Allahabad High Court
Abdul Karim vs State on 6 March, 2020
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 05.11.2019
Delivered on 06.03.2020
Criminal Appeal No. 579 of 1989
Abdul Karim ------ Accused-Appellant
Vs
State Of U.P. ------ Respondent
For Appellant : Shri Rajiv Lochan Shukla, Advocate
For Respondent/State : Shri J.K. Upadhyay, A.G.A.
With
Criminal Appeal No. 107 of 1989
Munnu Kurmi ------ Accused-Appellant
Vs
State Of U.P. -------- Respondent
For Appellant : Shri Pratap Bhan Umrao, Advocate
Shri Upendra Kumar Verma, Advocate
For Respondent/State : Shri J.K. Upadhyay, A.G.A.
With
Criminal Appeal No. 126 of 1989
Taj Babu @ Tar Babu ------ Accused-Appellant
Vs
State Of U.P. --------- Respondent
For Appellant : Shri Rajiv Lochan Shukla, Advocate
For Respondent/State : Shri J.K. Upadhyay, A.G.A.
Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Raj Beer Singh, J
1. These criminal appeals have been preferred against the impugned judgment and order dated 13.01.1989 passed by Sessions Judge, Fatehpur in S.T. No. 297 of 1987 (State vs. Abdul Karim & Two Others), Police Station Bindki, District Fatehpur, whereby accused-appellant Abdul Karim has been convicted under Section 302 of Indian Penal Code (hereinafter referred to as 'I.P.C') and accused-appellants Munnu Kurmi and Taj Babu alias Tar Babu have been convicted under Section 302/34 of IPC and all the accused-appellants were sentenced to undergo imprisonment for life.
2. Prosecution version is that on 31.10.1986 complainant/PW-1 Nizamuddin has filed a written complaint before the police, alleging that on 31.10.1986, his brother Babu Khan (deceased) was returning from market to village and as he reached near culvert of village, accused Karim, Tar Babu and Munnu, who have waylaid there, started assaulting Babu Khan with clubs and knife. Babu Khan started running raising alarm and hearing cries of Babu Khan, one Jahur, complainant's cousin Kallu and complainant ran towards him and challenged accused persons, but accused persons Karim, Tar Babu and Munnu overpowered Babu Khan and fell him down in the field of Rampal Dhobi. Accused-appellant Munnu caught feet of Babu Khan, accused-appellant Tar Babu caught his hand and accused-appellant Karim managed to sit at the chest of deceased Babu Khan and inflicted knife blows at his neck. By the time complainant and above-stated persons reached near spot, all the three accused persons ran away towards eastern side. Complainant and his companions tried to chase them, but in vain. Babu Khan died at the spot.
3. On the basis of written complaint Ex. Ka-1 of PW 1 Nizamuddin, case was registered on 31.10.1986 at 18:40 hours against all the three accused persons, namely, Abdul Karim, Munnu Kurmi and Taj Babu alias Tar Babu under Section 302 of IPC vide FIR Ex. Ka-3.
4. On 01.11.1986, police reached at the spot and inquest proceedings were conducted by SI Krishanpal under supervision of PW 6 Inspector DS Malik vide inquest report Ex. Ka-9. Dead body of the deceased was sealed and sent for post-mortem.
5. Post-mortem on dead body of the deceased was conducted by PW-5 Dr. M.H. Khan and following injuries were found on the person of deceased:-
(i) Incised wound 3 cm x ½ cm x trachea on the front of neck below crecoid cartilage, oblique, with cutting of carotid. Margins were clear cut.
(ii) Incised wound ½ cm x ¼ cm x 2 cm oblique on the left side of neck oblique 1 ½ cm from the mid line.
(iii) Incised wound ½ cm x ¼ cm x 2 cm on the left side of neck, transverse 2 ½ cm lateral to mid line.
(iv) Incised wound 1 cm x ½ cm x 2 cm on the left side of face, transverse 2 ½ cm lateral to the chin.
(v) Incised wound ½ cm x ¼ cm x 2 cm on the right side face, oblique, 2 ½ cm lateral to the chin.
(vi) Incised wound 1 cm x ¼ cm x 2 cm on the middle of neck, transverse, just above the sternum.
As per Autopsy Surgeon, the cause of death of the deceased was due to shock and haemorrhage as a result of anti-mortem injuries.
6. Investigation was taken up by PW-6 S.H.O. D.S. Malik and after completion of investigation, all the three accused persons were charge-sheeted.
7. Trial court framed charge under Section 302 of IPC against accused-appellant Abdul Karim, whereas accused-appellants Taj Babu @ Tar Babu and Munnu Kurmi were charged under section 302/34 IPC.
8. In order to bring home the guilt of accused persons, prosecution has examined six witnesses. Accused persons were examined under Section 313 Cr.P.C., wherein they denied prosecution evidence and claimed false implication. However, no oral evidence was led in defence.
9. After hearing and analysing the evidence on record, accused-appellant Abdul Karim was convicted under Section 302 of IPC, whereas accused-appellants Munnu Kurmi and Taj Babu alias Tar Babu were convicted under Section 302/34 of IPC by the impugned judgment and order dated 13.01.1989 and they were sentenced as stated in paragraph no. 1 of this judgment.
10. Being aggrieved by the impugned judgment and order dated 13.01.1989, accused-appellants Abdul Karim, Munnu Kurmi and Taj Babu alias Tar Babu have preferred Criminal Appeal Nos. 579 of 1989, 107 of 1989 and 126 of 1989 respectively.
11. We have heard Sri Rajiv Lochan Shukla, learned counsel for accused-appellants Abdul Karim and Taj Babu alias Tar Babu and Sri Pratap Bhan Umrao and Sri Upendra Kumar Verma, learned counsel for accused-appellant Munnu Kurmi and Sri J.K. Upadhyay, learned A.G.A. for the State-respondent.
12. Learned counsel for the accused-appellants submits as under:-
(i) that PW-1 Nizamuddin, PW-2 Siddique and PW-3 Kallu were related to the deceased and they are interested witnesses. PW-1 is brother of deceased and PW-3 is cousin of deceased and complainant/PW-1. Further PW-2 was not shown as a witness in the FIR. The presence of these witnesses at the spot is highly doubtful. As per prosecution version, several other persons have reached at the spot, but no independent witness has been examined. It was argued that in view of all these facts, testimony of PW-1, PW-2 and PW-3 cannot be relied upon.
(ii) that the conduct of alleged eye witnesses is highly unnatural. As per prosecution version, they have reached at the spot, but neither they tried to save the deceased nor to apprehend the accused persons. None of the witnesses has sustained any injury and there is absolutely nothing to indicate that if they have reached at the spot, why they did not try to save the deceased. It was submitted that this unnatural conduct of alleged eye witnesses further falsifies their presence at the spot.
(iii) that FIR is anti-timed and from statement of PW-4 Naseer Khan, it is clear that after 4:30 PM on 31.10.1986, no other case was registered for sufficient long time. The FIR was sent to the concerned Magistrate on 06.11.1986 and this long delay in sending the report to the concerned Magistrate has not been explained. It was argued that all these facts clearly show that FIR was anti-timed and it was lodged after much deliberation, which indicates that incident was not witnessed by alleged eye-witnesses.
(iv) that ocular testimony is not consistent with medical evidence. It was submitted that as per prosecution version, the deceased was also attacked by clubs, but no such injury has been found on the person of deceased, which might have been caused by clubs. Further, in the inquest report, only one injury was shown on the body of deceased and it appears that after post-mortem, this version was developed that deceased was given 5-6 knife blows, but there was no such version in the FIR.
(vi) that there are serious contradictions and inconsistencies in the prosecution version. The dead body of the deceased was shifted from alleged spot of incident, which is shown in the site-plan as 'A' to another place, which has been shown as 'B' and it has not been explained why dead body was shifted from one place to another.
13. Per contra, it has been submitted by learned State counsel that the testimony of PW-1 Nizamuddin, PW-2 Siddique and PW-3 Kallu cannot be doubted on the ground of their relationship with the deceased. The presence of these witnesses at the spot is established. These witnesses have been subjected to lengthy cross-examination, but no material contradiction or infirmity could be shown so as to create any doubt about their presence at the spot. Testimony of these three eye witnesses is consistent with the medical evidence. Post-mortem report shows that the deceased has suffered knife injuries at neck. Learned trial court has considered entire evidence in correct perspective and that the accused-appellants were rightly convicted.
14. We have considered rival submissions of learned counsel for the parties and perused the record.
15. Complainant Nizamuddin has been examined as PW-1, who in his statement, stated that deceased Babu Khan was his younger brother and accused persons are known to him since before incident, but since last four years there was enmity between the parties over the issue of a housing premises, which was given by his father to accused-appellant Karim and his elder brother Gafur. Proceedings under Section 107/117 Cr.P.C. were also initiated between the parties. Accused-Appellant Abdul Karim and Gafur have also got lodged a case under Section 145 Cr.P.C. against deceased Babu Khan through their mother. There was one more case under Section 186 IPC, however, that was compromised. Accused-Appellant Abdul Karim and his brother were pressurising deceased Babu Khan to compromise the case under Section 145 Cr.P.C. On the day of incident, deceased was returning from Bindki Bazar Market. At around 4:30 PM, while PW-1 Nizamuddin was present at his field near Newajipur miner (small canal), his cousin Jahur was ploughing his field nearby and that Kallu was also present at his Khalihan (harvesting place), deceased Babu Khan was coming by bicycle on bank of Newajipur Bamba (canal) and when deceased Babu Khan was at a distance of 4-6 steps from culvert, accused persons, namely, Karim, Tar Babu and Munnu came out from southern side bank of canal and started chasing deceased Babu Khan. Deceased thrown his bicycle and started running into fields towards southern side and thereafter, towards western side. Accused-appellants Munnu and Tar Babu were having clubs (lathis) and accused-appellant Karim was having knife and they caught and overpowered deceased Babu Khan in the field of one Ram Pal Dhobhi. They made him to fall on the ground. Accused-appellant Munnu caught feet of the deceased and accused-appellant Tar Babu caught his hands and accused-appellant Karim sat on his chest and inflicted 5-6 knife blows at the neck of deceased. By that time PW-1 Nizamuddin has reached at the field of one Badkan Dhobhi and Kallu and Johar were also behind him and Sayeed and Siddiqui have also reached there, accused persons started running towards eastern side after causing injuries to deceased. PW-1 Nizamuddin, above-stated Jahur, Kallu, Sayeed and Siddiqui also ran behind them, but they could not apprehend accused persons and when PW-1 reached near his brother Babu Khan, he has died. After that, several villagers have also reached at spot, but as there was no such person, who could write a complaint, PW-1 went to his home and got scribe tehrir from one Sirajul and thereafter that tehrir Ex.ka-7 was presented at police station. At about 6:30-6:45 pm, police reached at spot and statement of PW-1 was also recorded. In the night some police officials remained at spot, while other have returned and inquest proceedings were initiated on next day morning. Dead body of the deceased was sealed and sent for post-mortem. Bicycle of deceased was taken into possession by police and later on, it was given in superdagi of PW-1. Police have inspected the spot of alleged incident at field of Ram Pal Dhobhi and from there, sample of blood-stained and simple soil were taken.
16. PW-2 Siddiqui has stated that on the day of incident at about 4:30 pm, he was cutting his paddy crop at his field in northern side of bamba (canal). He heard cry of Babu Khan and saw that Babu Khan was running through field of Ram Pal Dhobhi and accused-appellants Karim, Tar Babu and Munnu were chasing him. Accused-appellants Munnu and Tar Babu were having clubs (lathis) and accused-appellant Karim was having knife. Nizam and Jahur were also running to save the deceased and that PW-2 has also started running and when he reached at the boundary of field of Badkan, he saw that accused persons have overpowered deceased Babu Khan in field of Ram Pal Dhobhi and made him to fall on the ground. Accused-appellant Munnu caught his feet and accused-appellant Tar Babu caught his both hands and accused-appellant Abdul Karim inflicted 5-6 knife blows at neck of deceased Babu Khan by sitting over his chest. At that time Sayeed has also reached there. When PW-2 and other persons raised alarm, accused-appellants started running. Nizam and Jahur tried to chase the accused persons, but accused persons could not be apprehended. When PW-2 Siddiqui, Nizam and Jahur reached near Babu Khan, he has already died and there were knife blows at his neck and blood was oozing out from his neck. After that, several villagers have also reached at spot. PW-2 and Kallu remained near dead body of Babu Khan and PW-1 Nizamuddin along with Sirajul went to lodge the report. As darkness has started, they brought dead body of deceased from field of Ram Pal Dhobhi to the bank of canal. Bicycle of deceased was also lying there. Later on, police have reached at the spot. PW-2 further stated that there was enmity between the parties over the issue of a house and in that regard, a case was also contested. Accused-appellants Karim, Mummu and Tar Babu are friends with each other.
17. PW-3 Kallu, stated that at the time of incident at about 4:30 PM, he was collecting his paddy crop and in eastern side of his field, Nizam was cutting his paddy crop, whereas Jahur was ploughing his field. He has stated that deceased was coming from small canal side and was going towards Bindki and as he has reached near culvert of Babu Khan and proceeded further, accused-appellants came from the bank of southern side of canal. Accused-appellant Munnu was having club and accused-appellant Abdul Karim was having knife and they surrounded the deceased. Babu Khan left his cycle and started running towards northern side and thereafter towards western side. PW-3 Kallu and other witnesses Nizam and Jahur ran towards him, but when Babu Khan reached near the field of Ram Pal Dhobhi, accused persons caught him and made him fall on the ground. Accused-appellant Munnu Khan caught his feet, whereas accused-appellant Taj Babu alias Tar Babu caught his hands and accused-appellant Karim managed to sit at the chest of deceased and caused knife injuries at his neck and after incident, accused persons ran towards eastern side. PW-3 clarified that he as well as Nizam and Jahur tried to chase the accused persons, but they could not succeed.
18. PW-4 Naseer Khan has stated that on 31.10.86 at around 18.40 PM, complainant Shri Nizamuddin has lodged the written complaint marked as Ex Ka-1 at the police station, on the basis of which, he has recorded FIR Ex. Ka-2 and GD entry Ex. Ka-4.
19. PW-5 Dr. M.H. Khan has conducted post-mortem on dead body of the deceased and has duly proved post-mortem report Ex. Ka-5.
20. PW-6 Inspector D.S. Malik has conducted investigation of the case.
21. So far as the argument that PW-1 Nizamuddin, PW-2 Siddique and PW-3 Kallu, being closely related to the deceased, are interested witnesses, is concerned, it is well settled that a natural witness may not be labelled as interested witness. In case the circumstances reveal that a witness was present on the scene of occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim. Generally, close relations of the victim are unlikely to falsely implicate anyone. Relationship is not sufficient to discredit a witness unless there is motive to give false evidence to spare the real culprit and falsely implicate an innocent person is alleged and proved. A witness is interested only if he derives benefit from the result of the case or as hostility to the accused. In the case of State of Punjab Vs Hardam Singh, 2005, S.C.C. (Cr.) 834, it has been held by the Apex Court that ordinarily the relations of the deceased would not depose falsely against innocent persons so as to allow the real culprit to escape unpunished, rather the witness would always try to secure conviction of real culprit. The contention about branding the witnesses as 'interested witness' and credibility of close relationship of witnesses has been examined by Apex Court in number of cases and it has been held that a close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an 'interested witness'. The mere fact that the witnesses were relations or interested would not by itself be sufficient to discard their evidence straight way unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court. On the issue of appreciation of evidence of interested witnesses, Dalip Singh Vs. State of Punjab, AIR 1953 SC 364 = 1954 SCR 145, is one of the earliest case on the point. In that case, it was held:
"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."
Similarly, in Piara Singh and Ors. Vs. State of Punjab, AIR 1977 SC 2274 = (1977) 4 SCC 452, the Apex Court held:
"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."
In Hari Obula Reddy and Ors. Vs. The State of Andhra Pradesh, (1981) 3 SCC 675, a three-judge Bench of the Apex Court observed:
".. 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."
In Jayabalan V UT of Pondicherry (2010) 1 SCC 199, the Supreme Court held as under:
"23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency."
Supreme Court in the case of Vijendra Singh vs. State of U.P. reported in (2017) 11 SCC 129 has held as under:
"31. In this regard reference to a passage from Hari Obula Reddy v. State of A.P. would be fruitful. In the said case, a three-Judge Bench has ruled that: (SCC pp. 683-84, para 13) "[it cannot] be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon." It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Court in Kartik Malhar v. State of Bihar 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."
Again, in Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498, the following observations were made by the Apex Court:
"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."
From the above-stated pronouncements of Hon'ble Apex Court, it is clear that a close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an 'interested witness. The mere fact that the witnesses were relations or interested would not by itself be sufficient to discard their evidence straightway unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court. A survey of the judicial pronouncements of the Hon'ble Apex Court on this point leads to the inescapable conclusion that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai Vs. State of Bihar, (2001) 7 SCC 318; State of U.P. Vs. Jagdeo Singh, (2003) 1 SCC 456; Bhagalool Lodh & Anr. Vs. State of U.P., (2011) 13 SCC 206; Dahari & Ors. Vs. State of U. P., (2012) 10 SCC 256; Raju @ Balachandran & Ors. Vs. State of Tamil Nadu, (2012) 12 SCC 701; Gangabhavani Vs. Rayapati Venkat Reddy & Ors., (2013) 15 SCC 298; Jodhan Vs. State of M.P., (2015) 11 SCC 52).
Keeping in view the aforesaid legal position in mind, in the instant case, it is true that PW-1 Nizamuddin is brother of deceased and PW-3 Kallu is cousin of deceased, but as discussed above, it is apparent that their testimony cannot be discarded or doubted on the ground of relationship with the deceased. As stated earlier, related witness does not mean interested witness. The alleged incident has been shown of 04.30 PM on 31.10.1986. PW 1 Nizamuddin stated that at the time of incident, he was present at his agriculture field and he was cutting his paddy crop. As it was time of harvesting of paddy crop and thus, presence of PW 1 at 04.30 at his paddy field can not be termed unnatural. The Investigating Officer has depicted position of field of PW 1 Nizamuddin in site plan exhibit ka-15. PW 1 Nizamuddin was subjected to quite lengthy cross-examination and he was also asked several questions about spot of incident but no such material fact could be elicited so as to doubt his presence at the spot. Similarly, PW 2 Siddique and PW 3 Kallu have also deposed that at the time of alleged incident, they were working at their respective fields. As per PW 2 , he was cutting his paddy crop, where as PW 3 Kallu was harvesting his paddy crop. The location of their fields has also been shown in site plan exhibit ka-15 and their fields are situated in vicinity of spot of incident. No such case has been put forward by the defence that land of these witnesses is not situated there as shown in the site plan, exhibit ka-15. PW 2 Siddique and PW 3 Kallu have also been subjected to searching cross-examination, but no such fact could be emerged so as to create any doubt about their presence at spot. In view of all these facts, testimony of PW 1 Nizamuddin, PW 2 Siddique and PW-3 Kallu cannot be doubted on the ground that they were related to deceased or that PW 1 and PW 2 were related complainant Nizamuddin.
22. Testimony of PW-2 Siddique was assailed on the ground that he was not shown as witness in the FIR, however, it is well-settled that FIR is not a encyclopedia of a case and testimony of a witness cannot be doubted merely on the ground that he was not shown as witness in the FIR, however, it would certainly put the Court at guard that testimony of such a witness has to be examined with care and caution. The version of PW-2 is that he was cutting his paddy crops at the time of incident and his land is situated in northern side of Bamba (small canal). After hearing noise from the side of culvert, he has reached there and witnessed the incident. PW-2 has been subjected to cross-examination, but no such important fact could emerge in his cross-examination so as to create any doubt about his presence at the spot. One important aspect is that he was examined by the Investigating Officer, without any undue delay. It is correct that in his cross-examination, he has stated that he has shifted the dead body of the deceased from spot of incident to the bank of river, whereas PW-3 Kallu has stated that they have brought the dead body of deceased from spot of incident to bank of canal, but it is a minor contradiction and such contradiction does not affect pith and substance of testimony of such an witness.
23. So far as the argument that no independent witness has been examined is concerned, it is well-settled that conviction can be based on the testimony of sole eye-witness, if the same inspires confidence of the Court. There is no such law that the testimony of an eye-witness cannot be relied upon unless it is corroborated by some independent witness. Corroboration is a rule of caution and not a mandatory requirement. If the testimony of an eye-witness is clear, cogent and credible, such testimony cannot be disbelieved on the ground that it has not been corroborated by any independent witness. It is the quality and not the quantity of evidence, which matters. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses, but quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time-honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence, as has been provided by Section 134 of the Evidence Act. Even in Probate cases, where the law requires examination of at least one attesting witness, it has been held that production of more witnesses does not carry any weight. Thus, conviction can even be based on the testimony of a sole eye witness, if the same inspires confidence. (Vide:Vadivelu Thevar & Anr. v. State of Madras; AIR 1957 SC 614; Kunju @ Balachandran v. State of Tamil Nadu, AIR 2008 SC 1381; Bipin Kumar Mondal v. State of West Bengal AIR 2010 SC 3638;Mahesh & Anr. v. State of Madhya Pradesh (2011) 9 SCC 626; Prithipal Singh & Ors. v. State of Punjab & Anr., (2012) 1 SCC 10; and Kishan Chand v. State of Haryana JT 2013( 1) SC 222)."
24. It is well settled that it is not the quantity but quality of evidence, which is required to be judged by the court to place credence on the statement. It is correct that there may be certain cases where court may seek corroboration of testimony of a witness but there is no such straight-jacket formula and requirement of corroboration depends upon facts and circumstances of particular case. Further, in Raghubir Singh v. State of U.P., it has been held that: (SCC p. 84, para 10) "10. ... 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 to 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 spirits on both sides are running high has to be borne in mind."
25. In the instant case, prosecution has examined three eye witnesses of alleged incident. It is correct that one Jahur and Sayeed were cited as prosecution witness in charge-sheet but they have not been examined, but their non-examination would not affect the credibility of PW 1 Nizamuddin, PW 2 Siddique and PW 3 Kallu, who have made consistent and cogent statements. In fact, in his cross-examination, PW 1 Nizamuddin has clarified that Jahur and Sayeed were not ready to depose due the fear of accused persons. Even otherwise, as stated above, it is not a legal requirement that all eye-witnesses of incident have to be necessarily examined. As held in the case of Raghubir Singh (supra), 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 to be produced without unnecessary and redundant multiplication of witnesses. In view of aforesaid legal position, prosecution version cannot be doubted on the ground that no independent witness has been examined.
26. It was next argued that conduct of alleged eye witnesses is highly unnatural as neither they have tried to save the deceased nor to apprehend the accused persons and none of them has sustained any injury. In this connection, it may be stated that version of PW-1 Nizamuddin is that at the time of alleged incident, he was cutting his paddy crop near culvert of Miner and after seeing that accused persons have attacked his brother, he ran towards them and by the time he has reached at the land of one Badkan Dhobhi, accused persons have already inflicted injuries to deceased and all the accused persons started running towards eastern side. PW 1 Nizamuddin further stated that they chased the accused persons but could not apprehend them. Similarly, PW-2 Siddique has also stated that after seeing the incident, he ran by raising alarm and chased the accused persons, but by the time they reached at the land of Rampal Dhobhi, accused persons have fallen the deceased on ground and inflicted 5-6 knife blows to the deceased. Similar is the version of PW-3 Kallu, who has stated that, at the time of incident at about 4:30 PM, he was collecting his paddy crop and in eastern side of his field, Nizam was cutting his paddy crop, whereas Jahur was ploughing his field. He has stated that deceased was coming from small canal side and was going towards Bindki and as he has reached near culvert and proceeded further, accused-appellants came from the bank of southern side. Accused-appellant Munnu was having club and accused-appellant Abdul Karim was having knife and they surrounded the deceased. Babu Khan left his cycle and started running towards northern side and thereafter towards western side. PW-3 Kallu and other witnesses Nizam and Jahur ran towards him, but when Babu Khan reached near the field of Ram Pal Dhobhi, they caught him and made him fall on the ground. Accused-appellant Munnu Khan caught his feet, whereas accused-appellant Taj Babu alias Tar Babu caught his hands and accused-appellant Karim sat at the chest of the deceased and caused knife injuries at his neck and after incident, accused persons ran towards eastern side. PW-3 clarified that he as well as Nizam and Jahur tried to chase the accused persons, but they could not succeed. It is apparent from statements of these witnesses that the alleged incident of causing injuries to deceased hardly might have taken a minute or two and that by the time these witnesses reached near spot, accused-appellants have caused injuries to deceased and started running. All these witnesses have been subjected to lengthy cross-examination, but no such material fact could emerge in their cross-examination so as to affect their presence at the spot. In view of these facts and circumstances, testimony of the said eye witnesses can not be doubted on the ground that they have not sustained any injury or that they did not try to save the deceased. After going through the statements of eye witnesses, it can also not be said that the conduct of these eye witnesses is unnatural.
In view of the above, the testimony of PW-1 Nizamuddin, PW-2 Siddique and PW-3 Kallu cannot be doubted on the ground that they did not sustain any injury or they did not try to save the deceased.
27. So far as the argument that FIR is ante-timed is concerned, it is clear from record that alleged incident took place on 31.10.1986 at 4:30 PM and FIR was lodged on 6:40 PM on the same day, whereas distance of concerned police station from spot was shown eight kilometres. PW-1 Nizamuddin has stated that after incident, many persons have reached at the spot, but there was no such person, who might have scribe a tehrir and thus from spot he went to his home and thereafter, he went to Siragul and got scribe tehrir Ex. Ka-1 and presented the same at police station. He has been subjected to cross-examination, but no such fact could emerge so as to give any indication that long and undue time was taken in lodging the FIR or that FIR was lodged ante-timed. It is correct that in his cross-examination, he has stated that he started going to police station at 5:30 PM from the spot, but after such an incident, period of one hour had spent before going to lodge the FIR, cannot be said to be unnatural. He has denied the suggestion of prosecution that initially his report was not lodged and when police came with him at the spot and after that he again went to the police station and lodged the report. There is no basis or material to support the alleged suggestion made on behalf of the accused persons. It is correct that in his cross-examination, PW-1 Nizamuddin has stated that he has not stated month of incident to Munshi (clerk) at police station as he was not aware of English months and that he has told the day of incident that it was a Friday, whereas in his tehrir Ex. Ka-1, no such day is mentioned, but on such minor inconsistencies, no such conclusion can be drawn that FIR was ante-timed. Much thrust was given to argument that copy of FIR to concerned Magistrate was sent on 06.11.1986. In this connection, it may be seen that PW-4 H.C. Naseer Khan, who has recorded FIR, has stated that on 31.10.1986 at 18:40 hours, complainant Nizamuddin has presented tehrir Ex. Ka-1 at police station and on that basis, he has recorded FIR Ex. Ka-3 of this case vide crime no. 256/86, under Section 302 IPC and in this regard, entry was made in general diary at 18:40 hours on 31.10.1986 vide G.D. No. 41 and he has proved FIR and G.D. entry as Ex. Ka-2 and Ex. Ka-4. He has also produced original G.D. register at the time of his statement. In his cross-examination, he has stated that on that day, some other cases were also registered and before FIR of present case, earlier case was registered at 15:20 hours, vide crime no. 255, under Section 354 IPC, but as there was no subsequent general diary before him, thus he cannot tell that at what time, next FIR of crime no. 257 was registered. He was not asked any question in his cross-examination as to when he has sent the copy of FIR to the concerned Magistrate. It is correct that FIR was seen by concerned Magistrate on 06.11.1986, whereas it was seen by concerned Circle Officer on 04.11.1986, but in view of the above stated facts and circumstances, merely on the ground of delay in sending the FIR to concerned Magistrate, it can not give rise to such a conclusion that FIR is ante-timed. It has been consistently held by the Hon'ble Apex Court through a catena of pronouncements that although in terms of Section 157 Cr.P.C., the police officer concerned is required to forward a copy of the FIR to the Magistrate empowered to take cognizance of such offence, promptly and without undue delay, but it cannot be laid down, as a rule of universal application, that whenever there is some delay in sending the FIR to the Magistrate, the prosecution version becomes unreliable and the trial stands vitiated. When there is positive evidence to the fact that the FIR was recorded without unreasonable delay and investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the Court, then in the absence of any prejudice to the accused, it cannot be concluded that the investigation was tainted and the prosecution story rendered unsupportable. [See Pala Singh Vs. State of Punjab, (1972) 2 SCC 640; Sarwan Singh Vs. State of Punjab, (1976) 4 SCC 369; Anil Rai Vs. State of Bihar, (2001) 7 SCC 318; Munshi Prasad & Ors. Vs. State of Bihar, (2002) 1 SCC 351; Aqeel Ahmad Vs. State of U.P., (2008) 16 SCC 372; Dharamveer Vs. State of U.P., (2010) 4 SCC 469; Sandeep Vs. State of U.P., (2012) 6 SCC 107]. In the present case, it is not the case of the accused persons that they have been prejudiced by the alleged delay in dispatch of the FIR to the concerned Magistrate. Considering the above-stated legal position and the facts and circumstances of the case, it cannot be held that FIR is ante-timed or prosecution is affected on the ground of delay in sending the FIR to the concerned Magistrate and in such an event, it cannot be held that investigation was tainted or prosecution version becomes doubtful on account of alleged delay in forwarding the copy of FIR to Magistrate .
28. It was argued that ocular testimony is not consistent with the medical evidence. In this regard, it was submitted that as per prosecution version, deceased was also attacked by clubs, but no such injury has been found on the person of deceased, which might have been caused by club. It was further pointed out that in FIR, it was mentioned that accused-appellant Karim has given knife blow at the neck of deceased, whereas during trial, witnesses have made improvements and PW-1 Nizamuddin stated that accused-appellant Karim has given 5-6 knife blows at the neck of deceased and cut his neck. Similarly PW-2 Siddique has also mentioned that 5-6 knife blows were given to the deceased. It is trite that oral evidence has to get primacy as medical evidence is basically opinionative. It is only when the medical evidence especially rules out the injury as claimed to have been inflicted as per the oral testimony, then only in a given case, the Court has to draw an adverse inference. It is well settled by a series of decisions of the Apex Court that while appreciating variance between medical evidence and ocular evidence, oral evidence of eyewitnesses has to get primacy as medical evidence is basically opinionative. But when the court finds inconsistency in the evidence given by the eyewitnesses, which is totally inconsistent to that given by the medical experts, then evidence is appreciated in a different perspective by the courts. In Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484, the Supreme Court observed as under:
''Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."
A similar view has been taken in Mani Ram & Ors. v. State of U.P., 1994 Supp (2) SCC 289; Khambam Raja Reddy & Anr. v. Public Prosecutor, High Court of A.P., (2006) 11 SCC 239; and State of U.P. v. Dinesh, (2009) 11 SCC 566.
In State of U.P. v. Hari Chand, (2009) 13 SCC 542, the Apex Court re-iterated the aforementioned position of law and stated that in any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy. From the above stated authorities, it is clear that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, but when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.
29. In the instant case, it is consistent version of prosecution that initially all the three accused persons attacked the deceased with clubs and knife, but deceased started running and accused-appellants chased and overpowered him in the field of Ram Pal Dhobhi and made him fall on the ground. As per prosecution version, accused-appellant Munnu caught his feet, whereas accused-appellant Taj Babu alias Tar Babu caught his hands and accused-appellant Karim sat on chest of the deceased and caused injuries at his neck. It is correct that no such injury was shown on body of deceased, which might have been caused by club, but there was no such specific version of eye witnesses that deceased has sustained any serious injury by club. Though in FIR merely it was stated that accused-appellant Karim caused knife injuries at neck of deceased by knife and cut cartilage part of neck and that in the inquest report, only one injury was at neck was shown, whereas during trial, PW-1 Nizamuddin and PW-2 Siddique have stated that accused-appellant Karim has given 5-6 blows at neck of deceased, but on material aspect, there is no major inconsistency between ocular and medical evidence. As stated earlier, prosecution version is that accused-appellant Karim caused injuries at neck of the deceased by knife and post-mortem report of deceased also corroborates this aspect. Merely because in FIR it was not mentioned that accused-appellant Karim has given 5-6 blows of knife, it cannot be said that ocular testimony is contradictory with medical evidence, particularly, when in FIR, it was not mentioned that only one knife blow was given at the neck of deceased. Such type of minor improvements in the statements of witnesses are quite natural and do not affect the credibility of eye witnesses. The evidentiary value of the inquest report prepared under Section 174 of Cr.P.C. has been long settled through a series of judicial pronouncements of the Hon'ble Apex Court. It is well-established that inquest report is not a substantive piece of evidence and can only be looked into for testing the veracity of the witnesses of inquest. The object of preparing such report is merely to ascertain the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or caused by animals or machinery etc. and stating in what manner, or by what weapon or instrument, the injuries on the body appear to have been inflicted. [See Pedda Narayan Vs. State of A.P., (1975) 4 SCC 153; Khujji Vs. State of M.P., (1991) 3 SCC 627; Kuldip Singh Vs. State of Punjab, 1992 Supp (3) SCC 1; George and Ors. Vs. State of Kerala and Anr., (2008) 4 SCC 605; Suresh Rai Vs. State of Bihar, (2000) 4 SCC 84; Amar Singh Vs. Balwinder Singh, (2003) 2 SCC 518; Radha Mohan Singh Vs. State of U.P., (2006) 2 SCC 450; Sambhu Das Vs. State of Assam, (2010) 10 SCC 374]. Here it may be added that Inquest report is not prepared by any doctor or expert, rather in inquest proceedings, injuries are noted by Investigating Officer by prima facie inspecting dead body of deceased, where as post-mortem is conducted by expert and experienced doctor. Here it would be relevant to mention that inquest report also shows knife injury at neck of the deceased.
30. In the instant case, it is consistent version of the prosecution that deceased was inflicted knife injuries at his neck, which resulted into his death at the spot itself. As stated earlier, post-mortem report shows that there were six incised wounds at the neck of deceased and cause of death was these ante-mortem injuries. Merely because in FIR, it was not mentioned that deceased was inflicted six blows of knife or that in inquest report number of incised wounds was not mentioned, it cannot be said that medical evidence contradict ocular testimony or it does not support ocular testimony of eye-witnesses. Considering the entire facts, it cannot be said that alleged inconsistency goes so far that it completely rules out all possibility of the ocular evidence being true. In any event, it cannot be said that the oral evidence is totally irreconcilable with the medical evidence, hence the oral evidence has to be given primacy. The contention of learned counsel for appellants has no force.
31. It was further submitted by learned counsel for the accused-appellants that there are other infirmities and inconsistencies in prosecution case and that as per prosecution version, dead body of deceased was shifted from spot of incident to another place, which is shown in site-plan as point 'B', which indicates that place of incident is doubtful. In this connection, PW-1 Nizamuddin has stated that villagers have brought dead body of the deceased from spot of incident to bank of miner (canal). Similarly, PW-2 Siddique has clarified that after incident, he as well as Kallu and others remained near the dead body of the deceased, whereas PW-1 Nizamuddin has gone to lodge the report. Relatives and children of deceased as well as other villagers have also reached there and in the evening as darkness increased, they brought dead body of the deceased from the field of Ram Pal Dhobhi and put the same at the bank of canal. Cycle of deceased was also lying on bank of canal at a distance of 2-3 steps from dead body. PW-2 has further clarified in his cross-examination that he has put dead body of the deceased from spot of incident at bank of canal after about one and half hour of incident and at that time, Nizam was not present. It is apparent that PW-2 has given explanation and reason as to why dead body of deceased was shifted from place of incident to bank of canal. As stated earlier, he has stated that as darkness has started and alleged spot was in field of Ram Pal Dhobhi, they have brought dead body of the deceased at the bank of canal. Similar is the version of PW-3 Kallu, who has stated that after incident, Nizam has gone to police station and he as well as other persons remained present at spot and that they have put the dead body of the deceased at the bank of canal near cycle of deceased. All these facts clearly show that dead body of the deceased was shifted from place of incident to bank of canal merely because spot of incident was inside the field and by that time, darkness has started and thus, they brought the dead body of deceased at the bank of canal. Merely because PW-2 Siddique has stated in his cross-examination that he has shifted dead body of the deceased from spot to bank of canal, whereas PW-3 Kallu has stated that they have lifted the dead body of deceased from the spot of incident and put the same at the bank of canal, it is a minor contradiction. Such type of minor contradiction cannot be given importance. It is apparent from statements of PW-2 Siddique and PW-3 Kallu that after the incident, they remained at the spot, whereas Nizam has gone to police station and that relatives and family members of deceased have also reached at the spot and they have shifted the dead body of the deceased from alleged spot to bank of canal. Mere inconsistency as to which particular person lifted the dead body from the spot is not a material fact. It is well-settled that variations and inconsistencies in peripheral details of the matter do not go to the root of the matter. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters, which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide: Mahender Pratap Singh V State of UP (2009) 11 SCC 334; and Dr. Sunil Kumar Sambhudayal Gupta & Ors. V. State of Maharashtra, JT 2010 (12) SC 287].
32. In the present case, all the above mentioned contradictions and inconsistencies, cited by the learned counsel for the appellants, are of minor nature and same do not erode the substance of the testimony of the witnesses. In all criminal cases, minor discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. Further even if a witness is found false on a point, it does not mean that his entire testimony has to be disbelieved, rather it is duty of the court to separate the grain from the chaff. The maxim 'falsus in uno, falsus in omnibus' is not applicable in India. A witness may be speaking untruth in some respect and it has to be appraised in each case as to what extent the evidence is worthy of acceptance.
33. In the instant case, the version of PW-1 Nizamuddin is quite clear and cogent and he has clearly stated that at the time of alleged incident, he was working at his field near Newajipur small canal and has witnessed the incident from there. PW 1 Nizamuddin has given detailed description of spot and entire vicinity around spot. He has vividly stated entire version of incident. PW-1 has been subjected to quite lengthy cross-examination, but no such important fact could emerge in his cross-examination so as to doubt his presence at the spot or to affect authenticity of his version. On material particulars, version of PW-1 is supported by medical evidence. One of the important aspects of the matter is that FIR of incident has been lodged without any undue delay within two hours and ten minutes of incident, whereas police station was situated at a distance of eight kilometres from spot. All the three accused persons were named in the FIR and specific role was assigned to all the three accused persons in FIR itself. The version of PW-1 Nizamuddin has been amply corroborated by PW-2 Siddique and PW-3 Kallu and both these witnesses have also made cogent and consistent statements regarding entire incident. They have also been subjected to cross-examination, but no important contradiction or inconsistency could be shown. Their statements are consistent with their previous statements recorded during investigation. Considering the entire facts and evidence, testimony of alleged eye witnesses i.e. PW-1 Nizamuddin, PW-2 Siddique and PW-3 Kallu appears to be credible and reliable. As stated earlier, all the three witnesses have assigned specific role to all the three accused-appellants and as per evidence, initially all the three accused persons have attacked deceased and thereafter, they have made him to fall in the field of one Ram Pal Dhobhi and accused-appellant Munnu caught his feet, while accused-appellant Taj Babu alias Tar Babu caught his hands and accused-appellant Karim caused serious injuries with knife at the neck of the deceased. Thus, evidence clearly indicates that murder of deceased was committed in furtherance of common intention.
34. In view of aforesaid, we are of the considered view that the trial court was justified in convicting accused-appellant Abdul Karim, Munnu Kurmi and Taj Babu alias Tar Babu for murder of deceased Babu Khan. Accordingly, conviction and sentence of accused-appellants Abdul Karim, Munnu Kurmi and Taj Babu alias Tar Babu is affirmed. All the three accused-appellants are stated to be on bail, their bail are cancelled and they shall be taken into custody forthwith to serve out the sentence.
35. All the three appeals are, accordingly, dismissed.
36. Copy of this judgment be sent to the court concerned for necessary compliance forthwith.
Dated: 06.03.2020
Anand
(Raj Beer Singh, J) (Pritinker Diwaker, J)