HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.48 Criminal Appeal No.477 of 1987 [ENTITY] Appellant Vs [ENTITY] Respondent For Appellant : Sri [ENTITY], Advocate For Respondent/State : Sri [ENTITY], AGA Hon'ble [ENTITY], J.
Hon'ble [ENTITY], J.
Per: [ENTITY], J.
(19.10.2019) This appeal arises out of impugned judgment and order dated 10.2.1987 passed by the Sessions Judge, Mathura in Sessions Trial No.283 of 1985, convicting the appellant under [SECTION] of [ACT] and sentencing him to undergo imprisonment for life.
2. As per prosecution case, on 5.7.1985 at 7:00 pm, accused appellant [ENTITY] along with three other accused persons namely, [ENTITY], [ENTITY] and [ENTITY] reached near the well, where deceased [ENTITY], after taking his bath, was sitting on a platform. It is said that the accused appellant was carrying gun; accused [ENTITY] was having a country made pistol; and accused [ENTITY] and [ENTITY] were having gun with them. After reaching to the place of occurrence, accused [ENTITY] exhorted by saying 'kill him, as he contests lot of cases'. Accused [ENTITY] and [ENTITY] caught hold the deceased and then the appellant caused gunshot injury to the deceased, as a result of which the deceased fell down. Hue and cry was raised by the witnesses, including (PW-1) [ENTITY], (PW-2) [ENTITY] and (PW-6) [ENTITY] and an attempt was also made by them to catch hold the accused persons, but as the accused persons were having weapons with them, they fled away from the spot. When injured [ENTITY] was being shifted to the Hospital, on the way he expired. On the basis of written report Ex.Ka.1 lodged by (PW-1) [ENTITY] (brother of the deceased) FIR Ex.Ka.10 was registered at 10:00 pm on 5.7.1985 against four accused persons, including the appellant under [SECTION] of [ACT].
3. Inquest on the dead body of the deceased was conducted vide Ex. Ka.3 on 5.7.1985 and the body was sent for postmortem which was conducted on 6.7.1985 vide Ex. Ka.2 by (PW-4) Dr. [ENTITY].
As per Autopsy Surgeon, following gunshot injuries were noticed on the body of the deceased:
1. Fire arm wound of entry 2 cm x 2 cm x cavity deep on Rt. side back, 7 cm above from Rt. hip bone. Blackening, tattooing and scorching present on around the wound.
2. Fire arm wound of exit 1 cm x 1.5 cm x cavity deep on front of [ENTITY], 3 cm above from Penis in mid-line connected with Injury No.1.
Cause of death of the deceased was due to Syncopy as a result of A/M Injury noted.
4. While framing charge, the trial Judge has framed charge against the accused persons under [SECTION] of [ACT].
5. So as to hold accused persons guilty, prosecution has examined eight witnesses, whereas three defence witnesses have also been examined. Statements of accused persons were recorded under [SECTION] of [ACT] in which, they pleaded their innocence and false implication.
6. By the impugned judgment and order, the trial Judge has acquitted accused [ENTITY], [ENTITY] and [ENTITY] of all the offences, whereas the appellant has been convicted under [SECTION] of [ACT] and sentenced, as mentioned in paragraph-1 of this judgment. Hence, this appeal.
7. Counsel for the appellant submits:-
(i) that the FIR is ante-timed.
(ii) that on the same set of evidence, three accused persons have been acquitted and, therefore, the learned trial Judge has erred in law, in convicting the appellant.
(iii) that (PW-1) [ENTITY] and (PW-2) [ENTITY] are interested witnesses and, therefore, they have falsely implicated the appellant.
(iv) that there are material contradictions in the statements of (PW-1) [ENTITY] and (PW-2) [ENTITY] and, therefore, they are not trustworthy witnesses.
(v) that another eye-witness has been examined as (PW-6) [ENTITY], but his testimony has been discarded by the trial Court.
(vi) that if the FIR was registered before preparing inquest, in the inquest, (PW-1) [ENTITY] and (PW-2) [ENTITY] ought to have disclosed the names of accused persons and likewise, details of the incident ought to have been given by them.
(vii) that on account of previous enmity between two families, the appellant has been falsely implicated.
8. On the other hand, supporting the impugned judgment and order, it has been argued by learned State Counsel that the conviction of the appellant is in accordance with law and there is no infirmity in the same. He submits that the incident occurred in the presence of (PW-1) [ENTITY] and (PW-2) [ENTITY] and their testimony cannot be discarded simply on the ground that they are relatives of the deceased. He further submits that minor contradictions in the statements of eye-witnesses are required to be ignored considering the fact that they are rustic villagers and those minor contradictions do not go to the root of the matter. He also submits that in the inquest report, prosecution was not obliged to mention as to in what manner the incident took place and likewise, it was not necessary to mention the names of the accused persons. It has been argued that the postmortem report of the deceased also supports the prosecution case. Lastly, it has been argued that the acquittal of co-accused persons will not give any benefit to the appellant as there is sufficient material against him.
9. (PW-1) [ENTITY], is a brother of the deceased and the informant. He is also an eye-witness to the occurrence. He has stated that he knew all the accused persons and there is an old dispute between his family and that of accused [ENTITY]/[ENTITY] and [ENTITY]. On the date of incident, after taking bath, deceased [ENTITY] was sitting on a platform and he (this witness) along with some other persons were also taking bath. Brother-in-law of the deceased, namely [ENTITY] ([ENTITY]-PW-6) also reached to the place of occurrence and then all the accused persons reached there carrying firearms with them. Accused appellant was having gun with him; accused [ENTITY] and [ENTITY] caught hold the deceased and thereafter, accused [ENTITY] exhorted that 'the deceased has become chronic litigant and, therefore, be killed' and hearing this, accused appellant caused gunshot injuries to the deceased. He has clarified that [ENTITY] and [ENTITY] are the same person and on account of fear, none of the witnesses could come forward. He picked-up his brother, took him on a bullock cart and on the way to police station, they could get tractor of one [ENTITY], however, by the time, injured was shifted in the tractor, he expired.
In the cross-examination, this witness remained very firm and reiterated as to the manner in which the incident occurred.
10. (PW-2) [ENTITY], is another brother of the deceased and also an eye witness to the occurrence. His statement is almost identical to that of (PW-1) [ENTITY]. He too has stated that after taking bath, the deceased was sitting on a platform, whereas he and other witnesses were also taking bath on the well. The accused persons, including the appellant reached at the place of occurrence, accused [ENTITY] and [ENTITY] caught hold the deceased and then accused [ENTITY] exhorted that 'the deceased is contesting number of cases and, therefore, he be killed' and then, the appellant caused firearm injuries to the deceased.
In the cross-examination, this witness also remained firm and has reiterated as to the manner in which the incident occurred.
11. (PW-6) [ENTITY], is a brother-in-law of the deceased, has also been cited as an eye-witness to the incident. He states that he came to the house of the deceased to take his sister and when he came to know that his brother-in-law had gone to the well for taking bath, he too had gone there and as soon as he reached there, he saw the accused appellant causing firearm injuries to the deceased.
In the cross-examination, he however, has stated that he did not know the accused persons prior to the incident and he came to know about their names after the incident. It is relevant to note here that no test identification parade had been conducted by the prosecution and considering the inconsistencies in the statement of this witness, he has already been disbelieved by the trial Judge.
12. (PW-3) [ENTITY], is a Constable, took the body for postmortem. (PW-4) Dr [ENTITY], conducted the postmortem on the body of the deceased. (PW-5) [ENTITY], Scribe of the FIR. (PW-7) [ENTITY], is the first Investigating Officer, did the part investigation, and (PW-8) [ENTITY], is the second Investigating Officer, has duly supported the prosecution case.
13. (DW-1) [ENTITY], is Scribe of the written report which was lodged by (PW-1) [ENTITY]. (DW-2) [ENTITY], has stated that injured-deceased was taken on a tractor. (DW-3) [ENTITY] has not stated anything specific.
14. Close scrutiny of the evidence, in particular the statements of two eye-witnesses, i.e. (PW-1) [ENTITY] and (PW-2) [ENTITY], makes it clear that on 5.7.1985, it is accused appellant [ENTITY] who caused firearm injuries to the deceased, resulting his death. In the Court, (PW-1) [ENTITY] was very firm in saying that it is the accused appellant who caused firm arm injuries to the deceased, resulting his death. Postmortem report of the deceased also supports the prosecution case. We have no reason to doubt the same. True it is that (PW-6) [ENTITY] does not appear to be a trustworthy and reliable witness and that is why, his testimony has been discarded by the Court below.
15. We find no substance in the argument of the defence that in the inquest, details as to how the incident occurred have not been mentioned and likewise, as to who caused firearm injury to the deceased has also not been mentioned in the inquest.
The evidentiary value of the inquest report prepared under [SECTION] of [ACT] has also been long settled through a series of judicial pronouncements. It is well established that inquest report is not a substantive piece of evidence and can only be looked into for testing the veracity of the witnesses of inquest. The object of preparing such report is merely to ascertain the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or caused by animals or machinery etc. and stating in what manner, or by what weapon or instrument, the injuries on the body appear to have been inflicted. (See: [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT] and [PRECEDENT].
The Apex Court, while dealing with similar issue, in [PRECEDENT], observed as under:
13. The provision for holding of inquest is contained in [SECTION] [ACT] and the heading of the section is Police to enquire and report on suicide etc. Sub-sections (1) and (2) thereof read as under :
"174. Police to enquire and report on suicide, etc. (1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.
(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub- Divisional Magistrate."
14. The language of the aforesaid statutory provision is plain and simple and there is no ambiguity therein. An investigation under [SECTION] is limited in scope and is confined to the ascertainment of the apparent cause of death. It is concerned with discovering whether in a given case the death was accidental, suicidal or homicidal or caused by animal and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. It is for this limited purpose that persons acquainted with the facts of the case are summoned and examined under [SECTION]. The details of the overt acts are not necessary to be recorded in the inquest report. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted or who are the witnesses of the assault is foreign to the ambit and scope of proceedings under [SECTION]. Neither in practice nor in law is it necessary for the person holding the inquest to mention all these details.
15. In [PRECEDENT], it was held that the proceedings under [SECTION] have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under [SECTION]. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Their omission is not sufficient to put the prosecution out of Court. In [PRECEDENT], the contention raised that non-mention of a person's name in the inquest report would show that he was not an eyewitness of the incident was repelled on the ground that an inquest under [SECTION] [ACT] is concerned with establishing the cause of death and only evidence necessary to establish it need be brought out. The same view was taken in [PRECEDENT] that the non-mention of name of an eyewitness in the inquest report could not be a ground to reject his testimony. Similarly, the absence of the name of the accused in the inquest report cannot lead to an inference that he was not present at the time of commission of the offence as the inquest report is not the statement of a person wherein all the names (accused and also the eyewitnesses) ought to have been mentioned. The view taken in [PRECEDENT] (supra) was approved by a three-Judge Bench in [PRECEDENT] and it was held that the testimony of an eyewitness could not be discarded on the ground that their names did not figure in the inquest report prepared at the earliest point of time. The nature and purpose of inquest held under [SECTION] [ACT] was also explained in [PRECEDENT]. In the said case the High Court had observed that the fact that the details about the occurrence were not mentioned in the inquest report showed that the investigating officer was not sure of the facts when the inquest report was prepared and the said feature of the case carried weight in favour of the accused. After noticing the language used in [SECTION] [ACT] and earlier decisions of this Court it was ruled that the High Court was clearly in error in observing as aforesaid or drawing any inference against the prosecution. Thus, it is well settled by a catena of decisions of this Court that the purpose of holding an inquest is very limited, viz. to ascertain as to whether a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence. There is absolutely no requirement in law of mentioning the details of the FIR, names of the accused or the names of the eyewitnesses or the gist of their statements nor is it required to be signed by any eyewitness. In [PRECEDENT] (supra), the language used by the legislature in [SECTION] [ACT] was not taken note of nor the earlier decisions of this Court were referred to and some sweeping observations have been made which are not supported by the statutory provision. We are, therefore, of the opinion that the observations made in paras 11 and 12 of the reports do not represent the correct statement of law and they are hereby overruled. The challenge laid to the prosecution case by Shri [ENTITY] on the basis of the alleged infirmity or omission in the inquest report has, therefore, no substance and cannot be accepted."
16. We further find no substance in the argument of the defence that only interested witnesses have been examined and there is no independent witness and, therefore, the prosecution case becomes doubtful.
It is settled position of law that the evidence of an interested witness should not be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. All that the Courts require as a rule of prudence, not as a rule of law, is that the evidence of such witness should be scrutinized with a little care. It has to be realized that related and interested witness would be the last persons to screen the real culprits and falsely substitute innocent ones in their places. Indeed there may be circumstances where only interested evidence may be available and no other, e.g. when an occurrence takes place at midnight in the house then the only witnesses who could see the occurrence may be the family members. In such cases, it would not be proper to insist that the evidence of the family members should be disbelieved merely because of their interestedness. But once such witness is scrutinized with a little care and the Court is satisfied that the evidence of the interested witness have a ring of truth such evidence could be relied upon even without corroboration. 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. (See: [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT] The Supreme Court in [PRECEDENT] has held that merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. Further, the Supreme Court in [PRECEDENT] and [PRECEDENT] relying in its earlier judgments held as under:
"18. Then, next comes the question 'what is the difference between a related witness and an interested witness?. The plea of "interested witness", "related witness" has been succinctly explained by this Court that "related" is not equivalent to "interested". The 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. In this case at hand PW 1 and 5 were not only related witness, but also 'interested witness' as they had pecuniary interest in getting the accused petitioner punished. [refer [PRECEDENT]. As the prosecution has relied upon the evidence of interested witnesses, it would be prudent in the facts and circumstances of this case to be cautious while analyzing such evidence. It may be noted that other than these witnesses, there are no independent witnesses available to support the case of the prosecution."
Relationship is not a factor to affect credibility of a witness. There is no proposition in law that relatives are to be treated as untruthful witnesses. To the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. A witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive. A close relative cannot be characterized as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the 'sole testimony of such witness. (See: [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; and Dharnidhar vs. [ENTITY] and Others & other connected appeals, (2010) 7 SCC 759).
The Apex Court, while considering the issue relating to independent witness in [PRECEDENT] observed as under:
50. The learned counsel for the respondents has also sought to assail the prosecution version on the ground of lack of independent witnesses. We are not impressed by this submission in the light of the observations made by this Court in [PRECEDENT], wherein it was observed:
"It is well-known that in villages where murders are committed as a result of factions existing in the village or in consequence of family feuds, independent villagers arc generally reluctant to give evidence because they are afraid that giving evidence might invite the wrath of the assailants and might expose them to very serious risks. It is quite true that it is the duty of a citizen to assist the prosecution by giving evidence and helping the administration of criminal law to bring the offender to book, but it would be wholly unrealistic to suggest that if the prosecution is not able to bring independent witnesses to the Court because they are afraid to give evidence, that itself should be treated as an infirmity in the prosecution case so as to justify the defence contention that the evidence actually adduced should be disbelieved on that ground alone without examining its merits."
51. Similarly, in [PRECEDENT], it was held that the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses. In this connection, general reluctance of an average villager to appear as a witness and get himself involved in cases of rival village factions when tempers on both sides are running high, has to be borne in mind.
52. Further, in [PRECEDENT], this Court has observed :
"Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused."
17. Further, there is no substance in the argument of the defence that as some of the accused have been acquitted, the appellant also deserves acquittal. Assuming that if some of the accused have wrongly been acquitted by the trial Judge, it does not mean that similar treatment should be given to the appellant. As there is no appeal assailing the acquittal of some of accused, we refrain ourselves to pass any comment on the judgment impugned so far as acquittal of some of the accused is concerned, but benefit of the said mistake cannot be given to the appellant.
The Apex Court in [PRECEDENT] while considering the identical issue, observed as under:
"8. Acquittal of some of the accused persons will not come to the rescue of the other appellants in respect of whom the High Court has considered the evidence on record and found them guilty. As noted above, PW-1 has no relationship with the deceased and his assertion in the examination-in-chief has gone unchallenged. It is to be noted that nothing has been elicited in the cross-examination of various witnesses as regards the place of occurrence and the manner of occurrence. That being the position, the convictions as done cannot be faulted."
16. Merely because two persons have been acquitted that benefit cannot be extended to others in view of the direct evidence establishing their presence and participation in the crime. Though it was pleaded that there was no evidence regarding the breaking of lock as deposed by eyewitnesses, it is to be noted that investigating officer's objective findings clearly lead to acceptability of such plea. The broken lock was seized and exhibited as Exb-1. The marks of violence on the door were clearly noticed and noted by the investigating officer."
18. We also find no substance in the argument of the defence that the FIR is ante-timed. The incident occurred at 7:00 pm on 5.7.1985 and at 10:00 pm, FIR was lodged. Considering the fact that after the incident, (PW-1) [ENTITY] (his brother) picked-up him, took him on a bullock cart and on the way to police station, he could get a tractor of one [ENTITY] and, by the time, injured-deceased was shifted in the same, he expired. (PW-1) [ENTITY], might have taken sometime to adjust himself and then rushed to the police station for lodging the FIR. Three hours delay in lodging the FIR, thus, cannot be called unusual. There was no time for (PW-1) to concoct the story or fabricate the evidence in any manner. Therefore, it cannot be said that the report is ante-timed. Moreover, there is no evidence as to when and in what manner this entire false story has been cooked up by (PW-1). Law in this respect is very clear.
In [PRECEDENT] the Supreme Court observed as under:
12. The FIR in criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question. (Vide: [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT]."
The Supreme Court in [PRECEDENT] and [PRECEDENT], answered the similar question in 'negative'. In the said decisions, it has been held by the Supreme Court that from the cross-examination of prosecution witnesses, circumstances have to be elicited which would show that the FIR was ante-timed and then alone an inference can be drawn that the FIR was ante-timed.
It is further settled position of law that FIR can be proved ante-timed or ante-dated by adducing proper evidence. The lodger of FIR should be subjected to proper cross examination as to on what basis defence pleads the FIR to be ante-timed or ante-dated. Likewise, the police officer, who has recorded the FIR, is also required to be properly cross-examined as to on what basis defence pleads the FIR to be ante-dated or ante-timed. If no such requirement of law is completed and no such proper cross-examination of the witnesses is being done, it cannot be presumed that the FIR is ante-dated or ante-timed.
19. Applying to the above principles of law and after due appreciation of the evidence available on record, we are of the view that the trial Court was fully justified in convicting the appellant, who has been named as main person to cause firearm injuries to the deceased. Appeal has no substance and, the same is, accordingly, dismissed.
20. Appellant is reported to be on bail, he be taken into custody forthwith to serve the remaining sentence.
21. Let a copy of this judgment be sent to the concerned trial Court for necessary compliance.
Dated:19.10.2019 RKK/-Mohit ([ENTITY], J) ([ENTITY], J)