Back
1999 Supreme(All) 261
IN THE HIGH COURT OF ALLAHABAD
G. P. MATHUR, J. C. MISHRA, K. D. SHAHI
GOPAL - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
Cri. Capital Appeal 132 Of 1998
Decided On : 02/26/1999
A.D.Giri, Gopal Chaturvedi, P.N.MISHRA, U.N.Sharma
The court held that the investigation of a case, even if faulty, mischievous, or collusive, should not be a ground to reject the ocular testimony of the informant who lodged the FIR promptly.
Headnote:
CRIMINAL APPEAL - MURDER - CONVICTION AND SENTENCE - CHALLENGE - EYE-WITNESSES' TESTIMONIES - INVESTIGATION OF THE CASE - FIR - IDENTIFICATION OF ACCUSED - COMMON OBJECT - PUNISHMENT.
Fact of the Case:
Seven accused were convicted and sentenced to death for the murders of four persons and causing dangerous injuries to another person. The incident occurred during a Nautanki performance in a village. The appellants challenged their conviction and sentence.
Finding of the Court:
The court found that the eye-witnesses' testimonies were believable and reliable. The investigation of the case was faulty and mischievous, but that should not be a ground to reject the ocular testimony of the informant who lodged the FIR promptly. The FIR was not ante-timed and was a genuine piece of paper. The accused persons were known to the witnesses and there was no reason to falsely implicate them. The place of occurrence, time of occurrence, weapon of assault, and participation of accused persons were all fully established. The court also found that the case was not a rarest of rare case and that the accused persons were not habitual offenders.
Issues: 1. Whether the eye-witnesses' testimonies were believable and reliable? 2. Whether the investigation of the case was faulty and mischievous? 3. Whether the FIR was ante-timed and was a genuine piece of paper? 4. Whether the accused persons were known to the witnesses and there was any reason to falsely implicate them? 5. Whether the place of occurrence, time of occurrence, weapon of assault, and participation of accused persons were all fully established? 6. Whether the case was a rarest of rare case and whether the accused persons were habitual offenders?
Ratio Decidendi: 1. The court held that the eye-witnesses' testimonies were believable and reliable because there was nothing in the cross-examination that suggested that the Nautanki was not being played or that the total case was false. The presence of the deceased persons and the injured person at the scene of the incident was not doubted. 2. The court held that the investigation of the case was faulty and mischievous, but that should not be a ground to reject the ocular testimony of the informant who lodged the FIR promptly. The court noted that the police officers deliberately slept over the matter, tried to spoil the case, and did not record the evidence of the witnesses immediately. 3. The court held that the FIR was not ante-timed and was a genuine piece of paper. The court noted that the G.D. entry was made by a Homeguard at 1 AM, and that the FIR was lodged at 2 AM. The court also noted that the inquest report was prepared at 5.30 AM and 8.30 AM respectively, and that the FIR was not mentioned in the inquest report. However, the court held that this was a technical error and that the prosecution case could not be thrown away merely on this ground. 4. The court held that the accused persons were known to the witnesses and there was no reason to falsely implicate them. The court noted that the accused persons were residents of the same village as the witnesses, and that they were known to each other from before. 5. The court held that the place of occurrence, time of occurrence, weapon of assault, and participation of accused persons were all fully established. The court noted that the witnesses had consistently given a believable statement, and that there was no evidence to suggest that they were lying. 6. The court held that the case was not a rarest of rare case and that the accused persons were not habitual offenders. The court noted that the accused persons had no previous criminal record, and that the trial had ended after about sixteen years.
Final Decision: The court dismissed the appeals and upheld the conviction and sentence of the accused persons. The court commuted the death sentence to life imprisonment and directed that all the appellants shall undergo imprisonment for life for having murdered the victims.
( 1 ) THESE appeals were once heard by a Division Bench of this Court, consisting of Sri Girdhar Malviya, J. (since retired) and Sri B. K. Sharma, J. Both the Judges gave contradictory opinion. There was difference of opinion in their judgment. Shri Girdhar Malviya, J. upheld the conviction. Sri B. K. Sharma, J. after reading the judgment recorded by Sri Girdhar Malviya, J. was of the view that the appeals deserve to be allowed and all the appellants deserve acquittal.
( 2 ) THEN there was again difference of opinion between both the Judges on the question whether the appeals be laid before the 3rd Judge or be re-heard and decided by a Larger Bench. The matter was then referred to Honble the Chief Justice for appropriate orders. Honble the Chief Justice by constituting this Larger Bench directed that the appeals be laid before the bench of three Judges for re-hearing and disposal. This is how these appeals came up for hearing and were heard by this Larger Bench.
( 3 ) RAM Ajore PW-1 lodged an FIR on 20-10-1983 at 2 a. m. in respect of the murders of Vijai Kumar, Vinod Kumar, Rampati and Sheo Kumar and dangerous injuries to Rakesh Kumar in the night of 19/20-10-1983 at 11. 45 PM in village Lauhar Mahaiya Magra Tejpur, PS Mau Aima. Murders are said to have been caused by Pancham, Nan Bachcha alias Nanhe, Lallu, Deo Dutt. , Gopal, Guddu and Ali Hasan. All of them are said to be armed with knives. Ali Hasan died during the trial and the case against him abated. The remaining six accused persons were convicted and sentenced to death punishment under Sec. 302 IPC, seven years rigorous imprisonment and a fine of Rs. 5000. 00 under Sec. 307 read with Sec. 149 IPC and two years R. I. under Sec. 148 IPC.
( 4 ) ALL the appellants preferred separate appeals against their conviction and sentence. Appeal of Gopal was registered as Crl. Appeal No. 132 of 1998, appeal of Pancham was registered as Criminal Appeal No. 140 of 1998 and that of Guddu alias Rais Ahmad was registered as Criminal Appeal No. 147 of 1998. Appeal of Nan Bachcha alias Nanhe was registered as Criminal Appeal No. 161 of 1998 and that of Lallu was registered as Criminal Appeal No. 170 of 1998 and the appeal of Deo Dutt Pandey was registered as Criminal Appeal No. 171 of 1998.
( 5 ) ALL the appeals arose out of conviction and sentence orders passed by Sri B. Prasad, 7th Addl. Sessions Judge, Allahabad dated 17/01/1998 in Sessions Trial No. 269 of 1984 - State versus Pancham Singh and others out of one incident. Therefore, all the appeals were taken up together by the Division Bench as well as by this Larger Bench for disposal by a common judgment.
( 6 ) THE facts of the case and details of argument have been very vividly narrated in the judgment recorded by our brother Judges of the Division Bench. We need not refer in detail the facts and evidence on record again. But, we directly advert to the findings on the arguments advanced by the learned counsel for the appellants, namely, Sri A. D. Giri, Sri P. N. Mishra, Sri U. N. Sharma and Sri Gopal Chaturvedi, learned counsel for the appellants.
( 7 ) TO appreciate the arguments the facts of the case, in few words, are that in the night of 19/20-10-83 a Nautanki was going on in the Ramleela ground of village Lauhar Marhaiya Nagra Tejpur, P. S. Mau Aima. Residents of village Benipur were playing Nautanki. Male people were playing the parts of male as well as female. The Nautanki was being seen by about four to five hundred persons (cross-examination dated 8-1-1991 ). Accused persons were also sitting on the cots. They were said to be armed with knives. THEY flashed torches at the ladies. Again they proclaimed a reward of Rs. 2. 00 in the name of eunuchs (HINJRA) of village Benipur. This was not relished by Vijai Kumar. He asked not to do so. At this, he was assaulted by knife by Lallu. Vijai Kumar fell down. At this Vinod Kumar, Ramapati, Rakesh Kumar and Sheo Kumar rushed. They were also assaulted. Vijai Kumar and
