Allahabad High Court
Lal Chand Gupta vs State Of U.P. on 27 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1779, 2020 (2) ALJ (NOC) 80 (ALL)
Bench: Sudhir Agarwal, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved on : 08.04.2019
Delivered on : 27.09.2019
Court No. - 34
Case :- JAIL APPEAL No. - 2710 of 2012
Appellant :- Lal Chand Gupta
Respondent :- State Of U.P.
Counsel for Appellant :- From Jail, ,I.P. Singh (A.C.)
Counsel for Respondent :- A.G.A.
Hon'ble Sudhir Agarwal,J.
Hon'ble Rajendra Kumar-IV,J.
(Delivered by Hon'ble Rajendra Kumar-IV,J)
1. Accused-appellant-Lal Chand Gupta faced trial in Sessions Trial No. 110 of 2009 (State v. Lal Chand Gupta, Case Crime No. 1343 of 2008) under Sections 302, 307, 504 and 506 IPC, Police Station Gagha, District Gorakhpur, which came to be heard and decided by Additional Sessions Judge (Ex-cadre-2), Court No.14, Gorakhpur, vide judgment dated 17.03.2012, Trial Court convict accused-appellant under Sections 302, 324 and 504 IPC and sentenced him to undergo life imprisonment with a fine of Rs. 5000/- under Section 302 IPC, 3 years under Section 324 IPC with a fine of Rs.2000/- and one year under Section 504 IPC but acquitted of charge under Section 506 IPC. All the sentences shall run concurrently. Accused-appellant has sought interference of this Court in the present Jail Appeal filed from Jail through Jail Superintendent concerned.
2. Factual matrix of the case as borne out from First Information Report (hereinafter referred to as "FIR") as well as material placed on record, in brief, is that PW-1, Shatrughan Vishwakarma, presented a written report Ex.Ka-1 in Police Station Gagha, District Gorakhpur stating that a goat of accused-appellant was grazing in his field. His brother, victim Govind Vishwakarma, brought the goat and tied it at the door. He (PW-1), victim Govind Vishwakarma, and Ganesh Sharma (PW-2) of same village went to the house of accused-appellant for complaint. Accused was beating his wife, when they reached the house of accused. They enquired, why he was beating his wife. His goat was grazing in his field, which was apprehended and taken away, whereupon, accused started abusing and extending threat to take life. When he objected to abusing, accused-Lal Chand Gupta took out knife and with intention to kill, stabbed in chest of victim. When PW-1 and PW-2 tried to capture him, he attacked them also with intention to kill. Victim rushed to house and fell down. PW-1 and PW-2 also received injuries in the said incident. While making arrangement to hospital, victim-Govind Vishwakarma succumbed to injuries. Incident took place at about 5:00 p.m. Dead body was lying on the spot. Incident was witnessed by Lok Nath and many persons of village.
3. On the basis of a written report Ex.Ka-1, a chick F.I.R. Ex.Ka-2 was registered by PW-3, HC Ramkesh, as Case Crime No.1343 of 2008 under Sections 302, 307, 504 and 506 IPC against accused. Entry of case was made in General Diary, copy whereof is Ex.Ka-3.
4. Under the direction of PW-8, R.K. Ravi held inquest over dead body of deceased-Govind Vishwakarma, prepared panch-nama Ex.Ka-5 and other papers relating thereto. Body was duly sealed and sent to District Hospital Gorakhpur for postmortem.
5. PW-7, Dr. Gyan Chandra, conducted autopsy over dead body of deceased-Govind Vishwakarma and prepared postmortem report Ex.Ka-7 under his signature, expressing his opinion that death of deceased was possible on 27.11.2008 at about 5:00 p.m. due to shock and hemorrhage as a result of ante-mortem injuries found on the person of deceased which might have been caused by some sharp cutting weapon like knife. Doctor found ante-mortem injuries on the body of deceased as under :-
(I) Incised wound 4 cm x 2 cm x bone deep over left side chest, 14 cm below the left clavicle.
6. PW-6, Dr. D.P. Singh, conducted medical examination of PW-1 Shatrughan Vishwakarma and prepared medico-legal report Ex.Ka-6. Doctor found a linear abrasion of 3 cm, incised, obliquely situated over left side of chest, and opined that it might have been caused by some sharp weapon on 27.11.2008 at about 5:00 p.m. and was simple in nature.
7. PW-10, Doctor Chadra Prakash conducted medical examination of Ganesh Sharma, PW-2 and prepared injury report Ex.Ka-12. Doctor found one penetrating wound 3.5cm x 0.5cm x 3.5cm present over left side back about 8.0 cm below left scapula.
8. PW-8, Ravinder Kumar Ravi, commenced investigation, recorded statement of PW-1, Shatrughan Vishwakarma, and other witnesses, visited spot, prepared site plan Ex.Ka.-9, collected blood stained and simple earth from spot, prepared memo thereof Ex.Ka-8. On 04.12.2008, he arrested accused and on his pointing, recovered blood stained knife, allegedly used in commission of offence, from bushes of Bamboo near his house, prepared memo thereof Ex.Ka-4. Investigating Officer recorded statement of other witnesses and after completion of necessary formalities, submitted charg-sheet, Ex.Ka-11, against accused under Sections 302, 307, 504 and 506 IPC before Chief Judicial Magistrate, concerned.
9. Case, being exclusively triable by Court of Sessions, was committed by Chief Judicial Magistrate to Sessions Court wherefrom, it was transferred to Additional Sessions Judge (FTC), Court No.3, Gorakhpur for disposal in accordance with law.
10. Trial Court, after considering the entire material on record, framed charges against accused-appellant under Section 302 IPC on 28.05.2009 and under Sections 307, 504 and 506 IPC on 04.08.2009, which read as under:
" आरोप मैं, अजय कुमार श्रीवास्तव अपर सत्र न्यायाधीश /एफ०टी०सी० को०नं०3, गोरखपुर आप श्री लालचन्द गुप्ता को निम्न आरोप से आरोपित किया गया।
प्रथमः-यह कि दिनांक 27.11.2008 को समय करीब 5.00 बजे शाम बहदग्राम- कोहड़ा, थाना- गगहा, जिला- गोरखपुर में बकरी चरने के विवाद को ले करके वादी मुकदमा शत्रुध्न के भाई गोविन्द विश्वकर्मा को जान से मारने की नियत से चाकू से उसके सीने में मारना और उसको पकड़ने के लिये वादी मुकदमा व गणेश शर्मा गये तो उनको भी चाकू से मार कर गम्भीर चोटे पहुचाये। उक्त चोटे से वादी मुकदमा के भाई गोविन्द विश्वकर्मा को प्राण घातक चोटे आने के कारण उसकी मृत्यु हो गयी। इस प्रकार आप ने धारा- 302 भा०दं०सं० के अन्तर्गत दण्डनीय अपराध किया जो इस न्यायाय के प्रसंज्ञान में है।
एतद् द्वारा मै आप को निर्देशित करता हूँ कि उपरोक्त आरोप का परीक्षण इसी न्यायालय द्वारा किया जायेगा। "
"I, Ajay Kumar Srivastava, Additional Sessions Judge / FTC No. 3, Gorakhpur do hereby charge you Shri Lal Chand Gupta with the following offence:
First: That on 27.11.2008 at around 5 pm within the limits of Village Kohda, PS Gagha, District Gorakhpur; you, on account of a dispute regarding grazing the goat, stabbed a knife into the chest of complainant Shatrughan's brother Govind Vishwakarma with the intent to kill him; and when the complainant and Ganesh Sharma went to catch hold of you, you also caused grave injuries by attacking them with the knife. As a result of the critical injuries so caused, the complainant's brother Govind Vishwakarma died. In this way, you have committed an offence punishable u/s 302 of IPC, which is within the cognizance of this court.
It is hereby directed that you be tried by this court for the aforesaid offence."
(English Translation by Court) "मै, अजय कुमार श्रीवास्तव, अपर सत्र न्यायाधीश /एफ०टी०सी० को०नं०3 गोरखपुर आप श्री लालचन्द गुप्ता को निम्न आरोप से आरोपित करता हूँ।
प्रथमः- यह कि दिनांकः 27.11.2008 को समय करीब 5.00 बजे बहद ग्राम-कोहड़ा, थाना- गगहा, जिला- गोरखपुर में बकरी चरने के विवाद को लेकर के वादी मुकदमा शत्रुध्न के भाई गोविन्द शर्मा को जान से मारने की नियत से चाकू से उसके सीने में मारा और जब पकड़ने के लिये वादी मुकदमा शत्रुध्न एवं गणेश शर्मा गये तो उनको भी चाकू से जान मारने की नियत से मारे पीटे,जिससे उनको प्राण घातक चोटे आई। इस प्रकार आप ने धारा-307 भा०द० सं० के अन्तर्गत दण्डनीय अपराध किया जो इस न्यायालय के प्रसंज्ञान में है।
द्वितीयः- यह कि उपरोक्त दिनांक, समय व स्थान पर आप लोगो ने वादी मुकदमा व उसके भाई तथा उसके परिवार के लोगो को अपमानित करने के आशय से गाली गुप्ता दिये, जिससे उसकी सामाजिक प्रतिष्ठा गिरी, इस प्रकार आपने धारा- 504 भा०द०सं० के अन्तर्गत दण्डनीय अपराध किया, जो इस न्यायालय के प्रसंज्ञान में है।
तृतीयः- यह कि उपरोक्त दिनांक, समय व स्थान पर आपने वादी मुकदमा व उसके भाई तथा उनके पूरे परिवार के लोगो को भविष्य में भयभीत रहने के आशय से जान माल की धमकी दिये जिससे वे लोग हमेशा आतंकित रहते है। इस प्रकार आप ने धारा 506 भा०दं०सं० का अपराध किया है।
एतद् द्वारा मै आप लोगो को निर्देशित करता हूँ कि उपरोक्त आरोप का परीक्षण इसी न्यायालय द्वारा किया जायेगा।"
"I, Ajay Kumar Srivastava, Additional Sessions Judge / FTC No. 3, Gorakhpur do hereby charge you Shri Lal Chand Gupta with the following offences:
First: That on 27.11.2008 at around 5 pm within the limits of Village Kohda, PS Gagha, District Gorakhpur; you, on account of a dispute regarding grazing the goat, stabbed a knife into the chest of complainant Shatrughan's brother Govind Vishwakarma with the intent to kill him; and when the complainant Shatrughan and Ganesh Sharma went to catch hold of you, you also attacked him with knife with the intent to kill him; as a result of which he sustained critical injuries. In this way, you have committed an offence punishable u/s 307 of IPC, which is within the cognizance of this court.
Second: That on the aforesaid date, time and place, you used filthy language in order to insult the complainant, his brother and his family; thus bringing their social status down. In this way, you have committed an offence punishable u/s 504 IPC, which is within the cognizance of this court.
Third: That on the aforesaid date, time and place, you, with an intent to put the complainant, his brother and all his family members to intimidation even in the future, threatened to kill them and to destroy their property; as a result of which they are always under fear. In this way, you have committed an offence punishable u/s 506 IPC, which is within the cognizance of this court.
It is hereby directed that you be tried by this court for the aforesaid offence."
(English Translation by Court)
11. Accused denied charges levelled against him and claimed trial.
12. In order to substantiate its case, prosecution examined as many as ten witnesses in the following manner :
Sr. No. Name of PW Nature of witness Paper proved 1 Shatrughan Vishwakarma Fact Ex.Ka-1 & Ex. Ka-2 2 Ganesh Sharma Fact Ex.Ka-11 3 HC Ramkesh Formal Ex.Ka-2 & Ex. Ka-3 4 Dwarika Nath Vishwakarma Formal Ex.Ka-4 (recovery memo) 5 Jitendra Vishwakarma Formal Ex.Ka-5 (inquest) 6 Dr. DP Singh Formal Ex.Ka-6 7 Dr. Gyan Chandra Formal Ex.Ka-7 8 Ravindra Kumar Ravi (IO) Formal Ex.Ka-4, Ex.Ka-8 and Ex.Ka-11 9 Vijay Kumar (constable) Formal Ex. Ka-10 10 Dr. Chandra Prakash Formal Ex.Ka-12 (Injury report)
13. Subsequent to closure of prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded by Court explaining all incriminating circumstances and other evidence. Accused denied prosecution story in toto and all formalities of investigation were said to be wrong. He claimed false implication on account of enmity and statement of witnesses were said to be wrong. In response of question 6, accused answered that informant and his brother (deceased) had come with knife and Danda to his house, assaulted him, due to which he sustained injury on his head and they wanted to take his life by cutting his neck. Complainant side must have suffered injuries while making defence. Accused examined DW-1, Jai Kirshna Mishra, in defence.
14. After hearing counsel for parties and analyzing entire evidence led by prosecution on record, Trial Court has found accused-appellant guilty and convicted him, as stated above. Feeling aggrieved and dissatisfied with impugned judgment and order of conviction and sentence, present appeal has been filed through Jail.
15. We have heard Sri I.P. Singh, Amicus Curiae for accused-appellant and Sri Nikhil Chaturvedi, learned A.G.A for State-respondents, at length, and have gone through record carefully with valuable assistance of learned counsel for parties.
16. Learned Amicus Curiae appearing for accused-appellant took us through record and challenged conviction and sentence of accused-appellant, advancing his submissions, in the following manners :-
i. There is no independent witness of the incident. PW-1 is a relative witness. No independent witness came forward to support prosecution case. PW-1 and deceased themselves had come to the house of accused-appellant to take his life.
ii. There is no motive to accused-appellant to commit murder of Govind Vishwakarma and cause injuries to PW-1.
iii. There are several contradictions rendering prosecution doubtful.
iv. Prosecution story inspires no confidence.
v. Witnesses are not natural. Prosecution has failed to prove its case beyond reasonable doubt. Accused-appellant is entitled to benefit of doubt and deserves acquittal.
vi. Trial Court did not appreciate prosecution evidence with full care and cautious.
vii. Medical evidence also does not go with prosecution version.
17. Per contra learned AGA supported impugned judgment and submitted that it is a day light murder and a case of direct evidence, in which, victim sustained knife injuries and succumbed to death. PW-1 and 2 also received injuries in the same incident, that is why, their presence on the spot cannot be doubted. Even otherwise, accused-appellant himself admitted to be present on the spot on the date of incident. Thus, Trial Court has rightly convicted and sentenced him.
18. Although time, date, place of incident and murder of victim, could not be disputed from the side of defence but according to learned counsel for accused-appellant, he is not responsible for committing murder of Govind Vishwakarma and causing injuries to PW-1 and 2. From statements of PW-1, 2, 6 and 7 and defence witness also time, date, place of incident and presence of deceased on the spot stand proved.
19. Admittedly, this is a case of direct evidence, in which, Govind Vishwakarma was murdered and PW-1 and 2 were injured. Incident took place in day light. Accused-appellant and complainant, being resident of same village, are known to each other. Accused-appellant has himself admitted his presence on the date of incident in his statement under Section 313 Cr.P.C.
20. Thus, two questions are up for consideration of this Court i.e. "Whether accused-appellant is responsible for committing murder of victim-Govind Vishwakarma and causing serious injuries to PW-1 and PW-2" and "Whether Trial Court has rightly convicted accused-appellant or not?"
21. We now proceed to consider briefly, evidence of prosecution and some relevant judgments.
22. PW-1 deposed that on 27.11.2008, at about 5:00 pm, a goat of accused-appellant was grazing in his field. His brother, Govind Vishwakarma (victim), caught and tied it in his house. When PW-1, Govind Vishwakarma (victim) and Ganesh Sharma (PW-2) went to the house of accused-appellant to make a complaint, they saw that accused-appellant was beating his wife whereupon they objected and asked why he was beating his wife and told him that his goat was grazing in his field and they tied it at the door. Accused-appellant started abusing and threatening them of taking their life. When they objected him for abusing, accused-appellant, with intention to kill, took out knife, and stabbed in chest of victim. He and Ganesh Sharma tried to apprehend accused-appellant but accused attacked them with knife, resultantly, PW-1 himself, and Ganesh Sharma (PW-2) received knife injuries. Victim rushed to his house, fell down in Varandah and succumbed. Many persons of village have seen the incident. It is further deposed that he got scribed Tehrir, Ex. Ka-1, by one Sadhu Saran Sharma (not examined), put his signature and presented to Police Station concerned. Witness got injured while saving his brother in incident.
23. PW-2, Ganesh Sharma, deposed that on 27.11.2008, a goat of accused-appellant was grazing in the field of victim whereupon he caught and tied it on the door of his house. Thereafter, at 5:00 pm, he (witness), victim Govind Vishwakarma, Satrughan Vishwakarma, PW-1, went to the house of accused-appellant for making complaint and witnessed that he was beating his wife. They asked him why he was beating his wife that they took his goat who was grazing in the field. Accused-appellant started abusing in filthy language and threatened them. When victim objected him for abusing, accused stabbed knife in chest of victim. He and Shatrughan, PW-1, rushed to save him, accused-appellant attacked them with knife. He received injury on his back. Accused-appellant ran away towards Banswari. Victim, Govind Vishwakarma, succumbed to death in his house. He was also medically examined in Sadar Hospital. Incident was witnessed by Lok Nath Sharma and many persons also.
24. Both PW-1 and PW-2 withstood lengthy cross examination but nothing material could be brought so as to disbelieve their testimony. Evidently, PW-1 and PW-2 got injured in the same incident, hence their presence cannot be doubted.
25. PW-6, Dr. D.P. Singh, deposed that on 28.11.2008, he was posted, as Medical Officer; medically examined Shatrughan Vishwakarma; and found a linear abrasion of 3 cm incised obliquely situated over the left side of chest and opined that it might have been caused by some sharp weapon on 27.11.2008 at about 5:00 p.m. and was simple in nature.
26. PW-10, Dr. Chand Prakash, deposed that on 27.11.2008, while posting in District Hospital Gorakhpur, he medically examined Ganesh Sharma and found one penetrating wound 3.5 x 0.5 cm x 3.5 cm present over left side back about 8.0 cm below left scapula.
27. Evidently, PW-1 and 2 sustained injuries in the same incident. PW-1, Shatrughan Vishwakarma, sustained one injury caused by sharp object and PW-2, Ganesh Sharma, sustained penetrating wound caused by sharp pointed object. All the injuries are simple in nature and fresh. Injury report Ex.Ka-6 and 12 respectively corroborate this fact which also find support from the evidence of Dr D.P. Singh, PW-16, and Dr. Chandra Prakash, PW-10.
28. It is settled that presence of injured witnesses cannot be easily ignored. Normally an injured witness would enjoy greater credibility because he has suffered himself,thus, there will no occasion for such a person to state an incorrect version of occurrence or to involve anybody falsely and in the bargain, protect real culprit. We need not discuss more elaborately the weightage that should be attached by this Court to the testimony of injured persons since this aspect of criminal jurisprudence is no more res-inegra.
29. In Abdul Sayeed Vs. State of Madhya Pradesh, (2010) 10 SCC 259, Court held as under :-
"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court.
Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkay vs. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. And Balraje v. State of Maharashtra.]
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) "28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
(Emphasis added)
30. In State of U.P. v. Kishan Chand (2004) 7 SCC 629, referring the judgement of Krishna vs State Of Haryana on 12 July, 1994, a similar view has been reiterated by Court, observing that testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing is elicited to discard his testimony, it should be relied upon.
31. The law on the point can be summarised to the effect that testimony of an injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of crime. Such witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
32. According to learned counsel for accused-appellant, evidently, dead body was found at the door of Informant, while blood was not found at the door of deceased, therefore, dead body was shifted from anywhere to the door of deceased and it was not the prosecution case.
33. Admittedly, dead body was found at the door of deceased and inquest report was prepared there. It has also come in evidence of PW-8 that blood was not found at the door of deceased but PW-1 and PW-2 categorically stated in his statement that accused-appellant stabbed knife in front of his house; victim ran to his house; fell down and succumbed to injuries at his door. PW-8 stated that blood stained was seen on the way leading to informant' house from accused-appellant's house.
34. Non-availability of blood at the door of deceased does not falsify prosecution case for the reasons that incident took place in front of accused-appellant's house, which was proved by PW-1, PW-2 and PW-8 and victim rushed to his house, where he fell down and died. Therefore, submission of learned counsel for accused-appellant is not acceptable and we reject the same.
35. So far as motive is concerned, it is well settled that where direct evidence is worthy, it can be believed, then motive does not carry much weight. It is also notable that mind set of accused persons differs from each other. Thus merely because that there was no strong motive to commit the present offence, prosecution case cannot be disbelieved. We do not find any substance in the argument advanced by learned counsel for appellant.
36. In Lokesh Shivakumar v. State of Karnataka, (2012) 3 SCC 196, Court has held under :-
"As regards motive, it is well established that if the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive looses practically all relevance. In this case, we find the ocular evidence led in support of the prosecution case wholly reliable and see no reason to discard it."
37. Next argument of learned counsel for accused-appellant is that PW-1 is real brother of victim and he is not an independent witness. We are not impressed upon with the same for the reasons that testimony of related witness cannot be discarded only on the ground of relationship with victim or accused.
38. It is settled law that merely because witnesses are closely relative to deceased, their testimonies cannot be discarded. Relationship with one of the parties is not a factor that affects credibility of witness, more so, a relative would not conceal the actual culprit and make allegation against an innocent person. However, in such a case Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible evidence.
39. Testimony of eye witness merely because he happens to be a relative of the deceased cannot be discarded as a 'close relative' would be last one to screen out the real culprit and implicate innocent person as held in Dilip Singh v. State of Punjab, AIR,1953, SC 364. Court has 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. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
40. In Dharnidhar v. State of UP (2010) 7 SCC 759, Court has observed:-
"There is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In the case of Jayabalan v. U.T. of Pondicherry [(2010)1 SCC 199], this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim"
41. In Ganga Bhawani v. Rayapati Venkat Reddy and Others, 2013(15) SCC 298, Court said :-
"11. It is a settled legal proposition that the evidence of closely related witnesses 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.
(Vide: Bhagalool Lodh & Anr. v. State of UP, AIR 2011 SC 2292; and Dhari & Ors. v. State of U. P., AIR 2013 SC 308)."
42. So far as the genesis of prosecution story and medical evidence is concerned, PW-1 and PW-2 categorically deposed that on the date of incident, goat of accused was grazing in field of victim who brought it and tied at the door of his house and went to house of accused for making complaint where above incident took place.
43. PW-1 and PW-2 supported prosecution case. PW-6, Investigating Officer, found blood in Varandah of accused. In this way, genesis of prosecution stands established. PW-6, Dr. DP Singh, PW-7 Dr. Gyan Chandra, and PW-8, Dr. Chand Prakash, proved medical reports. All three doctors opined that injury found on the person of deceased injured might be caused by sharp weapon, like knife, at the relevant time and date as stated by prosecution, therefore, medical evidence is totally compatible with ocular version.
44. PW-1 and PW-2 are natural witnesses who have supported prosecution. House of Informant is at the distance of 50-60 mtr. away from accused-appellant. Since goat of accused was grazing in the field of deceased, therefore, coming of deceased and witnesses to the house of accused-appellant for making complaint and their presence on spot cannot be easily doubted. It is often seen that no villagers come forward to give evidence in support of prosecution against accused-appellant in heinous offence, like murder, due to fear of evil and it is settled principle of law that prosecution is not obliged to produce an independent witness.
45. So far as discrepancies, variation and contradiction in the prosecution case are concerned, we have analysed entire evidence in consonance with the submissions raised by learned counsel's and find that the same do not go to the root of case.
46. In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124, Court has held that minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person.
47. In Sachin Kumar Singhraha v. State of Madhya Pradesh in Criminal Appeal Nos. 473-474 of 2019 decided on 12.3.2019, Supreme Court has observed that Court will have to evaluate evidence before it keeping in mind the rustic nature of depositions of villagers, who may not depose about exact geographical locations with mathematical precision. Discrepancies which do not go to the root of the matter do not obliterate otherwise acceptable evidence. It need not be stated that it is by now well settled that minor variations should not be taken into consideration while assessing the reliability of witness testimony and the consistency of the prosecution version as a whole.
48. Lest we not forget that no prosecution case is foolproof and the same is bound to suffer from some lacuna or the other. It is only when such lacunae are on material aspects going to the root of the matter, it may have bearing on the outcome of the case, else such shortcomings are to be ignored. Reference may be made to a recent decision of the Apex Court (3 Judges) in Criminal Appeal No. 56 of 2018, Smt. Shamim v. State of (NCT of Delhi), decided on 19.09.2018.
49. When such incident takes place, one cannot expect a scripted version from witnesses to show as to what actually happened and in what manner it had happened. Such minor details normally are neither noticed nor remembered by people since they are in fury of incident and apprehensive of what may happen in future. A witness is not expected to recreate a scene as if it was shot after with a scripted version but what material thing has happened that is only noticed or remembered by people and that is stated in evidence. Court has to see whether in broad narration given by witnesses, if there is any material contradiction so as to render evidence so self contradictory as to make it untrustworthy is Minor variation or such omissions which do not otherwise affect trustworthiness of evidence, which is broadly consistent in statement of witnesses, is of no legal consequence and cannot defeat prosecution.
50. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observations, 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 truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, 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. Court has to form its opinion about the credibility of witness and record a finding, whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle, but can be one of the factors to test credibility of the prosecution version, when entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statement of a witnesses cannot be dubbed as improvements as the same may be elaborations of the statements made by the witnesses earlier. Only such 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: State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152; Arumugam v. State, AIR 2009 SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334; and Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287]. We therefore, find no force in this submission also.
51. Considering entire facts and circumstances of the case, statement of PWs as well documentary evidence produced by prosecution and legal proposition discussed herein before, we have no hesitation to come to conclusion that accused-appellant committed murder of Govind Vishwakarma and caused injuries to PW-1 and 2 at the time, date and place as stated by prosecution and prosecution has been able to prove its case beyond reasonable doubt. Trial Court has rightly convicted and sentenced him. Appeal lacks merit and is liable to be dismissed.
52. So far as sentence is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.
53. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalized. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
54. In view of above propositions of law, the paramount principle that should be the guiding laser beam is that punishment should be proportionate to gravity of offence.
55. Hence, applying the principles laid down by Apex Court in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we find that punishment imposed upon accused appellant by the Trial Court in the impugned judgment and order is not excessive or exorbitant and no occasion arises to interfere in the matter on the point of punishment imposed upon the accused-appellant.
56. Consequently, Appeal lacks merit and is hereby dismissed.
57. Lower Court record alongwith a copy of this judgment be sent back immediately to District Court and Jail concerned for compliance and apprising the accused-appellant.
58. Before parting, we provide that Sri I.P. Singh, Advocate, who has appeared as Amicus Curiae for appellant in present Jail Appeal, shall be paid counsel's fee as Rs. 11,500/- for his valuable assistance. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer, posted in the office of Advocate General at Allahabad, without any delay and, in any case, within one month from the date of receipt of copy of this judgment.
Order Date:-27.09.2019 Akram