HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED ON : 22.08.2016 DELIVERED ON: 08.09.2016 AFR Case :- CRIMINAL APPEAL No. - 631 of 1997 Appellant :- [ENTITY] & Others Respondent :- [ENTITY] Counsel for Appellant :- [ENTITY],[ENTITY] Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. [ENTITY],J.
Challenge in this appeal is to the judgment and order dated 15.10.1997 passed by Third Additional Sessions Judge, Hardoi in ST No. 273 of 1994 (State Vs. [ENTITY] and others) arising out of [CASE NUMBER] under [SECTION], [SECTION] [ACT], Police Station Tandiyawan, Hardoi whereby the accused persons were found guilty and sentenced. Accused [ENTITY], [ENTITY] and [ENTITY] were sentenced for life imprisonment of seven years' rigorous imprisonment under [SECTION] [ACT]. Accused [ENTITY], [ENTITY] and [ENTITY] were further sentenced to undergo rigorous imprisonment for seven years. By the impugned order accused [ENTITY] was not found guilty and was acquitted.
2. Filtering out unnecessary details the prosecution story in brief is that during the intervening night of 24/25 of January, 1993 at about 12:30 AM in the house of complainant [ENTITY] situated in village Mardan Nagar, Police Station Tandiyawan, District Hardoi, the miscreants committed robbery. While doing dacoity they have voluntarily caused hurt to [ENTITY], [ENTITY] and [ENTITY]. At the time of committing dacoity/robbery the accused persons were armed with deadly weapons. Report of the occurrence was lodged by [ENTITY] at Police Station Tandiyawan on 25.01.1993 at about 13:30 P.M.
3. In the report the informant mentioned that in the mid night the accused persons entered in his house by scaling the wall and began to loot and assault all the inhabitants. The nephew of informant namely [ENTITY] ran out of the house raising alarm at which the grand son of the informant [ENTITY], his son-in-law [ENTITY] armed with Lathis and torches rushed and recognized [ENTITY], [ENTITY] and [ENTITY] on spot. One of their companion could not be identified. Accused ran away with the looted property. When they were chased [ENTITY] opened fire at the approaching witnesses. The informant, his cousin [ENTITY] and his nephew were injured. Utensils, clothes, ornaments and cash were taken away by the accused. On the basis of this report a case under [SECTION], [SECTION] [ACT] at [CASE NUMBER] was registered at the Police Station Tandiyawan, District Hardoi against the accused persons. Entries were made in the GD vide report No.14 at 13:30 P.M. on 25.01.1993. Investigating Officer visited the spot of occurrence and recorded the statements of witnesses. The injured were medically examined.
4. Injured [ENTITY] received the following injuries:-
1. Superficial abrasions 0.2 cm x 0.2 cm thirteen in number scattered in the front of left leg, 25 cm from the knee joint. No pellets are palpable.
2. Superficial abrasion 0.2 cm x 0.2 cm on the right leg, lateral side, 12 cm below the knee joint two in number, Scattered area is 6.5 cm above from the first two abrasions.
Injury was simple in nature and caused by fire-arm.
5. On the body of injured [ENTITY] there were following injuries :-
1. Gunshot wound entry of 0.2 cm x 0.2 cm scattered in the front part of lower part of left thigh and indulges upper part of leg, 21 cm below from the knee joint and 12 cm above the knee joint, 19 in number, some pellets are palpable and advised for X-ray for confirmation.
Injuries were simple in nature caused by fire-arm.
6. Injured [ENTITY] sustained the following injuries :-
1. Lacerated wound 0.5 cm x 0.2 cm x skin deep on the outer part of right eye obliquely from upward to downward, margins irregular, colour red.
His injuries were simple in nature caused by hard blunt object.
7. Investigation was entrusted to the Investigating Officer who submitted the charge sheet against the accused persons.
8. The prosecution examined PW-1 [ENTITY] who is also an injured witness. He proved the report as Ext. Ka-1. PW-2 is [ENTITY]. He is also an eye-witness being an injured witness. PW-3 is Special Magistrate [ENTITY], who conducted the Test Identification Parade. He proved the Test Identification report as Ext. Ka-2. PW-4 is [ENTITY] who prepared the chik report which was proved as Ext. Ka-3 and copy of the GD as Ext. Ka-4.
9. PW-5 is [ENTITY] who conducted the later part of the investigation. On 30.09.1993 the result of Test Identification Parade was received. The test identification report was proved by this witness as Ext. Ka-8. PW-6 is Sub Inspector, [ENTITY], who conducted the investigation. The case was registered in his presence on 25.01.1993. He copied the chik report and GD in the Case Diary. Thereafter, he recorded the statements of [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] and inspected the place of occurrence. He further prepared the site plan which was proved by him as Ext. Ka-9. He collected the empty cartridges from the place of occurrence, prepared the recovery memo which was proved by this witness as Ext. Ka-10. On 27.01.1993 accused [ENTITY] and [ENTITY] were arrested and their statements were recorded. On 31.01.1993 after apprehending accused [ENTITY], his statement was recorded. Name of accused [ENTITY] came into investigation during the statement of accused [ENTITY]. After this, this witness was transferred and investigation was entrusted to Sub-Inspector [ENTITY], PW-7 who concluded the investigation and submitted a charge sheet which was proved by him as Ext. Ka-11. After the aforesaid witnesses were examined by the prosecution, the Trial Court proceeded to record the statements of accused persons under [SECTION] [ACT] The accused stated that they had been falsely implicated. The accused further proceeded to examine DW-1 [ENTITY] as defence witness, tried to prove the enmity of informant with the accused.
10. After hearing the arguments of the learned counsel for the parties and going through the record as well as evidence, the learned Trial Court proceeded to convict the accused appellants as narrated in para -1 of the judgment.
11. I have heard the learned counsel for accused appellants, learned AGA appearing for State and perused the lower Court record carefully.
12. The learned counsel for the appellants has submitted that the learned Trial Court has erred in convicting and sentencing the appellants by impugned judgment and order, hence the same is liable to be set aside and the appeal deserves to be allowed.
13. On the contrary, the learned AGA has submitted that the impugned judgment and order convicting and sentencing the accused appellants is based on evidence available on record and does not suffer from any illegality or irregularity. He further submitted that the appeal has no merit and is liable to be dismissed.
14. Learned counsel for the appellant has submitted that conviction of the appellants is bad in the eyes of law as the conviction is based on inadmissible and unreliable evidence.
15. Per contra, learned AGA appearing for the State has submitted that the learned Trial Court has based its judgment on clinching evidence and the appeal is liable to be dismissed.
16. During the pendency of appeal, accused [ENTITY] died, hence appeal as regards [ENTITY] stands abated and it survives only on behalf of accused [ENTITY] and [ENTITY].
17. The following points were raised by the learned counsel for appellants during the course of arguments :-
First information report is delayed. Hence the whole prosecution story is doubtful.
The Trial Court failed to assess the evidence in its correct perspective.
All the witnesses are interested witness, hence too much weightless cannot be attached to their evidence.
First information report is delayed. Hence the whole prosecution story is doubtful Perusal of the chik report Ext. Ka-3 shows that the occurrence took place in the intervening night of 24/25 January, 1993 at about mid night. Report of the occurrence was lodged on 25.01.1993 at 01:30 PM. The distance of police station from the place of occurrence being 14 kilometers. Learned counsel for appellant had submitted that the surviving appellants are related to each other. They are residents of the same village. If occurrence would have been correct, the FIR would have been prompt. In its support the learned counsel for appellant has placed reliance on [PRECEDENT] in which the Apex Court has laid down as under:-
"FIR in a criminal case is extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial stage. The importance of first information report can hardly be over-estimated from the stand point of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained."
Per contra, the learned AGA has submitted that lodging of the first information report depends upon many factors. In this case, there are three injured persons. The incident took place in the mid night. The police station was 14 kilometers from the place of occurrence. Hence, lodging of the incident after 12 hours cannot be said to be fatal for prosecution. In the first information report Ext. Ka-1 the informant has specified that he and his grandson sustained fire-arm injury and his nephew received Lathi injuries. Thereafter, the report was lodged.
The informant was produced as PW-1 who has categorically stated that after the incident in the morning, arrangements for conveyance were made, after which he went to the police station. Thus, this witness has tried to explain the reason for the time taken by him in reaching the police station with the injured persons. Here, reference may be made to the pronouncement of Hon'ble Apex Court in the case of [PRECEDENT] wherein Hon'ble Apex court has observed as under:
"The Court has also to consider the fact that the main purpose of the F.I.R. is to satisfy the police officer as to commission of a cognizable offence for him to conduct further investigation in accordance with law. The primary object is to set the criminal law into motion and it may not be possible to give every minute detail with unmistakable precision in the F.I.R. The F.I.R. itself is not the proof of a crime, but a piece of evidence which could be used for corroborating the case of the prosecution."
Learned AGA has submitted that it is well settled principle of law of criminal jurisprudence that mere delay in lodging the first information report may not prove fatal in all cases. Delay in lodging the first information report cannot be a ground by itself for throwing away the entire prosecution case. The Court has to seek an explanation for delay and check the truthfulness of version put forward. If the Court is satisfied, then, the case of the prosecution cannot collapse on this ground alone.
In the case of [PRECEDENT] and in a large number of other cases, it has been held that the Court has to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of [SECTION] of the [ACT]. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.
In the case in hand, the occurrence took place in the intervening night of 24/25th of January, 1993. Obviously the Court take note of the facts that nights in January are extremely cold and foggy. Besides, in the morning after covering a distance of 14 kilometers reaching police station with three injured persons at 1:30 PM cannot be termed to be delay in lodging the first information report. Thus, the argument advanced on behalf of the appellants that the report is delayed has no locus standi.
The Trial Court failed to assess the evidence in its correct perspective.
The learned counsel for accused appellants has further submitted that the learned Trial Court did not assess the evidence adduced by the prosecution correctly. The Trial Court failed to consider the fact that there was no recovery of looted articles. The evidence is silent as to the weapons being carried by the accused. Further, he has stated that prosecution case as set forth is highly improbable and indigestible because there is no reason why the accused appellants belonging to the same village and being known to the informant would enter the house of informant and would rob the articles without muffling their faces. In this regard, he has placed reliance on [PRECEDENT].
The prosecution witnesses have depicted that accused and the complainant were known to each other previously but the accused appellants had not muffled their faces. It has further come in evidence that the accused were recognized in the light of torches. He has further stated that when the Investigating Officer visited the spot, he was shown the torches, but admittedly the memo regarding the inspection of torches is not on record. Reliance has been placed on [PRECEDENT], wherein it has been held that after his long standing enmity between accused and informant there is the possibility of false implication which could not be ruled out. Though the Investigating Officer during investigation did not find any lantern or sign of any lantern. and it has been further held that it looks very unnatural that the accused would come to commit dacoity in the neighbourhood taking with them young boys.
Reverting back to the evidence adduced on behalf of the prosecution it has been submitted that PW-1 [ENTITY] has stated in his cross-examination that when he reached the Police Station he met the Munshi (Clerk) there. I am reproducing the words stated by him before the Court - "eqa'kh th us eq>ls dgk Fkk ;fn fdlh ij 'kd lqog gks rks crkvks."
Further, this witness has stated that [ENTITY] was holding a three cell torch and the cells were not changed for the four months although it was being used daily. In this regard, PW-6 [ENTITY] has specifically stated that the informant and his family members did not show this witness any torch. Even [ENTITY] did not show him any torch.
Learned AGA appearing for the State has submitted that for the sake of argument even if source of light is done minus from the prosecution case it has to be noted that since the accused and informant belong to the same village and the accused were very close to the informant and injured witnesses, it was not difficult for the accused to recognize and identify the accused persons by their voice, way of walking, standing etc. I think this argument is not very tenable in this particular case because if no light was present at the time of occurrence, then, a question would be raised as to how the accused could aim to fire at the informant and his family members without light. To aim a fire-arm also light would been needed as this is not a case of blank firing. PW-2 [ENTITY] was also given in the hands of defence for cross-examination, who stated that miscreants ran away with looted property. When the accused fled away, then, he raised hue and cry at which his uncle and other witnesses came. He has specified that miscreants had not covered their faces. He has tried to improve the prosecution story by saying that the miscreants had torches with which they were locating the articles. He could not state as to what valuables were taken by the miscreants at the time of occurrence.
In the first information report there is an averment that utensils, clothes, jewelery and cash were taken away by the accused but there were no details of the goods carried away by the accused. I do not loose the sight of the fact that this would not be mandatory at the time of lodging of the First Information Report but later on, a list of articles carried away by the miscreants could have been provided to the Investigating Officer which was not done by the informant. In the examination in chief of PW-1 namely [ENTITY] there is not a whisper as to what articles were carried away by the accused. In cross-examination he has stated that his jewelery, cash, utensils and clothes were taken away by the accused which costed 10-15 thousands of rupees but there were many injured people, hence he could not submit the list with the first information report. But why this could not be done later, has not at all been explained by the prosecution and besides general allegations there are no specifications about the goods alleged to have been taken away by the accused persons. The informant namely [ENTITY] who claims to be present at the time of occurrence has stated that at the time of occurrence, he was lying in his house. He reached the place of occurrence on the shrieks of his son. As soon as he reached the door of his house, the dacoits were coming out of his house. Suddenly, his cousin lit a torch at which the miscreants fired at the informant. He has further stated that the dacoits had fired at him from inside the house without opening the door. As I have said earlier the availability of torch is doubtful in as much as this witness PW-1 has stated that he showed the torch to the Investigating Officer, whereas the Investigating Officer has denied this fact. Thus, the prosecution story as stated by both the injured witnesses PW-1 [ENTITY] and PW-2 does not corroborate the statements of each other and is improbable due to which benefit of doubt should definitely be given to the accused appellants.
All the witnesses are interested witness, hence much weight cannot be attached to their evidence.
Learned counsel for the appellants has submitted that PW-1 [ENTITY] and PW-2, [ENTITY] are interested witnesses, who are inimical to the accused, hence conviction cannot be based on the testimony of these two witnesses.
As per the first information report [ENTITY] injured, PW-2, is nephew of [ENTITY], the informant (injured), PW-1.
Learned counsel for State has vehemently controverted this argument stating that related witnesses would be the last persons to screen the real offender and to implicate the innocent falsely. He has further stated that the accused persons are not foreigners for them.
In the case of [PRECEDENT], it has been laid down as under by the Hon'ble Apex Court:-
"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 relative 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 generalisation. 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."
Observations of the Hon'ble Apex Court in [PRECEDENT], are worth mentioning:-
"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 such evidence should be appreciated. Judicial approach has to be cautions in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
The above decision has been followed in [PRECEDENT], in which [PRECEDENT] was also relied upon. The following observations were made by the Hon'ble Apex Court in [PRECEDENT] in para-12 of the judgment are also important:-
" Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the 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 analyze evidence to find out whether it is cogent and credible."
The above position has been highlighted again the case of [PRECEDENT], in which reference has been made to some other cases also. In this context, I may refer to the case of [PRECEDENT] wherein Their Lordships of the Hon'ble Apex Court observed 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 relative 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 generalisation. 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."
They further observed:-
" Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the 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 analyze evidence to find out whether it is cogent and credible."
In the case of [PRECEDENT], the following observations have been made by the Apex Court :
"It is well settled in a catena of cases that the evidence of eye witnesses cannot be rejected merely because they are related. The relatives will not exonerate real culprits and falsely implicate others."
The Hon'ble Supreme Court in the case of [PRECEDENT] dealing the evidence of related/interested witnesses has observed as under:
" By now it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons."
In para - 8 Their Lordships have further observed :
" The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously "
18. I would not be hesitant in relying upon the testimony of [ENTITY], PW-1 and PW-2 [ENTITY] because at least their injuries indicate to some extent their presence on the scene of occurrence but inconsistencies and contradictions in the statements of both the witnesses and the statement of Investigating Officer coupled with documentary evidence on record makes the whole prosecution story doubtful and improbable.
19. Thus, on the basis what has been stated above, I conclude that conviction order of the Trial Court is not based on sound and reliable evidence. The appellants are entitled to the benefit of doubt.
20. The appeal is allowed as far as the appellants are concerned. The appellants are on bail. Their bail bonds are cancelled and sureties are discharged. However, the provisions of [SECTION] [ACT] shall be complied with.
21. Let a copy of this judgment be sent to the Trial Court concerned.
Order Date :- 8.9.2016 LBY