Allahabad High Court
Hari Kesh Yadav vs State Of U.P. on 11 April, 2025
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
HIGH COURT OF JUDICATURE AT ALLAHABAD
(LUCKNOW)
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Judgment Reserved on :- 03.01.2025
Judgment Delivered on :- 11.04.2025
Neutral Citation No. - 2025:AHC-LKO:20126-DB
Court No.-9
Case :- CRIMINAL APPEAL No. - 611 of 2001
Appellant :- Hari Kesh Yadav
Respondent :- State of U.P.
Counsel for Appellant :- I.P.Singh,Mohak Srivastava
Counsel for Respondent :- Govt.Advocate
Hon'ble Mrs. Sangeeta Chandra, J.
Hon’ble Ajai Kumar Srivastava-I,J.
(Per :- Sangeeta Chandra, J.)
1. This Criminal Appeal has been filed against the judgement and order dated 17.07.2001 passed by learned VIth Additional District and Sessions Judge, Sultanpur, convicting and sentencing the appellant in Sessions Trial No.161 of 1995, arising out of Case Crime No.31 of 1995 under Section 302 of the I.P.C. for a term of life imprisonment with fine of Rs.5000/- and in case of failure of deposition of fine, additional six months imprisonment.
2. We have heard Sri Mohak Srivastava, learned Amicus on behalf of the appellant, who has stated that the appellant has absconded from jail since 2002 itself. We have also heard Sri Umesh Verma, learned Additional Government Advocate on behalf of the State Respondents.
3. The prosecution story in short is that one Jagdev Yadav, P.W.-2 lodged an F.I.R. on 07.02.1995 that one Hari Prasad Yadav, P.W.-3 had bought an oil expeller machine and he had set up the machine in his own compound and several villagers including the informant and his son, Asharfi Lal and P.W.-1, Santari Prasad, P.W.-4, Surya Baksh Singh, Chhote Lal and the accused Harikesh Yadav had gone to see the oil expeller machine inauguration in the morning and while they were watching P.W.-3, Hari Prasad trying to start the oil expeller machine, at around 07:45 a.m., his son Asharfi Lal was shot at by Harikesh Yadav the accused, and Asharfi Lal fell inside Hari Prasad Yadav’s compound injured. There was no long running enmity between the accused and his son Ashrafi Lal. Around three months ago, the brother of Harikesh Yadav, one Shobhnath had a quarrel with the wife of Kalpnath and his son Ashrafi Lal had gone to mediate between them. The quarrel was settled with his intervention. Thereafter, Asharfi Lal and Harikesh Yadav were seen together many times, but perhaps Harikesh Yadav did not like Asharfi Lal intervening in the quarrel and shot him when he found opportunity to do so.
4. Not only did the informant, P.W.-2, Jagdev Yadav see Harikesh Yadav the accused firing gunshot at his son Asharfi Lal, but other villagers also saw the incident. The injured Asharfi Lal was placed on a cot (charpoy) and a horse cart (khadkada) was called from a neighbouring village Ramnagar and injured Asharfi Lal was taken to the Police Station in the said cart.
5. The written report, Ext. Ka-1 was lodged at 08:50 AM at Police Station Jagdishpur under Section 307 of the I.P.C. However, the Police told the informant to take the injured Asharfi Lal to hospital as there were chances that he would survive. When Asharfi Lal was taken to hospital, the Doctor on duty examined him and declared him dead. Information regarding the same was sent by the hospital to the Police Station and the body of the deceased was also brought back to the Police Station concerned by the informant. The offence under Section 307 I.P.C. was converted to one under Section 302 I.P.C. Charge-sheet, Ext. Ka-11 was filed by the Investigating Officer thereafter and on 30.05.1995 charge was framed against the accused Harikesh, who pleaded not guilty and claimed Trial.
6. The prosecution got examined seven witnesses of which P.W.-1 Santari Prasad, P.W.-2 Jagdev, P.W.-3 Har Prasad, P.W.-4 Surya Baksh Singh and P.W.-5 Dr. Chandra Bhushan Nath Tripathi were witnesses of fact, and P.W.-6 Sub Inspector Rajendra Singh Yadav and P.W.-7 Head Constable Ram Saran, were Official witnesses.
7. The documentary evidence was proved with regard to initial written report, Ext. Ka-1 of the incident submitted by P.W.-2, Jagdev Yadav and P.W.-5 Dr. Tripathi proved the post-mortem report, P.W.-6 SI Rajendra Singh Yadav. The Investigating Officer, proved the enquiry report, the special report sent to the Reserve Inspector Lines, the information sent to the Chief Medical Officer, the challan prepared of the dead body at the hospital and also the report regarding seizing of the Cot (Charpoy) on which the injured was brought to the Police Station and then taken to the hospital as case property; the site plan, Ext. Ka-9 prepared and the blood stained soil taken from the place of the incident and the charge-sheet filed in Court. P.W.-7 Head Constable Ram Saran proved the lodging of the chik F.I.R., the GD Report nos.10 and 12, the conversion of the offence from Section 307 I.P.C. to 302 of the I.P.C. on information having been received regarding the death of the injured.
8. The learned trial court, after appreciating the evidence available on record, rendered the impugned judgment and order dated 17.07.2001 whereby the accused/ appellant came to be convicted as aforesaid.
9. Aggrieved by the aforesaid impugned judgment and order dated 17.07.2001, the accused/ appellant has preferred the instant criminal appeal.
10. Sri Mohak Srivastava, learned Amicus, has argued that the learned Trial Court has believed the version of the father of the victim, who was related and interested witness and has delivered the judgment on the basis of conjecture and surmises as none of the witnesses actually saw the appellant Harikesh Yadav using a country-made pistol to fire a shot at Asharfi Lal. No weapon of assault was recovered from the accused. Also, no motive was assigned for the alleged murder of Asharfi Lal by the accused. The motive which was assigned by the informant regarding a quarrel that took place about three months before the date of the incident, did not involve the appellant, Harikesh and the deceased Ashrafi Lal directly. The quarrel was between Harikesh’s brother Shobhnath, and the wife of one Kalpnath. It has not been disputed by the witnesses that the accused Harikesh had been on good terms with Asharfi just before the incident and they had come together to Hari Prasad’s compound to watch the oil expeller machine.
11. The Trial Court considered the evidence of P.W.-1 Santari Prasad, who happened to be present at the time of the incident as he was one of the villagers who had visited the compound of P.W.-3, Hari Prasad Yadav to witness the inauguration of the Oil Expeller machine. In his statement, he described the compound of Hari Prasad Yadav where the northern wall was higher and on which a temporary roof had been constructed (Madaha) to shelter the Oil Expeller machine. The three other walls of the compound were much lower in height and were being used by villagers to prop themselves up and sit around to witness the starting of the Oil Expeller machine. It was stated by P.W.-1 Santari Prasad that around 07:00 a.m., Ashrafi Lal came and sat on eastern lower wall and the accused Harikesh sat next to him. Later on Asharfi Lal’s father, Jagdev, P.W.-2 arrived and he sat next to Santari Prasad, P.W.-1 on the southern wall of the compound. All of a sudden, Harikesh aimed his country-made pistol on Asharfi Lal’s back and fired a shot at him, as a result whereof, Asharfi Lal fell inside the compound and Harikesh ran away. Later on, the injured Asharfi Lal was placed on a Cot (Charpoy) and taken on a horse cart by his father and other villagers to Jagdishpur Police Station.
12. The Trial Court has noticed that P.W.-1, Santari Prasad was subjected to long and gruelling cross-examination, but he did not deviate from the story set up by the prosecution. The Trial Court was convinced that Santari Prasad having sat on the southern wall on the compound could easily see Harikesh Yadav accused and Asharfi Lal the deceased on the eastern wall of the compound. P.W.-1 Santari Prasad also stated that the incident was witnessed by P.W.-4, Surya Baksh Singh, Chhote Lal, P.W.-2 Jagdev Yadav and others. The only contradiction that was pointed out by the defence in the cross-examination of this witness was that his statement under Section 161 of Cr.P.C. had stated that the accused as well as the deceased were already present in P.W.-3, Hari Prasad’s compound before P.W.-1, Santari Prasad arrived on the scene. Later on, before the Court in his Examination-in-Chief Santari Prasad had stated that he was present in the compound before the deceased and the accused arrived. The Trial Court was of the opinion that only because of this minor deviation in the earlier statement made under Section 161 of the Cr.P.C. before the Investigating Officer, the evidence of P.W.-1 Santari Prasad could not be ignored altogether. No major contradiction could be pointed out by the defence even after extensive cross examination of such witness.
13. P.W.-1, Santari Prasad also stated with much clarity and conviction that because of the shot being fired by accused Harikesh, all three upper garments which Asharfi Lal was wearing i.e. the sweater, the bush shirt and the baniyan/ vest had a hole caused in them. This fact was also corroborated from the clothes of the deceased which were found on his body at the time of post-mortem and had been sealed by the Medical Officer concerned.
14. P.W.-1, Santari Prasad had also stated that when the accused Harikesh Yadav fired the country-made pistol, a loud sound was heard by all present, and as soon as they went to pick up Asharfi Lal, who had fallen to the ground inside the compound, Harikesh, the accused ran away. He also deposed that the horse cart was called from Rampur village, which was half a kilometre away, and it took some time for it to arrive, and in the meantime, all the family members of Asharfi Lal were crying aloud. Asharfi Lal who was injured at the time had lost consciousness, and because of delay in procuring the horse cart, the injured could be taken to the Police Station Jagdishpur only at around 09:00 in the morning.
15. P.W.-2 Jagdev also stated that he saw the accused Harikesh firing the gun-shot at his son Ashrafi Lal on his back, as a result whereof, Asharfi Lal fell inside the compound. The injured Asharfi Lal was laid on the cot, and his father Jagdev, tried to stop the bleeding from the wound by wrapping a towel / angauchha around it. They waited for the horse cart while the family members were crying. While on the way to the Police Station, he met one Ram Naresh, who wrote a written report on which P.W.-2, Jagdev affixed his thumb impression. As soon as they reached the Police Station, he was told that his son was still alive and they should take him to hospital. Asharfi Lal was taken to the hospital, but by then he had died. The body of Asharfi Lal was taken to the Police Station where inquest report, Ext. Ka-3 was prepared and the Charpoy on which the deceased was lying was seized as case property. The dead body was handed over to one Constable, who took it to the hospital for postmortem. The Investigating Officer had visited the compound of Hari Prasad to make a site plan and also collected blood stained and plain soil from the place. The only motive for the accused Harikesh to have fired the gunshot at Asharfi Lal, as could be thought of by his father, Jagdev Prasad, P.W.-2 and narrated to the Police was reiterated in court that one Kalpa Nath’s wife had a quarrel with the accused Harikesh’s brother, in which Asharfi Lal had intervened, and because of such intervention, Harikesh Yadav had been annoyed with the Asharfi Lal. Even though the quarrel between the parties had been settled, Harikesh Yadav being annoyed with Asharfi Lal’s intervention had taken revenge in this manner.
16. The Trial Court has considered the evidence of P.W.-2, Jagdev in the light of the deposition of P.W.-1, Santari Prasad, who was unrelated and a fellow villager, and had found more or less the same story being repeated by both the witnesses, although the time of the incident stated by Jagdev P.W.-2 was a little different, but the Trial Court ignored such difference in time on the ground that Jagdev himself was an illiterate person whose son had been shot at on the same day and had later on died, and it was possible that he would have lost track of time because of stress and grief.
17. P.W.-2, Jagdev also stated that as soon as the incident occurred almost the entire village came to his house, and the women in the house started crying loudly while they were all waiting for the horse cart to arrive from the neighbouring village Ramnagar.
18. The Trial Court considered the evidence given by P.W.-2, Jagdev and his cross-examination on two consecutive dates by the counsel for the defence and found that no material contradiction could be pointed out by the defence in such statement.
19. P.W.-3 Hari Prasad Yadav was the person who was setting up the Oil Expeller machine in his compound, which machine had some starting trouble, and while he was busy in trying to start the machine, he suddenly heard a loud noise, and saw Ashrafi Lal falling inside the compound, at that time Asharfi Lal was alive. The incident was witnessed by P.W.-4, Surya Baksh Singh, P.W.-1, Santari Prasad, and all other villagers who were present. P.W.-3, Hari Prasad, very naturally stated that he actually could not see who had caused the gun-shot injury on Ashrafi Lal as he was busy in starting his Oil Expeller machine. He only heard a noise and he saw Ashrafi Lal falling inside the compound. At this the prosecution prayed for declaration of such witness as a hostile witness and he was subjected to detailed cross-examination both by the prosecution and by the defence. P.W.-3, Hari Prasad also stated during such cross-examination that it took around 45 minutes for the horse cart to arrive from the neighbouring village and by that time the entire village had gathered around Asharfi Lal who had been laid on a Cot (Charpoy). It was only at around 9:00 AM or 9:30 AM that the injured could be taken to the Police Station. They stayed in the Police Station for around one and a half hours. Later on, the Sub-Inspector told them to go home and that he would be coming to the village to record their statements and inspect the site of the incident.
20. The Trial Court was of the opinion that P.W.-3 Hari Prasad could not be treated to be a hostile witness as he had more or less reiterated the prosecution story and very naturally and truthfully had also stated that since the Oil Expeller machine had starting trouble, he was trying to fix it and he only heard the gunshot and saw Ashrafi Lal falling inside the compound. It took him by surprise and he could not see Harikesh. The accused actually firing the gun-shot on Asharfi Lal, but he did mention that before the incident the accused Harikesh was sitting next to the deceased Asharfi Lal, but as soon as Asharfi Lal fell inside the compound, Harikesh, the accused had disappeared. P.W.-3, Hari Prasad, thus, corroborated the evidence of the other prosecution witnesses, who stated that taking advantage of the confusion resulting from such gun-shot being fired at Ashrafi Lal, Harikesh, the accused had run away.
21. P.W.-4 Surya Baksh Singh also stated that he was an eye witness to the incident which happened around 07:45 in the morning. He heard the gun-shot and also saw Harikesh trying to run away and he tried to apprehend him, but the accused Harikesh managed to escape. He denied the statement given by P.W.-3, Hari Prasad Yadav that he along with some other villagers was not present in the compound but was waiting outside under the tree where they had lit a fire and were warming themselves when the incident happened. P.W.-4, Surya Baksh Singh also stated that he was wearing a watch and he, therefore, knew the exact time of the incident which was around 07:45am when the incident happened.
22. The Trial Court took the evidence of P.W.-4, Surya Baksh Singh with a pinch of salt as there was a lot of detailing and embellishments that could be discerned in the version given of the incident by P.W.-4, Surya Baksh Singh. However, there was no denial of the fact that Harikesh, the accused had fired the gun-shot on the back of Asharfi who was sitting next to him, which resulted in his falling inside the compound and later on dying of such injury.
23. The Trial Court next considered the evidence of P.W.-5 Dr Chandra Bhushan Tripathi regarding post-mortem having been conducted by him on the dead body of Asharfi Lal. He had found a gun-shot wound of entry 1.5 cm x 1.5 cm on the back of the deceased some 8 cm below his scapula, which had resulted in puncturing of his lungs and some 58 pellets along with Wadding having been recovered from inside the body which were sealed and given along with the clothing to the Police Constable who had brought the body of the deceased to the mortuary. The Medical Officer had stated that there was blackening and charring around such wound of entry. Having examined the internal organs, the Medical Officer had stated that his stomach and intestine were empty, and it appeared that the deceased may have died around 10:00 a.m. due to gun-shot injury having been caused from close range. A specific suggestion was made to such Medical Officer by the defence counsel regarding the possibility of death of the deceased having occurred in the early hours of the morning, but the Medical Officer stated that the time of death is only approximate and it is possible that there may be a difference of around four hours in the estimated time of death and actual death.
24. The Trial Court then examined P.W.-6 Sub-Inspector Rajendra Singh Yadav, who was the Investigating Officer. He stated that initial report was made of the incident on 07.02.1995 at around 08:50 a.m. under Section 307 I.P.C., but at around 09:50 a.m., as recorded in G.D. entry No.12, the dead body of Ashrafi Lal was returned to the Police Station and hence Section 307 of the I.P.C. was scratched out and 302 of the I.P.C. written by the Head Constable Ram Saran, P.W.-7 in the amended G.D. entry. The Investigating Officer also proved the letter sent to the Reserve Inspector, and to the Chief Medical Officer. In this regard, he proved the seizing of the Cot (Charpoy) as case property and also the site plan and the blood stained soil and plain soil collected from the place of the incident. The Investigating Officer denied the suggestion made by the defence that dead body of Ashrafi Lal was brought to the Police Station by the villagers and he may have died much earlier, and there was a deliberate over writing in the General Diary with regard to the time of offence. It was suggested by the defence that the initial report was under Section 302 of the I.P.C., and it was overwritten and Section 307 of the I.P.C. was later on interpolated thereon. The chik F.I.R. and G.D. entry were proved by Head Constable Ram Saran, who also denied that the deceased had already died and his body was initially brought by his father and other villagers to the Police Station. Head constable Ram Saran, P.W.-7 had stated that initial G.D. Entry No. 10 in the Police Station Jagdishpur was made with regard to gun-shot injury having been suffered by Asharfi Lal under Section 307 of the I.P.C., and later on after about one hour information regarding death of the deceased was received and the G.D. Entry No. 12 was recorded under Section 302 of the I.P.C.
25. It had been argued by the defence counsel before the Trial Court that the Investigating Officer did not start the investigation immediately after report under Section 307 I.P.C. was made at the Police Station Jagdishpur. Rather, he waited for the injured to die and then started investigation into the crime. The Trial Court has observed in paragraph 45 of its judgement that it is but natural for the Police to try and save the life of the injured by sending him immediately to the hospital instead of waiting for him to die and registering the case under section 302 I.P.C. and starting investigation thereon. The Trial Court noticed that the Investigating Officer had stated that the informant’s statement was noted in the Case Diary at the Police Station itself but no proof regarding the same could be brought before the Court and the Court observed that it may only indicate an irregularity and carelessness on behalf of the Investigating Officer and would not in any way make any dent on the prosecution story.
26. In paragraph-48, the Trial Court has referred to the evidence of the Investigating Officer and analyzed the same in the light of the post-mortem report and the evidence of the Medical Officer concerned who had stated that it appeared that the gun-shot was fired at very close range, which had resulted in an inverted wound of entry with blackening around it. The Wadding and 58 metallic pellets were recovered from the lungs and abdominal cavity of the deceased during post-mortem.
27. The Trial Court in paragraph-53 onwards of its judgement has considered the evidence of P.W.-1, Santari Prasad, P.W.-2, Jagdev, P.W.-3, Hari Prasad and P.W.-4, Surya Baksh Singh and having analyzed such evidence given by witnesses of fact, had found that P.W.-2, Jagdev, the informant and father of the deceased Asharfi Lal was an illiterate person who had no knowledge regarding the exact time when the incident took place. However, he had more or less given a truthful account of the entire incident and that he had tried to stop the bleeding from the wound of Asharfi Lal by putting his towel/ angauchha on it. His angauchha was found by the Medical Officer P.W.-5, Chandra Bhushan Nath. When he examined the body at the mortuary, it was sealed along with other clothing recovered from the body of the deceased, which included a sweater, a shirt, and a vest all of which carried a hole in them as a result of gun-shot being fired upon the deceased by Harikesh the accused.
28. The Trial Court has considered the evidence of P.W.-1, Santari Prasad and P.W.-3, Hari Prasad and observed that P.W.-1, Santari Prasad appeared to be a natural eyewitness who was sitting next to Jagdev Prasad P.W.-2 at the time of the incident and who had seen Asharfi Lal sitting next to the accused Harkesh on the eastern wall of the compound, where the Oil Expeller machine had been set up by Hari Prasad Yadav P.W.-3. Hari Prasad Yadav was also found by the Trial Court to be a more or less truthful and natural witness who had stated that he was busy in trying to start the engine and he could only hear the gunshot and looked up to find Asharfi Lal having fallen inside the compound. He had been prayed to be declared hostile by the prosecution, but the Trial Court was of the opinion that such witness was speaking the truth as it was but natural for him to try to start his Oil Expeller machine and having concentrated all his attention thereto, he could not have actually seen the accused Harkesh yadav firing the gun shot, which later killed Asharfi Lal.
29. The Trial Court found from the evidence of P.W.-3, Hari Prasad Yadav that he had, however, admitted that before the gun-shot had been fired, he had seen Harikesh the accused sitting next to Asharfi Lal, but later on Harikesh had disappeared from the scene. The Trial Court found that P.W.-3, Hari Prasad had confirmed the presence of all the prosecution witnesses in his compound. The Trial Court also found P.W.-4 Surya Baksh Singh to be an independent witness, but a witness who had tried to prove his presence in the compound by making some embroidery in the core prosecution story by indicating that he had tried to apprehend Harikesh the accused, but he managed to run away. He had also mentioned that the informant had fell unconscious for some time after the incident seeing his son, Ashrafi Lal, having been injured, but later on regaining consciousness. P.W.-4’s story was actually very much in line with the prosecution story, except for the fact that he had tried to bring in unnecessary details which raised the suspicion with regard to his presence on the spot. Nevertheless, there were no material contradiction which could be found in the cross-examination in the core prosecution story. The Trial Court has given its findings with regard to the timing of the incident being at around 07:45 a.m. on the basis of the evidence of P.W.-1, Santari Prasad, P.W.-3, Hari Prasad and P.W.-4, Surya Baksh Singh and it found P.W.-2, Jagdev to be an illiterate person who could not be said to be aware of the exact time as he had no idea with regard to functioning of a watch. The Trial Court had found P.W.-2, Jagdev and P.W.-4’s, Surya Baksh Singh’s statement regarding P.W.-2, Jagdev tying an angauchha on Asharfi Lal’s injury to stop his bleeding having been corroborated from the postmortem report. It showed that Asharfi Lal was not dead at that time.
30. The Trial Court also found that the accused Harikesh Yadav had absconded during trial and his surrender could be ensured only after coercive steps were taken under Section 82 and 83 of the Cr.P.C.
31. The Trial Court found that P.W.-1, Santari Prasad and P.W.-2, Jagdev were trustworthy and reliable in their account of the incident and also that P.W.-3, Hari Prasad was not a hostile witness, rather, his statement was very natural. The Court rejected the unnecessary details that had been added by P.W.-4, Surya Baksh Singh in his evidence relied mainly upon the core story, which was found to be true and corroborated from evidence of other witnesses.
32. Having heard Mohak Srivastava, learned Amicus, who tried to reagitate the matter on the same points which were taken up by the counsel for the defence during trial, we have carefully examined the judgement and order impugned in this Appeal. We have found no factual or legal infirmity in the appreciation of evidence by the learned Trial Court. The Trial Court has meticulously considered each and every judgement cited by the defence counsel while recording its findings.
33. The defence had cited State of U.P. Vs. Bhola, (1997) SCC OnLine All 627; and had found that such case related to removal of the dead body from the place of the incident and had found that Asharfi Lal was alive and he had been taken in an injured condition first to the Police Station and then to the hospital, and that such case turned on different facts altogether.
34. The Trial Court also considered the judgement rendered in State of Haryana Vs. Bhagirath, (1999) SCC OnLine SC 577, relied upon by the defence where the Supreme Court had expressed that evidence of expert witnesses should be analyzed by the Court taking into account other evidence collected by the prosecution and the evidence of the expert fitness alone should not be relied upon to dispose of the case.
35. The Trial Court also considered State of U.P. Vs. Ashok Dixit and others, 2000 (3) SCC 70, where the Supreme Court had observed that there were material contradictions in the statements of prosecution witnesses and medical evidence had not supported the evidence of witnesses. No explanation was forthcoming from the prosecution for discrepancies in the statements of prosecution witnesses and their occular evidence and the medical evidence relating to bullets recovered from the body of the deceased. The Trial Court rightly ignored judgement cited by the defence as it turned on different facts all together.
36. With regard to Salikram and others Vs. State of U.P. and others, (1996) SCC OnLine Allahabad 585: (1998) 37 ACC 181; the High Court had found discrepancy in the timing of filing of the F.I.R. and had allowed the appeal, but in the instant case, the prosecution story as supported by prosecution witnesses had stood the test of cross-examination and no material contradictions had arisen with regard to the time of the incident and also the time of its reporting at the Police Station.
37. The Trial Court has also considered the judgement rendered in Madan Rai Vs. State, reported in (1996) SCC OnLine Allahabad 257:(1997) 34 ACC 248; where the court observed that it is the duty of the Investigating Officer to start the investigation as soon as a cognizable offence is registered at the Police Station. The Investigating Officer in the said case had made no entry in his Case Diary or the General Diary that he visited the place of the incident after the F.I.R. was registered. The Investigating Officer had stated that it was not necessary to mention the date on which he had proceeded to the place of the incident and ask to when he started the investigation in the Case Diary. Since no date and time was mentioned in the Case Diary, the Court had not believed the Investigating Officer. The facts of such case were clearly different from the facts being considered by the Trial Court. The Trial Court observed that although every Investigating Officer should immediately start the investigation, in this case, since the injured was still alive, he had rightly sent him to hospital to save his life. It was another matter that on having reached the hospital, the Medical Officer had found the injured to have died. The dead body was brought back to the Police Station immediately. Thereafter, Section 307, amended to Section 302 I.P.C. and the Investigating Officer started investigation by recording statement of the informant and visiting the site of the incident soon thereafter.
38. Kothakalava Naga Subba Reddi and others Vs. Public Prosecutor, High Court of Andhra Pradesh, (2000) 9 SCC 21, was cited and has been relied upon by the learned Trial Court. The Trial Court followed the observations made by the Supreme Court regarding appreciation of evidence and reliability of eyewitness accounts and the corroboration from the F.I.R. and injuries received by the deceased from medical evidence. Such corroborations had established the prosecution story, although there were certain minor variations, but such variations were natural as unless the witnesses are tutored, they cannot repeat the prosecution story in a parrot like manner.
39. In Bhola and others Vs. State of U.P., 1998 SCC OnLine Allahabad 585: (1999) 38 ACC 22; there was material contradiction discovered in the evidence of prosecution witnesses by the Appellate Court however, in the instant case, the Trial Court had carefully examined the evidence of the prosecution witnesses and had found the core prosecution story having been reiterated by all of them, although there were minor discrepancies in their detailed versions which could be ignored.
40. In State of U.P. Vs. Bhagwan and others, (1997) 11 SCC 19; the Supreme Court has observed that minor discrepancies in evidence of eye-witnesses are immaterial unless they demolish the basic case of the prosecution. The Court had also observed that evidence of an eye-witness who is partisan, by itself cannot be a ground for discarding the evidence. His testimony only requires more careful and thorough scrutiny.
41. In State of Rajasthan Vs. Teja Singh and others,(2001) 3 SCC 147; the Supreme Court had found delay in lodging of F.I.R. and had also found that no independent witness was ready to support the prosecution story. In the present case, however, P.W.-1, P.W.-3, and P.W.-4 were all independent witnesses, who had supported the prosecution story and their case could not be demolished even after detailed cross examination.
42. In Padam Singh Vs. State of U.P., 2000 (1) SCC 621, there were four eyewitnesses who had been examined, but all had enmity with the accused. In the instant case, however, the prosecution witnesses had no enmity with the accused.
43. The Trial Court relied upon observations made by the Supreme Court in Bhagwan Tana Patil Vs. the State of Maharashtra, (1974) 3 SCC 536, where the Supreme Court observed that –
“The maxim falsus in uno falsus in omnibus cannot be blindly invoked in appraising evidence adduced in our courts where witnesses Seldom tell the whole truth, but often resort to exaggerations, embellishments and ‘padding up’ to support a story however true in the main. It is the function of the Court to disengage the truth from the falsehood and to accept what it finds to be true and reject the rest. It is only where truth and falsehood are inextricably mixed up, polluting beyond refinement, down to the core, the entire fabric of the narration given by a witness, that the court might be justified in rejecting his evidence in toto.”
44. The Trial Court has also placed reliance upon Gopal and others Vs. State of U.P., 1999 SCC OnLine Allahabad 1339:(1999) 39 ACC 98; where the Full Bench observed that investigation of the case, if faulty, even mischievous or collusive should not be a ground to reject the ocular testimony of the informant who lodged the F.I.R. promptly. Each and every case has to be decided on its intrinsic evidence. If the witnesses are believable, the mere weakness of the investigation should not be a ground to reject their testimonies, place of occurrence, time of occurrence, weapon of assault, and participation of the accused persons all having been fully established and both the prosecution witnesses being fully believable witnesses and having proved their case, some laches or mischief on the part of the Investigating Officer is no ground to discard the statement of the witnesses which had been fully corroborated by medical evidence.
45. The Trial Court has also placed reliance upon State of West Bengal Vs. Mir Mohammad Omar and others, 2000 (8) SCC 382 where the Supreme Court has observed that it is almost impossible to come across a single case where in the investigation was conducted completely flawless or absolutely foolproof. The function of criminal courts should not be wasted in picking out the lapses in the investigation, and by expressing unsavoury criticism against the Investigating Officers. if the offenders are acquitted only on account of flaws or defects in the investigation, the cause of criminal justice becomes the victim. Efforts should be made by the Courts to see that criminal justice is salvaged despite such defects in investigation. Courts should bear in mind the time constraints of the police officers in the present system, ill-equipped machinery they have to cope with, and the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are a reality which the police force have to confront with while conducting investigation in almost every case.
46. Thus, having carefully examined the evidence led by the prosecution before the learned trial court and the impugned judgment and order dated 17.07.2001 rendered by the learned trial court, we are of the considered view that the learned trial court, while recording the finding of guilt of the sole appellant, has appreciated the evidence in its correct perspective and in accordance with law. It has not committed any illegality, irregularity or manifest error of law while recording finding of guilt of the appellant and consequently holding the sole appellant guilty of offence under Section 302 I.P.C. and sentencing him to the life imprisonment. Therefore, the finding of learned trial court cannot be said to be perverse also. Thus, we affirm the findings of learned trial court.
47. The appeal lacks merit and is liable to be dismissed and the same is hereby dismissed, accordingly.
48. Learned Amicus, Sri Mohak Srivastava shall be entitled to Rs.15,000/- (Rupees Fifteen Thousand) from the High Court as fee for his services.
49. As the appellant is stated to be absconding since 2002, the learned trial court shall issue permanent non-bailable warrant and shall ensure that the appellant is arrested and is lodged in jail to serve out the sentence, in accordance with law.
50. Let a copy of this judgment be sent to learned trial court concerned alongwith trial court record for its information and necessary compliance forthwith.
(Ajai Kumar Srivastava-I, J.) (Sangeeta Chandra,J.)
Order Date :-11.04.2025
Rahul/cks