HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved on. 12.04.2019
Delivered on 30.04.2019
Court No. – 16
Case :- CRIMINAL APPEAL No. – 2267 of 2006
Appellant :- Mahey Ram Pasi
Respondent :- State Of U.P.
Counsel for Appellant :- S.C.Srivastava,Shiwa Kant Tiwari
Counsel for Respondent :- Govt.Advocate
Hon’ble Ritu Raj Awasthi,J.
Hon’ble Virendra Kumar-II,J.
(Delivered by Hon’ble Virendra Kumar-II, J.)
1. Heard Mr. Shiwa Kant Tiwari, Advocate, assisted by Mr. Sujeet Kumar Sahu, learned counsel for appellant as well as Mr. Hari Shankar Bajpayee, learned A.G.A. for the State.
2. This appeal has been preferred on behalf of appellant Mahey Ram Pasi assailing impugned judgment and order dated 27.10.2006 delivered by the Court of Sessions Judge, Faizabad in Session Trial No. 356 of 2005: State Vs. Mahey Ram Pasi for offence punishable under Section 302 I.P.C. arising out of Crime No. 241 of 2005 of Police Station Iniayet Nagar, District Faizabad.
3. The appellant has been convicted by the trial Court for offence punishable under Section 302 I.P.C. and sentenced him to undergo imprisonment for life and amount of Rs. 5000/- has been imposed as fine with default stipulation to undergo additional simple imprisonment for three month. It is also directed that half of the amount of fine shall be disbursed to Smt. Savitri Devi as compensation.
4. As per prosecution version, the complainant Smt Savitri Devi submitted written report (Ext Ka-1) at Police Station Inayat Nagar, District Faizabad on 11.07.2005. Check F.I.R. (Ext ka-11) was registered on 11.07.2005 at 5.45 a.m. regarding incident dated 10/11.07.2005 occurred at 11.00 p.m. at night. Crime No. 241 of 2005 was registered for offence punishable under Section 302 and Section504 I.P.C. at Police Station Inayat Nagar, District Faizabad. The G.D. of registration of Crime (Ext Ka-12) was also prepared.
5. The complainant has mentioned in written report (Ext Ka-01) that she is resident of village Sebrapure Pasi. On last night i.e. 10/11.07.2005 at 11.00 p.m., she was lying near her husband Mahey Pashi and father-in-law. The appellant came at her house and assaulted the deceased (her husband) by knife (chhura). She awaked after hearing screams of her husband. She tried to caught hold the appellant by holding his collar. The appellant abused her by indicating his name Mahey and told her that he has taken revenge. It is mentioned in written report that dead body of her husband was lying on the cot. The appellant thrashed and pushed her and fled away on Northern side. She raised alarm and villagers reached at the place of occurrence and chapsed him. The appellant managed to escape in the darkness.
6. The Investigating Officer prepared Inquest Report (Ext ka-3) and other documents, copy of Check F.I.R. (Ext Ka-4), copy of G.D. (Ext Ka-5), the report sent to R.I. (Ext Ka-6), the report sent to C.M.O. (Ext ka-7), Police Form-13 (Ext Ka-8), Photo Nash (Ext Ka-9), Sample of seal (Ext Ka-4) for autopsy of dead body of the deceased. The Post-mortem report of the deceased (Ext Ka-2) was prepared by the concerned doctor.
7. The Investigating Officer recorded statements of witnesses, collected blood stained and plain soil from the place of occurrence and prepared Recovery Memo (Ext Ka-14). He also extracted the knife (chhura), which was pierced in the head of the deceased and prepared Recovery Memo (Ext Ka-15). He also inspected place of occurrence and prepared Site Plan (Ext Ka-6). The Investigating Officer had sent blood stained and plain soil, collected from the place of occurrence, and knife for chemical analysis to Forensic Science Laboratory, Mahanager, Lucknow. The Director of the Laboratory sent report dated 23.03.2006 (Ext Ka-16). On the big part of blood stained soil and knife blood was found. Human blood was found on knife. Blood was disintegrated on blood stained soil, therefore, origin of this blood could not be verified in the chemical analysis.
8. This report (Ext Ka-16) was submitted by Joint Director of Forensic Science Laboratory, Mahanager, Lucknow, which is laboratory of the State of U.P. and this chemical analysis report was not challenged on behalf of the appellant during the course of trial. Therefore, this chemical analysis report (Ext ka-16) is admissible in evidence according to provisions of Section 293 Cr.P.C.
9. The Investigating Officer PW-6 saw the source of light (dibri) and prepared recovery memo on 11.07.2005 itself and handed over it to PW-1 Smt. Savitri Devi and did not take it in his possesion.
10. The Investigating Officer after conclusion of the investigation submitted charge-sheet (Ext Ka-17) against the appellant.
11. The Court of Chief Judicial Magistrate, Faizabad vide order dated 06.12.2005 committed this case to the Court of Sessions. Learned Sessions Judge, Faizabad framed charges against the appellant on 16.12.2005 for offence punishable under Section 302 I.P.C.. The accused-appellant pleaded not guilty and claimed to be tried.
12. The learned trial Court has recorded statement of PW-1 Smt. Savitri Devi, the complainant, PW-2 Buddhi Ram, PW-3 Ganga Ram, PW-4 Dr. A.K. Srivastava, P.W.-5 Constable Ram Kripal Pandey, and PW-6 Sub Inspector Sadab Khan.
13. These witnesses have proved the aforesaid documents relied upon by the prosecution.
14. Learned trial Court has recorded statement of appellants under Section 313 Cr.P.C on 22.09.2006. The accused has stated that he has falsely been implicated in this crime due to enmity. The witnesses have adduced false evidence against him. He was present at his house on the date and time of the incident. He has not committed murder of the deceased. The appellant has not adduced any defence evidence.
15. Learned trial Court has appreciated and analysed the evidence of witnesses produced on behalf of prosecution and convicted the accused appellant vide impugned judgment dated 27.10.2006.
16. We have perused record of Session Trial No. 356 of 2005: Sate Vs. Mahey Ram Pasi and perused statement of PW-1 Smt. Savitri Devi, the complainant, PW-2 Buddhi Ram and PW-3 Ganga Ram, who are witnesses of fact.
17. Learned counsel for the appellant has relied upon the decision, Vaduguchanti Babu Vs. State of A.P. of Hon’ble Supreme Court 2002 Crl. L.r. 3791 and argued that Hon’ble Supreme Court has observed in para 6 as follows:
“6. We have heard learned counsel and perused the judgment of the courts below as also the material on record. We are unable to agree with the findings of the courts below that the prosecution has proved beyond all reasonable doubt through the evidence adduced by it the fact that it is the appellant and the appellant alone who had committed this offence. We proceed on the basis that the relationship between the wife and the husband was not cordial and the deceased had come away from her marital home and was staying with her father, PW 1. But the prosecution case is that on the fateful day in the morning, both PWs 1 and 2 had gone to the field and it is only PW 1 who returned about 10 a.m. No explanation whatsoever has been given by the prosecution or PW 1 why at that point of time he returned back to the house. In the absence of any such explanation, we should conclude that the return was purely coincidental. It is the evidence of PW 1 that as he came to the house he saw the appellant strangulating the deceased inside the house. From the evidence of PW 5, the neighbour, it becomes doubtful whether PW 1 could have seen this incident standing outside the house because PW 5 has stated that it is not possible to see the persons inside the house where the incident took place from outside the house. That apart, the evidence of PW 1 shows that he in a glance saw the appellant strangulating and then he shouted when the appellant left the deceased and ran away. This evidence of PW 1 is not in conformity with the medical evidence. That apart, when he shouted for help from PW 5, it is PW 5 who came near the deceased and adjusted her clothing and found the deceased had died. This shows that PW 1, father of the deceased did not help the deceased, per contra, he stood there and it is only PW 5 who helped the deceased which is not the conduct of a father. The statement of PW 1 that the appellant ran away from the place of incident is not supported by any other evidence. It has come in the evidence that there are a number of houses around the place of incident and none including PW 5 who came immediately after hearing the cries of PW 1 saw the appellant run away. Therefore, there is no evidence produced by the prosecution to show that anybody other than PW 1 saw the appellant either coming to the house or leaving the house or near about the house, for that matter anywhere near the village on the date of incident. PW 5’s evidence does not directly support the prosecution case because admittedly she is not an eyewitness to the incident and what she saw was only the deceased lying either unconscious or dead and what she heard was what was told to her by PW 1, therefore, in regard to the actual incident her evidence is of no use to the prosecution. This apart, the subsequent conduct of PW 1 also throws some serious doubts as to his presence at the place of incident….”
18. Learned counsel for the appellant has vehemently argued that in this case also solitary evidence of P.W-1 Smt. Savitri Devi and none of her neighbour saw the incident and presence of appellant at the place of occurrence could not be proved beyond reasonable doubt, because he is resident of other village Baba Ka Purwa within limits of Police Station Ronahi, District Faizabad, whereas murder of the deceased was committed in village Sebrepure Pasi within limits of Iniayet Nagar, District Faizabad. Therefore, the evidence adduced by PW-1 is not reliable and on the basis of her solitary evidence, charges against the appellant could not be proved beyond reasonable doubt by the prosecution. Moreover, the concerned doctor found punctured wound on right side of heart. Therefore, medical evidence of PW-4 does not support the prosecution version.
19. Learned Counsel for the appellant has also relied upon the decision, Ramesh Baburao Devaskar and others. Vs. State of Maharashtra 2007 AIR SCW 6475 and argued that F.I.R. of this case was lodged by the complainant PW-1 with delay of about seven hours with due consultations and deliberations. The Check F.I.R. of this case was forwarded to the concerned Magistrate after delay of one month and eleven days. The fact of motive has been developed during examination of the complainant before the trial Court for the first time. Therefore, prosecution version cannot be accepted on the basis of written report (Ext Ka-1), which is fabricated and does not disclose the real facts.
20. On perusal of the endorsement of the Court of JM (First), Faizabad, it reveal that this Check F.I.R. (Ext Ka-1) was perused by the Presiding Officer on 22.08.2005. Therefore, there was a delay of one month and eleven days for forwarding Check F.I.R. to the competent Magistrate Court. The fact of motive/enmity has not been mentioned in the written report (Ext Ka-1), whereas details of this fact was within knowledge of Smt. Savitri Devi, the complainant. Therefore, F.I.R. of this case seems to be result of deliberations and consultations and accused has falsely been implicated in this crime. The delay in forwarding Check F.I.R. to the competent Magistrate creates doubt in this regard also. Learned counsel for the appellant has relied upon para 15, 16 and 22 of this exposition of law, which are as follows:
“15. In a case of this nature, enmity between two groups is accepted. In a situation of this nature, whether the first information report was ante-timed or not also requires serious consideration. First information report, in a case of this nature, provides for a valuable piece of evidence although it may not be a substantial evidence. The reason for insisting on lodging of first information report without undue delay is to obtain the earlier information in regard to the circumstances in which the crime had been committed, the name of the accused, the parts played by them, the weapons which had been used as also the names of eyewitnesses. Where the parties are at loggerheads and there had been instances which resulted in death of one or the other, lodging of a first information report is always considered to be vital.
16. The Code of Criminal Procedure provides for certain internal and external checks; one of them being the receipt of a copy of the first information report by the Magistrate concerned. It is not in dispute that in a grave case of this nature, the copy of the first information report was received by the Magistrate four days later. No explanation has been offered therefor. Section 157 of the Code of Criminal Procedure mandates that the first information report should be sent to the nearest Magistrate within a period of 24 hours. It has not been disputed that the occurrence took place near the district headquarters. There cannot be any reason whatsoever as to why the first information report was sent after four days. (See Jagdish Muravv. State of U.P.[(2006) 12 SCC 626 : (2007) 2 SCC (Cri) 234 : (2006) 8 Scale 433] )
22. Proof of motive by itself may not be a ground to hold the accused guilty. Enmity, as is well known, is a double-edged weapon. Whereas existence of a motive on the part of an accused may be held to be the reason for committing crime, the same may also lead to false implication. Suspicion against the accused on the basis of their motive to commit the crime cannot by itself lead to a judgment of conviction.”
21. Learned counsel for the appellant has also relied upon exposition of law, Mani Ram and others Vs. State of U.P. 1994 AIR SCW 2298 and argued that Hon’ble three judges Bench of Hon’ble Apex Court has observed in paras 8, 9 and 10 as follows:
“8. Learned counsel appearing for the appellants strenuously urged that Prabhoo Nath, PW 2 is none else but the real brother of the deceased and, therefore, he is a highly interested witness and as such his sole testimony should not be accepted in convicting the appellants without any corroboration from independent source. He also submitted that the evidence of the solitary eyewitness Prabhoo Nath is not consistent with the medical evidence which fact by itself is sufficient to hold that he is not an eyewitness to the incident but a got-up witness which fact has been ignored by both the courts below and, therefore, the findings of the two courts below suffer from serious infirmity and the conviction of the appellants could not be sustained. On a close scrutiny of the evidence of Prabhoo Nath, PW 2 and the evidence of Dr Tekariwal, PW 1, we find that there is great force in the aforesaid submissions.
9. It clearly turns out from the evidence of Prabhoo Nath, PW 2 that Ram Pher, Bhurkul and Ram Ajore of his village had also arrived at the place of occurrence just at the moment when the assault was being made on his brother deceased Basdeo but none of these independent witnesses have been examined by the prosecution. Prabhoo Nath, however, stated that the witness Ajore could not appear as a witness in this case because a criminal case against him was going on. He also deposed that Ram Pher and Bhurkul also could not appear as witnesses due to fear and having been paid for not appearing as witnesses. This statement of Prabhoo Nath, PW 2 is only speculative as according to his own statement he did not meet any of these witnesses nor this information was based on any source whatsoever. It is thus clear that the prosecution withheld the independent witnesses and had only chosen to examine the interested witness Prabhoo Nath, PW 2 who is the real brother of the deceased.
10. ……where the direct evidence is not supported by the expert evidence then the evidence is wanting in the most material part of the prosecution case and, therefore, it would be difficult to convict the accused on the basis of such evidence. If the evidence of the prosecution witnesses is totally inconsistent with the medical evidence this is a most fundamental defect in the prosecution case and unless this inconsistency is reasonably explained it is sufficient not only to discredit the evidence but the entire case. In the present case as noticed above the evidence of the solitary witness Prabhoo Nath is wholly inconsistent with the medical evidence and, therefore, it is difficult to accept him as an eyewitness to the occurrence and therefore it would not be safe to base the conviction on the solitary evidence of such a witness. There is no other evidence to support the prosecution case. Consequently the conviction of the appellants deserves to be set aside.
22. Learned counsel for the appellant has argued that this source of light was made by sand and oil and Batti was used in it, whereas the complainant PW-1 has stated in her cross-examination that it was lantern of chiragdeen. Therefore, presence of source of light is doubtful.
23. It is also argued by learned counsel for the appellant that in the present case PW-2 and PW-3 Buddhi Ram and Ganga Ram have been declared hostile by the prosecution. Therefore, on the basis of solitary evidence of the complainant Smt. Savitri Devi conviction of the appellant is bad in law and liable to be set aside.
24. We have perused written report (Ext Ka-1) of the complainant, in which it is mentioned that the appellant Mahey Pasi committed murder of her husband due to enmity. It is also mentioned in this written report that the appellant abused the complainant PW-1, when she had caught his collar and told her that he had taken his revenge.
25. PW-1 Smt. Savitri Devi has stated in her statement/examination-in-chief that the appellant Mahey Pasi came on the date of incident in month of “Aashad” (one year prior to the recording of her statement) at 10.00 – 11.00 p.m., while she was lying on cot infront of her house along with her husband under “chhaper”. Her father-in-law and Sisiter-in-law Sahbu and Kunna were lying in “osara”, which was situated in front of Southern door/side of the house. She has also stated that source of light “dibri” was available on the “chaukhat” of the door. She heard screams of her husband and awoke. She saw that the appellant was present on the “sirhana” of the cot. The appellant assaulted her husband with knife (chhura). While the appellant was fleeing away from the place of occurrence, She caught hold his shirt. The appellant abused her and told her that he had taken revenge. He pushed and thrashed her and fled away towards Northern side. In the meanwhile, her husband expired on the spot. The villagers had chased the appellant, but he could not be arrested.
26. PW-1 has clarified this fact that her younger sister was married to the appellant some time ago, prior to the date of incident. The appellant often assaulted/beaten up her sister. A Panchayat was convened in the village 05-06 days prior to the incident. The deceased Mohan Lal also attended this Panchayat. The members of Panchayat scolded the appellant and his father. The appellants threatened her and her husband to take revenge. The deceased Mohan Lal aften scolded the appellant by stating that why he was assaulting his wife. Therefore, the appellant assaulted her husband with knife due to this reason to take revenge.
27. PW-1 complaint has also mentioned that the knife used by the appellant pierced head of her husband and blade of it struck in it . The Police personnel extracted this knife. She has proved her written report (Ext ka-1).
28. PW-1 during her cross-examination has clarified this fact that his brother, namely, Mansoor is aged 30-35 years. His father is Dhani Ram and mother Shayama. The complainant has her sister Prema, Sidda and Shiv Kali. The younger sister Shiv kali is aged 15 years. She has stated that her younger sister Smt Sidda aged 20 years was married to appellant Mahey Ram Pasi. She has clarified this fact that appellant Mahey Ram and Smt Sidda got separated prior to the incident. It was settled in the Panchayat that both of them can marry again.
29. PW-1 has further stated in her cross-examination that her sister-in-law Kunna was residing at her matrimonial home from two years ago, because there was family dispute between her sister-in-law and her husband. She has mentioned that matrimonial home of her sister-in-law Kunna was situated in Barai Ka Purwa, which was at a distance of 4-5 Kilometer from her house. Her father-in-law Sahbu is aged 80-85 years. She has stated that her husband was young person and he was looking after house.
30. PW-1, the complainant has clarified topography of her house and stated that there is jungle on Southern and Western Side of her house. Now she is residing in her house alone along with her children and other family members i.e. father-in-law and sister-in-law. She has also given details of the main door, which is situated in Eastern side of the house and other door is situated in Southern side, where “chhaper” was also constructed.
31. PW-1, the complainant has specifically stated that her cot was lying on Northern side of her husband. Her cot was lying towards Northern side from main door of her house and cot of her husband was on Eastern side of the door. The court-yard was adjacent to this door. In the summer season, they often slept in the court-yard. PW-1 has specifically stated that her husband was lying on (sirhana) bedside which was in Northern side and there was distance of 10 hath (Fit) in between her and her husband cot.
32. PW-1 in her cross-examination has also specifically stated that source of light dibri was burning in “osara” of house “at takha”, which was available on the height of a person of normal stature. She apprised the Investigating Officer about this source of light and he did not take in his possession this “dibri”. She purchased this “dibri” from shop and it was lantern of Chiragdeen. The source of light “dibri” was available with the witness PW-1.
33. PW-1 in her statement/cross-examination dated 22.05.2006 has stated that she found her husband dead when the appellant fled away. She started weeping after seeing her husband dead and also became unconscious. She saw the injuries on head, chin and neck of her husband and other injuries. PW-1 has explained the nature of knife used by the appellant, in this incident. She has stated that her husband sustained injury on his head by the knife, which was having wooden bet (handle). This knife could not be folded.
34. The complainant Smt. Savitri Devi has stated that the Investigating Officer visited in the next day morning at 6.00 to 7.00 a.m. and extracted knife from her husband’s head. Although, PW-1 has also stated that it was 03-04 hours after sun rise, but considering the fact that the complainant PW-1 is rustic and un-educated woman and her husband was murdered in the night of 10/11.07.2005 at 11.00 p.m., therefore, her mental state might have been adversely affected after the incident. Therefore, she has stated in her cross-examination as such, which is not material and does not extend any benefit to the appellant.
35. PW-1 during cross-examination has specifically stated that her report was written by some person, namely, Mishra in the morning at about 7.00 a.m. at her house and he submitted her report at police station. She does not know the person, namely, Mishra ji. The villagers apprised the scribe also, because she became unconscious. She appended her thumb impression on this report. These facts indicates the mental condition of PW-1, in which written report (Ext Ka-1) was written by the scribe Devak Ram Tiwari son of Lalta Prasad. She has specifically stated that this written report was written by scribe at her house. Therefore, there is no substance in the argument of learned counsel for the appellant that report was written by the scribe with due consultations and deliberations of Sub Inspector or villagers.
36. PW-1 during her cross-examination has further stated that the witness Buddhi Ram is her elder brother-in-law and neighbour. Other witness Ganga Ram is also her neighbour and brother-in-law. These both witnesses reached at the place of occurrence after hearing her alarm. He could not clarify the time specifically, when these two witnesses reached at the place of occurrence, but she has clarified this fact that Ganga Ram and Buddhi Ram reached at the place of occurrence, when appellant Mahey Ram was fleeing away from the place of occurrence. These witnesses also chased the appellant, but he could not be arrested and the appellant fled away. She has refuted this suggestion that she has adduced her evidence under pressure of police personnel and her husband was murdered by unknown persons and the appellant has falsely been implicated in this crime and he is innocent.
37. As far as learned counsel for the appellant has argued regarding enmity and motive of the crime, it is pertinent to mention here that in written report (Ext Ka-1) it is disclosed by the complainant that the appellant committed murder of her husband due to enmity and after committing the incident he told her that he had taken revenge, which indicates both enmity and motive for this crime. PW-1 Smt. Savitri Devi has elaborated the enmity and cause of death in her statement as well as in cross-examination that a Panchayat was convened 05-06 days prior to the incident in the village, in which her husband Mohal Lal also participated. The members of the Panchayat scolded the appellant and appellant threatened her and her husband to take revenge. PW-1, the complainant has also clarified that fact that her husband often scolded the appellant, because he assaulted his wife. The deceased was brother-in-law (Sarhu) of the appellant and his younger sister-in-law Sidda was married to him.
38. PW-1 in her statement/cross examination has again reiterated that appellant and her younger sister Sidda got separated before the Panchayat and they were permitted to solemnize their marriage again. In these circumstances, the statement of complainant Smt. Savitri Devi cannot be termed as improvement of facts regarding motive and enmity. Hon’ble Supreme Court in the following exposition of law, has propounded that if enmity is disclosed in the F.I.R. and elaborated by the witness in his or her statement, then it cannot be termed as in nature of improvements. If her or she elaborated the nature of enmity on the basis of all these motives, which has not been mentioned in the complaint, then the evidence of such witness regarding these facts cannot be rejected/discarded.
39. Hon’ble Supreme Court in the case of SectionJaishree Yadav v. State of U.P., (2005) 9 SCC 788 : (2006) 1 SCC (Cri) 160 at page 79821. in para-21 of the said judgment has observed as under:
21.PW 3’s evidence was challenged by the defence in the courts below as well as before this Court on the ground that he is a partisan and biased witness being the son of the deceased Abid Ali. This fact of course is not disputed by the witness because it is the case of the prosecution itself that the deceased Abid Ali was inimical to the accused persons for various reasons mentioned hereinabove. PW 3’s presence at the place and time of the incident was challenged by learned counsel for the accused before us primarily on the ground that if really he was present at the time of incident he would have tried to protect his father and there was no material to show that any such thing was done by this witness. It was also pointed out from his evidence that though his father was profusely bleeding the clothes of this witness were not bloodstained which indicated that he never even touched the body of his father which is an unnatural conduct on the part of a son present at the time of the murder of his father. This witness when cross-examined in this regard, admitted that since his father had died already he did not carry the body of his father nor did he touch the body of his father. In our opinion different people react differently to a given situation and from the fact that this witness did not choose to fall on the body of his father or carry his dead body from where it was lying, by itself cannot be a ground to reject his evidence. We have already accepted the fact that the complaint in question was lodged by this witness soon after the incident in question and PW 8 in his evidence has spoken to the complaint being lodged by this witness and he being present throughout the investigation proceedings at the spot on that day. His presence at the place of incident also cannot be treated as a chance presence inasmuch as he is a resident of that village though his father stayed in Deoria. Learned counsel for the appellant submitted that it is an admitted fact that this witness has stated that he is an educated person and according to this witness the complaint in question was not written down by him but by his brother-in-law which is also an unnatural conduct indicating that he might not have been present at the time of incident. We do not think that this could also be a ground to suspect the presence of this witness at the time and place of incident. This witness in his evidence has stated that since his brother-in-law was available who was also a literate, he dictated the complaint to him which was scribed by his brother-in-law and we do not find anything unnatural in this conduct either. Next ground of attack in regard to the evidence of this witness is that he has not stated all the motives stated in his evidence before the court in the complaint. In other words, the complaint did not contain details of the motives as spoken to by this witness in his evidence before the court. We do not think that this also could be a ground to reject the evidence of this witness. In the complaint this witness has specifically stated that A-3 and A-4 had enmity with his father in regard to the auction of tehbazari of Nawalpur Chowk. He has further mentioned in the complaint that so far as accused Ram Pratap Yadav is concerned, his father had a litigation pertaining to a particular land and so far as Hafiz Khairul Bashr is concerned, his father had a dispute pertaining to the erection of an electric pole. He has also mentioned in the complaint about an altercation PW 6 had with A-3 and A-4 in regard to the payment oftehbazari in regard to which PW 6 had made a complaint to his father on the fateful day. In this background we hardly find any force in the argument of learned counsel for the accused that this witness has made improvement in his evidence from what he had stated in his complaint. Of course during the course of his cross-examination he has elaborated the nature of enmity that his father had with these accused persons but then that could hardly be a reason to contend that what is stated in the complaint is either different from what is stated in the evidence in regard to the motive or the witness has made improvement in regard to the motive of the accused to commit the crime. Apart from the above challenge to the evidence of this witness, learned counsel for the accused pointed out certain contradictions, omissions and improvements found in his cross-examination but then this again will have to be considered as considered by the courts below, in the background of the fact that the cross-examination of this witness was also spread over a period of nearly 6 months and he was subjected to nearly 480 questions. In this background for the reasons already stated above, as held by the two courts below, we do not think these contradictions, improvements and omissions would affect the credibility of this witness either.
40. It is relevant to mention here that each and every minute details of facts and circumstances of the incident are not required to be mentioned in the FIR. The following case law is relevant on the point.
In the case of SectionState of Punjab vs. Gurmit Singh others reported in 1996 SCC (2) 384 the Hon’ble Supreme Court has held as under:-
“………Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how car that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. Trial Court fell in error for discrediting the testimony of the prosecutrix on that account………..
……….In our opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but in the facts and circumstances of the case was also natural. The courts cannot over-look the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged……..
……….The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl of a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused………”
On perusal of this exposition of law, it reveal that Hon’ble Supreme Court has dealt with these important facts (1) Delay in lodging F.I.R. (2) Faults and deficiencies committed by the Investigating Officer (3) Sole victim/ injured witness and requirement of corroboration and effect of these facts on prosecution version/ case. It is held that prosecution case cannot be discarded if evidence of witnesses produced by prosecution is reliable, credible and inspires confidence. Therefore, evidence of PW-1, PW-2 and P.W.3 would be assessed accordingly. Although this case law relates to offence of rape, but it enunciate the above mentioned three law points.
The Hon’ble Supreme Court in case of Ponu Samy Vs. State of Tamilnadu reported at (2008) 5 SCC 587 (c), has held that police Apathey and village women’s endeavour, social condition of complainant can be taken into account while considering delay in lodging F.I.R.
In case of Vishwanathan Vs. State reported at (2008) 5 SCC 354, Hon’ble Supreme Court held that prosecution case should not be thrown out on ground of delay other factors like trauma suffered by victim, sociological factors alongwith other evidence should be taken into consideration.
In case of Animireddy Venkatramana Vs. Public Prosecutor High Court A.P. reported (2008) 5 SCC 368 (f d), the Hon’ble Supreme Court held that discrepancies in F.I.R. merely because case against some accused named in it could not be established or some inquiries were made to ascertain truth of incident prosecution case cannot be discarded. F.I.R. need not be encyclopedic, each and every detail need not to be stated in it. Court has to ascertain about possibility of false implication of accused. It is also observed that probable, physical and mental condition of informant is relevant.
In case of Darshan Singh and others Vs. State of Punjab reported at AIR 1983 SC 554, the Hon’ble Supreme Court held that the fact that the names of some accused are not mentioned in the FIR is a circumstance which the prosecution has to explain, though, no rule of law stipulates that an accused whose name is not mentioned in the FIR is entitled to acquittal.
Eqbal Baig Vs. State of A.P. reported at AIR 1987 SC 923, the Supreme Court held that non-mention of name of accused in FIR and inquest report by witness not a ground for rejecting his evidence.
In case of Betal Singh Vs. State of M.P. reported at 1996 Crl.J. page 4006 (SC), Babu Singh Vs. State of Punjab 1996 (33) ACC 474 SC Baldev Singh Vs. State of Punjab 1995 ACC 752 (SC) Bijay Singh Vs. State of Bihar 2003 SCC (Crl.) 1093, Hon’ble Supreme Court in these cases has held that mention of few facts or vague facts or if detailed particulars of occurrence are not mentioned in the FIR, then minute details of occurrence is not required as FIR is not encyclopedia of occurrence. In case of Bijay Singh (supra), it is also held that FIR is not substantive piece of evidence of occurrence.
In case of Raghbir Singh Vs. State of Haryana reported at 2000 CRLJ 2463 (SC), the Hon’ble Supreme court has held that if injured was sent to hospital for treatment first, then FIR was lodged then delay is very well explained and it will not affect prosecution adversely.
In case of Bhaskaran Vs. State of Kerala reported at 1998 (9) SCC 12/AIR 1998 SC 476, the Hon’ble Supreme court has held that distance of police station from place of occurrence was 15 km in this case. No conveyance was available. FIR was lodged after 24 hrs. In these circumstances, it was held that evidence of eye witness cannot be disbelieved on the ground that they made no attempt to save the deceased from attack. Investigating Officer had not seized the torch source of light. The evidence of eye witness was not discarded.
Hon’ble Supreme Court in case of SectionRavinder Kumar and Anr. vs. State of Punjab reported at AIR 2001 SC 3570 observed as under :-
……The attack on the prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. OF course a prompt and immediate lodging of the FIR is the ideal as that would given the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.
….. When there in criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of uncoversantness is not too uncommon among urban people also. They might not immediately think of going as the police station. Another possibility is due to lack to adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or seductiveness of temper of moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident.
…… We are not providing an exhausting catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point cut that the stale demand made in the criminal courts the treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the cause for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the merely delay in lodging the FIR. [Vide Zahoor vs. State of UP (1991 Suppl. (1) SCC 372; Tara Singh vs . State of Punjab MANU/SC/0016/1991 : AIR1991SC63 ; SectionJamna vs. State of UP MANU/SC/0022/1994 : 1994 (1) SCC 185. In Tara Singh (Supra) the Court made the following observations: “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.”
….. We are not providing an exhausting catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point cut that the stale demand made in the criminal courts the treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the cause for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the merely delay in lodging the FIR. [Vide Zahoor vs. State of UP (1991 Suppl. (1) SCC 372; Tara Singh vs . State of Punjab MANU/SC/0016/1991 : AIR1991SC63 ; SectionJamna vs. State of UP MANU/SC/0022/1994 : 1994 (1) SCC 185. In Tara Singh (Supra) the Court made the following observations: “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.”
It is further observed that :-
…… The third contention is that the motive alleged by the prosecution was not established and hence the area remains gray as to what would have impelled them to liquidate the broker. No doubt it is the allegation of the prosecution that appellants owed a sum of Rs. one lakh to the deceased and it might not have been possible for the prosecution to prove that aspect to the hilt. Nonetheless some materials were produced for showing that three were transactions between the appellants and the deceased and that they had some account to be settled. Only thus far could be established but not further. It is generally an impossible task for the prosecution to prove what precisely would have impelled the murderers to kill a particular person. All that prosecution in many cases could point to is the possible mental element which could have ben the cause for the murder. In this connection we deem it useful to refer to the observation of this Court in SectionState of Himachal Pradesh vs. Jeet Singh MANU/SC/0165/1999 : 1999CriLJ2025 : “No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such as degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended.”
Hon’ble the Supreme Court in the case of Mukesh and others Vs. State of NCT of Delhi and others reported in (2017) 6 SCC 1 has observed as under:
According to Hon’ble Mr. Justice Dipak Mishra for himself (presently Hon’ble C.J.I.) and Hon’ble Mr. Justice Ashok Bhushan held in paragraph nos. 49, 53, 55, 56 and 57 regarding delay in lodging F.I.R. in cases of offence committed against women and other victims as follows :-
49. Delay in setting the law into motion by lodging of complaint in court or FIR at police station is normally viewed by courts with suspicion because there is possibility of concoction of evidence against an accused. Therefore, it becomes necessary for the prosecution to satisfactorily explain the delay. Whether the delay is so long as to throw a cloud of suspicion on the case of the prosecution would depend upon a variety of factors. Even a long delay can be condoned if the informant has no motive for implicating the accused.
53. SectionIn State of Himachal Pradesh v. Rakesh Kumar (2009) 6 SCC 308, the Court repelled the submission pertaining to delay in lodging of the FIR on the ground that the first endeavour is always to take the person to the hospital immediately so as to provide him medical treatment and only thereafter report the incident to the police. The Court in the said case further held that every minute was precious and, therefore, it is natural that the witnesses accompanying the deceased first tried to take him to the hospital so as to enable him to get immediate medical treatment. Such action was definitely in accordance with normal human conduct and psychology. When their efforts failed and the deceased died they immediately reported the incident to the police. The Court, under the said circumstances ruled that in fact, it was a case of quick reporting to the police.
Judged on the anvil of the aforesaid decisions, we have no hesitation in arriving at the conclusion that there was no delay in lodging of the FIR.
55. As far as the argument that the FIR does not contain the names of all the accused persons is concerned, it has to be kept in mind that it is settled law that FIR is not an encyclopedia of facts and it is not expected from a victim to give details of the incident either in the FIR or in the brief history given to the doctors. FIR is not an encyclopedia which is expected to contain all the details of the prosecution case; it may be sufficient if the broad facts of the prosecution case alone appear. If any overt act is attributed to a particular accused among the assailants, it must be given greater assurance. In this context, reference to certain authorities would be fruitful.
56. SectionIn Rattan Singh v. State of H.P. (1997) 4 SCC 161, the Court, while repelling the submission for accepting the view of the trial court took note of the fact that there had been omission of the details and observed that the criminal courts should not be fastidious with mere omissions in the first information statement since such statements can neither be expected to be a chronicle of every detail of what happened nor expected to contain an exhaustive catalogue of the events which took place. The person who furnishes the first information to the authorities might be fresh with the facts but he need not necessarily have the skill or ability to reproduce details of the entire story without anything missing therefrom. Some may miss even important details in a narration. Quite often, the police officer, who takes down the first information, would record what the informant conveys to him without resorting to any elicitatory exercise. It is voluntary narrative of the informant without interrogation which usually goes into such statement and hence, any omission therein has to be considered along with the other evidence to determine whether the fact so omitted never happened at all. The Court also referred to the principles stated in SectionPedda Narayana v. State of A.P. (1975) 4 SCC 153; SectionSone Lal v. State of U.P. (1978) 4 SCC 302; SectionGurnam Kaur v. Bakshish Singh 1980 Supp SCC 567.
57. SectionIn State of Uttar Pradesh v. Naresh and Ors (2011) 4 SCC 324, reiterating the principle, the Court opined that it is settled legal proposition that FIR is not an encyclopedia of the entire case. It may not and need not contain all the details. Naming of the accused therein may be important but not naming of the accused in FIR may not be a ground to doubt the contents thereof in case the statement of the witness is found to be trustworthy. The court has to determine after examining the entire factual scenario whether a person has participated in the crime or has been falsely implicated. The informant fully acquainted with the facts may lack necessary skill or ability to reproduce details of the entire incident without anything missing from the same. Some people may miss even the most important details in narration. Therefore, in case the informant fails to name a particular accused in the FIR, this ground alone cannot tilt the balance of the case in favour of the accused. For the aforesaid purpose reliance was placed upon SectionRotash v. State of Rajasthan (2006) 12 SCC 64 and SectionRanjit Singh v. State of M.P. (2011) 4 SCC 336.”
41. PW-1 Smt. Savitri Devi has proved by adducing sufficient and credible evidence of motive and enmity of the appellant with the deceased/her husband and fact of enmity and revenge taken by the appellant was disclosed in the written report (Ext Ka-1) itself by her. Moreover, this is a case of direct evidence. Therefore, the motive pales into insignificance.
42. On the fact of motive the following exposition of law of this Court and Hon’ble Apex Court are relevant:-
Hon’ble Supreme Court (Division Bench) in the case of SectionState of U.P. vs. Babu Ram reported in 2000 Cri. L. J. 2457 in para-11 has observed as follows:-
“11. We are unable to occur with the legal proposition adumbrated in the impugned judgment that motive may not be very much material cases depending on direct evidence whereas motive is material only when the case depends upon circumstantial evidence. There is no legal warrant for making such a hiatus in criminal cases as for the motive for committing the crime. Motive is a relevant factor in all criminal cases whether based on the testimony of eye witnesses or circumstantial evidence. The question in this regard is whether a prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No doubt, if the prosecution proves the existence of a motive it would be well and good for it, particularly in a case depending on circumstantial evidence, for, such motive could then be counted as one of the circumstances. However, if cannot be forgotten that it is generally a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the Investigating Officer would have succeeded in knowing it through interrogations that cannot be put in evidence by them due to the ban imposed by law.”
In the case of SectionYogesh Singh v. Mahabeer Singh, (2017) 11 SCC 195 Hon’ble Apex Court has held as under:-
46. It has next been contended by the learned counsel for the respondents that there was no immediate motive with the respondents to commit the murder of the deceased. However, the trial court found that there was sufficient motive with the accused persons to commit the murder of the deceased since the deceased had defeated accused Harcharan in the Pradhan elections, thus putting an end to his position as Pradhan for the last 28-30 years. The long nursed feeling of hatred and the simmering enmity between the family of the deceased and the accused persons most likely manifested itself in the outburst of anger resulting in the murder of the deceased. We are not required to express any opinion on this point in the light of the evidence adduced by the direct witnesses to the incident. It is a settled legal proposition that even if the absence of motive, as alleged, is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of the witnesses as to commission of an offence, motive loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance. (SectionHari Shanker v. State of U.P. [Hari Shanker v. State of U.P., (1996) 9 SCC 40 : 1996 SCC (Cri) 913] , Bikau Pandey v.State of Bihar [Bikau Pandey v. State of Bihar, (2003) 12 SCC 616 : 2004 SCC (Cri) Supp 535] , SectionState of U.P. v. Kishanpal [State of U.P. v. Kishanpal, (2008) 16 SCC 73 : (2010) 4 SCC (Cri) 182] , Abu Thakir v. State of T.N. [Abu Thakir v. State of T.N., (2010) 5 SCC 91 : (2010) 2 SCC (Cri) 1258] and Bipin Kumar Mondal v. State of W.B. [Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91 : (2011) 2 SCC (Cri) 150] )
In the case of SectionRajagopal v. Muthupandi, (2017) 11 SCC 120 Hon’ble the Apex Court has held as under:-
14. Equally, it is well established that motive does not have to be established where there is direct evidence. Given the brutal assault made on PW 1 by criminals, the fact that witnesses have turned hostile can also cut both ways, as is well known in criminal jurisprudence.
In the case of Badam Singh Vs. State of M.P. reported in AIR 2004 SC 26 has held as under:-
20. We also find that there was no motive for the appellant to kill the deceased. Even though existence of motive loses significance when there is reliable ocular testimony, in a case where the ocular testimony appears to be suspect the existence or absence of motive acquires some significance regarding the probability of the prosecution case. In this case the brother of the deceased, PW-7 clearly stated that even though there was some dispute between the appellant and the deceased three years before the occurrence, that dispute was amicably settled and the disputed land was shared half and half by them. Thereafter they continued to cultivate their respective plots of land peacefully and no untoward incident took place whatsoever. We must, therefore, hold that the prosecution has failed to establish any motive for the offence. The fact that the deceased met a violent death is not surprising. He was a history sheeter and he was involved in large number of criminal offences including dacoity, robbery, abduction, kidnapping and attempt to murder etc. The possibility of his having been killed by one of his enemies cannot be ruled out.
43. Learned counsel for the appellant has further argued that source of light “dibri”/ lantern of chiragdeen was not seized by the Investigating Officer and no blackening was found at the place “Takha”, where it was burning. Therefore, it is doubtful that there was any source of light at the date and time of this incident. PW-1, the complainant Smt. Savitri Devi has stated in her examination-in-chief that source of light “dibri” was burning on the “chaukhat” of the door, when the appellant assaulted her husband. PW-1 has elaborated this fact by stating in her cross-examination that this source of light was kept in “takha” of “osara”, which was situtated in front of main door of her house and there was no blackening in the “takha”. She had shown this place to the Investigating Officer and he also picked up this source of light “dibri”. She has specifically stated that she purchased this lantern of chiragdeen from the shop and glass was fixed in it. She has also clarified this fact that this source of light lantern was in her possession on the date of recording of statement on 22.05.2006. Because glass was fixed in this source of light, therefore, there was no occasion for availability of blackening in the “takha”, the place where it was available on the date of incident, as proved by PW-1. The fact that Investigating Officer did not take possession of this source of light, the following exposition of law is relevant. It was fault and omission of the Investigating Officer.
44. The following exposition of law is relevant regarding fault and omissions committed by the Investigating Officers.
Hon’ble Supreme Court in the case of Bhaskaran Vs. State of Kerala, (1998) 9 SCC 12 : 1998 SCC (Cri) 843 in para-6 of the said judgment has observed as under:
6. This being a statutory appeal we have, with the assistance of the learned counsel for the parties, gone through the entire evidence on record, particularly, the evidence of PWs 1 and 2. Having done so we are in complete agreement with the High Court that the evidence of the above two eyewitnesses can be safely relied upon and made the basis for conviction. The High Court rightly pointed out that considering the fact that the distance of the police station from the village in question was 15 kms and the uncontroverted evidence of PW 1 that no buses were available to reach the police station in the night, it could not be said that there was any delay in lodging the first information report at 9 a.m. on the following morning. On the contrary, in our opinion, the report was lodged at the earliest available opportunity. Equally justified was the High Court in observing that since different persons reacted differently in the same circumstances the other two reasons canvassed by the trial court to disbelieve PWs 1 and 2 were patently wrong. As regards the failure of the Investigation Officer to seize the torchlight, the trial court failed to consider that the remiss on his part could not be made a ground to disbelieve PWs 1 and 2, if they were otherwise trustworthy.
In the case of Chand Khan Vs. State of U.P., (1995) 5 SCC 448:1995 SCC (Cri) 915, Hon’ble Apex Court in para 23 has observed as follows:
23. There is no evidence on record to show that there was profuse bleeding from the injuries sustained by the two ladies and Chand Khan for blood to trickle down to the floor. On the contrary, the find of blood near the threshold of PW 1’s house fits in with the evidence of the eyewitnesses and the nature of injuries sustained by Shah Alam. From the evidence of Sm. Naeema Parveen (PW 5) we get that when the accused persons started beating the members of their family inside their premises, she, her mother and aunt (Raees Begum) started shouting and cursing them. Then, when they found Chand Khan was approaching them they went inside. There Ishtiaq Khan gave two chhuri blows on the left side of her face and Sharif Khan gave two danda blows to her aunt Raees Begum. When she found Chand Khan was about to beat her mother, she struck him with a vegetable cutting knife. The above evidence of PW 5 stands substantially corroborated by the other three eyewitnesses referred to earlier. Then again the nature of injuries as found by the doctor upon her, Sm. Raees Begum and Chand Khan fits in with her testimony. In our opinion the best corroborative piece of evidence is furnished by the FIR which was lodged by Keramat Ali (PW 1) on the basis of what he heard from PW 5. In the FIR, which was lodged within two hours of the incident, the substratum of the entire prosecution case finds place including a statement that during the incident Sm. Naeema Parveen had, in defending herself, given a blow to one of the accused with a vegetable cutting knife. In view of the above statement recorded in the FIR, the Investigation Officer (PW 16) ought to have taken steps to seize the knife even if PW 5 had not produced it for, one of the essential requisites of a proper investigation is collection of evidence relating to the commission of the offence and that necessarily includes, in a case of assault, seizure of the weapon of offence, but then failure to collect evidence and failure to produce evidence collected during investigation at the trial carry two different connotations and consequences. While, the former may entitle the court to hold the investigation to be perfunctory or tainted affecting the entire trial, in case of the latter the court may legitimately draw a presumption in accordance with Section 114(g) of the Evidence Act. As the case presented before us comes under the first category of failures we have to find out whether we will be justified in discarding the prosecution case solely for the remissness of the Investigating Officer in seizing the knife. The consistent and reliable evidence of the eyewitnesses coupled with the nature of injuries sustained by some of them and Chand Khan and the fact that in the FIR it has clearly been stated that one of the miscreants had been assaulted by a vegetable cutting knife do not persuade us to answer the question in the affirmative. Mr Thakur lastly submitted that the entire prosecution story was improbable for if really the incident had happened in the manner alleged by it, the persons present in PW 1’s house would have sustained more serious injuries. We do not find any substance in this contention for it is evident that Shah Alam was the main target and the assault on others was carried out to thwart any resistance from those present in the courtyard.
In the case of SectionPrithvi (Minor) v. Mam Raj, reported in (2004) 13 SCC 2729 the Hon’ble Apex Court has observed in para 17 and 19 as under:
17. A further reason for disbelieving the evidence of Prithvi is that, while Prithvi stated that he could see the assailants because there was light on the spot coming from a bulb fitted in an electric pole near the chakki of Birbal (which was situated about fifteen steps from the place of occurrence) the investigating officer (PW 36) when cross-examined said that he did not remember anything about it nor did he include any electric pole in his site plan.
Assuming that this was faulty investigation by the investigating officer, it could hardly be a ground for rejection of the testimony of Prithvi which had a ring of truth in it. We may recount here the observation of this Court in SectionAllarakha K. Mansuri v. State of Gujarat [(2002) 3 SCC 57 : 2002 SCC (Cri) 519] , SCC at p. 64, para 8, that:
“The defects in the investigation holding it to be shaky and creating doubts also appears to be the result of the imaginative thought of the trial court. Otherwise also, defective investigation by itself cannot be made a ground for acquitting the accused.”
19. The evidence of Sona (PW 32) to the effect that, he awoke because of barking of dogs and saw four persons running by and when he flashed the torch, he noticed three of the respondents and a fourth person whom he could not recognise, is also disbelieved by the High Court on the ground that the place where Sona was sleeping was not shown in the site plan. The High Court also attached importance to the fact that the investigating officer had not put the date on which the statement of this witness was taken, although the investigating officer explained that he had forgotten to mention the date. The High Court assumes that on the date of the incident itself, the police knew the names of the assailants; therefrom, it deduces that the fact that they were not arrested till 30-8-1993 makes the statement of the witness unreliable. This, to say the least, is another piece of perverse reasoning.
45. There is no substance in the argument of learned counsel for the appellant in this regard.
46. Learned counsel for the appellant has also argued that Check F.I.R. of this case was forwarded to the Magistrate concerned after one month and eleven days. Therefore, this fact indicates that after incident of this crime G.D. of Police Station, Iniayet Nagar, District Faizabad was stopped and papers including Check F.I.R. and G.D. of registration of crime (Ext Ka-6 to Ext Ka-12) were prepared ante timed. It is relevant to mention here that Inquest report (Ext Ka-3) of the dead body of the deceased was started on 11.07.2005 at 6.00 a.m. in village Pasin ka Purwa, H.O. Sevra and it was concluded on 11.07.2005 at 7.00 a.m.. It is mentioned in this Inquest report that information of this crime was given at the police station Iniayet Nagar on 11.07.2005 at 5.45 a.m. Crime No. 241 of 2005 is also mentioned along with offence under Section 302 and Section504 I.P.C. in Inquest report (Ext Ka-3). F.I.R. Ext Ka-11 was registered on the basis of written report submitted by PW-1, complainant Smt. Savitri Devi on 11.07.2005 at 5.45 a.m.. The place of occurrence has been mentioned in vicinity of Sevra, which was situated at a distance of five kilometer.
47. Therefore, when the Investigating PW-6 Sub Inspector Sadab Khan prepared inquest report (Ext ka-3) on 11.07.2005. Check F.I.R. (Ext Ka-11) was already registered at the police station Iniayet Nagar. PW-6, the Investigating Officer has proved this inquest report. This crime number was registered at the police station in his presence and he immediately started the investigation. He has specifically stated that he reached at the place of occurrence at 6.00 to 6.15 a.m.. No specific cross-examination in this regard was conducted to PW-6 or PW-5 Constable Clerk Ram Kripal, who has proved Check F.I.R. (Ext Ka-11) and registration of G.D. (Ext Ka-12) of registration of crime.
48. Learned defence counsel has also not conducted cross-examination on the fact that Check F.I.R. (Ext ka-11) was received in office of Circle Officer on which date and time and when it was sent by the Circle Officer to the Court of C.J.M. Faizabad, on the basis of dispatch register of Circle Office and F.I.R. register of the Court of J.M. (first) Faizabad. On the basis of endorsement dated 22.08.2005 of the Court of J.M. (first) regarding perusal of Check F.I.R. by the presiding officer, it cannot be accepted that F.I.R. was registered ante times. It is relevant to mention her that this Check F.I.R. (Ext ka-11) was sent by post to the office of Circle Officer, Milkipur, Faizabad, when he perused Check F.I.R. (Ext Ka-11) and sent it to the concerned Court. The Circle Officer has appended only his signatures and date is not mentioned. Therefore, the learned defence counsel, without conducting specific cross-examination to witnesses PW-5 and PW-6, was unable to prove that any prejudiced was caused to the appellant on the ground that Check F.I.R. was forwarded to the concerned Court/J.M. (first), Faizabad with delay.
49. Moreover, the following exposition of law of Hon’ble Supreme Court is relevant regarding forwarding of check FIR to the concerned Magistrate court:-
In the case of SectionShiv Ram v. State of U.P., (1998) 1 SCC 149 : 1998 SCC (Cri) 278 at page 159 Hon’ble the Apex Court in paragraph no. 17 and 18 has held as under:-
17. It was then contended by Mr Sushil Kumar that the claim of the complainant that he lodged the FIR at 9.05 p.m. is false. According to him if the FIR was registered as alleged there was no reason whatsoever why the copy thereof was not sent to the Illaqa Magistrate at the earliest opportunity. As regards the contents of the FIR he urged that it was impossible for any human being to write down the complaint with such details when four dead bodies were lying of which three were without heads in the house. The contents of the complaint manifestly suggest that it was an afterthought exercise with the help of police or somebody to spread a wide net and involve as many accused as possible to take revenge. He, therefore, urged that the complaint lodged by Mahendra Kumar (PW 1) be treated as a false document and be not accepted for the purpose of seeking corroboration to the evidence of PW 1.
…..To our mind it is only a figment of imagination to contend that the investigation carried out by the investigating machinery was antedated at the instance of the complainant. It is true that the complainant at the relevant time was posted at a far-off place but he testified that he had come to Village Bajarkha on two days’ leave as he had not come till then to his village after he joined the service. This explanation given by the witness is quite plausible and the courts below were right in accepting his presence at the time of occurrence. It is also true that there was a delay in forwarding the copy of the FIR to the Illaqa Magistrate but that circumstance would not demolish the other positive and credible evidence on record. This would only show how in such a serious crime the investigating agency was not careful and prompt as it ought to be.
18. It was then contended for the appellants that if really the incident was reported at 9.05 p.m. then surely the inquest reports which were prepared on the following day must mention the title of the crime. But it was left blank and, therefore, this omission was a serious infirmity and demolishes the very substratum of the prosecution based on the first information report which is a concocted document. At the first blush the argument appeared to us attractive but on scrutiny and consideration of the materials on record we are unable to accept this submission. If really the complaint was not lodged at 9.05 p.m. then the police could not have reached at the place of occurrence at 11.00 p.m. Such minor omission is nothing but a bona fide error or casual approach on the part of the investigating agency which does not affect the substratum of the prosecution story. It was then urged that Kamlesh was taken to the police station in an injured condition but he was not sent to the hospital for treatment. In fact Kamlesh was not traced for the whole night and only on the following day he appeared and was admitted in the hospital where he died after 17 days due to septicaemia. It was, therefore, urged that neither Kamlesh nor the complainant ever went to the police station to lodge a complaint at 9.05 p.m. and this complaint was manufactured at a later stage with the connivance of the police. We see no substance in this contention also because the fact remains that Kamlesh was injured during the incident in question. If he was not sent to the hospital for medical examination and treatment by the investigating agency no fault could be found with the complainant’s evidence and the FIR (Ex. Ka-1). In these circumstances we see no merit in all these contentions raised on behalf of the appellants.
In the case of SectionJinnat Mia v. State of Assam, (1998) 9 SCC 319 : 1998 SCC (Cri) 1017 at page 324 Hon’ble the Apex Court in paragraph no. 15 has held as under:-
15. It is next argued that there is a considerable delay in forwarding the report to the Magistrate from the police station. We find that the report was forwarded on the next day i.e. 4-6-1987. In the facts and circumstances of the case we do not find that there is any delay which could create a doubt in the case of the prosecution. Reliance is placed by the learned counsel for the appellant in SectionArjun Marik v. State of Bihar[1994 Supp (2) SCC 372 : 1994 SCC (Cri) 1551] . While taking into account several circumstances which vitiated the prosecution case the Court referred also to the delay of 3 days in forwarding the report to the Magistrate. Even in the said case it is pointed out that quite often there are valid reasons for the delay in the despatch of the FIR and it is not always a circumstance on the basis of which the entire prosecution case may be said to be fabricated but it all depends upon the facts and circumstances of each case where the circumstance of delay may lead to serious conclusions. In the present case we find that the delay of one day in forwarding the report does not vitiate the prosecution case.
In the case of SectionAnil Sharma v. State of Jharkhand, (2004) 5 SCC 679 : 2004 SCC (Cri) 1706 at page 684 Hon’ble the Apex Court in paragraph no. 6 14 has held as under:-
6. In support of the appeals, it has been submitted that there was delay in recording the FIR. There was non-examination of many vital witnesses. Evidence of the defence witnesses was not carefully analysed. PW 6 later on made a statement under Section 164 of the Code that his evidence was recorded under pressure. There were exaggerations in respect of what had been indicated in the fardbeyan as recorded. Non-production of the hospital register and non-examination of the Warden and Head Warden casts serious doubts on the veracity of the prosecution version and the courts below should not have brushed aside those infirmities lightly. The production of the register and the examination of the Warden and Head Warden would have established that the place of occurrence as indicated is highly improbable. The situs has not been proved. No bloodstains have been found or seized. PW 6 is not a resident of the jail. He claimed to be an inmate of Ward No. 6 and though he stated that he was inside the camp of the jail, nothing material in that regard has been established. As soon as PW 6 came out of the jail in May 2001, he filed an affidavit stating as to how the statements made by him during trial were wrong. It has been erroneously held that no prejudice was caused by not getting him re-examined. Different yardsticks have been adopted for the prosecution and the defence witnesses. PW 5’s presence at the spot of occurrence as claimed is highly doubtful. The canteen manager himself has improbabilised the presence of the witnesses. Even if it is accepted that PW 5 was present, his evidence does not guarantee truthfulness. There was no corroborative material. After having discarded the evidence of PWs 1, 2 and 4 there was no justification to act on the evidence of PWs 5 and 6. The FIR has been dispatched after considerable delay and there has been delayed examination of PW 5. So far as PW 5 is concerned, he was examined under Section 164 of the Code. He has not named Sushil Srivastava in the statement recorded before the Magistrate though in the cross-examination he accepted that what was stated before the Magistrate was correct. The assault part as indicated by PW 6 in the so-called FIR was given a go-by in court. Though in the FIR it was stated that the assault was made by respective weapons the Court has come to a presumptive conclusion that no physical assault was made but by holding the head the killing by accused Anil Sharma was facilitated.
14. So far as the delay in dispatch of the FIR is concerned, it was noted by the High Court that the informant’s fardbeyan was recorded at 10.00 a.m. on 22-1-1999. The inquest report was prepared on 22-1-1999 at 1925 hours. The inquest report was prepared by the Executive Magistrate and the case number is also mentioned. That being so, the plea that the fardbeyan being ante-timed has not been established. Post-mortem was conducted on 22-1-1999 at 2200 hours. Above being the position, there can be no grain of doubt that the fardbeyan was recorded on the date of occurrence and filed at the indicated time and the case has been instituted on the basis of the said fardbeyan. Finding recorded by the High Court that the fardbeyan was not ante-timed is amply supported by evidence on record and no adverse view as claimed by the accused-appellants can be taken.
In the case of Jafel Viswas and others Vs. State of West Bengal reported in 2018 SCC OnLine SC 2011 Hon’ble Supreme Court has held as under:-
7… The police was informed and a FIR was lodged at about 3.15 p.m. in the afternoon. Written complaint was submitted and inquest was prepared and post mortem was conducted.In F.I.R. names of 7 accused persons were mentioned which included name of all the appellants. A report under Section 157 of the Code of Criminal Procedure, 1973 (SectionCrPC) could be sent to the Magistrate after delay of about 3 months i.e. on 20.12.1985 and the Magistrate initiated the order sheet on 20.12.1985 on the basis of the F.I.R. A chargesheet was submitted against 10 accused persons…..
12. Learned counsel for the appellant challenging the decision of the High Court submits that the fact that F.I.R. was lodged on 25th September, 1985 and the report under Section 157 CrPC could reach the Magistrate on 20th December, 1985 in which instead of seven names, 10 accused were mentioned, causes prejudice to the accused and this ground is itself sufficient to vitiate the conviction…
14. It is further submitted that insofar as a report under Section 157 CrPC is concerned, which was submitted with delay, the issue has been considered by the High Court and the High Court has noted the lapse and observed that concerned officer was callous and unmindful of his duty as a public servant. But it has to be found out from the other evidence on record that the FIR on which the prosecution has relied was a genuine F.I.R. or not. It is further submitted that both the courts below have rightly believed the statement of eye-witnesses and convicted the accused and there are no grounds in the appeal.
17. The purpose and scope of Section 157 CrPC has time and again been considered by this Court in large number of cases.
19. In State of Rajasthan (supra) in paragraphs 27 and 28, this Court has laid down as follows:–
“27. The delay in sending the special report was also the subject of discussion in a recent decision being SectionSheo Shankar Singh v. State of U.P. wherein it was held that before such a contention is countenanced, the accused must show prejudice having been caused by the delayed dispatch of the FIR to the Magistrate. It was held, relying upon several earlier decisions as follows:– (SCC pp. 549-50, paras 30-31)
“30. One other submission made on behalf of the appellants was that in the absence of any proof of forwarding the FIR copy to the jurisdiction Magistrate, violation of Section 157 CrPC has crept in and thereby, the very registration of the FIR becomes doubtful…..
……discloses that no case of any prejudice was shown nor even raised on behalf of the appellants based on the alleged violation of Section 157 CrPC. Time and again, this Court has held that unless serious prejudice was demonstrated to have been suffered as against the accused, mere delay in sending the FIR to the Magistrate by itself will not have any deteriorating (sic) effect on the case of the prosecution…..
31. In this context, we would like to refer to a recent decision of this Court in SectionSandeep v.State of U.P. wherein the said position has been explained as under in paras 62-63: (SCC p. 132)
“62. It was also feebly contended on behalf of the appellants that the express report was not forwarded to the Magistrate as stipulated under Section 157 CrPC instantaneously. According to the learned counsel FIR which was initially registered on 17-11-2004 was given a number on 19-11-2004 and was forwarded only on 25-11-2004 to the Magistrate. As far as the said contention is concerned, we only wish to refer to the reported decision of this Court in SectionPala Singh v. State of Punjab wherein this Court has clearly held that (SCC p. 645, para 8) where the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the court then, however improper or objectionable the delay in receipt of the report by the Magistrate concerned be, in the absence of any prejudice to the accused it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.
63. Applying the above ratio in Pala Singh to the case on hand, while pointing out the delay in the forwarding of the FIR to the Magistrate, no prejudice was said to have been caused to the appellants by virtue of the said delay. As far as the commencement of the investigation is concerned, our earlier detailed discussion discloses that there was no dearth in that aspect. In such circumstances we do not find any infirmity in the case of the prosecution on that score. In fact the above decision was subsequently followed inSarwan Singh v. State of Punjab, Anil Rai v. State of Bihar and Aqeel Ahmad v. State of U.P.
28. It is no doubt true that one of the external checks against antedating or ante-timing an FIR is the time of its dispatch to the Magistrate or its receipt by the Magistrate. The dispatch of a copy of the FIR “forthwith” ensures that there is no manipulation or interpolation in the FIR. If the prosecution is asked to give an explanation for the delay in the dispatch of a copy of the FIR, it ought to do so. However, if the court is convinced of the prosecution version’s truthfullness and trustworthiness of the witnesses, the absence of an explanation may not be regarded as detrimental to the prosecution case. It would depend on the facts and circumstances of the case.”
20. The obligation is on the I.O. to communicate the report to the Magistrate. The obligation cast on the I.O. is an obligation of a public duty. But it has been held by this Court that in the event the report is submitted with delay or due to any lapse, the trial shall not be affected. ….
21. In cases where the date and time of the lodging of the F.I.R. is questioned, the report becomes more relevant. But mere delay in sending the report itself cannot lead to a conclusion that the trial is vitiated or the accused is entitled to be acquitted on this ground.
22. This Court in the case of SectionAnjan Dasgupta v. State of West Bengal, (2007) 11 SCC 222 (of which one of us was a member, Hon. Ashok Bhushan, J.) had considered Section 157 CrPC. In the above case also, the FIR was dispatched with delay. Referring to an earlier judgment of this Court, it was held that in every case from the mere delay in sending the FIR to the Magistrate, the Court would not conclude that the FIR has been registered much later in time than shown.
23. The High Court has rightly noted this submission and opined that to find out whether the F.I.R. is genuine or not, and whether the trial court has rightly convicted the accused or not, the entire evidence has to be looked into.
24. On delayed dispatch of F.I.R., some prejudice have to be proved by accused. The prejudice which was sought to be projected by the appellants is that in F.I.R. names of only 7 accused were mentioned but in the report sent to the Magistrate there were 10 names. For the present case, it is sufficient to notice that name of all the appellants were very much in the F.I.R., hence addition of three names in report can in no manner prejudice the appellants.
50. The argument of learned counsel for the appellant in this regard is of no avail.
51. PW-1 complainant has disclosed this fact in her cross-examination that this incident was occurred at night and the Investigating Officer came on the next day morning at 6.00 to 7.00 am.. Therefore, her statement that she reached at police station at 5.00 p.m. is not material, because at the same time she has stated that she does not remember exact time of her arrival at the police station. Likewise, her statement that some person, namely, Mishra wrote her written report (Ext Ka-1) at her house and she does not know that this person was resident of which place does not extend any benefit to the appellant. It may be possible that under duress and disturbed mental state due to murder of her husband, she could not slept on the date of incident and remained busy in the proceedings conducted by the Investigating Officer. Therefore, she could not name the scribe properly and she could not state exact time of her arrival at the police station.
52. On perusal of written report (Ext ka-1) it is relevant to mention here that scribe of written report is Devek Ram Tiwari son of Lalta Prasad, who was resident of village Garegapureprem, within limits of police station Iniayet Nager PW-1 Smt. Savitri Devi submitted this written report at the police station and scribe Devak Ram Tiwari did not accompany her at police station.
53. It may be fault of the A.D.G.C. who conducted the trial of this case on behalf of prosecution that he did not produce scribe Sri Devak Ram Tiwari during the course of trial. Therefore, on the basis of conduct of ADGC, prosecution cannot be adversely affected on this ground that scribe was not produced during the course of trial. The argument of learned counsel for the appellant does not extent any benefit to the appellant in this regard.
54. Learned counsel for the appellant has further argued that there is contradiction in medical evidence adduced by PW-4 Dr. A.K.Srivastava and the ocular evidence adduced by Smt. Savitri Devi, because P.W.-4 concerned doctor has also found a punctured wound on the dead body of the deceased.
55. The following exposition of law propounded by Hon’ble Supreme Court are relevant regarding difference in medical evidence and ocular evidence of eyewitnesses:-
In the case of Dhirajbhai Gorakhbhai Nayak Vs. State of Gujarat, reported in AIR2003SC2855, (2003 )9SCC 322 Hon’ble Apex Court has held as under:-
9. Coming to the evidence of PW2 on which reliance has been placed by the learned counsel for the accused-appellant, he has been rightly described as untruthful by the Trial Court and the High Court. he accepted to have come near the house of the deceased on hearing shouts of Dahiben. But he stated that he did not enquire how he died and who was the assailant. This conduct was to say the least most unusual and abnormal. It was not because he was shocked and, therefore, did not ask. He does not say so. On the contrary, he describes in graphic details about alleged illicit relationship between PW1 and PW8. The Trial Court has rightly observed that he has tried to create a smoke screen. As regards the alleged discrepancy between medical evidence and ocular evidence it is to be noted that a combined reading of the evidence of PW9 who examined the deceased after he was brought to the hospital and PW7 who conducted the post-mortem, it is clear that there is no discrepancy in the medical evidence vis-avis ocular evidence. Only in respect of injury No. 1, there appears to be some confusion but that does not dilute the prosecution evidence. It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye witnesses account which has to be tested independently and not treated as “variable” keeping in view the medical evidence as “constant”. (SectionSee State of U.P. v. Krishna Gopal and Anr. MANU/SC/0506/1988 : 1989CriLJ288 ).
In the caes of Balbir Singh, etc. Vs. State of Punjab, reported in (2005 )9SCC 299 Hon’ble Apex Court has held as under:-
8. Coming to the nature of the offence committed by the appellants, there is evidence to the effect that the appellants only wanted to teach a lesson to Tara Singh. They were aggrieved by the fact that deceased Tara Singh had purchased the agricultural land which they expected to get from Gurdial Kaur. Two of the assailants were armed with axes, but they did not use the sharp edge of those weapons and the injuries sustained by deceased Tara Singh would show that there were no deep penetrating injuries. Most of the injuries were of minor nature, having possibly been caused by the blunt edge of the weapon. The doctor, who conducted the post-mortem examination deposed that injury no. 11, namely, two bruises on the back of the deceased Tara Singh fractured two of his ribs. The evidence of PW-2 and PW-3 clearly is to the effect that it was Sikander Singh who caused those injuries, which ultimately proved fatal. Two other injuries were caused by Gorkha Singh, the first accused. Appellants Gora Singh and Balbir Singh are not alleged to have caused any fatal injury to the deceased Tara Singh. Gora Singh, though armed with a ‘Kulhari’ (axe), used the blunt portion of that axe. Sikandar Singh was armed with a ‘Sotti’ (wooden stick). He caught hold of deceased Tara Singh to enable other assailants to cause injury to him and Sikandar Singh himself gave ‘Sotti’ blows on the back of the deceased which resulted in causing fracture of the ribs and, in turn, piercing of the lung tissues of the deceased Tara Singh. There is no dispute that these injuries were caused on Tara Singh. It is clear that Sikandar Singh dealt the fatal blows which ultimately resulted in the death of the deceased. If the entire prosecution evidence is considered in the background of the so called motive alleged, it is very difficult to discern that these appellants had any common intention to cause the death of the deceased. The ‘Sotti’ blows dealt on the back of deceased Tara Singh proved fatal causing fracture of ribs which pierced his lung tissues.
In the case of SectionShamsher Singh @ Shera vs. State of Haryana reported in (2002 )7SCC 536 Hon’ble the Apex Court has held as under:-
6. This is a case where the trial court as well as the High Court have concurrently held that the appellant is guilty of offence under Section 302 IPC. Both the courts have relied on the evidence of eye-witnesses, PW-7 and PW-8, on proper appreciation of their evidence. We do not find any good reason to discard their evidence. Their presence at the time of incident could not be doubted. Non-examination of Satbir, in our opinion, was not fatal when his brother Ram Chander (PW-8) was examined. It was not necessary that in all cases all the witnesses present at the time of occurrence should be examined, that too on the same point. Mere non-examination of one of the eye-witnesses to speak on the same point does not impair the prosecution case when the eye-witnesses examined fully support the prosecution case, as is done in this case.
At any rate, it is the domain of appreciation of evidence and both the courts below have accepted their evidence as supporting the case of the prosecution. PW-11, Dr. B.R. Kayat, has stated that cause of death was due to head injuries which were three in number and those injuries could be caused on the deceased by the axe (Ext.P9). He has also stated that the possibility of causing these injuries on the deceased with sharp side of axe was totally ruled out. It is on this statement that the learned counsel for the appellant laid great emphasis in the light of the statements of PW-7 and PW-8, the accused used the axe from the sharp side. The trial court in this regard observed that it might have been merely misjudgment of the witnesses; may be the axe was used from sharp side but if the deceased had attempted to sit or move, the sharp side had slipped and the blunt side of the head of the axe or the stick would have hit the head of the deceased. In our view, the evidence of the doctor himself that the injuries could be caused by the axe (Exbt. P-9) and the cause of death was because of head injuries, his evidence has to be read in proper perspective as a whole. Added to this, the evidence of eye-witnesses also support the case of the prosecution as to the giving of three blows on the head of the deceased by the appellant. Further recovery of axe (Exbt. P9), which was found with bloodstains, lent support to the prosecution case. The evidence of PW-13, the Investigating Officer, is also available on record in support of the prosecution case. Absence of motive, assuming it to be, does not benefit the appellant when there is reliable and acceptable version of the eye-witnesses pointing against him supported by the medical evidence.
8. The authorities cited by the learned counsel for the appellant, on the point that when there is conflict between medical evidence and the ocular evidence, the prosecution case should not be accepted, are of no help to him in this case. On deeper scrutiny of evidence as a whole, it is not possible to throw out the prosecution case as either false or unreliable on mere statement of the doctor that injuries found on the deceased could not be caused by a sharp edged weapon. This statement cannot be taken in isolation and without reference to other statement of the doctor that the injuries could be caused by Ex. P-9 axe to disbelieve the evidence of eye-witnesses. From the evidence available in this case the possibility of the blunt head of the axe or the stick portion coming in contact with the head of the deceased cannot be ruled out.
In the case of P. Venkateswarlu Vs.State of A.P. and Ors., reported in (2002 )10SCC 46 Hon’ble Apex Court has held as under:-
8. On the question of discrepancy between the medical and oral evidence of the eye-witnesses, a reference has to be made to the statement of P.W.5, the autopsy Surgeon. He has given a list of 27 injuries found on the body of the deceased. Injuries No.1 to 6 and 17 are on the head. Injuries Nos. 1,2,3,17,23 and 26 are cut lacerations. The cut lacerations could have been caused by a heavy cutting weapon just like an axe. The eye-witnesses had referred to axe blows given on the head of the deceased by A1 to A3. Only thing is that the autopsy surgeon did not say that the head injuries could have been caused by axe blows. This is the reason for alleged discrepancy between the medical and oral evidence. The cut laceration as stated could be said to be as a result of axe blows and therefore, we need not take this as discrepancy between medical and oral evidence. Injuries No. 13, 15, 16, 18, 24 and 25 were described by the doctor as stab injuries. These injuries could have been caused by a spear also which is a sharp edged weapon. Therefore, when doctor described certain injuries as stab injuries the same could well be caused by a spear. Injury No.1 alongwith injury No.17 was itself sufficient to cause death, and therefore, could be described as a fatal injury. The way we look at it, it appears that medical evidence is consistent with oral evidence, it is not possible to say that there is any discrepancy between medical and oral evidence.
In the case of SectionKamaljit Singh v. State of Punjab, reported in (2003) 12 SCC 155at page 159 Hon’ble Apex Court has held as under:-
7. The trial court was of the view that PW 5 was a “transplanted” witness and he was introduced after consultation and confabulations. No relevant or just reason was indicated by the trial court to so conclude. Though effort was made to show that he was interested in the conviction of the accused, the High Court analysed his evidence with great care and caution, taking note of the fact that he was the son of deceased Gurcharan Singh. After detailed analysis his evidence was found credible and the reasons which weighed with the High Court in this regard are not shown to suffer any infirmity to warrant our interference. The other factor which weighed with the trial court is the alleged variation between the medical and the ocular evidence. Here again, the trial court’s judgment was practically not based on any acceptable reason. From a perusal of the statement of Devinderpal Singh (PW 5) and the medical evidence, referred to above, in our opinion, it cannot be said that there was any contradiction between the ocular and medical evidence. There was absolutely no occasion for the trial court to have observed that the evidence of PW 5 Devinderpal Singh was not exactly in tune with the medical evidence. Gurcharan Singh, the deceased had a stab-wound on the back of the chest on “left side, 22 cm below the neck and 1 cm from the midline”, whereas Devinderpal Singh (PW 5) had stated that blow was given to his father on the back towards the right side. In our opinion, it could not be said that there was any contradiction between the ocular and medical evidence when sufficient materials were produced to prove the presence of the accused as well as PW 5 at the factory at the time of occurrence, the fact that some or more of records which could have been produced but not shown to be deliberately withheld cannot by itself cast any shadow of doubt on the veracity of the prosecution version.
8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out. (SectionSee Solanki Chimanbhai Ukabhai v. State of Gujarat [(1983) 2 SCC 174 : 1983 SCC (Cri) 379 : AIR 1983 SC 484] .) The position was illuminatingly and exhaustively reiterated in SectionState of U.P. v. Krishna Gopal[(1988) 4 SCC 302 : 1988 SCC (Cri) 928 : AIR 1988 SC 2154] . When the acquittal by the trial court was found to be on the basis of unwarranted assumptions and manifestly erroneous appreciation of evidence by ignoring valuable and credible evidence resulting in serious and substantial miscarriage of justice, the High Court cannot in this case be found fault with for its well-merited interference.
In the case of SectionKrishnan v. State, reported in (2003) 7 SCC 56 : 2003 SCC (Cri) 1577 at page 61 Hon’ble Apex Court has held as under:
13. The medical evidence is at variance with the ocular evidence and, therefore, casts doubt thereon. Even if the prosecution case is accepted in its entirety, accused-Appellants 3 and 4 cannot be held guilty of offence punishable under Section 302 IPC as the ingredients of Section 34 IPC are not made out. According to the prosecution, blows were given on the back and this did not result in fatal injuries which were attributed to the assaults by the appellants Ayyar Thavar and Porutchyelvan. It was submitted that the defence plea of alibi taken by accused-appellant Ganesan has been wrongly discarded by the trial court and the High Court and similar is the case with the plea taken by accused-appellant Krishnan. Had the plea of alibi of the accused-appellant been accepted, it would have clearly established how the prosecution was trying to falsely implicate more persons. In other words, it was submitted that the material is inadequate so far as the accused-appellants Krishnan and Ganesan are concerned, and at the most they could be convicted for offence punishable under Section 324 or Section 326 IPC. It is pointed out that accused-appellant Krishnan is an advocate and has already been in custody for nearly four years.
18. The evidence of Dr Muthuswami (PW 7) and Dr Abbas Ali (PW 8) do not in any way run contrary to the ocular evidence. In any event, the ocular evidence being cogent, credible and trustworthy, minor variance, if any, with the medical evidence is not of any consequence.
20. Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses’ account which had to be tested independently and not treated as the “variable” keeping the medical evidence as the “constant”.
21. It is trite that where the eyewitnesses’ account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eyewitnesses’ account would require a careful independent assessment and evaluation for its credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the “credit” of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
In the case of SectionThaman Kumar v. State (UT of Chandigarh), reported in (2003) 6 SCC 380 : 2003 SCC (Cri) 1362 at page 388 Hon’ble Apex Court has held as under:-
13. Shri Sushil Kumar, learned Senior Advocate has strenuously urged that the injury found on the body of the deceased could not have been caused in a manner deposed to by the eyewitnesses and thus there is a conflict between the medical evidence and ocular testimony. At the time when the statement of PW 2 Dr G. Dewan was recorded, the chadar was produced in the Court and the same was converted into a rope by twisting and according to the witness, the thickness of the same in the middle was about 6 or 7 cm. Learned counsel has submitted that the ligature mark on the neck of the deceased was 1/2 cm in width and this was not possible from a chadar, the thickness of which after twisting and converting into a rope came to about 6/7 cm. We are unable to accept the submission made. It has come in evidence that the chadar was about 1 1/2 metre long and 1 metre wide. This shows that in fact it was not a full chadar or a bedsheet but was a piece of cloth, which is sometimes used by ordinary people like rickshaw-pullers to cover their face during winters, especially in the night. If the said piece of cloth is converted into a rope by rolling it over, its diameter will very much depend upon the fact as to how strongly and tightly it is rolled over. If a piece of cloth which is only one metre in width is tightly rolled over in the shape of a rope, its diameter will be much less than 6 or 7 cm and the ligature mark on the neck of the deceased would be of still lesser dimension.
16. The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eyewitnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony.
18. Shri Sushil Kumar has drawn our attention to certain findings recorded by the learned Sessions Judge and has urged that he had rightly given benefit of doubt to the appellants and the High Court committed manifest error of law in reversing the aforesaid findings and convicting and sentencing the appellants while hearing an appeal against acquittal. The learned counsel has urged that the prosecution has failed to prove any motive on the part of the appellants to commit the crime. It is true that the only witness examined on the point of motive, namely, PW 7 Sardara Singh, who is the brother of the deceased, turned hostile and did not support the prosecution case. In his statement under Section 161 CrPC he had said that the deceased used to get commission for bringing customers to the guest house and he owed about Rs 42,000 in that account and some dispute had taken place with the owner when he had demanded his money. However, in his statement in Court he denied to have given any such statement. There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved. SectionIn State of H.P. v. Jeet Singh [(1999) 4 SCC 370 : 1999 SCC (Cri) 539] it was held that no doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no offence was committed if the prosecution failed to prove the precise motive of the accused to commit it, as it is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. SectionIn Nathuni Yadav v. State of Bihar [(1998) 9 SCC 238 : 1998 SCC (Cri) 992] it was held that motive for doing a criminal act is generally a difficult area for prosecution as one cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act and such impelling cause need not necessarily be proportionately grave to do grave crimes. It was further held that many a murder have been committed without any known or prominent motive and it is quite possible that the aforesaid impelling factor would remain undiscoverable. In our opinion, in the facts and circumstances of the case, the absence of any evidence on the point of motive cannot have any such impact so as to discard the other reliable evidence available on record which unerringly establishes the guilt of the accused.
56. We have perused statement of PW-4 Dr. A.K. Srivastava, who has conducted autopsy of the dead body of the deceased on 11.7.2005 at 3.30 p.m.. The deceased was aged 27 years and time of his death was one and quarter day before/prior to autopsy. PW-4 Dr. has found the following ante-mortem injuries on the body of the deceased.
“1. Incised wound of size 5 cm x 1.3 cm x bone deep on the front of skull, 04 cm above root of nose underlying frontal bone was fractured. Brain and membrane were lacerated.
2. Incised wound in front of chin of size 2 cm x 1.6 cm muscle deep, 2.5 cm below lower lip.
3. Incised wound on left side neck, 2 cm above medial border of left clevical of size 5 cm x 2 cm chest cavity deep underlying left lung was lacerated. Right part (atrium) of heart was punctured. About 1000 ml blood was found in chest cavity.
4. Abrasion of size 5 cm x 0.3 cm on left upper arm 6 cm below left shoulder.
57. PW-4 has opined that cause of death of the deceased was shock and hemorrhage, as a result of ante-mortem injuries sustained by him.
58. Dr. PW-4 also found 300 ml semi digested food in stomach of the deceased. Feacal matter was present in large and small intestine. Urinal bladder was half full. PW-4 has proved Post-mortem report as (Ext ka-2) and papers received by him as (Ext Ka-3 to Ext Ka-10). PW-4 has further opined that the injuries sustained by the deceased were sufficient in ordinary course of nature to cause his death.
59. The injuries sustained by the deceased were sufficient in natural course to cause death on 10/11.07.2005 at 11.00 p.m. by blow of knife “chhura”.
60. PW-4 in his cross-examination has further reiterated that three incised wounds were found by him on the dead body of the deceased. He knows the nature of punctured wound/penetrated wound. The penetrated wound might have been caused by pointed part of knife or “chhura”. The incised wound might have been caused by sharp edged weapon. Injury no.2 and 3 (incised wound) could be caused by sharp edged weapons. The injury nos. 1 and 2 could be sustained and resulted by the impact on the body of sharp edged weapon. PW-4 has accepted this fact that he knows the nature of “talwar”, “farsa” and “chhura”, sharp edged weapons. He has opined that injury no.4 was sustained by the deceased by blunt object. He has further opined that if knife or chhura would be pointed one, punctured wound might have been sustained by the injured.
61. PW-4 in his cross-examination again reiterated that injury nos. 1 and 3 were sufficient in natural course to cause death of the deceased. He could not opined that for which time the deceased could have survived after sustaining these injures. He has stated that heart of the deceased was punctured.
62. No specific cross-examination was conducted by the learned defence counsel on the nature of injury no.3. PW-4 Dr. A.K.Srivastava has specifically stated that size of injury no.3 was 5 cm x 2 cm x chest cavity deep at a distance of 2 cm from left clavicle. Therefore, nature of this injury indicates that blow of “chhura” was so hard and heavy that it lacerated the left lung of the deceased and also punctured the atrium of heart.
63. PW-6, the Investigating Officer had extracted the sharp edged part of knife (chhura) from the forehead of the deceased Mohan Lal and prepared the recovery memo (Ext Ka-15). The Investigating Officer has mentioned in recovery memo (Ext Ka-15) that sharp edged blade was 18 “angul”, Mutiya was of size 5 “angul” and in the middle blade was of size 3 angul. Hence, in the mid of blade its width was 3 “angul”. PW-6 has mentioned in Recovery Memo (Ext ka-15) that blade of chhura of size 8 “angul” was inserted/pierced and struck in the forehead of the deceased. Hairs and blood were found on it. Therefore, size of blade of chhura indicates its impact on left lung and heart of the deceased, which was seated underneath injury no.3. The nature of injury indicates also that some part of blade of knife used by the appellant might have been pointed on its front part.
64. PW-1 was present on the place of occurrence in front of her house,while the appellant assaulted the deceased Mohan Lal with this “chhura”. The nature of this sharp edged weapon has been disclosed by PW-1 in her cross-examination that it could not be folded and it’s base was made by wooden handle/”baint”. It may be possible that while the appellant assaulted the victim with knife, the details of which are mentioned in recovery memo (Ext Ka-15), then it may be possible that injury no.4 abrasion was sustained by the deceased by wooden part of this “chhura”.
65. There is no material contradiction in evidence of Dr. P.W. 4 and the eye-witness PW-1 Smt. Savitri Devi, or material difference between the ocular and medical evidence.
66. PW-6 has proved Site Plan (Ext ka-13). He has shown the place on the “chaukhat” of the door, where source of light “dibri” was burnig as Mark “having dot under circle. The deceased Mohan Lal was lying on the cot at place Mark “having cross under circle” and the complainant PW-1 Smt. Savitri Devi was lying on cot at place Marked “have right tick under circle”. PW-6 found blood at the place, which was marked by “……”. The direction of the cot of the complainant PW-1 and deceased Mohan Lal were in front of Eastern door of their house. Both the cots were lying in direction North to South, on both sides of main Eastern door of house.
67. The Investigating Officer PW-6 has also mentioned the place, where father-in-law Sahbu of PW-1 and Sister-in-law Kunna were lying on their cot, in front of, Southern door of the house in “chhapar” osara. PW-6 shown the way from the marked “arrow” by which appellant fled away from the place of occurrence, which was situated in between house of the deceased and Subbe son of Nahlu.
68. PW-6 has also prepared recovery memo of blood stained and plain soil and prove it as Ext Ka-14. The PW-6 found blood of the deceased on the bedside (sirhana) of his cot and place of occurrence.
69. Therefore, PW-1 Savitri Devi was able to caught hold collar of shirt of the appellant, while he was trying to escape from the place of occurrence.
70. The learned counsel for the appellant has also argued that blood was also found on the place “kolia”/lane as accepted by witness PW-1 that her husband often used this “kolia”/lane to urinate. Therefore, it may be possible that some unknown persons committed murder of the deceased, while he was urinating at this place, which was adjacent to open “jungle”.
71. It is also argued by learned counsel for the appellant that house of the deceased was adjacent to the “jungle”, as accepted by PW-1 and usually they avoid to come out their house in the night. Therefore, it is not acceptable that the complainant PW-1 along with her husband was sleeping outside the courtyard of her house.
72. PW-1 has stated in her cross-examination that their house is adjacent to the “jungle” and “jungle” is situated on the Southern and Eastern side, therefore, they avoided coming out of house in the night. PW-1 has also stated in her cross-examination that her father-in-law Sabhu aged about 80-85 years and her sister-in-law were lying on their cots in front of Southern door of their house. Therefore, her statement that she was residing alone in her house is not material. She has stated that her house is situated on the Western corner of the village. The appellant has not adduced defence evidence regarding the facts and circumstances, in which unknown persons committed murder of the appellant as suggested by the learned defence counsel to PW-1.
73. PW-1 was present, when the appellant assaulted her husband Mohan Lal, while he was lying on his cot and sharp edged part of the knife was struck in the forehead of the deceased. She tried to caught hold from collar of his shirt, but he pushed and thrashed her and fled away from the place of occurrence. The presence of PW-1 at the place of occurrence cannot be doubted. The appellant had chosen time of assault at night. Therefore, the appellant committed this premeditated crime, because in Panchayat he was scolded by the members of the Panchayat and the deceased often scolded him for the reason he assaulted his wife Sidda.
74. There is no substance in the argument of learned counsel for the appellant that some unknown persons committed murder of the deceased.
75. Learned counsel has further argued that the appellant was persent on his house on the date and time of the incident. He has not committed murder of the deceased and he is innocent. This fact has been stated by the appellant in his statement recorded under Section 313 Cr.P.C.. It is relevant to mention her that no defence evidence has been adduced by the appellant. He could obtain permission under Section 315 Cr.P.C. from the trial Court to prove that he was present at his house on the date and time of the incident. The statement in this regard made by the appellant is within category of “plea of alibi” according to provision of Section 11 and according to provisions of Section 106 Indian Evidence Act, the burden of proving this fact was on the appellant.
76. The provisions of Section 11 and illustration (a) of SectionEvidence Act provide as follows:
11. When facts not otherwise relevant become relevant.- Facts not otherwise relevant are relevant–
(1) if they are inconsistent with any fact in issue or relevant fact;
(2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.
Illustration (a) The question is, whether A committed a crime at Calcutta on a certain day.
The fact that, on that day, A was at Lahore is relevant.
The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.
77. Section 106 of Indian Evidence Act provides as follows:
106. Burden of proving fact especially within knowledge.–When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
78. The appellant has not proved by defence evidence that his presence on the date and time of the incident was improbable and he was present at his house. Moreover, the distance between his village Babu ka Purwa and village Sebrapure Pasi was not clarified during course of cross-examination of PW-1, PW-2 and PW-3, which could indicate that presence of the appellant was improbable, as claimed by him.
79. The appellant was not able to prove this fact that he was not present on the date, time at the place of occurrence of the incident. PW-1 Smt. Savitri Devi has proved his presence in her village Sebrapurepasi within limits of police station Iniayet Nager at intervening night of 10/11.07.2005 at 11.00 p.m., while the appellant assaulted the deceased and committed his murder.
80. The prosecution has proved immediate motive for the commission of this crime by the appellant.
81. PW-1 has refuted this suggestion put forth by learned defence counsel to this witness that the accused-appellant has been implicated in the crime due to enmity by unknown persons. PW-1 has proved that the appellant is the only person who committed murder of the deceased. It is suggested to PW-1, the complainant that there is “parti bandi” in the village on the basis of election and her husband was having criminal antecedent, but PW-1 has replied in her cross-examination that she does not know that there is “parti bandi” on the basis of election in her village. She has specifically stated that her husband was never arrested by police personnel and he never gone to jail. The criminal antecedent of the deceased has not been brought on record, nor any defence evidence has been adduced regarding alleged “parti bandi” of the village on behalf of the appellant. Therefore, argument of learned counsel for the appellant is not acceptable that the deceased was having criminal antecedent and he has ever arrested by the police and for this reason he was murdered by unknown persons.
82. Learned counsel for the appellant has mentioned that on the date of incident PW-1 and her husband brought their cot inside the house, because it was raining at 10.00-11.00 p.m., therefore, story of the prosecution witness that PW-1 and her husband were lying outside the house in rainy season in the month of July, 2005, is doubtful. Therefore, in the night she might have slept at the time of incident she could not be aware incident of murder of her husband. The fact that she caught her collar of shirt of the appellant has been developed by her before the trial Court.
83. PW-1 Smt. Savitri Devi in her cross-examination has specifically stated regarding the facts and circumstances in which, her and her husband’s cot were lying on the place of occurrence, her statement is supported and corroborated by the Site Plan prepared by PW-6. She has specifically stated that cot of her husband was at a distance of 10 hath (fit) from her cot. PW-1 in her written report (Ext Ka-1) has specifically mentioned that she caught hold shirt of the appellant, while he heard screams of her husband and saw that the appellant assaulted her husband by “chhura”. Therefore, statement of PW-1 given in her examination-in-chief and cross-examination are corroborated by the fact mentioned in her written report (Ext Ka-1). She has also stated that in summer season they had often slept in court-yard of their house. She has stated that when rain started in between 10.00-11.00 p.m. they brought their cot inside the house. On the basis of this statement it cannot be inferred that PW-1 was not lying outside main Eastern door of her house on the date and time of incident, when the appellant assaulted the deceased with “chhura”. It may be possible that of some time/for a while it was rain, when PW-1 and her husband brought their cots inside the house, but she has specifically stated that they were lying on their cots at the point of time of incident committed by the appellant.
84. The Investigating Officer has mentioned in Site Plan (Ext Ka-13) that he found blood of the deceased on the place, which was shown by Mark “::::” near bedside (sirhana) of his cot and he collected blood stained soil from this place. He has prepared recovery memo (Ext Ka-14) in this regard. No material contradiction was elicited during cross-examination of PW-6. PW-1 Smt. Savitri Devi has proved this fact that on the date and time of the incident, the appellant assaulted the deceased, while the deceased was lying on his cot and his bedside was in Northern direction. Therefore, Site Plan prepared by PW-6 corroborates the statement of PW-1.
85. These facts indicate that as disclosed by PW-1 in her cross-examination rain might have come for short while prior to the incident committed by the appellant. According to Chemical Analysis Report (Ext Ka-16) on big part of blood stained soil and knife blood was found. Human blood was found on blade of knife. The blood on blood stained soil was disintegrated, therefore, origin of this blood could not be fixed by the chemical examiner.
86. If argument of learned counsel for the appellant may be accepted that at the point of time, prior to the incident of murder of the deceased, it was rain, but in the aforesaid facts and circumstances and by statement of PW-1, complainant it is established that rain was not there, when the appellant assaulted the deceased.
87. No specific cross-examination was conducted by learned defence counsel to PW-1 that on which time they brought their cots inside the house and again in which circumstances they were lying on their cots in front of main Eastern gate of their house. Therefore, on the basis of statement of PW-1 that it was rainy season and they brought cot inside the house, it cannot be doubted that PW-1 and her husband were not lying at the place of occurrence, when the appellant assaulted the deceased. The argument of learned counsel for the appellant in this regard is of no avail.
88. Learned counsel for the appellant lastly argued that PW-2 Buddhi Ram and PW-3 Ganga Ram are elder brother-in-law of the witness PW-1. They have been declared hostile by the prosecution and they have not supported the prosecution version that they reached at the place of occurrence and saw while the appellant was fleeing away from the place of occurrence and they chased the appellant. It is also argued that witness Sahbu, father-in-law of PW-1 and Kunna sister-in-law were present outside of the house in front of Southern door of the house, even then these witnesses and other villagers were not produced by the prosecution during course of trial. Therefore, solitary evidence of PW-1 is not sufficient to convict the appellant.
89. PW-2 Buddhi Ram in his examination-in-chief has stated that Mohan Lal resident of his village was murdered on 10/11.07.2005. He heard noises. He and other villagers reached at the place of occurrence, but he has stated that he did not see the appellant, while he was assaulting the deceased or he was fleeing away from the place of occurrence. He has denied this fact that he chased the appellant.
90. PW-3 Ganga Ram has stated that on hearing noises, he along with other villagers reached at the place of occurrence and saw that the deceased Mohan Lal was murdered by knife. He has stated that on 10/11.2005 he was lying in his house. He has also denied this fact that neither he saw the appellant, while he assaulted the deceased, nor he saw while he was fleeing away. He has also stated that he did not chase him.
91. Both these witnesses PW-2 and PW-3 have stated in their cross-examination conducted by learned defence counsel that when they reached on the place of occurrence, the deceased Mohan Lal had expired. These witnesses were declared hostile and they were cross-examined by the learned A.D.G.C. also . They have also denied their statement under Section 161 Cr.P.C. given to the Investigating Officer. Whereas on perusal of the Case Diary, it reveal that they have supported the prosecution version regarding the fact that they reached at the place of occurrence on hearing alarm raised by the PW-1, complainant. They saw the appellant on the place of occurrence, while he was fleeing away after committing murder of the appellant and they chased him also.
92. PW-6, the Investigating Officer stated that he recorded statement of witnesses during course of investigation. No suggestion was given to PW-6 on behalf of the appellant that he never recorded statements of PW-2 Buddhi Ram and PW-3 Ganga Ram.
93. PW-1, complainant has proved this fact that while the appellant assaulted her husband, she raised alarm and tried to caught hold appellant holding his shirt. The appellant abused her and told that he has taken his revenge. The villagers chased the appellant, but he could not be arrested by the villagers. The witnesses Buddhi Ram and Ganga Ram are relatives and neighbour of the complainant being elder brother-in-law. PW-1 during her cross-examination has stated that houses of Buddhi Ram and Ganga Ram are adjacent to her house. They reached at the place of occurrence after hearing her alarm. She could not specifically state the exact time, when these witnesses reached at the place of occurrence. The appellant Mahey Ram fled away on the Northern side, while these witnesses reached at the place of occurrence. These witnesses chased the appellant, but he could be arrested.
94. Therefore, presence of PW-2 Buddhi Ram and PW-3 Ganga Ram at the place of occurrence was proved by PW-1 complainant, but they have not supported the prosecution version. They saw part of the incident, while the appellant was fleeing away from the place of occurrence, after committing murder of the deceased. From statement of PW-1, complainant, it reveal that they were not present on the place of occurrence, while the appellant assaulted the deceased with “chhura”.
95. PW-2 Buddhi Ram and PW-3 Ganga Ram are relatives/in-laws of PW-1 Smt. Savitri Devi and the appellant Mahey Ram also who was husband of her younger sister Smt. Sidda. Therefore, it may be possible that under influence and persuasion of the appellant, PW-2 and PW-3 witnesses have not supported the prosecution version. Although, in their statement under Section 161 Cr.P.C. they have stated that they saw the appellant, while he was fleeing away from the place of occurrence, after committing murder of the deceased and they chased him.
96. PW-2 and PW-3 have accepted that they reached at the place of occurrence after hearing alarm raised by the complainant. PW-2 and PW-3 have been declared hostile on behalf of the prosecution, they were not the eye witness of main incident, when the appellant assaulted the deceased. They were witnesses of part of the incident as pointed out by us. Therefore, this fact that they were declared hostile does not extend any benefit to the appellant in any way.
97. As far as non-production of witnesses Kunna and Sahbu during course of trial has been pointed out by learned counsel for the appellant, PW-6, the Investigating Officer has stated in his cross-examination that Sahbu is aged 85 years and unable to adduced evidence. He has also stated that child Kunna was aged 8-9 years. He has stated that Sahbu and Kunna were eye-witnesses. It may be fault of the learned A.D.G.C. and paiorkar of police station Iniayat Nagar that witness Kunna and Sabhu were not produced during course of the trial, even then the Investigating Officer, the PW-6 has recorded statement of Sabhu under Section 161 Cr.P.C. and he has supported the prosecution version.
98. The Investigating Officer has not recorded statement of Kunna under Section 161 Cr.P.C., whereas he has accepted in his cross-examination that Kunna was also the eye witness. PW-1, the complainant has clarified that on the date of incident Kunna her sister-in-law was residing with her from two years ago because there was a dispute with her husband. PW-1 witness has stated in her statement recorded under Section 161 Cr.P.C. that her father-in-law Sahbu and sister-in-law Kunna were lying in “osara”, which was situated on the Southern side of the house. She and her husband were lying underneath “osara” of “chhapar” on Eastern side of their house. Therefore, PW-1 Smt. Savitri Devi has proved the facts and circumstances in which the appellant murdered her husband.
99. The argument of learned counsel for the appellant that no other villager or independent witness was produced on behalf of the prosecution is of no avail, because her elder brother-in-law PW-2 Buddhi Ram and PW-3 Ganga Ram had not supported the prosecution version, then what to say for villagers and other independent witnesses.
100. The following exposition of law is relevant regarding solitary witnesses, related and independent witnesses:
Section 134 Indian Evidence Act provides as under:
134. Number of witnesses.–No particular number of witnesses shall in any case be required for the proof of any fact.
Exposition of Law regarding solitary witnesses as under:-
In the case of SectionAlagupandi v. State of T.N., (2012) 10 SCC 451 : Hon’ble Apex Court in paragraph nos. 22, 23 and 36 has held as under:-
22.In Govindarajuv.State [(2012) 4 SCC 722 : (2012) 2 SCC (Cri) 533] this Court held as under: (SCC pp. 739-40, paras 23-27)
“23. Now, we come to the second submission raised on behalf of the appellant that the material witness has not been examined and the reliance cannot be placed upon the sole testimony of the police witness (eyewitness).
24. It is a settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. SectionIn Lallu Manjhi v. State of Jharkhand [(2003) 2 SCC 401 : 2003 SCC (Cri) 544] (SCC p. 405, para 10), this Court had classified the oral testimony of the witnesses into three categories:
(a) wholly reliable;
(b) wholly unreliable; and
(c) neither wholly reliable nor wholly unreliable.
In the third category of witnesses, the court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence.
25. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eyewitness, then such evidence has to be wholly reliable and trustworthy. Presence of such witness at the occurrence should not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty.
26. Reference in this regard can be made to SectionJoseph v. State of Kerala[(2003) 1 SCC 465 : 2003 SCC (Cri) 356] and SectionTika Ram v. State of M.P.[(2007) 15 SCC 760 : (2010) 4 SCC (Cri) 667] Even in SectionJhapsa Kabari v. State of Bihar[(2001) 10 SCC 94 : 2002 SCC (Cri) 1071] , this Court took the view that if the presence of a witness is doubtful, it becomes a case of conviction based on the testimony of a solitary witness. There is, however, no bar in basing the conviction on the testimony of a solitary witness so long as the said witness is reliable and trustworthy.
27. In Jhapsa Kabari [(2001) 10 SCC 94 : 2002 SCC (Cri) 1071] , this Court noted the fact that simply because one of the witnesses (a fourteen-year-old boy) did not name the wife of the deceased in the fardbeyan, it would not in any way affect the testimony of the eyewitness i.e. the wife of the deceased, who had given a graphic account of the attack on her husband and her brother-in-law by the accused persons. Where the statement of an eyewitness is found to be reliable, trustworthy and consistent with the course of events, the conviction can be based on her sole testimony. There is no bar in basing the conviction of an accused on the testimony of a solitary witness as long as the said witness is reliable and trustworthy.”
23. In view of the settled position of law, we find that the statement of PW 1 inspires confidence and is truthful and reliable. His statement does not suffer from any material contradictions. On the other hand, it gives a correct eye version of what this witness saw. If PW 1 intended to lie, nothing prevented him from saying that he was also an eyewitness to the scene of stabbing of the deceased by the accused. He only stated that this crime was witnessed by the two minor children of the deceased and he had merely seen the accused running out from the house of the deceased with a knife in his hand. Where a sole witness has stated exactly what he had actually seen and the said statement otherwise fits into the case of the prosecution and is trustworthy, the court normally would not be inclined to reject the statement of such sole witness.
36. It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence. The court in such circumstances can safely rely upon the statement of a child witness and it can form the basis for conviction as well. Further, the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and that there exists no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a rule of prudence the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Further, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. (SectionDattu Ramrao Sakhare v.State of Maharashtra [(1997) 5 SCC 341 : 1997 SCC (Cri) 685] and SectionPanchhi v.State of U.P. [(1998) 7 SCC 177 : 1998 SCC (Cri) 1561] )
In the case of SectionNamdeo v. State of Maharashtra, (2007) 14 SCC 150 Hon’ble Apex Court in paragraph nos. 14,17,18,19,21,22,23,25,26,27,28 and 29 has held as under:-
14. The learned counsel for the appellant contended that the entire case of the prosecution is based on solitary testimony of eyewitness Sopan, son of the deceased. He is thus an “interested” witness. In absence of any corroboration, it would not be safe to place implicit reliance on his testimony who could not have seen the assailant in the dark night. It was further contended that though several persons had come at the place of offence, none was examined except Raju, PW 8, who was also not an eyewitness. It was submitted that oral dying declaration said to have been made by the deceased Ninaji either before PW 8 Raju or PW 7 Dr. Suresh Wagh cannot be relied upon in the light of the fact that the injured was in critical condition and died within a short time. It was finally submitted that even if the case of the prosecution is believed, only a single blow was given by the accused and the case would not be covered under Section 302 IPC but would fall under Section 304 Part II IPC and the order of conviction and sentence requires to be modified.
17.So far as legal position is concerned, it is found in the statutory provision in Section 134 of the Evidence Act, 1872, which reads:
“134.Number of witnesses.–No particular number of witnesses shall in any case be required for the proof of any fact.”
18.Let us now consider few leading decisions on the point.
19.Before more than six decades, in Mohd. Sugal Esa Mamasan Rer Alalah v.R. [AIR 1946 PC 3 : 50 CWN 98 : 222 IC 304 : 1946 All LJ 100] , one M together with his brother Ecaused murder of his half-brother A. The trial court convicted Mand sentenced him to death acquitting his brother E. The conviction was confirmed by the appellate court. It was contended before the Privy Council that the conviction was solely based on unsworn evidence of a girl aged about 10-11 years. The trial court found her competent to testify, but was of the view that she was not able to understand the nature of an oath and, therefore, oath was not administered. It was contended by the accused that no conviction could be recorded on a solitary witness and that too on an unsworn evidence of a tender aged girl of 10-11 years without corroboration. Considering the question raised before the Judicial Committee, leave was granted. Their Lordships considered the legal position in England and in India. It was held that such evidence is admissible under Indian law “whether corroborated or not”.
21.SectionIn Vadivelu Thevar v. State of Madras [AIR 1957 SC 614 : 1957 SCR 981 : 1957 Cri LJ 1000] referring to Mohd. Sugal [AIR 1946 PC 3 : 50 CWN 98 : 222 IC 304 : 1946 All LJ 100] this Court stated: (AIR pp. 618-19, para 10)
“On a consideration of the relevant authorities and the provisions of the SectionEvidence Act, the following propositions may be safely stated as firmly established:
(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the judge before whom the case comes.”
22.Quoting Section 134 of the Evidence Act, Their Lordships stated (at AIR p. 619, para 11) that
“we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated”.
The Court proceeded to state: (AIR p. 619, para11)
“It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence where determination of guilt depends entirely on circumstantial evidence. If the legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the Presiding Judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution.
The Court also stated: (AIR p. 619, para 12)
“There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable.”
23. In the leading case of SectionShivaji Sahebrao Bobade v. State of Maharashtra[(1973) 2 SCC 793 : 1973 SCC (Cri) 1033] this Court held that even where a case hangs on the evidence of a single eyewitness it may be enough to sustain the conviction given the sterling testimony of a competent, honest man although as a rule of prudence courts call for corroboration.
“It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs.” (SCC p. 807, para 19)
24. SectionIn Anil Phukan v. State of Assam [(1993) 3 SCC 282 : 1993 SCC (Cri) 810 : JT (1993) 2 SC 290] the Court observed: (SCC p. 285, para 3)
“Indeed, conviction can be based on the testimony of a single eyewitness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect.”
25. SectionIn Kartik Malhar v. State of Bihar [(1996) 1 SCC 614 : 1996 SCC (Cri) 188] referring to several cases, this Court stated: (SCC pp. 619-20, para 7)
“7. On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevar case [AIR 1957 SC 614 : 1957 SCR 981 : 1957 Cri LJ 1000] and, therefore, conviction can be recorded on the basis of the statement of a single eyewitness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court, at the same time, is convinced that he is a truthful witness. The court will not then insist on corroboration by any other eyewitness particularly as the incident might have occurred at a time or place when there was no possibility of any other eyewitness being present. Indeed, the courts insist on the quality, and, not on the quantity of evidence.”
26. SectionIn Chittar Lal v. State of Rajasthan [(2003) 6 SCC 397 : 2003 SCC (Cri) 1377 : JT (2003) 7 SC 270] this Court had an occasion to consider a similar question. In that case, the sole testimony of a young boy of 15 years was relied upon for recording an order of conviction. Following Mohd. Sugal [AIR 1946 PC 3 : 50 CWN 98 : 222 IC 304 : 1946 All LJ 100] and reiterating the law laid down therein, this Court stated: (SCC p. 400, para 7)
“The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in Section 134 of the Evidence Act, 1872 (in short ”the SectionEvidence Act’). Administration of justice can be affected and hampered if number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of one witness, leaving aside those cases which are not of unknown occurrence where determination of guilt depends entirely on circumstantial evidence. If plurality of witnesses would have been the legislative intent, cases where the testimony of a single witness only could be available, in number of crimes the offender would have gone unpunished. It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact.”(emphasis supplied)
27. Recently, in SectionBhimappa Chandappa Hosamani v. State of Karnataka [(2006) 11 SCC 323 : (2007) 1 SCC (Cri) 456] this Court held that testimony of a solitary witness can be made the basis of conviction. The credibility of the witness requires to be tested with reference to the quality of his evidence which must be free from blemish or suspicion and must impress the court as natural, wholly truthful and so convincing that the court has no hesitation in recording a conviction solely on his uncorroborated testimony.
28. From the aforesaid discussion, it is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than onquantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eyewitness, therefore, has no force and must be negatived.
29. It was then contended that the only eyewitness, PW 6 Sopan was none other than the son of the deceased. He was, therefore, “highly interested” witness and his deposition should, therefore, be discarded as it has not been corroborated in material particulars by other witnesses. We are unable to uphold the contention. In our judgment, a witness who is a relative of the deceased or victim of a crime cannot be characterised as “interested”. The term “interested” postulates that the witness has some direct or indirect “interest” in having the accused somehow or the other convicted due to animus or for some other oblique motive.
In the case of SectionSatish v. State of Haryana, (2018) 11 SCC 300 Hon’ble Apex Court in paragraph nos. 5, 8 and 9 has held as under:-
5.The learned counsel for the respondent submitted that it is only a rule of prudence to seek corroboration in case of a child witness. It was not an invariable rule of criminal jurisprudence that without corroboration, the evidence of a child witness could not be accepted. The trial court and the High Court have accepted PW 2 to be a reliable witness. Conviction can be based on the solitary evidence of a child witness if it is otherwise reliable and inspires confidence. PW 4 was well known to the appellant. The extra-judicial confession was, therefore, not made to a stranger. Merely because Ramesh has been acquitted giving him the benefit of doubt, the extra-judicial confession does stand wiped off completely. The confession has been proved by PW 4.
8.PW 2 was the son of the appellant Anita. He was a school-going child aged 12 years. Both, the trial court and the High Court have found him to be reliable and convincing. We do not find anything from his evidence to make it suspicious as the result of any tutoring by PW 4. The witness has clearly mentioned that his mother was present in the room when the assault was taking place and she asked them to leave the room on the bidding of one of the assailants. We do find it a little strange, according to normal human behaviour, that at the dead of night, the appellant after witnessing an assault on her own husband, did not rush to the house of PW 1 for informing the same and sent her minor son for the purpose. The fact that she created no commotion by shouting and seeking help reinforces the prosecution case because of her unnatural conduct. We also cannot lose sight of the fact that the child witness was not deposing against another family member or a stranger, but his own mother. It would call for courage and conviction to name his own mother, as the child was grown up enough to understand the matter as a witness to a murder.
9. The witness has clearly identified the other two appellants also in the dock, having seen them during the occurrence. The number of injuries on the deceased is itself indicative that the assault lasted for some time enabling identification and did not end in a flash. We, therefore, find no reason to interfere with the conviction.
In the case of SectionJhapsa Kabari v. State of Bihar, (2001) 10 SCC 94 Hon’ble Apex Court in paragraph no. 9 has held as under:-
9.PW 1 is the widow of the deceased Ram Sewak Singh. She has given graphic account of the occurrence. Ram Sewak Singh and Shital Singh had a common courtyard. She was cooking food in her kitchen at about 11 a.m. when the incident happened. She saw them going to the courtyard of Sarjug Singh which was contiguous. She gave detailed account of how Israil Kabari pierced the bhala in the abdomen of Shital Singh and how Bhikhar Raut assaulted both of them with farsa and how Deepan Singh @ Deep Narayan Singh had cut the neck of her husband. Deepan Singh is already dead. She is a natural, trustworthy, reliable and competent witness. She saw the occurrence. Her deposition is consistent with the course of events and conduct natural with that of a wife. It is true that if the presence of PW 8 is doubtful, it becomes a case of conviction based on the testimony of a solitary witness. There is, however, no bar in basing conviction on the testimony of a solitary witness so long as the said witness is reliable and trustworthy. The Sessions Court and the High Court examined the testimony of PW 1 and found no reason to disbelieve it. We have also gone through the testimony of PW 1. We are also of the view that her deposition is most natural, reliable and trustworthy. She could not be shaken in the cross-examination. Simply because a 14-year-old boy did not name her in the fardbeyan, in the facts of the case, it is of no consequence and does not require her evidence to be rejected. He must have been under a mental tension on account of the murder of his father and uncle. In our view, there is no infirmity in the conviction and sentence of Bhikhar Raut and Israil Kabari for offence under Sections 302/Section34 IPC.
Exposition of Law regarding related and independent witnesses as under:-
In the case of SectionRupinder Singh Sandhu v. State of Punjab, (2018) 16 SCC 475 Hon’ble Apex Court in paragraph no. 50 regarding related witness has held as under:-
50. The fact that PWs 3 and 4 are related to the deceased Gurnam Singh is not in dispute. The existence of such relationship by itself does not render the evidence of PWs 3 and 4 untrustworthy. This Court has repeatedly held so and also held that the related witnesses are less likely to implicate innocent persons exonerating the real culprits. [ See Rizan v. State of Chhattisgarh, (2003) 2 SCC 661, p. 667, para 6 : 2003 SCC (Cri) 664″6. We shall first deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the 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 evidence to find out whether it is cogent and credible.”Also see, Dalip Singhv.State of Punjab, AIR 1953 SC 364, p. 366, para 26 : 1953 Cri LJ 1465″26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.”]
In the case of SectionState of U.P. v. Sheo Sanehi, reported in (2004) 12 SCC 347 Hon’ble Apex Court in paragraph nos. 17, 18 and 21 regarding related witness has held as under:-
17. Coming to the ocular version of the occurrence, the prosecution has relied upon the evidence of three eyewitnesses viz. PWs 1, 3 and 4. PW 1 has supported the prosecution case in all material particulars which is consistent with his subsequent statement made before the police. The ground of attack to his evidence was that he was a resident of a village which is situated at a distance of 40 kilometres from the place of occurrence and he had no occasion to be present at the place of occurrence. He stated that his mother was adopted by one Smt Mahadei of Village Siromanpur where the occurrence had taken place, he was born in Village Siromanpur and was residing in the said village with his mother Smt Bishandei since his childhood inasmuch as he was looking after cultivation of her lands. The fact that his mother was adopted by Smt Mahadei would be apparent from the registered Will dated 11-8-1977 (Ext. Ka-52) executed by Smt Mahadei in favour of his mother showing that she was her adopted daughter and was residing with her. Ext. Ka-50 and Ext. Ka-51 are the extracts of khatauni and khasra in which name of Bishandei, mother of this witness, is recorded along with Smt Mahadei in relation to the agricultural lands. That apart, Exts. 13, 14 and 15 are transfer certificates, high school certificate and marksheet in relation to this witness which show that he had passed out from a school situated in Village Siromanpur. Apart from the aforesaid documents, invitation card Ext. 16 has been filed to show that the sacred thread ceremony of PW 1 as well as his younger brother Subhendu Kumar was held in the year 1975 in Village Siromanpur. Besides that, letters Exts. 17 to 20 have been filed to show that he had received the same at his address in Village Siromanpur. Ext. Ka-47 is gun licence in the name of PW 1 in which he was shown to be a resident of Village Siromanpur. These facts clearly show that PW 1 was resident of Village Siromanpur, as such his presence at the place of occurrence and time of occurrence cannot be doubted.
18. So far as PWs 3 and 4 are concerned, PW 3 is nephew of deceased Devi Din whereas PW 4 is widow of the said deceased, as such they are natural witnesses and their presence at the alleged place of occurrence cannot be doubted. The names of these two witnesses were disclosed in the first information report itself and they supported the prosecution case in all material particulars in their statements made before the police as well as in court and no infirmity could be pointed out in their evidence, excepting that they were related to the deceased persons and inimical to the accused. It is well settled that merely because a witness is related to the prosecution party and inimical to the accused persons, his evidence cannot be discarded if the same is otherwise trustworthy. In the case on hand, we do not find any infirmity whatsoever in the evidence of PWs 1, 3 and 4, as such it is not possible to disbelieve them, especially in view of the fact that their evidence is supported by medical evidence as well as objective findings of the investigating officer, but the High Court has committed a serious error in discarding their testimonies on this score.
Hon’ble Supreme Court in Nirmal Singh and another Vs. State of Bihar reported in (2005) 9 SCC 725 has observed as under:-
…..With these facts in the background, we have to consider whether the ocular testimony of Pws. 1, 3, 4, 5, 6, 8 11 should be discarded. It is no doubt true that the eye witnesses are related to each other but that is to be expected since the occurrence took place in the dalan of the house of the deceased. The evidence of the eye witnesses does not suffer from any infirmity, and appears to be convicting. No significant contradiction or infirmity has been brought to our notice.
In these circumstances, we do not feel persuaded to discard the case of the prosecution only on account of some infirmities which we have noticed earlier. There appears to be no reason why so many eye witnesses should falsely implicate the appellants, and there is in fact, nothing on record to suggest that the witnesses had any reason to falsely implicate them.
Hon’ble Supreme Court in the case of Hukum Singh and others Vs. State of Rajasthan reported in 2000 (7) SCC 490 has held as under:-
8. Bhupender Pal (PW. 4) and Ram Pyari (PW. 5) were the two eye witnesses examined by the prosecution. The fact that they were present at the scene of occurrence could not be disputed nor the same has been disputed by the accused. They sustained injuries at the hands of the assailants and the doctor who noted such injuries had testified about them in the Court as PW. 9. The version spoken to by PW. 4 in Court is substantially a reiteration of the version which he supplied to the police as early as 8.40 P.M. on the same night. That became the basis for the FIR. The Sessions Court refused to believe the testimony of those witnesses on the erroneous perception that they are “interested witnesses”. The only premise for dubbing them as “interested witnesses” is that they were the kith and kin of the deceased. Why should such witnesses be termed as interested witnesses? If they had seen the occurrence they would certainly have the interest to bring the offenders of the murder of their breadwinner to book Normally the kith and kin of the deceased, if they had seen the occurrence would not absolve the real offenders and involve innocent persons for that murder. [Vide Dalip Singh v. State of Punjab MANU/SC/0031/1953 : 1SCR145 , SectionGuli Chand v. State of Rajasthan MANU/SC/0107/1973 : 1974CriLJ331 and SectionDalbir Kaur v. State of Punjab MANU/SC/0144/1976 : 1977CriLJ273 ].
15. The situation in a case where the prosecution cited two categories of witnesses to the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the Public Prosecutor’s duty to the Court may require him to produce witnesses from the latter category also subject to his discretion to limit to one or two among them. But if the Public Prosecutor got reliable information that any one among that category would not support the prosecution version he is free to state in Court about that fact and skip that witness being examined as a prosecution witness. It is open to the defence to cite him and examine him as defence witness. The decision in this regard has to be taken by the Public Prosecutor in a fair manner. He can interview the witness before hand to enable him to know well in advance the stand which that particular person would be adopting when examined as a witness in Court.
Hon’ble Supreme Court in State of Rajasthan Vs. Hanuman reported in AIR 2001 SC 282 has held as under:-
The position is well settled that evidence of eye-witnesses cannot be discarded merely on the ground that they are relatives of the deceased. Normally close relatives of the deceased are not likely to falsely implicate a person in the incident leading to the death of the relative unless there are very strong and cogent reasons to accept such criticism.
In Surendra Narain alias SectionMunna Pandey vs. State of U.P. reported in AIR 1998 SC 192, Hon’ble Apex Court has held as under:-
…Turning to the facts of this case, it is seen that PW 1 had mentioned the name of the accused in the FIR which was given within 15 minutes of the occurrence. The other two eye witnesses, PW 2 and PW 3 also knew the accused previously. The crucial factor is that the accused was related to the deceased as a son of his “Sala” and PW 1 was also related to the deceased. The accused had never denied the relationship. As the trial Judge has observed, “there is not a scintilla of evidence” that PW 1 had a grudge against the accused. There is also no evidence that the wife of the deceased had any enmity with the accused. She would not have allowed a false case to be foisted on her brother’s son. The accused was not traceable from 7.4.77 to 13.5.77. On the facts of the case, his application for the test identification parade on his surrender after such a long time does not appear to be bona fide. In any event, the evidence on record as accepted by the Courts below is sufficient to prove the guilt of the accused. Further the point does not seem to have been argued before the trial court or the High Court. On the facts of this case there is no doubt that the failure to hold a test identification parade in spite of an order passed by the Sessions Court is not fatal to the prosecution.
The second contention is without any merit. The evidence adduced by the prosecution is adequate to prove the charge. The non-examination of another person who was on the scene of occurrence does not make the evidence of PWs 1 to 3 unreliable. It is needless to point out that evidence has to be weighed and not counted.
In the case of SectionBanti @ Guddu vs. State of Madhya Pradesh reported in AIR 2004 SC 261, Hon’ble Apex Court has held as under:-
“…Coming to the plea that the presence of PWs 1 and 2 at the spot of occurrence is doubtful, it is to be noticed that both PWs 1 and 2 were cross-examined at length. Nothing Infirm has been elicited to cast doubt on their veracity. If the lack of motive as pleaded by the accused appellants is a factor, at the same time it cannot be lost sight of that, there is no reason as to why PW-1 would falsely implicate the accused persons. There was no suggestion of any motive for such alleged false implication. Merely because PW-1 is a relation of the deceased, and PW-2 was known to him, that per se cannot be a ground to discard their evidence. Careful scrutiny has been done of their evidence and it has been found acceptable by both the trial Court and the High Court. We find no reason to take a different view.
Hon’ble Supreme Court (Division Bench) in the case of Shiv Ram and anr. vs. State of U.P. reported in (1998) 1 SCC 149, in para16 has observed as under:-
“16. …… The witnesses further admitted that many persons had gathered at the place of occurrence, if this be so it was very much necessary for the prosecution to examine some independent witnesses to lend assurance to the credibility of the evidence of these two eyewitnesses. These submissions do not impress us at all. nowadays it is a common tendency that no outsider would like to get involved in a criminal case much less in the crime of present magnitude and, therefore, it was quite natural that no independent witness would come forward to assist the prosecution. it is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons. All that is required in such a situation is that the court must scrutinize the evidence of such witnesses with utmost care and caution. The magnitude of the present crime and nature of prosecution evidence has put us on guard to appreciate the evidence of these two eye witnesses with utmost care and caution. We have done this exercise and we are unable to be persuaded to discard the evidence of these two witnesses on the grounds urged before us. The evidence of both these witnesses in our considered view is absolutely straightforward, unblemished and without any infirmity. The first information report which was lodged within four hours, naming all the accused also lends asurance to our conviction that the evidence of these two witnesses is trustworthy and cannot be discarded. The contentions of the learned counsel for the accused, therefore, stand rejected.”
In the case of SectionYogesh Singh v. Mahabeer Singh : (2017) 11 SCC 195, Hon’ble Apex Court has observed as under:
Testimony of interested/inimical witnesses
24. On the issue of appreciation of evidence of interested witnesses, SectionDalip Singh v.State of Punjab [Dalip Singh v. State of Punjab, AIR 1953 SC 364 : 1954 SCR 145 : 1953 Cri LJ 1465] is one of the earliest cases on the point. In that case, it was held as follows: (AIR p. 366, para 26)
“26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.”
25. Similarly, in SectionPiara Singh v. State of Punjab [Piara Singh v. State of Punjab, (1977) 4 SCC 452 : 1977 SCC (Cri) 614] , this Court held: (SCC p. 455, para 4)
“4. … It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence.”
26. In Hari Obula Reddy v. State of A.P. [Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 : 1981 SCC (Cri) 795] , a three-Judge Bench of this Court observed: (SCC pp. 683-84, para 13)
“13. … it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.”
27. Again, in Ramashish Rai v. Jagdish Singh [Ramashish Rai v. Jagdish Singh, (2005) 10 SCC 498 : 2005 SCC (Cri) 1611] , the following observations were made by this Court: (SCC p. 501, para 7)
“7. … 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.”
28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai v. State of Bihar[Anil Rai v. State of Bihar, (2001) 7 SCC 318 : 2001 SCC (Cri) 1009] , SectionState of U.P. v.Jagdeo [State of U.P. v. Jagdeo, (2003) 1 SCC 456 : 2003 SCC (Cri) 351] , SectionBhagaloo Lodh v. State of U.P.[Bhagaloo Lodh v. State of U.P., (2011) 13 SCC 206 : (2012) 1 SCC (Cri) 813] , Dahari v. State of U.P. [Dahari v. State of U.P., (2012) 10 SCC 256 : (2013) 1 SCC (Cri) 22] , SectionRaju v. State of T.N. [Raju v. State of T.N., (2012) 12 SCC 701 : (2012) 4 SCC (Cri) 184] , SectionGangabhavani v. Rayapati Venkat Reddy[Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298 : (2014) 6 SCC (Cri) 182] and SectionJodhan v. State of M.P. [Jodhan v. State of M.P., (2015) 11 SCC 52 : (2015) 4 SCC (Cri) 275] )
50 – The learned counsel for the respondents has also sought to assail the prosecution version on the ground of lack of independent witnesses. We are not impressed by this submission in the light of the observations made by this Court in Darya Singh v. State of Punjab [Darya Singh v. State of Punjab, AIR 1965 SC 328 : (1964) 3 SCR 397 : (1965) 1 Cri LJ 350] , wherein it was observed: (AIR p. 333, para 12)
“12. … It is well known that in villages where murders are committed as a result of factions existing in the village or in consequence of family feuds, independent villagers are generally reluctant to give evidence because they are afraid that giving evidence might invite the wrath of the assailants and might expose them to very serious risks. It is quite true that it is the duty of a citizen to assist the prosecution by giving evidence and helping the administration of criminal law to bring the offender to book, but it would be wholly unrealistic to suggest that if the prosecution is not able to bring independent witnesses to the Court because they are afraid to give evidence, that itself should be treated as an infirmity in the prosecution case so as to justify the defence contention that the evidence actually adduced should be disbelieved on that ground alone without examining its merits.”
51. Similarly, in Raghubir Singh v. State of U.P. [Raghubir Singh v. State of U.P., (1972) 3 SCC 79 : 1972 SCC (Cri) 399] , it was held that the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses. In this connection, general reluctance of an average villager to appear as a witness and get himself involved in cases of rival village factions when tempers on both sides are running high, has to be borne in mind.
The Hon’ble Supreme Court in the case of SectionVijendra Singh v. State of U.P., :(2017) 11 SCC 129 has observed as follows:
30. It is next contended by Mr Giri, learned counsel for the appellants that all the eyewitnesses are related to the deceased Badan Pal and they being interested witnesses, their version requires scrutiny with care, caution and circumspection and when their evidence is scanned with the said parameters, it does not withstand the said test for which the case set forth by the prosecution gets corroded and the principle of beyond reasonable doubt gets shattered. The aforesaid submission, as we perceive, has no legs to stand upon, for PWs 1 to 3 have deposed in detail about the previous enmity between the parties, their presence at the spot, the weapons the accused persons carried, their proximity to the shed and establishment of the identity of all the four accused. They have also testified as regards the deceased lying in a pool of blood. There is no reason why they would implicate the appellants for the murder of their relation leaving behind the real culprit. That apart, nothing has been elicited in the cross-examination for which their testimony can be discredited.
31. In this regard reference to a passage from Hari Obula Reddy v. State of A.P.[Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 : 1981 SCC (Cri) 795] would be fruitful. In the said case, a three-Judge Bench has ruled that: (SCC pp. 683-84, para 13)
“[it cannot] be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.”
It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Court in Kartik Malhar v.State of Bihar [Kartik Malhar v. State of Bihar, (1996) 1 SCC 614 : 1996 SCC (Cri) 188] has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term “interested” postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.
Following expositions of law are relevant regarding duty of Judge while appreciating the evidence of witnesses:
In the decision SectionState of U.P vs. M.K Anthony-(1985) 1 SCC 505: Hon’ble Supreme Court has observed as follows:
“10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. …”
In the decision SectionHarijana Thirupala v. Public Prosecutor, High Court of A.P-(2002) 6 SCC 470, it has been ruled that:
“11. …. In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses.”
In the decision SectionUgar Ahir v. State of Bihar-AIR 1965 SC 277, a three-Judge Bench held:
“7. The maxim falsus in uno, falsu in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.”
In the decision SectionMochi v. State of Bihar-(2002) 6 SCC 81, the Court ruled that:
“32. …. The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim “let hundred guilty persons be acquitted, but not a single innocent be convicted” is, in practice, changing the world over and courts have been compelled to accept that “society suffers by wrong convictions and it equally suffers by wrong acquittals”. I find that this Court in recent times has conscientiously taken notice of these facts from time to time”.
In the decision SectionInder Singh v. State (Delhi Admn.), (1978) 4 SCC 161 , Krishna Iyer, J. laid down that:
“Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes.”
In the case of SectionState of U.P. v. Anil Singh-1988 Supp SCC 686, it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.
In the case of SectionState of U.P v. Paras Nath Singh reported in 1973 Cr.L.J 850 held that in the circumstances under which the present incident occurred and was narrated by the witnesses during the examination before the Court it is not probable to involve the accused on false ground.
Further in view of SectionSandeep v. State of Haryana reported in (2001) 9 SCC 41 : AIR 2001 SC 1103 it was held that where the witnesses were known, both the victim and the accused, there evidence would be material and could not be criticized on the ground that he was an interested witness.
In case of Ashok KumarChaudhary v. State of Bihar – 2008 (61) ACC 972 (SC) it was held that if a witness examined in the Court is otherwise found reliable and trustworthy, the fact sought to be proved by that witness need not be further proved through other witnesses though there may be other witnesses available who could have been examined but were not examined.
101. No material contradiction was elicited by learned defence counsel during cross-examination PW-1. It is pertinent to mention here that examination-in-chief of complainant PW-1 Smt. Savitri Devi was recorded on 17.05.2006 and her cross-examination was recorded on 22.05.2006. She is rustic and uneducated woman and detailed cross-examination was conducted by the defence counsel. Therefore, some natural contradictions may appear in her cross-examination on the basis of loss of memory or her mental state might have been affected after the incident of murder of her husband. These facts may be reason for minor contradiction pointed out by learned counsel for the appellant.
102. The PW-1, complainant has stated that appellant was husband of her younger sister Smt. Sidda. Therefore, identity of appellant could not be doubted at night also. The complainant was able to identify him, even in the darkness and in light of source of light of “dibri”, which was burning on the place of occurrence on “chaukhat” of main door of the house. Therefore, argument of learned counsel for the appellant that since this crime occurred in the night of 10/11.07.2005 hence prosecution story is doubtful and is not helpful for the appellant.
103. The following exposition of law the Hon’ble Apex Court is relevant regarding rustic and uneducated witnesses:
On the point of rustic witness, we would like to quote the pronouncement of Hon’ble Apex Court’s judgment in the case of State of U.P. Versus Krishna Master reported in [(2010) 12 SCC 324]. In paragraph nos.15 and 17 of the said judgment Hon’ble Apex Court has observed as under:-
“15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
17. In the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case.”
“23. …………………… A rustic witness, who is subjected to fatiguing, taxing and tiring cross-examination for days together, is bound to get confused and make some inconsistent statements. Some discrepancies are bound to take place if a witness is cross-examined at length for days together. Therefore, the discrepancies noticed in the evidence of a rustic witness who is subjected to grueling cross-examination should not be blown out of proportion. To do so is to ignore hard realities of village life and give undeserved benefit to the accused who have perpetrated heinous crime.
24. The basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relative(s). Therefore, the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness.”
104. This point was also considered by Hon’ble the Apex Court in its earlier judgment in the case of State of Punjab Vs. Hakim Singh reported in [2005 (7) SCC 408], wherein Hon’ble the Apex Court has observed in para 7 as under:-
“We fail to understand the manner in which the testimony of this witness has been appreciated by the High Court. Sometimes while appreciating the testimony of rustic villagers we are liable to commit mistake by loosing sight of their rural background and try to appreciate testimony from our rational angle.”
105. The Hon’ble Supreme Court in AIR 1990 SC 538: SectionState of Haryana V. Prem Chand and others has observed in para 11 as under:
11. At this juncture, we would like to point put that the very confirmation of the conviction accepting the sole testimony of the victim Suman Rani rejecting the arguments of the defence counsel is itself a clear indication that this Court was of the view that the character or reputation of the victim has no bearing or relevance either in the matter of adjudging the guilt of the accused or imposing punishment under Section 376 I.P.C. We would like to state with all emphasis that such factors are wholly alien to the very scope and object of Section 376 and can never serve either as mitigating or extenuating circumstances for imposing the sub-minimum sentence with the aid of the proviso to Section 376(2) of the I.P.C. In fact, we have expressed our views in the judgment itself stating “No doubt an offence of this nature has to be viewed very seriously and has to be dealt with condign punishment.
106. Reference on this point may be made to the pronouncement of Hon’ble the Apex Court in the case of Govindaraju Vs. State of Karnataka reported in (2009) 14 SCC 236 wherein Hon’ble the Apex Court in paragraph no. 27 has observed as under:-
“27. The High Court has appreciated the evidence very deeply and in our opinion, the Sessions Judge had gravely erred in not accepting the evidence of this witness without any justifiable reason. It is a basic principle that the evidence of witness has to be appreciated as a whole, when the evidence of an ordinary witness, who is not much educated and comes from a poor strata of society not having the advantage of education. The Court has to keep in mind all these aspects. The witness is not expected to remember every small thing, more particularly when he faces the shock of the untimely death of his near relative.”
107. Hon’ble the Apex Court in the case of Sukhwinder Singh Vs. State of Punjab reported in (2014) 12 SCC 490 has observed in paragraph no. 13 as under:-
“13. ………………………………… They are rustic witnesses. Their evidence must be read bearing their simple background in mind. PW 2 Labh Singh had lost his daughter. Besides, they were deposing in 1994, almost three years after the incident. Hence, allowance must be made for minor discrepancies, if any, in their evidence.”
108. On appreciation of evidence of PW-1, complainant it reveal that she was present on the place of occurrence along with her husband, the deceased. Both were lying on cots on the date and time of incident in front of their main Eastern door of their house, while the appellant assaulted the deceased. Her evidence is wholly reliable, credible, trustworthy and inspires confidence. The fact that PW-2 and PW-3 have been declared hostile by the prosecution does not affect the prosecution version adversely and conviction of appellant can safely be based on the evidence adduced by sole witness of fact PW-1, who is wife of the deceased.
109. The exposition of law of Hon’ble Supreme Court Vaduguchanti Babu Vs. State of A.P. (supra), Ramesh Baburao Devaskar and others. Vs. State of Maharashtra (supra) and Mani Ram and others Vs. State of U.P. (supra) relied upon by learned counsel for appellant is not applicable to the fact and circumstances of this case. Therefore, these exposition of law does not extend any benefit to the appellant and are of no avail.
110. On the basis of above discussions and exposition of law propounded by Hon’ble Supreme court, charge for offence under Section 302 I.P.C. against the appellant has been proved by the prosecution beyond reasonable doubt. Learned trial Court has convicted the appellant in correct perspectives. The impugned judgment of the trial Court can not be termed as perverse or against evidence available on record.
111. The impugned judgment and order dated 27.10.2006 delivered by the Court of Sessions Judge, Faizabad is liable to be upheld and it is affirmed. The appeal lacks merits and is liable to be dismissed.
112. The appeal is accordingly dismissed.
113. The copy of judgment be sent to the Jail Superintendent concerned and trial Court for compliance.
114. The record of trial Court be sent back.
Order Date :- 30.4.2019