Criminal appeal challenging conviction and sentence under IPC for murder. Supreme Court rejected appeals, holding eye-witness testimony reliable despite familial ties and some investigative lapses, finding no material contradiction with medical evidence.
Appellants convicted individuals shall be taken into custody to serve remaining sentence.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
AFR
(Judgement reserved on 19.7.2019) (Judgement delivered on 26.8.2019)
(Court No.43)
Case :- CRIMINAL APPEAL No. - 2312 of 1987
Appellant :- Nankoo And Others Respondent :- State Of U.P. Counsel for Appellant :- P.N. Misra,Raghuvansh Misra,Rahul Misra,Saurabh Yadav Counsel for Respondent :- A.G.A.
Hon'ble Pankaj Naqvi,J. Hon'ble Suresh Kumar Gupta,J.
(Delivered by Suresh Kumar Gupta, J.)
This criminal appeal is preferred against the judgment and order dated 03.09.1987, passed by the VI Additional Sessions Judge, Bareilly in S.T. No. 559 of 1985 ( State Vs. Nankoo & Others ), convicting the appellants Nankoo, Mukhtar, Rajendra and Ram Niwas under Section 302 149 I.P.C, to life as also under Section 148 I.P.C. to two years rigorous imprisonment. Appellant, Ram Niwas, is further convicted/sentenced to one year R.I under Section 147 I.P.C. All the sentences to run concurrently.
A) P.W-1, the informant alleged that his son Suraj Pal
2
(deceased) had developed illicit relationship with the wife of accused-appellant Nankoo who also used to stay together, relatives of Nankoo had taken a serious offence to this infidelity. On 20.8.1985 at around 6.30 P.M, Suraj Pal had gone to ease himself towards north of the village. Accused Nankoo and Mukhtar armed with kanta (sharp weapon) his cousin Ram Nivas with lathi, Jawahar and Rajendra with tamancha (country made pistol), Rajeshwar with bhala (spear) gheraoed Suraj Pal on the exhortation of Nankoo that Suraj Pal be not spared, Rajendra fired two shots at Suraj Pal/ deceased who fell down to be then assaulted with lathi and kanta blows. On cries for help P.W-1, nephew Raj Murari, Nathoo (P.W-2) and others reached the scene to witness the occurrence. With the arrival of witnesses and on their shouting accused fled towards west of the village, witnesses also attempted to chase but accused managed good their escape. The body of the deceased lay in the fields of Naushey.
B. On above allegations, an F.I.R. (Ex. Ka-1) as Case Crime No. 133 of 1985 initially registered against accused Nankoo, Ram Niwas, Rajeshwar, Mukhtar and Rajendra under Sections 147, 148, 149, 302 I.P.C. on 21.08.1985 at 3:10 a.m. at Police Station Fatehganj (East), District Bareilly at a distance of 20 kilometers to the west.
C. PW-4, A.K. Gaur the Investigating Officer reached
3
the spot around 5.30 A.M and commenced investigation. On his direction A.S.I. Teja Singh prepared site plan (Ex. Ka-12), Inquest Report (Ex. Ka-5) and after completion of paper work dead body of the deceased was sent to district hospital for autopsy at 7.30 A.M in presence of 2 constables.
D. PW-3/Dr. P.K. Shrotriya, conducted the autopsy of the deceased and prepared the autopsy report (Ex. Ka-2) on 21.08.1985 at 4:00 P.M The autopsy indicated following injuries on the body of the deceased:-
i. Lacerated wound 5 cm X 1 cm X skull deep on the centre of head 9 cm above right eye brow.
ii. Lacerated wound 3 cm X 5 cm X skull deep on right side head 10 cm above right ear.
iii. Incised wound 3.5 cm X 5 cm X skull deep on right side head 5 cm above right ear.
iv. Incised wound 5 cm X 1 cm X skull deep on back of scull 10 cm behind and above left ear.
v. Incised wound 4 cm X 1 cm X skull deep on back of head 9 cm above left ear.
vi. Incised wound 4 cm X 1 cm X skull deep on back of head 9 cm above left ear.
vii. Lacerated wound 2.5 cm X 1 cm on the back of skull 1 cm below injury no. 6.
viii. Lacerated wound 2 cm X 5 cm X muscle deep 1 cm. Behind and below injury no. 7.
ix. Lacerated wound 2 cm X 1/2 cm X muscle deep 1 cm below injury no. 8.
x. Incised wound 2.54 cm X 1 cm X skull deep 1 cm below injury no. 9.
4
xi. Incised wound 7 cm X 1.5 cm X muscle deep on the right side abdomen 4 cm above right inguinal region transversely placed.
xii. Abrasion 1 cm. X 5 cm on left side chest 4 cm below left nipple.
xiii. Abrasion contusion 5 cm X 2 cm on back of left arm in middle.
xiv. Incised wound 1 cm X 5 cm X skin deep on iliac crest.
xv. Incised wound 2 cm X 1 cm X cavity deep on right side back of chest 14 cm below right lower angle of scapula.
xvi. Incised wound 2 cm X 1 cm X muscle deep in central line of bank at the lable of thoracic 8th vertebrae.
xvii. Incised wound 1 cm X 1 cm X on left side back of chest 3 cm lateral of central line at the lable of thoracic 8th vertebrae.
xviii. Incised wound 2 cm X 1 cm X muscle deep in central line of back at the lable of 3rd lumber vertebrae.
xix. Gun shot wound 3.5 cm X 2 cm on right lateral aspect of abdomen 6 cm. Above right iliac crest surrounded by blackening and tattooing in an area of 14 cm.
xx. Abrasion 4 cm X 3 cm on middle aspect of left elbow.
PW-3 opined that death was due to shock and haemorrhage as a result of ante mortem injury which had occurred a day ago.
E. P.W-4, the I.O, recorded the statement of eyewitnesses and that of formal witnesses, carried out other investigational formalities. After completion of investigation charge-sheet (Ex. Ka-13) was submitted against abovementioned appellants including accused, Rajeshwar,
5
case committed to Sessions, charges framed under aforementioned sections against the appellants. All the appellants denied the charges and claimed to be tried.
F. The prosecution examined PW-1, Ram Das and PW-2, Nathoo as eye witnesses, rest as formal witnesses.
G. The accused in their statements under Section 313 Cr.P.C, denied the prosecution version and stated that they have been falsely implicated due to enmity and completely denied their participation in the occurrence. No defence evidence was led.
6
contentions:-
7
xi. Statement of PW-2 was recorded by P.W-4/ the I.O, after three days of the occurrence which dents the prosecution case.
8
the fields of one Naushey whose dimensions according to P.W-1 one of the two eye-witnesses was 40-50 x 39-40 steps. P.W-1 claims to have witnessed the occurrence, while on way to his fields towards the west of his house to guard his fields from stray animals as it had standing crops of bajra (1-1.5 feet). P.W-1 believed that the deceased (son) had gone to ease himself towards a pond half a Km. away. The defence argued that once it has come in evidence that there was a pond behind the house of P.W-1, it is highly improbable that the deceased would traverse a longer distance to ease himself. The submission has no impact as it was only an assumption and not a certainty on the part of P.W-1 that the deceased had gone to ease himself. This assumes further credence when P.W-1 states that the deceased had no fix place/area to ease himself. It is not uncommon in a rural scenario for a rural folk to wander here and there in the evening. Although the prosecution did not disclose either in the site plan or in the evidence the point from where P.W-1 witnessed the assault and that of the place of assault but what is clear from the evidence of P.W-1 is the mode and manner of the assault and the identity of assailants including the weapon possessed by them was clearly visible. P.W-1 is challenged on the ground that the purpose for which he left his house i.e, to guard the fields was being alleged for the first time in the court as both the FIR/161 were silent, could not in itself be the reason to doubt his presence as the house of P.W-1 and the place of occurrence are all situate at a distance of one furlong.
9
Learned counsel for the appellants pointed out certain features of the case to doubt the F.I.R and the credibility of P.W-1 such as the written report was in 4 folds, prosecution was not explaining that if P.W-1 had gone to P.S to lodge a report along with Kunwar Pal in a tractor at around 11-12 midnight but P.W-1 returned in a police jeep along with P.W-4 then who drove the tractor back home? Coming to the first issue that the written report not being in 4 folds which otherwise the prosecution is claiming it was scribed at the scene by Kunwar Pal at the dictates of P.W-1 who then kept it in his pocket in 4 folds, the court finds that the possibility of report being scribed at the police station cannot be ruled out but this could not be a ground in itself to doubt the FIR as P.W-1 proved the contents of the report. In so far the issue as to who brought the tractor back from the P.S, it's a post occurrence lapse which would have no effect on the prosecution case.
10
enlist him as one of the witness and the said lapse was on the part of I.O which cannot enure to the benefit of appellants.
11
witnesses. PW-1 is the father of the deceased and PW-2 a neighbour and also a co-accused with deceased in a previous criminal case. It is well settled that a related witness may not be labeled as interested witness. Interested witnesses are those who want to derive some benefit from the result of litigation or implicating the accused. Once it is established that witnesses were present at the scene, to witness the occurrence, they cannot be discarded merely on the ground of being closely related to the victim. The Apex Court in State of U.P vs. Krishnapal (2008) 16 SCC 73 held as under:
18. The plea of defence that it would not be safe to accept the evidence of the eye witnesses who are the close relatives of the deceased, has not been accepted by this Court. There is no such universal rule as to warrant rejection of the evidence of a witness merely because he/she was related to or interested in the parties to either side. In such cases, if the presence of such a witness at the time of occurrence is proved or considered to be natural and the evidence tendered by such witness is found in the light of the surrounding circumstances and probabilities of the case to be true, it can provide a good and sound basis for conviction of the accused. Where it is shown that there is enmity and the witnesses are near relatives too, the Court has a duty to scrutinize their evidence with great care, caution and circumspection and be very careful too in weighing such evidence. The testimony of related witnesses, if after deep scrutiny, found to be credible cannot be discarded.
19. It is now well settled that the evidence of
12
witness cannot be discarded merely on the ground that he is a related witness, if otherwise the same is found credible. The witness could be a relative but that does not mean his statement should be rejected. In such a case, it is the duty of the Court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinizing the evidence of the interested witness.
20. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement. The ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. 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. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible.
Relationship is not sufficient to discredit a witness unless there is motive to give false evidence to spare the real culprit and falsely implicate an innocent person. Thus in view of above legal position, we after carefully scrutinizing the evidence of P.W-1 and 2, are of the considered opinion that they are natural witnesses and their testimony cannot be
13
rejected only on the ground that they are related to deceased.
"Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more.
14
The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."
15
16
village Jhanjhana, Bareilly and was falsely implicated. Submission is not acceptable as the identity of Rajendra was already known to the eye-witnesses. Moreover he was also identified in the court.
17
records with a copy of judgment and order of this Court for immediate compliance under the intimation to this court within 2 months.
Order Date:- 26.08.2019 RS
(Suresh Kumar Gupta, J.) (Pankaj Naqvi,J.)
3 issues framed by the court
Whether the evidence of eye-witnesses who are close relatives of the deceased is reliable despite being interested witnesses.
Whether alleged contradictions between the manner of assault described by eyewitnesses and the medical evidence vitiate the prosecution case.
Whether the absence of recovered weapons and serological reports raises a reasonable doubt to acquit the appellants.
Colour shows how this judgement treated each authority
State of U.P vs. KrishnapalRelied on¶76
State of U.P vs. Krishnapal (2008) 16 SCC 73 · Who else cites this
Solanki Chimanbhai Ukabhai v. State of GujaratRelied on¶86
Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484 · Who else cites this
4 provisions across 1 enactments
Nankoo
Mukhtar
Rajendra
Ram Niwas
State Of U.P.
Pankaj Naqvi
Suresh Kumar Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
