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Evidence Of Interested Witness Should Be Subjected To Careful Scrutiny And Accepted With Caution: Allahabad High Court

 

It is interesting to learn that in a fresh, significant and commendable development, the Allahabad High Court has just recently on March 5, 2021 in a latest, learned, laudable and landmark judgment titled Rampal Singh And Others vs State of UP in Criminal Appeal No. 4506 of 2005 has observed quite emphatically, elegantly, eloquently and effectively that the testimony of an interested witness, though admissible, should be accepted by the Court after a careful scrutiny and corroboration with other materials placed on record. A Division Bench of Allahabad High Court comprising of Justice Manoj Misra and Justice Saumitra Dayal Singh have observed unequivocally that, “An interested witness must be tested more carefully before any firm conclusion may be reached thereon.” This is quite natural also as the interested party mostly always has his own vested agenda in giving testimony in a particular manner and against particular persons in a particular direction.

To start with, while elaborating on the appeal filed, the judgment authored by Justice Saumitra Dayal Singh for himself and Justice Manoj Misra comprising a Division Bench of Allahabad High Court sets the ball rolling first and foremost in para 2 wherein it is put forth that, “2(i). The appellants Rampal Singh, Udaibhan and Chandrabhan filed the present appeal against the common judgment and order dated 05.10.2005 passed by Sri Arvind Kumar Singh, Additional District and Sessions Judge/Fast Track Court No. 2, Mainpuri, in Sessions Trial No. 411 of 2012 (State Vs. Rampal Singh & Udaibhan) and Sessions Trial No. 128 of 2004 (State Vs. Chandrabhan). By that judgment and order, the appellants – Rampal Singh, Udaibhan and Chandrabhan were convicted for offences under Sections 147, 148, 307/149 and 302/149 IPC. Upon conviction, for the offence under Section 147 IPC each of the appellants was sentenced to six months’ imprisonment. Upon conviction for the offence under Section 148 IPC, each of the appellants was sentenced to one year’s imprisonment. Upon conviction for the offence under Section 307 read with Section 149 IPC, each of the appellants was sentenced to ten years’ rigorous imprisonment together with fine Rs. 3,000/-. In the event of non-payment of fine, they were to undergo further imprisonment of one year. Upon conviction for the offence under Section 302 read with Section 149 IPC, each of the appellants was sentenced to imprisonment for life and fine Rs. 5,000/-. In the event of non-payment of that fine, the appellants were to undergo further imprisonment of one year and six months.

2(ii). Upon the present appeal being filed, appellant no.1-Rampal Singh (hereinafter also referred to as the ‘deceased appellant’) was enlarged on bail by order dated 24.10.2005 whereas the bail application of the other two appellants was rejected. During the pendency of this appeal, appellant no.1-Rampal Singh died and the appeal filed by him was declared to have abated, vide order dated 13.12.2019. Appeal filed on behalf of appellant no.3-Chandrabhan (hereinafter also referred to as the ‘appellant granted remission’) also did not survive as he was granted remission by the State Government. It was dismissed as not pressed, vide order dated 07.10.2020. Thus, the present appeal survives and has been heard on behalf of appellant no.2-Udaibhan.”

While elaborating on the prosecution case, the Division Bench then observes in para 3 that, “3(i). The prosecution case is that a First Information Report (Exhibit Ka-4) (hereinafter referred to as the FIR), in Case Crime No.63 of 2001, under Sections 147, 148, 149, 307 and 302 IPC, was lodged on 11.07.2001 at 11:20 a.m., at Police Station-Kurra, Sub-District-Karhal, District-Mainpuri, by Sureshpal Singh (PW-1), son of Vishwanath Singh, upon a written application submitted in his handwriting. The FIR disclosed : on 10.07.2001 at 10:30 a.m., the first informant was sitting on a cot under a shed/’Chhappar’ outside his house while his brother Devendra Singh along with Harvendra @ Tika, Chandra Pratap Singh and Shiv Vir Singh were sitting on a raised platform/‘Chabutra’ under a Neem tree, in front of his house, adjoining a public pathway running in the North-South direction. At about 10:30 a.m., the deceased appellant (appellant no.1 herein), Udaibhan and Chandrabhan (both sons of Mewaram), Mewaram (father of Udaibhan Singh and Chandrabhan) and Shailendra Singh @ Kintoo reached there on foot from the South side of the public pathway. Rampal Singh (deceased appellant) was armed with his licensed rifle, Chandrabhan with his double barrel gun and the others with illicit, single barrel guns. They fired indiscriminately at Devendra Singh, Harvendra Singh @ Tika, Chandra Pratap Singh and Shiv Vir Singh. Devendra Singh and Harvendra Singh @ Tika died on the spot, as a result of the firearm injuries suffered by them. Upon hearing the gun fire, besides the first informant, Makrand Singh, Ram Saran, Harendra Singh, Virendra Singh and Rajarshi Vir Singh reached the spot and witnessed the occurrence. Thereafter, the assailants fled – taking the same path, and in the same direction they had come from i.e. South. He also disclosed that the assailants bore old animus. The bodies of Devendra Singh and Harvendra Singh @ Tika were stated to be lying at the place of occurrence.

3(ii). Vide Exhibit Ka-26, drawn on 11.07.2001, the Investigating Officer (I.O.) obtained and sealed, a sample of plain earth and blood soaked earth obtained from the Crime Scene, in the presence of Ram Saran and Ram Ratan. A second sample of plain earth and blood soaked earth was obtained and sealed from the Crime Scene by the I.O. It was marked as Exhibit Ka-27. Vide Exhibit Ka-28, the I.O. recovered six empty cartridges of 12 bore caliber, bearing a red mark at the base and the marking ‘Shaktiman 12 Express’; 4 empty cartridges of 12 bore with a marking KF 12 00 (on one) and KF 12 01 (on other three) and; one empty cartridge of .315 bore, with a marking 9 MM KF 00.

3(iii). It also appears, during the investigation, the house of Rampal Singh (deceased appellant), Mewaram, Chandrabhan, Udhaibhan and Shailendra Singh @ Kintoo were searched. The search memos are Exhibit Ka-29, Ka-30 and Ka-31. However, no recoveries were made as a consequence of that search.

3(iv). The ‘Panchayatnama’ with respect to the dead body of Devendra Singh (Exhibit Ka-09) was prepared on 11.07.2001. It bears the FIR details including Case Crime No.63 of 2001. However, there is an overwriting as to the time of the FIR being lodged. The over writing appears to read 11:20 a.m. As to the time of the ‘Panchayatnama’ being prepared, it is disclosed to have started at 12:10 p.m. on 11.07.2001 and completed at 13:10 p.m. on the same day. Similarly, the ‘Panchayatanama’ for the dead body of Harvendra Singh @ Tika (Exhibit Ka-8) was also prepared on 11.07.2001. It also bears the full details of the FIR, being Case Crime No.63 of 2001. In this ‘Panchayatnama’ also there is an overwriting as to the time of the FIR being lodged. It reads 11:20 a.m. As to the time of that ‘Panchayatnama’ being prepared, it is disclosed to have started at 13:20 p.m. on 11.07.2001 and completed at 14:20 p.m. on the same day.

3(v). The postmortem examination report of Devendra Singh (Exhibit Ka-6) reveals, it was conducted at the District Hospital Mainpuri at 1:30 p.m. on 12.07.2001. It records the following ante-mortem injuries:

“(1) Wound of entry 5 cm x 3 cm x cranial cavity brain matter coming out of wound on occipital.

(2) Wound of entry 2 cm x 1 cm x muscle deep on back side of chest axillary fold.

(3) Wound of exit 3 cm x 1 cm on left shoulder 6 cm medial to top of left shoulder continuous to Inj No. (2). (4) Wound of entry 1.5 cm x 1.5 cm on low back side at level L-4 vert.

(5) Gutter shaped firearm wound 2 cm x 1 cm muscle deep on lat. Side of prox. Phalanx of Rt index finger.

(6) Gutter shaped firearm wound 8 cm x 5 cm muscle deep on postero lat/lt firearm 2 cm elbow directed shown.

(7) Wound of entry three, in area 8 cm x 10 cm over left chest near left nipple.”

3(vi). Similarly, the post mortem examination report of Harvendra Singh @ Tika (Exhibit Ka-7) reveals, it was conducted at the District Hospital Mainpuri at 2:00 p.m. on 12.07.2001. It records the following ante-mortem injuries:

“(1) Wound of entry 9 cm x 5 cm x oral cavity deep mid chin to floor to Rt side hard pellet fractured mandible floor of mouth. Blackening present.

(2) Wound of entry 3.0 cm x 2 cm on left sub-clavicular region.

(3) Wound of exit 3 cm x 2 cm from left side back 4 cm lateral T-1 midline continuous to inj. No. (2).

(4) Wound of entry 3 cm x 2 cm just adjacent and lat to inj. No. (2) on left side chest fractured Lt clavicle.

(5) Wound of entry 4 cm x 3 cm on back Rt thigh just below glatier fold Fractured mandible and maxilla Rt side and base of Ant. Cranial fossa and left clavicle.”

3(vii). The postmortem report re Devendra Singh also records recovery of three pellets from left thoracic wall and it also records placing in double sealed envelopes, cardboard-1, distorted metallic bullet-1, pellets25 that were also recovered during the post mortem examination. Similarly, the post mortem report re Harvendra Singh @ Tika records recoveries of pellets from left shoulder to left chest. It further records placing in a sealed envelope – cardboard-1 and 21 pellets recovered from the dead body of Harvendra Singh @ Tika. Both reports record the cause of death as ‘Coma’ due to ante mortem injuries. The above postmortem examinations were conducted by Dr. R.D. Pandey (PW-6) – on the dead body of Devendra Singh at 1:30 p.m. and on the dead body of Harvendra Singh @ Tika at 2:00 p.m., on 12.07.2001.

3(viii). It is the further case of the prosecution that in the incident, Chandra Pratap Singh (PW-3) suffered injuries for which he was examined on 11.07.2001 at about 7:45 p.m. by Dr. R.P.S. Chauhan (PW-4). In that examination (Exhibit Ka-2), the following injuries were reported:

“1) Fire Arm wound of entry 0.3 cm x 0.3 cm x skin deep – left side of chest clotting blood.Kept HO Adv X Ray.

2) Fire Arm wound of entry over to lt arm upper in area 16 cm x 4 cm Size 0.3 cm x 0.3 cm x skin deep. Kept UO Adv X Ray.

3) Lacerated wound 1.5 cm x 0.5 cm x bone deep on left wrist part clotted blood present. Kept UO Adv X Ray.

4) Fire Arm wound of entry 0.3 cm x 0.3 cm x skin deep on back of left hand. Clotted blood present. Kept UO Adv X Ray.

5) Lacerated wound 2 cm x 0.5 cm x bone deep on middle side of Rt leg 8 cm below knee. Kept UO Adv X ray.

6) Lacerated wound 1.5 cm x 0.4 cm x bone deep on middle aspect of Rt leg 0.5 cm below to Inj No. 5. Clotted blood present. Kept UO Adv. X Ray.

7) Multiple abrasion over Rt Leg size 0.2 cm x 0.2 cm.

8) Multiple abrasion over Rt thigh size 0.2 cm x 0.2 cm.

9) Pin Head abrasion middle aspect of Rt thigh multiple in number size 0.1 cm x 0.1 cm.”

3(ix). Similarly, the injured Shiv Vir Singh (PW-2) was also examined by Dr. R.P.S. Chauhan (PW-4) at 7.55 pm on 11.07.2001 (Exhibit Ka3). The following injuries were reported:

“Three lacerated wounds at back of Rt thumb of Size 0.5 cm x 0.2 cm x muscle deep; 0.6 cm x 0.2 cm x muscle deep and; 1.5 cm x 0.2 cm x skin deep xxxx injury of nail of thumb. Clotted blood present. Kept UO Adv X Ray”. The injury reports of Chandra Pal Singh and Shiv Vir Singh are Exhibits Ka-2 and Ka-3, respectively.

3(x). Initial investigation in the case was carried out by the I.O. – Sri M.P. Singh Nagar. Upon his transfer from Police Station-Kurra, the investigation was transferred to the Sub Inspector Surendra Nath (PW7) who completed the investigation. Sri M.P. Singh Nagar died before leading any evidence at the trial. Sub-Inspector Surendra Nath (PW-7) proved the investigation.

3(xi). Upon completion of the investigation and upon submission of the Charge Sheet, vide order dated 22.01.2003, charges were framed against Rampal Singh (deceased appellant) and Udaibhan – for offences under Sections 147, 148, 307 read with Sections 149 and 302 read with Section 149 IPC. Similar charges were framed against Chandrabhan by a separate order dated 22.03.2005. Both trials were clubbed. To the charges thus framed, all the appellants pleaded not guilty. Thus the trial commenced.”

It cannot be glossed over that the Division Bench said in simple, straight and suave language in para 18(x) that, “The conspectus of the law as applied to the facts of the present case leads us to a prima facie conclusion that Sureshpal Singh (PW-1) is a witness who may be expected, under normal circumstances, to be interested in seeking successful prosecution of the present appellant along with the co-accused Rampal Singh (deceased appellant) and Chandrabhan (appellant granted remission), for reason of two earlier criminal cases involving him and his close family members. Also, it is a fact that the said witness (PW-1) categorically admitted to existence of “party bandi” in the village wherein the appellants and the informant party were on opposite sides. Also, Rampal Singh (deceased appellant) was the victor in two electoral battles fought between the parties on the post of ‘Pradhan’. Therefore, the testimony of Sureshpal Singh (PW-2) though not self contradicted or patently false yet it may require corroboration in regard to material particulars from other prosecution evidence to eliminate any doubt that the same may be tainted with animosity.”

Be it noted, the Division Bench then hastens to add in para 19(v) that, “The fact that the Investigating Officer did not consider it necessary to get the injured medically examined and he further did not record the statements of those injured witnesses at the first met opportunity may not carry much weight, in face of the fact that in the FIR lodged promptly, at 11.20 am, the said witnesses were named as injured persons. Then, in face of no doubt emerging during the crossexamination of Dr. R.P.S. Chauhan (PW-4) as to the conduct of the medical examinations, it has to be accepted that the injured witnesses were sent for medical examination at about 2:30-3:00 pm by the Circle Officer, against ‘Chitthi Majrubi’ that do not bear the Case Crime No. That fact and the fact of medical examination actually carried out being proven the rest are matters that may point to deficiencies in the police investigation but may not discredit the testimony of the injured witness Chandra Pratap Singh (PW-3) itself. As held by the Supreme Court in State of Rajasthan Vs. Kishore, (1996) 8 SCC 217, an irregularity or even an illegality during investigation would not cast doubt on the otherwise trustworthy and reliable evidence.”

Going ahead, the Division Bench then also adds in para 19(vi) that, “Then, Dr. R.P. Singh Chauhan (P.W.-4), during his cross examination, admitted to absence of any X-Ray report with respect to any of the injuries suffered by either of the injured witness and he also negated the query as to presence of traces of gunpowder or pellets etc. from any of the wounds of either of the two injured witness. Yet, his opinion as to the other injuries suffered by Chandra Pratap Singh (PW-3) being injury numbers 1 to 6 and 9 remained undoubted, being firearm injuries. It clearly supports/corroborates the prosecution story. There is no patent inconsistency in the ocular and medical evidence as may discredit the former. Thus, in absence of any cross-examination of Chandra Pratap Singh (PW-3) to establish or suggest that injury numbers 1 to 6 and 9 were either not caused by firearm or that they had been caused in any manner other than claimed by that witness, it has to be accepted that those injuries were caused as alleged by the prosecution.”

Still ahead, it is then noted in para 19(vii) that, “In view of the above, we find no reason to disbelieve the testimony of the injured witness Chandra Pratap Singh (PW-3) as to the occurrence and/or the manner in which he sustained seven firearm injuries. In absence of effective cross examination, his presence at the time and place of occurrence being the ‘Chabutra’ cannot be doubted. The narration of the event and the manner in which he sustained injuries also cannot be doubted as nothing came out during that cross examination as may point towards any patent or other fatal inconsistency. His injuries were duly proven to be firearm injuries being injury nos.1 to 6 and 9. That having been wholly proven by the medical opinion of Dr R.P. Singh Chauhan (PW-4), the weight of such evidence cannot be over looked, merely because the Police Inspector acted with ineptitude and did not get the injured witnesses medically examined, promptly. Yet, the conduct of those medical examinations is wholly proved, having been conducted on the same day at the District Hospital Mainpuri at 7:45 pm and 7:55 pm on 07.11.2001. Thus, it cannot be said with any conviction either that no medical examination was done or there is no evidence to believe the genuineness of the two injury reports.”

What’s more, it is then stated in para 19(viii) that, “All other doubts would remain matters of unexplained chance. The substratum of the prosecution story is found wholly consistent and corroborated in all material parts. The fact that the two injured witness escaped with minor injuries and Sureshpal Singh (PW-1) escaped without being fired at are not facts or occurrences as may throw out the prosecution story in entirety as unbelievable. Similarly, the ineptitude of the police and/or the mistakes committed during the investigation – not recording the statement of the injured witness when they first became available at about 12:00 noon on 11.07.2001 or of having sent the injured witnesses for their medical examination with a delay of few hours or of not recovering the blood soaked earth or clothes etc, do not create any reasonable doubt in the basic allegation in the prosecution story that the appellant Udaibhan along with other assailants had caused the occurrence at 10:30 a.m. wherein Devendra Singh, Harvendra Singh @ Tika were killed and Shiv Vir Singh (PW-2) and Chandrabhan Singh (PW-3) received pellet injuries in a daring assault made at them with various firearms fired repeatedly in an indiscriminate manner. The number of rounds fired together with variety of cartridges recovered corroborates the prosecution allegation.”

Truth be told, it is then also made clear in para 20 that, “As to the third submission, the postmortem examination of the deceased clearly brings out multiple firearm injuries suffered by them on vital body parts as would have caused their instantaneous death, in the first place that fact supports the prosecution allegation of indiscriminate firing by all the assailants carried out using different weapons of which there is ample evidence in the shape of recoveries made of empty cartridges of different bore types and also by the different nature of injuries proven. The fact that one of the injuries suffered by the deceased Devendra Singh, caused from a close range may not have been explained by ocular evidence, may not be relevant. In such an occurrence where a large number of rounds of ammunition were fired indiscriminately by four or five assailants some of which were stated to have been fired from close range i.e. when the assailants had reached the ‘Chabutra’ and fired at the victims from that position, it is quite possible that one of the injuries suffered by a deceased may have remained from being specified in the ocular evidence. Therefore, the submission advanced by learned counsel for the appellants to that extent, may not be accepted.”

Needless to say, the Division Bench then rightly points out in para 21(ii) that, “Similarly, the non-recovery of assault weapon is also not found decisive to the charge, as the ocular evidence led by the prosecution was reliable as to the manner of occurrence. Similarly, the absence of recovery of blood stained clothes etc. of the victim/injured witnesses, though not desirable in a trial such as this, at the same time, by very nature it would remain an inadequacy or defect in the police investigation that may not discredit the prosecution evidence, as the ocular evidence is otherwise credit worthy.”

Before parting, the Division Bench points out in para 22 that, “To conclude, we find that the prosecution had successfully proven that the appellant-Udaibhan alongwith others had assaulted Devendra Singh, Harvendra Singh @ Tika, Shiv Vir Singh (PW-2) and Chandra Pratap Singh (PW-3) while they were sitting/standing at the ‘Chabutra’ (adjoining the village pathway), outside the house of Sureshpal Singh (PW-1), at about 10:30 pm on 11.07.2001. It is also found proven that the assailants had fired indiscriminately at the victim party, over a period of about 10-12 minutes, close to twenty rounds resulting in six firearm injuries to the deceased Devendra Singh and four firearm injuries to the deceased Harvendra Singh @ Tika. Also, it is found proven that in the same occurrence, the other injured witness Chandra Pratap Singh (PW-3) received about seven firearm injuries whereas a single firearm injury was caused to the other injured witness Shiv Vir Singh (PW-2). That much of the prosecution story having been proven, no merit is found in the appeal as may lead to acquittal of the present appellant. We have also gone through the precedent relied upon by learned counsel for the appellant in paragraph 15 above. No new or other principle has been laid down in those decisions as may require separate consideration. Since upon appraisal of evidence, we have found the facts to be proven against the appellant, those precedents are found distinguished on facts.”

Now coming to the concluding paras. Para 23 then states that, “Consequently, the appeal fails and is accordingly dismissed. The impugned judgment and order dated 05.10.2005 by which the appellant Udaibhan was convicted and sentenced under Sections 147, 148, 307/149 and 302/149 IPC, is hereby affirmed.” Finally, it is then stated in the last para 24 that, “Office is directed to communicate the order to the Court concerned for compliance.”

In conclusion, it is quite clear that the Division Bench of Allahabad High Court has made it pretty clear in this noteworthy judgment that the testimony of an interested witness, though admissible, should be accepted by the Court after a careful scrutiny and corroboration with other materials placed on record. It should not be accepted just at face value! All the Courts must always keep this in mind in similar such cases. There can be no denying or disputing it!

Sanjeev Sirohi

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