AIR 1952 SC 54 at p.59. We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel." Again in Masalti and Ors. v. State of U.P., AIR 1965 SC 202 this Court observed: (p, 209-210 para 14): "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.......The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." 35. In this case, the independent witnesses were not examined. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." 35. In this case, the independent witnesses were not examined. In the present social scenario, people refrain from going to police stations, courts, hospitals, etc. due to fear of insult, harassment and threat to life. For example, if a person meets with an accident and gets seriously injured, then no one will show courtesy and take him to hospital to save his life, just because of the fear of him being interrogated and examined as a witness. Similarly, if a person witnesses a murder, he will never go to police station and state that he has witnessed a murder, just for the simple reason that he fears that deposing against the murderer would endanger his life. It is human nature not to depose against a culprit to avoid enmity with him. In the present social perspective, it is least possible that a third person deposes against the culprit. In the present case, two witnesses of fact have proved the prosecution version. Conviction may be based on single reliable witness. 36. In Lallu Manjhi & Anr v. State of Jharkhand, (2003) 2 SCC 401 , Hon'ble Apex Court held that : The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness. 37. P.W.2 Smt. Vimlawati Devi has admitted in her statement that on the date of the occurrence, plantation of 'dhaan' (paddy crop) was going on. Later on, she made a contradictory statement that on the date of the occurrence, no plantation of paddy crop was going on. 37. P.W.2 Smt. Vimlawati Devi has admitted in her statement that on the date of the occurrence, plantation of 'dhaan' (paddy crop) was going on. Later on, she made a contradictory statement that on the date of the occurrence, no plantation of paddy crop was going on. On the basis of this contradiction, learned counsel for the appellant contended that Smt. Vimlawati Devi is not a wholly reliable witness. Here it must be noted that Smt. Vimlawati Devi is an illiterate lady belonging to village. The fact, whether on the date of the occurrence, paddy crop was planted or not, is not material for arriving at conclusion in this case. On the basis of this minor contradiction, it cannot be said that Smt. Vimlawati Devi is not a reliable witness. Evidence should be appreciated having regard the real situation of life and environment. 38. In Gangadhar's case (supra), Hon'ble Apex Court observed that : Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Alli v. The State of Uttar Pradesh, AIR 1957 SC 366 ). The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Alli v. The State of Uttar Pradesh, AIR 1957 SC 366 ). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurucharan Singh and Anr. v. State of Punjab, AIR 1956 SC 460 ). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh, 1972 3 SCC 751 ) and Ugar Ahir and Ors. v. The State of Bihar, AIR 1965 SC 277 . An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. (See Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh, 1972 3 SCC 751 ) and Ugar Ahir and Ors. v. The State of Bihar, AIR 1965 SC 277 . An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh, AIR 1954 SC 15 and Balaka Singh and Ors. v. The State of Punjab, AIR 1975 SC 1962 . As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr., AIR 1981 SC 1390 , normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. 39. After going through the materials brought on record and the impugned judgment and order of court below and also in the light of observations made by Hon'ble Apex Court in various cases, I am of the considered view that there is no illegality or infirmity in the well-reasoned and well-observed order of conviction passed by learned trial court against the appellant. 40. P.W.1 informant Sarvdev Mishra has admitted this fact that Kailash Mishra and Chotey Lal Mishra, father of deceased Tej Bahadur Mishra are his real brothers and deceased Tej Bahadur Mishra was the grandson of accused Kailash Mishra. This shows that P.W.1 informant Sarvdev Mishra, deceased Tej Bahadur Mishra and accused-appellant Santosh Mishra belong to the same family. The occurrence had taken place 22 years ago. This shows that P.W.1 informant Sarvdev Mishra, deceased Tej Bahadur Mishra and accused-appellant Santosh Mishra belong to the same family. The occurrence had taken place 22 years ago. In the peculiar facts and circumstances of the case, ends of justice would meet if the sentence awarded to the appellant is reduced from rigorous imprisonment for five years to rigorous imprisonment for two years. 41. Resultanly, the instant appeal is allowed in part. Conviction of appellant - Santosh Mishra under Section 304 Part II IPC passed by Sessions Judge, Ballia is hereby upheld, but the sentence is reduced. The appellant is sentenced to rigorous imprisonment for two years and pay fine of Rs. 10,000/- and in case of default in payment of fine, further rigorous imprisonment for six months will have to be undergone by him. If the appellant deposits the amount of fine, the same shall be paid to the legal heirs of deceased Tej Bahadur Mishra. 42. Appellant Santosh Mishra is on bail. He shall be taken into custody forthwith and send to jail to serve out the remaining part of the sentence awarded to him. His bail bonds stand cancelled. 43. Office is directed to send a certified copy of this order to Sessions Judge, Ballia for necessary compliance. Let the lower court's record be remitted back to the court concerned.