TaxTMI 
TaxTMI 
2023 (7) TMI 102
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....dated 26.09.2014, passed by the Additional Sessions Judge, Court No.01, Ghazipur in Sessions Trial No. 140 of 2006, arising out of Case Crime No. 493 of 2005, under Sections 302, 506 IPC, Police Station Muhammadabad, District Ghazipur; whereby they have been sentenced to life imprisonment alongwith fine of Rs. 10000/- coupled with a default sentence of one year imprisonment, under Section 302 r/w 34 IPC and under Section 506 IPC, five years imprisonment alongwith fine of Rs. 5000/- coupled with a default sentence of six months, each. All the sentences are directed to run concurrently. 3. Accused appellants have been convicted and sentenced for the murder of Rajendra Rai (hereinafter referred to as the 'deceased') in the morning hours on 27.6.2005. A written report was made in respect of the incident by the father of the deceased namely Kapil Dev Rai. This written report was scribed by Rakesh Kumar Rai, who happens to be the son of the deceased. The written report states that the informant's son Rajendra Rai is an active member of political party (we deem it appropriate to avoid referring the name of party as it has no relevance for the matter in issue) and as the Zila Panchayat ....
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....ce of incident (roof of the house of Shiv Kumar Yadav) and kept in separate boxes. A recovery memo in that regard has been prepared, which is duly exhibited as Ext.Ka-2. Four empties alongwith two pellets were also recovered from the place of occurrence, in respect of which also the memo of recovery is prepared and exhibited as Ext.Ka.3. 5. Inquest proceedings were then conducted at the place of occurrence and the inquest report has been duly exhibited as Ext.Ka.9. As per the inquest report, the information of crime was received at the police station at 7.40 a.m. on the date of incident i.e. 27.6.2005 and the inquest began at 8.15. Information in respect of incident was received from Kapil Dev Rai (first informant). The inquest concluded at 10.05 am. The five witnesses to the inquest are Rambachan Rai, Vijay Bahadur Rai, Tarkeshwar Rai, Ravikant Rai and Ramashankar Rai. 6. The condition of body has been specified in the inquest as lying on the roof of the house of Shiv Kumar Yadav. The inquest witnesses found gunshot injury on the head and thighs of the deceased. There were other injuries on the body of deceased. The inquest witnesses thus opined that in order to ascertain th....
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....med against the accused appellants under Sections 302/34 and 506 IPC. The accused appellants were explained the charges levelled against them on 10.1.2007, which they denied and demanded trial. The trial accordingly commenced in which prosecution has adduced following documentary evidence:- ' "1. FIR dated 27.06.2005 Ex.Ka.7 2. Written Report dated 27.06.2005 Ex.Ka.4 3. Report of Blood Stained & Plain Plaster Ex.Ka.2 4. Recovery memo of empties and pellets Ex.Ka.3 5. P.M. Report dated 27.06.2005 Ex.Ka.1 6. Report of Vidhi Vigyan Prayogshala dated 19.01.2006 7. Panchayatnama dated 27.06.2005 Ex.Ka.9 8. Charge Sheet (Mool) dated 22.11.2005 Ex.Ka.5" 10. In addition to documentary evidence the prosecution has also produced Vijay Bahadur Rai (PW-1), who is a witness to the inquest. Ravi Kant Rai is produced as PW-2, who too is a witness of inquest. Dr. Nishar Ahmad, Autopsy Surgeon has been produced as PW-3. Chandra Shekhar Rai, who allegedly has seen the incident and whose presence is mentioned in the FIR, has been produced as PW-4. Dinesh Kumar Pandey is the nephew (Bhanja) of the deceased, who has been produce....
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....cceeded in establishing the guilt of the accused appellants beyond reasonable doubt and consequently convicted them for the offence under Sections 302/34 and 506 IPC and sentenced them to life and other punishments as per above. 13. Aggrieved by the judgment of conviction and sentence, the two accused appellants have filed the present appeal. It is urged on behalf of the appellants that the testimony of eye-witness PW-4 is not reliable and his presence at the place of occurrence is also doubtful. Submissions have been made at length in order to submit that the prosecution had included reference of PW-4 in the written report, primarily as as he was closely related to the informant and would have supported the prosecution case, blindly, to implicate the accused appellants. It is also urged that the evidence led by the prosecution in no way connects the accused appellants with the commission of the offence, inasmuch as, neither the motive for committing the offence has been established against the accused appellants nor their association with Ansari brothers are established and, therefore, their conviction and sentence is wholly without any basis. It is urged that the accused appel....
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....ppropriate to refer to the evidence led in the matter at some length. 18. Vijay Bahadur Rai has been produced as PW-1, who is witness of inquest. He has proved the inquest report in his examination-inchief. In the cross-examination, he has stated that place of occurrence is actually a ward of Muhammadabad town, which is also a town area. He has stated that he heard about the murder of deceased at about 6.00 in morning and arrived at village Mathiya alongwith large number of other villagers at about 7.00 am. He has stated that prior to his arrival at the place of occurrence, large number of persons as well as police had already arrived and gathered there. The SHO of Muhammadabad had come to the place of occurrence at about 12.00 noon by when the dead body of deceased was still lying there. He has stated that the SHO took the dead body alongwith other villagers, including PW-1, to the police station where the inquest was conducted. He has stated that the inquest was completed at about 2.00 in the afternoon. It was thereafter that the dead body was taken by the police for postmortem to Ghazipur. The defence relies upon this testimony of PW-1 to submit that police papers are fudged ....
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.... disclosed that he has two sons in the age group of 25-35 years, who look after the agricultural work and that the witness also supports them. This witness retired as a Constable from West Bengal Police. He has admitted that in 1977 Shiv Sagar Rai had been killed wherein the deceased was an accused. He has also been confronted with the criminal antecedent of the deceased. He has been confronted with his previous statement made under Section 161 Cr.P.C. where he had not disclosed the Investigating Officer about his purpose of going to the market i.e. to buy seeds. He has also stated that because of his advance age he cannot walk fast and often suffers from pain in his legs. In his further cross-examination, PW-4 has admitted that market is held in Yusufpur on Tuesday and Saturday and that on other days no market is held. However, the shops remain open. He has disclosed that soon after the incident he returned to the village to inform about the murder of Rajendra, but he did not inform this fact to his son, when he crossed him on the way. He has also stated that after the incident he fell sick and his statement was recorded later on. The witness has further explained that informant s....
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....before the court below by the prosecution. These three witnesses have not supported the prosecution case either in the examinationin- chief, or in the cross-examination. Much emphasis is laid to contend that there was a strong undercurrent and extraneous influence at work due to which witnesses turned hostile and even the conduct of prosecution officer was questionable. This aspect of the matter shall be dealt with, later. 27. PW-11 Rampreet Chauhan is the Constable, who was present at the time of inquest and has taken the body of deceased to the mortuary. PW-12 Kamlesh Yadav and PW-13 Mahendra Yadav are also resident of village Mathiya, who have been produced on the same day i.e. 5.12.2007 and they too have turned hostile. 28. PW-14 Jagdish Kumar Yadav is the second Investigating Officer. He has stated that during investigation no evidence was found against the accused Mukhtar Ansari and Afzal Ansari and, therefore, their names were excluded from further investigation. He claims to have tried to locate PW-4 - Chandra Shekhar Rai, but he was not available and, therefore, his statement was recorded at the police station only on 9.7.2005. This witness has stated that PW-4 had n....
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.... or his companion were not obtained on the FIR. 31. PW-17 is Mangla Yadav, who has proved the police papers and had conducted the inquest. He has stated that after the inquest was conducted at 10.05 in the morning, he delivered the dead body to the Constables, who took it by a Jeep. 32. PW-18 Smt. Brijbala Rai has supported the prosecution case with regard to receiving of threats by the deceased, to leave the company of Krishnanand Rai, and join Ansari Brothers. She has supported the prosecution case that four persons arrived on two motorcycles at 8.00 pm the day prior to the incident and extended threats to her husband. Her husband allegedly told such persons that he would not leave Krishnanand Rai. Later, the deceased informed PW-18 that he had received threats from Umesh Rai @ Gora Rai. She has stated that the informant came thereafter and various family members also arrived at the house. The witness offered food at about 11.00, but as they were troubled, they kept discussing the affairs and it was only around 2.30 that they had food. She also stated that her husband left by motorcycle to lodge the report alongwith informant. In the cross-examination, this witness has admi....
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....ting on a motorcycle but their names are not known. 35. The prosecution case essentially proceeds on the premise that the deceased was being pressurized by Ansari Brothers to join their party and dissociate himself with Krishnanand Rai. Though some of the prosecution witnesses have supported this version of the prosecution, but it remains admitted that no charge-sheet was filed against Afzal Ansari and Mukhtar Ansari in the matter. The Investigating Officer has specifically stated that no material was collected during the course of investigation against these two persons and, therefore, during course of investigation itself their names were excluded from the case. During the course of trial also no application was moved under Section 319 Cr.P.C. to summon the Ansari Brothers. Except the version of informant and the statement of close relatives of deceased about receiving of threats from Ansari Brothers no other material apparently was collected against them during the course of investigation. 36. Although it is alleged that Ansari Brothers asked the deceased to leave the company of Krishnanand and join their party and that this would be in the interest of his life and propert....
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....to the incident of 27.6.2005, it is the prosecution case that the deceased had left alongwith the informant to lodge the report early in the morning. The prosecution case further is that while they were going towards the police station they were intercepted by two accused at village Mathiya and thereafter the deceased was shot dead. This part of the prosecution version is based upon the testimony of eye-witnesses and also the documentary evidence, referred to above. 39. The postmortem report in this case has been proved by the doctor, as per which, the deceased had sustained two firearm injuries which resulted in his death. In the opinion of the doctor the death of the deceased was a result of ante-mortem head injury from the firearm. It is, therefore, proved beyond doubt that the deceased died a homicidal death. The question is as to whether the two accused appellants on the basis of evidence led in the matter can be held responsible for the offence or not? 40. So far as the version of first informant is concerned, admittedly he died and he could not depose before the court below. His statement made under Section 161 Cr.P.C. has limited appeal as it neither contains his sign....
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....s are weak; he has pain in his legs and cannot move fast; his vision is limited and he can read or write only with the help of specs. Otherwise at the age of 80 years the faculties of a man would be somewhat restricted. To what extent such person can see the incident from a distance of 100 paces would remain a fact to be carefully evaluated. 44. We have perused the site plan, as per which, PW-4 was sitting beneath a tree in the grove adjoining the main road. He claims that the deceased was at a distance of 100 paces when he saw the accused firing at him. The version of PW-4 is that the gunshots fired at the deceased while he was on the motorcycle hit none but the motorcycle fell. This part of the version of PW-4 is not supported by the statement of first informant in his statement under Section 161 Cr.P.C. nor is it contained in the first information report. We also find that no motorcycle has otherwise been found on the spot. There is no recovery of the motorcycle, nor any of the prosecution witnesses have disclosed the details and description of the motorcycle. The fact that motorcycle was neither found on the spot, nor it contains any description in the FIR or the statement o....
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.... in the cremation and gave no statement to the police. The statement of PW-4 was recorded for the first time on 9.7.2005 which is after 13 days of the incident. PW-4 has also admitted that prior to his statement recorded under Section 161 Cr.P.C. on 9.7.2005, he did not disclose anyone about the incident in the entire village. We find this conduct of PW-4 to be somewhat unusual. Having seen such ghastly act the natural conduct of a person would be to immediately disclose it to the family members or to those who were close to him. His act of not disclosing the incident either to the son of the deceased or to anyone else in the family for more than 10 days is questionable. 46. Sri Durgesh Kumar Singh, learned counsel for the informant states that the first Investigating Officer acted in a partisan manner and only after the second Investigating Officer took over the investigation that the statement of PW-4 was recorded needs to be examined at this juncture. It is a matter of fact that only the second Investigating Officer had recorded the statement of PW-4. PW-4, however, never stated that he informed anyone of the incident or offered to get his statement recorded or that his versi....
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....about 2.30 in the night is also an improvement made in his statement during trial of which no reference is made earlier in his statement made under Section 161 Cr.P.C. The testimony of PW-5 is thus not of help to the prosecution case. 49. PW-6 is the scribe of the FIR and though his statement that he had not gone to the police station to lodge the FIR is questioned with reference to the statement of the Investigating Officer, but we do not intent to dwelve deeper as we do not find it to be a matter of much significance. It remains undisputed that the written report was scribed by PW-6 and the same is duly proved. The testimony of PW-6 is limited to such extent. 50. The place of incident in the present case is the roof top of the house of Shiv Kumar Yadav. Shiv Kumar Yadav has not been produced in evidence during trial. His statement, however, has been recorded under Section 161 Cr.P.C., which states that Chandra Dev Yadav is his brother. Chandra Dev Yadav gave his house to his daughter Tara Yadav, but generally people treat her house to be that of Shiv Kumar Yadav. Tara Yadav has been produced as PW-7. She has clearly stated that she left at the day-break to attend natures ca....
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....was recorded under Section 313 Cr.P.C. This witness has specifically alleged that the entire family and relatives sat in the night to discuss the threat received by deceased and it was only around 2.30 in the night that they all had their meals. This statement, however, is a clear improvement over what was earlier disclosed by this witness during her interrogation under Section 161 Cr.P.C. No plausible explanation has been furnished by the prosecution for such improvement to have come into existence at such late stage of proceeding. PW-18 has also stated for the first time that her husband had gone on a motorcycle. This fact is also an improvement and was not disclosed in her statement under Section 161 Cr.P.C. We do not find the testimony of PW-18 to be convincing or reliable, particularly as her statement contains material improvements from what was disclosed by her earlier to the Investigation Officer. A serious doubt is raised upon the timing of the incident inasmuch as the existence of semi-digested food in the stomach of the deceased supports the defence version that time of incident was prior to 6.30 in the morning. This doubt in the timing of incident finds support from the....
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....mination itself. This classification has to be borne in mind by the Court. With respect to the first category, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief-examination could be termed as evidence. Such evidence would become complete after the cross examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief-examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion. 39. Before we part with this case, we are constrained to record our anguish on the deliberate attempt to derail the quest for justice. Day in and day out, we are witnessing the sorry state of affairs in which the private witnesses turn hostile for obvious reaso....
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....appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under: I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of triv....
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....uccession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness. [See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 Cri LJ 1096 : (1983) 3 SCC 217 : AIR 1983 SC 753, Leela Ram v. State of Haryana, (1999) 9 SCC 525 : AIR 1999 SC 3717, and Tahsildar Singh v. State of UP, AIR 1959 SC....
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.... related/interested/partisan witnesses and the credibility of such witnesses. This Court is conscious of the well-settled principle that just because the witnesses are related/interested/partisan witnesses, their testimonies cannot be disregarded, however, it is also true that when the witnesses are related/interested, their testimonies have to be scrutinized with greater care and circumspection. In the case of Gangadhar Behera and Ors. v. State of Orissa (2002) 8 SCC 381, this Court held that the testimony of such related witnesses should be analysed with caution for its credibility. 56. In Raju alias Balachandran and Ors. v. State of Tamil Nadu (2012) 12 SCC 701, this Court observed: "29. The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh [AIR 1953 SC 364] and pithily reiterated in ....