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Tasauvar vs The State Of U.P. on 23 April, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved on 05.04.2019

Delivered on 23.04.2019

A.F.R

Court No. – 16

Case :- CRIMINAL APPEAL No. – 1251 of 2006

Appellant :- Tasauvar

Respondent :- The State Of U.P.

Counsel for Appellant :- Arun Sinha,Ajeet Kumar Singh,Khaleeq Ahmad Khan,Pradeep Kumar Tripathi

Counsel for Respondent :- Govt.Advocate,Y. Singh

With

Case :- CRIMINAL APPEAL No. – 1277 of 2006

Appellant :- Raees

Respondent :- The State Of U.P.

Counsel for Appellant :- Arun Sinha,Ajeet Kumar Singh,Khaleeq Ahmad Khan,Pradeep Kumar Tripathi

Counsel for Respondent :- Govt.Advocate,Y. Singh

With

Case :- CRIMINAL APPEAL No. – 1278 of 2006

Appellant :- Mubarak

Respondent :- The State Of U.P.

Counsel for Appellant :- Arun Sinha,Afaq Zaki Khan,Ajeet Kumar Singh,Khaleeq Ahmad Khan,Pradeep Kumar Tripathi

Counsel for Respondent :- Govt.Advocate,Y.Singh

With

Case :- CRIMINAL APPEAL No. – 1279 of 2006

Appellant :- Shah Alam

Respondent :- The State Of U.P.

Counsel for Appellant :- Arun Sinha,Ajeet Kumar Singh,Khaleeq Ahmad Khan,Pradeep Kumar Tripathi,Umesh Chandra Vishwakarma

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 Sri Pradeep Kumar Tripathi, learned counsel for appellants as well as Sri Umesh Chandra, learned A.G.A. for the State.

2. These appeals have been preferred assailing impugned judgment and order dated 15.05.2006 delivered by the Court of Additional Sessions Judge, Court No.1, Lakhimpur Kheri in Sessions Trial No. 243 of 2004: State Vs.Tasauvar and others arising out of Crime No. 497 of 2003 under Section 147, 148, 302 and 506 I.P.C., Police Station Fardahan, District Lakhimpur Kheri.

3. Learned trial Court has convicted all the appellants for offence punishable under Section 148 I.P.C. and sentenced to undergo imprisonment for period of three years and for offence punishable under Section 302 I.P.C. to undergo imprisonment for life and fine of amount of Rs.10,000/- has been imposed with default stipulation to serve out additional imprisonment for two years. All the appellants have been convicted for offence punishable under Section 506 I.P.C. and sentenced to undergo imprisonment for one year. It is also directed that all the sentences, except the sentence awarded in default of payment of fine, shall run concurrently.

4. Since all the appeals are preferred challenging common judgment and order dated 15.05.2006, therefore, these appeals are taken up, heard and are being decided together.

5. As per prosecution version, the complainant Umesh Kumar Tiwari submitted written report at Police Station Fardahan of District Lakhimpur Kheri. On the basis of this written report, F.I.R. was lodged on 17.12.2003 at 19.00 hours regarding incident dated 17.12.2003 occurred at 4.30 p.m.. Crime number 497 of 2003 for offence under Section 147, 148, 149, 506 and 302 I.P.C. was registered against the appellants.

6. The complainant has narrated in his written report that he is resident of Village Rausa within limits of police station Fardahan. On 17.12.2003 at about 4.00 p.m, he and his mother Smt. Sharda Devi (the deceased) aged 40 years were going by Motor Cycle to see their agricultural field situated in village Umeria. They reached on the Southern side of the village near Paleshar owned by Iksar. Parvez, son of appellant Tasauvar all of sudden came in front of Motor Cycle of the complainant. He tried his best to save him. He had dashed with the Motorcycle and fell down. He and his mother also fell down along with Motorcycle. He picked up his Motor Cycle and parked it. He was picking up/lifting up Parvez, in the mean while, the appellants Tasauvar, Mubarak, Rayees, Shah Alam and co-accused Jalali son of Rayees came brandishing their bankas.

7. It is mentioned by the complainant in his written report that his mother asked him to run away from this place, he escaped by riding on his Motorcycle and returned back at his house. All the accused persons including appellants caught hold his mother and brought her towards their house. In the mean while, his mother somehow got freed from the clutches of the appellants. She entered in the room, which was situated behind shop of Hamid and raised alarm. He bolted door of the room from inside. The appellants and co-accused Jalali tried to break open door of the room. Hamid raised objection and asked them not to break his door. The appellants and co-accused Jalali threatened him by stating that if he will intervene, they will eliminate him. All the accused persons broke open door of the room and dragged his mother and took in front of house of appellant Shah Alam. The complainant and other villagers on hearing screamers of his mother, reached at the place of occurrence.

8. It is also mentioned in his report that the appellants and co-accused were assaulting his mother with their bankas. His mother after some time could not speak. The appellants fled away brandishing their blood stained bankas and threatened the people gathered at the place of occurrence that if anybody will give evidence, they will eliminate them by cutting them just like the deceased. The appellants fled away from the place of occurrence brandishing their banaks towards Southern side of the village.

9. The appellants committed this incident at 4.30 p.m. The complainant has contended in his written report that due to fear and ambush of the appellants and co-accused, he could not muster courage to lodge F.I.R. immediately. He along with Naresh Chandra reached at the police Station and submitted this written report at 19.00 hours. It is mentioned in the F.I.R. that dead body of the victim was lying on the place of occurrence.

10. On the basis of written report (Ext Ka-1) submitted by complainant, Check F.I.R. (Ext Ka-3), G.D. of registration of this crime (Ext Ka-4) were prepared at the police station.

11. The Investigating Officer recorded statements of witnesses, prepared site plan (Ext Ka-13) of the place of occurrence. He prepared Inquest Report (Ext Ka-5) of the dead body of the deceased-Smt. Sharda Devi and prepared documents sample of seal (Ext Ka-6), Police Form-13 (Ext Ka-7), Report sent to Civil Surgeon (Ext Ka-8), Photo Nash (Ext Ka-8), Report sent to R.I. (Ext Ka-10), Report sent to C.M.O. (Ext Ka-11) for conducting autopsy of dead body of the deceased. The Post-mortem report (Ext Ka-2) was prepared by the concerned doctor.

12. The Investigating Officer collected blood stained and plain soil from the place of occurrence and prepared Recovery Memo (Ext Ka-12) during course of investigation. The Station House Officer Jawahar Lal Yadav on 21.2.2003 and his police party acted upon the tipoff given by the informer that the appellants were waiting for Tempo at Culvert situated infront of Saraswati Vidya Mandir Canhaira School, Lakhimpur Kheri, for going to Lakhimpur Kheri. The police party and informer reached at this place at 4.40 p.m. The appellants Tasauvar, Mubarak, Rayees and Shah Alam were arrested. They apprised the police party that they committed murder of Smt. Sharda Devi on 17.12.2003 at 4.30 p.m. They due to fear of arrest were absconding. They were intending to surrender before the concerned Court on Monday, therefore, on Sunday they were waiting for Tempo.

13. The appellants also apprised the police party regarding facts and circumstances, in which, the appellants participated in the crime and the appellant Tasauvar told the police party that he had hidden banka used by him in the crime in water of pond. Tasauvar entered in the water of pond and searched banka, which was engulfed by sand and mud of pond. This discovered banka was sealed by the police party on the spot. Copy of this recovery memo (Ext Ka-14) was prepared by the police party through Sub Inspector Rakesh Kumar.

14. The clothes of the deceased, jewelry and black thread along with banka and blood stained and plain soil collected by the Investigating Officer were sent for chemical examination at the Forensic Science Laboratory, Mahanagar, Lucknow. The Joint Director of Forensic Science Laboratory sent report dated 10.06.2004 (Ext Ka-17).

15. On item “dhoti”, petticoat, blouse and black thread, human blood was found. The blood was disintegrated on banka. On item 01, 08 and 10, blood stained soil, pair of “bichchiya” and banka blood was found disintegrated. Therefore, origin of blood could not be verified. On item 7 and 9, pair of ear ring/tops and nose ring (nuth) sufficient blood was not found for chemical examination. This chemical analysis report was not challenged by the appellants during course of trial. Therefore, it is admissible in accordance of provisions of Section 293 Cr.P.C. The Forensic Science Laboratory, Mahanager Lucknow is Laboratory of the U.P. State, hence the chemical analysis report submitted by Joint Director is admissible in evidence.

16. The Investigating Officer after conclusion of investigation submitted charge-sheet (Ext Ka-16) against all the accused persons including appellants.

17. The concerned Court took cognizance on this charge-sheet. This case was committed to the Court of Session by the Court of Chief Judicial Magistrate, Lakhimpur Kheri vide order dated 16.02.2004.

18. The Presiding Officer of the Court of Additional Sessions Judge, Court No.2, Lakhimpur Kheri framed charges on 20.12.2004 against the appellants for offence punishable under Sections 147, 148, 302 and 506 I.P.C. The appellants pleaded not guilty and claimed to be tried. The case of co-accused Jalali was also committed to the Court of Session vide order dated 16.02.2004.

19. The co-accused Jalali claimed that he was juvenile on the date of occurrence, but the Court of Sessions rejected his application. The co-accused Jalali preferred Criminal Revision No. 342 of 2004 before this Court and proceedings of the case against co-accused Jalali was stayed vide order dated 02.08.2004 passed by this Court. The learned trial Court has mentioned in impugned judgment and order dated 15.05.2006 that stay order passed by this Court was still in operation.

20. The trial Court recorded statement of PW-1 Umesh Kumar Tiwari, the complainant, PW-2 witness Ram Kishan, PW-3 Dr. P.K. Gangwar and PW-4 Sub Inspector Rakesh Kumar Pandey.

21. Learned trial Court has recorded statements of appellants under Section 313 Cr.P.C. All the appellants have stated that they have falsely been implicated in this crime. The discovery of banka is false and fabricated, which was planted on the appellant Tasauvar. The appellant Mubarak, Shah Alam and Rayees have stated that they are brothers of appellant Tasauvar. The witnesses have adduced false evidence against them. They have falsely been implicated in this crime, being brothers of co-accused Tasauvar.

22. The appellants Rayees, Mubarak and Shah Alam have specifically stated that incident of this case was not occurred in their presence.

23. The appellant Tasauvar has stated that the deceased Smt. Sharda Devi caught hold him and instructed her son to fled away after accident of Parvez. She also abused him. He was present at the place, where his son Parvez met with accident by dashing with Motorcycle of the complainant PW-1. He has further stated that he caught hold the deceased Smt. Sharda Devi, because after accident she instructed her son to fled away. Parvez sustained injury in the accident and became unconscious. Co-accused Jalali son of Rayees tried to get release him from clutches of the deceased and he (Jalali) also assaulted the deceased. The facts that deceased closed room of Hamid from inside and the appellants broke open door of this room are false and fabricated. The appellant Tasauvar has further stated that he along with his son went to lodge report of the accident, but his report was not lodged. He was detained at the police station and false and fabricated discovery was made and he was challaned.

24. Learned counsel for the appellants has argued that police party of Station House Officer Jawahar Lal Yadav has discovered only one banka on pointing out of appellant Tasauvar only and it is mentioned in this recovery memo (Ext Ka-14) that appellant Tasauvar apprised the police party that only Tasauvar and co-accused Jalali assaulted Smt. Sharda Devi with banka. The facts that Mubarak, Rayees and Shah Alam caught hold hand, leg and shoulders of the deceased are false and fabricated. The police party has not recovered their banka, whereas they were arrested along with Tasauvar by the police party on 21.12.2003. The appellants Mubarak, Rayees and Shah Alam has specifically stated in their statement recorded under Section 313 Cr.P.C. that the incident of this crime was not occurred in their presence.

25. Learned A.G.A. has argued that the appellants Rayees, Mubarak and Shah Alam are named in the F.I.R. by the complainant PW-1 and they being member of unlawful assembly have actively participated in this crime along with appellant Tasauvar and co-accused Jalali. These appellants Mubarak, Shah Alam and Rayees were present on the place of occurrence, as per evidence given by PW-1 Umesh Kumar Tiwari and PW-2 witness Ram Kishan. These both witnesses have disclosed their individual acts also. Moreover, these appellants have not adduced any defence evidence in nature of ‘plea of alibi’ that they were not present on the place of occurrence. They have not specifically stated in their statement recorded under Section 313 Cr.P.C. that on the date and time of the incident of this case i.e. 17.12.2003 at 4.30 p.m., they were not present in village Rausa and actually where they were present, from that place they could not be present on the place of occurrence and it was highly improbable that they committed this incident on the place of occurrence.

26. On perusal of the facts narrated by PW-1, the complainant it reveal that it is specifically has been mentioned in the written report (Ext Ka-1) that appellants and co-accused had caught hold Smt. Sharda Devi, when the complainant fled away from the place of alleged accident met by Parvez with his motorcycle, when his mother asked him for the same. All the appellants were bringing her towards their house. In the mean while, Smt. Sharda Devi managed and got freed her from the clutches of the appellants and she hidden herself in room owned by Hamid and bolted this room from inside. All the appellants broke open doors and assaulted her by their bankas.

27. It is also mentioned in report that the complainant and other villager gathered at the place of occurrence and saw the incident. The appellants threatened all people, including the complainant, by brandishing their blood stained bankas to eliminate them by cutting just like the deceased. Therefore, active participation of all appellants was disclosed in the written report (Ext Ka-1) by the complainant PW-1 immediately after the incident. This written report (Ext Ka-1) was submitted by PW-1 on the date of incident 17.12.2003 at 19.00 hours i.e. after one and half hour of the incident.

28. The Check F.I.R. (Ext Ka-3) and G.D. of registration of crime has been proved by PW-4 Sri Rakesh Kumar Pandey-Sub Inspector. He has stated that Check F.I.R. (Ext Ka-3) and G.D. (Ext Ka-4) were prepared by Shiv Bahadur Singh-Constable Moharrir in his hand writing. He identified signatures and hand writing of Constable Shiv Bahadur Singh. He has stated that the complainant Umesh Kumar Tiwari submitted his written report on 17.12.2003 at 19.00 hours at the police station during his duty hours. He took up investigation of this case and recorded statement of PW-1 Umesh Kumar Tiwari.

29. PW-4 in his cross-examination has clarified this act the that complainant had written in his report that Parvez son of Tasauvar all of sudden appeared in front of his motorcycle and he tried his best to save him, even then he dashed with motorcycle, and he fell down. The complainant-PW-1 and his mother also fell down. He has specifically stated that nobody came at the police station along with Parvez. He has further stated that he tried to trace Parvez, but he could not contact him. It may be fault of PW-4 that he did not examine body of the Parvez, nor mentioned in case diary about the fact of incident, which was accepted by the complainant and written in the written report (Ext Ka-1).

30. He has himself stated that he went at the house of the accused persons, but they were not present in their house. He thought it proper to meet Parvez, therefore, he visited house of the accused persons.

31. Learned defence counsel has cross-examined PW-4 on the basis of case diary prepared by the Station House Officer Jawahar Lal Yadav and stated that it is not mentioned in this case diary that Sri Jawahar Lal Yadav, the then Station House tried to trace Parvez or not. PW-4 has refuted this suggestion that in the course of incident the appellant Tasauvar and co-accused Jalali only assaulted the deceased and remaining appellants have falsely been implicated in this crime. He has also refuted this suggestion that purposely Parvez was not examined and report of accident was not lodged by the police personnel. He has further refuted this suggestion that discovery of banka was false and fabricated and false charge-sheet was submitted by the Station House Officer Jawahar Lal Yadav.

32. Therefore, no material contradiction was elicited regarding facts and circumstances of lodging of written report by PW-1 at police station. The appellants have not got Parvez medically examined. No injury report of Parvez has been filed as defence evidence by the appellants. If statement of DW-1 Munir Ahmad be accepted that Parvez, aged 5-6 years, met with accident made by motorcycle of the complainant Umesh Kumar Tiwari and he became unconscious, then Parvez might have been medically examined and injuries sustained by him might have been noted by the concerned doctor.

33. DW-1 Munir Ahmad has stated in his examination-in-chief that Parvez met with accident made by motorcycle and became unconscious. The ladies of appellants brought Parvez at their house and some people, who gathered at the place of occurrence, assaulted the deceased Smt. Sharda Devi. The deceased hidden in room of their house and door of this room was not broke open by the appellants. He has specifically stated that the appellants reside in separate houses on the Eastern side of way, whereas his house is situated on the Western side of the way situated in village.

34. DW-1 has further stated in his cross-examination conducted by prosecuting officer that he did not visit place of occurrence during course of incident and he does not know the people, who gathered at the place of occurrence. Therefore, he could not state who were the accused persons. DW-1 in his examination-in-chief has stated that he did not see the appellants at the place of occurrence. He could not state specifically about the appellants as such.

35. DW-1 in his cross-examination has accepted that he never moved any complaint/application to any higher authority, when he came to know that police personnel made the appellants as accused of this crime. Therefore, for the first time DW-1 gave his evidence during the course of trial and never apprised the Investigating Officer regarding the fact that Smt. Sharda Devi, the deceased was assaulted by gathering of some people. If gathering of people/villagers assaulted Smt. Sharda Devi, then it is not clear, why DW-1 did not apprise the Investigating Officer Jawahar Lal Yadav, Station House Officer or PW-4 Rakesh Kumar Pandey.

36. Learned trial Court has appreciated and analyzed evidence of DW-1 Munir Ahmad, defence witness and has recorded finding that DW-1 is resident of village Rausa, therefore, he might have known villagers, who gathered at the place of occurrence. Therefore, it cannot be believed that he could not identify the persons, who have committed the murder of Smt. Sharda Devi. The learned trial Court has also observed that accused Tasauvar has clearly admitted in his statement recorded under Section 313 Cr.P.C. that his son Jalali gave blows to Smt. Sharda Devi along with him. Therefore, evidence of DW-1 Munir Ahmad was discarded by the learned trial Court on the ground that he did not disclose name of assailants specifically.

37. Learned trial Court has recorded specific finding that on the basis of evidence of DW-1 Munir Ahmad it cannot be believed that unknown person have committed murder of Smt. Sharda Devi. Learned trial Court has also recorded finding that accused Tasauvar and DW-1 Munir Ahmad have admitted the presence of Umesh Kumar Tiwari at the place of occurrence. Therefore, evidence of PW-1 Umesh Kumar Tiwari cannot be disbelieved and from the evidence adduced by the prosecution it is proved beyond all reasonable doubt that Rayees, Shah Alam, Tasauvar, Mubarak and co-accused Jalali committed murder of Smt Sharda Devi on 17.12.20013 at 4.30 p.m. in village Rausa.

38. As far as, learned counsel for the appellants have relied upon the fact that the accused Rayees, Mubarak and Shah Alam have stated in their statement recorded under Section 313 Cr.P.C. that incident did not occur in their presence, this fact could not be proved by these appellants by adducing cogent defence evidence about their presence elsewhere at the date and time of the occurrence. Learned trial Court has considered the statement of appellant Tasauvar recorded under Section 313 Cr.P.C. and appreciated evidence of prosecution and recorded finding that the murder of Smt. Sharda Devi took place on 17.12.2003 at about 4.30 p.m. on “Kharanja” marg, which is situated in front of the house of DW-1 Munir, accused Tasauvar, Shah Alam and Sadullah.

39. The appellant Rayees, Mubarak and Shah Alam has not adduced any defence evidence to discharge their burden according to provision of Section 11 and 106 of Indian Evidence Act.

40. The provisions of Section 11 and illustration (a) of Evidence 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.

41. 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.

42. DW-1 Munir Ahmad is not capable to prove presence of appellants Rayees, Mubarak and Shah Alam elsewhere instead of place of occurrence, because he has accepted that he did not visit the place of occurrence, where Smt. Sharda Devi was murdered. He has concealed the real facts of the incident in his statement. His statement reveal that he has supported prosecution version to some extent that “Parvez son of Tasauvar had dashed with motorcycle of the complainant Umesh Kumar Tiwari, on which, his mother Smt. Sharda Devi (the deceased), pillion rider. Parvez, Smt. Sharda Devi and the complainant fell down on the place of occurrence. This was the motive/reason for the appellants to commit murder of Smt. Sharda Devi.”

43. The learned trial Court has discarded argument of learned defence counsel that appellant Rayees, Mubarak and Shah Alam were not present at the place of occurrence on the date and time of the incident of this crime. On the other hand, it has recorded specific finding that all the appellants along with co-accused Jalali committed murder of Smt. Sharda Devi by actively participating in the crime.

44. Learned trial Court has appreciated and analyzed evidence of PW-1 Sri Umesh Kumar Tiwari, the complainant and eye-witness Sri Ram Kishan, who are native/resident of Village Rausa itself.

45. We have also perused statement of PW-1 and PW-2, who are the witnesses of facts and circumstances of this incident.

46. PW-1 Umesh Kumar Tiwari has corroborated facts narrated by him in his written report (Ext Ka-1) and stated that he and his mother Smt. Sharda Devi/the deceased were going on the date of incident at about 4.00 p.m. to see their agricultural field, which was situated in village Umeria. They reached at Palesher of Iksar. The son of Tasauvar all of sudden came in front of his motorcycle and dashed with his motorcycle. He and his mother fell down on this place from the motorcycle. He picked up his motorcycle and tried to lift Parvez also. In the meanwhile, all the appellant including co-accused came on this place brandishing their bankas. His mother asked him to fled away. Therefore, he ran away on his motorcycle. He came back at his house and parked his motorcycle and then he reached in front of house of Sher Khan, where Ram Kishan, Nag Dutt and Raghunandan Prasad and so many villagers were present.

47. PW-1 has further stated that he saw Tasauvar and co-accused Jalali who had caught hold his mother and other co-accused also were dragging his mother towards their house. In the meanwhile, Smt Sharda Devi managed to get free from clutches of the appellants and entered in room of Hamid, which was situated behind his shop and bolted doors from inside. PW-1 has also stated that all the accused persons tried to break open doors of this room. Hamid raised objections not to break doors of the room, where his mother hidden her. He also reached at Kharanja near house of Hamid. Other witnesses were also present with him. His mother raised alarm, but due to fear, they could not go ahead and stand by there as on-lookers.

48. PW-1 has stated that the appellants and co-accused broke open doors of room and dragged his mother in front of house of Shah Alam. The appellants Shah Alam, Rayees and Mubarak assaulted his mother with their banka. When she was lying on ground, then Mubarak caught hold legs of his mother, Rayees caught hold her hands and Shah Alam pressed her shoulders from behind, then Tasauvar and co-accused Jalali assaulted his mother with their banka. His mother died on the spot and her screams stopped. He has further stated that after committing incident the appellants fled away towards Southern side by threatening that if anybody will go ahead, then he will be eliminated. PW-1 has stated that he found his mother dead at 4.30 p.m.

49. PW-1 has contended that he dictated the facts of the incident to Scribe Sunil Tiwari who wrote his written report and after listening it he signed it. PW-1 has proved written report (Ext Ka-1) submitted by him at the police station. PW-1 has further stated that due to fear and ambush of the accused persons he could not go at the police station immediately after the incident.

50. PW-1 has also stated that he instituted a Suit against the accused Mubarak and Fakira prior to the incident regarding disputed land 07-08 months ago, which was pending in the concerned court. The appellants were having animosity with his family due to this reason, the appellants threatened him to leave the agricultural land and for his life. The appellants and co-accused Jalali are related to each other. Accused Tasauvar, Rayees, Shah Alam and Mubarak are real brothers and co-accused Jalali is son of Rayees. They have committed murder of his mother, due to the above mentioned Suit.

51. PW-1 in his cross-examination has clarified this fact that Palisher of Iksar is situated on Western side i.e. the road side of Kharanja. The House of Hamid is situated at 10 paces from house of Sadullah and house of Zan Mohd. is situated at 15-20 paces from house of Sadullah. Their houses are situated on road side of Kharnja and Palisher of Israr is situated at 15 paces from the house of Zan Mohd. Parvez dashed with his motorcycle, which was (motorcycle) owned by his uncle Ram Kishore. He was using this motorcycle from 2-4 months ago. He has specifically stated that family members of Parvez did not go to lodge F.I.R. of this accident at police station.

52. PW-1 has further stated that Jalali and Aneesh are sons of Rayees. The son of Shah Alam is not residing in the village. His uncle Ram Kishore was residing with him. He has stated in his cross-examination also that the appellants wanted to take possession of the disputed land ad-measuring one and half acre. Therefore, he instituted Suit against the accused/appellant Mubarak and Fakira. His grandfather Sattideen was owner of this land. He has accepted this fact that Fakira was murdered and case of this incident is pending against Ram Kishan, Rajesh and Mukesh. Rajesh and Mukesh are his real brothers.

53. PW-1 has specifically stated that there is way on Western side of the village, by which he reached at his house within five minutes from Palisher of Iksar. The appellants were not having any enmity with his mother. They were having animosity with him on the basis of the above mentioned agricultural land. He has stated that witness Ram Kishan resides in Bal Gola. He is voter of village Rausa and Gola. Ram Kishan disposed of his agricultural land and his house two to four month ago. His family members resides at Gola and his children are getting education in Class II and III from Aadarsh Shishu Janta Vidyalaya. He has refuted this suggestion that Ram Kishan was not residing in village Rausa from 15 -20 year ago. He has further stated that Parvez was aged 5-6 years on the date of occurrence.

54. PW-1 has disclosed this fact in his cross-examination that he is educated up to Class VIII and he was aged about 17-18 years on the date of occurrence. Sunil (scribe of report) is educated up to High School, who wrote his written report at his house. He has clarified this fact that Ramesh Tiwari, Parmeshwar and Ved Prakash are firearm license holder, but they reached at the place of occurrence when the appellants fled away towards Southern side of the village brandishing their bankas. He has stated that they tried to caught hold appellants, but the appellants threatened them to eliminate him and villagers by cutting them with banka just like the deceased. He has specifically stated that none of the accused persons had wielded Axe and their banka were not left at the place of occurrence. He has also disclosed this fact that the land was purchased by Fakira and Mubarak from his grandfather Sattadeen, of which, each of them is owner of half share.

55. PW-1 in his cross-examination has stated that all the accused persons including appellants ran towards place of accident threatening to eliminate them. The appellants were annoyed, therefore, his mother asked him to ran away, otherwise he might have been eliminated. He has refuted this suggestion that Parvez became unconscious after meting with accident from his Motorcycle. All the five accused persons including Tasauvar and Jalali came together. He and his mother also fell down on the place of alleged accident of Parvez. When his mother asked him to run away, he reached at his house riding on Motorcycle, then again he went at the place of occurrence, while all the appellants including co-accused Jalali were dragging his mother towards their house.

56. PW-1 has also refuted this suggestion that Jalali and Tasauvar only attacked them after seeing that Parvez became unconscious and other accused persons were named by them after due deliberations and consultations. He has also refuted this suggestion that his mother had wielded banka, which was snatched from her and she was by the appellant Tasauvar and co-accused Jalali only. The Specific question was put forth during course of examination of PW-1 that only Tasauvar and co-accused Jalali assaulted his mother, but he has refuted it and replied that Shah Alam, Mubarak, Rayees and Tasauvar-appellants and co-accused Jalali together committed murder of his mother. He has also refuted this suggestion that his mother did not hide herself in room of Hamid and appellants did not break open doors of this room and dragged his mother.

57. Therefore, PW-1 during his cross-examination has disclosed also facts and circumstances, in which, appellants including co-accused Jalali committed murder of his mother on the basis of enmity of agricultural land. The witness PW-1 instituted Suit against accused Mubarak and Fakira (since dead), because appellants were trying to take possession of this land. He has specifically denied this fact that Parvez son of Tasauvar become unconscious after dashing with his Motorcycle.

58. On the basis of statement of PW-1 his presence is established at the point of time, when his mother hidden her in room of house of Hamid and when the appellants broke open doors of this room and dragged his mother at place of occurrence, which was situated in front of house of Shah Alam. He has disclosed and proved all the facts and circumstances narrated by him in his written report (Ext Ka-1).

There is no substance in the arguments of learned counsel for the appellants that PW-1-complainant fled away after committing accident with Parvez and the fact of his presence at the place of occurrence again on his return from his house has been developed after due consultation and deliberation.

59. PW-1-complainant is eye-witness of the facts and circumstances, in which, his mother Smt. Sharda Devi was murdered by the appellants along with co-accused Jalali. His presence cannot be doubted as pointed out by learned counsel for the appellants. He has submitted (Ext Ka-1) written report at the police station Fardahan promptly after incident within one and half hour. Therefore, there is least chances of deliberations and consultations. His age was 17-18 years on the date of occurrence and he got prepared written report (Ext Ka-1) by scriber Sunil Tiwari son of Raj Kumar Tiwari. PW-1 in his cross-examination has stated that He, Naresh and Ram Kishore reached at 6.00 to 6.30 p.m. on foot at police station and stayed there up to 7.00 p.m.

60. We have also perused statement of PW-2 Ram Kishan. He has stated that 14-15 month ago (prior to the date of his statement) i.e. on the date of incident at about 4.00 p.m., he along with Joginder was going at Paleshar. They reached near house of Mohd. Sher and saw that Mubarak, Shah Alam, Rayees, Tasauvar and co-accused (Jalali) were dragging Smt. Sharda Devi. They had wielded bankas. When the appellants reached near shop of Hamid, Smt. Sharda Devi some how managed to escape and entered in room of Hamid, which was situated behind his shop and she bolted doors from inside. The appellants tried to broke open doors of room. Hamid raised objection, then they threatened Hamid to eliminate him. The witnesses including PW-2 reached near shop of Hamid.

61. PW-2 in his cross-examination has clarified this fact that his house is situated near Khurar Chungi at Gola. He owned house and agricultural land in village Rausa. He has not disposed of his house situated in village Rausa. He has only disposed of agricultural land prior to the incident i.e.four months ago. He has also stated that Ram Vilash Chaurasia of his village was murdered. He, Ram Kishore brother-in-law of the deceased, Smt. Sharda Devi, Madhav Lal and Sirdar were accused of this case. He and Madhav have been convicted in this case. He purchased house at Gola in the year 1990. He started living at Gola after murder of Ram Vilash due to fear.

Therefore, there is no substance in the argument of learned counsel for the appellants that there is no occasion for PW-2 to come in village Rausa on the date and time of incident. PW-2 has established his presence in village Rausa on date of incident 17.12.2003 at 4.00 p.m., while he was going along with Joginder at Paleshar situated in village Rausa. No specific question was put up to PW-2 by learned defence counsel that for which specific purpose he came to village Rausa. Therefore, on the basis of statement of PW-2 stated by him in his cross-examination that he is residing at Gola since 1990. It can not be accepted that he could not be present in village Rausa on the date and time of incident of this crime.

62. As far as learned defence counsel has argued that PW-2 witness has been convicted for murder of Ram Vilash Chaurasia and he was having criminal antecedent, therefore, his evidence is not reliable and he is a chance witness. Likewise, he has also pointed out that PW-1 Umesh Kumar Tiwari has instituted Civil Suit against Mubarak-appellant and Fakira, in which, his real brothers Rajesh and Mukesh along with his uncle Ram Kishore are accused. Therefore, his family is also having criminal antecedent. Therefore, evidence of PW-1 and PW-2 cannot be believed and they are not reliable witness.

63. It is relevant to mention here that the appellants have no concern with murder of Sri Ram Vilash Chaurasia. They are not the witness of this case. On the other hand, Fakira was defendant of Suit instituted by PW-1 and he is not accused in case of murder of Fakira. Therefore, evidence of PW-1 and PW-2 cannot be discarded on the basis of criminal antecedent of PW-2 and family of PW-1. The following exposition of law of Hon’ble Apex Court is relevant regarding criminal antecedent of PW-2 and alleged criminal antecedent of family of PW-1:-

In the case of Anil Sharma Vs. State of Jharkhand reported in 2004 (5) SCC 679 Hon’ble the Apex Court in paragraph no. 13 has held as under:-

13. Non-production of documents which the appellants claim would have strengthened the claim of absence of PW 5 cannot in any way dilute the evidentiary value of the oral testimony. Even though the witnesses have been cross-examined at length, no material inconsistency has been elicited to discard the evidence of PWs 5 and 6. One of the pleas which was pressed into service is the alleged relationship of PWs 5 and 6 with the deceased and their criminal antecedents. As rightly noticed by the High Court, on the aforesaid basis the evidence which is found truthful and credible otherwise should not be discarded. The courts have to keep in view that in such matters deep scrutiny is necessary. After having kept these principles in view the trial court and the High Court have found that the evidence when carefully analysed on the whole was credible. After deep scrutiny the courts below have found that there is a ring of truth in the evidence of PWs 5 and 6.

In the case of Dhanraj alias Shera Vs. State of Punjab reported in 2004 (3) SCC 654 Hon’ble the Apex Court in paragraph no. 4 has held as under:-

4. In reply, learned counsel for the State submitted that faulty investigation cannot be a ground to affect the credibility of the eyewitnesses. It is a fairly settled position in law that when witnesses are branded as partisan or inimical, their evidence has to be analysed with care and scrutiny. That has been done in the present case and both the trial court and the High Court have found the evidence to be credible. Even if the investigation was faulty, both the trial court and the High Court have acted only in the permissible way i.e. to weigh the evidence carefully and come to an independent conclusion. As rightly noted by the High Court, the investigation seems to be slipshod. The highly improbable stand that the complainant and his relatives killed the deceased who was their close relative can hardly be accepted even with a pinch of salt. Though the deceased and the complainant had criminal track records, that per se will not affect the evidence of witnesses if it is otherwise credible and cogent. Both the trial court and the High Court after analysing the evidence found it to be credible, cogent and trustworthy. The plea that the primary duty to investigate the evidence is that of the police and when the police has given a clean chit, that should prima facie be accepted, is clearly without substance.

64. Their evidence has to be appreciated and analyzed only with more care and caution. The presence of PW-1 along with the deceased is accepted by appellant Tasauvar in his statement recorded under Section 313 Cr.P.C.. Therefore, his presence cannot be doubted in any circumstances.

65. Learned defence counsel on behalf of the appellants have not specifically cross-examined PW-2 regarding his presence in village Rausa on the date and time of incident. On the other hand, PW-2 has established his presence in village Rausa at the place of occurrence, on the date and time of incident of this crime.

66. PW-2 has stated in his examination-in-chief that the appellants broke open doors of room, in which, the deceased Smt. Sharda Devi had hidden her and they brought her in front of house of Shah Alam. She was lying on Kharanja. All the appellants/accused persons assaulted Smt. Sharda Devi with their bankas in the course of incident. Mubarak had caught hold both legs of Smt. Sharda, Rayees had caught hold her both hands and Shah Alam pressed her shoulders. The appellant Tasauvar and co-accused Jalali had also assaulted Smt. Sharda Devi by their banka.

67. PW-2 has also stated that they tried to save life of Smt. Sharda Devi, then appellants threatened PW-2 and other people, who gathered at the place of occurrence that if anybody would come ahead he shall be eliminated just like the deceased. The appellants fled away towards Southern side. The screams of Smt. Sharda Devi stopped. He has stated that the Sub-Inspector came after incident at place of occurrence. He pointed out him the place of occurrence and his statement was recorded by the Investigating Officer on the same day i.e. date of incident.

68. PW-2 has stated in his cross-examination that Smt. Sharda Devi was dragged during period of one and half hour and she was assaulted for 15-20 minutes. Israr and Munir son of Hamid were also present at the place of occurrence. PW-1 Umesh was also present. He has specifically stated that Parvez did not met with accident, but due to fear he fell down on the ground. He has further stated that the incident occurred at about 4.00 p.m. The Investigating Officer saw the broken parts of door. He was present at this point of time along with the Investigating Officer.

69. PW-2 has mentioned in his cross-examination that Smt Sharda Devi was assaulted in standing position also. He apprised the Investigating Officer that Mubarak, Rayees and Shah Alam had caught hold Smt. Sharda Devi and appellant Tasauvar and co-accused Jalali assaulted her with their banka. He has further stated that all the five accused persons assaulted Smt. Sharda Devi for the first time, then three accused persons caught hold her and two accused again assaulted her. He apprised the Investigating Officer that all the five accused persons assaulted Smt. Sharda Devi. He has stated that if the Investigating Officer has not mentioned these facts in his statement recorded under Section 161 Cr.P.C., then he cannot disclose any reason in this regard.

70. PW-2 has refuted this suggestion that he was developing this fact on legal advice of his private counsel Sri Suresh Kumar Singh, Advocate. He has specifically stated in his cross-examination that Aneesh son of Rayeesh was not present on the place of occurrence. He has also specifically stated on his own that his children only resides in Gola. He has refuted this suggestion that Parvez become unconscious after dashing with Motorcycle and only Tasauvar and Jalali abused is sister-in-law (the deceased) and the deceased tried to assault these accused persons, then they snatched banka wielded by her and assaulted her.

71. PW-2 has also mentioned that Civil Suit of disputed land is pending between Ram Kishore and Mubarak. He has refuted this suggestion that the deceased had not hidden her in room of Hamid and he was adducing evidence being relative of the deceased. He has also refuted this suggestion that he has involved Rayeesh, Mubarak and Shah Alam also with due consultation and deliberations of his nephews Rajesh, Mukesh and brother Ramesh. He has further refuted this suggestion that on the date and time of occurrence he was not present on the place of occurrence and he was in Gola.

72. Therefore, PW-2 was not specifically cross-examined on behalf of appellants regarding the fact that in which circumstances and for what purpose he came to village Rausa, in which his house is still situated. He is native of this village. No other material contradictions was elicited during cross-examination of PW-2 Ram Kishan, who is uncle of PW-1 and son of Late Sattideen. On the basis of evidence adduced by him, it is established that he is eye-witness of the incident and he was present on the place of occurrence. He has disclosed all the facts and circumstances, in which Smt. Sharda Devi hidden her in room of house of Hamid and she was dragged by the appellants after breaking open doors of this room and assaulted her with their bankas at place of occurrence, which was situated in front of house of appellant Shah Alam.

73. As far as it is argued by learned counsel for the appellant that PW-1 and PW-2 are relatives of the deceased Smt. Sharda Devi and they are interested witness. Therefore, there evidence is not trustworthy and reliable.

74. Hon’ble the Apex Court in the following case laws has held regarding interested and independent witnesses as under:

In the case of State 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)9SCC725 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 : [1954]1SCR145 , Guli Chand v. State of Rajasthan MANU/SC/0107/1973 : 1974CriLJ331 and Dalbir 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 Munna 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 Banti @ 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 Yogesh 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,Dalip Singhv.State of Punjab[Dalip Singhv.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, inPiara Singhv.State of Punjab[Piara Singhv.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.InHari Obula Reddyv.State of A.P.[Hari Obula Reddyv.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, inRamashish Raiv.Jagdish Singh[Ramashish Raiv.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. (SeeAnil Raiv.State of Bihar[Anil Raiv.State of Bihar, (2001) 7 SCC 318 : 2001 SCC (Cri) 1009] ,State of U.P.v.Jagdeo[State of U.P.v.Jagdeo, (2003) 1 SCC 456 : 2003 SCC (Cri) 351] ,Bhagaloo Lodhv.State of U.P.[Bhagaloo Lodhv.State of U.P., (2011) 13 SCC 206 : (2012) 1 SCC (Cri) 813] ,Dahariv.State of U.P.[Dahariv.State of U.P., (2012) 10 SCC 256 : (2013) 1 SCC (Cri) 22] ,Rajuv.State of T.N.[Rajuv.State of T.N., (2012) 12 SCC 701 : (2012) 4 SCC (Cri) 184] ,Gangabhavaniv.Rayapati Venkat Reddy[Gangabhavaniv.Rayapati Venkat Reddy, (2013) 15 SCC 298 : (2014) 6 SCC (Cri) 182] andJodhanv.State of M.P.[Jodhanv.State of M.P., (2015) 11 SCC 52 : (2015) 4 SCC (Cri) 275]

INDEPENDENT WITNESS

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 inDarya Singhv.State of Punjab[Darya Singhv.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, inRaghubir Singhv.State of U.P.[Raghubir Singhv.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 Vijendra 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 fromHari Obula Reddyv.State of A.P.[Hari Obula Reddyv.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 inKartik Malharv.State of Bihar[Kartik Malharv.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.

75. The evidence of related witnesses cannot be discarded only on the ground that he is relative of the deceased/victim. On analyzing and evaluating evidence of PW-1 and PW-2, it reveal that their presence at the place of occurrence on point of time of incident cannot be doubted and they had witnessed the incident committed by the appellants, in which, Smt. Sharda Devi was murdered. Their evidence is cogent, reliable and trustworthy. It cannot be discarded as suggested by learned counsel for the appellants. It is pertinent to mention here that it cannot be believed that PW-1 and PW-2 would have absolved real culprits and they have falsely implicated the appellants on the basis of enmity over the disputed land and pendency of civil suit.

76. Dr. P.K. Gangwar P.W.3 has conducted autopsy of dead body of the deceased on 18.12.2003. He found the following injuries on dead body of Smt. Sharda Devi:

“i) Multiple incised wound in area of 25 x 6 cms. on front and left side of neck, 6 cms below chin and 5 cms below left ear, each size 12 x 3 cms x vertebra deep to 3 x 1cm x skin underlying 3rd and 4th cervical vertebra spinal cord muscle and vessel cut.

ii) Multiple incised wound 15 x 5 cms x bone deep on upper part back of chest left side each size 10 x 2 cms x vertebra deep to 2 x 1 cm x skin deep underlying 1st and 2nd vertebra cut.

iii) Incised wound 3 x 1 cms x muscle deep on left shoulder.

iv) Incised wound 15 cms x 4 cms x abdominal cavity deep on outer aspect of left about 30 cms. below axilla.

v) Multiple incised wound in an area of 30 x 8 cms. over back of left thigh, left leg lacerated 6 x 1cm x muscle to 1 x 1 cm x skin deep.

vi) Multiple incised wound in area 30 x 10 cms. over back of left thigh and left leg, largest 10 x 3 cms and smallest 2 x 2 cms x skin (margins are inverted and clean cut).

77. PW-3 Doctor has found injury no.1 to 6 on various parts of dead body of the deceased and opined that death of the deceased was caused by shock and hemorrhage, due to ante-mortem injuries sustained by her. He has collected jewelry and clothes worn by the deceased, sealed them and handed over to the concerned Constable. He has also proved post-mortem report (Ext Ka-2) and opined that these injuries could be caused by sharp edged weapon/banka on 17.12.2003 at 4.30 p.m.

78. Learned defence counsel has cross-examined PW-3 only on the fact that exact time of death may vary on either side for six hours. Dr. PW-3 has also opined that almost injuries were of same width. He was not able to disclose this fact that these injuries could be caused by two or more weapons. The prosecution version discloses that the appellants assaulted the deceased with their bankas and injuries and proved by PW-3 corroborates, version narrated in F.I.R. by PW-1, injuries mentioned in inquest report and ocular evidence adduced by PW-1 and PW-2.

79. On perusal of nature of injuries sustained by the deceased it reveal that brutal murder of the deceased was committed by the appellants.

80. Injury no. 1 was multiple incised wounds in area of 25 x 6 cms. on neck, big wound of size 12 x 3 cm bone deep and small was 3 x 1cm, 3rd and 4th cervical vertebra of spinal cord, muscle and vessels were cut. In injury no.2 multiple incised wound on chest. Big wound was of size 10 x 2 cms x vertebra 1st and 2nd vertebra of spinal cord deep were cut. Injury no.4 was incised wound of size 15 cms x 4 cms x abdominal cavity deep and other injuries nos. 5 and 6 were multiple incised wound in an area of 30 x 8 cms and 30 x 10 cms respectively on left thigh and leg.

Therefore, participation of all the appellants can safely be inferred on the basis of medical evidence adduced by PW-3 and ocular evidence adduced by PW-1 and PW-2.

81. In the inquest report (Ext Ka-3) it is mentioned that dead body of Smt. Sharda Devi was lying in front of house of appellant Shah Alam. Six injuries incised wound were found on her left and right legs, neck, abdomen, on left side back and near left ear. Dr. PW.-3 has found the aforesaid injury no.1, 2, 5 and 6 multiple incised wound and injury no.3 and 4 incised wounds on various parts of her body including her neck.

82. It is pertinent to mention here that Parvez son of Tasauvar is still alive and his injuries has not been proved by the appellants, which were allegedly sustained by him in alleged accident. The injuries sustained by the deceased Smt. Sharda Devi indicates that the appellants sought themselves provoked to cause these injuries on the body of the deceased intentionally, and in furtherance of common object. No defence evidence has been adduced on behalf of the appellants that the deceased herself caught hold appellant Tasauvar, abused him and she was wielding banka, which was snatched by appellant Tasauvar.

83. The appellant Tasauvar could obtain permission from the trial Court under Section 315 Cr.P.C. or adduce any defence evidence in support of the suggestion given to witness PW-1 and PW-2 in this regard. Therefore, appellants were unable to prove this fact that the deceased Smt. Sharda Devi provoked the appellants by abusing them and tried to assault them (Tasauvar and co-accused Jalali) with banka wielded by her.

84. On the basis of statement of DW-1, it explicitly discloses the fact and circumstances, in which, the appellants and co-accused Jalali themselves sought provocation and were voluntarily provocated as an excuse for killing Smt. Sharda Devi. The provisions of Section 300 I.P.C. and its Exception 1(a) provides as under:

300. Murder.–Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or–

Secondly.–If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or–

Thirdly.–If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or–

Fourthly.–If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Illustrations:

(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.

(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.

(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z’s death.

(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.

Exception 1.–When culpable homicide is not murder.–Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:–

First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Therefore, the provisions of Section 300 Exception 1 (a) does not extend any benefit to the appellants.

85. Learned counsel for the appellants relied upon Swami Nath Rai Verus State of U.P.: Criminal Appeal No. 1661 of 1982 connected with Criminal Appeal No. 1663 of 1982:Sachindra Rai Vs. State of U.P. decided by this Court on 14.09.2012 and argued that incident of this case was occurred on the spur of the moment, because son of appellant Tasauvar met with accident and dashed with motorcycle of PW-1 Umesh Kumar Tiwari. Therefore, conviction of appellants may be converted from offence under Section 302 read with Section 34 I.P.C. to conviction under Section 304 part-II I.P.C.

86. We have found, on appreciating and analyzing the evidence of PW-1 and PW-2, that the deceased never provoked to the appellants in category of grave and sudden provocation or conducted in the way suggested to the witnesses that she tried to assault appellant Tasauvar by her banka allegedly wielded by her and on spur of the moment, the appellants committed murder of Smt. Sharda Devi. It is a case of premeditated crime and all the appellants committed murder of Smt. Sharda Devi intentionally and in furtherance of common object being member of an unlawful assembly. They caught and hold her at the place where Parvez dashed with motorcycle of PW-1 and dragged her towards their house. In the meanwhile Smt Sharda Devi somehow escaped from the clutches of the appellant and hidden her in room of Hamid. The appellants had broken doors of this room and dragged her in front of house of Shah Alam and committed her cold blooded murder on the date of occurrence i.e. 17.12.2003 at 4.30 p.m.

Therefore, the exposition of law of Division Bench of this Court is of no avail for the appellants.

87. The following expositions of law are also relevant on the point of conversion of punishment under Section 302 I.P.C. and Section 304 Part (I) and (II) of the I.P.C.

Hon’ble Supreme Court in the case of State of A.P. v. Rayavarapu Punnayya, (1976) 4 SCC 382 has held as under:

2. In Rompicheria village, there were factions belonging to three major communities viz. Reddys, Kammas and Bhatrajus. Rayarapu (Respondent 1 herein) was the leader of Kamma faction, while Chopparapu Subbareddi was the leader of the Reddys. In politics, the Reddys were supporting the Congress party, while Kammas were supporters of the Swatantra party. There was bad blood between the two factions which were proceeded against under Section 107 CrPC. In the panchayat elections of 1954, a clash took place between the two parties. A member of the Kamma faction was murdered. Consequently, nine persons belonging to the Reddy faction were prosecuted for that murder. Other incidents also took place in which these warring factions were involved. So much so, a punitive police force was stationed in this village to keep the peace during the period from March 1966 to September 1967. Sarikonda Kotamraju, the deceased person in the instant case, was the leader of Bhatrajus. In order to devise protective measures against the onslaughts of their opponents, the Bhatrajus held a meeting at the house of the deceased, wherein they resolved to defend themselves against the aggressive actions of the respondents and their partymen. PW 1, a member of Bhatrajus faction has a cattle shed. The passage to this cattle shed was blocked by the other party. The deceased took PW 1 to Police Station Nekarikal and got a report lodged there. On July 22, 1968, the Sub-Inspector of Police came to the village and inspected the disputed wall in the presence of the parties. The Sub-Inspector went away directing both the parties to come to the police station on the following morning so that a compromise might be effected.

3. Another case arising out of a report made to the police by one Kallam Kotireddi against Accused 2 and 3 and another in respect of offences under Sections 324, 323 and 325 of the Penal Code was pending before a magistrate at Narasaraopet and the next date for hearing fixed in that case was July 23, 1968.

4. On the morning of July 23, 1968, at about 6.30 a.m., PWs 1 and 2 and the deceased boarded bus No. APZ 2607 at Rompicheria for going to Nekarikal. Some minutes later, Accused 1 to 5 (hereinafter referred to as A1, A2, A3, A4 and A5) also got into the same bus. The accused had obtained tickets for proceeding to Narasaraopet. When the bus stopped at Nekarikal crossroads, at about 7.30 a.m., the deceased and his companions alighted for going to the police station. The five accused also got down. The deceased and PW 1 went towards a choultry run by PW 4, while PW 2 went to the roadside to ease himself. Al and A2 went towards the Coffee Hotel, situate near the choultry. From there, they picked up heavy sticks and went after the deceased into the choultry. On seeing the accused, PW 1 ran away towards a hut nearby. The deceased stood up. He was an old man of 55 years. He was not allowed to run. Despite the entreaties made by the deceased with folded hands, Al and A2 indiscriminately pounded the legs and arms of the deceased. One of the bystanders, PW 6, asked the assailants as to why they were mercilessly beating a human being, as if he were a buffalo. The assailants angrily retorted that the witness was nobody to question them and continued the beating till the deceased became unconscious. The accused then threw their sticks at the spot, boarded another vehicle, and went away. The occurrence was witnessed by PWs 1 to 7. The victim was removed by PW 8 to Narasaraopet Hospital in a tempo-car. There, at about 8.45 a.m., Doctor Konda Reddy examined him and found 19 injuries, out of which, no less than 9 were (internally) found to be grievous. They were:

“1.Dislocation of distal end of proximal phalan of left middle finger.

2.Fracture of right radius in its middle.

3.Dislocation of lower end of right ulna.

4.Fracture of lower end of right femur.

5.Fracture of medial malleolus of right tibia.

6.Fracture of lower 1/3 of right fibula.

7.Dislocation of lower end of left ulna.

8.Fracture of upper end of left tibia.

9.Fracture of right patella.”

5. Finding the condition of the injured serious, the doctor sent information to the Judicial Magistrate for getting his dying declaration recorded. On Dr K. Reddy’s advice, the deceased was immediately removed to the Guntur Hospital where he was examined and given medical aid by Dr Sastri. His dying declaration, Ext. P-5, was also recorded there by a Magistrate (PW 10) at about 8.05 p.m. The deceased, however, succumbed to his injuries at about 4.40 a.m. on July 24, 1968, despite medical aid.

6. The autopsy was conducted by Dr P.S. Sarojini (PW 12) in whose opinion, the injuries found on the deceased were cumulatively sufficient to cause death in the ordinary course of nature. The cause of death, according to the doctor, was shock and haemorrhage resulting from multiple injuries.

7. The trial Judge convicted Al and A2 under Section 302 as well as under Section 302 read with Section 34 of the Penal Code and sentenced each of them to imprisonment for life.

8. On appeal by the convicts, the High Court altered their conviction to one under Section 304 Part II of the Penal Code and reduced their sentence to five years’ rigorous imprisonment, each.

12. In the scheme of the Penal Code, “culpable homicide” is genus and “murder” its specie. All “murder” is “culpable homicide” but not vice-versa. Speaking generally, “culpable homicide” sans “special characteristics of murder”, is “culpable homicide not amounting to murder”. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, “culpable homicide of the first degree”. This is the greatest form of culpable homicide, which is defined in Section 300 as “murder”. The second may be termed as “culpable homicide of the second degree”. This is punishable under the first part of Section 304. Then, there is “culpable homicide of the third degree”. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

13. The academic distinction between “murder” and “culpable homicide not amounting to murder” has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

14. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the “intention to cause death” is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender’s knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300.

Section 299

Section 300

A person commits culpable homicide if the act by which the death is caused is done —

Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done —

INTENTION

(a)

With the intention of causing death; or

(1)

With the intention of causing death; or

(b)

With the intention of causing such bodily injury as is likely to cause death; or

(2)

With the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or

(3)

With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or

KNOWLEDGE

(c)

With the knowledge that the act is likely to cause death

(4)

With the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.

16. In clause (3) of Section 300, instead of the words “likely to cause death” occurring in the corresponding clause (b) of Section 299, the words “sufficient in the ordinary course of nature” have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word “likely” in clause (b) of Section 299 conveys the sense of “probable” as distinguished from a mere possibility. The words “bodily injury … sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature.

17. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant v. State of Kerala [AIR 1966 SC 1874 : 1966 Supp SCR 230 : 1966 Cri LJ 1509.] is an apt illustration of this point.

18. In Virsa Singh v. State of Punjab [AIR 1958 SC 465 : 1958 SCR 1495 : 1958 Cri LJ 818.] Vivian Bose, J. speaking for this Court, explained the meaning and scope of clause (3), thus (at p. 1500):

“The prosecution must prove the following facts before it can bring a case under Section 300, ”thirdly’. First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.”

19. Thus according to the rule laid down in Virsa Singh case of even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be “murder”. Illustration (c) appended to Section 300 clearly brings out this point.

20. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general — as distinguished from a particular person or persons — being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.

21…….. a court is confronted with the question whether the offence is “murder” or “culpable homicide not amounting to murder”, on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to “culpable homicide” as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of “murder” contained in Section 300. If the answer to this question is in the negative the offence would be “culpable homicide not amounting to murder”, punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be “culpable homicide not amounting to murder”, punishable under the first part of Section 304, of the Penal Code.

22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.

34. ……the formidable weapons used by the accused in the beating, the savage manner of its execution, the helpless state of the unarmed victim, the intensity of the violence caused, the callous conduct of the accused in persisting in the assault even against the protest of feeling bystanders — all, viewed against the background of previous animosity between the parties, irresistibly lead to the conclusion that the injuries caused by the accused to the deceased were intentionally inflicted, and were not accidental. Thus the presence of the first element of clause thirdly of Section 300 had been cogently and convincingly established.

35……According to the medical evidence the injuries of the deceased were cumulatively sufficient in the ordinary course of nature to cause death and the cause of the death was shock and hemorrhage due to the multiple injuries. Hence the second element is also established….

38…..here, a direct casual connection between the act of the accused and the death was established. The injuries were the direct cause of the death. No secondary factor such as gangrene, tetanus ectc. supervened. There was no doubt whatever thet the beating was premeditated and calculated.

39. …..The mere fact that the beating was designedly confined by the assailants to the legs and arms, or that none of the multiple injuries inflicted was individually sufficient in the ordinary course of nature to cause death, will not exclude the application of clause thirdly of Section 300. The expression “bodily injury” in clause thirdly includes also its plural, so that the clause would cover a case where all the injuries intentionally caused by the accused are cumulatively sufficient to cause the death in the ordinary course of nature, even if none of those injuries individually measures upto such sufficiency. The sufficiency spoken of in this clause, as already noticed, is the high probability of death in the ordinary course of nature, and if such sufficiency exists and death is caused and the injury causing it is intentional, the case would fall under clause thirdly of Section 300….

30. Although the learned Judges of the High Court have not specifically referred to the quotation from page 289, of Modi’s book on Medical Jurisprudence and Toxicology (1961 Edn.) which was put to Dr Sarojini, in cross-examination, they appear to have derived support from the same for the argument that fractures of such bones “are not ordinarily dangerous”; therefore, the accused could not have intended to cause death but had only knowledge that they were likely by such beating to cause the death of the deceased.

31. It will be worthwhile to extract that quotation from Modi, as a reference to the same was made by Mr Subba Rao before us, also. According to Modi “Fractures are not ordinarily dangerous unless they are compound, when death may occur from loss of blood, if a big vessel is wounded by the split end of a fractured bone”.

32. It may be noted, in the first place, that this opinion of the learned Author is couched in too general and wide language. Fractures of some vital bones, such as those of the skull and the vertebral column are generally known to be dangerous to life. Secondly, even this general statement has been qualified by the learned author, by saying that compound fractures involving hemorrhage, are ordinarily dangerous. We have seen, that some of the fractures underneath the injuries of the deceased, were compound fractures accompanied by substantial hemorrhage. In the face of this finding, Modi’s opinion far from advancing the contention of the defence, discounts it.

29…….facts, that the High Court was wrong in doubting the medical opinion thet death was caused by shock and also hemorrhage…..

40. For all the foregoing reasons, we are of opinion that the High Court was in error in altering the conviction of the accused-respondent from one under Sections 302, 302/34, to that under Section 304, Part II of the of the Penal Code. Accordingly, we allow this appeal and restore the order of the trial court convicting the accused (Respondent 2 herein) for the offence of murder, with a sentence of imprisonment for life. Respondent 2, if he is not already in jail, shall be arrested and committed to prison to serve out the sentence inflicted on him.

Hon’ble Supreme Court in the case of Lavghanbhai Devjibhai Vasava v. State of Gujarat, (2018) 4 SCC 329 has held as under:

5. As aforesaid, on the conclusion of the trial and after appreciating the oral and documentary evidence, the trial court returned a finding of guilt against the appellant and convicted and sentenced him under Section 302 IPC. As far as the event/occurrence is concerned, that stands proved and to that extent judgments of the courts below are without any infirmity. As mentioned above, the only question is as to whether it was a case for conviction under Section 302 IPC or Section 304 IPC.

6. We have perused the evidence in this behalf. We find that the prosecution case itself proceeds that the incident took place in the spur of moment. On 15-3-2008, when the deceased along with her mother went for labour work in agricultural field and she returned home around noon, she was preparing lunch in the kitchen when, as per the prosecution story, the appellant came to the house and questioned the deceased about delay in cooking lunch. On this, altercation took place between the appellant and his wife. At that stage, the appellant got furious and in a rush of the moment, he picked a wooden object lying near the place of incident and inflicted injury to the deceased. It is also an admitted case of the prosecution that only one single blow was inflicted. The death of Shakuben took place 10 days after the said incident while she was undergoing treatment at Baroda Hospital. This is the case of the prosecution itself.

7. This Court in Dhirendra Kumar v. State of Uttarakhand [Dhirendra Kumar v.State of Uttarakhand, 2015 SCC OnLine SC 163] has laid down the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, which are the following:

(a) The circumstances in which the incident took place;

(b) The nature of weapon used;

(c) Whether the weapon was carried or was taken from the spot;

(d) Whether the assault was aimed on vital part of body;

(e) The amount of the force used.

(f) Whether the deceased participated in the sudden fight;

(g) Whether there was any previous enmity;

(h) Whether there was any sudden provocation.

(i) Whether the attack was in the heat of passion; and

(j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner.

9. This appeal is, thus, partly allowed. While maintaining the culpability of the appellant, his conviction is altered to Section 304 Part II IPC instead of Section 302 IPC. The appellant has already served 9 years and 3 months of imprisonment approximately. In the facts of this case, we are of the opinion that the sentence of the appellant be reduced to the period already undergone. Ordered accordingly.

Hon’ble Supreme Court in the following paragraphs in the case of Gurwinder Singh v. State of Punjab, (2018) 16 SCC 525 has held as follows:

11. It cannot be held as an invariable proposition that as soon as the accused received the injuries in the same transaction, the complainant party were the aggressors–it cannot be held as a rule that the prosecution is obliged to explain the injuries and on failure of the same, the prosecution case should be disbelieved. It is well settled that before placing the burden on the prosecution to explain the injuries on the person of the accused, two conditions are to be satisfied:

(i) the injuries were sustained by the accused in the same transaction; and

(ii) the injuries sustained by the accused are serious in nature.

12. This Court considered the effect of non-explanation of injuries sustained by the accused person in Takhaji Hiraji v. Kubersing Chamansing [Takhaji Hiraji v.Kubersing Chamansing, (2001) 6 SCC 145 : 2001 SCC (Cri) 1070] and held as under: (SCC p. 154, para 17)

“17. The first question which arises for consideration is what is the effect of non-explanation of injuries sustained by the accused persons. In Rajender Singhv. State of Bihar [Rajender Singh v. State of Bihar, (2000) 4 SCC 298 : 2000 SCC (Cri) 796] , Ram Sunder Yadav v. State of Bihar [Ram Sunder Yadav v. State of Bihar, (1998) 7 SCC 365 : 1998 SCC (Cri) 1630] and Vijayee Singh v. State of U.P. [Vijayee Singh v. State of U.P., (1990) 3 SCC 190 : 1990 SCC (Cri) 378] , all three-Judge Bench decisions, the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions: (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case.” (emphasis supplied)

13. In the present case, the incident had taken place near the tubewell where both the parties assembled to settle the land dispute. When there was exchange of words, there was a scuffle between both the parties. In the same transaction where Harbhajan Singh was attacked, the accused party also sustained injuries. Apart from the stray statement made by the complainant Sukhwinder Singh in the FIR, the prosecution has not offered any explanation for the injuries sustained by the accused. Since both the accused sustained injuries in the incident, non-explanation of injuries sustained by the accused assumes significance. Having regard to the injuries sustained by the accused, the trial court and the High Court ought to have made an effort in searching out the genesis of the occurrence.

16. For bringing in operation of “Exception 4” to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.

17. Considering the scope of “Exception 4” to Section 300 IPC, in Sridhar Bhuyan v. State of Orissa [Sridhar Bhuyan v. State of Orissa, (2004) 11 SCC 395 : 2004 SCC (Cri) Supp 98] , it was held as under: (SCC p. 397, para 8)

“8. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men’s sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A “sudden fight” implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage”.”

21. In the result, the conviction of the appellants under Section 302 IPC read with Section 34 IPC is modified as conviction under Section 304 Part I IPC and the appellants are sentenced to undergo imprisonment for seven years and the appeals are partly allowed. Appellant Gurwinder Singh is said to have undergone imprisonment for more than ten years, he is ordered to be released forthwith unless his presence is required in any other case. Appellant Satnam Singh is directed to surrender to serve the remaining period of sentence, failing which, he shall be taken into custody.

Hon’ble Supreme Court in the aforesaid decisions Lavghanbhai Devjibhai Vasava Vs, State of Gujarat (supra) found that incident of this case law took place in a spur of moment, therefore, conviction of the appellant was altered to Section 304 Part II of I.P.C. instead of Section 302 I.P.C. The appellant had already served 9 year and 3 months of imprisonment. Likewise, in the case of Gurwinder Singh alias Sonu and Others vs State of Punjab (supra), Hon’ble Supreme Court found that the incident had taken place near the tubewell where both the parties assembled to settle the land dispute, when there was exchange of words there was a scuffle between both the parties. In the same transaction where Harbhajan Singh was attacked the accused parties also sustained injuries. The prosecution had not offered any explanation for the injuries sustained by the accused. Therefore, it was found that the trial court and the High Court ought to have made an effort in searching out the genesis of the occurrence. Hon’ble Supreme Court, in this circumstances, has altered and modified conviction of the appellants under Section 302 I.P.C. read with Section 34 I.P.C. as conviction under Section 304 Part I of I.P.C. On the peculiar facts and circumstances of the case, but Hon’ble Supreme Court has laid down the principle on which the courts shall analysis the peculiar facts and circumstances and would decide as to whether offence punishable under section 302 I.P.C. is made out or for the offence under section 304 I.P.C. is made out.

Hon’ble Supreme Court in the following paragraphs in the case of State of Uttar Pradesh Vs. Faquirey(Criminal Appeal No. 1842 of 2012 decided on 11.02.2019) has held as under:

1. The Respondent was convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) and sentenced to undergo life imprisonment by the Trial Court. The High Court converted the conviction to an offence under Section 304 Part I, IPC and sentenced the Respondent to 10 years rigorous imprisonment. Aggrieved thereby, the State of Uttar Pradesh is in appeal before us.

4. In the appeal filed by the Respondent, against the conviction and sentence, there was no contest on merits. The only submission made on behalf of the Respondent was that he could not have been convicted under Section 302 IPC. According to the Appellant, his conviction should have been under Section 304 IPC as the case is covered under Exception I to Section 300 IPC. The High Court observed that the intervention of the deceased in the quarrel between the two factions led to the Respondent losing his self control. The High Court was of the opinion that this resulted in grave and sudden provocation. Observing so, the High Court converted the conviction of the Respondent from Section 302 IPC to Section 304 Part I IPC. The Respondent was sentenced to suffer rigorous imprisonment for 10 years.

5. Mr. V. Shekhar, learned Senior Counsel appearing for the Appellant submitted that the High Court committed an error in converting the conviction of the Respondent from under Section 302 IPC to Section 304 Part I, IPC. He further submitted that the case of the defence that Exception I to Section 300 IPC is applicable is not correct. The Respondent was enraged at the sight of the deceased in view of the doubt he had in his mind about the deceased having an evil eye on his wife. The learned Senior Counsel relied upon the First Proviso to Exception I of Section 300 IPC to submit that the accused is not entitled to claim that the crime was committed due to grave and sudden provocation. Mr. D. K. Garg, learned counsel appearing for the Respondent submitted that the judgment of the High Court does not deserve any interference as the High Court was right in recording a finding that the Respondent lost his self control due to grave and sudden provocation which resulted in his shooting the deceased. He further submitted that the incident occurred almost 18 years ago and the Respondent has undergone the sentence of 10 years which is an additional reason for us not to reverse the judgment of the High Court.

9. For the aforementioned reasons, the judgment of the High Court is set aside and the judgment of the Trial Court convicting the Respondent under Section 302 IPC and sentencing him to life imprisonment is restored. The Respondent is directed to surrender within a period of four weeks to serve the remaining sentence.

Therefore, there is no substance in argument of learned counsel for the appellants that this is a case of grave and sudden provocation given by the deceased Smt. Sharda Devi or incident occurred on spur of the moments. PW-1 and PW-2 witnesses have proved this fact that the deceased hidden her in room of Hamid and bolted it from inside, even then appellants broke open doors of this room and dragged the deceased in front of house of Shah Alam and with common object inflicted injuries on the body of the deceased, which have been proved by the Doctor PW-3.

88. PW-4 Sri Rakesh Kumar Pandey has prepared Inquest Report and other documents (Ext Ka- 5 to Ext Ka-11) for conducting autopsy of dead body of the deceased. He has also prepared recovery memo (Ext Ka-12) of collecting blood stained and plain soil from the place of occurrence, which was shown by him in Site Plan (Ext ka-13) with Mark “X” in front of house of Shah Alam. From Mark “E” he has shown the room, which is situated behind shop of Hamid. Witnesses PW-1 and PW-2 firstly saw the appellants from place Mark “A”, when they were dragging Smt. Sharda Devi. He has shown the place mark “B” from where Smt. Sharda Devi managed to escape from the clutches of the appellants and hidden in room Mark “E”. Hamid was present at place Mark “D” in front of his shop.

89. PW-4 has mentioned in Site Plan that the appellants broke open the door of room “E” and dragged her at place of occurrence mark “X”, where they assaulted the deceased with their bankas. Therefore, facts and circumstances mentioned by PW-4 in Site Plan corroborates the version of the prosecution and evidence adduced by PW-1 and PW-2.

90. PW-4 has proved this fact that he conducted investigation up to 19.12.2003 and Sri Jawahar Lal Yadav took over this investigation on 21.12.2003. He was member of police party of Sri Jawahar Lal Yadav, the then Station House Officer and the police party acted upon information given by the informer. He has stated that on 21.12.2003 at 4.40 p.m. they arrested Tasauvar, Mubarak, Rayees and Shah Alam. The appellant Tasauvar apprised the police party that he threw and had hidden banka in water of pond, which was used by him in the murder of Smt Sharda Devi. PW-4 has proved this fact that his police party discovered banka on pointing out of Tasauvar from water of pond. The appellant Tasauvar searched, fetched/picked up this banka, which was sealed at the place of discovery. The Recovery Memo (Ext ka-14) was prepared and Site Plan of this place (Ext Ka-15) was also prepared by the police party.

91. PW-4 has also proved charge-sheet (Ext ka-16) prepared by the then Station House Officer/Investigating Officer Jawahar Lal Yadav. He has also proved blood stained banka and blood stained and plain soil collected from the place of occurrence as material Ext 14 and 12 respectively.

92. PW-4 in his cross-examination has reiterated this fact that banka was discovered on pointing out of the appellant Tasauvar. The Station House Officer dictated recovery memo to him and he prepared it in his hand writing. The Station House Officer Jawahar Lal Yadav recorded statements of witnesses of this discovery. Banka was engulfed with mud, when it was picked/fetched up by appellant Tasauvar from water of pond. The appellant Tasauvar apprised the Station House Officer Jawahar Lal Yadav regarding facts and circumstances of murder of Smt. Sharda Devi and also apprised/gave information about the place for discovery of banka on his pointing out, where he hidden this banka in pond.

93. Learned defence counsel has cross-examined PW-4 on the fact that PW-1 Umesh Kumar Tiwari did not apprise him that any Suit was instituted by him against Fakira and Mubarak-appellant. PW-4 stated in his cross-examination that parts of doors were not found on the floor of room of Hamid, but latches (sitkani) of door were broken and there were mark of Axe on these doors. He has stated this fact on the basis of his memory. He has refuted this suggestion that latches of doors were not broken, nor there were any mark of Axe on doors and he has stated these facts to strengthen prosecution version and to develop and improve seriousness of the incident.

94. Learned defence counsel has also cross-examined PW-4 on the basis of statement of Ram Kishan recorded under Section 161 Cr.P.C..PW-4 has replied that witness Ram Kishan did not apprise him that all the five accused persons assaulted the deceased with their bankas, but he only stated that appellant Tasauvar and co-accused Jalali assaulted Smt. Sharda Devi and gave many blows during the incident. He has also apprised him that appellant Mubarak caught hold both legs, Rayees caught hold both hands and Shah Alam pressed her both shoulders.

95. PW-1 and PW-2 Umesh Kumar Tiwari and Ram Kishan has proved this fact that for the first time Mubarak, Rayees and Shah Alam assaulted his mother with their bankas, then Mubarak caught hold her legs, Rayees caught hold her bands and Shah Alam pressed her shoulders, then appellant Tasauvar and co-accused Jalali assaulted the deceased with their bankas.

96. PW-1 Umesh Kumar Tiwari has mentioned in his written report (Ext Ka-1) the same fact. This fact has been specifically mentioned that the deceased somehow escaped from clutches of the appellants and hidden her in room of Hamid and the appellants broke open doors of these room and dragged her at the place of occurrence. Therefore, it was the duty of PW-4 that these facts should have been clarified from the complainant PW-1 Umesh Kumar Tiwari and PW-2 Ram Kishan on the basis of facts mentioned by the complainant in his written report. It is not disputed that PW-1 himself instituted Suit against appellant Mubarak and Fakira, because they were trying to take possession of the disputed land, because this Suit was pending before the competent court at the point of time of this incident. Therefore, this fact could not be termed as “improvement” made by PW-1 Umesh Kumar Tiwari.

97. PW-4 has not mentioned in Case Diary about the codition of the doors of room of Hamid, in which diseased hidden her and appellants broke open these doors. PW-2 saw the condition of these doors and stated as such in his statement before the court during the course of trial. Therefore, it was the duty of PW-4 to mention in Case Diary the condition of doors found by him as well as in Site Plan (Ext Ka-13) prepared by him.

98. PW-2 has specifically stated that he was present on the place of occurrence when PW-4 inspected it. PW-4 has stated in his examination-in-chief that he prepared Site Plan (Ext Ka-13) on pointing out of witnesses.

99. Therefore, cross-examination conducted by learned defence counsel on the basis of aforesaid facts mentioned in statements of PW-1 and PW-2 recorded under Section 161 Cr.P.C. does not extend any benefit to appellants and cannot be termed as “improvement” of the facts.

100. PW-4 has accepted this fact that the complainant PW-1 has mentioned in his F.I.R. that Parvez son of Tasauvar all of sudden came in front of his Motorcycle and dashed with it. Parvez, complainant and his mother (the deceased) also fell down. Therefore, statement of PW-4 given in his cross-examination that this alleged accident of Parvez was the bone of contention of this crime, is not of much significance. No other material contradiction was elicited during cross-examination of PW-4. The PW-1 and PW-2 have adduced credible, acceptable and reliable evidence during the course of trial, which cannot be discarded on the basis of minor contradictions appeared in their statements as pointed out by learned counsel for the appellants.

101. Learned counsel for the appellants has also submitted that DW-1 Munir Ahmad is son of Hamid and he has stated that the Investigating Offier did not inspected his room neither the deceased Smt. Sharda Devi had hidden her in it, nor he found doors of this room broken. He has further submitted that on the other hand, the Investigating Officer did not seize alleged banka, which were used by appellant Rayees, Shah Alam and Mubarak. These appellants have falsely been implicated in this crime, being brothers of appellant Tasauvar. Therefore, they are entitled to be acquitted of the charges framed against them.

102. As far as evidence of DW-1 Munir Ahamd, regarding laches of the Investigating Officer has been pointed out, this statement of DW-1 does not extend any benefit to appellants, because D.W.-4 the Investigating Officer has proved this fact that he prepared Site Plan (Ext ka-13), in which, he has mentioned that room of house of Hamid, in which, Smt. Sharda Devi had hidden her and from where, appellants dragged her after breaking open doors of this room and brought her at place of occurrence.

103. It is fault of PW-4 that He has not mentioned in Case Diary and Site Plan that there were marks of Axe on the parts of the doors and latches (sitkani) of doors were broken. The learned trial Court after appreciation of evidence of DW-1 has discarded his evidence.

104. We have also appreciated and analyzed evidence of DW-1. It may be possible that he is adducing evidence under influence of appellants. Moreover, he did not visit the place of occurrence, while appellants were assaulting the deceased with their bankas. On the other hand, PW-1 and PW-2 witnesses have adduced their evidence that all the appellants including co-accused Jalali actively participated in this crime and they were wielding bankas and assaulted the deceased with their bankas and committed her murder. The details of incident has been specifically stated by these witnesses in their statements. After committing murder of Smt. Sharda Devi all the appellants threatened PW-1 and PW-2-witnesses and other villagers gathered at the place of occurrence brandishing blood stained bankas, that if any body would come ahead to save the deceased, then they will face dire consequences, just like the deceased. Therefore, under fear PW-1, PW-2 and other villagers did not muster courage to save the deceased during the course of incident.

105. On the point of conduct and reaction of a witnesses PW-1 and PW-2 after seeing the incident of heinous crime, following exposition of law of Hon’ble Apex Court are relevant, which are as follows:-

In the case of Yakub Ismailbhai Patel v. State of Gujarat, (2004) 12 SCC 229 Hon’ble the Apex Court in paragraph nos. 33, 34 and 36 has held as under:-

33. He invited our attention to paras 20, 21 and 29 of the High Court’s order and paras 50-53 of the trial court’s order of PW 2 Akbar Khan @ Raju. This witness is an eyewitness to the incident. The two other eyewitnesses who were examined by the prosecution turned hostile during the trial and thus this witness was rendered in the position of being the sole eyewitness. We have perused the evidence of PW 2. It was given in his testimony that on the fateful day of the incident, he escorted the deceased to the railway office in order to enable him to place a sick note in the railway office. PW 2 has specifically stated that while he has present in the railway office, the appellant along with the co-accused threatened and attacked the deceased with sharp dangerous weapons on his neck. It is the version of PW 2 that on witnessing this ghastly attack, he ran away from the spot out of fear. He came back from the hiding after some time and saw the dead body of the deceased. While PW 2 was near the body, he has stated to have met PW 1. In fact, PW 1 who is also the complainant was accompanied by PW 2 to the police station for lodging of the complaint.

34. The testimony of this witness, in our opinion, proves and corroborates the presence of the complainant PW 1 and vice versa. PW 2 does not claim to have seen the entire attack but has categorically deposed about having seen the initial attack by the appellant and co-accused with sharp-edged weapons on a vital organ of the deceased, namely, the neck.

36. The learned counsel for the appellant has argued before this Court as well as the courts below that the conduct of this witness in not saving the life of his friend, the deceased, renders him an improbable witness. In our view, the act of this witness in running away to save his own life and not going forward to help the deceased at the time of the incident is a most probable and natural human conduct which most men faced in such situation would resort to. In our view, the conduct of PW 2 in not having the courage to stop three persons armed with deadly sharp-edged weapons is not and cannot be a circumstance or a ground to disbelieve his testimony particularly when the rest of his testimony is tested with cross-examination.

In the case of Main Pal v. State of Haryana, reported in (2004) 10 SCC 692 Hon’ble Supreme Court in paragraph nos. 10 and 11 has held as under:-

10. On a bare perusal of the trial court’s judgment one thing is patently noticeable. The trial court has merely referred to the arguments advanced and has then come to abrupt conclusions without even indicating any plausible or relevant reasons therefor. Merely coming to a conclusion without any objective analysis relating to acceptability or otherwise of the rival stands does not serve any useful purpose in adjudicating a case. The trial court was required to analyse the evidence, consider the submissions and then come to an independent decision after analysing the evidence, the submissions and the materials on record. Since the trial court had not pragmatically analysed the evidence, and had given abrupt conclusions, that itself made the judgment vulnerable. Further, several aspects which the trial court found to be of significance were really arrived at hypothetically and on surmises. Merely because the evidence of PW 2 shows that he acted in an unnatural manner, that per se would not be a determinative factor to throw out the otherwise cogent prosecution evidence. The High Court on the other hand has considered in great detail the evidence of the witnesses. It has come to a positive finding that PW 1 was in a position to identify the accused persons. Some of the pleas now advanced were also not taken up before the courts below, for example, non-examination of the pellets/wads by the Forensic Science Laboratory. On considering the evidence on record, pragmatically one thing is clear that the High Court after analysing the evidence in great detail, was justified in treating the trial court’s judgment to be practically unreasoned.

11. Though PWs 1 and 2 were related to the deceased, that does not in any manner affect the credibility of their evidence. When a person is shown to be the relative of an accused, it is open to the courts to critically analyse his evidence with caution and then come to a conclusion whether the same is credible and cogent. Though the conduct of PW 2 may appear to some to be somewhat unusual, as rightly noted by the High Court, every person cannot act or react in a particular or very same way and it would depend upon the mental set-up of the person concerned and the extent and nature of fear generated and consequently on the spot his reaction in a particular way has to be viewed on the totality of all such circumstances. The hypothetical discrepancy regarding the height from which the gun was shot is one aspect which needs to be noted, only to be rejected. If the eyewitnesses’ version, even though of the relatives, is found to be truthful and credible after deep scrutiny the opinionative evidence of the doctor cannot wipe out the effect of eyewitnesses’ evidence. The opinion of the doctor cannot have any binding force and cannot be said to be the last word on what he deposes or meant for implicit acceptance. On the other hand, his evidence is liable to be sifted, analysed and tested, in the same manner as that of any other witness, keeping in view only the fact that he has some experience and training in the nature of the functions discharged by him.

In the case of State of U.P. Vs. Devendra Singh reported in (2004) 10 SCC 616, Hon’ble Supreme Court in paragraph no. 7 has held as under:

7. As rightly noted by the trial court, the witness was a young lad and according to his testimony the accused was a hardened criminal with records of violence. It is his evidence that he was threatened by the accused, therefore, his silence in not telling others for some time, cannot, in the circumstances of the case, be held to be suspicious and unnatural. Further, the High Court erred in observing that he had stated during examination about his having not seen the occurrence and later on clarifying that he did so because of threats given by the accused. PW 4 nowhere stated of his having not seen the occurrence. The High Court also committed another error in holding that the witness refused to be cross-examined. This fact is also not borne out from the record.

106. 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 State of U.P. Vs. Hari Mohan, (2000) 8 SCC 598:2001 SCC (Cri) 49, the Hon’ble Apex Court in para-12 of the said judgment has observed as under:

12. Circumstance 6 was held proved which, according to the trial court, strengthened the conclusion regarding the guilt of accused Hari Mohan. Regarding Circumstance 7, it was held that the investigating officer had noted the existence of fresh mud plastering at the place of occurrence, obviously with the object of destroying the evidence in the form of bloodstains and other marks which could prove the killing of the deceased by a gunshot. Though Circumstance 8 was held proved, yet it was not relied, on account of the negligence of the investigating officer as he had failed to get the Chemical Examiner’s report about the origin and nature of the blood. In appeal the High Court, as noted earlier, has erroneously held that Roop Devi could have died by committing suicide. There was no evidence or any basis to return such finding by the High Court.

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 Amar Singh Vs. Balwinder Singh, (2003) 2 SCC 518:2003 SCC (Cri) 641, the Hon’ble Apex Court in para-15 has observed as follows:

15.Coming to the last point regarding certain omissions in DDR, it has come in evidence that on the basis of the statement of PW 4 Amar Singh, which was recorded by PW 14 Sardara Singh, SI in the hospital, a formal FIR was recorded at the police station at 9.20 p.m. In accordance with Section 155 CrPC the contents of the FIR were also entered in DDR, which contained the names of the witnesses, weapons of offence and place of occurrence and it was not very necessary to mention them separately all over again. It is not the case of the defence that the names of the accused were not mentioned in DDR. We fail to understand as to how it was necessary for the investigation officer to take in his possession the wire gauze of the window from where A-1 is alleged to have fired. The wire gauze had absolutely no bearing on the prosecution case and the investigating officer was not supposed to cut and take out the same from the window where it was fixed. It would have been certainly better if the investigating agency had sent the firearms and the empties to the Forensic Science Laboratory for comparison. However, the report of the ballistic expert would in any case be in the nature of an expert opinion and the same is not conclusive. The failure of the investigating officer in sending the firearms and the empties for comparison cannot completely throw out the prosecution case when the same is fully established from the testimony of eyewitnesses whose presence on the spot cannot be doubted as they all received gunshot injuries in the incident. In Karnel Singh v. State of M.P. [(1995) 5 SCC 518 : 1995 SCC (Cri) 977] it was held that in cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. In Paras Yadav v. State of Bihar[(1999) 2 SCC 126 : 1999 SCC (Cri) 104] while commenting upon certain omissions of the investigating agency, it was held that it may be that such lapse is committed designedly or because of negligence and hence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. Similar view was taken in Ram Bihari Yadav v. State of Bihar [(1998) 4 SCC 517 : 1998 SCC (Cri) 1085] when this Court observed that in such cases the story of the prosecution will have to be examined dehors such omissions and contaminated conduct of the officials, otherwise, the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law-enforcing agency but also in the administration of justice. In our opinion the circumstances relied upon by the High Court in holding that the investigation was tainted are not of any substance on which such an inference could be drawn and in a case like the present one where the prosecution case is fully established by the direct testimony of the eyewitnesses, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief.

The Hon’ble Apex Court in the case of U.P. Vs. Harban Sahai, (1998) 6 SCC 50:1998 SCC (Cri) 1412 in its para-11 has observed as under:

11.The third reasoning of the High Court is that the bloodstained earth collected by the Investigating Officer from the place of occurrence was not forwarded to the Chemical Examiner to test the origin of blood. Such a reasoning is too tenuous and even if such contention was advanced by the defence, the High Court need not have taken any serious heed to it. Omission to send the earth collected from the place of occurrence for chemical examination has not vitiated the investigation to any extent. We disapprove the aforesaid reasoning of the High Court.

In the case of Gajjan Singh v. State of Punjab, (1999) 1 SCC 233: 1998 SCC (Cri) 1603, the Hon’ble Apex Court in paras-2 and 3 has observed as under:

2. Both the courts below have accepted the evidence of eyewitnesses PWs 5, 6 and 9 after careful scrutiny thereof. It was however submitted by the learned counsel for the appellants that as the eyewitnesses were interested witnesses and there were material inconsistencies between the evidence of PWs 5 and 6 on the one hand and PW 9 on the other hand, their evidence should not have been accepted. He also submitted that though the guns stated to have been used by the two appellants were seized by the police and forwarded to the ballistic expert for examination, no report of the ballistic expert was produced to show whether they were used or not. He also submitted that the circumstances that both the gun injuries on the person of the deceased were possible by one shot, that there were no pellet marks on the walls or other parts of the Haveli and no blood was found on the ground inside the Haveli create a doubt regarding the manner in which the incident had really happened.

3. One of the inconsistencies pointed out by the learned counsel is with respect to the nature of weapons which the two co-accused carried with them. PWs 5 and 6 have stated that they were carrying guns whereas PW 9 has stated that one of them was carrying a gun and the other was having a dang (a thick stick). The other inconsistency pointed out is regarding the part of the body on which the shot fired by Ratan Singh had caused injuries to the deceased. In fact, this is not an inconsistency at all. PW 5 has not stated on which side of the chest the injuries were caused. PWs 6 and 9 have stated that the shot had hit the deceased on the left side of his chest. These are the only inconsistencies in the evidence of the eyewitnesses. One more inconsistency pointed out by the learned counsel is between the evidence of PW 9 and the investigating officer. PW 9 has stated that he had seen one pellet in the mouth of the deceased. The investigating officer has denied to have seen any pellet in the mouth of the deceased. Blood had collected in the mouth of the deceased. It is quite possible that PW 9 mistook something in the mouth of the deceased as a pellet or the investigating officer missed to notice it. It is a minor inconsistency and can have no effect on the credibility of the eyewitnesses.

Hon’ble Supreme Court in the case of Gopal Vs. State of U.P., 1999 SCC OnLine All 1339:1999 All LJ 1068:(1999) 39 ACC 98:1999 Cri LJ 2501 in paras 22 and 26 has observed as under:

22. Place of occurrence, time of occurrence, weapon of assault and participation of accused persons, all have been fully established. Both the witnesses are fully believable witnesses and they have proved the case to the hilt. Some laches or mischief on the part of the I.O. is no ground to discard the statement of the witnesses which has been fully corroborated by the medical evidence.

26. It was argued that the copy of the G.D. entry No. 2, at 1 a.m. lodged by Amrit Lal Maurya has not been produced. It is true that the paper has been weeded out. But there is nothing on record to show that this entry of the G.D. was the FIR. Had it been a FIR chick report might have been prepared on this basis. Amrit Lal Maurya has not been examined. He could have been summoned by the accused as defence witness but mere non examination of Amrit Lal Maurya and non production of G.D. entry will not show that the FIR is ante timed. Emphasis was Laid on the citation made in the FIR ”Muljimon ki talash police kar rahi hai’ will not in any way help the accused persons because information had already been given at the police station at 1 p.m. One police and one homeguard was already there FIR is not a substantive piece of evidence. By this alone the entire prosecution case cannot be rejected. This is only to confront the maker of it. It will only put the machinery of law into motion. It is only corroborative piece of evidence. In no way it can be said that the FIR is false. In this particular case, learned brother Sri B.K. Sharma, J. has also mentioned that the Government Advocate could not give explanation as to why the information given by Amrit Lal Maurya — Homeguard was not recorded in the chick register and why it was recorded in the G.D. The simple reply is that creptive information by RT set, information by telephone and the information by only stating that some incident has occurred is no FIR in the eye of law and if Amrit Lal Maurya — Homeguard had only informed that murders have been committed without telling other details and without saying that he was an eye-witness of the occurrence it was not necessary for the police to have recorded his information in the chik report, to be used as the FIR. At page 22 of his judgment, brother Sri B.K. Sharma, J. himself has observed that the Investigating Officer did not record his arrival etc. in the G.D. The I.O. has given conflicting statement. For that the I.O. is to be blamed and the entire prosecution story is not to be thrown away. In the Chitthi Majroobi by Rakesh Kumar crime number etc. has not been given, for the simple reason that he was sent from the police station at 1.30 p.m. to Swarup Rani Nehru Hospital, Allahabad, while information given by Amrit Lal Maurya was not treated to be an FIR and looking to the urgency that like other four persons who had only one injury and had died, the police might have thought that without going into other formalities at least one injured may be saved, and he should be immediately sent to the district hospital. That may be only a clerical lapse on the part of the police authorities. By no stretch of imagination it can be said that the FIR was lodged after 9.30 a.m. of the other day. Learned brother Sri B.K. Sharma, J. has thrown the entire prosecution story only disbelieving the investigation of the case and the I.O. which, in our opinion, is not sufficient to discard the entire prosecution story. There may be ignorance, laches and loss of patience looking the four murders and even the mischief by the I.O., as discussed above.

In the case of Prithvi (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 Allarakha 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.

In the case of Raghuraj Singh and Ors. Vs State of U.P reported in 1996(20) ACR(R) 409 a Division Bench of this Court at Allahabad in paragraph no. 12 and 19 has held as under:-

12.the learned Counsel for the Appellants,

pointed out to the defects of the prosecution and investigation done in the case. He submitted that the blood-stained soil was not sent for opinion of the Chemical Analyst which admittedly was taken by the I.O. Similarly, the blood-stained knife said to have been left at the place of occurrence was recovered by the I.O. It was neither sent for opinion by the Chemical Examiner nor the knife was shown to the witness P.W. 4 Dr. Vijal Pal Singh who had conducted the post-mortem examination. The guns of Raghunath Singh and Raghu Raj Singh, accused persons, were not seized during the investigation nor the empty cartridges recovered at the place of incident was sent to the Ballistic Expert to ascertain that the empty cartridges recovered were fired from the gun of the accused Raghuraj Singh and Raghunath Singh. He also pointed out that pair of shoes of the accused person, as stated by the witness, was not proved to be of the present Appellants or Raghunath Singh, co-accused deceased. It was necessary for the prosecution to have proved that the shoes recovered at the place belong to some of the accused persons which could have fixed clinchingly that a particular accused person was present at the time when the incident took place. He also submitted that no application was moved by the prosecution to ask any of the accused persons to wear the shoe to show that they belong to him.

19. The learned Counsel for the Appellants submitted that the investigation in this case was defective. The points of defect in the investigation are narrated in the earlier part of the judgment itself. He submitted that on account of the non-seizure of the guns of the accused persons, said to have been used in the commission of the offence, not getting the opinion of the Ballistic Expert in respect to the cartridges found at the spot which could have been obtained from the Ballistic Expert after getting the opinion about the guns of the accused persons had it been seized. The learned Counsel further submitted that the blood-stained soil recovered from the place of occurrence was not sent to the Serologist for his opinion that it was the human blood. The failure of the prosecution to adduce evidence and investigate on the aforementioned points, in our opinion, does not constitute any ground for disbelieving the eye-witnesses who are not simply eye-witnesses but also injured witnesses. Had the prosecution examined the blood-stained soil and proved it to be stained with human blood by the Serologist and getting an opinion from the Ballistic Expert to show that the empty cartridges recovered at the place were used and fired with guns of the accused persons, had the gun of the accused Appellants seized and recovered. Had the prosecution investigated the case and obtained Ballistic Expert opinion and opinion of the Serologist that the incident did take place at the place as set up by the prosecution.If that evidence would have been procured and adduced in the case, that would have further strengthened the prosecution case. In the absence of those evidence, the prosecution case is proved by other injured witnesses and the evidence of the Doctor who conducted the postmortem examination and he proved the injuries of the injured witnesses. Their presence have been proved at the place of incident at the relevant time. The omission of non-investigation of the case on the lines suggested would not sufficient to discard the prosecution evidence and the witnesses.

In the case of Naurangi Vs. State of U.P., reported in 1996 CrLJ 81, a Division Bench of this Court at Allahabad in para 7,8 and 16 has held as under:

7. We have heard the learned counsel for the appellant and the learned Additional Govt. Advocate and in our opinion, there is no force in this appeal. The motive of the murder has been clearly established by the prosecution. The prosecution witnesses have stated that the accused had encroached upon a piece of land which was in the possession of the complainant. The appellant had dug a foundation and were, on the date of the incident, putting layers of bricks therein. It is further stated by the prosecution witnesses that, on being asked to desist from such encroachment, the appellant fired at Pati Ram and his nephew Maharaj Singh. The investigating Officer, who visited the site, found that foundation had been dug at the place. The layers of bricks had been put in and some bricks were also lying on the site. It appears from the statements of the prosecution witnesses that the appellant did not relish this interference by Maharaj Singh and after fetching the gun from the house, he fired at Pati Ram who was coming towards the site on hearing the shouts of Maharaj Singh and also hit Maharaj Singh who, by then, had managed to get his father’s licensed gun and had come out in the open space.

8. So as far the actual incident is concerned the prosecution has examined four eye witnesses, namely, PW 1 Mani Ram, PW 5 Maharaj Singh, PW 6 Chob Singh and PW 7 Mohar Singh. All these witnesses made substantially consistent in regard to the incident and place of occurrence. According to PW 1 Mani Ram he was working at the ‘Rabat’ along with his brother Pati Ram deceased, on 14-10-1979 at about 12 noon when he heard the shouts of Maharaj Singh and other children. On hearing these shouts he along with Pati Ram rushed to the place from where the shouts were coming. When he reached the field of Madho Singh the appellant came with a gun and fired from the place where the Abadi of Suraj Pal, Chak road and field of Madho Singh meet and that Naurangi Lal fired twice hitting Pati Ram as a result of which he fell down. This statement is corroborated by PW 6 Chob Singh and PW 7 Mohar Singh. The Investigating Officer also found blood stains at that place where Pati Ram fell down. There appears to be no sufficient reason for doubting the statements made by these witnesses.

16 . We proceed to do so. We have already indicated above that the eye witnesses namely PW 1 Mani Ram PW 6 Chob Singh and PW 7 Mohar Singh have made substantially consistent statement in regard to the incident and place of occurrence. PW 5, Maharaj Singh is not an eye witness in respect of deceased Patiram and in this regard he has merely stated that he saw his dead body lying in the open field. The incident took place in an open field in broad day light at about 12 noon. The Investigating Officer found blood at the place where Patiram was shot. Merely because the blood stained soil was not sent for chemical examination, the prosecution version cannot be said to be doubtful (See Ramesh Chandra v. State, : 1992CriLJ3584 . The medical evidence, namely, the post mortem report of deceased Patiram and injury report of Maharaj Singh supports the prosecution version.

In the case of Surendra Paswan Vs. State of Jharkhand, reported in 2004(48) ACC 279, 290 SC, the Hon’ble Apex Court in para 4, 8 and 11 has observed as under:

4. In response, learned counsel for the State submitted, that three eye-witnesses specifically deposed regarding the place of occurrence, the manner of assault and gave detailed description of the entire scenario. The trial Court and the High Court have analysed their evidence and found to be credible, cogent and trustworthy. That being the position, there is no scope for interference in this appeal. Further, there was a confusion between bullet and pellet which has been clarified by the investigating officer. Merely because the bullet which was extracted by the doctor was not sent for chemical examination, it would not be a factor which would outweigh the testimonial worth of the eye-witnesses. The injuries have not been established by the accused to have been sustained in course of the incident as per the prosecution version. There was not even any suggestion about the defence version to any of the prosecution witnesses and for the first time while giving statement under Section 313 Cr.P.C. the plea has been taken.

8. So far as the non seizure of blood from the cot is concerned, the investigating officer has stated that he found blood stained soil at the place of occurrence and had seized it. Merely because it was not sent for chemical examination, it may be a defect in the investigation but does not corrode the evidentiary value of the eye-witnesses. The investigating officer did not find presence of blood on the cot. The trial Court and the High Court have analysed this aspect. It has been found that after receiving the bullet injury the deceased leaned forward and whatever blood was profusing spilled over to the soil.

11. So far as the confusion relating to bullet and pellet is concerned, the same has been clarified by the doctor’s evidence. In his examination the doctor (PW-3) has categorically stated that there was only one injury on the body of the deceased and no other injury was found anywhere on the person of the deceased. Therefore, the question of the deceased having received any injury by a pellet stated to have been recovered by the investigating officer is not established. The investigating officer has clarified that the bullet embodied was given to the police officials by the doctor which was initially not produced as it was in the Malkhana but subsequently the witness was recalled and it was produced in Court.

In the case of Sewak Vs. State of U.P. reported in 1995 ALJ 987 Allahabad, the Allahabad High Court has held in Para 8 and 11 as under:

8. It has been contended on behalf of the appellant that the rape was not Committed by the appellant on the prosecutrix but that it was one Hanif who was working in the Forest Department who had actually committed rape on the prosecutrix but in order to save himself and his service, he maneuvered to get involved the appellant for the commission of rape. It has also been urged on behalf of the appellant that the manner in which the rape is said to have been committed by the appellant appears much too improbable, inasmuch as the appellant would not succeed in accomplishing the act with one of his hands placed on the mouth of the prosecutrix. It was further contended that the medical evidence does not support the commission of rape on the prosecutrix and that the spots of semen found on the Petticoat and Dhotti of the prosecutrix were not sent for chemical examination. The learned counsel for the accused-appellant, therefore, strenuously contended that the prosecution has not succeeded in establishing its case against the appellant beyond reasonable doubt. Sentence of fine imposed on the appellant, was also said to be severe.

11. It has been further contended that the stains of semen which are said to have been found on the petticoat of the prosecutrix were not sent for chemical examination. The learned Additional Sessions Judge has rightly commented on this lapse of the investigating agency and has further rightly observed that this lapse of the investigating agency would not furnish the sole ground for rejecting the prosecution case. I agree with the learned Additional Sessions Judge on this score.

It is relevant to mention here that site plan prepared by PW-4 Investigating Officer is not a substantive piece of evidence as held by Hon’ble the Supreme Court in the case of Jagdish Narain Anr vs State Of U.P reported in JT 1996 (3) 89, Hon’ble Apex Court in paragraph no. 9 has held as under:-

9. In responding to the next criticism of the trial court regarding the failure of the Investigating Officer to indicate in the site plan prepared by him the spot wherefrom the shots were allegedly fired by the appellants and its resultant effect upon the investigation itself, the High Court observed that such failure did not detract from the truthfulness of the eyewitnesses and only amounted to an omission on the part of the Investigating Officer. In our opinion neither the criticism of the trial court nor the reason ascribed by the High Court in its rebuttal can be legally sustained. While preparing a site plan an Investigating Police Officer can certainly record what he sees and observes, for that will be direct and substantive evidence being based on his personal knowledge; but as, he was not obviously present when the incident took place, he has to derive knowledge as to when, where and how it happened from persons who had seen the incident. When a witness testifies about what he heard from somebody else it is ordinarily not admissible in evidence being hearsay, but if the person from whom he heard is examined to give direct evidence within the meaning of Section 60 of the Evidence Act, 1872 the former’s evidence would be admissible to corroborate the latter in accordance with Section 157 CrPC (sicEvidence Act). However such a statement made to a police officer, when he is investigating into an offence in accordance with Chapter XII of the Code of Criminal Procedure cannot be used to even corroborate the maker thereof in view of the embargo in Section 162(1) CrPC appearing in that chapter and can be used only to contradict him (the maker) in accordance with the proviso thereof, except in those cases where sub-section (2) of the section applies. That necessarily means that if in the site plan PW 6 had even shown the place from which the shots were allegedly fired after ascertaining the same from the eyewitnesses it could not have been admitted in evidence being hit by Section 162 CrPC. The law on this subject has been succinctly laid down by a three-Judge Bench of this Court inTori Singhv.State of U.P.[AIR 1962 SC 399 : (1962) 1 Cri LJ 469 : (1962) 3 SCR 580]. In that case it was contended on behalf of the appellant therein that if one looked at the sketch map, on which the place where the deceased was said to have been hit was marked, and compared it with the statements of the prosecution witnesses and the medical evidence, it would be extremely improbable for the injury which was received by the deceased to have been caused on that part of the body where it had been actually caused if the deceased was at the place marked on the map. In repelling the above contention this Court observed, inter alia:

“… the mark on the sketch-map was put by the Sub-Inspector who was obviously not an eyewitness to the incident. He could only have put it there after taking the statements of the eyewitnesses. The marking of the spot on the sketch-map is really bringing on record the conclusion of the Sub-Inspector on the basis of the statements made by the witnesses to him. This in our opinion would not be admissible in view of the provisions of Section 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-Inspector that the eyewitnesses told him that the deceased was at such and such place at the time when he was hit.The sketch-map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot; but any mark put on the sketch-map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of Section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation.”

In the case of State Of U.P vs Babu And Ors reported in 2003 (11) SCC 280, Hon’ble Supreme Court in paragraph no. 5 has held as under:-

5. A bare perusal of the High Court’s Judgment goes to show that its approach was rather casual and no effort was made to analyse the evidence. It is to be noted that the High Court did not examine the evidence of PWs. 1 and 3 with the required care. Great emphasis was laid by the High Court on the fact that in the site plan place where gaslight was found had not been indicated. The site plan is not substantive evidence. The High Court seems to have proceeded on the basis that omission to indicate the location gaslight in the site plan was fatal. This Court in Shakti Patra and another v. State of West Bengal 1981CriLJ645 held that where prosecution witness testified that he had identified the accused in the light of the torch, held by him, the presence of torch would not be said to be not proved on the ground that there was no mention of the torch in the FIR or in the statement of the witness before the police, when there was testimony of other witnesses that when they reached the spot they found the torch burning. To similar effect is the conclusion in Aher Pitha Vajshi and Ors. v. State of Gujarat 1983 CriLJ 1049. It would be proper to take note of what was stated by this Court in George and Ors. v. State of Kerala and Anr. 1998 CriLJ 2034 regarding statements contained in an inquest report. The statements contained in an inquest report, to the extent they relate to what the Investigation Officer saw and found are admissible but any statement made therein on the basis of what he heard from others, would be hit by Section 162 of Code of Criminal Procedure, 1973 (in short ‘Cr. P.C.’). The position is no different in case of site plan.

107. The Investigating Officer Station House Officer Jawahar Lal Yadav conducted investigation of this crime and made some omissions and faults during the course of investigation, as pointed out by learned counsel for the appellant to us. These omissions and faults cannot affect adversely the prosecution version. It may be fault of the Investigating Officer PW-4 and the then Station House Officer Jawahar Lal Yadav that they did not seize bankas used by appellants Rayees, Mubarak and Shah Alam and only discovered banka used by appellant Tasauvar.

108. Learned counsel for the appellants has lastly argued that Pw-4 and Station House Officer Jawahar Lal Yadav has not associated independent witnesses while they discovered banka on pointing out of appellant Tasauvar and this discovery was made from open place pond.

109. The following exposition of law on the point of discovery under Section 27 Indian Evidence Act is relevant:

In the case of State of Maharashtra Vs. Bharat Fakira Dhiwar,reported in 2002 SCC (Cr) 217, theHon’ble Supreme court relying on exposition of law in the case of State of H.P. Vs. Jeet Singh:(1999) 4 SCC 370 has quoted paras. 26 and 27 and these paras have been quoted by Hon’ble Supreme Court regarding discovery of incriminating article/substance from open place, which are as follows :

“26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is ”open or accessible to others’. It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.

27. It is now well settled that the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it. The said ratio has received unreserved approval of this Court in successive decisions. (Jaffar Hussain Dastagir v. State of Maharashtra [(1969) 2 SCC 872] , K. Chinnaswamy Reddy v. State of A.P. [AIR 1962 SC 1788 : (1963) 1 Cri LJ 8] , Earabhadrappa v. State of Karnataka [(1983) 2 SCC 330 : 1983 SCC (Cri) 447] , Shamshul Kanwar v. State of U.P. [(1995) 4 SCC 430 : 1995 SCC (Cri) 753] , State of Rajasthan v. Bhup Singh[(1997) 10 SCC 675 : 1997 SCC (Cri) 1032] .”

In the case of State (NCT of Delhi) Vs. Navjot Sandhu :2005 Cri.L.J. 3950 the Hon’ble Apex Court has observed in para 13 and 14 as under:

13. ……….It is explicitly clarified in the Section that there is no taboo against receiving such information in evidence merely because it amounts to a confession. At the same time, the last clause makes it clear that it is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished. Thus, the information conveyed in the statement to police ought to be dissected if necessary so as to admit only the information of the nature mentioned in the Section. The rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused.

……..We are of the view that Kotayya’s case is an authority for the proposition that ‘discovery of fact’ cannot be equated to the object produced or found. It is more than that. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place.

……..It is clear therefore that what should be discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the ’cause and effect’.

………………….As explained by this Court as well as by the Privy Council, normally Section 27 is brought into operation where a person in police custody produces from some place of concealment some object said to be connected with the crime of which the informant is the accused. the concealment of the fact which is not known to the police is what is discovered by the information and lends assurance that the information was true. ………………….What makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the information was furnished to them by the accused. ………..

………..Now it is fairly settled that the expression “fact discovered” includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this (see Palukuri Kotayya v. Emperor; Udai Bhan v. State of Uttar Pradesh)”

……………………….. The statement of law in Kotayya that the fact discovered “embraces the place from which the object is produced and the knowledge of the accused as to it and the information given must relate distinctly to this fact” was reiterated without any gloss or qualification.

…………… There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the Police Officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27. It could very well be that on the basis of information furnished by the accused, the Investigating Officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the Investigating Officer will be discovering a fact viz., the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the Police Officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Section 27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the Police Officer chooses not to take the informant- accused to the spot, it will have no bearing on the point of admissibility under Section 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence.

14………. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any breakalmost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficultiesin placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the stand point of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr. Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence. With these prefaratory remarks, we have to refer to two decisions of this Court which are relied upon by the learned defence counsel. …………………

In the case of State Govt. of NCT of Delhi Vs. Sunil: (2001) 1 SCC 652 in paras-19, 20, 21 and 22 the Hon’ble Apex Court has observed as under:

19. In this context we may point out that there is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. Section 100(5) of the Code requires that such search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found, shall be prepared by such officer or other person “and signed by such witnesses”. It must be remembered that a search is made to find out a thing or document about which the searching officer has no prior idea as to where the thing or document is kept. He prowls for it either on reasonable suspicion or on some guesswork that it could possibly be ferreted out in such prowling. It is a stark reality that during searches the team which conducts the search would have to meddle with lots of other articles and documents also and in such process many such articles or documents are likely to be displaced or even strewn helter-skelter. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. This Court has indicated the difference between the two processes in the Transport Commr., A.P., Hyderabadv. S. Sardar Ali [(1983) 4 SCC 245 : 1983 SCC (Cri) 827 : AIR 1983 SC 1225] . Following observations of Chinnappa Reddy, J. can be used to support the said legal proposition: (SCC p. 254, para 8)

“Section 100 of the Criminal Procedure Code to which reference was made by the counsel deals with searches and not seizures. In the very nature of things when property is seized and not recovered during a search, it is not possible to comply with the provisions of sub-sections (4) and (5) of Section 100 of the Criminal Procedure Code. In the case of a seizure under the Motor Vehicles Act, there is no provision for preparing a list of the things seized in the course of the seizure for theobvious reason that all those things are seized not separately but as part of the vehicle itself.”

20. Hence it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by the independent witnesses. Of course, if any such statement leads to recovery of any article it is open to the investigating officer to take the signature of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.

21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.

22. In this case, the mere absence of independent witness when PW 17 recorded the statement of A-2 Ramesh and the knickers were recovered pursuant to the said statement, is not a sufficient ground to discard the evidence under Section 27 of the Evidence Act.

In the case of Sanjay Vs. State(NCT of Delhi): (2001) 3 SCC 190 in paras-17, 18, 20 and 27 the Hon’ble Apex Court has observed as under:

17. Section 25 mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly Section 26 provides that confession by the accused person while in custody of police cannot be proved against him. However, to the aforesaid rule of Sections 25 and 26 of the Evidence Act, there is an exception carved out by Section 27 providing that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 27 is a proviso to Sections 25 and 26. Such statementsare generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence.

18. As the section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27.

20. In State of U.P. Vs Deoman Upadhyaya: [AIR 1960 SC 1125] this Court held that Sections 25 and 26 were manifestly intended to hit an evil, viz., to guard against the danger of receiving in evidence testimony from tainted sources about statements made by persons accused of offences. These sections form part of a statute which codifies the law relating to the relevancy of evidence and proof of facts in judicial proceedings. The State is as much concerned with punishing offenders who may be proved guilty of committing of offences as it is concerned with protecting persons who may be compelled to give confessional statements. Section 27 renders information admissible on the ground that the discovery of a fact pursuant to a statement made by a person in custody is a guarantee of truth of the statement made by him and the legislature has chosen to make on that ground an exception to the rule prohibiting proof of such statement. The principle of admitting evidence of statements made by a person giving information leading to the discovery of facts which may be used in evidence against him is manifestly reasonable. In that case the High Court had acquitted the accused on the ground that his statement which led to the recovery of gandasa, the weapon of offence, was inadmissible. The accused Deoman had made a statement to hand over the gandasa which he had stated to have thrown into a tank and got it recovered. The trial court convicted the accused for the offence of murder. The Full Bench of the High Court held that Section 27 of the Evidence Act which allegedly created an unjustifiable discrimination between persons in custody and persons out of custody offending Article 14 of the Constitution, was unenforceable. After the opinion of the Full Bench a Division Bench of the Court excluded from consideration the statement made by the accused in the presence of the police officer and held that the story of the accused having borrowed a gandasa on the day of occurrence was unreliable. The accused was acquitted but at the instance of the State of U.P., the High Court granted a certificate to file the appeal in this Court. This Court did not agree with the position of law settled by the High Court and decided to proceed to review the evidence in the light of that statement, insofar as it distinctly related to the fact thereby discovery being admissible. Dealing with the conclusions arrived at by the High Court and on the facts of the case, this Court observed:

“The High Court was of the view that the mere fetching of the gandasa from its hiding place did not establish that Deoman himself had put it in the tank, and an inference could legitimately be raised that somebody else had placed it in the tank, or that Deoman had seen someone placing that gandasa in the tank or that someone had told him about the gandasa lying in the tank. But for reasons already set out the information given by Deoman is provable insofar as it distinctly relates to the fact thereby discovered: and his statement that he had thrown the gandasa in the tank is information which distinctly relates to the discovery of the gandasa. Discovery from its place of hiding, at the instance of Deoman of the gandasa stained with human blood in the light of the admission by him that he had thrown it in the tank in which it was found therefore acquires significance, and destroys the theories suggested by the High Court.”

27. Raising objections to the words “after commission of the offence” appearing in the disclosure statement of Vinod and “looted property” in the statement of Nawabuddin, the learned counsel for the appellants submitted that the whole of the statement was hit by Sections 24 to 26 of the Evidence Act and Section 162 of the Code of Criminal Procedure. We are not inclined to accept such a general statement. Even if the objectionable words (bracketed above) are deleted, the appellants cannot be conferred with any benefit which would entitle them to acquittal. It is not disputed that consequent upon the disclosure statements made, the articles mentioned therein were actually recovered at their instance from the place where such articles had been hidden by them. The mere use of the words “looted property” in relation to the articles seized which were found to have been taken away after the commission of the crime of murder and robbery would not change the nature of the statement. The words do not implicate the accused with the commission of the crime but refer only to the nature of the property hidden by them which were ultimately recovered consequent upon their disclosure statements. Hypertechnical approach, as projected by the defence counsel, would defeat the ends of justice and have disastrous effect. The property recovered consequent upon the making of the disclosure statements has been proved to be the property of the deceased, stolen after the commission of the offence of robbery and murder.

The Hon’ble Supreme Court in the case of State of M.P. Vs. Paltan Mallah, (2005) 3 SCC 169 : 2005 SCC (Cri.) 674in the following paras has held as under:

28. In India, the evidence obtained under illegal search is not completely excluded unless it has caused serious prejudice to the accused. The discretion has always been given to the court to decide whether such evidence is to be accepted or not. In Radhakishan v. State of U.P. [1963 Supp (1) SCR 408 : AIR 1963 SC 822 : (1963) 1 Cri LJ 809] speaking for a three-Judge Bench, Justice Mudholkar held: (SCR pp. 411-12)

“So far as the alleged illegality of the search is concerned it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provisions of Sections 103 and 165 of the Code of Criminal Procedure are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues.”

31. The provisions contained in the Criminal Procedure Code relating to search and seizure are safeguards to prevent the clandestine use of powers conferred on the law-enforcing authorities. They are powers incidental to the conduct of investigation and the legislature has imposed certain conditions for carrying out search and seizure in the Code. The courts have interpreted these provisions in different ways. One view is that disregard to the provisions of the Code of Criminal Procedure relating to the powers of search and seizures amounts to a default in doing what is enjoined by law and in order to prevent default in compliance with the provisions of the Code, the courts should take strict view of the matter and reject the evidence adduced on the basis of such illegal search. But often this creates a serious difficulty in the matter of proof. Though different High Courts have taken different views, the decisions of this Court quoted above have settled the position and we have followed the English decisions in this regard. In the Privy Council decision in Kuruma v. R. [1955 AC 197 : (1955) 1 All ER 236 : (1955) 2 WLR 223 (PC)] Lord Goddard, C.J. was of the firm view that in a criminal case the Judge always has a discretion to disallow evidence if the strict rule of admissibility would operate unfairly against an accused. The trend of judicial pronouncements is to the effect that evidence illegally or improperly obtained is not per se inadmissible. If the violation committed by the investigating authority is of serious nature and causes serious prejudice to the accused, such evidence may be excluded.

32. It may also be noticed that the Law Commission of India in the 94th Report suggested the incorporation of a provision in Chapter 10 of the Indian Evidence Act, 1872. The suggestion was to the effect that in a criminal proceeding, where it is shown that anything in evidence was obtained by illegal or improper means, the court, after considering the nature of the illegality or impropriety and all the circumstances under which the thing tendered was obtained, may refuse to admit it in evidence, if the court is of the opinion that because of the nature of the illegal or improper means by which it was obtained, its admission would tend to bring the administration of justice into disrepute. The Commission also quoted the various circumstances surrounding the proceedings that may entail the exclusion of such evidence but the suggestion of the Law Commission was not accepted and no legislation was effected in line with the recommendations of the 94th Report of the Law Commission and the position continues to be that the evidence obtained under illegal search could still be admitted in evidence provided there is no express statutory violation or violation of the constitutional provisions. For example, if certain specific enactments are made and the search or seizure is to be effected in accordance with the provisions of such enactment, the authorities shall comply with such provisions. The general provisions given in the Criminal Procedure Code are to be treated as guidelines and if at all there is any minor violation, still the court can accept the evidence and the courts have got discretionary power to either accept it or reject it.

33. In the instant case, we do not think that the court has violated any such provision merely because the witness was not from the same locality and his evidence cannot be rejected.

The Hon’ble Supreme Court in the case of State of Rajasthan v. Teja Ram : (1999) 3 SCC 507in the following parashas held as under:

25. Failure of the serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it happens, either because the stain is too insufficient or due to haematological changes and plasmatic coagulation that a serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such guesswork that blood on the other axe would have been animal blood is unrealistic and far-fetched in the broad spectrum of this case. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused.

27. We are unable to find out from the aforesaid decisions any legal ratio that in all cases where there was failure of detecting the origin of the blood, the circumstance arising from recovery of the weapon would stand relegated to disutility. The observations in the aforesaid cases were made on the fact situation existing therein. They cannot be imported to a case where the facts are materially different.

28. Learned counsel in this context invited our attention to one step which PW 21 (investigating officer) had adopted while preparing the seizure-memos Ex. P-3 and Ex. P-4. He obtained the signature of the accused concerned in both the seizure-memos. According to the learned counsel, the aforesaid action of the investigating officer was illegal and it has vitiated the seizure. He invited our attention to Section 162(1) of the Code which prohibits collecting of signature of the person whose statement was reduced to writing during interrogation. The material words in the sub-section are these:

“162. (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it;”

No doubt the aforesaid prohibition is in peremptory terms. It is more a direction to the investigating officer than to the court because the policy underlying the rule is to keep witnesses free to testify in court unhampered by anything which the police claim to have elicited from them. (Tahsildar Singh v. State of U.P. [AIR 1959 SC 1012 : 1959 Cri LJ 1231] and Razik Ram v. Jaswant Singh Chouhan [(1975) 4 SCC 769 : AIR 1975 SC 667] .) But if any investigating officer, ignorant of the said provision, secures the signature of the person concerned in the statement, it does not mean that the witness’s testimony in the court would thereby become contaminated or vitiated. The court will only reassure the witness that he is not bound by such statement albeit his signature finding a place thereon.

29. That apart, the prohibition contained in sub-section (1) of Section 162 is not applicable to any proceedings made as per Section 27 of the Evidence Act, 1872. It is clearly provided in sub-section (2) of Section 162 which reads thus:

“Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.”

30. The resultant position is that the investigating officer is not obliged to obtain the signature of an accused in any statement attributed to him while preparing seizure-memo for the recovery of any article covered by Section 27 of the Evidence Act. But if any signature has been obtained by an investigating officer, there is nothing wrong or illegal about it. Hence, we cannot find any force in the contention of the learned counsel for the accused that the signatures of the accused in Exs. P-3 and P-4 seizure-memos would vitiate the evidence regarding recovery of the axes.

Hon’ble Apex Court after considering the various expositions of law regarding provisions of Section 27 in Natarajan Vs. Union Territory of Pondicherry, rep. by the Inspector of Police, Pondicherry, 2003 Cri. L.J. 2372 has held as follows:

57. The relevant observation by a Constitution Bench of the Supreme Court in State of U.P. v. Deoman Upadhayaya, (1961) 1 S.C.R. 14 at 26: A.I.R. 1960 S.C. 1125 which has been followed in A.I.R. 1980 S.C. 1632 is as follows:

“Counsel for the defence contended that in any event Deoman was not at the time when he made the statement attributed to him, accused of any offence and on that account also apart from the constitutional plea, the statement was not provable. This contention is unsound. The expression “accused of any offence” is descriptive of the person against whom evidence relating to information alleged to be given by him is made provable by Sec. 27 of the Evidence Act. It does not predicate a formal accusation against him at the time of making the statement sought to be proved, as a condition of its applicability.”

58. These decisions would clearly show that even though the accused was not formally arrested, once he appears before the police and offers to give information leading to the discovery of a fact, he must be deemed to have surrendered himself to the police and as such, in the said surrender, the information given by him is provable under Sec. 27 of the Evidence Act.

59. However, in this case, as indicated above, there is a clear evidence that P.W.21, the Inspector of Police got the information from his informant about the involvement of the accused Natarajan in this case and therefore, he arrested the suspect accused on the said information and brought him to the police station where he gave a voluntary confession which led to the recovery of the articles. As such, both the requirements are very much present in this case.

71. From the above observations, the following principles would emerge:

(1) Under Sec. 27, where the statement of the accused distinctly relates to the discovery it will be admissible whether it is confessional or not. Even when these words contained in the statement show some of the offences, the same would not prove the said offences for the reason after the articles have been recovered, the prosecution has still to show that the articles recovered are connected with the main crime.

(2) If any fact is discovered on a search made on the strength of any information from the accused, such a discovery is a guarantee that the information supplied by the accused is true.

(3) A fact can be discovered by the police pursuant to an information elicited from the accused if such disclosure was followed by one or more of a variety of causes. Recovery of an object is only one such cause? An object could also be a fact, but recovery of a fact cannot be equated with recovery of the object though the latter may help in the final shape of what exactly was the fact discovered pursuant to the information.

(4) The basic idea embedded in Sec. 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The “fact discovered” envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it.

(5) A fact should have been discovered in consequence to the information received from the accused. The fact so discovered should have been deposed to by the witness.

72. The decisions referred to above and the principles emerging from the decisions mentioned above would never indicate that the full details such as addresses, etc. of the places from where the objects are to be recovered have to be mentioned in the confession. The only requirement contemplated under Sec. 27 of the Evidence Act is that the discovery of the fact in pursuance of the information given by the accused would embrace the place from where to be recovered as well as the objects recovered.

110. As per facts narrated in Recovery Memo dated 21.12.2003 all the appellants were arrested by PW-4 and police party of the then Station House Officer Jawahar Lal Yadav and on the basis of information given by appellant Tasauvar, they discovered (material Ext 1) banka, which was hidden in water of pond which was situated in front of house of appellant Tasauvar. Moreover, this place was within personal knowledge of appellant Tasauvar, because he fetched banka from the water of the pond, where he threw it in water after the incident of murder of Smt. Sharda Devi.

111. PW-4 or the then Station House Officer Jawahar Lal Yadav did not enquire from the appellants Rayees, Mubarak and Shah Alam that where are bankas, used by them. Therefore, they did not try to seize these bankas used by the appellants Rayeesh, Shah Alam and Mubarak. The copy of recovery memo (Ext Ka-14) was given to the appellant Tasauvar. The appellants never challenged this recovery during the course of investigation.

112. Moreover, there is no legal requirement for discovery under Section 27 Indian Evidence Act that independent witnesses must associate the police party. The Investigating Officer may discover the incriminating article on the basis of information given by the accused and there is no necessity to bring the accused at the place of discovery as held by Hon’ble Supreme Court in State (NCT of Delhi) Vs. Navjot Sandhu (supra).

113. There is no substance in the argument of learned counsel for the appellants that independent witnesses were not associated by police party of PW-4, while they allegedly discovered banka on pointing out of appellant Tasauvar.

114. On the basis of above discussions and exposition of law propounded by Hon’ble Supreme court, impugned judgment of the trial Court can not be termed as perverse or against evidence available on record.

115. The impugned judgment and order dated 15.05.2006 delivered by the Court of Additional Sessions Judge, Court No.1, Lakhimpur Kheri is liable to be upheld and it is affirmed. These appeals lack merits and are liable to be dismissed.

116. All the appeals are dismissed accordingly.

117. Copy of judgment be sent to the Jail Superintendent concerned and trial Court for compliance.

118. Record of trial Court be sent back.

Order Date :- 23.4.2019

Arvind

 

 

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