Tara Chand Kushwaha vs State of U.P.

Shyam Shankar Tiwari J.

Heard learned counsel for the appellants and learned AGA.

Written objection filed by learned AGA is taken on record.

Criminal Appeal No. 872 of 2009 has been preferred by appellant Tara Chand Kushwaha, Criminal Appeal No. 873 of 2009 has been preferred by appellant Santosh Kushwaha whereas Criminal Appeal No. 874 of 2009 has been preferred by Vijai Shankar Kushwaha. All these appeals have been preferred by the appellants against the judgment and order dated 20.1.2009 passed by learned Addl. Sessions Judge, Ghazipur in S.T. No. 415 of 2006 in which appellants Vijai Shankar, Santosh and Tara Chand alias Chandul have been convicted and sentenced to life imprisonment under section 302/34 IPC in addition to fine of Rs.10000/ each. They have further been convicted and sentenced to under go ten years rigorous imprisonment under section 307/34 IPC in addition to fine of Rs.5000/ each. Appellant Tara Chand has further been convicted and sentenced to undergo two years rigorous imprisonment under section 3/25 Arms Act in addition to fine of Rs.2000/ and in default of payment of fine the appellants have been awarded further six months imprisonment.

Appellant Amar Nath has already been granted bail by this Court earlier by order dated 25.2.2010 as he was assigned with a lathi causing simple injuries to injured Ramkrit.

All the above three appeals are being disposed of by a common order.

The prosecution story in brief is that on 17.8.2006 at about 5.30 a.m. appellant Amar Nath started beating Ramkrit by lathi on account of leakage of water in his crop of DHANIA and MOOLI from the field of RamKrit. On hearing the cry of RamKrit, Jai Prakash, Rajdeo, Hariom, Sonu reached there to rescue RamKrit where Santosh armed with gun, Vijayee armed with rifle and Tara Chad armed with country made pistol also reached there and caused fire arm injuries to Jai Prakash, Rajdeo,HariOm and Sonu. The incident was seen by the complainant Moti and other witnesses. An FIR was lodged at police station Nonhara district Ghazipur on 17.8.2006 at 6.30 a.m under section 323 and 307 IPC against the appellants. Subsequently Hari Om, Rajdeo and Jai Prakash succumbed to the injuries in the hospital on the same day and the case was converted under sections 302,323 and 307 IPC.

After investigation the Investigating Officer submitted charge sheet against the appellants u/s 302,323, and 307 IPC in addition to another charge sheet u/s 3/25 Arms Act against appellant Tara Chand alias Chandul. The case was committed to the Court of Sessions and learned trial court relying upon the evidence adduced by the prosecution recorded the finding of conviction against the appellants as mentioned above.

It is contended by learned counsel for the appellants that learned trial court did not appreciate the evidence adduced by the defence properly. The defence version has wrongly been disbelieved by the court below. The injuries sustained by five persons from the accused side have not been explained by the prosecution witnesses. The witnesses examined by the prosecution are highly interested and related to the deceased. Their evidence cannot be believed in absence of any corroboration by independent evidence. It is further contended that on 17.8.2006 appellant Amar Nath had gone to look after his crop of DHANIA and MOOLI in the mid night where he found leakage of water that from the field of RamKrit. he protested to it. RamKrit abused him and Amar Nath had given two blows of lathi to RamKrit. Due to that annoyance at about 4.30 a.m eleven persons including the deceased and injured from the prosecution side armed with lathi,danda, gun, revolver and country made pistol chased Amar Nath who rushed to his house. The persons chasing him entered in his house caused injuries to Jokhni,Lilawati, Smt. Kanti, Geeta, Vijai Shankar and Tara Chand and they also tried to commit rape on the ladies of the house by tearing their clothes and undergarment on which Lilawati and Geeta any how escaped, took out fire arm from their rooms opened fire causing injuries to Hari Om, Jai Prakash, Rajdeo and Avinash. It is further contended that the injured from the side of accused were medically examined by the Doctor and a cross case was initiated on the instance of Smt. Kanti which is still pending in the court of Magistrate concerned.

Learned AGA and learned counsel for the complainant rebutted the argument advanced by the appellants and have submitted that learned trial court disbelieved the version of alleged cross case put forward by the defence mainly on the ground that considering the age of the injured, deceased and informant ranging from 12 years to 80 years and considering the relationship of the parties and the circumstances in which it is said that the persons from the prosecution side snatched the ornaments of the ladies and tried to commit rape upon them is not possible nor reliable. Several persons from the prosecution side were father and sons and also one grand son and in their presence attempt to commit rape on the ladies present in the house is only a concocted theory. Three male accused were present in that house at that time but only ladies are said to have opened fire on the persons of the prosecution side. He also discussed the fact that none of the accused or the ladies of their family sustained any fire arm injury caused by the prosecution side, though it is said that they were armed with gun, rifle and country made pistol when they entered in the house of the accused persons.

It is also submitted by the prosecution side that non production of independent witness by the prosecution is not fatal to the prosecution case particularly when the witnesses of fact examined in the court are injured witnesses supporting the prosecution case. The ocular evidence is further corroborated by the post mortem report and injury report of the injured. It is also submitted by the prosecution that there is no cross version or cross case. Only a false and fictitious story has been put forward by the defence just to meet out the prosecution case. Since the time and place of the incident narrated by the prosecution is different from the time and place alleged by the defence and the injuries alleged to have been sustained on the person of the injured from the accused side are simple and superficial in nature, the prosecution was not obliged to explain such injuries.

Learned counsel for the appellants have placed reliance on the observations made by the Hon''ble Apex Court in the case of Luxmi Singh V. State of Bihar (1976) 4 SCC page 394. In support of their contention that if prosecution fails to explain the injuries on the person of the accused the court can draw the following inference:

1." that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore, their evidence is unreliable;

that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."

The same view has been reiterated by the Hon''ble Apex Court in the case of Babu Ram and others Vs. State of Punjab (2008) 3SCC page 709.

It has been argued by learned counsel for the complainant that since there is no cross version and the accused do not allege to have sustained injuries in the incident alleged by the prosecution, the prosecution is not legally obliged to explain their injuries. Learned counsel for the appellants have vehemently argued that non explanation of injuries on the person of the accused persons is an important factor which belies the entire prosecution story. On the other hand learned AGA has argued that a perusal of the injuries on the person of the injured persons from the accused side, it appears that none of the injuries of the defence side are serious in nature. They are simple injuries and most of them are superficial in nature..

In the case of Bhaba Nanda Vs. State of Assam AIR 1977 S.C page 2252 a three Judge Bench of Hon''ble Apex Court held as under:

" The prosecution is not obliged to explain the injuries on the person of an accused in all cases and in all circumstances. This is not the law. It all depends upon the facts and circumstances of each case whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused. In the instant case, the Sessions Judge was not justified in doubting the truth of the version given by the eyewitnesses three of whom were wholly independent witnesses. Gopi Nath was surely present on the scene of the occurrence as he himself had received the injuries in the same transaction. The High Court has rightly believed the testimony of the eyewitnesses."

The law on the subject has been succinctly clarified by R.C.Lahoti, J.( as he then was) speaking for a three Judge Bench in Takhaji Hiraji Vs. Thakore Kubersing Chamansingh [(2001) 6 SCC 145]. After referring to the three Judge Bench decisions of this Court, it was observed:

".....the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before nonexplanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the Court has to be satisfied of the existence of two conditions: (I) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Nonexplanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear, cogent and credit worthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case."

The same view has been reiterated by Hon''ble Apex Court in the case of Mahesh Vs. State of Maharashtra 2008(62) ACC page 375. The Hon''ble Apex Court referring to the view taken by it in the case of Krishan and others vs. State of Haryana (2006) 12 SCC page 459 held that

"merely because prosecution has failed to explain the injuries on the accused the same cannot be a solitary ground for doubting the prosecution case, if otherwise, evidence relied upon is found to be credible. In the case on hand, as we are of the view that no ground is made out to disbelieve and discard the evidence of P.Ws.4, 8 and 16, who are injured ad non injured eye witnesses and whose evidence is corroborated by other oral and documentary evidence including the medical evidence, therefore nonexplanation of simple injury on little finger of the right hand of the appellant by the prosecution is insignificant in the teeth of the overwhelming cogent, consistent and trustworthy evidence appearing on record against the appellant for holding him guilty of the commission of the offence."

On the strength of above observations of Hon''ble Apex Court in the aforementioned cases the learned counsel for the complainant has argued that there is no cross case of the present incident. The injuries on the persons of the accused side being superficial and simple in nature need not be explained by the prosecution witnesses. The observations made by Hon''ble Apex Court in case of Luxmi Singh(Supra) and BabuRam (Supra) are not applicable in the present case and the defence cannot get any benefit of the above observations as the facts and circumstances of that case are quite distinct from the facts and circumstance of the present case..

It has also been argued by learned counsel for the appellants that prosecution has examined only related and highly interested witnesses in support of its contention. Their testimony cannot be relied upon as they are interested witnesses. No independent witness has been examined in this case. A perusal of the record reveals that RamKrit and Avinash are the injured witnesses in the alleged incident. They have sustained injuries on their person. They have fully supported the prosecution case. P.W.1 is the informant and complainant of this case and he has also supported the prosecution story. In the case of Masalti v. State of U.P. AIR 1965 S.C. Page 202, The Ho''ble Apex Court has observed as under:

" But it would, we think be unreasonable to contend that evidence given by the 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 in variably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence. But the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

This view has further been reiterated by the Hon''ble Apex Court in the case of Saleem Saheb Vs. State of Madhya Pradesh(2007) 1 SCC page 699 wherein it has been held that" mere relationship is not a factor to affect the credibility of the witnesses. It is more often than not that relation would not conceal actual culprit ad make allegations against an innocent person. Foundation has to be laid if plea of false allegation 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 same view has been reiterated by Hon''ble Apex Court in the case of Bhagwan Bahadure v. State of Maharashtra 2007(4) Crimes page 170 S.C. Wherein it has been observed as below:

"We shall first deal with the contentions regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person."

In the case of Mahesh Vs. State of Maharashtra(Supra) the Hon''ble Apex Court has observed that as regards on examination of the independent witnesses who probably witnessed the occurrence on the road side suffice it to say that the testimony of the injured witnesses who received injuries in the occurrence if found to be trust worthy of plea cannot be discarded merely for non examination of the independent witnesses.

19 It has further been observed that it is well settled that in such cases many times independent witnesses do not come forward to depose in favour of the prosecution. There are many reasons that person some times are not inclined to become witnesses in the case for variety of reasons. It is well settled that merely because the witnesses examined by the prosecution are relatives of the victims of fact by itself will not be sufficient to discard and discredit the evidence of the relative witnesses, if otherwise they are found to be truthful witnesses. Of course the evidence of such witnesses has to be accepted after a deep and thorough scrutiny.

In view of the above discussions and after hearing the submissions made by learned counsel for the parties and considering the gravity of offence and nature of accusation and nature of evidence available on record it appears that the case of present appellants is distinguishable from appellant Amar Nath and the present appellants have no case for bail.

Accordingly their prayer for bail is hereby refused.

Office is directed to prepare paper book within three months and hearing of the appeal is expedited and it be listed thereafter.