Dismissed

Kashmir Singh and Ors. v. State

Allahabad HC6 Jan 2018CRLA/495/1983

Case brief

AI extract

What is this about?

Criminal Appeal against life imprisonment conviction under IPC 302/34 for murder. The High Court upheld the trial court's conviction, rejecting arguments regarding FIR delay, lack of independent witnesses, and absence of motive, giving credence to direct eyewitness testimony.

What did the court decide?

Appeal dismissed; impugned order of conviction and sentencing upheld; appellants to remain in jail.

Kashmir Singh and Ors. Vs State — Murder and Culpable Homicide | Allahabad HC (2018)

AFR

Court No. 42

Case :- CRIMINAL APPEAL No. - 495 of 1983

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Appellants:- Kashmir Singh and others Respondent :- State Counsel for Appellant :- R. Singh, Ajay Vikram Yadav, Raja Singh, Satyam Singh, Shiv Nath Singh Counsel for Respondent :- D.G.A., Ram Ji Saxena

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Hon'ble Ramesh Sinha, J. Hon'ble Krishna Pratap Singh,J.

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(Delivered by Hon'ble Ramesh Sinha, J)

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This Criminal Appeal has been filed against a judgement and order dated 04.2.1983 passed by the IV Additional Sessions Judge, Mainpuri in S.T. No. 375 of 1981 arising out of case crime No. 150 of 1980, police station Barnahal, district Mainpuri. By the impugned order the learned Additional Sessions Judge has convicted and sentenced the accused-appellants to life imprisonment under section 302/34 IPC.

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In short compass the facts of the case are that on 16.11.1980 a written report was lodged by Basti Ram at the police station Barnahal, district Mainpuri to the effect that one Goonga used to work in the house of his nephew Ram Sanehi. Kashmir Singh, Guru Bux Singh and Gambhir Singh wanted Goonga to work with them, but he did not want. At 2.00 PM on 15.11.1980, the aforesaid persons after slapping him tried to take him for work, but he did not go. This act of highhandedness was objected

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by Ram Sanehi. Thereafter the aforesaid three persons started abusing him. Kashmir Singh and Gambhir Singh, who were armed with knife and Guru Bux, who was carrying Lathi by declaring that today they shall not leave him alive, attacked Ram Sanehi with their respective weapon, which resulted in the death of Ram Sanehi. On hearing the abuse and hue and cry, the complainant, Tilak Singh, Prem Chandra, Tej Singh and several other persons of the village rushed to the spot and witnessed Kashmir Singh, Guru Bux Singh and Gambhir Singh assaulting the deceased. After the arrival of the witnesses, the aforesaid persons leaving Ram Sanehi, dead, left the place. As no conveyance for Barnahal was available and on account of being night, he did not come to the police station for reporting the matter. It is further mentioned in the report that necessary action may be taken after lodging the report.

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On the basis of the aforesaid report, a case was registered at case crime No. 150 of 1980 by PW-5 Gulpham Singh, which he proved as Ext-Ka-11, which was entered into G.D. by him, which was proved as Ext. Ka-12.

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After the registration of the case, the law set into motion and the investigation of the case was entrusted to SI Ramji Lal Sharma, who immediately rushed to the spot along with other police personnel and got the inquest on the body of the deceased conducted, Ext. Ka-

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He also got the challan Lash, photo lash and letter for post-mortem prepared through Shri Surjan Singh, which were marked as Exts. Ka-4 to 6. He also got the dead body sealed and sent it for post-mortem examination. On 16.11.1980 this witness SI Ramji Lal Sharma recorded the statements of the complainant Basti Ram and witness Tilak Singh and inspected the spot and prepared site plan, which he proved as Ext. Ka-9. He also collected bloodstained and plain earth from the spot and after keeping in two separate containers sealed it and prepared its memo, Ext. Ka-10. Thereafter, this witness has been transferred and further investigation of the case was taken up by SO, Jagmohan Singh, PW-6.

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PW- 6 Jagmohan Singh has recorded the statements of witnesses Prem Chandra and Tej Singh. After completing the investigation, he submitted the charge sheet against the accused-appellants, which he proved as Ext. Ka-13.

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As the case was exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions and learned Additional Sessions Judge, Mainpuri vide order dated 25.09.1981 framed the charges against the accused-appellants under sections 302/34 IPC. However, the accused pleaded innocence and claimed to be tried.

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To bring home the guilt of the accused-appellants, the prosecution has examined as many as six witnesses,

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out of which four witnesses, i.e. PW- 3, Dr. M.C. Gulecha, PW-4 SI Ramji lal Sharma, PW-5 SI Cadet Gulpham Singh and PW-6 SO Jagmohan Singh are the formal witnesses.

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PW-1 Basti Ram is the complainant of the case and uncle of the deceased. He deposed in his examination-inchief that the deceased was his nephew. Goonga worked in the house of the deceased. Kashmir Singh, Guru Bux Singh and Gambhir Singh live in the same village. The aforesaid three persons forcibly wanted to take work from Goonga, but he did not want to work. Even after beating by the aforesaid three persons, Goonga did not go for work. On being told by Goonga that Kashmir Singh, Guru Bux Singh and Gambhir Singh beaten him, the deceased went to Kashmir Singh for complaint. On the date of incident, when the deceased was present at his door, the aforesaid three persons came and started beating the deceased. On the scream of Ram Sanehi, he came out of the house. Kashmir and Gambhir Singh were armed with knife and Guru Bux Singh was having Lathi. When he reached at the spot, he saw that they were assaulting the deceased with their respective weapons. At the time of incident, Tilak Singh, Tej Singh and Prem Chandra also rushed to the spot. Deceased succumbed to the injury on the spot.

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Basti Ram further deposed that as it was night and due to fear, he did not go to the police station to lodge the report. He got the report scribed by one Hari Singh

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and after putting his signature on the same, handed over the same at the police station.

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In this cross-examination Basti Ram deposed that witness Tilak Singh is his cousin.

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PW-2, Tilak Singh in his examination-in-chief deposed that on the date of incident at about 4-1/2-5.00 PM, when he was sitting at Chaupal, he heard the noise (Chhero Pakdo, Chaliyo Mar dala ). When he rushed to the door of the victim, he saw that Gambhir, Guru Bux and Kashmir were assaulting the deceased with knife and lathi. Kashmir and Guru Bux were armed with knife and Gur Bux was carrying lathi. In addition to this witness, Basti Ram, Prem Chandra and Tej Singh, 2-4 persons have also rushed to the spot. Ram Sanehi received injuries and died due to that injury.

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PW-3 is Dr. M.C. Gulecha, who conducted the postmortem on the corpse of the deceased. He deposed in his examination-in-chief that on 17.11.1980, he was posted as Medical Officer in District Hospital, Mainpuri. On that date at 9.15 AM he has conducted the post-mortem on the body of the deceased, who was identified by Constables Madho Singh and Amar Singh. On examination, doctor, Gulecha found the following antemortem injuries on the person of the deceased.

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“1. Abraded contusion 6 cm x 2 cm on front and left side of back 3 cm above medial end of left collar bone.

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Incised wound 2 cm x 1 cm x muscle deep in right side of face 2 cm away from right angle of mouth. Tapering towards angle of mouth. Margins sharp and clean cut.

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Incised wound 2.5 cm x 1 cm x bone deep on middle and left side of back of neck 6 cm below and lateral to occipital prominence. Margins clean cut and sharp. Wound is tapering towards downwards and laterally.

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Contusion 2 cm x 1.5 cm on back of head 3 cm above occipital prominence.

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Contusion 2.5 cm x 1.5 cm on back of head 3 cm away on left side of head.”

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On internal examination, Dr. Gulecha, found clotted blood over internal surface of scalp under the injuries. Doctor has found the fracture of 5^th cervical vertebra. Large vessels of left side were lacerated. Oesophagus was lacerated posterity at middle of neck. 3 ounces of semi digested food material was present in stomach. Small intestine was full and large intestine was loaded with faecal matter.

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Dr. Gulecha opined that the death was caused due to shock and hemorrhage on account of ante-mortem injuries. He further opined that the injuries received by the deceased were sufficient in the ordinary course of nature to cause death. Doctor further deposed that

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death was possible at 5.00 PM on 15.11.1980.

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The evidence of PW-4, Ramji Lal Sharma, PW-5 Gulpham Singh and PW-6 Jagmohan Singh has already been discussed above.

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After the closure of the prosecution evidence, the statements of the accused-appellants under section 313 Cr.P.C. were recorded, in which they denied the charges levelled against and stated that they have falsely been implicated in this due to Pradhani election.

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However, they produced DW-1, Hazari Lal in defence. He deposed that his house is adjacent to the house of witness Tilak Singh. He also knew deceased Ram Sanehi. On the date of incident at 9-1/2- 10.00 PM, he was at his house. On the hue and cry being raised, he went to the house of Ram Sanehi, he was lying dead. When he asked the family members of Ram Sanehi for lodging the report, they replied that they shall lodge the report in the morning. Persons, who reached there, could not identify the assailants. He further deposed that complainant Basti Ram reached at the house of Ram Sanehi after this witness.

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However, learned Additional Additional Sessions Judge, Mainpuri, after hearing the learned counsel for the parties and after scrutinizing and scanning the materials on record, convicted and sentenced the appellants for the offence under sections 302/34 IPC for life imprisonment.

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Heard Shri Ajay Kumar, learned counsel for the

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appellants assisted by Shri Abhishek Srivastava, learned amicus curiae and Shri Ashish Pandey, learned Additional Government Advocate and perused the record of the case.

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Learned counsel for the appellant vehemently argued that FIR of the alleged incident dated 15.11.1980, which took place at about 5.00 PM, the first information has been lodged on 16.11.1980 at 7.20 AM, i.e. about a delay of about 14 hours for which no plausible explanation has been tendered by the prosecution. Shri Ajay Kumar, further argued that the appellants have been falsely implicated in this case due to Pradhani election and that no independent witness has been examined to support the prosecution case. Learned counsel for the appellant also argued that the prosecution has not been able to establish the motive for murder of the deceased.

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On the other hand, Shri Ashish Pandey, learned Additional Government Advocate has supported the findings arrived at by the learned trial court and has submitted that the prosecution has discharged its burden by proving the case against the appellants beyond reasonable doubt.

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The first argument advanced by the learned counsel for the appellants that there was delay in lodging the FIR for which no plausible explanation has been given by the prosecution is concerned, we find no force in the

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submission.

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The delay has been explained by the first informant in the FIR itself that after the incident as it has become night and further as no conveyance for Barnahal, where the police station is situated, was available, he did not go to the police station for reporting the matter. Further, we find that the incident in question was alleged to have taken place at 5.00 P.M., on 15.11.1989 and admittedly police station was about 11 miles from the village. The real nephew of the complainant has been mercilessly done to death by the three accusedappellants by knife and lathi. After the murder of a young man of the family, there must have been fear in the mind of other family members, who could not muster enough courage to rush to the police station being eleven miles from the village to lodge the report and in the morning the complainant along with others reached the police station and lodged the FIR at 7.20 AM. Further the complaint being a rustic villager must not have been aware about the pros and cons of the delay in filing the report.

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On a specific question being put to the complainant as to why he did not go to the police station to lodge the report, he stated that if he had gone to the police station to lodge the report, it must have been dark and also he was very much fearful of the accused. The complainant further stated that he went to the village Chaukidar, but

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he was not present.

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So, we are of the opinion that in the present case, the delay in lodging the FIR has very well been explained by the prosecution.

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In Tara Singh and others Vs. State of Punjab, AIR 1991 SC 63, the Supreme Court held that mere delay in lodging the FIR by itself cannot give scope for an adverse inference leading to rejection of the prosecution case outright.

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The Court further held thus:

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“ It is well-settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report.”

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In Zahoor and others Vs. State of U.P. , AIR 1991 SC 40, the Supreme Court held that mere delay by itself is not enough to reject the prosecution case unless there are clear indications of fabrication.

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The Supreme Court in the case of Ram Naresh and others Vs. State of Chhatisgarh, AIR 2012, SC 1357, has held that the delay, if any, in lodging the FIR, if explained properly, is in no way fatal to the case of the prosecution.

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In Jitender Kumar Vs. State of Haryana, (2012)6 SCC 204, the Supreme Court while dealing with a point on delay in lodging the FIR, held thus:

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“It is a settled principle of criminal jurisprudence that mere delay in lodging the FIR may not prove fatal in all cases, but in the given circumstances of a case, delay in lodging the FIR can be one of the factors, which corrode the credibility of the prosecution version. The delay in lodging the FIR 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 the version put forward. If the Court is satisfied, then the case of the prosecution cannot fail on this ground alone.”

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Now coming to the next argument advanced by the learned count for the appellants that appellants have been falsely implicated in this case due to Pradhani election and that no independent witness has been examined to support the prosecution case.

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It is no doubt true that PW-1, Basti Ram, the complainant is the uncle of the deceased and PW-2, Tilak Singh is the cousin of PW-1, Basti Ram and only two eye witnesses have been examined to support the prosecution case. In their defence, the appellants have produced only one defence witness Hazari Lal, who in his examination on oath had not made any whisper about the enmity of the appellants with the complainant side. Further in their statements under section 313 Cr.P.C, the appellants have not stated any specific enmity between the parties. Only Pradhani election has been stated to be the cause of enmity. Further no documentary proof has been produced before the learned trial court in support of their pleadings about enmity.

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We are not convinced with the contention of learned counsel for the appellants that either on account of enmity or relationship, the witnesses are not deposing the correct facts and framed a false case against the appellants leaving the real culprits to go scot free.

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In Arjun and others Vs. State of Rajasthan, 1994 Suppl. (1) SCR 616, it was argued before the

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Apex Court that as the parties were on inimical terms and some criminal proceedings were pending between them even at that time when the occurrence took place. Further PW-1 in that case was the brother of the deceased and informant in that case was son of the deceased.

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Apex Court brushed aside the argument of the learned counsel for the appellants therein and has held as under:

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“We are not convinced by the aforesaid argument that either on account of animosity or on account of relationship, the witnesses did not divulge the truth but fabricated a false case against the appellants. It is needless to emphasis that enmity is a double edged sword which can cut both ways. However, the fact remains that whether the prosecution witnesses are close relatives of the deceased victim or on inimical terras with the deceased involved in the crime of murder, the witnesses are always interested to see that the real offenders of the crime are booked and they are not, in any case, expected to leave out the real culprits and rope in the innocent persons simply because of the enmity. It is, therefore, not a safe rule to reject their testimony merely on the ground

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that the complainant and the accused persons were on inimical terms. Similarly the evidence could not be rejected merely on the basis of relationship of the witnesses with the deceased.”

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The Supreme Court in Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498, has held that the requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double- edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence."

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In State of U.P. Vs. Kishan Chand and others, (2004 ) 7 SCC 629 , the Supreme Court observed :

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“The submission of the counsel for the accused that the testimony of PWs cannot be acted upon as they are interested witnesses is to be noted only to be rejected. By now, it is well-settled principle of law that animosity is a double-edged sword. It cuts both sides. It

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could be a ground for false implication and it could also be a ground for assault. Just because the witnesses are related to the deceased would be no ground to discard their testimony, if otherwise their testimony inspires confidence. In the given facts of the present case, they are but natural witnesses. We have no reason to disbelieve their testimony. Similarly, being relatives, it would be their endeavour to see that the real culprits are punished and normally they would not implicate wrong persons in the crime, so as to allow the real culprits to escape unpunished."

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Further witnesses were put to lengthy crossexamination by the defence counsel, but nothing significant could be brought out from their mouth to demolish the case of the prosecution. Further, the evidence of both the eyewitnesses are intact and from their evidence the prosecution could not derive any help.

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It is worth notice that when a specific question was put to the accused when their statement under section 313 Cr.P.C. was recorded by the trial court that one Goonga worked in the house of the deceased-Ram Sanehi, accused Kashmir Singh replied that there is no person in the name of Goonga. However, when the same question was put to the accused Gambhir Singh and Gur

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Bux Singh, they replied the question in affirmative “yes”.

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Similarly, in reply to another question that it has come in evidence that you want to take Goonga for work forcibly, accused-appellant Kashmir Singh replied that he did not see Goonga, whereas to the answer of the same question, accused Gur Bux Singh and Gabhir Singh said that they did not want to take him for work.

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The aforesaid contradictions in the statements of the accused-appellants go to suggest that the appellants had tried to hide the truth in their statements recorded under section 313 Cr.P.C.

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The accused-appellants have produced Hazari Lal in their defence, who tried to show that the incident took place between 9.00 and 10.00 PM instead of 5.00 PM as alleged by the prosecution. In his examination he further tried to prove that the assailants could not be recognized. Learned trial court has disbelieved the evidence of this witness on the ground that although he stated that he had told the investigating officer that the occurrence took place at 9, 10, 11 PM, in which the assailants could not be recognized, but he admitted that he had not made any report nor informed any officer that the accused have been falsely implicated in this case and on his own saying that the accused told him for the first time on 20.1.1983 to give evidence in their favour.

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The last submission of the learned counsel for the appellants is that there the prosecution has failed to

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prove any motive for the commission of the crime.

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This contention of the learned counsel for the appellants is only to be noted and rejected.

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It is a case of direct evidence. It settled legal proposition that motive has great significance in a case involving circumstantial evidence, but where direct evidence is available, which is worth relying upon, motive loses its significance. There is a clear cut case of the prosecution is that the accused-appellants wanted Goonga to work with them, who used to work with the deceased and on his refusal to work with them, he was beaten by the accused-appellants and when the deceased went to make complaint about the beating of Goonga, this infuriated the accused-appellants, who committed the murder.

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In a catena of judgement, the Supreme Court has held that where there is a direct evidence, the motive looses its importance.

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In Sheo Shankar Singh Vs. Sate of Jharkhand, (2011)3 SCC 654, the Apex Court has held as under:

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“Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eye-witness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eye-witnesses comes to the

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conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely even if prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eye-witnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eye-witness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eye-witnesses.”

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In Darbara Singh Vs. State of Punjab (2912)10 SCC 476, the Apex Court held thus:

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“So far as the issue of motive is concerned, it is a settled legal proposition that motive has great significance in a case involving circumstantial evidence, but where direct evidence is available, which is worth relying upon, motive loses its significance. In the instant case, firstly, there is nothing on record to reveal the identity of the person

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who was convicted for rape, there is also nothing to reveal the status of his relationship with the appellant and further, there is nothing on record to determine the identity of this girl or her relationship to the co-accused Kashmir Singh. More so, the conviction took place 20 years prior to the incident. No independent witness has been examined to prove the factum that the appellant was not on talking terms with Kashmir Singh. In a case where there is direct evidence of witnesses which can be relied upon, the absence of motive cannot be a ground to reject the case. Under no circumstances, can motive take the place of the direct evidence available as proof, and in a case like this, proof of motive is not relevant at all.

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Motive in criminal cases based solely on the positive, clear, cogent and reliable ocular testimony of witnesses is not at all relevant. In such a fact-situation, the mere absence of a strong motive to commit the crime, cannot be of any assistance to the accused. The motive behind a crime is a relevant fact regarding which evidence may be led. The absence of motive is also a circumstance which may be relevant for assessing evidence.

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(Vide: Gurcharan Singh & Anr. v. State of Punjab, AIR 1956 SC 460; Rajinder Kumar & Anr. v. State of Punjab, AIR 1966 SC 1322; Datar Singh v. State of Punjab, AIR 1974 SC 1193; and Rajesh Govind Jagesha v. State of Maharashtra, AIR 2000 SC 160).”

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In Gosu Ramachandra Reddy and others Vs. State of A.P., AIR 2011, SC 3147 , the Apex Court has held that it is settled by a series of decisions of this Court that in cases based on eye witness account of the incident proof or absence of a motive is not of any significance consequence. If a motive is proved it may supports the prosecution version. But existence or otherwise of a motive plays a significant role in cases based on circumstantial evidence.

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In view of what has been indicated herein above, we are of the view that the prosecution has fully established its case beyond reasonable doubt against the appellants. The impugned judgement and order of conviction and sentence dated 04.2.1983 passed by the learned Additional Sessions Judge, Mainpuri in ST No. 375 of 1981, which has been assailed in this appeal is hereby upheld and, calls for no interference by this Court.

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From the perusal of the order dated 18.11.2017 it transpires that all the accused-appellants are in jail. They shall remain in jail to serve out the sentence awarded to them by the learned trial court.

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Accordingly, the appeal is dismissed.

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The Court appreciates the effort of Shri Abhishek Srivastava, learned Amicus Curiae, who was appointed when there was none to argue the appeal on behalf of the appellants, but as Shri Ajay Kumar has appeared and argued the present appeal on behalf of the appellants being engaged by the appellants as a counsel of their choice.

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Office is directed to transmit a certified copy of this judgement to the court concerned for compliance.

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Compliance report be positively submitted to this court within eight weeks.

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(Krishna Pratap Singh, J)(Ramesh Sinha, J)

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Dated: 06.1.2018

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Ishrat

Kashmir Singh and Ors. v. State

Case brief

What is this about?

What did the court decide?

Kashmir Singh and Ors. v. State

Case brief

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What did the court decide?

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