Investigating Agency's Failure To Record Statements Of Independent Witnesses Must Be Viewed Seriously: Allahabad HC

Noting that the prosecution, as a matter of routine, does not lay emphasis on the production of independent witnesses during the course of the trial, the Allahabad High Court recently observed that the failure of the investigating agency to record statements of such witnesses during an investigation must be viewed seriously by the courts of law.

Dealing with a criminal appeal against a murder conviction where no independent witnesses were examined or produced, the Bench of Justice Attau Rahman Masoodi and Justice Manish Kumar was of the further opinion that, that time is not far when the courts may have to invoke the suo motu powers to summon such witnesses for which there ought to exist a witness protection law.

The case in brief

Essentially, the bench was dealing with a criminal appeal of 4 appellants who had moved the court challenging their conviction under Section 302 read with Section 34 Indian Penal Code, 1860 and sentence of imprisonment for life awarded to them by Additional District and Session Judge, Unnao.

One of the accused, Ashwani Kumar was further convicted under Section 404 IPC and under Section 3 r/w Section 25 of Arms Act. The conviction was in connection with a 1999 case, wherein one Ram Naresh Gaur and his son, Anil Kumar were killed by the appellants.

The murder was committed over an altercation that took place as the appellants took their tractor through the land/orchard belonging to the deceased, while they were digging out potatoes in their field.

Court's observations 

At the outset, the Court noted that there was an inconsistency between the ocular evidence of PW-1 and PW-2 as PW-1, in his cross-examination clearly stated that the first fire on the date of occurrence was shot by Ram Naresh (deceased), while PW-2 said that the first fire was shot by Ashwini Kumar (Accused).

The second contradiction noted by the Court was between the oral testimony of eye witness PW-2 and PW-10. While PW-2 said that Ram Naresh (deceased) after reaching the police station, was taken to the hospital by Jeep, the version of PW-10, in his cross-examination, was that Ram Naresh (deceased) was taken to the hospital by the same tractor he was brought to the police station.

Apart from the contradictions mentioned above, the appellants also pointed out the ambiguity in the site plan

Further, the appellants, without formally taking the ground, took the plea before the High Court that it was a case of culpable homicide within the scope of Section 300 Exception IV IPC for which the sentence of life imprisonment being maximum is disproportionate.

[Note: Exception IV to Section 300 of IPC states that Culpable homicide is not murder, if it is committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner]

In this regard, noting that the plea of self defence on an exception appended to Section-300 IPC on the strength of evidence available on record is open to be raised at the appellate stage, observed thus:

"According to the ocular evidence of PW-1, it is clear that the first fire was opened by Ram Naresh (deceased) which, by no stretch of imagination, could be viewed less than life threatening by the appellants, who in retaliation resorted to use the fire arms and caused a fatal injury to him. The threat to life was equally imminent to the appellants, when Anil Kumar bent to pick up the gun which fell down from the hands of Ram Naresh on receiving injury. The provocation for sudden fight and quarrel was triggered by the deceased who protested by advancing towards the accused and the heat of passion multiplied on his opening the first fire and this position is well established on a prudent reading of the testimony of PW-1 (Anand Mohan)"

Further, the Court said that it would not be prudent to import the element of common intention in a situation of sudden fight or quarrel saddled by provocation or aggression as in the case at hand, therefore, the Court held that the evidence on record clearly brought the case within the field of Exception-IV appended to Section 300 IPC and thus, the benefit of Section 304 Part-I becomes applicable.

Importantly, the Court was also of the opinion that in the instant case, the investigation, evidence, or site plan didn't offer any explanation of the tractor loaded with potatoes that was attempted to be brought and driven through the land of deceased

"The independent witnesses were neither produced nor their position is shown in the site plan unlike appellants", added the Court.

Lastly, the Court noted that the appellants have already served the sentence for more than 17 years and that one of the appellants (Parshuram Pasi) has died during the pendency of appellate proceedings while incarceration.

Therefore, the conviction of the appellants under Section 302 IPC was modified as conviction under Section 304 Part-I IPC and the substantive sentence of life imprisonment was reduced to the period of sentence already undergone by them.

Case title - Ashwani Kumar v. State of U.P. connected wiith Atul Kumar And 2 Ors. v. State of U.P.
Case citation: 2022 LiveLaw (AB) 8

Click Here To Read/Download Judgment